Sigh. Looks like this is going for the long haul.

The Courage Campaign has a good analysis and commentary about why this is really good news in many ways.

LA Times:

In a brief order, a three-judge panel agreed to an expedited review of U.S. District Judge Vaughn R. Walker's Aug. 4 ruling that overturned Proposition 8 as a violation of the federal Constitution.

The panel agreed to hold a hearing on the case during the week of Dec. 6 and ordered both sides to present arguments on whether the campaign for Proposition 8 has legal authority to appeal Walker's order.

Update: California Attorney General (and candidate for Governor) Jerry Brown won't appeal court's ruling.

There is at least one judge in Louisiana with some sense and respect for the law. NPR reports that U.S. District Judge Ralph Tyson has placed a temporary restraining order on the requirement that any woman seeking an abortion be forced to have an ultrasound first, and view the results of that ultrasound before having an abortion.

This is good news not only for women in Louisiana, but for women in other states where similar laws have been passed. While the key will be finding a judge willing to actually evaluate the facts in light of the Constitution, this is certainly a step forward.

The right wing has spent a lot of time working to get laws passed (mostly in Southern states) that are clearly discriminatory to women, violate their rights, and are just a stalking horse for an excuse to try and overturn Roe vs. Wade.

The assault on women's reproductive rights has been relentless in 2010.

Louisiana (temporary restraining order granted):

One of the new laws would block abortion doctors from participation in a state-run medical malpractice fund. The other would require women about to undergo abortions to first have an ultrasound examination and receive a photograph of the ultrasound image.

Guttmacher Institute Study:

Legislators in eight states introduced measures to require that ultrasound services be offered to a woman seeking an abortion. Missouri was the only state in which a measure was approved, and the governor is widely expected to allow it to go into effect without his signature. Three other states currently require providers to offer ultrasound services to women (see Requirements for Ultrasound).

Measures enacted this year in Utah and West Virginia place requirements on a provider who is performing an ultrasound in preparation for an abortion. The Utah law requires the provider to offer to show and describe the image to the woman. The new law in West Virginia is similar but explicitly allows the woman to choose whether or not to view the image. These two new laws bring to 10 the number of states with such provisions.

Finally, legislatures in three states—Oklahoma, Florida and Louisiana—moved to enact or strengthen requirements mandating that women seeking an abortion first obtain an ultrasound. Oklahoma adopted the most stringent measure. It would require abortion providers to perform an ultrasound on every woman obtaining an abortion, display the image to her and provide a verbal description; the woman would be entitled to “avert her eyes” if she did not want to view the screen. The measure is identical to one passed in 2008 that was overturned by a state court on procedural grounds. The new law, written to avoid the procedural issues, was nonetheless challenged immediately upon enactment, and enforcement is currently blocked pending the outcome of the litigation.

And of course, let's not forget the assault on the Affordable Care Act:

Meanwhile, legislators in 14 states (including states that already have laws applying to all private plans) introduced measures that would limit coverage of abortion through the insurance exchanges that will be set up under health care reform by 2014. Legislation has been enacted in four states. Arizona’s new law permits coverage only in cases of threats to the woman’s life or health, while Mississippi’s permits coverage only in cases of life endangerment, rape or incest. Laws in Louisiana and Tennessee prohibit all coverage of abortion, with no exceptions. Legislation approved by the legislature in Missouri is awaiting action by the governor, and measures in Florida and Oklahoma have been vetoed.

Just one more reason to keep the wingers out of Congress and by extension, out of women's reproductive systems.

As Senate Republicans added blocking aid to small business to their record-setting obstructionism, Democrats this week failed to secure the needed votes for reform of the filibuster rule. But largely overlooked in the debate over the filibuster is the Republicans' unprecedented obstructionism when it comes to the confirmation of President Obama's judicial nominees. As it turns out, while the GOP in the 111th Congress has turned to the filibuster at more than double the previous Democratic rates, Barack Obama's nominees to the federal bench are half as likely to be confirmed.

That's the jaw-dropping conclusion of a recent study by the study by the Center for American Progress. Thanks to the Republicans' historic use of Filibusters, anonymous holds, and other obstructionist tactics, President Obama's confirmation rate is "falling off a cliff." The CAP assessment of data from the Congressional Research Service, the Justice Department and the Senate Judiciary Committee found that:

Such tactics are completely unprecedented, and so are their results. Fewer than 43 percent of President Obama's judicial nominees have so far been confirmed, while past presidents have enjoyed confirmation rates as high as 93 percent. And President Obama's nominees have been confirmed at a much slower rate than those of his predecessor--nearly 87 percent of President George W. Bush's judicial nominees were confirmed.

