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Archive for October, 2005

Alito’s Casey Dissent

[ 1 ] October 31, 2005 |

I’m working on a longer piece about it, but let me make a couple quick points about Alito’s lone dissent in Casey, in which he upheld a law that required women to sign a statement notifying their husbands unless they meant a fairly narrow set of exceptions. This judgment was, of course, subsequently rejected by the Supreme Court, which also voted to nullify the notification requirement. While Alito’s argument was not a lawless application of the “undue burden” standard (which, at the time had been set out in a couple of O’Connor concurrencies that the 3rd Circuit assumed for complex reasons was at the time the law of the land), it was very strained, and certainly suggests that (at the very least) he would permit a significantly greater power for states to regulate abortion than is currently the case.

The core of Alito’s argument that the provision does not constitute an “undue burden” is his acceptance of the state’s argument that the spousal notification provision would only affect a small percentage of women seeking abortions. This is, first of all, a strange argument on its face. Indeed, precisely what makes these laws (whether spousal or parental notification) so odious is that for all intents and purposes they only apply to women in the worst familial situations; if you have a good relationship with your parent or spouse, you’re almost always going to tell them anyway. More importantly, in addition to being illogical it is also wrong as a matter of law. As the plurality opinion noted in Casey:

The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. For example, we would not say that a law which requires a newspaper to print a candidate’s reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law. See Miami Herald Publishing Co. v. Tornillo. The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.

Yes. And as the plurality opinion demonstrates in exhaustive detail, “[t]he spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle.” In addition, the plurality also notes that the state’s purported interest in the spousal notification provision is based on anachronistic and patriarchal conceptions of marriage:

The husband’s interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband’s interest in the potential life of the child outweighs a wife’s liberty, the State could require a married woman to notify her husband before she uses a post-fertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband’s interest in the fetus’ safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband’s interest in his wife’s reproductive organs. And if a husband’s interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify — a requirement of the husband’s consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children.

Section 3209 embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry.

Again, this is absolutely correct, and Alito’s acceptance of this state interest as legitimate is troubling to say the least. There’s another puzzling part of Alito’s dissent. For the most part–a perception confirmed by LG&M’s crack unpaid legal research team–is that Alito, while very conservative, is not a careless or unprincipled justice. My arguments against him are philosophical, not based on a claim that he’s incompetent or unfit. But this footnote is extremely odd:

In considering whether Section 3209 would impose an undue burden, I do not take into account a fact that seems glaringly apparent, i.e., that Section 3209 would be difficult to enforce and easy to evade. Section 3209 does not require a woman to provide any proof of notification other than her own unnotarized statement. Thus, if a woman claimed that she had orally notified her husband in private (the mode and place of notification to be expected in most cases), it would be exceedingly difficult in most cases for the Commonwealth to prove beyond a reasonable doubt that she had not done so.

Uh, excuse me? Admittedly, he says he’s not “taking it into account,” although this is disingenuous–why make the argument in a lenghty footnote (and the argument goes on past this excerpt) if you don’t think it’s relevant? Anyway, this doesn’t make a lick of sense–the law’s constitutionality should be looked at more generously because women can just get around it of they’re willing willfully file illegal false statements? Apparently, Alito likes the fact that the law would only burden women who are honest enough to follow the law; this is just bizarre. But this is the kind of oddity that often crops up when discussing laws regulating sexual behavior and reproduction; the fact that the state isn’t serious about applying the laws (even when the purported state interest is serious indeed) is sometimes asserted to be a factor in favor of the constitutionality of these laws. Of course, it’s quite the opposite.

What this opinion means in projecting the future is, of course, uncertain. There’s currently a kabuki dance going on among conservative blogs who support Alito largely because they want Roe overturned, but on the other hand (knowing how unpopular this would be) note that this dissent is not definitive evidence that we would vote to overturn. And the latter point is strictly accurate; since overturning Roe is not an option he had as a Circuit judge, we don’t know for sure. But evaulating how a justice will rule, short of the kind of paper trail that would prevent someone from being nominated in the current context, requires making probabalistic judgments based on the evidene we have. And as his strained, extremely broad reading of the “undue burden” test makes clear, the question is not whether he’ll expand the discretion of the states and Congress to regulate abortion; the question is how much. (And given his analysis in the dissent it is virtually certain that with respect to a case on the Court’s docket that he will vote to make facial challenges to abortion laws much more difficult.) And it certainly provides troubling evidence that he would be willing to go along with overturning Roe, particularly if the Court uses the death-by-a-thousand cuts method advocated by Rehnquist in Webster.


