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The Ennead Awards: Nine Justices, Nine Prizes



Well, folks, before the arguments to the Supreme Court on Prop 8 and the Defense of Marriage Act are erased from your memory tapes to make room for “Thrift Shop” (clean version only, please!), we present the First-Ever Ennead Awards. There are — conveniently — nine categories, to wit:

Most Willfully Clueless Award: To Justice Antonin Scalia, for his remarks that sociologists were in disagreement about the effects of gay and lesbian parenting on children. OK, they’re not. The most one can say is that more evidence would be helpful, but this position is usually taken by those who are trying to avoid the implications of the studies that do exist — and show that kids do just fine across all measures when raised by same-sex parents. It might be that Scalia was sending out one of his increasingly high-pitched dog whistles to the far right, a sonic treat that was prominently featured during his otherwise-inexplicable excoriation of the Obama Administration for not doing enough to deal with illegal immigration. But it might also be that, once again, the opera-loving oenophile just didn’t do his homework. As Maureen Dowd pointed out, he didn’t even seem to know how many states have full marriage equality. (He might have just been posing, though.) And last year, he seemed to lament the suggestion that he should actually read the Affordable Care Act before deciding its constitutionality. Try that in your job.


Best Performance by an Actor in a Fantasy: To Chief Justice John Roberts. When the Justices agreed to hear the case, some of us hoped that they would finally take up the issue of whether discrimination based on sexual orientation should be judged by what the Court calls “heightened scrutiny.” It doesn’t look like the Court’s going to do that. In fact, I doubt they’re even going to get into the vast equal protection problems at all. And one reason for their declining to do so was voiced by the Chief Justice, who suggested that gays and lesbians don’t need the suspect classification designation that’s reserved for groups that lack political power. According to Roberts, the reason same-sex marriage laws have passed is because of our powerful lobbying. Then he added:

As far as I can tell, political figures are falling over themselves to endorse your side of the case.

OK, this is a valid point (and one I made, in a somewhat different way, in this Slate piece). But here’s the much more persuasive response of Roberta Kaplan (representing Edie Windsor, the DOMA plaintiff):

The fact of the matter is, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have. And only two of those referenda have ever lost.

[A]nd until 1990 gay people were not allowed to enter this country. So I don’t think that the political power of gay people today could possibly be seen within that framework, and certainly is analogous — I think gay people are far weaker than the women were at the time [the Court found women to be a “suspect class.”]

Just to make sure no one else might claim this award, the Chief Justice also expressed mild incredulity that the 84 Senators who voted for DOMA might have been motivated by a dislike of lesbian and gay people. Sustaining this particular fantasy requires ignoring the contribution of our next award winner…[1. Justice Roberts would also have won the “Oops!” Award if the Academy had recognized the category. At one point, he let slip the obvious point that Congress wasn’t really concerned with uniformity in enacting DOMA, but in something else: “Do you think Congress has the power to interfere with the [oops!!]…to not adopt the state definition….”]


Best Audiobook Reading Performance: To Justice Elena Kagan. Her sparring with Paul Clement, who was trying to defend the indefensible DOMA, was devastating. When Clement kept insisting that the real purpose of DOMA was to ensure uniformity, she confronted him:

JUSTICE KAGAN: Well, is what happened in 1996 — and I’m going to quote from the House Report here — is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”

Is that what happened in 1996?

MR. CLEMENT: Does the House Report say that? Of course, the House Report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute.

Yes, it does. And yes, you should.


The Lactose-Intolerance Award: To Justice Ruth Bader Ginsburg, who delivered this dairy product:

It’s — it’s — as Justice Kennedy said, 1100 statutes [that confer federal advantages], and it affects every area of life. And so he was really diminishing what the State has said is marriage. You’re saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.

Well, we know what she thinks of DOMA. But I don’t want to milk the point any further.

The Billy Preston (“Nothin’ from Nothin'”) Award: To Justice Stephen Breyer. Always prolix (he had more “air time” than any other Justice in both of these arguments) and often entertaining, here’s how he explored the somewhat counterintuitive claim that states that give same-sex couples all the same rights as opposite-sex couples, but without the name, have a harder time defending their exclusionary laws than states that fence gay and lesbian couples out completely:

I mean, take a state that really does nothing whatsoever. They have no benefits, no nothing, no nothing.

Anything but that!

Best Performance of 1999: Belatedly awarded to Justice Samuel Alito, who bemoaned the possibility that the Court might be able to find a constitutional right for same-sex couples to marry on the ground that such marriages weren’t even as old as cell phones or the internet. After receiving the award, the Justice sped away in a Ford Granada.