To be sure, the Republicans' successful rearguard action is helping to preserve conservative dominance of the federal judiciary. But with its sluggish pace of nominations, the Obama administration isn't helping itself.

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This is a significant step forward for justice on the tribal reservations, especially the women who are the victims of widespread domestic violence and sexual crimes:

A measure designed to ease stubbornly high rates of violent crime, including rape and sexual assault, within Indian reservations will be signed into law by President Obama on Thursday.

Advocates of the Tribal Law and Order Act, which took three years to put together and passed the Senate last week, say it will ensure that more crimes, including murders and serious assaults, are reported and prosecuted amid worries that many cases go unpunished.

The measure gives tribal courts tougher sentencing powers and sets stricter rules to gather and collect more data on crimes. Special U.S. prosecutors will be appointed to tackle what advocates of the law describe as an epidemic of violence.

The president is due to sign the bill into law during a ceremony at the White House on Thursday afternoon.

Supporters said the current congressional session was the most active in decades in improving conditions for Indian reservations. Earlier this year, Obama signed a law that boosted health-care provisions for Indian communities.

The reservations overall have violent-crime rates of more than twice the national average, according to a congressional investigation.

Indian Country Today has more:

Also, tribes prosecuting individuals for crimes that could land them in jail for more than a year must provide defendants with the same right to a lawyer that they would have in state or federal court.

“The 1968 Indian Civil Rights Act notably did not include a right to counsel even though it is a constitutional (6th Amendment) right that also applies to the states,” said Navajo lawyer Chris Stearns. “My understanding is that this giant exception was made because back then no one thought that tribes would be able to pay for attorneys, or that there were even attorneys around at all on the reservation.”

[...] Whitney Phillips, a spokeswoman for Rep. Stephanie Herseth Sandlin, D-S.D., a major champion of the bill in the House, said tribes that don’t have the resources to provide defense counsel or house inmates for longer sentences can continue to operate under the existing one-year sentencing provisions in the Indian Civil Rights Act, which does not require that defense counsel be provided.

“Because the provision is optional, it will not place any additional costs on tribes who choose not to participate in the enhanced sentencing provision,” Phillips said.

Hannah August, a spokeswoman for the Department of Justice, said the law will not cost tribes anything unless they choose to exercise the enhanced sentencing authority it provides.

Of course, that places the cost burden on the tribes, and not all of them can afford it. So they'll be "allowed" to maintain a two-tiered system of justice if they can't pay for the better version -- which, come to think of it, makes them just like the rest of our country!

I have high hopes for Sen. Al Franken, who never stops fighting for the things he believes in. How refreshing that a freshman Senator refuses to shut up and sit down, instead putting himself in the forefront of progressive fights:

Republican senators and conservative jurists found themselves on the defensive after Sen. Al Franken (D-Minn.) blasted "conservative activism" on federal courts.

Franken, in a major speech Thursday evening before the American Constitution Society, sought to set the stage for a summer confirmation battle in the Senate over President Barack Obama's pick, Elena Kagan, to join the Supreme Court.

The first-term senator launched a full-throated attack on originalism, the judicial philosophy often upheld by conservatives as an example for model nominees for the federal courts.

"Originalism isn’t a pillar of our constitutional history. It’s a talking point," Franken said, adding a jab at Chief Justice John Roberts for his famous comparison between judges and baseball umpires during Roberts's confirmation hearings.

"How ridiculous," Franken said. "Judges are nothing like umpires."

The Senate is set to take up the Kagan nomination in the Senate Judiciary Committee, on which Franken serves, later this month.

With the battle over Kagan and other judicial nominees having stalled in the Senate, Franken also took a moment to castigate GOP filibusters of Obama's court picks.

"The Republican obstruction that is standing between you and the work you’ve agreed to do for your country is unacceptable. And we will continue to fight it," Franken said, apologizing to Goodwin Liu and Dawn Johnsen, the president's picks for a circuit court spot and director of the Office of Legal Counsel, respectively, who were both in the audience.