Alito, Hibbs and Federalism

[ 4 ] October 31, 2005 |

“If you were a writer whose short stories were published by an ethnic press affiliated with the University of New Mexico, you would be justifiably surprised to learn that, when your publisher disregarded your copyright, you could not sue for damages because the press was a sovereign entitled to a sovereign’s immunity from suit. If you were a professor of business at the University of Montevallo in Shelby County, Alabama, and were passed over for a raise because of your age, you would be understandably indignant to learn that your university, classified as a sovereign, could not be brought to court for violating federal law against discrimination based on age. If you were a woman attending a state college and you were raped by several members of the football team, you would be more than outraged to discover that, when state authorities did nothing to punish the rapists, federal law was helpless to make up for their deficiency. Yet these and similar results have been reached in the last five years because of judgments of the Supreme Court of the United States.”

–John Noonan, Narrowing the Nation’s Power

In in a somewhat surprising 6-3 decision, in 2003 the Supreme Court held (in an opinion written by Chief Justice Rehnquist) held that the Family Medical Leave Act applied to state government employers as well as private companies. Hibbs effectively overruled an opinion written by one Samuel Alito. In his Chittister opinion, Alito had argued that FMLA had violated the “sovereign immunity” of the state of Pennsylvania, which could not be sued for damages under the act. This jurisprudence is a very important line of cases and very instructive, and since Alito has a stricter interpretation of the court’s precedents than Rehnquist, it’s worth examining this line of jurisprudence in more detail.

The 11th Amendment prohibits “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” In a 1890 case, however, the Supreme Court argued (in what, as Noonan shows in detail, was an exceptionally weak opinion) that the 11th Amendment also implicitly prohibits a citizen from suing her own state. While this decision has never been overturned, it was effectively rendered a dead letter, as the court 1)permitted suits against state officials, and 2)allowed Congress to abrogate this court-created “sovereign immunity.” Starting with Seminole Tribe v. Florida, however, the Rehnquist Court argued that the first exemption didn’t apply to cases involving monetary damages to enforced federal law, and made it extremely difficult for Congress to abrogate the sovereign immunity. (More information on this doctrine here and here.) This doctrine has had far-reaching consequences; in addition to the first two cases mentioned above, the Court has held that the citizens whose rights under the American With Disabilities Act are violated by state employers cannot sue them directly, depriving large numbers of Americans of a crucial form of protection. This case is particularly important, because it makes clear that state institutions–including any branch of the state–will be exempt from Congressional protection of their rights unless Congress is enforcing racial or gender discrimination. (The Court, and not Congress, will determine which people get enforceable rights, even if Congress wants to provide greater protection for minorities.) In addition, it’s a classic demonstration of the conservative catch-22: when the equal protection clause is interpreted more broadly, it’s judicial activism; when Congress wants to increase protections for minority rights, it’s a violation of “states’ rights.”

