A painful case, an odd ruling, and two provocative reactions
When dealing with truly heinous crimes, especially those dealing with children, it’s difficult to separate emotional reactions from constitutional standards. That is, however, what the judicial branch is for, and what the Supreme Court attempted to do yesterday.
The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled on Wednesday.
The 5-to-4 decision overturned death penalty laws in Louisiana and five other states. The only two men in the country who have been sentenced to death for the crime of child rape, both in Louisiana, will receive new sentences of life without parole.
The court went beyond the question in the case to rule out the death penalty for any individual crime — as opposed to “offenses against the state,” like treason or espionage — “where the victim’s life was not taken.”
Justice Anthony M. Kennedy, writing for the majority, said there was “a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons,” even “devastating” crimes like the rape of a child, on the other.
In a political and cultural context, Supreme Court rulings are often boiled down into an unhelpful shorthand. In a case like this, the justices can be, and are, accused of somehow protecting child rapists, which makes the ruling deeply unpopular. There’s obviously more to it than that — the high court had to consider where to draw lines regarding state executions. The majority decided that Louisiana’s line went too far.
Did they make the right call? By some measures, the court ended up in the right place, but took the wrong directions to get there. Dahlia Lithwick supported the outcome, but rejected the reasoning: “I happen to agree with the majority that ‘in most cases justice is not better served by terminating the life of the perpetrator rather than confining him’ and that Louisiana did not demonstrate a growing national consensus that nonlethal child rape should be punished by death. But when Kennedy arrives at the correct decision by way of a pit stop at Substitute Moral Judgments for the Weak and Infirm, I can’t quite bring myself to celebrate.”
Publius, who initially endorsed the outcome of the case, was less impressed when he read the ruling, calling it “a sloppy opinion,” and “a bad opinion.”
And then, of course, there’s Barack Obama and John McCain.
In a purely political context, a presidential candidate has practically nothing to lose by criticizing a ruling like this one. A president would have almost no power or influence over these kinds of decisions in office anyway. In this sense, it’s a freebie.
For Obama, that calculation led him to criticize the ruling, and MSNBC immediately made the obvious observation.
Michael Dukakis, Obama is not.
On the death penalty today, Obama sidestepped a potential political land mine. Opponents could have had something recent and tangible to tag him anew as a hard-left liberal had he answered any differently than he did on the issue.
When asked about the Supreme Court ruling against the use of the death penalty in instances of child rape today at a news conference in Chicago, Obama answered, “I disagree with the decision. I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for most egregious of crimes. I think that the rape of a small child, six or eight years old is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable. That does not violate our constitution.”
He continued, “Had the Supreme Court said, ‘We want to constrain ability of states to do this to make sure that it’s done in a careful and appropriate way,’ that would’ve been one thing, but it basically had a blanket prohibition and I disagree with that decision.”
When I first heard that Obama had denounced the ruling, I was pretty annoyed, assuming he was just pandering. And in all likelihood, he probably was. But Obama’s perspective here is largely coherent, and apparently based on a states’ rights argument. I think he’s probably wrong about this, but given the Supreme Court’s flawed reasoning, it may not be completely ridiculous for Obama to come down on the side of the court’s minority.
McCain preferred a more generic attack.
“Today’s Supreme Court ruling is an assault on law enforcement’s efforts to punish these heinous felons for the most despicable crime,” he said in a statement, “That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing.”
I’d much prefer McCain at least pretend to care about the substance and legal reasoning of what happens at the Supreme Court, but I supposed I should lower my expectations.
Why should McCain pretend to argue base on the substance? He is voicing the same talking point the our Republican AG did yesterday. I’m sure the same talking points were sent to every Repub in the country. If the lawyers can say it, why not the non-lawyers;>
On a side note, if the lib Supremes and maybe the Dem presidential candidate would just stake a position that the death penalty is wrong in all cases, they wouldn’t have to resort to contorted reasoning.
I think it’s worth keeping in mind here that exactly one state has made child rape punishable by death.
It’s a significant case and an emotional case, but the tangible impact is really very limited, unless you want to use it as an example of SCOTUS’ willingness to constrict the death penalty.
