Earlier this week, Attorney General Eric Holder warned that judicial confirmations have slowed to such a glacial pace that half of all federal judgeships will be vacant by the year 2020 unless the pace accelerates.  And Holder is right to be worried.  Thanks to widespread right-wing obstructionism in the Senate, President Obama’s judicial nominees are being confirmed at about half the rate of his two predecessors’ nominees:

If anything, this problem appears to be getting worse — and it is getting worse fast.  Last night, the Senate recessed until after the election without confirming a single district or circuit judge.  That means that only one federal judge, Judge Jane Stranch, was confirmed during the Senate’s entire post-August session.  President Bush, by contrast, had nine judges confirmed during the same point in his presidency.

Judicial confirmations have slowed to this near-standstill because conservatives are exploiting a loophole in the Senate Rules which makes it virtually impossible to move more than a fraction of the Senate’s business forward.  Unless all 100 senators agree to hold a vote immediately, the Senate must waste up to 30 hours of time before it can vote on a single nominee.  Because a new president must fill approximately one thousand Senate-confirmed jobs during the course of their first term, it takes far longer to confirm each of these nominees (at 30 hours a piece) than the Senate is actually in session during two entire presidential terms:

Simply put, there is not enough time to confirm President Obama’s nominees in the face of right-wing obstructionism, so hundreds of federal judgeships could be vacant the next time a conservative president occupies the White House.

The possibility of a right-wing president filling these hundreds of judgeships should terrify anyone familiar with the right’s vision of the law.  As the right has increased it’s control over the federal bench, it has used the courts to immunize powerful corporate interest groups from campaign finance law, from laws intended to protect the environment, and from laws intended to protect women and older Americans in the workplace.  This corporate capture of the judiciary will only get worse if the right-wing’s confirmation roadblock does not get torn down.

Speaking on the Senate floor earlier this week, Sen. Jeff Sessions (R-AL), the top Republican on the Senate Judiciary Committee, falsely claimed that right-wing obstructionism of President Obama’s judicial nominees is justified because Democrats were more even more aggressive during the Bush Administration:

Mr. President, I’d like to speak about the Senate’s processing of judicial nominations, and, ah, have to say that forgive me if I’m a bit irritable, but, um, we’ve had a lot of complaints about how fast President Obama’s nominations are going forward, and I think they’re moving rather well.  And, I think some people who are now complaining have forgotten how they handled President Bush’s nominees, and in a much more unacceptable fashion. I’d like to emphasize that all of this is not to lay the groundwork to some sort of payback—because I think we all ought to rise up to the challenge of handling nominations properly—but, to set the record straight, because there’s been a lot of misinformation and some of our newer senators don’t really know how things have happened.  Allegations of “unprecedented obstruction and delay” have been bandied about, some in the press also, but the reality is that the Democrats systematic obstruction of judicial nominees during the Bush Administration was unprecedented then and it’s unmatched now.

Watch it:

Sessions is right that “there’s been a lot of misinformation” about judicial confirmations, and much of it is coming from him. It Bush era obstructionism truly exceeded Obama era obstructionism, then Bush would have had little success in confirming his judges. In reality, according to the Federal Judicial Center, the Senate had confirmed 77 of Bush’s judges by this point in his Presidency–ten more than the average for the last six president. The Senate has confirmed only slightly more than half as many Obama judges.

By the end of his presidency, nearly 87 percent of Bush’s judicial nominees were confirmed — a higher batting average than any president since Ronald Reagan — so Sessions’ claim that Bush’s judges were held up by unprecedented Democratic obstructionism simply does not survive contact with reality.

Despite the fact that confirmations rates under Bush were above average, and confirmations rates under Obama are dramatically lower than any recent president, Sessions is still not satisfied with his party’s wildly successful campaign of obstructionism.  Yesterday, Sessions even claimed that Republicans have “been far too generous with our consent” to the president’s judicial nominees, and he falsely stated that GOP obstructionism has occurred because Obama’s nominees are “not faithful to . . . the law and the Constitution.”

Sessions’ statement that all judges must be faithful to the Constitution would be entirely banal, except for the fact that Republicans appear to have lost their ability to distinguish between the actual Constitution and the GOP party platform.  The Republican “Pledge to America” adopts a ludicrous “tenther” theory of the Constitution that endangers Social Security and Medicare.  Sessions and his Republican colleagues tore into Justice Kagan because she agrees with ultra-conservative Justice Antonin Scalia that health reform is constitutional and that the government can prevent the sale of military-grade weapons.  Sessions’ own nomination to the federal bench was scuttled in 1986 in part because he conducted a tenuous criminal investigation into voting rights advocates that registered African-Americans to vote.

In other words, Republicans have declared that they have the power to declare what the Constitution really means — even when the Constitution’s express language disagrees with them — and to then block any judge who doesn’t align with their radical views.

When the 112th Congress begins next January, Sen. Chuck Grassley (R-IA) is expected to take over as the lead Republican on the Senate Judiciary Committee, and he has already announced that he plans to ramp up obstruction of President Obama’s judicial nominees beyond even the record levels of obstruction those nominees have endured so far.  Yet some truly bizarre constitutional analysis Grassley offered in a recent speech to Iowa Republicans raises grave concerns about whether he is even minimally qualified to do this new job:

“Americans want and Americans deserve the real original Constitution: A strong military, lower taxes, jobs through the private enterprise, border security, no apologizing for America. And most importantly, respect for life.”

Watch it:

Grassley’s call for a return to the “original Constitution” — a term that normally refers to the Constitution before it was amended — is downright terrifying if he actually means it.  Slavery was permitted under the original Constitution; women and minorities were denied the right to vote; and basic human rights such as the freedom of speech or the right to choose your own faith were unprotected.  Although, to be fair, it’s much more likely that Grassley simply didn’t understand what he was saying when he claimed that Americans deserve this “real original Constitution.”

