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Archive for July, 2005

[ 0 ] July 22, 2005 |

Friday Cat Blogging. . . Caesar.

Posting will be sparse this weekend.


Legislating From the Bench

[ 0 ] July 21, 2005 |

Mark Graber has a useful summary.

Detailed Secondhand Answers to Frequently Asked Questions

[ 0 ] July 21, 2005 |

I am going to a family function in lovely Saskatchewan this weekend. Among other things, this will mean that I will be asked many times something along the lines of “So, you’re interested in the study of law, and yet you went to school for an extra eleventy-seven years so that at best you can get a job with a fraction of the salary. Seriously, what the hell?” My standard answer is something along the lines of “Well, the law interests me, but the sixteen hour days looking through boxes of tax records while someone yells at you, not so much.” This is a more graphic example. (Via icoaste.)

Obviously, internet access in Moose Jaw will be sporadic at best, so I’ll more or less see you in a couple days.

Overturning Roe Will Not "Return the Issue to the States"

[ 2 ] July 20, 2005 |

The discussion about how to mask the effects of overturning Roe that Lindsay discusses is indeed useful in undermining the utterly false claim that the Republican position on abortion is popular. In addition to this, however, it shows a key element of the upcoming Republican strategy: to frame the overturning of Roe as a “federalism” issue. This is, of course, utter horseshit:

  • The claim that “[o]overturning Roe wouldn’t do anything but send the issue back to the states” is a flat-out lie. The Republican majority in Congress has, of course, recently passed legislation regulating abortion, claiming authority under the commerce clause; with Roberts joining the Court, this legislation will almost certainly be upheld. Obviously, Roe being overturned would not restrict the ability of Congress to pass abortion legislation. Were Roe to be overturned, abortion would be front-and-center in every Presidential election and every session of Congress for many cycles to come.
  • Even leaving this aside, to claim that Roe is about “federalism” is disingenuous question -begging. The question of the constitutionality of the Endangered Species Act is about federalism–such a case would turn on the enumerated powers of the federal government. Abortion, conversely, is an individual rights issue. If women have reproductive rights that trump state authority, no level of government can ban abortion. If they don’t, any level of government can ban abortion unless prohibited by some other part of the Constitution. Roe is not a case about federalism. Conservatives want to pretend it’s about federalism for the same reason they tried to claim Brown v. Board was about federalism; it’s a convenient way of sweeping an argument you’d rather not make on the merits under the rug.
  • Finally, since many progressives also seem to fall into this trap, it’s worth emphasizing again that it’s not a question of whether a significant number of states would criminalize abortion after Roe were overturned, but exactly how many. A plausible range is 15 to 35. Not all of these laws would ban abortion outright, but the effects of outright bans and vaguely worded delegations to doctors is exactly the same: abortion-on-demand (whether formally legal or grey market) for affluent women and illegal abortions for everyone else. It is entirely possible that the federal government would pass the latter type of law as well.

Roberts Post-Mortem

[ 0 ] July 20, 2005 |

In response to the discussion thread in the post below, a couple points:

  • I continue to believe that any justice Bush could plausibly nominate–which obviously includes Roberts–should be filibustered, simply because this would force the use of the nuclear option, which would destroy the filibuster in the long term, which would obviously be good for progressive politics on in the long-term. In addition, I would like to note that the next person who can offer evidence that being labeled “obstructionist” has any significant political effects will be the first. Yes, Virginia, Joe Klein and other Beltway hacks do not, in fact, reflect the concerns of ordinary voters.
  • Having said that, Norbizness is of course correct–the chances of any filibuster being mounted, let alone succeeding, are zilch (barring some completely unforeseen revelation.) Analogies to Bolton don’t wash. Bolton was an extremely odious person with an extensive history of disgruntled employees and a paper trial of wingnutty comments, and the administration is not nearly as committed to him as to a Supreme Court nominee. Roberts is telegenic and a very effective advocate with an ambiguous history.
  • I actually don’t think it’s a mortal lock that Roberts will vote to overturn Roe, and I’m sure that it’s not a dealbreaker for Bush–as Matt says, let’s not forget where the power in the GOP lies. It’s important to Bush to have someone that his wingnut base can plausibly think will overturn Roe, but I’m sure that Bush could give a rat’s ass whether he actually does or not (and Rove surely understands that it’s better for the Republican Party to have Roe emaciated rather than overturned outright.) It does matter to Bush and the GOP’s funders that the nominee be extremely pro-business and pro-“states’ rights,” and on those fronts Roberts’ record is unambiguous. I think Roberts will certainly be a fifth vote to chip away at abortion rights at the margin. But whether he will vote to overturn Roe in the unlikely event the Court tries it in the short term, I don’t know. He certainly might, but I don’t think it can be inferred from the fact that Bush selected him.

John Roberts

[ 0 ] July 19, 2005 |

According to CNN.

Profile here. To put it in crude terms, he seems in between Clement and Jones on the continuum of wingnuttery.

…in the midst of a dinner party, but Nathan Newman has a great post up. SCOTUSblog will have a running update of major Roberts opinions.

Not Clement

[ 0 ] July 19, 2005 |

according to ABC news. Who knows, but I believe it. An easily confirmable candidate, given Bush’s history, made no sense to me.

