The ACLU has been trying to get these photographs of US prisoner abuse released for years. The Second Circuit Court of Appeals ordered that the photos be released to the public last year, but then Congress enacted a bill allowing the Secretary of Defense to exempt the photos from FOIA requests, because Congress and the DoD are both terrible. So, in light of that new legislation, the Supreme Court has ordered the appeals court to reconsider their ruling. Which means probably no torture photos.

The New York Times reported that Kennedy's office demanded prior review of the Dalton student paper's story about Kennedy's talk there, a brave story that Bill Keller greenlighted despite a clear and present danger to his candidacy for Dalton's Favorite Dad. Now, Kennedy tells the rival WSJ his side of the story:

In an interview Tuesday, Justice Kennedy said he never asked to clear the copy before publication. He said the request came from a new employee who misunderstood his longtime rule for classroom visits: no outside media, but campus reporters are welcome.

Also he says he loves student reporters and seeks to protect them from professional reporters, who are professionally obligated to mock their stupid, stupid nerd idiot questions they always ask a Supreme Court Justice, like "How are you going to vote on this case?" God, shut up, stupid high school reporters. You are seriously retardo. If you go snitching to the Supreme Court again I swear. You'll get something a lot worse than prior review.
[Pic: Getty]

It all began with a mysterious note from the editors of The Daltonian, The New York Times explains:

"We are not able to cover the recent visit by a Supreme Court justice due to numerous publication constraints," the note said. It promised "an explanation of the regrettable delay" in the next issue.

Apparently Justice Kennedy spoke at a Dalton assembly, and his office insisted that school give Kennedy final approval on any article the little rugrats put together on him—then sent back a revision with "a couple of minor tweaks" and "tidied up" quotations. Enraged, Dalton's student civil liberties union took to the streets, smashing the windows of nearby Bentleys and littering the streets of the Upper East Side with Molotov cocktails, until their sassy schoolgirl uniforms were rended from their sweaty, heaving chests and their ranks swelled into a wildly fevered, anarchic orgy!

Just kidding. They're college-obsessed teenagers with parents who would totally ground them if they screwed up their chance at Harvard over some silly SCOTUS spat. (Besides! Maybe your censor from Justice Kennedy's office can give you some pointers about summer internships.) They're doing whatever their school's PR department tells them to do, which is apparently to go with "no comment" when NYT comes calling, and to let the responsible adults in the room issue gracious statements about the pedagogical value of factchecking. Besides, the ability to keep your publication friendly with the powers that be is a skill that comes in handy in journalism these days!

The case in question involves one Robert J. Stevens, who sold "pit bull training" videos that feature dog fights as, he says, cautionary tales on what happens when vicious beasts are used for evil, not good.

Well, people found the tapes themselves to be evil and Stevens was charged under a federal law the forbids to distribution of videos that depict "animal cruelty." (That law, by the way, came into being to stop "crush videos," which showed stiletto-clad women crushing small animals. Apparently people were getting off on such things back in the 1990s. Who knows? People are weird.)

Now the Stevens case has made it to the highest court in the land and animal activists want to justices to prohibit all dog fighting videos in the same way it prohibits kiddie porn, which hardly seems like a fair comparison, but alright. Others, like the New York Times editorial board, worry about the free speech implications:

All 50 states have laws against animal abuse. The best way to fight animal cruelty is to enforce these laws more vigorously and to increase the penalties. Anyone with an ounce of decency should be tempted to ban animal-abuse videos, but anyone with an appreciation for the First Amendment understands why we cannot.

Hip to this whole "free speech" argument, the American Humane Society offers a weak counter point:

While supporters of Stevens' position include many "freedom of speech" proponents who do not necessarily condone animal cruelty, American Humane believes that this law is necessary and does not infringe on the true intent of the First Amendment.

Er. We're going to have to go with the Times on this one. Sure, dog fighting's cruel and people who watch the movies are not quite right in the head, but if footage ends up being restricted, then even lowly bloggers such as ourselves could get in trouble for posting a picture like the one that illustrates this story. As the Times says, "There is no clear way to sort through all of the covered expression to determine who should be held criminally liable and who should not."