For one thing, Grassley’s claim that the original Constitution requires “a strong military” would shock the people who actually wrote that Constitution.  Although the framers grudgingly conceded that Congress must have the power to “to raise and support armies” and “to provide and maintain a navy,” those same framers also believed that a permanent standing army invited tyranny because it gave national leaders a force they could use to oppress the people.  Today there is broad bipartisan consensus in favor of a permanent and professional military, but that consensus is at odds with much of the founding generation’s views.

Grassley’s claim that “lower taxes” are required by the “real original Constitution” also has no basis in reality.  The Constitution is agnostic about how much Americans should pay in federal taxes.  Although the original Constitution does place limits on how the tax burden can be distributed among residents of the various states, it gave Congress a broad “power to lay and collect taxes” without any instructions on how high those taxes could be. The Sixthteenth Amendment clarifies that Congress “shall have power to lay and collect taxes on incomes” at whatever levels it deems appropriate.

None of this is to say that Grassley’s preferred policies cannot be enacted if Congress deems those policies appropriate — if Grassley thinks taxes are too high, he can vote for lower taxes.  But his suggestion that his preferred policies are required by the Constitution, not to mention his call for a return to the unamended document, reveals Grassley’s utter pig-ignorance of what the Constitution actually has to say.  The fact that Senate Republicans selected this stunningly ignorant man to lead them on judicial and constitutional issues raises serious doubts about those Republicans’ fitness to govern.

And Grassley is hardly alone in his obtuseness.  Ever since President Obama took office, countless Republicans have simply assumed that any policy that they disagree with must be unconstitutional, and any policy they agree with must be required by the Constitution.  This is the animating force behind Alaska Senate candidate Joe Miller’s claims that Medicare, Social Security and unemployment insurance are all unconstitutional.  It drives Nevada Senate candidate Sharron Angle’s comical claim that belonging to the United Nations violates the Constitution.  And it is the sole motivating force behind the meritless lawsuits challenging the Affordable Care Act.

As it turns out, when you know nothing about the Constitution it’s easy to convince yourself that it means whatever you want it to mean.

Maricopa County budget officials say a financial review of Sheriff Joe Arpaio’s Maricopa County Sheriff’s Office records provide evidence that the office has misspent at least $50 million in taxpayer dollars and that Arpaio broke the law. KPHO reports:

Maricopa County Communications Director Cari Gerchick said the documents show Sheriff Joe Arpaio has used a voter approved fund for jail expenses to pay for items unrelated to the jails.

“A lot of money has been used on street patrol; which is not an appropriate use of jail tax dollars,” said Gerchick.

The county conducted a financial review of MCSO records after several questionable spending items came to officials’ attention.

Those items include an extradition trip to Alaska where deputies stayed at a fishing resort and training trips to Disneyland.

“What we have discovered through viewing that documents is that those suspicions were well founded,” said Gerchick.

Watch KPHO’s coverage:

County officials also found that jail funds were going towards Arpaio’s human smuggling unit which is frequently deployed to chase undocumented immigrants around the Phoenix area and arrest them for smuggling themselves across the border. If found guilty, those immigrants are routinely jailed for 90 days at the taxpayer’s expense rather than being immediately deported back to their home country.

Meanwhile separate investigations conducted by the Arizona Republic have documented “the questionable use of public funds by high-ranking sheriff’s officials, who routinely used county-issued credit cards to charge expensive meals and stays at luxury hotels.” The Arizona Republic also found that another fund meant to improve conditions in county jails was spent by Arpaio’s officials on more “out-of-state training, stays at luxury hotels, a staff party at a local amusement park and a $456,000 bus to transport inmates to court.”

For a long time, the Maricopa County Sheriff’s Office refused to even turn over financial documents, saying the Board of Supervisors officials who requested them were abusing their power.

These allegations come on the heels of another Arpaio-related controversy. A high-ranking Maricopa County officer recently submitted a 63-page memorandum claiming that the department’s number-two officer, Chief Deputy Dave Hendershott, “used the department’s anti-corruption unit to spy on political rivals.” Arpaio is also being sued by the Department of Justice for refusing to cooperate with a civil rights investigation. The FBI is meanwhile looking into accusations that Arpaio has been “using his position to settle political vendettas” against those who have been critical of his controversial police tactics, primarily his aggressive pursuit of undocumented immigrants.

Two independent reports by the East Valley Tribune and the Goldwater Institute show that Arpaio’s immigration-enforcement crusade alone has contributed to a huge county budget deficit and that crime rates have actually escalated as Arpaio has failed to arrest top smugglers and criminals.

Arizona currently faces a a projected fiscal 2011 deficit of about $750 million. A $1 billion budget deficit was recently projected for fiscal 2012.

With the defense authorization measure now moving in the Senate, two organizations dedicated to the repeal of Don’t Ask, Don’t Tell are urging to Department of Defense to adopt new regulations to ensure that gays and lesbians can serve openly and equally. Under the amendment in the defense bill, the policy cannot be repealed until the Pentagon completes its review of the policy and President Obama, Defense Secretary Robert Gates and Joint Chiefs of Staff Chairman Mike Mullen certify that a repeal would not undermine military readiness or cohesion. The policy would then be repealed after a 60-day period.

But a Congressional vote does not end the fight to repeal the policy. Even if the Senate passes the authorization, and it survives the conference committee, and the President’s veto threat, the Pentagon would have to do more to guarantee full equality. Servicemembers’ Legal Defense Network (SLDN) has released the following recommendations:

– Adopt a policy of nondiscrimination based on sexual orientation.

