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Archive for July, 2005

Filing Rob

[ 0 ] July 1, 2005 |

Stupid test. Via Lindsay.

The things I am mildly surprised at are:

I’m a little bit farther toward the libertarian on the liberty/authority divide than I expected.

I’m more of an asshole than I had previously believed (Altruism 1, Co-operation 5). Moreover, those numbers are in comparison to other adult men, rather than to the population as a whole, and that demographic has no shortage of assholes.

I have never thought of myself as neurotic (69).

I didn’t realize how achievment averse I was (0), although it does seem to explain a lot.

Age: 31
Gender: Male
Location: Seattle, Washington
Religion: None
Occupation: Academic
Began blogging (dd/mm/yy): 05/31/04

Political Compass Results
Economic Left/Right: -4.25
Social Libertarian/Authoritarian: -6.00

EXTRAVERSION: 55 (Average)
Friendliness: 53
Gregariousness: 93
Assertiveness: 70
Activity Level: 14
Excitement-Seeking: 20
Cheerfulness: 58

Trust: 74
Morality: 13
Altruism: 1
Co-operation: 2
Modesty: 5
Sympathy: 59

Self-Efficacy: 27
Orderliness: 72
Dutifulness: 22
Achievement-Striving: 0
Self-Discipline: 6
Cautiousness: 76

Anxiety: 51
Anger: 92
Depression: 58
Self-Consciousness: 50
Immoderation: 91
Vulnerability: 32

Imagination: 75
Artistic Interests: 15
Emotionality: 14
Adventurousness: 12
Intellect: 71
Liberalism: 96

Track List:
1. Philosophy, et cetera – – pixnaps97a2
2. Lawyers, Guns and Money


Speaking of Which…

[ 0 ] July 1, 2005 |

In disturbing news from frequent commenter Thad’s alma mater (and, OK, I admit, mine), further evidence that cultural reactionaries always see social change as legitimate as long as it’s not done via a judicial opinion:

A McGill professor is encouraging Canadians to reject the new same-sex “marriage” legislation.

Douglas Farrow, associate professor of Christian thought at McGill University in Montreal, proposes that Bill C-38 is “illicit legislation, the binding nature of which must be contested.”

The change to the legal definition of marriage assumes a “positivist view” of law – one that “admits few givens, and no firm limits, for political or juridical authority.” The positivist view contrasts with the classical tradition, which, like the preamble to the Canadian Charter of Rights and Freedoms, links belief in the rule of law to belief in the supremacy of God.

Contrary to popular wisdom, says Farrow, it is the positivist rather than the classical view that has tyrannical tendencies. The new legislation, he claims, extends these tendencies by marginalizing families and faith communities, which are the proper “home” of natural rights and freedoms.

After indicating the threat to natural rights and freedoms posed by the legislation, Farrow offers several practical suggestions for opposing it, including advice for clergy, parents and professionals. He adds that “there is an urgent need for participation in the political and legal processes by which this land is governed.”

Farrow calls for “vigilance against the growing statism that, under the cover of a perverted ‘rights’ discourse, now threatens us with a new and dangerous Leviathan.”

Dreaming in Technicolor: Post-Roe Received "Wisdom" Edition

[ 0 ] July 1, 2005 |

Since we’re undoubtedly in for a rash of silly “contrarian” articles arguing that criminalizing abortion in at least 20 states will be good for abortion rights for some reason, I’m happy to see than online magazine publisher Atrios gets it:

As a secondary issue I’ve always been a bit puzzled by those who think that the Roe decision somehow made politics nasty. When legislatures have the power to legislate this issue, it will be, at least for a time, the central issue for every candidate in every state and federal election. It will be all abortion all the time


Yes. A thousand times yes. I suppose people can argue about whether or not Roe made abortion politics more nasty, although the next person to offer any substantial evidence for this claim will be the first. We cannot argue that Roe created the New Right or the pro-life movement; people who make that claim are people who simply don’t know what they’re talking about. And, certainly, it’s just baffling that people think that overturning Roe would somehow moderate the debate. It would make the issue more salient, and make it increasingly nasty as bills are brought to votes in Congress and a majority of state legislatures.

