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“Blinded By The Hate”: The Real Problem With Judge Cebull’s Email

Earlier this week a Great Falls Tribune reporter found something startling in his inbox:  a shockingly racist and misogynistic email forwarded from the most powerful federal judge in Montana, which “joked” that the president of the United States was the product of his mother having sex with a dog. The story soon became national news, with groups  like ours calling on Judge Richard Cebull to resign.

Cebull quickly apologized to the president and submitted himself to a formal ethics review, somewhat quelling the story. But the story is about more than one judge doing something wildly inappropriate and deeply disturbing. It’s about a conservative movement  in which the bile and animosity directed at the president — and even his family — are so poisonous that even someone who should know better easily confuses political criticism and sick personal attack. Come on: going after the president’s late mother?

Attempting to explain his email forward, Judge Cebull told the reporter, John S. Adams,

The only reason I can explain it to you is I am not a fan of our president, but this goes beyond not being a fan. I didn’t send it as racist, although that’s what it is. Is sent it out because it’s anti-Obama.

Judge Cebull is hardly alone in using the old “I’m not racist, but…” line. In fact, his email was the result of an entire movement built on “I’m not racist, but…” logic that equates disagreement with and dislike of the president with broad-based, racially charged smears. These smears, tacitly embraced by the GOP establishment, are more than personal shots at the president —  they’re attacks on the millions of Americans who make up our growing and changing country.

Mainstream conservatives have genuine objections to President Obama’s priorities and policies. But since he started running for president, a parallel movement has sprung up trying to paint Obama as an outsider and an imposter — in unmistakably racially charged terms. Too often, the two movements have intersected.

The effort to paint Obama as a threatening foreigner sprung up around the right-wing fringe in the run-up to the 2008 election with the typically muddled conspiracy theory that painted him as both a secret Muslim and a member of an America-hating church. They soon coalesced in the birther movement, which even today is championed by a strong coalition of state legislators and a certain bombastic Arizona sheriff.

But the birther movement, the “secret Muslim” meme and the idea that the president of the United States somehow hates his own country are no longer confined to the less visible right-wing fringe. Former House Speaker Newt Gingrich, until recently a frontrunner in the GOP presidential race, continually hammers on the president’s otherness, most notably criticizing his “Kenyan, anti-colonial behavior.” Rick Santorum flatly claims that Obama does not have the Christian faith that he professes, and eagerly courted the endorsement of birther leader Sheriff Joe Arpaio. And before they dropped out, Rick Perry and Herman Cain couldn’t resist flirting with birtherism.

But perhaps more than either of these fringe-candidates-turned-frontrunners, Mitt Romney has been catering to the strain of conservatism that deliberately confuses policy disagreements with racially-charged personal animosity. Romney went in front of TV cameras to smilingly accept the endorsement of Donald Trump, whose own failed presidential campaign was based on demanding the president’s readily available birth certificate. And Gov. Romney continually attacks Obama — falsely — for going around the world “apologizing for America.”

Judge Cebull needs to take responsibility for his own actions. And if the GOP has any aspirations of providing real leadership to this country, it needs to jettison the deeply personal vitriol being direct against Barack Obama and start talking about real issues.  When a federal judge has seen so much racially-charged propaganda against the president of the United States that he can claim not to know the difference between genuine disagreement and offensive personal smears, something in our discourse has gone terribly awry.


By: Michael B. Keegan, The Huffington Post, March 2, 2012

March 4, 2012 Posted by | GOP Presidential Candidates, Racism | , , , , , , , | Leave a comment

“Not So High Standards Of Conduct”: Federal Judge’s Racist Email May Have Violated U.S. Ethics Code

A racist email sent around by Richard Cebull, the chief US district court judge in Montana, not only showed blatant disrespect for the president of the United States but also may have broken federal ethics rules. Cebull, who was appointed to the court by George W. Bush in 2001 and became chief judge in 2008, appears to have violated the US Code of Judicial Conduct on at least one count with his behavior, legal experts say.

Cebull sent the nasty email about President Obama on Feb. 20  to six of his “old buddies,” as he put it. The subject line read: “A MOM’S MEMORY.” He used his official court email account, according to the Great Falls Tribune, which first exposed the email on Wednesday. “Normally I don’t send or forward a lot of these,” he wrote, “but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.” The enclosed “joke”—suggesting that the racially mixed president is the spawn of a dog—read:

“A little boy said to his mother; ‘Mommy, how come I’m black and you’re white?’

