(updated below w/ response to Orin Kerr)
(1) My post on Thursday, arguing that Democrats should repeal the Defense of Marriage Act, provoked objections from numerous corners that doing so was premature, would be too politically risky and/or Democrats won't touch the issue (it also generated some support). Today, the consummate voice of the vaunted "center-right" Beltway establishment -- The Washington Post Editorial Page -- called for the same thing as a response to the passage of Proposition 8:
It also may be time to press Washington to move in the right direction. President-elect Barack Obama opposes the Defense of Marriage Act, which bars the federal government from legally recognizing same-sex couples and gives states the right to ignore same-sex marriages or civil unions performed in other jurisdictions.
A Democratically controlled Congress may also be sympathetic. A good first step would be a measure to allow the federal government to extend the same benefits to couples in civil unions, domestic partnerships or marriages, whether they are gay or heterosexual.
Legalizing gay marriage remains very controversial. But extending marriage-based government benefits equally to same-sex couples -- which is all repealing DOMA, especially Section 3, would do -- is not particularly controversial.
How is it possible to argue otherwise in light of polls which conclusively prove that majorities of Americans favor (and have long favored) such policies, as well as -- more persuasively still -- the fact that the country just elected, by a landslide, a President who condemend DOMA as an "abhorrent law" and vowed emphatically to repeal it, while his Vice President said, in the debate watched by tens of millions of Americans: "in an Obama-Biden administration, there will be absolutely no distinction from a constitutional standpoint or a legal standpoint between a same-sex and a heterosexual couple." That statement didn't create even a rippple of controversy, nor did Obama's emphatic opposition to DOMA.
Nobody is arguing that this is the first issue the Democrats should address. It would be unwise -- both politically and substantively -- if the bulk of early attention weren't devoted to the economic crisis. And there are several non-economic issues -- beginning with the closing of Guantanamo and the restoration of other civil liberties -- which Obama has pledged to support and which ought to be done quickly. That's where I intend to devote the bulk of my own energies.
But there's a tendency for people to live in the political past and to be traumatized by past political losses, paralyzed with irrational fear by the obsolete battles of prior decades. The fact that Bill Clinton was harmed politically in 1993 by the issue of gays in the military is not proof that Barack Obama and Congressional Democrats would be harmed in 2009 -- 16 years later -- by doing something he has emphatically vowed to do and which a solid majority of Americans support: extend government benefits equally to same-sex couples.
(2) This lengthy, front-page article in Friday's New York Times by C.J. Chivers and Ellen Barry reports and documents that new evidence "call[s] into question the longstanding Georgian assertion that it was acting defensively against separatist and Russian aggression" and "instead, the accounts suggest that Georgia’s inexperienced military attacked the isolated separatist capital of Tskhinvali on Aug. 7 with indiscriminate artillery and rocket fire, exposing civilians, Russian peacekeepers and unarmed monitors to harm."
The article is principally notable not because it negates the prevailing orthodoxy in American politics that Georgia was the innocent victim of a Russian attack -- that has been known and established for some time -- but, rather, because of how journalistically excellent the article is. It painstakingly lays out known facts and describes the evidence to support those facts and what its sources are for that evidence. It carefully identifies what claims remain disputed and unresolvable. Most importantly of all, the article has no extraneous agenda -- while highlighting the factually dubious claims made by the Georgian Government about how the war started, it also acknowledges the faults and excesses of the Russians and Ossetians ("both sides also have a record of misstatement and exaggeration").
Just ponder a world in which basic, solid journalism like this was the norm rather than the conspicuous exception. This article, given its prominent placement, should render it marginally more difficult for our political class, and the new administration, to base their policies toward Georgia and Russia on the simple-minded, and false, Manichean myths that had been peddled about this conflict from the start.
(3) I did an interview on AntiWar Radio with Scott Horton this week about the Obama administration and what we are likely to see in the realm of civil liberties and foreign policy. It can be heard here. My answer to almost every question was essentially the same: we ought to wait to see what Obama does before forming conclusions about him and, certainly, before launching all sorts of criticisms at him. He was just elected four day ago and he's not actually the President yet.
There have been many different renditions of Obama and nobody knows -- including him, I believe -- how he'll govern. It's true that he has espoused some liberal principles and supported some liberal policies, but over the last several years, his political approach has clearly been one of centrism and placating the establishment. But none of that is a guaranteed indicator for what he will do with power. That all remains to be seen, though it seems extremely clear that liberals who are convinced that he will be some sort of icon of progressivism are going to be quite disappointed.
I don't view the campaign, or much of what Obama said during it, as being particularly instructive on this question at all. During the campaign, Obama maintained a single-minded fixation on one goal: to win, and most if not all of what he said in the last six months was designed to achieve that goal, not to signal what he actually thinks or will do. This blogger, in mid-October, provided one of the best descriptions of the Obama campaign and its success of any that I've read:
Obama, meanwhile, is doing what it is that successful politicians do--namely, telling people what they want to hear. He is going to get us out of Iraq, get bin Laden, help the middle class, build an electric car, stop outsourcing, raise wages, help small business, blah blah blah. He says these things plainly and often, never straying far from his set-piece oratory.