My money’s on Jones.

…w/r to Jones, from the SCOTUSblog profile:

She commented during oral arguments in Waltman v. International Paper involving female plaintiff who had complained of a hostile work environment that included verbal and physical inappropriateness, that the behavior of a man who had pinched the woman’s breast was not so objectionable because he had subsequently apologized and at least she hadn’t been raped. Jones also reportedly complained, during a last-minute hearing on a death penalty stay, that the proceeding was causing her to miss her son’s birthday party.

Yep, pretty much an ideal Republican nominee…

Two Riders Were Approaching, And the Wind Began to Howl

[ 0 ] July 19, 2005 |

SCOTUS nominee to be announced at 9 ET.

For info on Edith Clement, see here and here.

If it is Clement, I don’t think a filibuster is likely. The fact that Hadley Arkes trusts her certainly isn’t encouraging, but no plausible nominee is any better; her lack of a record on many major issues is, I suppose, better than someone like Garza who is clearly bad, given that the Dems don’t have the votes to stop either…

…one thing to add is that the inevitable comparisons that will emerge between alleged “stealth candidates” Clement and Souter are not useful. It is true that Clement doesn’t have much of a public record on the most salient issues that will come before the Court. But she is a member of the Federalist Society, and was part of Republican politics in the South. That’s a very, very different context than the one which Souter emerged from. One can’t predict where she will come out on every specific area of doctrine, of course, but it is safe to predict that her jurisprudence will be closer to Scalia and Rehnquist than to Souter or Stevens.

…apparently there’s some rumbling that it could be Edith Jones insetad. If so, a filibuster should be absolutely automatic. Even if she cannot be kept off the Court, Republican faux-moderates need to be forced to fish or cut bait on Roe.

The Democratic Peace

[ 0 ] July 19, 2005 |

Some thoughts on this fine Democratic Peace post by Daniel Nexon:

I share Dan’s skepticism regarding the empirical tools used to confirm the democratic peace hypothesis. I think that the scholars who study the democratic peace are convinced that something is there (and they may be right), but don’t have a handle on precisely how to define it. This leaves wiggle room in the interpretation of the evidence, which then leads to the inclusion or exclusion of border line cases less because of their own merits than because of the need to support the hypothesis.

Dan also makes a good point by focusing on the mechanisms through which the democratic peace is supposed to operate. In short, norms (domestic and international), free trade, the ability to make credible commitments, and democratic accountability have all been presented as the causal linkage between theory and evidence. None stand up to careful scrutiny. The voting public can be manipulated. A reasonable argument can be produced to suggest that democratic regimes are more, not less, likely to back out of agreements. The international norm argument is rather nebulous, and ought to apply to a fair number of autocracies. The domestic norm argument is perhaps the most theoretically attractive (the idea that people in democracies have developed non-violent means of settling political disputes), but again it has difficulty accounting for the reliability with which democracies go to war against autocratic states. Democratic peace theory still faces the difficulty of being an empirical finding without a compelling theoretical justification. Chris Layne wrote a nice piece several years ago detailing situations in which democratic states were saved from war almost by accident.

I’m inclined to think that there is something to the democratic peace, even if we can’t get a handle on it. I would be very cautious, however, in making democratic peace theory the centerpiece of foreign security policy strategy. I’m not convinced that lots of democracies will make the world a safer place, or more congenial to US hegemony. Democracy is valuable in and of itself, and to the extent that we promote democracy it should be for its intrinsic, rather than strategic, value.

Yankee Hating

[ 0 ] July 19, 2005 |

Read this.

Today, apparently, is Duck of Minerva day. Several readers have e-mailed wondering where part III of my China series has gone. The answer is that it is in the same 95% complete status that it was three weeks ago, as are parts IV, V, and VI. From this, you can conclude that I finish projects poorly (which is true), but, more accurately, that moving to Kentucky is rather a time consuming endeavour. I have found that the problem lies less in the actual packing than in shaking off the social universe that I’ve constructed over the past eight years in Seattle. In short, everyone wants to have dinner and a beer.

So, I’m pretty busy. Nonetheless, I’ll try to have Part III out by Thursday evening. Until then, I plan to poach good posts from the aforementioned Duck of Minerva.


[ 0 ] July 19, 2005 |

The answer is no. Grading is the least rewarding part of my job. Dan Nexon puts it just right:

Still, when I try to describe what it is like to grade I often resort to metaphors involving large, brain-sucking monsters slowly gorging themselves on my consciousness and leaving in place the backwash of their bilious orifices.

As Dan notes, the situation is more tolerable in a seminar setting than in a large class. In a seminar setting, students develop ideas through discussion, and you get a sense of how a particular student’s thinking has developed. Also, as Dan points out, a great student essay is a gem and a joy.

However, I still enjoy all the other aspects of my job (writing lectures, delivering lectures, leading discussion, formulating syllabi, formulating assignments, talking to students) more than grading.

Rossi Chickens Out

[ 0 ] July 19, 2005 |

Odd. This is a disaster for the Republicans, because Rossi is the only candidate with even the faintest chance of unseating Cantwell. I’d rather be a Senator than a Governor anyway, but perhaps we should take seriously Dino’s “family man” image. The 2008 gubenatorial election in Washington will be very, very interesting.

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