“His mother replied, ‘Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark!'”

Cebull denies he’s a racist, and says that the email wasn’t intended to be public. But on Wednesday he admitted publicly that the email was both racist and motivated by partisan politics. “The only reason I can explain it to you is I am not a fan of our president, but this goes beyond not being a fan,” he said. “I didn’t send it as racist, although that’s what it is. I sent it out because it’s anti-Obama.”

The US Code of Judicial Conduct mandates that a judge “should personally observe high standards of conduct so that the integrity and independence of the Judiciary are preserved.” It also says that a judge “should avoid impropriety and the appearance of impropriety in all activities”—which applies to both professional and personal conduct. With regard to politics, it says judges “should refrain from partisan political activity” and “should not publicly endorse or oppose a partisan political organization or candidate.”

Where to draw the line between appropriate and inappropriate speech by judges is a complicated matter, says Jeffrey M. Shaman, a judicial ethics expert at DePaul University College of Law. But there seems to be little doubt that Cebull crossed over the line. “Offensive, racist speech such as this clearly diminishes public confidence in the integrity and impartiality of the judiciary, and therefore should be considered a violation of the Code of Judicial Conduct,” Shaman told me. “Judge Cebull ought to know better, and his circulation of such a disgusting message makes one wonder if he is competent to serve as a judge.”

What might the consequences be for Cebull?

“While I certainly see why this type of joke raises serious and legitimate concerns, I am not convinced that it warrants punishment beyond the current (and justified) public criticism,” wrote George Washington University legal scholar Jonathan Turley on Thursday. “The judge is claiming that he thought he was sending this to a handful of friends. It would be akin to a bad joke at a party being repeated later.”

Turley notes that in 2009 a judicial council cleared Chief Judge Alex  Kozinski of the 9th US Circuit Court of wrongdoing after an  investigation into sexually explicit materials (involving farm animals)  found on the judge’s personal website. But the council did officially find that  Kozinski had acted with “carelessness” and was “judicially imprudent.”

In Cebull’s case, Turley concedes that the Montana judge clearly  failed to adhere to a tenet of the Code of Judicial Ethics, that a judge “must  expect to be the subject of constant public scrutiny and accept freely  and willingly restrictions that might be viewed as burdensome by the  ordinary citizen.”

Shaman sees a serious offense. “It is very difficult to predict what  sanctions a reviewing authority will apply in any given case,” he says.  “But I certainly think that at least a reprimand is appropriate here.”

Update, 3pm PST: AP reports that the 9th U.S. Circuit Court of Appeals will carry out a judicial misconduct review. The complaint process apparently was initiated by Cebull himself, who says he also plans to send President Obama a formal apology.

By: Mark Follman, Mother Jones, March 1, 2012

March 2, 2012 Posted by | Racism | , , , , , , | Leave a comment

Montana Supreme Court Says “Citizens United” Does Not Apply In Big Sky State

Montana’s Supreme Court has issued a stunning rebuke to the U.S. Supreme Court’s Citizens Uniteddecision in 2010 that infamously decreed corporations had constitutional rights to directly spend money on ‘independent expenditures’ in campaigns.

The Montana Court vigorously upheld the state’s right to regulate how corporations can raise and spend money after a secretive Colorado corporation, Western Tradition Partnership, and a Montana sportsman’s group and local businessman sued to overturn a 1912 state law banning direct corporate spending on electoral campaigns.

“Organizations like WTP that act as a conduit for anonymously spending by others represent a threat to the political marketplace,” wrote Mike McGrath, Chief Justice of the Montana Supreme Court, for the majority. “Clearly the impact of unlimited corporate donations creates a dominating impact on the political process and inevitably minimizes the impact of individual citizens.”

The 80-page ruling is remarkable in many respects. Throughout, including in a lengthy dissent by a state Supreme Court justice who felt Montana was dutibound to abide by the U.S. Supreme Court ruling, the Montana Court attacked the thinking behind the Citizens United decision and the impact of big money in political culture, including the notion that corporations are deserving of the same political speech rights as citizens.

“While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the [U.S.] Supreme Court’s decision,” wrote Justice James C. Nelson, in his dissent. “And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield enormous power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins: the transition is seamless and overlapping.”