The George Burns Award: To the woman playing the “straight man” during the arguments, Justice Sonia Sotomayor. Among her most unfunny but penetrating series of exchanges involved whether any other kind of discrimination against gays and lesbians might be justified. The attorney defending Prop 8, Charles Cooper, couldn’t think of any. The exchange reflected how far the nation has moved from the Justice Scalia position, expressed in cases like Romer v. Evans and Lawrence v. Texas that discrimination against gays and lesbians is still as American as apple pie. The exchange also points up the need to identify a real harm to society from same-sex marriages. None was identified during two-plus hours of argument.


Most Important Player in a Dramatic Role Award: As always, to Justice Kennedy, who will almost surely be the swing vote in both cases. It looks like he’s ready to join with the four sort-of liberals on the Court to strike down DOMA — but on states’ rights grounds, rather than on the basis that DOMA denies equality under the law — which it ever so plainly does. (Windsor’s estate tax bill upon the death of her wife: $363,000; hypothetical husband’s bill: $0.) It also looks like he wants Prop 8 gone, but doesn’t know quite how to get there. Two quotes, one epigrammatic and one moving:
[To a flabbergasted Charles Cooper]: “And you might address why you think we should take and decide this case.” (Really? Now? Over at Slate, I offered a possible reading of this statement.)

[T]here is an immediate legal injury…and that’s the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?

The Marcel Marceau Lifetime Achievement Award: To Justice Clarence Thomas. ‘Nuff said.


John Culhane is the co-author of the new book,  Same-Sex Legal Kit for Dummies. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law, and is also a contributing writer for Slate.

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Arrested Again: Ex-FBI Informant and GOP Former Star Witness Alexander Smirnov



Alexander Smirnov, the former FBI informant who was arrested just eight days ago and charged with lying to the Bureau about Joe Biden and Hunter Biden, has again been arrested, his lawyers state in an emergency court filing Thursday.

Smirnov allegedly used Russian intelligence to smear the Bidens, falsely claiming both Joe Biden and Hunter Biden had each accepted $5 million bribes. His claims were the basis of House Republicans’ impeachment investigation into President Biden.

But as NBC News’ Tom Winter reported, it’s a “mystery,” at least for now, why Smirnov was arrested again, his lawyers say, on the same charges as the first time.

Winter says earlier today at his attorneys’ offices in Las Vegas, Nevada, “Apparently agents showed up with a valid arrest warrant out of the Central District of California and took him into custody, but according to his attorneys, it was for the same exact indictment and the same exact charges that he had been previously hit with.”

RELATED: Smirnov Scandal: Experts Call for Investigations, Warn GOP of Possible Conspiracy Charges

CNN adds that the warrant “this time” was “signed by federal district Judge Otis Wright, who will oversee the criminal case out of California.”

The federal government asked for Smirnov to be detained but a magistrate judge allowed him to be released last week.

Winter reports that Smirnov’s attorneys say “they would like to know why” he was re-arrested, “and there’s no indication on the docket that the judge has granted some sort of emergency motion to remand him, basically to pull him off the streets because he’s violated his agreement.”

“So a bit of a mystery at this point,” Winter adds.

CNN notes that after his first arrest, “Smirnov was released by Magistrate Judge Daniel Albregts in Nevada on Tuesday with several conditions, including GPS monitoring and the surrender of his two passports.”

READ MORE: Experts Ask if Trump Disclosed Classified Intel After Nuclear Weapons Talk at Town Hall

Politico’s Kyle Cheney posted the arrest warrant. See it below or at this link.


Image: Screenshot of Smirnov with his face hidden from camera view

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‘Reached His Limits’: Engoron ‘Brings the Hammer Down’ on Trump Attorney



New York State Supreme Court Justice Arthur Engoron has refused a “last ditch effort” from Donald Trump’s attorney to delay imposing the $355 million judgment in Attorney General Letitia James’ civil business fraud case against the ex-president.

“Once the judgment is officially entered, it will start the 30-day clock for Trump to file an appeal. During that period, Trump will need to put up cash or post bond to cover the $355 million and roughly $100 million in interest he was ordered to pay the state,” CNN reports.

MSNBC legal correspondent Lisa Rubin pointed to an email Judge Engoron sent Trump’s attorney Clifford Robert that reads in part, “You have failed to explain, much less justify, any basis for a stay.”

