Fair and Unbalanced

Mike Littwin

"The pump don't work 'cause the vandals took the handles."

Littwin: Mr. Attorney General, the gay marriage ship has sailed

What in the name of fundamental rights is Colorado AG John Suthers thinking?


IN case you missed it, the 4th Circuit Court of Appeals has ruled that Virginia’s ban on same-sex marriage is unconstitutional. Yes, it’s big news, but it’s not exactly groundbreaking news. Not any more. Maybe not ever again.

According to NPR’s Nina Totenberg, that makes 29 consecutive rulings in favor of same-sex marriage. I don’t know what the record is — but I wonder if the Supreme Court would really be willing to snap the streak.

The rulings began a year ago after the Supreme Court shot down key sections of the Defense of Marriage Act. Every ruling since has determined that marriage is a fundamental right. Once you get into fundamental rights, that’s pretty much the beginning and end of the story.

We’ve heard the same stories from judges appointed by Obama, by both Bushes, by Clinton, by Reagan. This is about as bipartisan as you can get in modern-day America.

Suthers’s ongoing losing legal battle feeds directly into the contention that the state’s Republicans have a 21st-century social-issues problem, beginning with personhood and following all the way to same-sex marriage.

Mark Herring, Virginia’s attorney general, put it this way: “Sometimes battles have been fought in the legislature, sometimes in the courtroom, sometimes even in the streets, but inevitably no effort to restrict the rights or limit the opportunities of our fellow Americans has ever succeeded in the long term.”

But no civil rights issue has moved so quickly through the courts — or so nearly unanimously. The point of the Virginia ruling was duly noted in bordering North Carolina, where the real news of the day happened. North Carolina is also covered by the 4th Circuit and has a same-sex-marriage ban similar to the one in Virginia. And so, seeing the ruling, North Carolina Attorney General Roy Cooper held a news conference to say his state was throwing in the towel on same-sex marriage. You know, before someone gets hurt.

Cooper explained that attorneys general across the country have made “almost every possible legal argument” in dozens of cases and that the courts “have rejected them each and every time.”

“So,” he concluded, “it’s time for North Carolina to stop making them.”

If you heard the news conference, you may have had the same question I had: If this is so clear to Cooper — that there are no new arguments to make — then what in the name of fundamental rights is our attorney general, John Suthers, thinking?

The 10th Circuit in Denver was the first U.S. Appeals Court to uphold a ruling that a ban on same-sex marriage was unconstitutional. That case was about Utah’s ban, but the 10th Circuit also covers Colorado and its ban. Maybe you can see a pattern. But Suthers apparently does not. He is not simply continuing the fight against same-sex marriage. He’s taking on all comers and, if necessary, all of them at once. I don’t know how big his staff is, but if there’s a courtroom anywhere in Colorado, Suthers is probably there.

Of course, all hell broke loose here when Clerk and Recorder Hillary Hall started issuing marriage licenses in Boulder County. By the time Denver began issuing them, chaos had set in. Two courts ruled Boulder could continue to issue licenses. The state Supreme Court ruled Denver should not. Yes, there was chaos, but what civil rights action doesn’t include at least a touch of pandemonium? And now Suthers is back trying to stop Hall again.

Suthers says it’s clear-cut. He says it’s his job to defend the Colorado law until the end, and that he thinks, despite all the rulings, that the law is constitutional. He’s ready to go to the U.S. Supreme Court, which will, of course, get the last word. And probably as soon as next year.

There’s cost, of course, and not just in court costs. It has been suggested that Suthers — who has never said publicly how he feels about same-sex marriage — might be running for another office (mayor of Colorado Springs, anyone?). And that as a Republican, it would help him to make this case. But I doubt very much it’s as simple as that.

This very public case can’t be very good for Colorado Republicans. In fact, it feeds directly into the Democratic contention — available in a campaign ad on a big-screen TV near you — that the state’s Republicans have a 21st-century social-issues problem, beginning with personhood and following all the way to same-sex marriage.

You can’t entirely avoid the politics in this, even if the judges seem to. The Virginia attorney general, who refused to defend his state’s law, is a Democrat. North Carolina’s Cooper is a Democrat. The South Carolina attorney general, a Republican, said he would continue to defend his state’s ban on same-sex marriage. There’s a pattern there, too.

But if you read the 4th Circuit ruling, a 2-1 decision, the judges made the Virginia case particularly hard to defend. It took us back to the days of racial segregation and back to the 1967 Loving v. Virginia ruling, in which the Supreme Court upended Virginia’s ban on interracial marriage.