Since yesterday I came out in favor of a plank to reduce abortions, today I want to go on record as being against child rape, and pro-kittens and rainbows. Let the flaming begin!
the lib Supremes and maybe the Dem presidential candidate would just stake a position that the death penalty is wrong in all cases
It wouldn’t be hard for a politician or any individual to take this stance, but for a justice it would require convoluted logic because their job is to apply the Constitution. It isn’t the job of the justices to say what is “wrong”, but what is unconstitutional.
Since the Constitution says no person shall be deprived of life, liberty or property without due process of law, the flip side is that one *can* be deprived of life, liberty, or property *with* due process of law. What you’re left with as an unconstitutional argument is basically that it is inherently cruel and unusual punishment. I think you can certainly make that argument, but it does conflict a bit with the plain meaning of the due process clause. I think you’d have to add in a Kennedy-style “standards evolve all over the world” type proviso to say that although the founders didn’t find it cruel and unusual, under modern standards it is.
I think you’d have to add in a Kennedy-style “standards evolve all over the world” type proviso to say that although the founders didn’t find it cruel and unusual, under modern standards it is.
We’ve had at least a couple of justices say, after they’ve retired, that the death penalty is unconstitutional. It does not take a convoluted argument to say that a) killing is cruel and b) the death penalty is “unusual” (inasmuch as it is not often applied and even then inconsistently and arbitrarily).
I would prefer it be legislatively banned, but I have no problem with it being wiped out by they Supremes (other than, like abortion, the pro-death gang would constantly be trying to find loopholes).
As for the founders standards, they (at least enough of them) were cool with slavery and the Alien and Seditions acts. Things change.
I think it’s worth keeping in mind here that exactly one state has made child rape punishable by death.
According to what I heard on C-SPAN this morning, there are 5 or 6.
The problem with the death penalty is that even though the law uses a standard of beyond reasonable doubt, DP cases inherently get jurors who are more certain of their ability to judge, and therefore have a lower standard of what “reasonable doubt” is. Therefore, you will have a greater chance of conviction, merely by charging the case as a capital case. Compound that with the fact that trials are essentially adversarial debates, and that defendants frequently have an understaffed, underqualified, and underfunded representative.
While I am not a hundred percent against the DP, I do think the pendulum has swung too far already.
Am I saddened by Obama’s position? As an opponent of the death penalty, of course.
Do I think it was ‘pandering,’ and acoiding the ‘Dukakis trap?’ Probably, in part. But part of it also comes from the fact that he is a parent.
Do I think it was unnecessary? Possibly, in that fewer people have come to support the death penalty. But the facts in this case are horrific enough that I understand why he may have felt it was the wrong place to ‘take a stand.’
Do I think it matters? Not really. A President’s personal views on a legal matter only matter if he chooses to use them as a ‘litmus test’ for his appointees, and I doubt if he will. (It might matter in 2018 when President Sebelius appoints her predecessor as Chief Justice, but he may have come around to opposition by then.)
[And one final comment. The debate on the decision yesterday was one of the most — thankfully — civil discussions I’ve seen here in a while. There was no name-calling, or imputation of evil motives into the opposition. Even people passionate on one side recognized their opponents had a case worth hearing, and that they were sincere in making the case. I hope, now that the candidates’ names are thrown into the dispute that it continues as it has been. — And yes, if I get a chance — physical therapy day — I’ll detail my own case later.]
Obama has to take this position for a number of reasons, not the least of which is a practical one. The rapist is African-American. Otherwise he’d lose every fence-sitter there is. Because one of the most prominent fence posts is race, he has to maintain a stance of objectivity. He has avoided a minefield.
This is just like the question a few years ago about whether Bush or Kerry would be willing to go nuclear in the Middle East if the situation called for it. There’s no right answer. Only a “wrong” one that means political suicide.
Obama is wise to steer clear of sensational issues.
It does not take a convoluted argument to say that a) killing is cruel and b) the death penalty is “unusual” (inasmuch as it is not often applied and even then inconsistently and arbitrarily).
No, it doesn’t, let me clarify, I was trying to say that 1) justices don’t decide what is “wrong”, and 2) the way I laid it out is the only way I’ve been able to come up with to find it unconstitutional, there may be others, but the Constitution on its face contemplates the death penalty. You all but have to go to the “standards evolve” reasoning. Which I think you can do, I personally believe the Constitution is a living document, but I am not a Supreme Court justice.
were cool with slavery and the Alien and Seditions acts. Things change.
