Month Archives: February 2009

Judd Gregg and the Fairness Doctrine

by Chris Gacek

February 4, 2009

President Barack Obama’s decision to nominate Senator Judd Gregg (R-NH) to head the Commerce Department has at least one interesting ricochet.  How will Gregg affect Obama administration policy toward reimposition of the Fairness Doctrine?  The Commerce Department contains one of the federal telecommunications regulatory agencies, the National Telecommunications and Information Administration (NTIA).  It appears that NTIA would have no direct role in matters pertaining to the reimposition of the Fairness Doctrine ….that capacity lies solely within the jurisdiction of the FCC and Congress.  Of course, judicial review would occur also.

That being said, what is Senator Gregg’s position on the Fairness Doctrine?  Well, Save Talk Radio Dot Org posted the text of a press release from Senator Norm Coleman’s office dated July 13, 2007.  The release states that on that date Senate Democrats blocked an amendment “to the Defense Authorization bill that would prohibit the Federal Communications Commission (FCC) from reinstituting the Fairness Doctrine….”  One of the amendment’s co-sponsors was Senator Judd Gregg. 

Even though Commerce/NTIA would not play a direct role in this matter, as a department secretary whose portfolio does touch on telecommunications issues, Judd Gregg would be better positioned to present a pro-First Amendment case to the President and the Obama cabinet.  He would certainly be much better placed to let the President know the sort of nuclear political war he will start should an Obama FCC go down that path.

Hopefully, Senator Gregg will be reminded of this 2007 vote during his confirmation hearing.

Daily Buzz

by Krystle Gabele

February 4, 2009

Here’s what we are reading this morning.

Planned Parenthood Cover-ups, Round Three

by Jared Bridges

February 4, 2009

Indiana doesn’t have the corner on the market for the “wink, wink — we’ll take care of you” style of illegal abortion counseling. Lila Rose and the crew from Live Action go undercover into an Arizona Planned Parenthood where instead of reporting statutory rape, a worker counsels a young girl to keep silent:

Change Watch Backgrounder: Robert Gates

by Family Research Council

February 3, 2009

Position: Secretary of Defense

NOMINEE: Robert Michael Gates

BIRTHDATE: Born: September 25, 1943 (age 65)

PERSONAL INFORMATION: Boy Scout & Eagle Scout; (Former president of the National Eagle Scout Association), 2007: Time Magazine named Gates as one of the most influential people,

2008: Named one of America’s Best Leaders by U.S. News & World Report

Political party: Independent/ Republican

EDUCATION: Georgetown University (Ph.D. Russian and Soviet History), Indiana University (M.A.  History), College of William & Mary (B.A. European History)

FAMILY: Spouse Becky Gates (Married 1966); Two Children: Bradley & Eleanor



1966: Recruited by the Central Intelligence Agency as a graduate student at Indiana University

1967-1969: Intelligence Officer, United States Air Force

1969: Central Intelligence Agency

1974: White House National Security Council (President Ford)

1979: Central Intelligence Agency: Director of the Strategic Evaluation Center

1981: Central Intelligence Agency: Director of the DCI/DDCI Executive Staff

1982: Deputy Director Central Intelligence Agency (President Reagan)

1989: National Security Advisor to the President (President George H.W. Bush)

1991: Director of Central Intelligence Agency (President George H.W. Bush)

1993-1999: Lecture Circuit

1999-2001: Interim Dean of the George Bush School of Government & Public Service at Texas A & M University

2002-2006: President of Texas A & M University

December 18, 2006: 22nd Secretary of Defense

BOOK: 1996, Gates’ autobiography, From the Shadows: The Ultimate Insider’s Story of Five Presidents and How They Won the Cold War.


Presidential Citizens Medal

National Security Medal

National Intelligence Distinguished Service Medal (2 awards)

Distinguished Intelligence Medal (3 awards)

Eagle Scout

Distinguished Eagle Scout Award

Honorary Doctorate of Humane Letters from College of William and Mary

College of William and Mary Alumni Association - Alumni Medallion

Corps of Cadets Hall of Honor (First Non-Corps Honoree) - Texas A&M University

George Bush Award (2007) - George Bush Presidential Library Foundation



Secretary Gates has not expressed a personal opinion on President Obama’s proposal to repeal the law which excludes homosexuals from the military. In March 2007, Marine Gen. Peter Pace, chairman of the Joint Chiefs of Staff, sparked controversy by telling the Chicago Tribune, “I believe that homosexual acts between individuals are immoral and that we should not condone immoral acts. I do not believe that the armed forces of the United States are well served by saying through our policies that it’s OK to be immoral in any way.” Gates responded in an interview on the Pentagon Channel, saying, “Now look, you know I think personal opinion really doesn’t have a place here. What’s important is that we have a law, a statute that governs ‘don’t ask, don’t tell’ … That’s the policy of this department, and it’s my responsibility to execute that policy as effectively as we can. As long as the law is what it is, that’s what we’ll do.” [Source]