McCain's attempt to paint himself and his running mate as "mavericks" and "reformers" is dumb and doomed not because they're unconvincing in those roles, but because people do not actually care about "reform" or "getting rid of the old boys network." If they did, incumbency wouldn't be so reliable a predictor of victory in elections. Prompted with questions about "Washington" and "the way things are done" and "the tone of politics," people will of course respond that they find it all regrettable and that they disapprove.
The idea that this constitutes motivational opinion is wrong, silly really. People care about their paychecks and their bills, and if you can successfully reassure them that the former will increase and the latter decline, then for the most part they'll go along with just about any other bullshit that comes out of your mouth.
That's a bit reductive, but still largely true. It makes perfect sense -- for the reasons Digby so aptly described this week -- for people to start pressuring Obama now to pay attention to their political principles and agendas. And it's certainly likely that Obama will end up doing many, many things that warrant and provoke intense criticism. I have no doubt about that. But he's entitled to actually start doing things -- on Iraq, Iran, Afghanistan, civil liberties, the economy, and otherwise -- before judgments are formed.
(4) John Amato makes a very good point about the irrelevance of the Right, using nothing but pictures. Speaking of which, remember all of this?
"Daniel Pipes: If Obama Wins, Bush Will Attack Iran in November -- 'Should the Democratic nominee win in November, President Bush will do something. and should it be Mr. McCain who wins, he’ll punt, and let Mr. McCain decide what to do.'"
"'Bill Kristol says Bush might bomb Iran if he thinks Obama will win -- 'I think honestly, if the president felt John McCain were going to be the next president he would think it more appropriate to let the next president make that decision than do it on his way out. I do wonder with Sen. Obama, if president Bush thinks Sen, Obama win does he somehow think that, does he worry that Obama won't follow through on the policy'"
"John Bolton: Israel Will Strike Iran if Obama is Elected -- believes the Israeli attack would take place sometime between the day after Obama's win and his inauguration on January 20 of next year"
"[Norman] Podhoretz said [after a private meeting with George Bush and Karl Rove] he believes that 'Bush is going to hit' Iran before the end of his presidency."
Meanwhile, Commentary Magazine is currently debating the proposition, for Israel, that "flattening Hezbollah villages is probably better than starting a war with Syria" and ultimately concludes that "clearly BOTH tactics should be put into play and mutually support each other." This is the mentality that has dominated American government for the last eight years. Regardless of what the Obama administration ends up doing or not doing, a principal benefit of the election this week is that it keeps the neocon Right out of power.
(5) I actually agree entirely with Sarah Palin about this: the McCain aides willing to criticize her only behind the protective veil of anonymity are cowards. But that is the way of Washington: it's filled with people too craven to say what they think and attach their names to it, and criticisms are thus frequently launched, from all sides, only by people hiding behind reporters, who too often grant anonymity to protect and enable snide, petty sniping from cowardly Beltway operatives.
(6) Pam Spaulding, who writes as insightfully as anyone on the relationship between gay equality and race, has some typically worthwhile observations on the tensions that have arisen as a result of the support for Proposition 8 among many African-American voters.
(7) Wired's Ryan Singel details the latest developments in the efforts by EFF and others to argue that the retroactive immunity bestowed on lawbreaking telecoms by Congress is unconstitutional. I'll have an interview or two in the next couple weeks with some of the key lawyers involved in that effort.
(8) My description the other day of Law Professor Orin Kerr as a leading apologist for radical and lawless Bush policies -- a description I documented in the update to the post -- spawned all sorts of consternation among his friends and admirers. You see, he's so reasonable and civil and polite in how he conducts himself that it's really wrong to say anything so critical about him. But, as one of his own commenters pointed out so adeptly, that is precisely the point:
Whether or not the policies are "radical" in terms of popular or political support, [Greenwald] believes them to be a radical departure from our constitutional principles. If you believed as he does, outrage would indeed be the proper response -- one of his objections to what's been going on is precisely the willingness to discuss outrageous policies (torture, unlimited executive authority) as if they were reasonable. The argument is simple: constitutional constraint depends on elites and ordinary citizens not merely *disapproving* of governmental overreach but *hating* it, being *outraged* by it -- if constitutional violations become merely one area of policy disagreement to be traded off against others, republican government is doomed.
That's exactly the point. The Bush administration was able to get away with its extremism and lawlessness over the past eight years because elites and "experts" sat around oh-so-civilly and self-importantly and reasonably debating these actions as though they were legitimate, as though support for those policies was worthy of serious and respectful consideration, as though the advocates of these policies were Serious People within our political mainstream, and -- most of all -- as though outrage and anger and revulsion over what the Bush administration was doing was only for the shrill, irresponsible and uncouth rabble.
As but one example, just read what the Bush administration did to Ali Saleh Kahlah al-Marri. Consider what the ramifications are for our core liberties. Anyone who defends that -- as Kerr did -- is, by definition, an apologist for Bush radicalism and lawlessness, even if they use soft and polite tones and academic discourse when doing so. I'll highly recommend once again this amazingly incisive satirical post highlighting the vital difference between civility and decency. Professor John Yoo is unfailingly polite and soft-spoken. So, for that matter, is Bill Kristol. Those who defend or legitimize indecent policies with civility are still indecent.
UPDATE: Orin Kerr has responded to Item 8 here, and my reply to that is here.