July 16, 2014

A federal judge on Wednesday ruled that California's death penalty was unconstitutional because "arbitrary" factors determined whether or not convicts would be put to death.

"Inordinate and unpredictable delays" have "resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed," Judge Cormac Carney wrote in his opinion.

California hasn't executed a prisoner since 2006, but the state still has almost 750 convicts on death row. Jon Terbush

10:15 a.m. ET
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The Supreme Court on Wednesday began hearing oral arguments for Lee v. Tam, an intellectual property case challenging a 71-year-old federal ban on "disparaging" trademarks. Immediately at issue is a Portland dance-rock band called The Slants, but how the case is decided is expected to have broader implications, including for the Washington Redskins.

The Slants' band members are Asian-American, and they wanted to trademark the name as a way to reclaim the slur. "I thought that was interesting," band member Simon Tam told The New York Times, because "we can talk about our slant on life on what it's like to be people of color." Tam grew up listening to bands that similarly took stigmatizing labels "and flip these assumptions on their heads." So when his trademark application got rejected, he assumed it was a paperwork error — until he noticed the rejection reason given was that the name is "disparaging to persons of Asian ethnicity." "Well, do they know we're of Asian descent?" Tam wondered.

Tam's case has now made it to SCOTUS, where initial arguments see the justices skeptical of the government's claim to have a legitimate interest in preventing consumer "distraction" by disparaging trademarks, as well as the argument that trademarks, unlike copyrights, "generally have not historically served as vehicles for expression" of viewpoints which are protected as free speech.

As for the Redskins, their trademark was canceled in 2014 on grounds that it too is disparaging, in this case of Native Americans. The team has filed suit to regain the trademark, but if The Slants win their case, depending on the details of the decision, the Redskins might get their trademark back, too. Bonnie Kristian

9:59 a.m. ET
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President-elect Donald Trump boasted that his election was an even bigger populist movement than that of President Andrew Jackson during a dinner in honor of Vice President-elect Mike Pence on Wednesday night, The New York Times reports.

The comparison might raise some eyebrows: "Today, Andrew Jackson is no longer very popular, and many of his values are no longer ours," The Smithsonian has noted. "Jackson's populism was … a Trojan horse for pro-slavery, pro-states-rights interests. He was a wealthy slaveholder himself, with no qualms about African-American bondage and deep hostility to abolitionism. He ignored the early movement for women's rights, and his infamous policy of Indian removal partly stemmed from demands by his 'base' for plentiful free land."


"There hasn't been anything like this since Andrew Jackson," Mr. Trump quoted his admirers saying. "Andrew Jackson? What year was Andrew Jackson? That was a long time ago."

Mr. Trump then gave the year — 1828 — and went on to suggest that his own nationalist movement had usurped Mr. Jackson's.

He said that even "the haters" who disliked him called his movement "unprecedented." [The New York Times]

Trump then thanked African-American voters for their low turnout on Election Day, which he credited as being "because they liked me, or they liked me enough that they just said, 'No reason.'" Jeva Lange

9:42 a.m. ET

Fox News host Tucker Carlson's interview with the Huffington Post's Alex Mohajer on Wednesday night went totally off the rails, ending with Carlson screeching that Mohajer is a "Democratic political operative." Carlson had some questions for Mohajer about his recent article arguing that Hillary Clinton is actually the legitimate president — particularly about a portion that cited an article by the Executive Intelligence Review, a publication Carlson claimed is by Lyndon LaRouche, who he says is a conspiracy theorist. "Why didn't you just go with a Scientology pamphlet or Heaven's Gate? Do you really think that's a legitimate news source?" Carlson said.

Mohajer responded by bringing up Carlson's tenure as editor-in-chief at The Daily Caller. "I don't say you are a crappy journalist because of The Daily Caller," Mohajer said, pointing out that The Daily Caller repeatedly questioned President Obama's legitimacy.

Carlson declared Mohajer's point "stupid," and went on to express his disappointment in the Huffington Post for publishing Mohajer's "garbage." "The idea that people take a crackpot like you — who would throw something out there with no evidence — is distressing," Carlson said.

Watch the throw-down from start to finish below. Becca Stanek

9:24 a.m. ET

Not everyone gets privately serenaded by Bruce Springsteen when they leave their job, but not everyone worked in the Barack Obama White House, either. The Boss reportedly performed a secret, 15-song acoustic concert for 250 members of Obama's staff last week as a thank you for their work, Rolling Stone reports.