According to National Public Radio, “Senior Pentagon officials privately said the defense secretary summoned Pace to his office after the comments came to light, and demanded he put out a statement.”  Pace did so, stating, “In expressing my support for the current policy, I also offered some personal opinions about moral conduct. I should have focused more on my support of the policy and less on my personal moral view.” Three months later, Gates announced he was replacing Gen. Pace as chairman of the Joint Chiefs rather than renominating him, expressing concern about a “divisive ordeal” that would have focused on the “past rather than the future.” [Source]

In the spring of 2008, it was reported by Politico that “House Speaker Nancy Pelosi was forced to intervene with Defense Secretary Robert Gates in order to get Democratic Rep. Tammy Baldwin’s domestic partner on a military flight for a congressional fact-finding trip to Europe… Under House guidelines, members of Congress may take their spouses with them on military flights,” but “military officials were apparently unwilling to consider Azar a ‘spouse.’” A Pentagon spokesman insisted that the travel rules are set by the House, not the Pentagon, and that the decision to waive the normal spousal requirement rested with Pelosi, not Gates: “Secretary Gates honored a request from Speaker Pelosi to make an exception to the House rules.”

Secretary Gates was also the named defendant in a court case seeking to overturn the law barring homosexuals from the military, but the Department of Justice actually handled the case in court. On June 9, 2008, the First Circuit Court of Appeals upheld the current law in Cook v. Gates. [Source]

What Would You Buy With a Trillion Dollars?

by Family Research Council

February 3, 2009

CBO estimates that the Senate version of the so-called stimulus plan will top at least $1.1 trillion. Trying to wrap my mind around that I found some interesting figures what you trillion.jpgcould get with a trillion dollars. Some examples:

If you stack up $1,000 bills, $1 trillion would need a pile that is 80 miles high.

$ 1 trillion is more than the combined gross revenues of Wal Mart, Exxon, General Motors and Ford Motors.

Assuming the United States consumes about 17 billion barrels of oil a year and assuming the cost of a barrel of oil is about $65, a trillion dollars will buy an entire year’s worth of oil for the USA.

You could buy a thousand Queen Mary 2 with accommodations for 2,620 passengers

With a population of approximately 300 million people, you could give away $1 trillion by giving every man, woman and child in the U.S.$ 3,400 each.

We could buy everyone on Earth an iPod.

We could pave the entire U.S. interstate highway system with 23.5-karat gold leaf.

We could buy 16.6 million Habitat for Humanity houses

We could hire 1.9 million additional teachers

In my search I found a great website that helps you buy luxury and charitable items trying to add up to a trillion dollars. It was based on the spending involved with the Iraq War, but it works with out of control spending too. Here is the list I came up with:

You could buy:

8,700 Porsche 911 Turbos ($126,000 each): $1,097,940,000

New York Yankees: $1,200,000,000

New York Mets: $482,000,000

Every NFL Franchise: $8,600,000,000

Dracula’s Romanian castle: $140,000,000

1,000 60SE Lear jets ($11,595,000 each): $11,595,000,000

Denver International Airport: $4,822,000,000

10 Picasso’s (113,400,000 each): $1,134,000,000

Hard Rock Casino in Vegas: $770,000,000

Hong Kong Disneyland: $3,500,000,000

South Pacific Island of Katafanga: $38,900,000

Buy the whole world 100 cans of Coke: $650,000,000,000

Buy 50 Super bowl ads ($2,600,000 each): $130,000,000

Build 1,001 Habitat for Humanity houses (at $60,000 each): $600,060,000

Build 2,000 miles of Metro rail ($150,000,000 per a mile of track): $300,000,000,000

Build 250 hospitals in Third World nations ($41,300,000 each): $10,325,000,000

Produce your own Hollywood movie: $150,000,000

Buy the Maltese Falcon, the world’s most expensive yacht: $100,000,000

Buy 2 Napa Valley wineries ($34,000,000 each): $68,000,000

Buy 26 McDonalds’ franchises ($1,000,000 each): $26,000,000


Total: $1,000,000,000,000

Try it yourself here

Dwight Daschle

by Michael Fragoso

February 3, 2009

Everyone is now familiar with former Sen. Tom Daschle’s failure to pay upwards of $100,000 in taxes. Hoping to salvage his nomination as HHS secretary he undertook the usual DC kabuki theater of the heartfelt apology. Unlike the usual show, however, Daschle didn’t apologize exactly, instead he said, “”I am deeply embarrassed and disappointed by the errors that required me to amend my tax returns.” I, for one, thought I accidentally had tuned into a repeat of Sunday’s episode of The Office. See this exchange (at 16:10) -

Dwight [reading from a page]: I state my regret.
Jim: You couldn’t have memorized that?