“It should be noted that the Montana Corrupt Practices Act was adopted in 1912 at a time when the country’s focus was on preventing political corruption, not on protecting corporate influence,” wrote Nelson, later in his dissent.

Western Tradition Partnership
The lead group that sued to overturn the Montana ban on direct corporate spending in campaigns followed a very deliberate course of clashing with virtually every aspect of Montana campaign finance law. The lawyers behind the litigation believe that they should face no limits or accountabililty for any political fund-raising or spending.

The Montana Supreme Court’s majority opinion described why Western Tradition Partnership was as slippery an organization as one finds in modern politics. They noted how the groups lawyers claimed that they should be allowed to spend freely because the group would have to disclose that activity under Montana law, when as the state’s Chief Justice noted in his opinion, the same group, using another name, actually had sued the state to overturn those very disclosure laws.

Moreover, the ruling quoted a fund-raising brochure that said, “If you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you made this program possible.” The group also is involved in a third suit challenging the state’s campaign spending disclosure law.

“We take note that Western Tradition appears to be engaged in a multi-front attack on both contribution restrictions and the transparency that accompanies campaign disclosure requirements,” the Court said, adding in a footnote that the Montana Commissioner of Political Practices called the group a “sham” because it failed to register with the state, and refused to disclose the sources of its funds or its spending—as required by law.

Rebutting Citizens United
Lawyers attacking the Montana ban on direct corporate spending said the U.S. Supreme Court in its 2010 Citizens United ruling removed any barrier to corporate spending. But the Montana Supreme Court disagreed and took a more nuanced view.

The U.S. Supreme Court in Citizens United found there was no compelling reason why a non-profit corporation that produced an anti-Hillary Clinton video should be prevented from showing that video in the weeks before Election Day—as a new federal campaign law had banned. But the Citizens United ruling did not remove all bans on corporate speech, the Montana Court said. “The Supreme Court held that laws that burden political speech are subject to strict scrutiny, which requires the government to prove that the law furthers a compelling state interest and is narrowly tailored to that interest.”

The Montana Court then launched into detailed explanations of sufficiently compelling state interests to merit sustaining the century-old law. The majority opinion read like a history lesson that recounting how the state, especially in the decades following its founding in 1889, struggled to restrict the power and influence of mining corporations. In 1906, the citizenry amended the state Constitution to allow for ballot initiatives. Six years later it passed the ban on corporate spending, specifically to curb mining companies based in Butte. The Court noted that the state—then and now—was beset with corporate players whose money, power and influence easily overshadow individuals.

“What was true a century ago is as true today: distant corporate interests mean that corporate dominated campaigns will only work ‘in the essential interest of outsiders with local interests a very secondary consideration,’” the opinion said, quoting a historian’s testimony from a lower state court that reviewed the case. “While specific corporate interests come and go in Montana, they are always present.”

The Court said Montana had a political tradition that has emerged in intervening decades and they wanted Montana to remain a state where candidates run low-budget, personal campaigns and do not rely on anonymous, well-financed messaging from outsiders.

The Court pointed out that judicial elections were particularly vulnerable to anonymous spending by large corporations. Montana’s 2008 Chief Justice race had advertising from all candidates costing about $60,000, it noted. “It is clear that an entity like Massey Coal, willing to spend even hundreds of thousands of dollars, much less millions, on a Montana judicial election could effectively drown out all other voices.”

These various factors—a history of citizenry fighting corporate corruption, political traditions of low-budget campaigning, and the vulnerability of judicial elections to corporate spending—were sufficiently compelling, the Court said, to preserve the century-old ban on corporate spending in the face of the Citizens United ruling.

“The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did,” the majority said. “We think not. Issues of corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government.”

Concluding, the Court said that the sportsman’s group and businessman who sued to overturn the law were not prohibited from participating in politics by the ban on direct corporate spending. And it said Western Tradition Partnership could follow the same rules as anyone else. “WTP can still speak through its own political committee/PAC as hundreds of organizations in Montana do on an ongoing basis,” the Court said. “The difference then is that under Montana law the PAC has to comply with Montana’s disclosure and reporting laws.”

There is little doubt that the anonymous money behind Western Tradition Partnership will appeal the Montana Supreme Court ruling in federal court—and even seek to take the case to the U.S. Supreme Court. However, even it it does that, the ruling issued Friday by Montana’s Supreme Court will endure as a monumental defense of a state’s right to curb political corruption and the excesses of big-money politics.

