Hold Holder

During Clinton’s second term, I spent a few months covering the Justice Department for the Wall Street Journal. It was not a beat that suited me — too many lawyers, not enough humanity — but it left several lasting impressions. One of these impressions has to do with President-elect Obama’s attorney general nominee, Eric Holder.

Holder is a very smart lawyer who will have the president’s back. But that’s part of the problem with the nomination. Holder is at heart a political animal, not a legal one. That isn’t always disqualifying in an attorney general, but it is exactly the wrong kind of leadership for the department. Justice was badly politicized by the Bush people, famously in the dismissals and appointments of U.S. attorneys.

The Clinton Justice Department wasn’t nearly as corrupt, but its leaders, Holder among them, had several major failures of judgment. Much has been made of Holder’s work to support pardons for folks like Marc Rich and Carlos Vignali, and with good reason. They were intensely political and unjustified. But the pardons also revealed a problem that permeated Clinton justice: poor management.

5 ways to repeal Prop. 8

It’s time to stop protesting a lost election. Four weeks of fury against the passage of Prop 8, the California initiative to ban same-sex marriage, have produced plenty of anger, but no visible progress for the protestors’ cause. If anything, the victorious opponents of permitting gay couples to marry, having heard insults hurled at themselves and their churches, are more self-righteous than ever before.

For those who believe in marriage equality, a new strategy is necessary. And while it is tempting to trust the courts to overturn Prop 8, the courts ultimately can’t provide the victory that gay marriage needs. Any court decision establishing same-sex marriage will have little political legitimacy, given the recent verdict of the people.

What the cause of marriage equality needs in California is an unmistakable political victory, a vote of the people that rebuts Prop 8. Such a vote would show that gay marriage can be a political winner, and build the momentum needed to repeal federal law that bars recognition of same-sex marriage.

How to get there? Here are five steps to victory for supporters of same-sex marriage.

Stop the Nonsense About Arnold and Prop 8

I enjoy post-election recriminations as much as anybody, but I’m beginning to think the post-Prop 8 recriminations are getting out of hand. There’s plenty of blame to go around, but the latest target — Arnold Schwarzenegger — doesn’t deserve the criticism he’s currently getting.

Here’s the case against Arnold being made by No on 8 folks: Schwarzenegger is to blame for Prop 8 for failing to sign into law two bills legalizing same-sex marriages that were sent his way in 2005 and 2007. The argument is that Schwarzenegger set the stage for a ballot initiative by blocking legalization through the traditional process. Hans Johnson, a progressive political consultant, wrote recently in Huffington Post: “More than any other person, he remains responsible for putting marriage equality in jeopardy in California and leaving its future in the court’s hands. Having changed the state constitution, Prop 8 is now beyond both his reach and the legislature’s. For the time being, at least, it has foreclosed the very process that the governor stymied twice before.”

Where Does Arnold Go Next?

During a panel of California journalists at a post-election forum last week put together by the Unruh Institute at USC, there was lots of discussion about what Gov. Schwarzenegger might do next. Many theories were advanced, but no conclusions reached.

The immediate question is whether Schwarzenegger will leave California before his term is up and join the Obama administration. The governor himself has appeared to rule this out with several statements saying he intends to serve out his term. As someone who spent three years of my life researching the life and politics of this man, I would advise against taking these statements at face value.

While Schwarzenegger has been more consistent in his policy positions than he’s given credit for (most — but not all — of his flip flops are cases of other people hearing what they want to hear), the governor is always inconsistent when it comes to matters of personal strategy and his own career.

Revehen Hits the Nail on the Head

Once in a while, I receive a message that hits me like a splash of cold water. And suddenly something complex becomes much clearer. For me, that message came via an email from an old family friend, the Rev. Verne Henderson. The complex thing was the country’s economic crisis.

Revehen, as he’s long been known, has spent a lot of time thinking about ethics, as a pastor, professor, and as a management consultant. He lives back in Boston these days. He’s among the wisest and most thoughtful people I know.

Three Suggestions for Protecting Same-Sex Marriage

Lost in all the publicity about post-election No on 8 protests is the question of whether the 18,000 gay couples who tied the knot this year in California will see their marriages voided by the courts. Protecting these marriages is essential as a matter of humanity, of avoiding a bigger legal mess. Here are three suggestions for how to respond:

1. Show some decency, same-sex marriage opponents.

The Yes on 8 folks — the opponents of same-sex marriage — would be wise not to challenge these marriages in court. It would be both the decent and the politically wise thing to do. By not challenging the marriages, the Yes on 8 crowd could demonstrate that its opposition to gay unions is really about their desire to protect marriage — and not, as many of us suspect, about hatred of gay people. If the Yes on 8 backers go ahead and force the voiding of these marriages, that action likely would boomerang against their cause. I’m hearing from some conservatives who favor allowing the existing marriages to stand, but, given the current thinking on the right (and the anger about No on 8 protests targeting churches), I doubt these cooler heads will prevail.

