Ed Whelan says I'm confused about Vaughn Walker and Prop 8. Am I?

At National Review, Ed Whelan takes issue with my criticism of his call to have the Prop 8 verdict set aside. He lumps me in with the folks at Media Matters:

Meanwhile, the only two defenses of Walker’s non-recusal that I’ve run across conveniently misrepresent my argument. Media Matters falsely contends that I am arguing that Walker “should be disqualified because of his sexual orientation” (I have never made that argument) and conflates that argument with my argument that Walker should have disqualified himself because he was in a long-term same-sex relationship. And Cup O’ Joel likewise wrongly claims that I am arguing that Walker’s ruling must be vacated “because Walker has recently come out of the closet and thus can’t be considered impartial.” The implications that the two bloggers claim would flow from my argument rest entirely on their confusion.

I'll gladly cop to occasional confusion, but not to "conveniently misrepresenting" Whelan's argument--at least, intentionally. I do try to argue in good faith. But wait, if I am confused, what exactly did I miss? Let's go back to Whelan's original column:

Two weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case. Further, under well-established Supreme Court precedent, the remedy of vacating Walker’s judgment is timely and necessary.

(snip)

In taking part in the Perry case, Judge Walker was deciding whether Proposition 8 would bar him and his same-sex partner from marrying. Whether Walker had any subjective interest in marrying his same-sex partner — a matter on which Walker hasn’t spoken — is immaterial under section 455(a). (If Walker did have such an interest, his recusal also would be required by other rules requiring that a judge disqualify himself when he knows that he has an “interest that could be substantially affected by the outcome of the proceeding.”) Walker’s own factual findings explain why a reasonable person would expect him to want to have the opportunity to marry his partner: A reasonable person would think that Walker would want to have the opportunity to take part with his partner in what “is widely regarded as the definitive expression of love and commitment in the United States.” A reasonable person would think that Walker would want to decrease the costs of his same-sex relationship, increase his wealth, and enjoy the physical and psychological benefits that marriage is thought to confer.

Because Walker was deciding how the law in the very jurisdiction in which he lived would directly govern his own individual rights on a matter that a reasonable person would think was very important to Walker personally, it is clear that Walker’s impartiality in Perry “might reasonably be questioned.”

Or, as Whelan put it in his update: "The mere fact that Walker is gay does not trigger the principle that I have set forth, as (without more) it is much more remote and speculative that he would have a strong personal interest in conferring on himself a right to marry a man."

And I can see the distinction between what I said and what Whelan meant: Walker's verdict shouldn't be set aside because Walker is gay. Walker's verdict should be set aside because--to borrow a phrase--Walker lives the gay lifestyle. It's not the orientation that matters, but the fact that Walker acts on it that creates the appearance that Walker has something to gain from overturning Prop 8. For most of us, that's a distinction with little, if any, difference, and as a practical matter it really does seem to suggest there is no gay judge in California capable of ruling with the appearance of impartiality. But it might be a big enough difference that Whelan's argument carries the day in a court of law. OK. He's the lawyer, not I.

However...

My argument didn't revolve entirely around the fact of Walker's homosexuality. Implicit in Whelan's argument, I think, is the presumption that a straight judge could rule without the appearance of a conflict of interest. I wrote:

"Remember that one of the key arguments made by Prop 8 supporters was that gay marriages threaten straight marriages. ... Seems to me then, that any judge who is married or has been married or who might want to be married someday—be they gay or straight—thus finds him- or herself possibly compromised in this matter. Who is to say a straight judge wouldn't be acting to protect his or her marriage from the destabilizing influence of gay unions?

Under Whelan's argument, Prop 8 supporters get to have it both ways. They get to argue that straight marriage is threatened by gay marriage, but they also get to have a straight judge rule on the issue without fear of having to recuse his- or herself. Convenient, as Whelan might say.

Weirdly, that might end up being while gay-marriage advocates could end up carrying the day—if not in court, and not at this time, then somewhere down the road. Think about it: A key argument against gay marriage is that straight marriages will be undermined. But almost nobody takes the argument seriously enough—not even Prop 8 opponents—that they think straight judges face the automatic appearance of a conflict when ruling on the issue. If that's the case, doesn't that radically undermine that key argument against gay marriage?

I'm not a lawyer. I doubt the argument I've just made would carry much sway before the court; it's not strictly a legal argument. But the gay marriage debate isn't contained merely to the court, and what's going on in the court will have ramifications far outside the legal realm. Maybe I am confused about the law, as Whelan suggests. I'm pretty clear on the implications, though: Whelan's argument consigns gays to second-class status, both in marriage and in the legal profession.

