Friday, July 2, 2010
From Crooks and Liars:
As Blue Texan at FDL noted, Al Franken laid waste to the GOP's anti-Thurgood Marshall Campaign and as they called it, their minority outreach program. Franken gives his "good friend" Lindsey Graham and the Republicans a little history lesson on what an "activist judge" is and why Justice Thurgood Marshall wasn't one of them.
Franken: You said there are three things that judges hold to when they’re not activists. You said that they respect precedent. They make narrow decisions and they defer to the political branches, in other words the legislature. And there are a lot of recent cases that we’ve been talking about that instinctively strike me and a lot of other people as falling outside of these three guidelines. And I think that in these cases the Supreme Court was legislating from the bench, which is being activist.
Franken goes on to discuss why the decisions in Circuit City v. Adams, Gross v. FBL Financial Services, Rent-a-Center v. Jackson, Citizens United v. Federal Election Commission, Leegin Creative Leather Products, Inc. v. PSKS Inc., the Supreme Court would have fit into Kagan’s guidelines of what would define an “activist court” and noted that Republicans all “seem to like” those decisions. He went on to explain why there is no way that Brown v. Board of Education should not be lumped in with those other cases and how it was “an exemplar of overturning a precedent that needed to be overturned.”
Franken: There are certain situations where the Supreme Court really should subject the law to a heightened scrutiny and this is what I think Justice Marshall was talking about when he said that the court should show “special solicitude for the despised and disadvantaged, the people who went unprotected by every other organ of government and who had no other champion.”
Now in the opening statements you were criticized for admiring Justice Marshall for believing this, but I actually think that this belief, Justice Marshall’s belief is just good, Constitutional law.
Are you familiar with Carolene Products… Carolene Products case of 1938?
Kagan: Yes sir.
Franken: Are you familiar with Footnote Four of that decision?
Kagan: Yes sir.
Franken: And you’re familiar with that because the footnote’s really important, isn’t it? It’s often taught in Constitutional law classes, whether they be in the first year or the second year or the third year, right?
Kagan: It is.
Franken: Can you tell me what that footnote says and why it’s important?
Kagan: Senator it seems as though you have it in front of you and you’re going to do a better job of it than I am at this moment.
Franken: You’re a mind reader. Footnote Four basically says that when courts interpret the Constitution and try to figure out whether a law complies with the Constitution, courts should give special scrutiny to laws that violate a specific part of the Constitution, that restrict the political process and that affect “religious, national, racial and discrete and insular minorities” who have a really hard time getting help through the normal political process.
Now to me discrete and insular minorities sounds a lot like the despised and disadvantaged that go unprotected and have no other champion. Is it safe to say that Justice Marshall’s belief is consistent with Carolene Products?
Kagan: Well there’s no doubt Sen. Franken that racial classifications are subject to very high scrutiny under the Equal Protection clause and have been so for a long time and the Equal Protection clause exists to ensure against discrimination on disfavored basis very much including in the archetypal example is race and that it is not only appropriate but obligatory on the courts to enforce that prohibition on discrimination on the basis of race.
Franken: So Justice Marshall’s belief that was criticized in the opening statements is really very consistent with established Constitutional law, isn’t it?
Kagan: Well Sen. Franken, I will say that when I wrote those words I was not speaking of Footnote Four in Carolene Products. I was speaking instead of what I’ve talked about several times at this hearing which is Justice Marshall’s deep belief in insuring a level playing field for all Americans and insuring that each and every American regardless of wealth or power or privilege, that each and every American gets fairly heard before the court and when I wrote that tribute to Justice Marshall and wrote those words that was very much what I had in mind.
Franken: So I’d like to leave you with this thought, okay. Justice Thurgood Marshall was one of the greatest lawyers, jurists in American history. This is a man who won Brown v. Board of Education, who helped end segregation in our nations’ schools and opened the doors to black Americans. This is a man who proved that separate but equal was inherently unequal.
Not only that but he served with distinction as Solicitor General, as a judge on the Second Circuit and as the first African American Supreme Court Justice. This is a giant of the American legal system. And I think what I really want to say is that Justice Marshall wasn’t some activist radical. Rather his views were very much in the mainstream and in line with Constitutional jurisprudence since 1938, since Carolene and before that. And I just think that we need to be aware of that and germane about it.
Kagan: Sen. Franken I’ll just say what I said on many occasions in the past which is that Justice Marshall is a hero of American law and a hero of mine.
Franken: And of mine. Thank you.
Al proves once again why any Republicans that dismiss him as just being a comedian, do so at their peril.
Thursday, July 1, 2010
The following from Crooks and Liars:
Keith Olbermann talked to John Wathen from The Waterkeeper Alliance who has been photographing the disastrous environmental impact of the oil spill in the Gulf. His blog is at http://bpoilslick.blogspot.com/. I've been watching some of the video from his site for a while now and was glad to see Keith finally give their work some attention.
OLBERMANN: Some of the most devastating pictures yet of the extent of the damage being caused by this oil disaster is coming from an Alabama conservationist named John Wathen, who has been flying over the spill whenever he can to document independently exactly what is taking place. Footage shot last week posted on YouTube, this gentleman revealed that the devastation is worse than BP has been telling us and it possible that it is more extensive than many of us had feared.
(BEGIN VIDEO CLIP)
JOHN WATHEN, ALABAMA CONSERVATIONIST: The further we got in the Gulf and the more consistent it came, at 17 miles out, it was obvious that the entire Gulf was covered at this point.