Dwight: I could not because I do not feel it.

Daily Buzz

by Krystle Gabele

February 3, 2009

Here’s what we are reading today.

Change Watch Backgrounder: David Ogden

by Family Research Council

February 2, 2009



NOMINEE: David Ogden

Born: November 12, 1953

Family: Wife, Anne Harkavy, and three children.

Occupation: partner at the Washington, D.C. firm Wilmer Cutler Pickering Hale and Dorr, co-running the firm’s Government and Regulatory Litigation Practice Group.

Education: B.A. summa cum laude from the University of Pennsylvania, 1976; J.D. magna cum laude in 1981 from Harvard Law School

Clinton White House: 1994-1995, Deputy General Counsel and the Legal Counsel for the United States Department of Defense; 1995 - 1997, Associate Deputy Attorney General in the United States Department of Justice; 1997 - 1998, Counselor to the United States Attorney General; 1998 - 1999, chief of staff to the United States Attorney General; 1999 - 2000, Acting Assistant Attorney General; 2000 - 2001, Assistant Attorney General in charge of the Civil Division in the United States Department of Justice.


On Abortion

In a brief for the American Psychological Association in Planned Parenthood v. Casey, he wrote: “Abortion rarely causes or exacerbates psychological or emotional problems.  When women do experience regret, depression, or guilt, such feelings are mild and diminish rapidly without adversely affecting general functioning.  The few women who do experience negative psychological responses after abortion appear to be those with preexisting emotional problems ….”

Ogden also wrote: In sum, it is grossly misleading to tell a woman that abortion imposes possible detrimental psychological effects when the risks are negligible in most cases, when the evidence shows that she is more likely to experience feelings of relief and happiness, and when child-birth and child-rearing or adoption may pose concomitant (if not greater) risks or adverse psychological effects ….”


Opposed Parental Notification by 14-year olds

In Hartigan v. Zbaraz, 484 U.S. 171 (1987), Ogden co-authored a brief for the American Psychological Association arguing that parental notification was an unconstitutional burden on 14-year old adolescent girls seeking an abortion. Excerpts:

There is no question that the right to secure an abortion is fundamental.” (p. 10).

By any objective standard, therefore, the decision to abort is one that a reasonable person, including a reasonable adolescent, could make.” (p. 11).

[E]mpirical studies have found few differences between minors aged 14-18 and adults in their understanding of information and their ability to think of options and consequences when asked to consider treatment-related decisions. These unvarying and highly significant findings indicate that with respect to the capacity to understand and reason logically, there is no qualitative or quantitative difference between minors in mid-adolescence, i.e., about 14-15 years of age, and adults.” (p. 18).


Miscellaneous Abortion filings

In Rust v. Sullivan, 500 U.S. 173 (1990), Ogden served as counsel to People for the American Way, the National Education Association, and others supporting petitioner’s claim that abortion is a method of family planning that should be eligible for federal funding.

In Scheidler v. National Organization for Women, 537 U.S. 393 (2003), Ogden co-authored the brief for the respondent NOW and several abortion clinics. They sought permanent injunctive relief under RICO, which was originally aimed at fighting organized mob crime, against pro-life protestors from Operation Rescue and the Pro-Life Action League. Available on WestLaw as 2002 WL 31154781.

See also Gonzales v. Oregon,  546 U.S. 243 (2006), where Ogden served as counsel of record on behalf of law professors filing an amicus brief supporting Oregon’s Death with Dignity Act and opposing the Ashcroft Directive barring assisted suicide. Available on LexisNexis as 2004 U.S. Briefs 623.

On Homosexuality

In Lawrence v. Texas, 539 U.S. 558 (2003), Ogden served as counsel of record for the American Psychological Association, American Psychiatric Association, and the National Association of Social Workers filing an amicus brief in support of the defendants.

 “Of course, families headed by gay couples may encounter particular issues and challenges, much as families of racial and ethnic minority group members, low-income families, and single-parent families do.” (p. 21).