These are no longer “cool” because of the Fourteenth amendment, and because they were repealed and found unconstitutional. This is not true of the death penalty. It would be quite easy to find the death penalty unconstitutional if there were an amendment forbidding it.
One of the (many) bad things about the death penalty is that it brutalizes our political discourse and our thinking about justice. It’s an easy emotional leap to say that some given crime is so horrendous that we ought to just kill the perps, and that anyone who thinks differently is an appeasing coddler. The argument is stupid and facile, but unfortunately it has force, and will continue to as long as we have a death penalty.
Obama has to take this position for a number of reasons, not the least of which is a practical one. The rapist is African-American. Otherwise he’d lose every fence-sitter there is.
If this is so, it’s truly unfortunate; it suggests Obama is uniquely weak when he makes a public case for any non-reactionary concept of justice. A large part of the Presidency is its powerful megaphone and ability to dominate national discourse. Are we saying Obama can’t address any issue involving african-americans without pandering to the bigots? That would be horrible.
I am against the death penalty in all cases because I think it doesn’t serve the public interest.
But the law is the law.
How can a group of judges overrule the legislators who write the laws?
It just doesn’t make any sense to me.
Now on the question of the death penalty, specifically in relation to this case and in general.
Yesterday, Zorro made a very valuable point. Expanding the death penalty beyond murder will — at least potentially — lead to more murders, in that there is no longer any reason for someone guilty of a death penalty offense to keep his victim alive. (I believe this is also why death is no longer a punishment for kidnapping — and that makes the point more directly.) In fact, there would be less incentive to avoid killing someone who was a witness in this sort of case.
But also, these sort of cases are usually extremely sensational and receive plenty of newspaper and even television coverage. And, sadly, I have to say that this is more likely to lower the burden of proof in the jurors’ minds. (It shouldn’t, theoretically, but in fact I think it is arguable that it does.) Which means that the likelihood of a mistake goes up.
And this, more than anything, is why, in my mind, the death penalty is wrong, and that we should join the other civilized countries of the world in abandoning it. Not because it is ‘cruel and unusual,’ not that ;revenge is wrong,’ or even that it is unfairly applied, but because mistakes can happen. And those mistakes can’t be corrected, even in part.
Certainly, in some cases — this may be one, I haven’t read the details — it is possible to say with pretty close to 100% certainty that a particular defendant is guilty as charged. And if there were a way of limiting the death penalty to just those cases, when the burden of proof would be so much higher — and some way of assuring the jurors would follow this rule — perhaps the death penalty would make sense.
But it can’t be so limited. If it is allowed, then the jurors will be, as they should be, the ‘juudges of the facts’ and the weight they give to them. And there have been too many studies showing the high percentage of errors that have been made. (And the question of ‘unequal application’ comes in here too. Jurors, sadly, have statistically been shown to consider a defendant’s ‘race’ one of the facts that enters into their judgment — as have prosecutors in deciding whether or not to seek the death penalty.)
But instead of arguing this in the abstract, I would like to ask all of you who support the death penalty to put yourselves in the following position.
You have been a juror in a death penalty case. It was a sensational one, and the defendant has been generally considered to be ‘obviously guity.’ You agreed with the other jurors that the prosecution had made its case, and you know, correctly, that you were judging strictly on the evidence. It did seem overwhelming.
The defendant was convicted and put to death last week. Yesterday irrefutable evidence turned up that the defendant had been innocent. What would your reaction be, and has thinking of yourself in this position caused you to rethink your position towards the death penalty?
And one final point. I hear a lot of people declaring that a criminal ‘deserves death.’ But, in reality, let us assume you had to choose for yourself between two options. That you would die tomorrow, or that you would spend the rest of your life, as long as it lasted, confined in a small room, where you could receive news of the outside world, but could not interact with it. That your only contact, most likely, would be with your lawyer. And that, because you knew that the ‘without chance for parole’ clause in the sentence was true, there would be no hope of your life changing. The only time outside that room would be for exercise, alone in a yard, not even seeing the guards watching you.
