Corn, Pigs, Hawkeyes and Same-Sex Marriage? Maybe. . . .

Today, the Iowa Supreme Court will release its ruling in a case that will decide whether denying same-sex marriage violates the state constitution. Stay tuned for details.

Another Alaska Criminal Case, Different Posture by DoJ

Let me first state the obvious: As a liberal constitutional law professor, I believe that the Department of Justice has done the "right thing" by seeking to overturn former Senator Ted Stevens' conviction for corruption charges. According to a statement by DoJ, prosecutors failed to give defense lawyers information they could have been used to impeach the testimony of a leading prosecution witness. I take the Due Process Clause seriously, regardless of the ideology, political affiliation or prior conduct of the persons whom it benefits.

As my colleague Professor Angela J. Davis (the criminal law scholar, not the 60s radical) demonstrates in Arbitrary Justice, her recent book published by Oxford University Press, prosecutors often fail to comply with due process norms. The situation is worse when defendants are poor or persons of color and when they lack the resources to mount a vigorous defense. Procedural violations potentially cause the most serious harms in the criminal justice system, where physical liberty and reputations are at stake.

Differing Approach by DoJ?
Although the Stevens prosecution took place during the Bush administration, Attorney General Eric Holder has decided to change direction and protect Stevens' due process rights. In another case, however, DoJ declined to change course, and instead adhered to the wrongheaded position of the Bush administration.

The other case is District Attorney's Office for the Third Judicial District v. Osborne. I analyzed Osborne earlier this year. The case involves a challenge to Alaska's refusal to give criminal defendants post-conviction access to DNA evidence. The inmate, who was convicted of rape, has secured pro bono legal counsel, and his attorneys have offered to pay for the DNA analysis. Alaska is one of six states where inmates do not have a post-conviction right to analyze DNA evidence, even if the analysis could point to their innocence. At the time of his criminal trial, prevailing technology did not allow the prosecution to link DNA samples to Osborne definitively. Today, however, the District Attorney concedes that an analysis would establish whether Osborne was indeed the source of the evidence.

During the Bush administration, DoJ filed an amicus brief in support of the State of Alaska. According to DoJ, the Constitution does not confer upon inmates a post-conviction right to analyze DNA evidence used to convict them. The government argued that if the Supreme Court were to recognize such a right, it would interfere with the states' ability to develop policy on the subject. This position, however, ignores the fact that Alaska is an outlier on the subject (only five other states deny the right the inmate seeks). And while states often complain that the pesky notion of due process interferes with their ability to govern, DoJ should not legitimize such outrageous claims.

The Obama administration, however, chose to defend Bush's position in the case during oral arguments before the Supreme Court earlier this year. Several liberal commentators justified the Obama administration's decision by explaining that incoming Solicitors General often "respect" the opinions of the previous administration in pending cases. But due process rights are so important that DoJ could have easily justified a refusal to defend Bush's position.

Holder's decision to seek dismissal of Stevens' conviction will remedy misconduct that took place within DoJ (even though it occurred prior to his leadership of the agency). And while DoJ, by contrast, did not prosecute Osborne, the agency lost a valuable opportunity to advocate the strengthening of due process rights because it refused to the abandon the "failed policies of the past." Due process rights are equally important for popular U.S. Senators and for indigent inmates seeking to prove their innocence.

Yup. . . What He Said

Slate writer Christopher Beam has written an essay that persuasively analyzes the GOP effort to construct an "alternative" budget. Beam argues that the Republicans fell for the Democrats' "bait" and rushed to do something that opposition parties rarely do: Produce full budgets of their own even when their proposals have absolutely no chance of mustering votes outside of the opposition party. The reviews of the GOP budget have been almost universally bad.

Recently, I had a conversation with a good friend during which I made very similar arguments as Beam does in his essay. I had initially planned to elaborate my ideas on the subject, but thanks to Beam, I can focus on other things.

Here is a clip from Beam's essay:

Opposition parties typically present an alternative—sometimes more than one—to the administration's budget. But it's by no means required. And for good reason: If the party doesn't control Congress, the budget stands little chance, anyway, making it more important as a rhetorical device than as a fiscal blueprint. And when the process is rhetorical, the minority generally does better when forcing the majority to defend its position rather than explaining its own. . . .