In his opinion, Judge Henry Floyd said it was no different today for gay couples who wish to marry.

“Denying same-sex couples this choice,” Floyd wrote, “prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”

It’s a difficult argument to defeat. Which is how you get 29 wins in a row.

[ Top image of Ping, missing the boat. ]

Littwin: Counting the gasps

On contemporary capital punishment and the country’s latest botched, drawn-out execution, this one in Arizona.


THIS is the modern story of the death penalty. It begins with a horrific crime and ends, 25 years later, with a botched execution, as the state proceeds using an untried combination of killing drugs. Is that justice — and if not, what exactly is it?

It took nearly two hours for James R. Wood III, a double murderer, to die in Arizona Wednesday. That much is inarguable.

It was the third botched execution this year, although some Arizona officials tried to deny that it was botched at all, even as Gov. Jan Brewer, who defended the execution as “lawful,” called for an internal investigation.

Reporters who witnessed the execution said that Wood was gasping, as one put it, “like a fish onshore gulping for air.” As time wore on and Wood did not die, one reporter began counting the gasps — and got to more than 600. Meanwhile, a spokesperson for the Arizona attorney general, who also witnessed the execution, said Wood was not gasping, but simply snoring. His death, she said, was “peaceful” and that the reporters and the lawyers basically made the rest up.

And so it comes down to gasping versus sleeping, snorting versus snoring and how many wheezes — as Slate’s Dahlia Lithwick wondered — are too many during one execution.

The death-penalty process can go on for 25 years because we want to be sure to get capital cases right — and yet, we almost certainly get some wrong.

It is a strange place in which we find ourselves — the last of our so-called “peer” nations to use the death penalty and, thus, one of the last still arguing about whether the act itself is sufficiently humane. What we know is that the execution took so long that the lawyers filed appeals to the Supreme Court in the middle of it. The answer from the Supreme Court came back — appeal denied — as Wood was finally dying.

It’s the argument we’re having with ourselves that has led to the foul-ups. Drug companies in the United States and Europe don’t want anything to do with executions. And so the cocktails often come from unregulated compounding pharmacies, whose identities become state secrets. Arizona had used pentobarbital for executions, but apparently couldn’t find any. This is where we are today — where states have to score drugs to kill their death-row killers.

The combination of drugs used in Arizona was apparently untested. And so Wood’s lawyers, noting the recent botched deaths in Oklahoma and Ohio, went to court to learn the source of the drugs and how they’d be administered. One court granted a stay. The Supreme Court overturned it. The Arizona Supreme Court issued a stay and then revoked it.

The process in death penalty cases like Wood’s can go on for 25 years because we want to be sure to get them right — and yet, we almost certainly get some wrong anyway. And even if we know they’re right, we know, too, that death is randomly assigned. A murderer’s chance of getting the death penalty has far less to do with the crime he committed than where he committed it, his race and class, how he performed on an IQ test.

Hardly anyone bothers to make the deterrence argument any more. And botched executions are a strange kind of closure.

Wood killed Eugene and Debra Deitz, father and daughter. Debra was an ex-girlfriend, who had left Wood after he had beaten her. She filed for a protection order, but after months of threats, Wood came to the family’s auto-repair shop, killed the father, fought with an uncle and killed Debra before getting in a shoot-out with the cops.

Debra Deitz’s sister witnessed the execution. “You don’t know what excruciating is,” she told reporters after one had used “excruciating” to describe Wood’s death. “Seeing your dad lying there in a pool of blood, seeing your sister lying there in a pool of blood—that’s excruciating.”

As I’ve written before, the best argument for the death penalty is usually the criminal himself. But we constitutionally reject cruel and unusual punishment, and — despite Supreme Court rulings to the contrary — what else could the death penalty be in 2014?

After Wood’s case was successfully appealed in the 9th Circuit, Chief Judge Alex Kozinski, a well-known provocateur, wrote a dissent saying that the use of lethal injections was a misguided attempt to make executions “look serene and peaceful” when, in fact, they are “brutal, savage events.”

He suggested, instead, that we use the guillotine, although he said he doubted most people would approve. The electric chair, hanging and the gas chamber, he noted, are hardly foolproof.

“The firing squad strikes me as the most promising,” Kozinski wrote. “Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. …

“Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”

Kozinski told the Los Angeles Times that he was “generally not opposed to the death penalty.” Still, I’m not sure how seriously to take the judge’s remarks. I wonder if he wanted us to try them out and see how they sound, as we count the gasps.