Do you really think death — which, to me, is a cessation of existence — would be worse than that? (Is not the worst punishment in hell supposed to be the hopelessness of those supposedly confined there?) I would even add a section of the law that would allow any person under sentence of ‘life without parole,’ after five years, to choose for him or herself the option of ‘assisted suicide.’ And i think most of the prisoners would choose that, if given the choice. So even on grounds of ‘punishment’ I would not accept the death penalty.
(I even understand the counter-argument that the death penalty brings ‘closure’ to the families of victims — though what if a victim simply happens to have no family? Is that relevant in deciding the penalty for his murderer? But if they truly understood that ‘life without parole’ meant exactly that, it might also provide closure — or. on the other side, provide a contuously open wound to exist.)
jimBOB [10]: It IS unfortunate. Especially in 2008. “Are we saying Obama can’t address any issue involving african-americans without pandering to the bigots?” God, I hope not. But, this is an extreme case with just about every hot-button you can name: rape, a small child, a large, scary-looking perp, and underneath it all race. For the casual, fence-sitting observer there is no nuance in this case. But, had Obama said otherwise, the Karl Roves and Rush Limbaughs could very easily use it to stoke the documented racial [and racist] embers that burn in Appalachia, for instance. After all, there are still plenty of fence-sitters that think Obama might be a Muslim operative, just as plenty of people voted for Bush the second time around because they believed Saddam Hussein was part of al Qaeda.
Man! I cannot *BELIEVE* this LEFT leaning US Supreme court! Look at all of the SCOTUS judges appointed by lefties, unbelievable!
John Roberts – G.W. Bush (Republican)
John Paul Stevens – Ford (Republican)
Antonin Scalia – Reagan (Republican)
Anothony Kennedy – Reagan (Republican)
Clarence Thomas – G.H.W. Bush (Republican)
David Souter – G.H.W Bush (Republican)
Ruth Bader Ginsburg – Clinton (Democrat)
Stephen Breyer – Clinton (Democrat)
Samuel Alito – G.W. Bush (Republican)
neil wilson, the three branches of government are equal and maybe, just maybe, the legislature overstepped its authority.
I think we are now seeing what people meant earlier when they suggested that Obama has been insufficiently vetted. He is now making statements suggesting that his decisions in office would be worse than what I expected from him. You wanted him, well now you’ve got him. Constitutional law was supposed to be his forte, but he’s making up his mind about this case based on being a father or being black (or worse, deciding based on the race of the accused) or pandering? Certainly not the kind of reasoning I’d want to see in a president. But he’s your guy!
I would just add that, while some may disagree with Obama’s position, he has at least been consistent. He said the very same thing about the death penalty well over a year ago to a group here in Iowa. In fact, he fact said it to an anti-death penalty crowd. It was a small affair, no media, so he could have easily pandered to the crowd with no danger of being called a flip-flopper, but he didn’t. So, I don’t he’s pandering now and I don’t think it has anything to do with the race of the perpetrator. I think he’s just being honest about his beliefs.
Neil: That is what judges do in questions of Constitutionality. A community may pass a law involving some form of popular prejudice — I don’t mean in the personal sense, read it as ‘confirmed but non fact-based.’ — which violates Constitional rights. (Or someone like President Bush might act unconstitutionally. Same principle.) Or a police might violate the rights of a suspect so severely that it taints the conviction of even an obviously guilty man. This is when a Supreme Court of a state or of the US is supposed to get involved, to make sure that the authorities are obeying the Constitution.
In fact, some times this is the only way to restrain them, and most landmark Constitutional cases are about just this.
…but I supposed I should lower my expectations.
You have expectations?
Unfortunately most of Kennedy’s opinions, particularly his liberal ones, are sloppy and bad. That the shallowest rhetorical hack on the Court has become its most important voter is an offense to the dignity of the institution. Unfortunately Kennedy is the Lieberman of the Supreme Court– until the liberals claim a position of greater influence, we’re stuck pandering to his ego.
I don’t think that Obama’s criticism was necessarily pandering. If you don’t reject the constitutionality of the death penalty outright– and bear in mind that constitutionality is a very different question than whether it’s a good or morally appropriate punishment– then it seems to be that reasonable minds can differ as to whether the penalty can apply to child rapists.
neil– Prup (whose comments I always enjoy) already covered this but I’ll just briefly add that overruling democratically enacted legislation is what judges do. The Constitution wouldn’t be worth much if it weren’t enforceable against legislative excesses by the judicial branch.