Regardless of what happens, someone's going to be unhappy. If the Justice's rule in Stevens' favor and say free speech laws protect these videos, then the animal activists will be upset. If the court goes the other way, then free speech activists are pissed. Those who don't know where they stand will probably just be so confused that their heads explode.

The lesson here: justice serves only some of the people some of the time, not all of the people all of the time. The only way to really solve this would be to fight to the death. Oh, shit: can we say that?

Politico's Josh Gerstein caught the news in the list of appeals that the Court declined to hear released this morning. When the Church of Scientology finally settled with the IRS in 1993 after years of litigation and black-bag operations conducted by the church against the IRS and FBI over the issue of whether Scientology was a proper religion—and thus qualified for tax-exempt status—the IRS agreed to let Scientologists deduct the cost of "auditing" from their taxes. Other poor saps in less litigious cults don't get similar allowances from the IRS, so Michael Sklar of Los Angeles sued to get the same standard applied to his own expenses for the religious education of his children.

Sklar lost in tax court and again on appeal, and today's decision by the Court ends his 15-year legal battle. Gerstein says the commitment in the 1993 settlement that allowed the deduction expired in 1999, and its not clear whether the IRS still lets Scientologists get audited tax-free. Anyway—if you pay thousands of dollars to send your kid to a yeshiva, you have to pay taxes on that. If you pay thousands of dollars to have them hold metal cans attached to a battery and tell lies about their past lives on distant planets? Eh, the feds might cut you a break. Why not?

Stevens has apparently hired only one law clerk for next year's term, while he usually has hired all four by this point. Which means maybe this coming term is his last one! But he won't say, because you are always supposed to be totally caught off-guard when a Supreme Court Justice retires, it is tradition.

Stevens, as we mentioned, is part of the "liberal wing" of the Supreme Court, which means he was appointed by a Republican, is opposed to affirmative action, and does not think flag-burning is Constitutionally protected speech. (But the Rehnquist and Roberts eras have basically made him into a full-on commie because these people on the court now are straight-up nuts. Seriously, it is hard to make people become more liberal as they age, it is an impressive achievement by these "originalist" psychos.) And the "liberals" tend to not like to retire or die when Republicans are President, because Republicans replace them with folks who will spend their lifetime terms undoing everything the retiring or dying justice spent his own lifetime term trying to accomplish.

And a Stevens retirement would be great news for fans of months-long nightmarish political circuses! When David Souter retired, the political class put on an amusing dress rehearsal of the first year of the Obama presidency: Obama did something expected and fairly moderate, and the Republican opposition responded with hysteria and scorched earth campaigning against it. Sonia Sotomayor was the judicial equivalent of a health care proposal of modest insurance reforms and a limited public option. Also she was a racist radical and any health care reform is Nazi Socialism.

Can you imagine what would've happened if Obama had actually gone left with either of those picks? Oh, wait, the opposition would've been precisely the same. They reacted as if he had Gone Soviet, because it is simply about destroying his presidency and picking up 2010 seats, not about anything as unimportant and frivolous as Policy or Ideology.

So Obama will probably again pick someone qualified and moderate-to-soft liberal, and then we will again have literally months of formerly intelligent-seeming people saying "I am not comfortable voting for someone whom I know to be a big fan of genocide against White Males."

John Paul Stevens, if you just sit tight until February of 2011, you'll be the oldest sitting justice in the history of the court! Don't quit now, John Paul! You can do it!

[Photo: AP]

The number of Republicans expected to vote for her was nine as of yesterday (and those expectations were correct), but it was always 40 de facto votes for her, as the GOP never threatened to filibuster, making the confirmation of a Supreme Court justice one of the few matters the Senate is willing to settle with a straight majority voice vote (after she got out of the Judiciary committee, obviously.) No one is sure where Sotomayor actually is right now, but she's expected to be sworn in tomorrow morning.

John McCain, asshole, voted against her. Robert Byrd, who is very old and very ill, showed up to vote for Sotomayor. Ted Kennedy did not.

Barack Obama is expected to speak momentarily.