[ Image: Detail, "Third of May," by Francisco Goya. ]

Littwin: Ted Cruz’s humanitarian crisis

Children streaming to the border come from violent countries, desperate families. The humane solution is to send them home?


TED Cruz nearly had me. I went to see the Texas senator at the Western Conservative Summit because I have a soft spot for troublemakers, particularly smart ones, and Cruz is definitely both. He’s the guy hardly anyone likes who is considering running for president. No one has pulled that off since Nixon, and we know how that turned out. Sure I had to see him.

And there he was, saying that, like Barack Obama, he thinks the crisis on the border is a humanitarian crisis, and that the real victims are the tens of thousands of unaccompanied kids who have made the terrifying journey from Central America. And it’s worse, he says, than you think — that these kids have been traumatized, abused and more. He offers up terrifying detail.

But, of course, that was only the start for Cruz, who is doing all he can to stop any Senate compromise on Obama’s $3.7 billion request to address the crisis. This is the same Cruz who pushed the government to a shutdown. It’s the Cruz who looks at a crisis and sees a potential showdown.

Cruz talked about ‘reuniting’ children with their families, as if their families hadn’t just spent a year’s salary to try to get these kids to the United States.

And so, he gives a three-part critique:

One, he says the crisis is all Obama’s fault, except for the part of the blame that belongs to Harry Reid.

Two, he says that that if Obama and the Senate and the country would just give up on the DREAM Act and, of course, “amnesty,” that the crisis would resolve itself.

And three, he says the humane thing to do is to send the traumatized and abused kids back where they came from, now. Which isn’t all that different from what Obama is saying: To send back most of the kids — those who can’t prove refugee status — soon.

Still, try to work that one out. Trauma. Abuse. Deportation. No trial or hearing. Humane. Which one doesn’t belong?

It’s a tricky business, and Cruz doesn’t exactly pull it off. He blames Obama who, he says, “unilaterally granted amnesty to 800,000 who had entered here as children. It was specifically targeted at children.”

He says that’s what caused the spike in unaccompanied children at the border. And that “the only way to stop the problem is to stop the promise of amnesty.”

Unless it’s to finally pass the long-broken promise of immigration reform — which Cruz, the son of a Cuban immigrant, has strongly opposed — and to stop using the word “amnesty” in every other sentence, particularly when Obama hasn’t given amnesty to anyone.

In any case, Cruz makes a better case than Rick Perry, another Texan who’s probably running for president. Perry had just returned from another trip to Iowa in time to announce he’s sending 1,000 National Guard troops to the border. Even though no one has asked for them. And even though the Guard can’t legally detain anyone or physically move anyone back across the border or do much except support the Border Patrol, which hasn’t asked for their support.

“I will not stand idly by while our citizens are under assault and little children from Central America are detained in squalor,” said Perry, who had previously suggested that the Obama administration was part of a conspiracy to bring little Central American children to America where eventually they would escape the squalor and become Democrats.

And here’s the kicker: The state of Texas is sending in the troops, which no one has asked for, and plans to send the bill to Washington. The cost is around $12 million a month — for what Perry is calling “Operation Strong Safety,” which sounds like a football play. It would be almost funny, except for humanitarian-crisis part.

That’s the part Cruz wants to stress. He tells of going recently to Lackland Air Force Base, where 1,200 kids were being kept. He said senior officials there told him what happens after families give their children to the coyotes, who work for the drug cartels.

“Sometimes these drug cartels would keep these kids hostage,” Cruz is saying at a news conference following his Denver speech, “and try to extract ransoms from the families. And if the families won’t, or can’t, pay more, horrifically these drug cartels are severing body parts from these children and sending them to the families. And the same official at Lackland described to me how they would put a machine gun to the head of a little boy or girl and force that child to cut off a finger or an ear of other little boys or girls. And so on our end, we’re having children who have been … horribly maimed, others of whom who have serious psychological damage…”

And so, I ask him, how exactly can it be humane to just send back maimed and psychologically damaged children to someplace where they might be maimed and damaged again.

He didn’t answer the question. He talked instead about “reuniting” children with their families, as if their families hadn’t just spent a year’s salary to try to get these kids to the United States.

It’s a fair argument to ask what has caused the surge of children on the border. Is it the terrible violence in Honduras — now the world’s murder capital — as well as El Salvador and Guatemala that has turned these kids into refugees? Or is it the chance that what Cruz calls “amnesty” — Obama’s executive order to defer deportation of those who arrived here as children by 2007 — would include them in 2014?

The answer is obvious. It’s not one thing that caused the surge. It’s never one thing. Which is where Cruz’s argument finally falls apart. Does he really think parents would continue to send their kids off with drug cartels to be maimed, killed or worse for an oft-broken promise? I didn’t even have to watch him speak to promise that he doesn’t.