– Allow service members to identify their same-sex domestic partners and the children of these relationships in their personnel records.

– Allow service members discharged under “don’t ask, don’t tell” to rejoin the armed forces if they are otherwise qualified for re-accession.

– Adopt streamlined procedures for service members discharged under “don’t ask, don’t tell” and prior homosexual conduct policies to have their discharge records amended.

Similarly, a new report from the Palm Center also recommends that the military must implement an affirmative non-discrimination policy and adopt one standard of conduct and facilities. “The standard set by President Obama and Admiral Mullen is one of integrity and equality and suggests an appropriate standard that is nothing short of equal and open service for all gay and lesbian troops,” it concludes.

Back in March, the Center for American Progress reviewed the experiences of Great Britain, Canada and Israel and noted eight areas where the military can change rules and regulations in order to effectively implement the new policy and offered similar recommendations.

Earlier this week, anti-gay activists launched a harassment campaign against California Lt. Gov. Abel Maldonado (R), flooding his office and cell phone with demands that he file an appeal defending Proposition 8.  Although the state’s lt. governor normally does not have this authority, Maldonado temporarily is allowed to act as governor while Gov. Arnold Schwarzenegger (R) is traveling abroad.

To his credit, Maldonado chose not to overrule Gov. Schwarzenegger’s decision not to file this anti-gay appeal, and his explanation of this decision is not likely to earn him friends with the anti-gay right:

Lt. Gov. Abel Maldonado said yesterday he did not file an appeal from a federal court ruling striking down the state’s anti-same-sex marriage initiative because he was focused on other matters and had not discussed the matter with Gov. Arnold Schwarzenegger. . . .

“I was focused on San Bruno, I was focused on Bell, and I hadn’t discussed it with the governor,” he told Hogue. “Proposition 8”—which Maldonado supported—“was not discussed” at all, he said. . . .

Maldonado went to San Mateo County to oversee emergency operations resulting from the gas explosion that destroyed a neighborhood and killed at least four people there last Thursday. He also signed legislation relating to the recent disclosure of extraordinary salary payments to officials, and other possible irregularities, in the mile-square city of Bell, including one that authorizes distribution of certain tax overpayments directly to city residents. . . .

Maldonado’s announcement that he was too busy bringing a lethal disaster under control to deny constitutional rights to gay people is not sitting well with Prop 8′s proponents.  In a press release attacking Maldonado, the anti-gay Capitol Resource Institute accused him of “negligence” and of displaying “an arrogance and aloofness that suggested he was more concerned that we busied his phones than anything else.”

The right’s dissatisfaction with Maldonado could open a new battlefield in the growing civil war between establishment Republicans and those who view any departure from right-wing orthodoxy as an unforgivable betrayal.  In their original press release announcing the effort to pressure Maldonado, the anti-gay activists warned that the lt. governor would suffer electoral consequences if he did not cave to their wishes.

Yet if the anti-gay right actually does follow through on their promise to punish Maldonado, they could be in for a rude awakening on election day.  Maldonado’s opponent in the upcoming lt. governor’s race is none other than marriage equality pioneer and San Francisco Mayor Gavin Newsom.

Sen. James Inhofe (R-OK) spoke out against the Don’t Ask, Don’t Tell repeal amendment that’s part of the Defense Authorization Bill this afternoon, saying that the military should not rush to repeal the policy before hearing from the troops in the field. Inhofe suggested that ending the ban against gays and lesbians serving openly in the armed forces would cause problems in the ranks, citing his own experiences during the late 1950s:

INHOFE: Now, I’m a veteran. You know, I can remember going through the — When I was there in the United States Army, and anyone who’s a veteran knows the problems that would be associated with the practice of a — having a — repealing Don’t Ask, Don’t tell so that people are openly gay in the military. You’re going to have all kinds of billeting problems and other problems.

Watch the highlights:

Inhofe’s infusion of his own time in the service into the repeal debate is misplaced, since America’s military and society has become significantly more tolerant towards minorities in the intervening years.

Inhofe also insisted that Democrats were circumventing the opinion of the troops, despite the Pentagon’s extensive surveying of the troops and their families. He also said that Democrats were trying pass the measure before the November 2nd elections to appease the “huge” “gay lobby.”

Meanwhile, at a press conference today, Senate Majority Leader Harry Reid (D-NV) announced that the Senate will move to the defense authorization measure this week.

Earlier tonight, the Washington Blade’s Chris Johnson reported that Senate Majority Leader Harry Reid (D-NV) will in fact schedule a vote on the Defense Authorization Bill for the week of September 20th, ending speculation that the Senate would eschew the measure to better distinguish themselves from Republicans on tax policy. Johnson’s sources are saying that “Senate leadership is anticipating the Senate won’t have unanimous consent to bring the legislation to the floor, so 60 votes will be necessary to end a filibuster and move forward with debate on the bill. “We are going to take it the floor next week to see where the votes are,” the aide said.

LGBT activists expect to prevail on the floor, pointing to Sens Jim Webb’s (D-VA) and Scott Brown’s (R-MA) support for the overall bill and Sen. Susan Collins’ (R-ME) vote in favor the DADT measure in committee. Sixty votes will also be needed to strike the amendment from the authorization or change its condition. As it stands, the DADT repeal measure would require President Obama, Secretary of Defense Robert Gates and Joint Chiefs of Staff Chairman Mike Mullen to certify that repeal would not undermine military readiness or cohesion before the policy can be eliminated.