On social media Rubin notes, “Judge Engoron has reached his limits. It appears that he has signed the judgment and that all that needs to happen now is for the clerk to enter it.”

READ MORE: Smirnov Scandal: Experts Call for Investigations, Warn GOP of Possible Conspiracy Charges

On-air at MSNBC, Rubin explained that Trump’s attorney asked Engoron “to stay the judgment without Donald Trump having to post a bond.”

Robert, according to Rubin, tried to use “a technicality in New York Civil Practice saying they should have filed a motion and they didn’t file a motion, they should have given us notice. We should have been able to counter propose our own judgment.”

Engoron, she continues, asked, “‘What exactly are you objecting to?’ And when Trump’s lawyers couldn’t articulate beyond a small but meaningful error with respect to the calculation of interest for Allen Weisselberg, that was the only real error that they identified. They couldn’t come up with anything else.”

“That’s when Engoron sort of dropped the hammer on them and said, ‘look, enough is enough. You have given me no reason for a stay.”

Rubin notes that at this point, “We’re just waiting for the clerk to start that 30 day clock.”

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Nikki Haley Just Laid the Groundwork to Endorse Donald Trump



Down in the polls by double digits, former Trump UN Ambassador Nikki Haley, who recently took off the kid gloves and has been battering her Republican opponent Donald Trump, just laid the groundwork to endorse the man she calls “unstable and unhinged,” by labeling President Joe Biden “more dangerous.”

“I think what’s really important is to know that the majority of Americans dislike Donald Trump and Joe Biden,” Haley told NPR’s Steve Inskeep in remarks that aired Thursday (audio below). “So we think that there needs to be an alternative.”

“While critical of both men — who she called ‘too old’ to be president — she said ‘Biden is more dangerous’ due to his management of immigration and the economy,” NPR reports. “Haley hinted that, if Biden and Trump were to face a rematch, she would back Trump if he wins the Republican presidential nomination.”

Trump, despite facing 91 criminal felony charges and civil judgments totaling possibly more than a half-billion dollars (including accruing interest,) is beating Haley, the former South Carolina governor. FiveThirtyEight‘s national polling average puts Trump at 77.7% and Haley at 16.4%. Even in her home state, Donald Trump is trouncing Nikki Haley, 63% to 35% in one recent poll, and 63% to 34% in another.

READ MORE: Smirnov Scandal: Experts Call for Investigations, Warn GOP of Possible Conspiracy Charges

Haley did beat the one-term twice-impeached four-times indicted ex-president in January fundraising, a feat some strategists say will allow her to stay in the race longer.

Haley is going directly after Trump, and “launched her sharpest attack yet Tuesday, describing him as getting ‘more unstable and unhinged,'” AFP reported.

“He’s getting meaner and more offensive by the day,” she added. “He’s completely distracted, and everything is about him. He’s so obsessed with his demons in the past that he can’t focus on the future Americans deserve.”

She did not stop there.

“It’s not normal to spend $50 million dollars in campaign contributions on personal court cases,” Haley told supporters. “It’s not normal to threaten people who back your opponent, and it’s not normal to call on Russia to invade NATO countries.”

And yet, despite promising her base she will stay in the race even after South Carolina, and despite attacking Trump, Haley is now paving the way to endorse her former boss.

“I have a lot of concerns about Trump regaining the presidency. I have even more concerns about Joe Biden being president. I mean, you look at both of these men and all they have done is given us chaos, all they have given us is division,” Haley told NPR.  “We need to starting bringing normalcy back to America and that’s why I think we need to have a new generational leader that focuses on the solutions of the future instead of all the issues of the past.”

READ MORE: Experts Ask if Trump Disclosed Classified Intel After Nuclear Weapons Talk at Town Hall

Haley “compared the ex-president to a ‘bully,’ and stressed that he failed to obtain significant portions of the electorate in Iowa and New Hampshire.

“People don’t like when he goes off the teleprompter and says crazy things like he’d rather take Putin’s side over our allies,” she said. “People don’t like it when he mocks the military. People don’t like it when he calls people names.”

Some think an endorsement from Haley for Donald Trump won’t come.

“Haley endorsing Trump would be career ending for her. MAGA will never support her now. You can’t staddle this. You are either Trump or Never Trump. There is no middle ground between Liz Cheney and Donald Trump,” says former Washington State lawmaker and former state GOP chair Chris Vance, who opposes Donald Trump and describes himself as “a politically homeless Never Trump Conservative.”

Listen to Haley’s remarks to NPR below or at this link.

Image: Haley and Trump in 2020.

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