[ 0 ] July 1, 2005 |

Friday Cat Blogging. . . Stromboli

Abortion Post-O’Connor: A Primer

[ 0 ] July 1, 2005 |

As many of you know, Sandra Day O’Connor joined with Souter and Kennedy to fashion a compromise that upheld the core holding of Roe v. Wade in Planned Parenthood v. Casey. Casey’s standard for abortion regulations was whether the regulation represented an “undue burden” on a woman’s right to choose an abortion. In theory, the standard could have some teeth, but the Court has applied it to permit a significant amount of regulation, including parental consent, parental notification, waiting periods, and consent forms. (The Court did strike down spousal notification laws under the standard; a cynic might note that this is the one type of regulation that would affect O’Connor and a poor woman equally.) Before O’Connor resigned, 6 justices on the court agreed with Casey.

iocaste warns in comments below that we should not be to complacent, and others agree. The biggest reason for worry is Justice Kennedy’s dissenting opinion in Stenberg v. Carhart, which struck down a Nebraska statute banning D&X abortions. iocaste is not alone in reading Kennedy’s opinion as having some second thoughts about his previous vote. (“Ignoring substantial medical and ethical opinion, the Court substitutes its own judgment for the judgment of Nebraska and some 30 other States and sweeps the law away. The Court’s holding stems from misunderstanding the record, misinterpretation of Casey, outright refusal to respect the law of a State, and statutory construction in conflict with settled rules. The decision nullifies a law expressing the will of the people of Nebraska that medical procedures must be governed by moral principles having their foundation in the intrinsic value of human life, including life of the unborn.”) Obviously, if one reads Kennedy’s opinion in this way, then O’Connor’s replacement may bury Roe.

I don’t want to encourage anyone to be complacent, but in all candor I don’t think this reading is right. I’m inclined to take Kennedy’s claim that he believes Casey was correctly decided but misapplied in Carhart at face value. I don’t think that Kennedy will be the fifth vote to overturn Roe. Kennedy’s opinion in Lawrence–which not only overturned Bowers but did so more bluntly than is typical in a Supreme Court opinion (“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent”)–does not suggest any doubts about the general line of reasoning in Casey. I very strongly doubt that he’s suddenly become less willing to keep Roe than he was in 1992.

Having said that, this is not to say that O’Connor’s replacement doesn’t matter for abortion right–far from it. First of all, it means that the “partial birth abortion” ban passed by Congress will almost certainly be upheld, something that has all kinds of potential for mischief. It also means that the chances of abortion regulation meeting the “undue burden” test has become greater. And, of course, even if the effect of replacing O’Connor is to make the vote for upholding Casey 5-4 rather than 6-3, that’s obviously not trivial. John Paul Stevens is 85. Ruth Bader Ginsburg is 72 and has had cancer. As today’s announcement reminds us, Supreme Court resignations are unpredictable; we could easily see a dam burst, as happened in the 30s, and we don’t know who will be in the White House in 2008. So, no matter what Kennedy’s current views are, O’Connor’s resignation and replacement matter a great deal for reproductive freedom.

…MJD brings up another point in the comments below. I do think that overturning Roe would not, on balance, be good for the Republican Party. My guess, though, is that this doesn’t really matter to Bush. If he’s willing to make social security privitization the domestic centerpiece of his second term, he’s certainly going to be willing to appoint an anti-Roe justice to replace O’Connor. Everything about the lead-up suggests that Bush wants the most conservative justice he can get through the Senate.

The O’Connor Legacy, I

[ 0 ] July 1, 2005 |

An important point that should be kept in mind:

Justice O’Connor’s resignation today raises interesting questions about her political identification. If one reads many far-right wing sites, O’Connor was a liberal, barely distinguishable from Justice Ginsburg, if not Jesse Jackson. Yet, if the rumors of her comments when Gore was thought the victor of the 2000 election are correct, and there is some truth to claims that Justices try to time resignations, Justice O’Connor clearly preferred that Bush appoint her successor than Gore. Apparently, her efforts to push the court to the right on such matters as federalism and takings were far more important to her than the occasional vote to overturn a particularly egregious death sentence and the privacy cases.

O’Connor was, overall, a very conservative justice. She was just somewhat less principled (or, to be generous, more “minimalist”) than Scalia or Thomas, which is beneficial for people who don’t like Scalia’s jurisprudence if not to her credit in other respects. I will return to the significance of the federalism cases later. But I think as well–granting that the case is even more embarassing for S/T/R–that we should not forget about Bush v. Gore. As Jeffrey Rosen said (New Republic, 12/25/00):

On monday, when the Supreme Court heard arguments in Bush v. Gore, there was a sense in the courtroom that far more than the election was at stake. I ran into two of the most astute and fair-minded writers about the Court, who have spent years defending the institution against cynics who insist the justices are motivated by partisanship rather than reason. Both were visibly shaken by the Court’s emergency stay of the manual recount in Florida; they felt naive and betrayed by what appeared to be a naked act of political will. Surely, we agreed, the five conservatives would step back from the abyss.