[ Honduran student by Katie Yaeger Rotramel ]

Littwin: The Great Colorado Fracking Wars

Drilling rig1


AS we head into the next stage of the Great Colorado Fracking Wars, one thing is becoming increasingly clear: Jared Polis has backed himself into a corner – and there may be no way out.

Even Polis seems to realize this. He’s suddenly very quiet. When asked about taking the initiatives to the polls, he says things like there still might be another way to get this done. Certainly the stakes have gotten really high – and the lineup of possible losers is as long as Dick Monfort’s email list.

Polis is an ambitious guy who hit upon an interesting idea — he would use his money (he always uses his money) to force all the parties in the fracking debate to the table, whereupon they’d work out a compromise (or else), and he’d be the hero or maybe the anti-hero, which, to Polis, is much the same thing.

The or-else, of course, would be putting fracking on the ballot, backed by Polis’ money, turning the issue into a $60 million smackdown, of which the only thing you could safely predict was that someone would, in fact, get smacked.

What could go wrong?

Well, the or-else could fail, and the chance for a special legislative session would die. The oil companies, who had to compromise, wouldn’t. The Republicans, who never figured to compromise, wouldn’t. And many Democrats, who would normally be lining up with the environmentalists, would be afraid that doing so could be a disaster for them. (The Democrats may be wrong on that. But, interestingly, there’s at least one group that agrees with them: Colorado Republicans).

And if the initiatives lose and the top Democrats lose, Polis could be remembered as the Democrat who lost Colorado, which can’t be a good look for a guy who has ambition for a Democratic leadership position in the House. I’d be looking for an off ramp, too.

So, here’s where we are.

Establishment Democrats are furious with Polis. John Hickenlooper was angry enough that he not only took an actual stand, he stood with the oil and gas industry, saying he would do everything in his power to defeat the “radical” initiatives. (OK, don’t panic. When asked what he meant by everything in his power, he said it was just a figure of speech and that, basically, he’d do what he could.) Meanwhile, you know the last place that Mark Udall wants to be is on the wrong side of the environmental crowd. And yet, he had to oppose the initiatives, too. Hickenlooper tried to talk Polis down. Ed Perlmutter tried to talk Polis down. National Democrats tried to talk Polis down. The plan was to say there was progress, and that they’d get ‘em next time. Polis stuck with this time.

As I mentioned, the people most likely to agree that this is bad for Democrats are Republicans, which is why Hickenlooper couldn’t get a single one to sign on to a compromise. Still, I wonder if you know of any single-issue-voter pro-frackers. Me neither. Of course, the oil companies will spend all that money on TV ads, which can’t be good for Democrats or for people who watch TV. The bigger danger for Democrats, though, is not about fracking, but about whether the election becomes about Democrats and business and jobs. Hickenlooper wins if he’s the pro-business governor. And if not? Let’s just say Republicans will gleefully add Polis to their list of bogeymen (bogeypeople?) alongside Michael Bloomberg, Nancy Pelosi and Harry Reid.

And then there are the environmentalists, many of whom are also unhappy with Polis, even if they won’t say so out loud. But they didn’t really get a seat at the table. Many didn’t like the Polis legislative compromise that the Republicans rejected and about which they weren’t consulted. Some don’t think the initiatives go far enough.

And finally there are the oil and gas people, who are risking more than anyone – and for no good reason. They had to compromise – and didn’t. They apparently want this showdown, thinking that Colorado is a relatively inexpensive state in which to fight. But they should also know that Colorado is one of the greenest states in the country. If there’s any place that oil could lose, it’s right here – and particularly with Polis bankrolling the other side. If the initiatives win, and make into the Colorado constitution, it’s a huge setback for oil and gas. If the oil companies win, the fracktivists will be back in 2016 anyway. If there are more frack-quakes in Colorado, if there’s some environmental disaster — whether or not it has anything to do with fracking, whether or not it’s even in Colorado — oil could lose. A compromise should have been an easy call — aren’t these guys all about the bottom line? — but politics got in the way.

So, what happens next? No one really knows. This is interesting territory. I’ve talked to a lot of political people in the last few days, and the only consensus is that there isn’t any consensus.

There are some near-term possibilities, though.

The initiatives could draw so many signatures that the oil companies see the real risks involved – and back down. It wouldn’t be too late for a surprise special session.

The initiatives could fail to get enough signatures by Aug. 4 – particularly if Polis were to slow the money — and Polis could blame dysfunctional politics and politicians and vow to be back.

