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October 2013

How ironic. Just two days after NYC Police Commissioner Ray Kelly was shouted down at Brown University over NYC's Stop and Frisk policy, with many protesters citing a finding by a trial Judge of racial discrimination, the Court of Appeals for the Second Circuit has stayed the ruling, and kicked the trial judge off the case. (Full Order embedded at bottom of post.) In a short but scathing ruling, the Court of Appeals ruled that Judge Shira A. Scheindlin "ran afoul of the Code of Conduct for United States Judges":
Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a),1 and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.2 Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court’s mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals. In taking these actions, we intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued.

We previously have reported on the shout down of NYC Police Commissioner Ray Kelly at Brown University on Tuesday, causing cancellation of his lecture: A public forum was held at Brown last night to discuss the controversy generated by preventing Kelly from speaking.  The forum was reported live by multiple campus student publications. One of the early speakers was Marion Orr, Professor of Political Science, Public Policy and Urban Studies.  Orr also is Director of the A. Alfred Taubman Center for Public Policy and American Institutions, which invited Kelly. Orr apologized "especially to my black students and Latino brothers and sisters" for the "hurt" he caused by inviting Kelly, and indicated he did not expect such a reaction. Orr also requested a list of people he should not invite in the future. I spoke with Orr, who said that he meant that request for a list as "tongue in cheek" and that everyone in the room understood that he did not really want such a list. Orr said that he was trying to make a point along the lines of "do you really want to have a list?" Orr did not dispute the substance of the quotes attributed to him regarding the list, but disputed what he meant by the request. The Brown Daily Herald reported, Hundreds assemble to confront Kelly controversy (emphasis added):
Marion Orr, director of the Taubman Center, which sponsored Kelly’s lecture, expressed regret for the controversy. “I sincerely apologize to my students,” Orr said. “Especially to my black students and Latino brothers and sisters — it wasn’t my intention to hurt you, and it hurts me to hear that my decision caused so much pain.” Orr asked the students to submit a list of speakers whom they would not approve of coming to campus, adding that he never expected the intense reaction to Kelly’s event.
The Daily Herald also had a live blog, and reported the exchange as follows (author name, time and graphics removed for ease of reading, but available at the link):

White House Chief of Staff Denis McDonough and various senior officials got an earful in a meeting today from Senate Democrats frustrated over the troubled rollout of Obamacare.  The meeting also included CMS administrator Marilyn Tavenner and Jeffrey Zients, who was appointed to oversee HealthCare.gov fixes. While McDonough tried to reassure lawmakers that he's taken charge of things and some Democrats tried to view things positively, there was clearly still concern. From The Hill, 'Agitated' Dems vent on O-Care:
Democratic senators facing reelection in 2014 were some of the most vocal critics. One lawmaker described Sens. Al Franken (D-Minn.) and Jeanne Shaheen (D-N.H.) as visibly “agitated.” Shaheen demanded to know why the rollout of HealthCare.gov had become so riddled with problems. Sen. Mark Warner (D-Va.), who has spent more of his career in the private sector than in government, also weighed in forcefully, according to the source. "I am not happy with the website. That is a pretty common thought that we all feel," Warner later told reporters.

NSA leaker Edward Snowden has a new job.  He's reportedly been hired to help maintain one of Russia's largest websites, according to his lawyer. From ABC News: Edward Snowden, the former National Security Agency contractor wanted by the U.S. government for leaking thousands of secret files, is...

This paragraph pretty much sums it up, from an article at The NY Times (emphasis added): [Tom] Scully, who has spent the last 30-some years oscillating between government and the private sector, is hoping to be his own best proof of the Obamacare gold mine. As a...

Jenny Li is a Brown University student, a fellow at the People for the American Way Foundation, helps run Brown Asian Sisters Empowered, and is an environmental activist who is Executive Director of the Brown emPower environmental group: She's also someone who was proud to shut...

There is so much wrong with Obamacare and HealthCare.gov that the news is swarming.  Or is it swirling? So we'll just keep a running list today of what's new in the past 24 hours.  If you have links, post them in the comments. We'll have a separate post, if needed, for "Breaking" news or if we just feel like it. Let's start with this Al-Jazeera America story about Colorado (via Weekly Standard): From Media Trackers, Obamacare Navigator Sign-Ups Remain Low in Pennsylvania:
As the first month of the Obamacare rollout comes to an end, most of Pennsylvania’s navigator organizations said they have not guided anyone to enrollment in the federal health insurance exchange. The organizations attributed the low enrollment to the lack of a fully functioning website.

Note: You may reprint this cartoon provided you link back to this source.  To see more Legal Insurrection Branco cartoons, click here. Branco’s page is Cartoonist A.F.Branco...

