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Archive for September, 2005

"How I learned to Stop Worrying and Love Genocide"

[ 0 ] September 30, 2005 |

The web security team at The New York Times need to do a better job of protecting what’s left of that institution’s shattered reputation. Their plan, to put their most embarrassing writers in a place no one would look, won’t work if these leaks persist. The Editors were the victims of such a leak, that demonstrates Thomas Freidman redefining strategery for the 21st century. The masochists among us can find Freidman’s latest discharge here.

Here is my hope: the more bloggers link to these links, the harder the Times will try to shut them down. C’mon, boys, help Tommy out. He needs his obscurity intellectual property rights defended with the greater vigor.

[ 0 ] September 30, 2005 |


Friday Cat Blogging. . . Midnite

"We Must Never Forget That It Is A Constitution We Are Expounding"

[ 2 ] September 30, 2005 |

Ann Althouse is, however, certainly right about this:


Scalia said that the politicization of the Supreme Court could be attributed to the emergence of a “judicial philosophy which says the Constitution is indeterminate.””It will become unpoliticized, as it relatively used to be, as soon as we go back to saying the Constitution means what it says, and it means what it meant when it was adopted,” he said.

As I have pointed out before, the idea that the broad Constitutional generalities that are subject to the greatest controversy can somehow be “determinate”–that conclusions can be produced that no reasonable and knowledgable person could disagree with–is absurd. (As Lindsay notes, Ronald Dworkin–who has a much greater faith in the ability of grand theory to constrain judges than I–makes this elementary point clearly in his evaluation of John Roberts.) Obviously, the idea that concepts such as “unreasonable search and seizure” and “cruel and unusual punishment” and “due process” can lead to mechinical, formalist outcomes in all concrete cases is self-evidently wrong. This is not to say that constitutional law is crudely reducible to politics, or that all constitutional arguments are equally plausible. But on no question of any significant interest does the Constitution reliably yield determinate outcomes.

These objections are well-known, so I won’t go on at great length, but Scalia’s claim that originalism can “depoliticize” constitutional discourse is incorrect for three major reasons. The first is that, as Richard Posner (and countless others) have noted, the choice to use originalism is itself a political choice. The text of the Constitution does not require that it be interpreted by the use of any particular method. It is not, of course, surprising, that “originalism” is preferred by conservatives, as by definition it will tend to produce more reactionary outcomes over the long run. This is fine, and it’s perfectly appropriate for conservative presidents to take these consequences into account, but the use of “originalism” is in no way somehow innocent of politics. Second, even among its adherents “originalism” does not yield determinate outcomes. The historical record is inherently inconclusive even for trained historians, and of course law office history generally falls well below such standards. In addition to that, originalism does not answer important questions such as the level of generality at which constitutional clauses are to be interpreted. Randy Barnett and Robert Bork are both originalists, but obviously disagree on countless issues. Pick any landmark case: Lochner, Brown, Roe–and you’ll find serious originalists on both sides of the question. And finally, in practice Supreme Court justices are never fully constrained by grand theory. To find Scalia choosing his political preferences over the demands of his interpretive methodology you have to go all the way back to Raich. And even Thomas, who is a more principled originalist than Scalia, reaches outcomes in a variety of cases–most notably affirmative action and free speech–in which he doesn’t even try to justify the result in originalist terms, because it’s virtually impossible to make the case in these terms. (All of these points, I should add, can be made about any grand theory, whether used by liberal or conservative judges; the point is not to say that originalism is illegitimate, just to say that it can’t produce determinate outcomes.)

And, of course, it’s absolutely laughable for a man who signed Bush v. Gore to complain about a “politicized” judiciary. It’s not just that the majority opinion completely contradicts Scalia’s previous writings about the equal protection clause, or that even the decision’s defenders don’t claim that it could be justified in “originalist” terms. It’s that the decision was wholly unprincipled even on its own terms–the Court was unwilling to either require a legally appropriate remedy or to articulate a principle that could be applied in future cases. If Scalia’s concerned about the execessive “politicization” of the judiciary, perhaps he should start with his own chambers first.

Save Habeas Corpus

[ 0 ] September 30, 2005 |

Kevin Drum links to this terrific article about the Streamlined Procedures Act, which would severely restrict habeas corpus rights that go back to that dangerous piece of judicial activism the Magna Carta, and restricts federal oversight although the appointed federal courts have always been more reliable than elected state courts where criminal justice is concerned. And iocaste is right: it’s a scandal that what little coverage there’s been of this extremely important bill has been limited to op-ed pages.

…just from this last term, consider Miller-El v. Dretke. The prosecutor in Miller-El’s capital trial used pre-emptory strikes to remove 10 of the 11 qualified black jurors during voir dire, and during that term in Batson v. KY the Supreme Court ruled that the discriminatory use of pre-emptory challenges was unconstitutional. As Souter noted, “[t]he prosecutors took their cues from a 20-year old manual of tips on jury selection, as shown by their notes of the race of each potential juror. By the time a jury was chosen, the State had peremptorily challenged 12% of qualified nonblack panel members, but eliminated 91% of the black ones.” Despite this, ordered to reconsider the case in light of Batson the Texas courts upheld the egregiously racist actions of the prosecutor. As Souter says, “the state court’’s conclusion that the prosecutor’s’ strikes of Fields and Warren were not racially determined is shown up as wrong to a clear and convincing degree; the state court’’s conclusion was unreasonable as well as erroneous.” Not surprising–remember, on the Texas courts Al “Ten Minute Memo” Gonzales was considered a moderate. Removing effective supervision from courts like this is an awful idea.

iocaste also has a useful guide to the current habeas process, which has already made bringing meritorious claims very difficult.