Earlier today, the Palm Center’s Chris Niff suggested that even the opponents of the measure — like Sen. John McCain (R-AZ) who was objecting to bringing the Defense Authorization Bill to the floor as of this morning — should (by their very own logic) allow the Senate to vote on the measure. As Neff writes, Congressional action would move issue out the courts (who have been rather hostile to the policy) and bring it back to Congress:

In short, Senator McCain is taking repeal of ‘don’t ask, don’t tell’ out of the hands of the Department of Defense and Congress and placing it in the hands of a judge whose ruling he opposes. Part of his objection is his concern that the Service Chiefs in the Pentagon have not been consulted more. But just last month, the lead objector Marine Corps Commandant General Conway stated that despite any opposition he might have, the Marine Corps would lead all of the Services in implementation of openly gay service. [...]

Senator McCain has a choice: to scuttle the legislative process and block military input, thus handing this decision to Judge Phillips, or to allow the Senate to deliberate on this issue in the light of day.

Given McCain’s rather moderate past positions on DADT, his ongoing opposition to the entire defense measure is surprising — especially to those who believed that he would move back towards the middle after his victory over Tea Party Candidate J.D. Hayworth. He still has two weeks to do just that.

Florida’s leading LGBT organization, Equality Florida, has rightfully praised Charlie Crist (I-FL) for suddenly embracing a wide array of LGBT equality measures, but it’s probably worth pointing out that his conversion comes out of political necessity, not any kind of policy realization. In fact when Crist was running for Governor and for Senator as a Republican, he opposed almost every measure he now supports. Consider the following:

CRIST ON FLORIDA’S GAY ADOPTION BAN:

2010: “That is why I oppose Florida’s current law that requires Family Law judges to ignore what is right for a child in order to adhere to what Florida law blindly demands.”

2006: “Charlie Crist also believes that children are best raised in a traditional family. Accordingly, he does not support repealing the ban on adoption by same-sex couples.”

CRIST ON EMPLOYMENT DISCRIMINATION:

2010: “I support strong anti-discrimination laws including ENDA. Employment and advancement should be based on skill and merit, not hindered by prejudice of any kind.

2006: “Charlie Crist does not support including sexual orientation within anti-discrimination laws…Charlie Crist opposes giving sexual orientation status equivalent to those currently covered under existing civil rights laws. “

CRIST ON CIVIL UNIONS:

2010: “I believe civil unions that provide the full range of legal protections should be available to gay couples. That includes access to a loved one in the hospital, inheritance rights, the fundamental things people need to take care of their families.”

2006: “Charlie Crist does not believe that the government or private industry should be required to provide health insurance benefits to same sex partners of employees or contractors.”

2008: Opposed civil unions when he supported The Florida Marriage Amendment, or Proposition 2. It said: “This amendment protects marriage as the legal union of only one man and one woman as husband and wife and provides that no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

CRIST ON DON’T ASK, DONT’ TELL:

2010: “I’m a strong supporter of the men and women of our military. Those willing to risk their lives to defend our country should not be compelled to lie to do so.”

MAY 2010: “I think the current policy has worked pretty well for America. I really do. So I don’t know why there’s any need for change at this time.”

Again, Crist’s progress speaks to the success of LGBT activism in bringing these policies into mainstream and hints to the positions all candidates will have to take in future elections. But the reason for Crist’s evolution should not escape scrutiny. Crist changed his positions to lure moderate and independent voters away from Democratic challenger Rep. Kendrick Meek (D-FL). And now, both men have almost identical positions on LGBT rights, with Crist still hanging on to his support for a state-based same-sex marriage ban. Ideally, of course, Crist’s move to the left would push Meek to embrace full marriage equality — a position that 41% of Floridans already hold (and increase of 15 percentage points from the mid 1990s). But I suspect that LGBT voters will have to wait two if not four more years for that issue to enter the mainstream.

Today is the deadline for California to join the anti-gay groups appealing Judge Vaughn Walker’s opinion striking down Proposition 8, and both Governor Arnold Schwarzenegger (R) and Attorney General Jerry Brown (D) have indicated that the state will not do so.  Prop 8′s supporters, however, think they have an ace in the hole — the state’s Lt. Governor:

A group of conservative leaders led by former attorney general candidate John Eastman have asked to meet with Lieutenant Governor Abel Maldonado to discuss his support of an appeal in a federal court suit regarding Proposition 8.

While the Ninth Circuit Court of Appeals has scheduled a December hearing of a lower court’s decision overturning the voter approved initiative, there is some question whether the proponents of the measure have standing to argue the case before the court.  The Attorney General and the Governor clearly have authority to file the appeal.  But, both Jerry Brown and Arnold Schwarzenegger have refused to do so based on their personal opposition to Proposition 8.

“But Abel Maldonado is a supporter of Proposition 8 and hopefully more willing to honor the obligations of his office than the current Attorney General has been” says Eastman.  “Importantly, while the Governor is traveling outside of the State, all of the rights and responsibilities of the office of Governor rest with Mr. Maldonado.”

Eastman, who is best know for inventing wildly wrong theories of the Constitution supporting right-wing policy goals, is uncharacteristically correct about Lt. Gov. Maldonado’s temporary authority.  Under the California Constitution, “The Lieutenant Governor shall act as Governor during the impeachment, absence from the State, or other temporary disability of the Governor or of a Governor-elect who fails to take office.”  Thus, because Schwarzenegger is currently on business in China, Maldonado does have the authority to file an appeal that the governor objects to.

It’s difficult to imagine that Maldonado would actually do such a thing, however.  For one thing, he presently has much more important matters to deal with.  Not long after Schwarzenegger left for China, a massive gas explosion occurred in San Bruno, California.  As the state’s acting governor, Maldonado has been quite busy dealing with this tragic development.