Bribe ‘Em, Governor

Gov. Schwarzenegger often has expressed a distaste for political horsetrading, the kind of threats and favors that are political currency. Want an appointment for a friend in exchange for a vote? Arnold wasn’t your guy. He often has described such deals as corrupt, the sort of behavior he was sent to Sacramento to stop.

The governor’s attitude is admirable. But given the state’s difficulties and the unwillingness of legislators to take action, it’s time for the his attitude to change. The state’s fiscal future demands pragmatic action, even dishonorable pragmatic action. We can’t afford a rerun of the same old movie: the budget deficit grows, the governor offers a compromise plan, the legislature doesn’t act and the problem gets pushed into the future. That’s not good enough anymore. Schwarzenegger has done his best, sought compromise, threatened initiatives, cozied up to lawmakers, begged, pleaded, etc. He’s tried just about everything, and nothing has worked. So it’s time for some good old-fashioned corrupt deal-making.

That’s right. Bribe ’em, governor. Offer them judgeships. Promise to cast them in the next Terminator movie. Put their friends and relatives on the payroll. Whatever it takes.

What Is the Constituency For Political Reform?

I keep hearing from observers of California politics — all of them smarter and more experienced than yours truly — who have the same question: what do the results of the redistricting initiative, Prop 11, mean?

They don’t know, and neither do I. We don’t even know yet, for sure, that Prop 11 has won. It has a lead, but some 2 million votes have not been counted statewide. And to look at the map of results is to study a puzzle with no obvious solution.
Results of initiative elections typically correlate with other factors: geography, demographics, partisan affiliation. But take a look at the map on Prop 11. None of these factors seem to explain the results on 11.

The results in Los Angeles and Kern Counties are nearly identical — just over 47 percent yes. It lost in some inland, "red," Republican counties (Fresno, Madera) and lost in others (Tulare, Kings). What’s striking is that folks everywhere seemed to be divided: support and opposition fell between 55 and 45 percent just about everywhere.

A New And Improved Argument — Religious Freedom — For Same-Sex Marriage

It was a brutal night for those who believe in marriage equality. Bans on same-sex marriage were enacted by voters in Florida, Arizona and California. In Arkansas, a measure to ban adoptions by persons cohabitating outside marriage was approved. (Pro-life groups backed this anti-adoption measure, by the way). What to do?

The long-term prospects for gay couples who want to marry remain good, despite these setbacks. But same-sex marriage supporters need to figure out how to speak to those who are wary of changing the legal definition of marriage — but are sympathetic to the needs of gay folks. I think there needs to be particular attention to developing a way of talking to people of faith whose churches are adamantly opposed to same-sex unions.

The separation of church and state arguments, even the anti-discrimination arguments, are valid and have their strengths, but I’d like to see something that has a certain religiosity. Gay couples who are themselves devout need to be at the front of this effort. Such couples could explain that for them, marriage is not merely about equality or about love or about getting certain legal protections. it’s part of living a Godly, moral life. By getting married, they don’t wish to change the sacred tradition of marriage, they want to honor that tradition.

Winners and Losers, Initiatives Division

Winners:

Political reform. In California, the big longshot — redistricting reform, which has a near perfect record of losing at the ballot — came in. Prop 11, which strips the legislature of the right to draw state legislative districts (Congressional districts were exempted) — passed. It’s a stunning win (and one your blogger predicted would not happen). This redistricting measure is a modest reform, but the victory suggests that political reform on the ballot may be possible — at least if there isn’t much of a campaign against it. Look for future measures on open primary and perhaps other reforms. And in Colorado, Prop 54 — which had little money and faced a huge, expensive, labor campaign againts it — also appears to have scored a triumph. The measure is a tight ban on "pay to play." If a company or union has a contract with the government, it can’t give money. Labor leaders here in Denver last night say they will challenge it in court.

The initiative process. Voters turned down the greatest in the country to the initiative process, Arizona’s "majority rules" measure, which would have established a near impossible standard for passing an initiative: a majority of all the state’s registered voters (not just the voters who show up on election day). Measure O, a legislative referendum to make it more difficult to qualify an initiative to change the state constitution, also went down.