In addition to the bad substantive outcomes, the “sovereign immunity” cases are also clear evidence that the claims of conservatives that the judges they support (including Alito) are “strict constructionists” are utter nonsense. While perhaps you can defend this line of cases using Thomas’ more natural-law tinged originalism, these cases are a particular embarrassment to Scalia’s purported “textualism” (which may explain why his writing is nowhere to be seen in most of these cases.) With respect to the other big federalism issue–the commerce clause–the language of the Constitution is broad, and can clearly accommodate a number of readings, must certainly including Scalia’s. Conversely, the 11th Amendment–as the Columbia law professor John Manning argued in a superb 2004 Yale Law Journal article– is framed in narrow and specific terms; since it would have been just as easy for the framers of the 11th Amendment to apply it to suits against one’s own state, there is a very strong presumption that they did not intend to do so. And in Seminole Tribe, Rehnquist was quite explicit about this: “although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, ‘we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.'” For Scalia or any other “textualist,” then, endorsing this line of cases is completely unprincipled. Myself, I don’t have a problem with the penumbras-and-emanations analysis Rehnquist is using, as a method. T he problem, however, is that while the structure of the Bill of Rights is overwhelmingly concerned with establishing zones of individual privacy, and a ban on contraception can plausibly be argued to cut against these prohibitions (what meaning would the 4th Amendment have if such a law were enforced? What would the application for a warrant look like?), it is much more difficult to argue that states should be exempt from remedies derived from rights enforcement enjoyed by authoritarian monarchs. The Constitution, in fact, abrogates the “sovereign dignity” of the states in numerous ways: Article I Section 10, the Supremacy Clause, and the 14th Amendment for starters. (And, in my view, the whole concept of “sovereign immunity” is incompatible with a system whose legitimacy is derived from the consent of the governed.) As Souter argued in his brilliant Seminole Tribe dissent, the opinion is actually worse than Lochner:

The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common law or background principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of which is to limit the exercise of governmental power. Some textual argument at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution’s grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal question jurisdiction.

The “sovereign immunity” cases, in addition to be important in and of themselves, are also at the very farthest reaches of the “New Federalism’s” basis in the text of the Constitution. A justice who embraces this line of cases is also likely to be aggressive in Commerce Clause cases, where the textual backing is much more plausible. And these cases, while not widely discussed, affect the lives of large numbers of citizens. Alito’s nomination to the Court is unacceptable, and he should not receive a single Democratic vote.

UPDATE: More about Alito and Hibbs here.

Little Nino Link Dump

[ 0 ] October 31, 2005 |

*Bump* {links will be updated.}

Not much to add to what I wrote below on Saturday. Bush, unfortunately, did learn a lesson from Nixon and Reagan; it’s a smart pick, very reactionary but within a range that will make it difficult to peel of Republican votes. (And I still find it hard to believe that Miers’ votes could have been worse.)

So, it appears highly likely is certain that Samuel “Scalito” Alito will be Bush’s nominee (with Luttig being the other strong candidate.) In crude terms, based on what I know I would say that he’s probably a little worse than McConnell, but a little more palatable than Pryor or Owen. To state the obvious, he shouldn’t get a single Democratic vote, but I would be concerned about the ability to peel off a significant number of Republicans or hold a filibuster; it would be a canny choice by Bush. I would, however, marginally prefer Alito to Luttig. Some links:

  • NARAL opposes Alito: His dissent in Casey “practically ensures that he would never find any burden to be undue.” iocaste explains in further detail, and also notes some crucial cases coming up this term in which Alito is almost certain to uphold abortion regulations. The statement of the Alliance for Justice is here; they’re coming out against Alito.
  • Omnibus Alito reosurces.
  • Professor B has excellent links and analysis.
  • Billmon on Alito’s Casey dissent. Brad Plumer has more. My TAP article is here.
  • Thoughts From Kansas on Alito and women.
  • My take on Alito and federalism. The Angry Bear has more on Hibbs.
  • Shakes Sis on Alito’s strking down a law protecting gay students against harassment.
  • Excellent aricle by Dahlia Lithwick.
  • More useful information from Pam Spaulding.
  • Good roundup from The Heretik.
  • Atrios asks: “It’s time to see if the guy has any actual principles or if the “moderate pro-choice Republican” thing he’s milked his whole career was just a scam.” I’m betting on the latter…
  • Can police officers strip-search a 10 year-old girl without a warrant? Scalito says “yes!”
  • SCOTUSblog has the general overview.
  • PFAW on Alito, with particular emphasis on his dissent in Planned Parenthood v. Casey (he wanted to uphold the entire Pennsylvania law, including the spousal notification provision struck down by the Court.) There is every reason to believe, in other words, that at best Alito would gut Roe and at worse would overturn it.
  • Article III Groupie, as usual, has some very good links, and also reminds us that Clement was also supposed to be a nominee, so you never know.
  • Eric Muller has a personal account, suggesting that Alito is at least personally moderate.
  • Jack Balkin suggests, persuasively, that Luttig would get a tougher ride from the Senate than Alito.