Moreover, filing an appeal that Schwarzenegger has consistently and publicly opposed would be nothing less than a declaration of war against the highest ranking official in his state.  If the governor had to fear that every time he left the state his decisions would be overruled by Maldonado, Schwarzenegger would be discouraged from traveling outside of the state even when it was in California’s interests for him to do so.  Simply put, it makes no sense to have crucial policy decisions rest upon where Gov. Schwarzenegger happens to be sleeping tonight.

Nevertheless, the anti-gay activists offer one entirely cynical reason for Maldonado to abuse his temporary powers as acting governor: the upcoming election.  As one anti-gay activist puts it, “more than a few conservatives are still angry with the Lieutenant Governor for votes while he was in the California Legislature.  The simple act of filing this appeal could wipe away many bad memories.”

Raw Story is reporting that Gov. Charlie Crist (I-FL) will issue a new position paper later this week embracing a host of new LGBT initiatives, while still opposing same-sex marriage:

Civil Unions
I believe that the government should not make it harder for people to take care of their loved ones. I believe civil unions that provide the full range of legal protections should be available to gay couples. That includes access to a loved one in the hospital, inheritance rights, the fundamental things people need to take care of their families.

Repeal of Don’t Ask, Don’t Tell
I’m a strong supporter of the men and women of our military. Those willing to risk their lives to defend our country should not be compelled to lie to do so. I support the current efforts by Congress and military leadership to end Don’t Ask, Don’t Tell and hold every member of the military to the same standard of professionalism that has made our military the greatest force for good in the world

Federal Safe Schools Improvement Act
As Commissioner of Education I was the first statewide official to support anti-bullying protections that specifically enumerated the most frequent manifestations of bullying in our schools. Everyone who has children or who has worked with students knows that anti-gay taunts are used relentlessly on our campuses. We need to address the epidemic of bullying and create safe learning environments for every single student.

The Domestic Partnership Benefits and Obligations Act
I’ve been a consistent supporter of providing legal protections for gay couples. Like most Americans I believe the government should make it easier, not harder, for people to take care of their loved ones.

Uniting American Families Act
Family reunification has been the foundation of U.S. immigration law but U.S. citizens who are gay cannot sponsor their partners for family-based immigration. As a consequence, many same-sex, bi-national couples are kept apart or torn apart sometimes even separating parents from their children. This bill, which I support, humanely addresses a problem that disproportionately impacts Floridians.

Equal Access to COBRA Act
I strongly support this act which mandates that employees, their partners and dependent children be allowed to continue participation in their employer-sponsored health coverage.

Crist has a long and complicated history on gay issues and has at times opposed many of the above measures. As a Republican, Crist supported the Don’t Ask, Don’t Tell (DADT) policy, but as an independent, he now supports its repeal. Crist has also supported efforts to ban gay marriage in Florida, but has said that civil unions between gays are “fine.” In 2007, however, he asked the Republican party to stop spending money promoting “a constitutional ban on same-sex marriage in Florida” even after he signed a petition “to place an amendment prohibiting same-sex marriage on the 2008 election ballot.” “When asked if he supported civil rights on the basis of sexual orientation, Crist said ‘no.’”

On July 28, 2006, Crist told a radio show that he “haven’t taken a position yet” on the right of gays to adopt, but only days after — in an interview by the Florida Baptist Witness — “Crist answered ‘no’ to repealing the ban on gays’ adopting.” In the draft provided to Raw Story, Crist says he now opposes the adoption ban. “We need to take politics out of adoption decisions,” the governor says in the draft. “That is why I oppose Florida’s current law that requires Family Law judges to ignore what is right for a child in order to adhere to what Florida law blindly demands. There is only one question that matters: What is in the best interest of that child?”

As an independent, Crist probably feels that he has to position himself as more accepting of LGBT issues to bolster his position with moderate voters. This strategic decision — the realization that supporting LGBT issues is mainstream — is in itself a major victory for LGBT activists. As Equality Florida’s Nadine Smith points out, “It’s great to hear a sitting governor take such a strong stand on equality issues. This is the first time in Florida’s history that a sitting governor has taken these public positions on a wide range of LGBT equality issues. It marks a shift in the debate in our state.”

This afternoon, Lt. Dan Choi appeared on MSNBC with Contessa Brewer to discuss yesterday’s court ruling striking down the Don’t Ask, Don’t Tell policy on the grounds that it violates the due process cluse of the Fifth Amendment and abridges servicemembers’ First Amendment rights:

BREWER: [Judge Phillips] says it bars people from enjoying intimate conduct and bars them from speaking about their loved ones while serving in uniform. It bans them from including information in a personal communication that could reveal their homosexuality. If you’re deployed, you’re away from your support system. That’s a severe impediment to dealing effectively, operating effectively in our nation’s armed forces. But she says she’s not going to issue a final ruling for two weeks. What should happen right now from our nation’s leaders not just this judge?

CHOI: You’re absolutely right, for our soldiers not only in combat but back home that have to deal with so many issues of posttraumatic stress, depression, suicide, which is skyrocketing. I don’t see how they could stand by. But if the President and his Justice Department do not appeal, lift a finter, waste any energy, waste any statement or waste any money defending Don’t Ask, Don’t Tell, then what we might see is an absolute victory not only for gay veterans but for our whole military. We don’t have to fire people for being honest. We can bolster and reiterate not only our Bill of Rights and Constitution but that American value of love.

Watch it:

Indeed, while the Justice Department is still reviewing the decision and considering whether or not to appeal the ruling to the Ninth Circuit, at least two Democratic Senators are pressuring the Senate to pass the Defense Authorization Bill, which includes an amendment that begins the process of repeal. Sen. Kirsten Gillibrand (D-NY) tweeted this last night that she hopes “DOJ does not appeal” and Sen. Mark Udall (D-CO) called on Congress to “repeal it to improve natl security.”