Corruption and Corporate Personhood

Justice Nelson, who dissented because he believed that the state had to follow the U.S. Supreme Court’s ruling, concluded by fervently disagreeing with the assumptions behind the Citizens United ruling, starting with the Roberts Court’s assumption that spending large sums in campaigns was not inherently corrupting.

Nelson said independent expenditures by corporations in political campaigns—where political players are not supposed to coordinate their actions with candidate campaigns—absolutely were noticed and influenced the lawmaking process. “In the real world of politics,” he wrote, “the “quid pro quo” of both direct contributions to candidates and independent expenditures on their behalf is loyalty. And, in practical effect, experience teaches us that money corrupts, and enough of it corrupts absolutely.”

Nelson closed by slamming the legal theory of corporate personhood—that corporations, because they are run and owned by people, should have the same constitutional freedoms as individuals under the Bill of Rights. Corporatist judges, such as the Roberts Court, believe that corporations and people are indistinguishable under the law. In contrast, constitutional conservatives know very well that the framers of the U.S. Constitution distrusted large economic enterprises and drafted a document to protect individual businessmen, farmers and tradespeople from economic exploitation.

“While I recognize that this doctrine is firmly entrenched in law,” Nelson began, “I find the concept entirely offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.”

As Nelson said, ending his dissent, “the [U.S.] Supreme Court has spoken. It has interpreted the protections of the First Amendment vis-a-vis corporate political speech. Agree with its decision or not, Montana’s judiciary and elected officers are bound to accept and enforce the [U.S.] Supreme Court’s ruling…”

But the Montana Supreme Court has also spoken—and with a clarity that is rare to behold.


By: Steven Rosenfeld, AlterNet, January 1, 2012

January 3, 2012 Posted by | Campaign Financing, SCOTUS | , , , , , , | Leave a comment

Teaparty, More Dumb Than Clever

Although I’m not part of the Tea Party movement and I don’t share its values, I usually understand what its followers are trying to do. But their latest gambit on health care has me genuinely baffled.

The idea is to oppose the Affordable Care Act not in the Congress or the courts, where they’ve been fighting so far, but in the state legislatures. As you may recall, the Act calls upon states to create the new “exchanges,” through which individuals and small businesses will be able to buy regulated insurance policies at affordable prices. The simplest way to do that is for state legislatures to pass laws creating exchanges that conform to the Act’s standards. Several states have started that process already–and a few, like California, are well along in their efforts.

But Tea Party activists have been lobbying state lawmakers to vote against such measures and, in a few states, it looks like they’re succeeding. Politico’s Sarah Kliff has the story:

In South Carolina, tea party activists have been picking off Republican co-sponsors of a health exchange bill, getting even the committee chairman who would oversee the bill to turn against it.

A Montana legislator who ran on a tea party platform has successfully blocked multiple health exchange bills, persuading his colleagues to instead move forward with legislation that would specifically bar the state from setting up a marketplace.

And in Georgia, tea party protests forced Gov. Nathan Deal to shelve exchange legislation that the Legislature had worked on for months.

It’s a great idea for blocking the law, except for one small problem: The Affordable Care Act anticipates that some states might not create adequate exchanges. And the law is quite clear about what happens in those cases. The federal government takes over, creating and then, as necessary, managing the exchanges itself. In other words, if state lawmakers in Columbia, Helena, and Atlanta don’t build the exchanges, bureaucrats in Washington are going to do it for them.

I realize that blocking the exchange votes may have certain symbolic value–and, at least in the early going, it could complicate implementation simply by generating more chaos. (Georgia lawmakers, as the article suggests, had already put in a lot of time on theirs.) I also gather that some Tea Party activists believe that blocking state exchanges will strengthen the constitutional case against the law. Still, if even part of the law withstands both congressional repeal and court challenges, as seems likely, the long-term effect of this Tea Party effort seems pretty clear: It will mean even more, not less, federal control.

The irony here is that, throughout the health care debate, liberals like me wanted federal exchanges, in part because we feared states with reluctant or hostile elected officials would do a lousy job. That’s the way exchanges were set up in the House health care reform bill and, in January of 2010, many of us hoped the House version would prevail when the two chambers negotiated the final language in conference committee. But the conference negotiation never took place, because Scott Brown’s election eliminated the Democrats’ filibuster-proof majority. The House ended up passing the more conservative Senate bill, which had state exchanges, and that became the law.