This Week in Northern California, March 2007

Hold on there, Viacom, before you start counting those Google bucks. YouTube thinks you're not exactly operating in good faith:

In their opening briefs in the Viacom vs. YouTube lawsuit (which have been made public today), Viacom and plaintiffs claim that YouTube doesn't do enough to keep their copyrighted material off the site. We ask the judge to rule that the safe harbors in the Digital Millennium Copyright Act (the "DMCA") protect YouTube from the plaintiffs' claims. Congress enacted the DMCA to benefit the public by permitting open platforms like YouTube to flourish on the Web. It gives online services protection from copyright liability if they remove unauthorized content once they’re on notice of its existence on the site.[..]

Because content owners large and small use YouTube in so many different ways, determining a particular copyright holder’s preference or a particular uploader’s authority over a given video on YouTube is difficult at best. And in this case, it was made even harder by Viacom’s own practices.

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

Ooh, now that's a little incriminating. We've had our own run-ins with Viacom and almost every one of our video crew have battled against YouTube as well, so really we have no dog in this fight. Fair Use is an issue that is ill-defined in the brave new world of blogs and user-created videos. It is worth noting that Viacom also tried to purchase YouTube less than a year before suing them. And in fairness, at least one YouTube executive appeared to have a fairly cavalier attitude towards copyrights:

(A)n e-mail exchange among YouTube co-founders Chad Hurley, Steve Chen and Jawed Karim showed there were in-house copyright abuses.

"Jawed, please stop putting stolen videos on the site," Chen wrote in the July 19, 2005, e-mail. "We're going to have a tough time defending the fact that we're not liable for the copyrighted material on the site because we didn't put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it."

In a statement after the documents were unsealed, YouTube said Chen's e-mail was referring to some aviation videos that had been making the rounds on the Web. "The exchange has nothing to do with supposed piracy of media content," YouTube said.

I've been worried about the money pouring into judicial elections ever since I read John Grisham's "The Appeal."

The book is based on Caperton v. A.T. Massey Coal in West Virginia, detailing the strong financial support and friendship between the judge and the defendant. The judge refused to recuse himself. And as blogger AngryYoungDem points out:

Elected judges become additional legislatures. Want to get rid of punitive damages against corporations? Bankroll a candidate who supports corporate interests. Can't get the legislature to pass a gay-marriage bill? Bankroll 3-5 gay-marriage supporters and stack the state supreme court. Judicial elections are cheaper anyway, so you save money by focusing on elected judges instead of elected representatives.

And now, even Supreme Court justices are speaking out:

In rare public remarks last week, U.S. Supreme Court Justice Ruth Bader Ginsburg said the money involved in electing judges remains one of the most pressing concerns facing the American court system. And she joined her former colleague, Sandra Day O'Connor, in calling for reform.

"If there's a reform I would make, it would be that," Ginsburg said when asked about the issue at the National Association of Women Judges Thursday night.

Yet money has continued to pour into the campaign accounts of state judges around the country, and ABC News has obtained an advanced copy of a study showing the amounts involved are unprecedented.

In the past decade, candidates for state judgeships raised more than $206 million, more than double the $83 million judges raised in the 1990s, according to the soon-to-be released study by the Brennan Center for Justice at NYU School of Law and Justice at Stake, two non partisan groups that advocate for reforming the judicial selection process.

Three of the last five state Supreme Court election cycles topped $45 million. And judges shattered fundraising records in all but two of the 21 states with contested Supreme Court elections in the last ten years, the report found.

"State judicial elections have been transformed," the report says, and the money involved has created "a grave and growing challenge to the impartiality of our nation's courts."

I was taking a look at Gov. Chris Christie's budget today and then I saw this. Will New Jersey follow in California's footsteps and start governing by mood ring?

A state appeals court today ruled New Jersey’s secretary of state must accept a petition a citizens group filed to recall U.S. Sen. Robert Menendez, but left open the question of whether the removal effort itself is constitutional.

The three-judge panel stayed its ruling to give Menendez (D-N.J.) the opportunity to appeal to the state Supreme Court.. The senator has 45 days to file an appeal but did not say today whether he would. He called the recall effort a "political stunt" that won’t distract him from doing his job.

"This an organization trying to undemocratically and unconstitutionally overturn an election in which more than 2 million New Jerseyans voted," said Menendez, whose term expires in 2012. "My focus continues to be on job creation legislation and delivering a successful extension of my local property tax relief bill."