It was an anticlimactic end to the confirmation "battle." As the right-wing talk radio nightmare of Senator Al Franken presiding over the confirmation of a fiery anti-white racist Latina Supreme Court justice unfolded without incident, the loud and constant threats and lies of the right-wing message machine suddenly seemed a bit ineffective. The NRA waded into a judicial nominee for the first time ever, but it made no difference. Pat Buchanan took up the banner for aggrieved white male victims of discrimination, misinformation was relentlessly spread, and white firefighters were trotted out to call her names, but here we are. Maybe we will get health care?

[Photo: AP]

Asked by Maddow why it was that 108 out of the 110 United States Supreme Court justices have been white, Buchanan said the following:

I think white men were 100% of the people who wrote the constitution, 100% of the people who signed the Declaration of Independence, 100% of the people who died at Gettysburg and Vicksburg, probably close 100% of the people who died at Normandy. This has been a country basically built by white folks.

This whole clip is especially cringeworthy because we actually find Buchanan kind of endearing from time to time. He is not anything close to endearing here, and Maddow pretty much slices him up.

Which is weird! Because, see, the prosecutor on that show never won. It's funny! Then Al sort of rambles a bit about how Sonia watched Perry Mason in the Bronx, as a child, with her mom, and he watched in St. Louis Park, as a child, with the Coen brothers (j/k!), and now she is going to be on the Supreme Court, and that's "pretty cool."

This is obvious proof that he lacks the depth and gravitas necessary to be a US Senator. Unlike, say, Tom fucking Coburn.

Today was the day for statements to be made, Glenn. Nothing more. The questioning of Sonia Sotomayor will commence tomorrow. But we do actually agree with you on one thing—Lindsey Graham is a bit of a worm.

Video via Media Matters

Roberts meant that, you know, he is a blank slate completely dispassionate and free of biases. Like umpires! And, as we all know, umpires always accurately call balls and strikes, based on the official strike zone as described in the rule book.

The fact that Roberts made such a clear and easy to comprehend sports metaphor instead of saying something specific and useful about his "philosophy" meant that half the Senators blathering on at Sonia Sotomayor in today's hearings felt compelled to use the same crappy sports analogy, except John Cornyn, who called judges "quarterbacks."

This is all a very compelling reason to believe that a wise Latina woman would probably make a better Senator than another old white man.

Our own Mike Byhoff put together this compilation of great rhetoric from the World's Greatest Deliberative Body.

The spasm of raw and overt white rage on the part of conservatives in reaction to Sotomayor's nomination has been widely noted. It's sad because it's racist and awful and depressing, but it's also sad because the Republican Party, which used to be undisputed masters of subtle and coded racial suggestion, has devolved into repeating obviously and conspicuously racist diatribes. They're actually saying out loud the things that they are thinking and saying to one another in private, which is never a good idea.

Lee Atwater, the Republican Machiavelli who engineered the infamous "Willie Horton" ads against Michael Dukakis in 1988, would be rolling over in his grave if he hadn't renounced his political tactics on his deathbed in 1991. Here's Atwater explaining in 1981 how a pro uses racism in a national political campaign:

You start out in 1954 by saying, "Nigger, nigger, nigger." By 1968 you can't say "nigger" — that hurts you. Backfires. So you say stuff like forced busing, states' rights and all that stuff.

It's called "dogwhistle" politics, and it only works when dogs are the only ones that can hear the whistle. In the Sotomayor case, the dogs are the increasingly contracting Republican base of aggreived southern and exurban whites who resent dirty Mexicans. But when Newt Gingrich says Sotomayor is getting a pass because she's Puerto Rican, or the National Review says she's a foreigner because of the way she pronounces her name, or unnamed Republicans on the hill wonder how her love for strange Puerto Rican food will affect her judicial temperment, or Rush Limbaugh calls her a "reverse racist," or Pat Buchanan says she will hurt white males, or Rep. Tom Tancredo (R-Colo.) says she belongs to the "Latino KKK"—they're just whistling. We can all hear them. And, as Atwater said, it backfires.

But Republicans used to know that. The GOP used to be so proficient at the dogwhistle that nonracists would tie themselves into knots trying to unmask Republican attacks for what they were. The Willie Horton ad; Jesse Helms' "white hands" ad, in which a pair of white hands crumples up a rejection notice saying a minority has gotten the job he applied for; Ronald Reagan's Cadillac-driving welfare queen—these were calibrated to walk up to the line of "nigger, nigger, nigger" and stop just short of it. They retained a shred of plausible deniability. That's not to say that the GOP of the '80s and '90s never engaged in overtly racist messaging. It's just to say that they were really good at the coded ones when it suited them.