Of course, not all Republicans agree with the Tea Party’s approach. In a previous article, for Politico Pro, Kliff interviewed several state officials who said they were setting up exchanges, notwithstanding their opposition to the law, precisely because it is the surest way to keep out the feds.

Len Nichols, the health care policy expert at George Mason University, thinks that approach makes a lot more sense, given their priorities:

Ironically, the only way to make PPACA a “federal takeover” is for states to do nothing. There is much state flexibility in the law, and much more could be sensibly negotiated and amended before 2014, but the strategy of repeal, do nothing and “get the government out of health care” will have exactly the opposite effect in those states that follow this path.

Maybe the Tea Party activists know something that neither Nichols nor I do. My bet, though, is that this effort is the policy equivalent of a temper tantrum, one that opponents of federalizing health care may come to regret.

By: Jonathan Cohn, The New Republic, March 31, 2011

April 1, 2011 Posted by | Affordable Care Act, Conservatives, Constitution, GOP, Health Care, Health Reform, Insurance Companies, Neo-Cons, Politics, Republicans, Right Wing, State Legislatures, States, Teaparty | , , , , , , , , , , | Leave a comment

Mad Scientists In The Lab Of Democracy…Experimentation Going Awry

Supreme Court Justice Louis Brandeis once said that states are the “laboratories of democracy.” Oft repeated over time, the aphorism has helped impart legitimacy to the rough and tumble of state lawmaking. We’ve heard “laboratory” and we’ve imagined staid scientists in white coats rigorously testing forward-thinking theories of societal advancement. It’s certainly a reassuring picture – but there is a darker side of the metaphor. States are indeed laboratories. The problem is that today, those laboratories are increasingly run by mad scientists.

We’re not talking about the usual Dr. Frankensteins trying to bring alive new corporate giveaways through harebrained cuts to social services (though there are those, too). We’re talking about true legislative sadists looking to go medieval on America. Behold just five of the most telling examples:

The Anti-Life Pro-Life Act: After anti-abortion Republicans in Congress tried to narrow the legal definition of rape, Nebraska Republican State Sen. Mark Christensen took the assault on women’s rights one step further with a bill to legitimize the murder of abortion providers by classifying such homicides as “justified.”

The Let Them Eat Corporate Tax Cuts Act: As poverty rates and hunger have risen, so too have corporate profits. The Georgia legislature’s response? Intensify the inequity with a bill to create a regressive sales tax on food that would then finance a brand new corporate tax cut.

The Demoralize the Workforce Act: Wisconsin Gov. Scott Walker didn’t just threaten to deploy the National Guard against state workers unless they accept big pay and pension cuts. Apparently, that was too Kent State and not enough Ludlow Massacre for him. So he pressed to statutorily bar those workers from ever again collectively bargaining.

The Child Labor Act: Missouri State Sen. Jane Cunningham’s proposal to eliminate child labor laws would allow corporations to employ any kid under 14 and would terminate restrictions on the number of hours that kid can be forced to work. The legislation is proof that when Tea Party ideologues refer to “the ’50s,” some of them aren’t referring to the 1950s – they are referring to the 1850s.

The Endorsing Your Own Demise Act: Between trying to legalize hunting with hand-thrown spears and pressing to eliminate education requirements for those seeking the office of State Superintendent of Schools, Montana’s Republican lawmakers are also considering legislation to officially endorse catastrophic global climate change. That’s right, in the face of a Harvard study showing that climate change could destroy Montana’s water supplies, agriculture industries and forests, State Rep. Joe Read’s bill would declare that “global warming is beneficial to the welfare and business climate of Montana.”

If you don’t live in one of these states, it’s easy to tell yourself that these bills don’t affect you. But history suggests that what happens in one “laboratory” is quite often replicated in others – and ultimately, in the nation’s capital. That’s why we should all hope saner minds cut short these experiments before they get even more out of control.

March 18, 2011 Posted by | Abortion, Climate Change, Collective Bargaining, Democracy, Education, Ideologues, Politics, State Legislatures, States, Unions, Womens Rights | , , , , , , , , , , | Leave a comment

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