Memes!

[ 0 ] September 30, 2005 |

I have been lax in my responding-to-memes responsibilities, so given that I’ve been tagged by Lindsay I’d better submit what I’ve read of the 100 banned books list:

The Chocolate War by Robert Cormier; The Adventures of Huckleberry Finn by Mark Twain; Of Mice and Men by John Steinbeck; The Catcher in the Rye by J.D. Salinger; The Color Purple by Alice Walker; Blubber by Judy Blume; The Handmaid’s Tale by Margaret Atwood; To Kill a Mockingbird by Harper Lee; Beloved by Toni Morrison; The Outsiders by S.E. Hinton; The Pigman by Paul Zindel; A Light in the Attic by Shel Silverstein; Brave New World by Aldous Huxley; James and the Giant Peach by Roald Dahl; American Psycho by Bret Easton Ellis; Slaughterhouse-Five by Kurt Vonnegut; Lord of the Flies by William Golding; Native Son by Richard Wright; The Adventures of Tom Sawyer by Mark Twain; Song of Solomon by Toni Morrison.

Not a very impressive list; too much reading about sabermetrics crowding out would would for any normal, well-abjusted person be the period for young adult books is a major problem.

I would like to propose a meme of my own, which is admittedly exceedingly lame (and, in my case, embarassing.) Jesse links to this list of the top-grossing moives of 1985. Now that I’m a cranky snob when it comes to movie I’m lucky to see one or two of a year’s top 20, but at the time I not only had more catholic tastes but my best friend’s father was very well-connected and got a lot of movie passes, had Canada’s equivalent of HBO when it was unusual to have it, etc. So I was suprised how many of these that I’ve seen (I still remember seeing a sneak preview of Fletch as a double feature with Gotcha! (Jesus H. Christ on a popsicle stick.) So, anyway, of the top 50 movies of 1985, I have seen (ones I saw in the theater in bold):

1. Back to the Future
3. Rocky IV
4. The Color Purple
5. Out of Afr…zzzzzz…sorry, I fell asleep before I could finish the title.
6. Cocoon
7. The Jewel of the Nile
8. Witness
9. The Goonies
10. Spies Like Us
11. Police Academy 2: Their First Assignment
12. Fletch
14. European Vacation
16. The Breakfast Club
19. Pee-Wee’s Big Adventure
20. Brewster’s Millions
22. Jagged Edge
25. Commando
26. Teen Wolf
27. 101 Dalmatians (Re-issue) (1985)
28. Silverado
31. Desperately Seeking Susan
32. Prizzi’s Honor
34. Agnes of God
36. Summer Rental
37. The Emerald Forest
38. Weird Science
43. Porky’s Revenge
45. Volunteers
46. Young Sherlock Holmes
47. Year of the Dragon [if you thought Heaven's Gate sucked...]
49. The Sure Thing
50. Invasion U.S.A.

Hmm, that’s one impressive collection of crap. I think it’s safe to say that my taste has improved, although I would have been a more agreeable date back then. (“What? See Serenity when there’s a “Louis Malle’s most depressing existientialist movies” festival in town?”) And at least even as a young teenager I knew enough to avoid Joel Schumacher. (I’m not counting E.T., which I saw on a sneak review before its original release and haven’t seen since.)

I offer either meme to anybody who dares to answer their call!

Big Papi!

[ 0 ] September 29, 2005 |

Nice to come home just in time for the winning single. Thank Jeebus–it was looking like a strong possibility of the Pinstriped Douchebags in the playoffs without even a dramatic Sunday game to compensate. And the Orioles were just dead on their feet…you know when James “The Fire Next Start” Baldwin comes into the game in the 3rd inning that it’s hopeless…

Final Days

[ 0 ] September 29, 2005 |

Dave Noon has taken a commanding lead in the second half LGM Baseball Challenge. Barring a stunning five days from Loomis, Noon will take the prize, which is, of course, a free year long subscription to LGM. Noon has also retaken the lead in the full year challenge. The full year prize is an all-expenses paid (by you) date with an LGM contributor of your choice.

1 Axis of Evel Knievel, d. noon 3482 3363= 6845
2 New Mexico Alterdestiny, E. Loomis 3536 3280= 6816
3 Shangri-La Coelacanths, J. Daw 3170
4 Discpline And Punish, S. Lemieux 3151
5 Oregon Bearded Duck, R. Farley 3096
6 SLC Maniloff, P. Maniloff 3056
7 Chan Ho Ballpark, P. McLeod 2781
8 Sweet&Tender Hooligans, J. Dudas 2744
9 Exciteable Roland, P. Kerwin 2610

Eric Thibodeau continues to lead College Pick’em. I hope that the fact that I finally understand how to play the game (higher numbers mean more points), means that I’ll be doing better in the future.