Although a shift in public opinion concerning homosexuality occurred in the 1990s, hostility towards gay men and lesbians remains common in contemporary American society. Prejudice against bisexuals appears to exist at comparable levels. Discrimination against gay people in employment and housing also appears to remain widespread. The severity of this anti-gay prejudice is reflected in the consistently high rate of anti-gay harassment and violence in American society.” (p. 23-24).  [Source]

On Gays in the Military

In Watkins v. United States Army, 875 F.2d 699 (9th Cir. 1989), Ogden filed an amicus brief on behalf of the American Psychological Association. In it, APA argued “(8) prejudice against lesbians and gay men in the Army is likely to be reduced by encouraging contact between homosexuals and heterosexuals; and (9) there was no rational basis for the Army’s exclusion of gay people.”


On Strict Scrutiny for Gay Rights Claims

In an article for the APA, Ogden called for “strict scrutiny” of claims by homosexual persons. American Psychologist, Vol. 46, No. 9, p. 950-956 (September 1991).


Pornography and Obscenity

Opposed the Children’s Internet Protection Act of 2000

In United States v. American Library Association, Ogden served as counsel of record for an amicus brief filed on behalf of fifteen library directors in support of the Association.

As a condition of receiving federal funds, Congress has - with the Children’s Internet Protection Act … - insisted that public libraries affirmatively censor constitutionally-protected material. By demanding that libraries be censors and devote resources - not to facilitating - but to interfering with patrons’ pursuit of information and ideas, Congress has subverted the role of librarians and public libraries and violated the First Amendment rights of library patrons.” (p. 3).

CIPA “impairs the ability of librarians to aid patrons seeking information.” (p. 11).


Challenged the Child Protection and Obscenity Enforcement Act

Ogden represented several communications trade associations challenging provisions of the Child Protection and Obscenity Enforcement Act of 1988. He convinced the court that requiring producers of pornographic materials to personally verify that models were over age 18 at the time the materials were made would “burden too heavily and infringe too deeply on the right to produce First Amendment protected material.” American Library Association v. Thornburgh, 713 F.Supp. 469, 477 (D.D.C. 1989).

Representation of Pornographers

Ogden represented Playboy Enterprises, among others, seeking an order forcing the Library of Congress to use taxpayer funds to print Playboy Magazine’s articles in Braille against the express wishes of Congress. American Council for the Blind v. Boorstin, 644 F.Supp. 811 (1986). Ogden represented Playboy Enterprises seeking an injunction against the inclusion of Playboy in a list of pornographic magazines that would potentially be included in the Meese Commission report. Playboy Enterprises, Inc. v. Meese, 746 F.Supp. 154 (D.D.C. 1990). Ogden represented a mail-order pornography distributor with a nation-wide business who complained of an allegedly unconstitutional multi-district prosecution strategy by the Department of Justice. P.HE., Inc., v. United States Department of Justice, 743 F.Supp. 15 (D.D.C. 1990) and United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir. 1992).

Ogden has filed numerous amicus briefs in pornography and obscenity cases before the Supreme Court of the United States, including Knox v. United States, 510 U.S. 375 (1993) (on behalf of the ACLU and others); Fort Wayne Books, Inc. vIndiana, 489 U.S. 46 (1989) (on behalf of mail-order pornography distributor P.H.E., Inc.); Virginia v. American Booksellers Association, 484 U.S. 383 (1988) (on behalf of the Freedom to Read Foundation); Pope v. Illinois, 481 U.S. 497 (1987) (on behalf of the ACLU and P.H.E., Inc.). See also Meese v. Keene, 481 U.S. 465 (1987) (on behalf of Playboy Enterprises, Inc., and the American Booksellers Association).


On Judicial Activism

Sen. Sessions: I was concerned about your comments on judicial activism or the meaning of our Constitution and how it ought to be interpreted in an article you wrote back in July 1986 concerning the Bowers case in Georgia . . .

Constitutional interpretation cannot be limited to ascertain the way a particular law would have been viewed by the Framers. While constitutional principles do not change, the society and individuals in whom they are applied do, and our knowledge about that society and those individuals improves with time.’

Then you noted the changing social context is as much a part of the constitutional issues to be decided as the statute itself because to ignore it is to fail in the court’s basic task, adapting the great outlines of the Constitution to the particular problems of each generation, and then you went on to make some other comments.” Hearing before the Committee on the Judiciary, 106th Congress August 4, 1999. 


Tobacco Litigation

Was a major player in the Clinton Administration’s efforts to profit from the numerous court cases against tobacco companies and releasing a statement on the day the suit was announced [Source].  He also testified before Congress in 2001 stating he believed the government had a strong case because of the tobacco industry’s “long-standing conspiracy to defraud the American public.”


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