Prof. Jacobson, I know you usually show bumper stickers, but there is a Halloween display in a neighborhood in Euless, TX, that I drive through all the time. The tombstones have some interesting observations. I am wondering if our freedom will in this lot next year. Gee, who...

We reported on this before.  Health insurance execs afraid to talk on record about Obamacare computer problems. CNN reports today, White House Pressuring Insurance Companies To Not Criticize ObamaCare:
ANDERSON COOPER, HOST: Now more breaking news, evidence that the Obama administration is leaning on insurance companies to keep a lid on problems with the healthcare law rollout. Now Drew Griffin on CNN’s investigations did the reporting. So Drew, What’s going on here, what have you learned? DREW GRIFFIN: Anderson, what’s going on is behind the scenes attempt by the White House to at least keep insurers from publicly criticizing what is happening on this Affordable Care Act rollout. Basically, if you speak out, if you are quoted, you’re going to get a call from the White House, pressure to be quiet. Several sources tell me and my colleague Chris Frates that insurance executives are being told to keep quiet....
https://twitter.com/whpresscorps/status/395410470653661184 Why would the insurance industry be worried? Maybe because like all Obama critics, they are only one speech away from being demonized.

In our two prior posts, we explained how NYC Police Commissioner Ray Kelly was shouted down at Brown University by protesters against NYC's stop and frisk policy: The protesters decided that others should not get to hear what Kelly had to say on the topic.  One protester, Jenny Li (pictured above) revelled in the shut down:
So we drafted a petition last Thursday and as of today [October 29, 2013] there are over 500 signatures. We delivered it to the Taubman Center [at Brown] and they didn't respond to our demand to cancel the lecture, so today we cancelled it for them.
It probably will not surprise you that Li is a fellow at the People for the American Way Foundation, the liberal activist group that runs the Right Wing Watch blog among other activities. Author Mychal Denzel Smith writing at The Nation plays into every stereotype of liberal intolerance in supporting the shout down, and terming it "glorious", Brown University Booed Ray Kelly and Racism (emphasis added):

The Nation Ray Kelly Booed

NYPD Commissioner Ray Kelly of stop-and-frisk fame was scheduled to speak at Brown University yesterday and deliver the school's annual Noah Krieger '93 Memorial Lecture. The title of his speech, and I'm not making this up, was "Proactive Policing in America's Biggest City." What happened instead was glorious.

More is coming to light in recent days and weeks to suggest that concerns about potential security issues with the healthcare.gov website may be justified. In an article today from CNN, it was revealed that lack of testing of healthcare.gov presented a security risk, according to an internal government memo written by IT officials at CMS days before the launch.
An internal government memo obtained by CNN and written just days before the start of open enrollment for Obamacare warned of a "high" security risk because of a lack of testing of the HealthCare.gov website. "Due to system readiness issues, the SCA (security control assessment) was only partly completed," said the internal memo from the U.S. Center for Medicare and Medicaid Services. "This constitutes a risk that must be accepted and mitigated to support the Marketplace Day 1 operations." The memo goes on to explain that the Center for Medicare and Medicaid Services would create a "dedicated security team" to monitor the risk, conduct weekly scans and, within 60 to 90 days after the website went live, "conduct a full-scale SCA test." The memo did not detail the security concerns. It was written by IT officials at the Center for Medicare and Medicaid Services, and was sent to and signed by the agency's director, Marilyn Tavenner, who testified on Capitol Hill on Tuesday that she thought the website was ready to go when it began its crash-riddled rollout on October 1.
And in an earlier article at CNN Money titled Security hole found in Obamacare website, it was also reported that a cybersecurity expert discovered a security flaw that went unaddressed for more than three weeks after healthcare.gov’s launch.

Reuters reports that Sanford, Florida -- the town where George Zimmerman successfully and lawfully defended his life by shooting and killing a vicious attacker, Trayvon Martin -- has passed new rules for how neighborhood watch volunteers may conduct themselves. In particular, it forbids them from being armed with a firearm, as well as from pursuing a suspicious person. Florida city bans guns for neighborhood watch volunteers:
The Florida city where neighborhood watch leader George Zimmerman shot and killed unarmed black teenager Trayvon Martin is changing the rules on how civilian patrols can operate to help prevent a recurrence and revive the program's reputation. The new rules, to be released at a community meeting on November 5 in Sanford, Florida, will state explicitly that residents acting under the authority of neighborhood watch may not carry a firearm or pursue someone they deem suspicious.
The Reuters piece, published in the Chicago Tribune, notes that the "prosecution accused [Zimmerman] of racially profiling Martin, a high school student visiting from Miami, and then pursuing, confronting and shooting him." Nowhere in the article -- seriously, nowhere -- do they mention the vicious, life-threatening beating that Martin launched against Zimmerman without any just cause (even Martin's girlfriend, who was on the phone with him at the moment of the attack, testified that it was Martin who initiated the physical conflict). Local News 13 further reports:
Sanford's new police chief, Cecil Smith, said the neighborhood watch program as it was operated while Zimmerman was part of it was dysfunctional and had no accountability. "In this program, it is clearly stated that you will not pursue an individual," Smith explained. "In this new program, it clearly indicates that you will not carry a firearm when performing your duties as a neighborhood watch captain or participant."
I expect Sanford FL will encounter one, or both, of the following two realities in short order:

If only it were that benign. What probably will be the most viral moment from the Sebelius hearing this morning: And The Only Obamacare/Sebelius GIF You’ll Ever Need, from our friend Steve Gutkowski: ...

Last week as we noted, the New York Times ran a devastating article about President Obama's Syria policy. The Times reported, among other things, that the President was disinterested in planning discussions about Syria. Two other articles reported that America's Middle East allies generally and the Saudis specifically were upset by the administration's Middle East policy. I guess that the New York Times had enough serious reporting about the shortcomings of the Obama administration's Middle East policy, because over the weekend, it published Rice Offers a More Modest Strategy for Mideast by its foremost White House cheerleader, Mark Landler. (Landler contributed to the Syria report, but was not one of the bylined reporters.)
Each Saturday morning in July and August, Susan E. Rice, President Obama’s new national security adviser, gathered half a dozen aides in her corner office in the White House to plot America’s future in the Middle East. The policy review, a kind of midcourse correction, has set the United States on a new heading in the world’s most turbulent region. At the United Nations last month, Mr. Obama laid out the priorities he has adopted as a result of the review. The United States, he declared, would focus on negotiating a nuclear deal with Iran, brokering peace between the Israelis and the Palestinians and mitigating the strife in Syria. Everything else would take a back seat.
The article goes on to point out that even Egypt was no longer a priority. In a jab at President Obama's predecessor we learn:

This is a follow up to our post last night, Brown U. students shout down Ray Kelly. The Brown Political Review has produced an excellent video (embedded at bottom of post) with footage both inside and outside the auditorium as Kelly was shouted down, and interviews with students and administrators. Is is quite clear that there was an organized effort to shut down the Kelly speech, and that many of the people shouting were not even students.  Student Emily Kassie, who produced the video (speaking for herself, not BPR), told me via email:
The protestors were a mix of Providence community members and Brown students. There is a moment in the video where people are asked to raise their hands if they want to hear Kelly speak. About half the room raised their hands.
The woman in the image below (since removed) related how she was called a White Supremacist for wanting to attend the lecture (at 9:30):
I got called a White Supremacist when I tried to go inside, cause I told a man near the front door that I wanted to hear what Kelly had to say.  And I think that's pretty ridiculous. I think the idea that suppressing another person's right to free speech equals exercising your free speech is completely wrong.
In a press release, the BPR described what went on inside the auditorium:
Kelly had time only to thank the event organizers, before a group of students and community members in the audience rose simultaneously to read prepared remarks. “Asking tough questions is not enough!” they read together, fists raised in unison.

Health and Human Services Secretary Kathleen Sebelius will testify Wednesday morning at 9:00am ET before the House Energy and Commerce Committee.  The session, entitled PPACA Implementation Failures: Answers from HHS, is expected to focus on issues with the troubled rollout of healthcare.gov and address questions about why, despite such issues, HHS officials "repeatedly assured the public that implementation was progressing on time and as intended," according to an advance memo on the hearing. The livestream below will be available once the hearing begins.  A secondary video feed will be available at C-SPAN if there are any issues with the other feed. Live streaming video by Ustream CNN reported Tuesday afternoon that the Obama administration was warned only a month before the launch of the federal health care website that were still some significant issues facing the project, according to a list of open risks outlined in a document from CGI, the main contractor on the project. Updates: https://twitter.com/amandacarpenter/status/395543787470340097

Stephen Jimenez is the author of "The Book of Matt," a book that calls into question the deeply ingrained narrative that the murder of Matthew Shepard was an anti-gay hate crime. The extensively researched book reveals that the Shepard anti-gay hate crime narrative may be all wrong. Jimenez, who is gay himself, has been praised by prominent gay rights activists, including Andrew Sullivan.  In response to the new information, Sullivan has even called the narrative "a politically convenient myth" deployed to "raise gobs of money and pass unnecessary laws." Stephen Jimenez: Meth And The Murder Of Matthew Shepard from The Dish on Vimeo. On Monday, The New York Post's Andrea Peyser lauded Jimenez for shedding light on "an uncomfortable truth":
 Jimenez unearthed a story that few people wanted to hear. And it calls into question everything you think you know about the life and death of one of the leading icons of our age.