So Mary, you’re saying Hillary would defend a child-rapist against the death penalty [which she supports] in an election year? But, pushed for a worthless gas tax holiday?
Go back to bed.
Meanwhile, jimBOB, regarding this issue being sticky because of race, see Mary’s comment: “he’s making up his mind about this case based on being a father or being black (or worse, deciding based on the race of the accused)”
It starts.
Heller v. D.C. was just handed down. Opinion by Scalia– 2nd Amendment protects an individual right, D.C. handgun ban struck down. 5-4 opinion on standard liberal-conservative split (Kennedy in the majority, as usual). I’ve only read the syllabus but sounds more or less in line with expectations.
“heinous crime” = “Capital Punishment”
or
“Murder” = “Capital Punishment”
The problem is, almost anything can be called “heinous”. Murder at least has a legal definition. For instance, Laura Bush is a killer of another human being, but we can’t call her a Murderer. Trying to establish the standard as “heinous” just opens the door to anything. For instance, is calling George Walker Bush ‘Boy George II’ or driving around during the Clinton Administration with a bumper sticker saying “My President is Charleston Heston” heinous?
Raping a small child is heinous. The problem is, most of these rapes are actually by people the child knows. Often relatives in fact, as it was in this case. We want this cases reported because we want to deal honestly with the situation so we can reduce the occurence of these rapes through treatment and intervention. Unfortunately most experts agree that if you present the child and his/her family with a threat to kill a relative, they will quite likely report nothing. And when you reduce the reporting of crimes even the most extreme of punishments fails to become an effective deterrent.
neil wilson said: “How can a group of judges overrule the legislators who write the laws?”
You missed that class in school? Wasn’t it Marbury vs Madison?
Everybody knows the constitutationality of laws is subject to review by the Supreme Court and (most) everybody knows that every person has a Constitutional Right to be free from Cruel and Unusual Punishment. If a state writes a law applying a punishment for a crime that is cruel, unusual or just excessive, it’s unconstitutional.
Paul D. said: “Man! I cannot *BELIEVE* this LEFT leaning US Supreme court! Look at all of the SCOTUS judges appointed by lefties, unbelievable!”
You should also mention that Ginsburg was recommended by a Republican Senator as “acceptable”.
This is why Republican’ts don’t like thinking. A little introspection can be a dangerous thing.
For Obama, that calculation led him to
Well, there’s a phrase we’re seeing a lot of lately. I thought Obama gave a well-reasoned answer to this freebee issue. The quality of the adjudication should be of strictest quality in a death penalty case. But a death penaly for a non-capital case crosses that line just at the top of the slippery slope.
I’m starting to wonder if Anthony Kennedy is not really just trying to get a Republican’t President elected. He keeps insisting (being the swing vote and all) on writing these ‘liberal’ opinions and he produces just the sort of “we have to do it because the world is changing” arguments that are sure to excite the wingnuts come November.
Stevens, if you can hear me, don’t let this guy write anymore opinions.
I wish I thought McCain was smart and/or interested enough to understand the ruling. But I don’t.
I hate living in a country in which people’s inability to set aside visceral reactions for a reasoned approach to the law and justice means that every presidential candidate has to pander to the lowest common emotional denominator or lose the election.
That Obama did it more artfully than Subtle as a Mack Truck McCain gives me small comfort.
As of January 2008, 135 countries were abolitionist in law or practice.
Can we join the civilized rest of the world and abolish the death penalty, please?
Not to mention all those pending death sentences for the Gitmo guys many of whom are facing death not because of what they have done but of what they have been labeled.
Another reason not to kill child rapists: if a child is raped and the rapist is convicted, according to a child’s logic, he or she will effectively have murdered someone. Making rape a capital crime therefore makes it far less likely that rapes will even be reported – especially since rape of children is almost always perpetrated by trusted loved ones.
But, to be clear, Obama did not argue that child rapists should be killed. His position, informed by more knowledge of Constitutional law than I will ever have, appears to be that it’s not the business of the SCOTUS to say a state cannot apply the death penalty in the way it sees fit. Others may (and obviously do) disagree, but that’s what the argument is about – not about whether Obama himself thinks child rapists should be put to death.