Yet somehow Obama managed to goad the opposition into producing its own full-blown alternative. First it was the DNC, labeling the GOP the "party of 'no.' " Obama joined in at his press conference last Tuesday: "[T]here's an interesting reason why some of these critics haven't put out their own budget. . . .And the reason is because they know that, in fact, the biggest driver of long-term deficits are the huge health care costs that we've got out here that we're going to have to tackle."

The Republicans took the bait, and the results have not been pretty. The first draft—more a statement of principles than a budget—was widely mocked. . . .It also allowed White House press secretary Robert Gibbs to twist the knife on prime time: "The party of 'no' has become the party of no ideas."

The second draft, released Wednesday, is substantive but does little more than reiterate familiar GOP policies. It cuts entitlement spending, extends the Bush tax cuts of 2001 and 2003, simplifies the tax system so people pay either 10 percent or 25 percent on income, and imposes a five-year spending freeze. . . .

Related Reading on Dissenting Justice: GOP Releases Problem-Laden Alternative "Budget" Preview

Grab the Smelling Salts: Obama Gives Her Majesty an iPod!

President Obama recently caused a stir when he gave British Prime Minister Gordon Brown two dozen cds during a visit to the United States. Today, Obama forced sensitive Brits to reach for their smelling salts once again after he dazzled the Queen with an iPod (at least it is an upgrade over the cds). The precious trinket is reportedly filled with pictures taken during the Queen's visit to the United States in 2007.

I am really not into the royalty and diplomacy game, which is why I remain a Constitutional Law Professor rather than President of the United States. If I were president, however, I am sure that I would not give royalty or heads of state gifts that are readily available on Walmart.Com or eBay.

Unfortunately, it seems that Obama's gift is also readily available at Buckingham Palace. In 2005, upon the suggestion of Prince Andrew, the Queen bought an iPod. Question: What do you buy a woman who probably has everything?

PS: Is this an April Fool's Day story?

Was Obama Talking About a Cigarette Tax When He Said No Increase On "Any Of Your Taxes"?

Journalist Calvin Woodward believes President Obama has betrayed his promise not to raise taxes on families earning less than $250,000 because he recently signed legislation that increases the federal tax on cigarettes:

"I can make a firm pledge," [Obama] said in Dover, N.H., on Sept. 12. "Under my plan, no family making less than $250,000 a year will see any form of tax increase. Not your income tax, not your payroll tax, not your capital gains taxes, not any of your taxes."

He repeatedly vowed "you will not see any of your taxes increase one single dime."

Now in office, Obama, who stopped smoking but has admitted he slips now and then, signed a law raising the tobacco tax nearly 62 cents on a pack of cigarettes, to $1.01. Other tobacco products saw similarly steep increases.

Was Obama Talking About Cigarettes or Is Woodward Reading His Campaign Promises Too Broadly?
This blog has been one of the few liberal websites that consistently and unabashedly scrutinizes and contrasts Obama's "talk" and "actions" (see, e.g., Change = Same?). Despite my highly skeptical view of Obama and all other politicians, I believe that Woodward might be stretching things here, because the President seems to have been referring to income taxes -- not to any conceivable federal tax.

For example, in the campaign speech that Woodward cites, Obama sets $250,000 as an income ceiling below which he would not seek to impose new taxes. He also refers to "payroll" and "capital gains" taxes, which relate to income and asset appreciation. A cigarette tax seems materially distinct from an income tax. The ability of taxpayer to avoid the tax (yet still subsist) and the equal applicability of the tax to all income earners come immediately to mind.

Woodward himself acknowledges that Obama almost always referred to income taxes during the campaign: "To be sure, Obama's tax promises in last year's campaign were most often made in the context of income taxes." Woodward apparently believes, however, that regardless of his actual words Obama spoke broadly and that his pledge not to increase taxes covers all taxes, not just income taxes. Although I believe Woodward's analysis reaches for a conclusion, if anything, Obama has only betrayed a smaller class of smokers who earn less than $250,000.

On the Other Hand, Consider This
Kathleen Hall Jamieson, director of the Annenberg Public Policy Center at the University of Pennsylvania, which runs the webpage FactCheck.Org, also contends that Obama's "no new taxes" pledge usually referred to income taxes, but that a "reasonable" person could construe some of his comments as applying to other taxes:

Jamieson noted GOP ads that claimed Obama would raise taxes on electricity and home heating oil. "They rebutted both with the $250,000 claim," she said of the Obama campaign, "so they did extend the rebuttal beyond income and payroll."