Or there could be a mysterious Plan B that I’ve heard discussed that would give Polis an out, although one Democratic insider put it to me this way: “We’d need a Plan C, D and E.”

[Photo by Skyler Leonard]

Littwin: A humanitarian crisis that brings out the worst-in us

Rushing to send children back to violence

building in Sula


There is a rush to send the children back. That’s the message we get from Washington.

There are 50,000 unaccompanied minors at the border now. The number may grow to as many as 90,000 by year’s end. It doesn’t seem to matter so much why they came here, just so long as they go.

We hear stories. We hear awful stories. Stories of rape and murder and even dismemberment. There is the now famously sad quote from the young boy to the Women’s Refugee Commission:
“In El Salvador, there is a wrong — it is being young. It is better to be old.”

The young are being targeted. They are forced to join gangs or they refuse to join gangs. It’s hard to know which is more dangerous. Young girls are taken and raped or worse.

And yet, what seems to matter most in Washington is that the children are dealt with, as quickly as possible. And then go.

We know they have come, in the main, to escape poor, gang-infested countries with weak, corrupt governments. We know they come from Honduras, which has the highest murder rate in the world, and from El Salvador and Guatemala, which also both rank among the leaders. We hear the stories, and we can’t really doubt they’re true.

It is definitely a true border crisis, but mostly a humanitarian crisis, and one that defies easy solution.

Some children come on their own, risking everything, often seeking a parent who has already made the trip. If their desperate parents in Central America have sent them, the voyage costs a year’s pay or more, which goes to the coyotes, who sometimes pass the children off to the Mexican drug cartels. The children come, and many are abused along the way and some even die. They come and when they cross the border, they turn themselves in to the nearest Border Patrol agent and hope for the best.

That’s not exactly an invasion, as some would call it. But what exactly is it, other than repeated tragedy?

The United Nations High Commission on Refugees released a study in which it interviewed 404 of the children, and 58 percent said they were fleeing violence. They flee just as refugees flee in Syria or Iraq or from any war zone. The numbers tell the story. The children who arrive in the United States – and in other countries in the region, too — come from cities where the violence is the most serious.

If the children reach America as refugees, they get a hearing. That’s part of the lure. But the law is different for Mexican (and Canadian) children, who can be sent home immediately if they can’t show they are endangered. And what we hear from many in Washington is that we need to change the laws so that children from Central America are treated the same way – quick hearings and quick work. Barack Obama is asking for $3.7 billion to get the necessary resources to the border, but the money, you can bet, will come with strings.

No one seriously doubts the level of violence or lawlessness. Statistics gathered by Vox say that civilians are twice as likely to be killed in those three countries today than Iraqi civilians were at the worst moments of the Iraq war.

And so you’d think, whatever else we do, our first priority would be to make sure the children were safe, to make sure that before we send anyone back, we know we are not sending them to their deaths.

We are a generous people. We care about children in far-away lands, kidnapped children with hashtags to know them by. But these children who have crossed our border are somehow seen differently. They’ve crossed our border illegally, and so they must go back.

To think otherwise, writes conservative wise man Charles Krauthammer, is “nonsense.” There has always been violence and poverty in Central America, he said. Why should now be different?

It’s hard to know what to make of this, other than a willful refusal to look. A story in the New York Times tells of 60 bodies stacked in a morgue, one night’s work in the violent streets of San Pedro Sula, Honduras. The story goes on to say that 2,200 children who crossed the border from January through May came from San Pedro Sula.

Still, in Washington the response – or at least the loudest response — comes with pointed fingers, most of them pointed at Obama for slowing deportations of so-called Dreamers. It’s an awful sight: in the face of a real crisis, not a fake Washington crisis, there are politicians waving the flag of dysfunction for the world to see.

Obviously, we have to do better. Yes, the issue is complicated. It’s complicated because we don’t want children making this dangerous trip. And it’s complicated by the politics of immigration, which rarely brings out the best in us and sometimes the worst — like those California protesters yelling at a busload of kids. But this is a humanitarian crisis, and these are children, and something must be done.

David Gergen — who wrote a piece for CNN comparing this crisis to a time 75 years ago when America turned away German Jews fleeing the Holocaust – suggests that we set up safe zones in Central America, where we can send the children back and ensure their safety. Others have proposed setting up places in Central America where people can seek asylum without the risk of leaving the country.

And then there are those who would tell desperate children that the only crisis is that they came here at all.

[Photo of buildings in San Pedro Sula, Honduras, by bergistheword via Flickr]