At 23 miles out, we encountered the heaviest sheen yet. The water was a deep purple, maroon, blue. It looked almost like a rainbow. The scope of this is beyond belief. It will take years at this rate to gather up even a portion of the oil that‘s on the surface today.
Some of it looks more like bruised internal organs of the human body than the surface of the ocean. And yet that‘s what it is.
The first time I came out, I saw a fire, there was only one. Today, when we got here, there were four. Within a couple of passes, there were seven.
From the size of these fires, it seems as though we‘re not only trying to kill everything in the Gulf of Mexico but everything that flies over it as well. This toxic environment can‘t be good for the birds that fly over the Gulf. And certainly nothing can live in these rainbows of death that cover the entire horizon.
As we look closer, we saw this pod of dolphins, obviously struggling just to breathe.
SUBTITLE: Thirty-six dolphins try to escape the BP slick. Eighteen dolphins in this pod.
WATHEN: Then we found this guy, a sperm whale swimming in the oil had just breached along his back where you see red patches of crude as if he had been basted for broiling.
Then there was this pod of dolphins found later, some already dead, some in the death throes. It seemed to be they were raising their heads and looking at the fires wondering, why is my world burning down around me? Why would humans do this to me?
OLBERMANN: Joining us now from Tuscaloosa, the man behind the remarkable video, John Wathen, conservationist with the Water Keeper Alliance. Thanks for your time tonight, sir.
WATHEN: Thank you. I appreciate being here.
OLBERMANN: As I implied there, that‘s not even your most recent footage. Do the new images show any sign of improvement out there?
WATHEN: Not at all. If anything, things are getting worse.
When we first went out, there were bright red colors. There were vivid colors in the oil and there was some separation between the bands. The second time, it looked more like deep bruising on the skin. This time, when we went out there, it was—it was much wider. It was much widespread from a mile and a half off the shore to Gulf Shores, Alabama, all the way out to the rig some 90 miles away. We didn‘t fly over clean water one time.
WATHEN: It is getting worse.
OLBERMANN: The thing that is resonating with people that have seen your video online, in particular, have been the dolphins. How many would you say you spotted and how many of them were already dead by the time you saw them?
WATHEN: Well, we couldn‘t get an accurate count on how many were actually dead. We had three people in the plane trying to count.
And we figure we saw over 100 dolphin that‘s were in distress. Some were obviously dead. They were belly up in the water. And there were several more that were in, you know, obvious distress. It looked to me as if they were in their death throes.
OLBERMANN: The burning of the oil, the use of the dispersants that obviously created the separations that you described, and now, just the sort of coating of the surface, wall to wall oil, is this an instance where the attempt of the cure, what BP is supposedly doing to clean up what it has spilled into the Gulf, that the cure is as bad if not worse than the original disease itself?
WATHEN: In my opinion, absolutely. This dispersant, we‘re putting so much of this stuff in at the source. What they‘re basically doing is just hiding it from sight. We‘re not seeing it on the surface anymore. So, it must not be as bad.
But it‘s robbing the water column of the oxygen. And we‘re seeing these huge plumes of oil underwater. And what you‘re seeing in Florida today, in my opinion, is where these plumes are coming from the Continental Shelf and boiling out into that shallow water.
I flew the Florida coast right after this video. And I had people actually in water that had oil in it. And you could see the sheen for miles and miles and miles out on the horizon. So, they can‘t see from the beach what I can see from the airplane. This thing is huge.
OLBERMANN: What happens when that hurricane blows that into more sensitive—as if the rest of the ecology wasn‘t sensitive enough—but into things like the marshlands, what happens to the marshlands? Do you have any guess?
WATHEN: Well, from what I heard from most of the locals down there and the people that really know the marshes and bayous, this is the worst possible scenario, is a weak storm like this because all it‘s doing is raising the tide and pushing the oil into the marshes without enough force to really break it up. We‘re pushing bulk into the marshes, With the dispersant that‘s involved here, the oil, a lot of it is under the water and the booms had no effect with or without the waves. The oil was coming under the boom.
So now, there is nothing blocking it. All of that oil is going to be in our marshes. It‘s going to be in our estuaries. And there is nothing we can do about it.
OLBERMANN: How much do you think the fires, the burning off spread this into the environment in other ways? Do you have any way of measuring that?
WATHEN: I don‘t have any way of measuring it, Keith. But it‘s phenomenal when you get out there and you realize that these huge towering columns of smoke are coming from incredibly small fires on the horizon. When you look at the amount of oil that‘s out there, each one of those columns of smoke is nothing more than a tea cup in comparison. It will take thousands of these fires to burn all the oil on the Gulf of Mexico. This is—this is ludicrous.
We‘re toxifiying the atmosphere. We‘re killing everything in the Gulf of Mexico around this thing. It seems like we‘re trying to kill everything in the air, too. It‘s insane out there.
OLBERMANN: Indeed, it is. John Wathen, chronicler of that, resident of Alabama, member of the Water Keeper Alliance, his Website on the disaster is BPoilslick.blogspot.com. Mr. Wathen, great thanks for your time and we‘ll talk to you again when the next video gets out of there.
WATHEN: Thank you. It‘s an honor. I hope to have the next video out by the next week that will cover the Florida coastline. And then again, we want to go up right after this storm. I want to try to get down there and get as much of it as I can.
OLBERMANN: We‘ll talk you to then. Thank you, sir.