Meanwhile, New York Magazine observes that the “ruling presents both a problem and an opportunity for Obama.” “With Democrats heading into what might just be a lame-duck session in the House (leading up to November elections, during which they very well may lose the majority), this might provide a last-minute chance to finally enact change on a policy many of them have vowed to end.” “If the Justice Department simply doesn’t appeal the case after this ruling, ‘don’t ask, don’t tell’ might just go away. If Obama waits for Congress to address the issue, a Republican-led house might reject an overturn.”

Once Phillips enters her judgment, “she can either permit it to take effect immediately, stay it while the decision is on appeal, or temporarily stay it to give the Ninth Circuit an opportunity to rule on whether her decision should be stayed during the appeal.” “Because this is a facial challenge, not just an as-applied challenge, if the decision is upheld on appeal, it will apply to the whole country and will be the end of Don’t Ask, Don’t Tell.”

When David Boies debated Family Research Council president Tony Perkins on Face The Nation, he pointed out that while “it’s easy to sit around and debate and throw around opinions, appeal to people’s fear and prejudice, cite studies that either don’t exist or don`t say what you say they do, in a court of law, you`ve got to come in and you`ve got to support those opinions.” “And what we saw at trial is that it`s very easy for the people who want to deprive gay and lesbian citizens the right to vote to make all sorts of statements and campaign literature, or in debates, where they can`t be cross-examined, but when they come into court and they have to support those opinions and they have to defend those opinions under oath and cross- examination, those opinions just melt away,” he said.

Unable to substantiate their grandiose claims about how same-sex marriage would undermine the institution or hate crimes legislation would silence Christians, conservatives have recently suffered a number of court setbacks. But that hasn’t stopped Perkins from perpetuating the notion that an expansion of rights to gay couples directly corresponds with a reduction in religious freedoms. Last night, for instance, during an appearance on TBN’s Praise The Lord, Perkins made the grand claim that should Judge Walker’s ruling stand, religious belief would be “banned in America“:

PERKINS: [Walker] says religious beliefs that says that homosexual marriage or homosexual relationships are sinful or inferior to heterosexual relationships, harm gays and lesbians. Now, as a finding of fact, if that stands, that means that the government will have to use its power to mitigate that harm. What does that mean? We’re not talking about religious teachings, we’re not talking about religious broadcasting, we’re going much deeper than that. We’re talking about religious beliefs. If this case stands, this opinion, we’ll have gone in one generation from 1962 when the bible was banned in public schools, to religious beliefs being banned in America.

Watch it:

Naturally, these kinds of statements simply serve as fundraising pitches to the conservative right, but as we saw during the Prop 8 trial, the actual legal arguments against expanding marriage are not any more substantive. (H/T: Good As You)

While many LGBT advocates did not support the compromise amendment to repeal Don’t Ask, Don’t Tell, after the House and the Senate Armed Services Committee attached the measure to this year’s Defense Authorization Bill, most assumed that the policy was on its way out. The argument mostly centered around how long it would take. But now, several publications are reporting that Senate Democrats — in search of an election issue to distinguish themselves from the Republicans ahead of the midterm elections — may not be so keen on addressing the issue before they leave town on October 8. Senate Majority Leader Harry Reid (D-NV) keeps assuring advocates that the authorization measure is “on the list of things we would like to do”, but some are growing weary. Here is the Advocate’s Kerry Eleveld:

“I’m a little anxious,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network. “The reality is the number of legislative days in this Congress are rapidly dwindling, and we need to see that the defense authorization bill up on the Senate floor in September.” [...]

The source wagered that if the Senate floor vote does not take place before the midterms, the defense funding bill would have a “50-50” shot of passing before the end of this Congress. If it is not finalized by year’s end, the repeal effort will die….But it remains to be seen whether Republicans will continue to obstruct the bill and, if they do, whether Democrats have the grit to force the vote through, in which case they will have to produce 60 votes to end debate (reach “cloture”) in order to get the bill to the Senate floor, where it will require 51 votes to pass. Prior to the August recess, Manley said, the majority leader tried to reach an agreement with Republicans to move forward with a vote on the legislation, but Sen. John McCain of Arizona — who was fending off a primary challenge from hard-core conservative J.D. Hayworth — thwarted the effort.

By all accounts, the White House and Reid are still on board with bringing the measure to a vote during the latter half of September and many believe, as Eleveld reported, that these efforts may now face less opposition from Sen. John McCain (R-AZ), who before being challenged by Hayworth had said that he would consider repealing the ban if military commanders like Gen. David Petraeus suggested that it was no longer necessary. Groups like HRC, SLDN, and Servicemembers United are lobbying members to take up the bill, but since the military received funds through appropriations, the authorization measure may not be considered a must-pass piece of legislation. For instance, even though Congress has successfully passed a DAB in the past 45 years, it almost rarely secures the passage of the State Department’s authorization.

LGBT lobbying of Congress is not merely constrained to DADT, however. Last night, activists with the group GetEQUAL interrupted Rep. George Miller’s (D-CA) debate against his Republican opponent Rick Tubbs, to pressure the Congressman to pass the Employment Nondiscrimination Act (ENDA). That measure has languished in Miller’s House Education and Labor committee. In March, Miller had promised to move ENDA “[r]ight after healthcare,” but House Speaker Nancy Pelosi (D-CA) has since said that she wouldn’t bring the measure to the floor until DADT is repealed.

Yesterday, Judge Royce Lamberth denied the Justice Department’s request to stay his order suspending federal funding for embroynic stem cell research, which is a ruling that shouldn’t surprise anyone. Before a judge may stay a decision, they must first conclude that the party has “made a strong showing that they are likely to succeed on the merits.” So, if Judge Lamberth had stayed his own decision he would have to more or less concede that his reasoning is open to a strong attack.