Yesterday, Zorro made a very valuable point. Expanding the death penalty beyond murder will — at least potentially — lead to more murders, in that there is no longer any reason for someone guilty of a death penalty offense to keep his victim alive. (I believe this is also why death is no longer a punishment for kidnapping — and that makes the point more directly.) In fact, there would be less incentive to avoid killing someone who was a witness in this sort of case. (#12)
Great point. I heard another good point in support of this decision on the radio yesterday: lots of child rapists are family members. Telling adults that a family member raped you is hard enough for a little kid; it can only get harder if there is a possibility that the relative in question might be executed. Yeah, the kid probably won’t know these laws, but kids generally don’t confess all on their own. They are talked to by parents, who probably do know the laws. The decision is a solid endpoint, all things considered, even if they did it for the wrong reasons.
As for Obama — it does kind of bum me out when he does stuff like this. However, I think we all knew it was bound to happen at some point. I know that my absolutely ideal candidate would never be elected because there are too many people in the country who are scared of things that I just think don’t need to be so scary, for example. So… for my candidate to get elected, there’s got to be some of this. I just wish he would have his head on straight for FISA.
“His position, informed by more knowledge of Constitutional law than I will ever have, appears to be that it’s not the business of the SCOTUS to say a state cannot apply the death penalty in the way it sees fit. ”
Unless you’re basing that on something other than the quotations above, it doesn’t seem to me that that’s his position at all. He isn’t saying that the Constitution places no limits on a state’s use of the death penalty; to the contrary, he’s saying that there are very stringent limits and that the Court has a legitimate function in enforcing them, but that child rape is a sufficiently heinous crime that application of the death penalty falls on the constitutional side of the line in that case. I’m really unsure whether I agree with that or not, but it’s certainly a reasonable argument.
I think it is worth noting in this case that several victim rights groups actually support this decision.
Bare in mind the vast majority of child abusers are family members or people close to the victim. Expecting a child to testify in a case that could lead to the execution of their father, mother or close relative (however evil we believe them to be) is a difficult thing to do.
I may not agree with Obama’s opinion, but I don’t believe he’s pandering (“to cater to the lower tastes and desires of others or exploit their weaknesses”). Obama didn’t come out with some full-throated let’s-look-tough-on-crime screed – he offered a reasoned, measured opinion. I don’t expect people to share all of my opinions just because they belong to the Democratic party – just enough of them to know that we generally share the same goals, have similar values. This is not a deal-breaker for me.
And I don’t think that race had anything to do with it. It’s really insulting to everyone involved to assign racial motives where none are explicitly stated.
I think it’s worth keeping in mind here that exactly one state has made child rape punishable by death. — jibeaux, @2
According to today’s NYT:
The Louisiana law extending the death penalty to the rape of children under the age of 12 dates to 1995. The states that followed were Georgia, Montana, Oklahoma, South Carolina and Texas. Unlike Louisiana, those states all require that a defendant have a previous rape conviction or some other aggravating factor in order to be subject to the death penalty, and no one has yet been sentenced to death under any of the laws.
So, Louisiana is, in some ways, unique, but not as unique as all that.
In what sense is Obama pandering? His statement here is consistent with what his position has always been on capital punishment. He has never been or claimed to be against the death penalty as long as it is applied “under narrow, limited, well-defined circumstances” as he stated. Understandably many don’t agree with his position, but to accuse him of pandering simply for stating it is disingenuous.
Since when is life in prison without possibility of parole not the harshest of penalties? After all, killing someone removes their ability to suffer once and for all so how is this punishment. Punishment would be keeping them alive to suffer another day for their crimes…for the rest of their lives…one day at a time.
They may beg for death or they may never feel any remorse but they have been “removed” even though they still breathe. This removal should have the same consequences for the victims.
btw…I always said that Obama was not “that” progressive or liberal so his reaction does not really surprise me. I’m voting for him and I support him because he’s far superior to the opposition I will not blindly support him and I suggest everyone keep their eyes wide open because as Greenwald puts it:
“…It isn’t that difficult to keep the following two thoughts in one’s head at the same time — though it seems to be for many people:
(1) What Barack Obama is doing on Issue X is wrong, indefensible and worthy of extreme criticism;
(2) I support Barack Obama for President because he’s a better choice than John McCain. ..”
In other words…”I love him like a brother…just not one of mine.”