The Republican opposition to Sotomayor, on the other hand, is shouting "Puerto Rican, Puerto Rican, Puerto Rican!" Their fatal mistake is in openly insisting that Sotomayor's heritage is the reason she got where she is. Gingrich didn't just say that her remarks about considering her ethnicity in her judicial decision-making are troubling, or even racist—he had to add that the only reason no one's calling her out on it is that she's Puerto Rican and a woman. The National Review's John Derbyshire didn't wonder about her position on affirmative action—he said she was "blessed by Providence with the precisely correct right race-gender two-fer for the moment."

Gingrich's retraction probably signals the end of the Sotomayor racist feeding frenzy. But if Atwater were still around, he would have been writing memos urging GOPers not to make fun of her name, but to instead ostentatiously pronounce it in as foreign-sounding a way as possible and then sheepishly apologize if they get it wrong. He'd be telling them not to utter the words "Puerto Rican," but to find a current case involving English-only legislation and wondering what her take would be on it. He'd be telling them not to talk about strange foods, but to find a way to bring up illegal immigration. Or to talk about being tough on crime. Or forced busing. State's rights. All that stuff.

Yes, she'll ruin the pleasant bonhomie of the court, with her fiery tongue and her spicy, uh, questions. Keep in mind that Roberts and Scalia are currently running oral arguments as, in the charitable and complimentary description of USA Today, an Abbot and Costello routine. Conservatives literally get hard-ons when they read transcripts of Roberts and Scalia mocking some jerk-off non-profit lawyer.

Wondering aloud about how many meetings between White House officials and religious groups would violate the Constitution, Roberts and Scalia launched into a back-and-forth dialogue that at one point resembled Abbott and Costello's Who's on First? routine:

Roberts: "Five meetings isn't enough. How many?"

Scalia: "What about 10?"

Roberts: "20?"

Scalia: "I was about to ask 20."

Spectators in the white marble courtroom laughed.

The image associated with this post is best viewed using a browser.Here is Antonin "Nino" Scalia (pictured, in a typical pose of serious judicial restraint, at left) questioning the lawyer of a Mexican gentleman:

Justice Scalia says that "the doctrine of standing is more than an exercise in the conceivable. … Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States."

Hah! Mexicans are drunk! Scalia is "feisty" and "lively"!

So maybe, New York Times judiciary experts, your story here should not be the millionth "she's a total bitch, lawyers say" piece. Maybe it would've actually been a better bit of analysis if you'd examined why, exactly, President Obama might want someone with a "lively" style of questioning during oral arguments on a court dominated by the originalist Beavis and Butthead.

Or we could all drop our fucking monocles because she interrupted a government lawyer once. She was probably drunk on mezcal too!

Avery Doninger (pictured with her mother and lawyer), a student at Lewis Mills High School in Burlington, Conn., called her school superintendent a "douche bag" on her personal blog in 2007 because she thought—erroneously—that the school was canceling its Battle of the Bands. When the school got wind of the insult, it barred her from being re-elected as class secretary as punishment. Doninger and her mother sued, claiming—correctly—that teenagers are allowed to write whatever they damned-well please on their personal blogs when they're not at school.

When the case came to Sotomayor's court on appeal, the blogger-hating judge joined with the majority in ruling that Doninger's comment had carried a "foreseeable risk of substantial disruption" and that she wasn't entitled to an injunction barring the school from punishing her.

Even Jonathan Turley thinks that's bullshit:

"The continual expansion of the authority of school officials over student speech teaches a foul lesson to these future citizens," said Jonathan Turley, a law professor at George Washington University. "I would prefer some obnoxious speech [rather] than teaching students that they must please government officials if they want special benefits or opportunities."

Doninger plans to appeal to the Supreme Court.

While we obviously support Doninger's First Amendment right to say what she wants to on LiveJournal, we do admit to being torn on this one: "Douche bag" is a grievously overemployed epithet, and sanctions on its use can't be all bad. Maybe Doninger will take a little time to come up with a more creative insult next time. The internet needs them!

[Via Drudge.]