There is a thin ray of light in Lamberth’s order denying the stay, however:

Defendants are incorrect about much of their “parade of horribles” that will supposedly result from this Court’s preliminary injunction.

Plaintiffs agree that this Court’s order does not even address the Bush administration guidelines, or whether NIH could return to those guidelines. (Defs.’ Opp’n 5.) The prior guidelines, of course, allowed research only on existing stem cell lines, foreclosing additional destruction of embryos.

Plaintiffs also agree that projects previously awarded and funded are not affected by this Court’s order.

Essentially, the judge appears to embrace a concession by the plaintiffs challenging stem cell research that his order does not affect money that has already been distributed to scientists — it only prevents the government from making new awards. While this limit on his order is cold comfort to scientists whose entire body of research could be rendered useless if they aren’t allowed to continue building on it with new grant money — or, for that matter, to the millions of people with illnesses who could be cured by stem cell research — it does remove the immediate threat of scientists being forced to return money they have already spent.

Additionally, the judge also seems to endorse the view that his order does not prevent the Obama Administration from moving back to the Bush-era policy on stem cells — a policy which allowed research on existing stem cell lines but would not allow new lines to be created.  As I wrote on the day that Judge Lamberth suspended stem cell funding, the judge’s reasoning still appears to prevent restoration of Bush-endorsed projects.  Nevertheless, if Judge Lamberth limits the scope of his order that will, at least, require opponents of embryonic stem cell research to file another lawsuit before they can suspend research that is not specifically forbidden by Lamberth’s order.

Now that Lamberth has denied a stay of his previous decision, that denial can be appealed to the D.C. Circuit.  Hopefully, that court will embrace the same view that was shared by the Clinton, Bush and Obama Administrations, that Congress never intended to prevent stem cell research from moving forward.

Conservative claims about being victimized by the so-called homosexual agendamay reap thousands of dollars in fundraising pitches, but as the Proposition 8 trial demonstrated, the arguments are rooted in fear, not fact, and simply don’t stand up in court. Yesterday, Judge Thomas L. Ludington of the Eastern District of Michigan — a Bush appointee — granted Attorney General Eric Holder’s “motion to dismiss the challenge” to the Hate Crimes law, throwing out the claim that the law “violates their First Amendment rights to express their opposition to homosexuals and homosexual behavior in several ways.”

Ludington ruled that the plaintiffs lacked jurisdiction and argued that “Plaintiffs’ fear of prosecution is speculative; they do not allege that they have violated the Hate Crimes Act in the past, nor that they intend to violate it in the future“:

The Attorney General once again emphasizes, however, that the Act only prohibits violent conduct, not speech, and that Plaintiffs do not allege that they intend to engage in any such violent conduct….The Attorney General’s arguments are persuasive. Plaintiffs do not have standing to pursue their claims when they do not allege an“injury in fact,” that is both “concrete and particularized,” and “actual or imminent.” In other words, they have not demonstrated that there is an existing “case or controversy” within the meaning of Article III of the U.S. Constitution. Most importantly, Plaintiffs do not allege that they intend to “willfully cause” any “bodily injury.” This is true even if one accepts Plaintiffs’ proposed definition of “bodily injury,” to include simple headaches and stomachaches, because Plaintiffs do not allege that they intend to “willfully cause” headaches and stomachaches.

Moreover, that fact, in combination with the Attorney General’s denial that the Hate Crimes Act applies to Plaintiffs’ conduct (a conclusion that is supported by the text of the statute, the Rules of Construction, and the legislative history), supports the conclusion that Plaintiffs have not demonstrated that “there exists a credible threat of prosecution” under the Act. Babbitt, 442 U.S. at 298. Plaintiffs’ fear of prosecution is speculative; they do not allege that they have violated the Hate Crimes Act in the past, nor that they intend to violate it in the future. [...]

Plaintiffs present hypothetical situations in which they believe that they will be prosecuted or subject to investigation under the Hate Crimes Act. They have not demonstrated that such situations are of “substantial and of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id. Plaintiffs allege their own personal beliefs and assertions of third party members of the general public to suggest that they would be subject to prosecution and investigation under the Act, rather than any concrete, “reasonably founded in fact,” threat of prosecution or investigation.

The Attorney General acknowledged that prosecutors may use “evidence of speech,
expression, or associations” to prove one’s motive, but stressed that a violent act would first have to be committed. Lawyers for the plaintiffs had “previously said that if they didn’t prevail, they planned to appeal the decision all the way to the Supreme Court.”

Earlier this week, the Wonk Room noted that the plaintiffs seeking to end all federal embryonic stem cell funding requested that the same three right-wing judges who handled a preliminary issue in this case be reassigned to hear the case again.  To those judges’ credit, they denied this request:

Opponents of stem cell research that uses discarded or unwanted embryos have failed in their bid to, in essence, hand pick the judges who will hear an appeal of a lower court’s groundbreaking ruling barring federal funding of all embryonic stem cell research.

The request got some attention, since it seemed to be a bid to guarantee a conservative panel to take up Lamberth’s ruling and perhaps the Justice Department’s request for a stay that would allow the status quo policy to go remain in place while the appeal is heard. . . .

However, it doesn’t seem to have been reported that on Thursday the three GOP appointees passed up their right under court rules to reclaim the case. So the appeal and possibly the stay will go to a randomly-selected panel, which may or may not include some of the original judges but is highly unlikely to be exactly the same as the original panel.

The practical effect of this decision is that the case is still likely to be heard by a conservative panel — six of the DC Circuit’s nine active judges were appointed by conservative presidents, and those six judges include some of the most right-wing judges in the country.  Nevertheless, the panel that the plaintiffs were seeking is unusually conservative even for this very conservative court.