I have not viewed Obama's rebuttals to McCain's campaign advertisements, but Jamieson and FactCheck.Org have great reputations for bipartisanship and honesty (although some of my conservative readers beg to differ). Perhaps Obama went too far to defend himself against McCain during the primaries. But Obama's rejection of "any" new taxes makes him vulnerable to Woodward's claim that he is waffling on his pledge.

DoJ Seeks to Dismiss Case Against Former Alaska Senator Ted Stevens

In an embarrassing move, the Department of Justice has asked a federal judge to overturn a conviction it only recently secured against former Alaska Senator Ted Stevens. DoJ apparently failed to notify Stevens' defense counsel that a prosecution witness' testimony conflicted with statements he made to DoJ prior to the trial. Prosecutors have a constitutional obligation to disclose exculpatory information to the defense.

Let the Spin Begin: Does the New York Special Election Contest Between Tedisco and Murphy Say Anything About President Obama?

Tuesday's special election to fill Kirstin Gillibrand's House seat ended in a virtual tie (minus absentee ballots). Prior to and since the election, two conflicting narratives about its significance to national politics emerged. One spin said that the election contest between Democrat Scott Murphy and Republican James Tedisco was a "referendum" on the Obama administration. The other side said it was not.

John Judis of The Nation believes that election reflects the voters' confidence in Obama:

Special elections in the first year of a new president are important because the parties turn them into national referenda. And this election was no exception. Obama and Vice President Joe Biden campaigned for Murphy in the closing weeks; Murphy, who was relatively unknown in the district, based his campaign largely on his support for and Tedesco’s opposition to Obama’s stimulus plan.

In the first month of the campaign, Murphy, a businessman from Missouri who recently moved to the district, trailed Tedesco--and since Republicans boast a 70,000 voter edge in registration, he should not have been able to catch him. But based on a campaign that emphasized his support for Obama, he did catch up and on election night surpassed him.

Murphy’s election night edge doesn’t suggest that the Democrats will romp in 2010. . . . But if Murphy had lost by a significant margin . . . it would have shown that within a district that Obama carried in 2008, there was a significant undercurrent of discontent with his presidency and his policies. . . .

Ethan Porter, an Associate Editor at Democracy: A Journal of Ideas, published an article in The Nation which argues that the election has nothing to do with Obama:

[T]he results of tomorrow's election will reflect very little about popular opinion of [the Obama] administration. Yes, national issues have intruded; the Democrats are blanketing the district with campaign paraphernalia tying Tedisco to Rush Limbaugh, and Tedisco has hammered Murphy for supporting the stimulus package. But this is a local race, in a district that's trended blue only very recently, and somewhat by accident. "Murphy should lose, given the constitution of the district," says Jonathan Becker, a long-time observer of district politics and a political science professor at Bard College.

Before the 2006 election, Republicans maintained a 15 percent enrollment advantage, and Gillibrand managed to unseat incumbent John Sweeney only after a police report surfaced showing 911 had once received a domestic violence complaint from his wife. Even after that, Gillibrand just squeaked by. Her victory was in large part owed to her ferocious campaigning skills; even in her first race, she had the aplomb and tenacity of a veteran politician. She only beat her 2008 opponent after developing a reputation as a star-in-the-making and building a formidable political machine. And even then, there were still about 70,000 more registered Republicans than Democrats in the district.

My Take
Exit polling is probably the simplest way to determine whether President Obama's performance influenced voters in the special election. But it is unclear if or when such data will emerge.

In my opinion, Judis sometimes overstates his arguments, and he probably has done so with respect to his analysis of this election's national significance. The fact that Republicans have a 70,000 voter registration advantage does not say much about recent electoral trends in the district. Gillibrand, whose nomination to the Senate caused the need for the special election in the first place, was a second-term Democratic representative of the district. And, as the New York Times observes, Gillibrand remains "remains highly popular across party lines." She and Governor Paterson also campaigned for Murphy.

Regardless of which candidate ultimately wins, his party will claim that the victory either supports or condemns President Obama's policies. The inevitability of the spin, however, does not make it an accurate statement of the voters' decision making.