They didn’t. Instead, they played us all for dupes once more. And, by not even bothering to cloak their willfulness in legal arguments intelligible to people of good faith who do not share their views, these four vain men and one vain woman have not only cast a cloud over the presidency of George W. Bush. They have, far more importantly, made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O’Connor…


The unsigned per curiam opinion in Bush v. Gore is a shabby piece of work. Although the justices who handed the election to Bush–O’Connor and Kennedy– were afraid to sign their names, the opinion unmasks them more nakedly than any TV camera ever could. To understand the weakness of the conservatives’ constitutional argument, you need only restate it: Its various strands collapse on themselves. And, because their argument is tailor-made for this occasion, the conservatives can point to no cases that directly support it. As Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer wrote in their joint dissent, this “can only lend credence to the most cynical appraisal of the work of judges throughout the land.”

What, precisely, is the conservatives’ theory? “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another,” they declare. The citation is Harper v. Virginia Board of Elections, the case that invalidated the poll tax in 1966 on the grounds that it invidiously discriminated against the poor. But there is no claim here that Florida’s recount law, shared by 32 other states, discriminates against the poor. Indeed, Florida argued that its scheme is necessary to avoid discrimination against the poor, because a uniform system of recounting that treated the punch-card ballots used in poor neighborhoods the same as the optically scanned ballots used in rich ones would systematically undercount the votes of poorer voters. By preventing states from correcting the counting errors that result from different voting technologies, the conservatives have precipitated a violation of equal treatment far larger than the one they claim to avoid.

Particularly given O’Connor’s personal stake in the outcome, Bush v. Gore remains a towering monument to bad faith. And it should not be ignored.


[ 0 ] July 1, 2005 |

Wow. The strange thing is that while this wouldn’t have been unexpected at all last year, I was thinking so much about Rehnquist that I didn’t really think about this. Anyway, this is a much more divisive and important nomination. Not, directly on Roe–which has six votes–but in some important cases O’Connor is a crucial fifth vote (affirmative action, for example.) A Scalia-type justice replacing O’Connor will make a major difference, and that’s plainly where Bush is headed.

Although it’s now an associate rather than chief, I guess I’d still say Luttig is the most likely appointee. In some ways, he makes more sense as an associate than chief. Garza #2, Clement #3.
More once I’ve had a chance to absorb this…

Is "BTUing" Obsolete?

[ 0 ] July 1, 2005 |

Ezra brings up an interesting point about the House, which apparently likely to vote for hopeless Social Security legislation this year. On its face, this does indeed seem remarkably stupid. However, I think some things have changed since 1994 that makes “BTUing” a much less significant factor. (Well, actually, I’m pretty skeptical that the BTU issue had much of anything to do with the Republican takeover in 1994 in the first place, but let’s say for the sake of argument that it played a role.)

  • Rational Party Re-alignment. One reason that the Republicans were able to take over in 1994 is that there were still a significant number of Democratic seats (especially in the south) in ideologically conservative districts. Eventually, they were going to turn Republican, and many did in 1994. There are a lot fewer of these districts for Republicans to cherry-pick now, however.
  • Computer Gerrymandering. We’ve had at least one more round of sophisticated gerrymandering, which combines with the point above to make the number of non-safe seats exceedingly small. Most House Republicans just aren’t vulnerable, no matter what kind of Social Security Legislation they vote for.
  • Increased Party Discipline. The increasingly Parliamentary nature of the House makes it much more likely that a Social Security privatization bill can be rammed through. Even for the relatively small number of members for whom a vote for a phase-out bill would put their re-election at risk, the risks of being cut out of party money and support are likely to be greater.

Combining all these factors, I think it’s actually quite likely that this will happen, but unfortunately I’m not sure it will be quite the boon to Democrats that some think.

As a final point, while most interested people are at least vaguely aware of these trends, I think their effects on American democracy deserve a lot more attention. The House, which was designed to be the short-term majoritarian snapshot of shifting interests and values, has in some ways become even more insulated from these trends than the Senate. This really throws a wrench into the constitutional framework. Alas, it’s much easier to identify the problem than to fix it; the problems of path dependence are pretty dire.

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