The three judges did not explain why they denied the motion, but such denials without explanation are not uncommon for this kind of judicial order.  One possible explanation is that they understood that granting the motion would create a bad precedent that could be used against them in future cases.  If conservative plaintiffs can hand-pick a panel of conservative judges to hear their appeal, than what prevents left-leaning plaintiffs from locking in their own preferred panel in a future case?

Hopefully, when a new panel finally decides whether to reinstate funding for stem cell research, that panel will be equally aware of the fact that bad precedents lead to bad consequences down the road.

The primary legal question in this appeal is whether judges are required to defer to the Clinton, Bush and Obama Administration’s interpretation of a federal law, or whether judges can substitute their own views for that of three ideologically diverse administrations.  This should be an easy question because a landmark Supreme Court decision called Chevron v. NRDC establishes that judges are supposed to pay a great deal of deference to a federal agency’s interpretation of the law.  Were a conservative panel to refuse to pay such deference in a case brought by conservatives, there is little to prevent a left-leaning panel from doing the same when the shoe is on the other foot.

Lawyers in the lawsuit attempting to shut down all federal embryonic stem cell funding filed a highly unusual motion yesterday.  If their motion is successful, it will effectively stack the court of appeals panel hearing this case with three far right judges who are more likely to side against scientific research than a randomly selected panel of their colleagues:

Cases in the U.S. Court of Appeals for the D.C. Circuit are randomly assigned to three-judge panels. There’s conflict screening to determine whether any one judge has a financial or other conflict of interest.

In the stem cell case, Judges Douglas Ginsburg, Janice Rogers Brown and Brett Kavanaugh picked up the dispute, heard oral argument in April and issued a ruling in June. The court reversed the dismissal of the claims and remanded the case for further proceedings in the U.S. District Court for the District of Columbia. DOJ is now appealing the issuance of a preliminary injunction that blocks funding for human embryonic stem cell research.

The Gibson, Dunn & Crutcher lawyers for the plaintiffs, Drs. James Sherley and Theresa Deisher, filed a motion about 1:30 a.m. today in the D.C. Circuit asking that the previous panel be assigned to hear the new appeal.

Early in this litigation, the trial judge determined the plaintiffs lack “standing” to bring this lawsuit — effectively saying that, because the plaintiffs haven’t actually been harmed in any way by the defendants, they are not allowed to sue them.  The plaintiffs appealed that determination and an appeals panel of Judges Ginsburg, Brown and Kavanaugh decided that the plaintiffs have standing after all and sent the case back to the trial judge to consider the remaining issues.

Typically, when a case ping-pongs between a trial and an appeals court, the case is assigned to one appeals panel to determine standing and a different panel to decide future issues.  Nevertheless, the plaintiffs’ motion claims that the court should not follow its normal practice “because the original panel is well-versed in the specific facts and law relating to the present appeal.”  It’s tough to believe, however, that this is the real reason why the plaintiffs want to keep their old panel.

Ginsburg, Brown and Kavanaugh are among the most right-wing judges in the country.  Brown once compared liberalism to “slavery” and Social Security to a “socialist revolution.”  Ginsburg is a leading “tenther” who once called for America to return to a discredited era when child labor laws were considered unconstitutional.  Kavanaugh cut his teeth working for Ken Starr’s Clinton-era witchhunt.  When the court randomly assigned these three judges to hear the plaintiffs’ standing appeal, it was like the plaintiffs won the lottery.  Their most recent motion is nothing less than an attempt to rig that lottery.

There also does not appear to be much legal support for the plaintiffs’ motion.  The motion admits that, although the DC Circuit used to provide for “retention of the same panel that handled an earlier appeal in the same case . . . [,] that system is no longer in place as a formal matter.”  Moreover, the motion is only able to find two examples from courts other than the DC Circuit which arguably support their request that their case be heard by the same panel — and one of those examples is nearly two decades old.

Nevertheless, the motion places the Justice Department in an awkward position.  Were DOJ to oppose the motion, they would risk antagonizing Ginsburg, Brown and Kavanaugh even further by potentially implying that they are not well-suited to hear this case.  Perhaps for that reason, DOJ informed the plaintiffs that they “take[] no position on this motion.”

If nothing else, this motion is a very clever attempt to shape the result of this litigation long before the case is even briefed.  Should the motions succeed, opponents of stem cell research will have their dream panel.

Tonight during her debate against Sen. Barbara Boxer (D-CA), Republican gubernatorial candidate Carly Fiorina cited President Obama’s opposition to same-sex marriage to substantiate her belief that “marriage is between a man and a woman” and moderate her support for Proposition 8:

FIORINA: I do believe that marriage is between a man and a woman, but also have been consistant and clear that I support civil unions for gay and lesbian couples. The Defense of Marriage Act had broad bipartisan support. And actually, the position I’ve consistently aspoused is consistant with that of our President and a vast majority of senators in the U.S. Senate…The voters were quite clear about their views on this [Proposition 8] and this is now going through a legal process. Whatever your view about gay marriage, I think many of us would conclude that when voters have such a clear decision, for that decision to be overturned by a single judge seems perhaps not appropriate.

Watch it:

Indeed, in light of the growing support for same-sex marriage from prominent conservatives and Republicans, some Democrats and LGBT activists have expressed concerned that Obama’s continued opposition to marriage will become a serious hinderance. As one prominent Democratic consultant told Sam Stein, “I think they have been put in a tough place by these conservatives and they should be,” the consultant said. “There are a whole group of people who are to the left of them on gay rights. And they are Republicans. It should make them feel uncomfortable.”