Donald Trump and the Republican birthers

That the topic of this week's Scripps column with Ben Boychuk. I'm a little closer to the edge of vitriol this week than I usually like to be, but some topics elicit only contempt from me. And, uh, Trump isn't the target of my ire:

Here's the difference between Democrats and Republicans: Democrats who embrace conspiracy-minded nonsense are chased from public life.

Republicans who do the same are vaulted into the front ranks of presidential contenders.

That's why Van Jones was rightly forced to resign from the Obama Administration in 2009; he'd signed a petition calling for an investigation of the government's secret involvement in the 9/11 attacks on America. His apparent belief in discredited "truther" theories destroyed Jones' credibility and made it impossible for him to serve the president effectively.

Donald Trump, meanwhile, wasn't on anyone's list of presidential candidates until he started giving interviews embracing "birther" nonsense and challenging President Barack Obama's citizenship. Now he tops the polls. And for good reason: Public Policy Polling's results show that only 38 percent of GOP primary voters would support a candidate who clearly states the truth -- that Barack Obama is a natural-born American citizen.

Rather than educate their supporters, cowardly Republican leaders have decided to avoid the topic. That's why House Speaker John Boehner answered questions about the topic in February with slippery language.

"It's not my job to tell the American people what to think," Boehner told NBC's David Gregory, and later added: "Listen, the American people have the right to think what they want to think. I can't -- it's not my job to tell them."

Boehner, of course, does vigorously advocate for the ideas that his base supports. That's how he got his job. And that's why Trump is succeeding with his brand of birtherism -- because the GOP base loves it.

True: A year from now, Trump will probably be back to making TV shows.

But Republican voters will still be Republican voters -- apparently more willing to embrace birther lies than the truth. And that could mean trouble for all of us.

Ben sees both Trump and birtherism as passing fads. Read the column for his take.

Matt Miller on Paul Ryan's really awful budget

For the life of me I don’t understand why the press doesn’t shove this fact in front of every Republican who says the debt limit cannot be raised unless serious new spending cuts are put in place. The supposedly “courageous,” “visionary” Paul Ryan plan — which already contains everything Republicans can think of in terms of these spending cuts — would add more debt than we’ve ever seen over a 10-year period in American history. Yet Ryan and other House GOP leaders continue to make outrageous statements to the contrary.

Without blushing. And without anyone calling them on it.

“The spending spree is over,” Ryan said the other day, after the House passed his blueprint. “We cannot keep spending money we don’t have.” Except that by his own reckoning Ryan is planning to spend $6 trillion we don’t have in the next decade alone.

“We have too many people worried about the next election and not worried about the next generation,” Ryan added. So Ryan is expressing his concern by adding at least $14 trillion to the debt between now and when his plan finally balances the budget sometime in the 2030s (and only then if a number of the plan’s dubious assumptions come to pass).

“We cannot afford to ignore this coming fiscal train wreck any longer,” Eric Cantor says. “Complacency is not an option.” Well, if $14 trillion in fresh debt and unbalanced budgets until the 2030s do not amount to “complacency,” I’d hate to hear what the GOP definition of “profligacy” is.

via washingtonpost.com

I've said it before: Paul Ryan's budget is a "path to prosperity" for the already-prosperous. It doesn't fix the debt but it does weaken the safety net while giving a tax break to the rich. It's just not good.

Grover Norquist's latest very bad idea

My preference would be to keep the administration on a short leash and extend the debt limit by only a small amount and for a short period of time. This debt-limit increase is one of the few pieces of legislation that Obama must sign. Why not have such an extension every month and attach to each of them something small, reasonable, and related to debt or spending?

via nationalreview.com

That's Grover Norquist, in an NRO symposium about whether Congress should raise the debt ceiling. His proposal, of course, would tie Washington down in never-ending debates about the debt ceiling and the budget, leaving the government with no energy or capacity to focus on anything else. Which might be Norquist's aim. But that doesn't mean the rest of us should sign on.

What Col. Qaddafi learned from Iraq

Sending advisers to Libya is the latest in a series of signs of trouble for the NATO campaign, which began in earnest with a stinging, American-led attack but has seemed to fizzle since operational command was transferred to NATO on March 31. After that, a rebel offensive was smashed by Colonel Qaddafi’s forces, which sent the rebels reeling toward the eastern city of Ajdabiya.

New tactics used by Colonel Qaddafi’s forces — mixing with civilian populations, camouflaging weapons and driving pickup trucks instead of military vehicles — have made it hard for NATO pilots to find targets. At the same time, loyalist artillery and tanks have hammered the rebel-held city of Misurata with cluster bombs, which have been banned by much of the world, making a mockery of NATO’s central mission of protecting civilians.

via nytimes.com

I don't know if Col. Qaddafi learned these tactics by watching the war in Iraq. But I do know they're pretty classic insurgent tactics. If you've got a weaker force than your opponent--and at this point, Qaddafi's opponent is NATO--then you don't confront your opponent strength to strength. You hide out in the population and rely on subterfuge instead of overt force. Unsporting? Sure. But Qaddafi wants to hold onto power; there's no reason for him to play by the rules of the West. Becoming an insurgent is the best way for him to hold onto power.