The court found existing New Jersey law and the state’s constitution both allow U.S. senators to be recalled. For that reason, the appeals court said, the removal effort can proceed. But noting the absence of case law and precedent, it left the ultimate question of the constitutionality of the state’s recall law and amendment to a higher court.

"There are a host of genuine arguments and counterarguments that can be articulated and debated about whether or not the Federal Constitution would permit a United States Senator to be recalled by the voters under state law," the appellate judges said.

"I’m pleased," said Dan Silberstein, attorney for the Committee to Recall Senator Menendez, which is backed by the New Jersey chapter of the conservative Tea Party movement. "I think the appellate court made the right decision on where the case is procedurally."

Menendez’s attorney disagreed.

"The U.S. Constitution is clear that a senator’s term is six years and is not subject to recall," said Marc E. Elias. "The state attorney general correctly argued before the court that a recall is unconstitutional and a clear disservice to voters who take part in a petition process that is invalid. We are pleased the court stayed this opinion until the appeals process is completed."

Credit where credit is due - this is a solid liberal appointment and a noted constitutional scholar -- things that paint a target on his back to the anti-intellectual right wing. Liu isn't a "safe" choice, so I have to assume Obama's prepared to go to the mat for him, since the usual suspects are already smearing him:

WASHINGTON (AP) -- Thirteen months into his presidency, Barack Obama finally gave liberal supporters the kind of judicial nominee they had sought and conservatives feared.

Goodwin Liu, 39, is an unabashed liberal legal scholar who, if confirmed, could become a force on the federal appeals court for decades. There's talk that in time, the Rhodes Scholar, former high court clerk and current assistant dean and law professor at the University of California, Berkeley, could be the first person of Asian descent chosen for the Supreme Court.

"I can easily imagine him" as a high court nominee, said Erwin Chemerinsky, a Liu supporter and dean of the law school at the University of California, Irvine.

Obama's choice of Liu for the 9th U.S. Circuit Court of Appeals in San Francisco drew quick and vociferous criticism from conservatives. Sen. Jeff Sessions of Alabama, the senior Republican on the Senate Judiciary Committee, described Liu as "far outside the mainstream of American jurisprudence."

For the first time, Obama seemed to be taking a page from the playbook of recent Republican presidents who nominated conservatives in their 30s and 40s with the expectation they would have enduring influence in setting policy on the federal bench.

Oh, I'm sure He will be so pleased to know that He's not really a religious symbol:

The San Francisco Appeals court has ruled that "Under God" is not a prayer when used in the Pledge of Allegiance. In 2002, the court declared that the phrase was unconstitutional. The new 2-1 ruling from the Ninth U.S. Circuit Court of Appeals states it is a "recognition of our founders' political philosophy that a power greater than the government gives the people their inalienable rights [...] Thus, the pledge is an endorsement of our form of government, not of religion or any particular sect."

In a separate 3-0 ruling, the "In God We Trust" was also found to be non-religious; the motto is patriotic and ceremonial.

The ruling itself is not so much an issue with me; I don't have a problem with saying "under God". But I do have an issue with Judge Carlos Bea's reasoning in his decision:

Bea wrote that the pledge is indeed a patriotic exercise, and the words "under God" must be viewed in that context.

"The pledge reflects many beliefs held by the founding fathers of this country -- the same men who authored the Establishment Clause -- including the belief that it is the people who should and do hold the power, not the government," Bea wrote. "They believed that the people derive their most important rights, not from the government, but from God."

Hold on there. Before one starts invoking "the Founding Fathers" in justifying the phrase "under God" in the Pledge of Allegiance, one might actually to do research into the Pledge. Like the fact that the Founding Fathers had nothing to do with the Pledge. It was written in 1892 (more than a 100 years after the founding of the country) by a Baptist minister, Francis Bellamy. It's a little disingenuous to claim the Founding Fathers as the authority on this, since none were alive when the pledge came to be. As it was originally written, it hardly had the patriotic or religious fervor that Bea ascribed:

I pledge allegiance to my flag and the republic for which it stands: one nation indivisible with liberty and justice for all.(ref. Wikipedia)

It has gone through four iterations before coming to its current state. The phrase "under God" wasn't added, as many of you know, until 1954, and only then as some sort of strange pre-emptive move against communism, as if making schoolchildren say those words inoculated them against communist sympathies.

As for the Founding Fathers' endorsement of the rights of Americans are derived from God, well, that's a disputable statement as well.

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