One fan in the audience relayed an account of the concert to Backstreets:

It was a dream of a setlist. Bruce opened with a very brief note of thanks to the president and the staff who were being honored before launching into "Working on the Highway." That opener led into an incredible "Growin' Up" for a lively start, but not much of the set was so upbeat, with haunting readings of songs like "My Hometown," "My Father's House," and "Devils & Dust." The mood in the room the whole night — both reception and concert — was not exactly somber, but it wasn't festive, either. It was elegiac, I'd say. There was a clear sense of something ending, both with the conclusion of an adventure for the staff and the silent presence of the coming political transition. Bruce's demeanor was definitely in line with that overall vibe. [Backstreets]

The president thanked Springsteen after the show: "He's been with us for some time now, performing his craft to show his support," Obama said. Jeva Lange

8:59 a.m. ET

President-elect Donald Trump's pick for secretary of the Army allegedly punched a concessions worker in the face at a horse auction last year, The New York Times reports.

Vincent Viola — a billionaire Wall Street trader, former Army Ranger, and the owner of the Florida Panthers hockey team — was attending the racehorse auction in Saratoga Springs, New York, last August, when the incident is said to have occurred. While the police did not see Viola actually punch the concessions worker, when they arrived on the scene the employee had a "swollen, bloody lip."

The police report alleges:

Vincent … was notified by his wife, Theresa, that a man who worked for the food service at the horse sales had pushed her after she tried to get some water from the kitchen area for a woman who had just fainted in the building. Vincent states about 45 minutes after the incident occurred, Theresa located the subject who had pushed her and then pointed him out to Vincent. Vincent then reportedly confronted the subject, [redacted], [and the] two subjects then engaged in a verbal dispute. [Redacted] states the argument escalated with Viola punching him just prior to my arrival on scene. [Redacted] sustained a swollen, bloody lip as a result of the alleged punch. [via Deadspin]

Neither Viola or the concessions worker is pressing charges. Viola's stable ended up buying a colt from the auction worth $200,000, a son of a sire named Paynter and a mare named More Oats Please.

A spokesperson for Viola did not dispute to the Times that Viola had punched the concessions worker. "Mr. Viola loves his wife and regrets the incident," the spokesman said. Jeva Lange

8:38 a.m. ET
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President-elect Donald Trump's energy secretary nominee Rick Perry and treasury secretary nominee Steven Mnuchin will testify at their Senate confirmation hearings Thursday morning.

A former Texas governor, Perry has previously argued to eliminate the Department of Energy and reportedly was not entirely sure about what the department does when he was offered the position. If confirmed, Perry will largely work to oversee the U.S. nuclear arsenal and is expected to face tough questions today from combative Democrats, the Texas Tribune reports. Yet Perry might slip by mostly unscathed: "There are bigger fish to fry," a Senate Democratic aide told the Tribune.

One such fish could be former Goldman Sachs partner Mnuchin, who will likely face questions interrogating his time at OneWest Bank, which is accused of merciless foreclosure tactics during the housing crisis. Mnuchin has also faced trouble with his financial paperwork, admitting in a revised questionnaire that he is the director of an investment fund based in the Cayman Islands and that he forgot to disclose over $900,000 worth of artwork held by his children, The New York Times reports.

All of the Senate hearings can be watched live on C-SPAN, with Perry's kicking the day off at 9:30 a.m. ET. Jeva Lange

7:58 a.m. ET
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In what is being called "one of the biggest upsets" in Australian Open history, Novak Djokovic, 29, was defeated in the second round by Denis Istomin, 30, a wild card player from Uzbekistan who is ranked 117th in the world. Last June, Djokovic held all four Grand Slam singles titles at the same time; he has won the Australian Open six times, and had not suffered such an early defeat in a Grand Slam tournament in almost nine years.

Istomin won 7-6 (10-8), 5-7, 2-6, 7-6 (7-5), 6-4, with the five sets taking four hours and 48 minutes to complete. "First of all, I feel sorry for Novak; I was playing so good today," Istomin said. "I surprised myself as well."

With Djokovic out of the tournament, world No. 1 Andy Murray is the clear favorite to win the Australian Open title. "Many things came together for [Istomin] today and he's a well-deserved winner," Djokovic said after the match. "There's not much I could do." Jeva Lange

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