LZ Granderson: The favorite openly gay dad of social conservatives everywhere

Interesting phenomenon the last couple of days: A few of my socially conservative Facebook friends have posted a link to this LZ Granderson essay about the oversexualization of young girls. An excerpt:

And then I realize as creepy as it is to think a store like Abercrombie is offering something like the "Ashley", the fact remains that sex only sells because people are buying it. No successful retailer would consider introducing an item like a padded bikini top for kindergartners if they didn't think people would buy it.

If they didn't think parents would buy it, which raises the question: What in the hell is wrong with us?

Sensible stuff, hitting that sweet spot where social conservatives and feminist liberals can find common ground. And I don't think my socially conservative friends know each other, which indicates the essay is going viral. But I wouldn't mention it except for one thing: LZ Granderson is gay. Openly gay. With a teen son. He's a gay dad.

A conservative friend responds to this observation with one of his own: "If he's right, he's right." And my friend is right!

But here's the thing: So much of the modern argument against gay marriage is actually against gay parenthood. Maggie Gallagher of the anti-gay National Organization for Marriage re-made the argument in explicit terms this week in testimony before Congress:

“Marriage is the union of husband and wife for a reason: these are the only unions that create new life and connect those children in love to their mother and father,” Gallagher said. “This is not necessarily the reason why individuals marry; this is the great reason, the public reason why government gets involved in the first place.”

Gallagher said the need to raise children by married parents of opposite genders affirms the rationale for having in place DOMA, the 1996 law that prohibits recognition of same-sex marriage, and criticized the Justice Department for dropping defense of the law.

“This is the rationale for the national definition of marriage proposed by Congress in passing DOMA: ‘civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child-rearing,’” Gallagher said. “If we accept, as DOMA explicitly does, that this is a core public purpose of marriage, then treating same-sex unions as marriage makes little sense.”

Implicit in all of this is the idea that gay parents can't be good—or maybe even adequate—parents. And because of this, government shouldn't recognize the unions of gay men and women regardless of whether or not child-rearing comes into play.

But when a gay dad like Granderson describes himself as a "Tiger Dad" whose approach to parenting is to be his son's parent, not his friend—and when that gay dad happens not to mention his gayness—he becomes a hero of social conservatives.

And that's fine. It's good! I don't expect it will convince my socially conservative friends that a mother-and-father parenting relationship isn't the best way to raise kids. But I guess I can hope that admiring Granderson's parenting philosophy can open their minds (just a little bit) to the idea that other types of families deserve government support and recognition.

Are you ready for some football! And mourning?

There's something that kind of weirds me out about how the national commemoration of 9/11 has been somewhat co-opted by the NFL:

NEW YORK -- The New York Giants will visit the Washington Redskins and the New York Jets will host the Dallas Cowboys on Sept. 11, marking the 10th anniversary of the terrorist attacks on the World Trade Center and the Pentagon.

The first Sunday features several high-profile games, including Indianapolis at Houston and Atlanta at Chicago. But much of the national focus will be on Washington and New York, the two cities most affected by the terrorist attacks of Sept. 11, 2001.

"That stadium is going to be full of emotion, not only the people from the area but in the entire country," said Jets coach Rex Ryan, who will be matching wits with his brother, Cowboys defensive coordinator Rob Ryan. "The fact that it's the 10th anniversary of 9/11, that's where the focus should be, not me playing against my brother."

"For nearly 10 years, we have felt an obligation to use our platform to make sure none of us ever forget the tragedy and heartbreak and courage and heroism of Sept. 11," Giants spokesman Pat Hanlon said. "That responsibility becomes even greater."

Because without football, we'd probably have forgotten 9/11 right now.

That's ridiculously unfair of me, of course. And I guess that sports are so tightly interwoven into our society that the major events of our collective lives are filtered through them. But it's been particularly noticeable in connection to 9/11. George W. Bush turned throwing out a World Series pitch in the attack aftermath into a legend of his courage and fortitude. (I can't find the video, but I recall the 2004 Republican National Convention featured a short video lauding the president's manliness for throwing that pitch so soon after the terrorists struck.) And some months later, the Super Bowl seemed to act as a national catharsis for all the pent-up emotion leftover from 9/11—including a Budweiser commercial with the clydesdales offering their condolences—that seemed all the more meaningful because the Patriots won. The Patriots. Get it?

It's possible I'm being incredibly churlish. But at some point the need to mourn a horrific terrorist attack through sports seems insanely trivial.