1 Old Old Blue , e. thibodeau 166
2 PantherPundit , M. Schirber 154
3 Largo Housepainter , S. Meredith 152
4 Vulgar Marxism , E. Loomis 135
5 Wowee Zowee , M. Stewart 118
6 Oregon Bearded Ducks , R. Farley 112
7 Plethora of Robots , I. Fish 110
8 Axis of Evel Knievel , d. noon 70

"Times Are Changing’ Back"

[ 0 ] September 29, 2005 |

Ah, finally a group than Ann Althouse won’t have to engage in bizarre projections to like! Even better, because they sing about nothing about politics, there’s none of those pesky “aesthetics” to boil off before you can absorb the only thing you’re interested in. I think this may be my favorite Right Brothers lyric:

Well, I ain’t never seen a grandma
Strap dynamite around her waist
Or put explosives in her slip-ons
And try to blow a plane to outerspace
As a matter of fact every terrorist act
That’s taken place in the friendly sky
You must understand has been by an olived skinned man
Between 18 and 35

Chorus
You can’t racial profile
We’ve got laws against that insensitive attack
And meanwhile, they can pull every granny out of line
You can poke ‘em and prod ‘em if they’re yellow, black or white
But if they’re Middle Eastern well you’d better treat ‘em right
‘Cause being politically correct is more important than saving lives

I’m not sure what’s worse; having Sean Hannity transcripts read by a badly drawn duck, or turned into crappy folk music. Now, compare this to something written by a real artist:

Oh, who did you meet, my blue-eyed son?
Who did you meet, my darling young one?
I met a young child beside a dead pony,
I met a white man who walked a black dog,
I met a young woman whose body was burning,
I met a young girl, she gave me a rainbow,
I met one man who was wounded in love,
I met another man who was wounded with hatred,
And it’s a hard, it’s a hard, it’s a hard, it’s a hard,
It’s a hard rain’s a-gonna fall.

Oh, what’ll you do now, my blue-eyed son?
Oh, what’ll you do now, my darling young one?
I’m a-goin’ back out ‘fore the rain starts a-fallin’,
I’ll walk to the depths of the deepest black forest,
Where the people are many and their hands are all empty,
Where the pellets of poison are flooding their waters,
Where the home in the valley meets the damp dirty prison,
Where the executioner’s face is always well hidden,
Where hunger is ugly, where souls are forgotten,
Where black is the color, where none is the number,
And I’ll tell it and think it and speak it and breathe it,
And reflect it from the mountain so all souls can see it,
Then I’ll stand on the ocean until I start sinkin’,
But I’ll know my song well before I start singin’,
And it’s a hard, it’s a hard, it’s a hard, it’s a hard,
It’s a hard rain’s a-gonna fall.

And then imagine the kind of person who would try to reduce even the latter to nothing but a position paper, or even worse would have to convince themselves that the writer shares their political convictions before they could appreciate it. When you come down to it, Stalinist aesthethics are their own punishment…

Hill

[ 0 ] September 28, 2005 |

We would be remiss in not wishing Goodfella Henry Hill a pleasant stay at his local correctional facility.

Via Alterdestiny.

Did Earnest Byner Throw Out the First Pitch?

[ 0 ] September 28, 2005 |

Ah, much to the dismay of this Yankee-hater, the Tribe somehow manged to be shut out by the pitching-like stylings of Mr. Seth McClung this evening. And the Red Sox are also choking–I think it must be the curse of Curt Schilling’s Schilling for Bush. Gad, the Yankees may have this wrapped up before Sunday…

Che Guevara? You’d Better Believe He Was A Right-Winger.

[ 0 ] September 28, 2005 |

Shorter Ann Althouse: Emma Goldman, William O. Douglas, and Eugene Debs are just three of the many people formerly thought of as leftists who were clearly men and women of the right; after all, they were strong individuals. And Stalin must have been a right-winger too; after all, I’m a right-winger, and I admire his aesthetic principles.

(Via Crooked Timber.)

Love Is Always Scarpering, or Cowering, or Fawning–You Drink Yourself Insensitive and Hate Yourself in the Morning

[ 0 ] September 28, 2005 |

Looking for a nice, hackish response to the DeLay indictments, I turned to Powerline, who certainly didn’t disappoint. First, Assrocket repeats the completely false claim that Ronnie Earle is a “partisan hack.” Then he prints some DeLay speeches and press releases verbatim, rather than trying to put them into his own words as usual. And then, the punchline: “The Bush administration should take a lesson from DeLay’s aggressive self-defense.” Yes, if there’s any problem the Bush administration has, it’s their constant tendency to admit that they’re wrong while refraining from criticizing their political opponents.

But you kind of have to feel sorry for him, and not only because nobody could be such a bootlicking hack and maintain an ounce of self-respect. After all, if Earle hadn’t shot poor DeLay, Assrocket could’ve had him for his wife…

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