Berlusconi Flips?

[ 0 ] October 31, 2005 |


In a television interview to be aired next week, Premier Silvio Berlusconi says he repeatedly tried to convince American President George W. Bush not to invade Iraq .

In the lengthy interview to be shown on private TV channel La7 on Monday, Berlusconi says that: “I was never convinced that war was the best way to make a country democratic and to bring it out of a bloody dictatorship .

“I tried many times to convince the American president not to wage war… I tried to find other ways and solutions, even through joint action with African leader (Libya’s Muammar) Gaddafi .

“We didn’t succeed and there was a military operation but I believed military action should have been avoided.” The comments were released by La7 two days before Berlusconi was due to visit Washington .

Nice to mention that now, instead of when it might have mattered. But who am I kidding; it’s not as if the voice of one more European capital would have made a difference.

Via Laura Rozen

Why Buy The Cock When You Can Get the Wake-up Call For Free?

[ 5 ] October 31, 2005 |

I was prepared for a lengthy dissection of Ross Douthat’s defense of Leon Kass, but fortunately Phoebe Maltz has taken care of it quite effectively. As Maltz points out, the entire Douthat/Kass “why buy the cow when you can get the milk for free” argument rests on the foundation that withholding the milk doesn’t really entail any sacrifice for women. But, of course, since women in fact like sex too, the whole creaky edifice collapses and sinks back into the swamp from which it emerged. Take away these crude gender stereotypes (men–want teh sex!!!!1!!1 women–reluctantly acquiesce to passively provide it if given material benefits and security), and there’s no argument left. And, of course, these gentlemen also seem unaware that there are men who actually enjoy the company of women, and would happily consent to join committed relationships with them even if they could get laid without doing so. As several commenters pointed out about the first Kass argument, we’re back to the classic Straussian claim that true friendship is something that only exists between men. (About the only thing you can say for this nonsense is that it’s almost as insulting and imperceptive about men as it is about women.) The explicit basis of the argument is the kind of feeble tautologies that have been used to justify male supremacy since Aristotle–which, of course, brings us back to the second part of Leon Kass’ argument, in which he elaborates on his claim that female contraception is destroying society. Douthat, of course, embraces a more genteel version of this biological determinism:

But maybe, just maybe, she should be willing to let men – even middle-aged men, and even conservative intellectuals – take stock along with her. Heck, maybe she could even give them the benefit of the doubt from time to time. For instance, when they claim not to be anti-sex or prudish, she could allow that they might actually mean it. Or again, she might examine their “retrograde notion of female vulnerability” and acknowledge that when it comes to sex and its consequences, women are more vulnerable then men – and that it might not be the end of the world for men, even conservative men, to occasionally recognize this elementary fact.

The problem, of course, is that the simple biological fact that women have children does not mean that women must be more “vulnerable”; this is only the case if we choose to deny them the available technologies, and the information necessary to use them, that permit reproductive freedom. And, of course, this biological fact does not define the natural essence of women any more than the fact that we have to eat means that our nature can be reduced to gatherers and consumers of food (or that are natures are being alienated when we take advantage of technologies that permit most of us to obtain food produced by a small fraction of our population.) What’s striking to me is–despite the grandiose natural law language in which the lipstick is often applied to this philosophical pig–what a remarkably impoverished conception of women this is, how crudely reductionist. The ability to give birth is certainly a wonderful thing, but it hardly defines the “teleological meaning of [a woman’s] sexuality,” let alone her entire being. And one can’t help but notice, of course, that leaves men free and women unfree, from which rises the indefensible double standard so beloved by Kass.

I do agree with Douthat about one thing–I cannot empirically prove that women are now “happier.” I certainly believe that freer women are, in fact, happier in general, and this seems to be the logical inference from the fact that so much legal and social repression was required to compel women to be reduced to following their narrow teleogical destinies, but these claims are inherently beyond empirical evidence on some level–how do you measure happiness among whole genders comparatively across generations? Which brings us back to Maureen Dowd. Professor B suggested in comments that I was being a little cruel with my glib dismissal, and I probably was, but let me explain what I found so bad about the article. Amanda does an excellent job of explaining that her “feminist” analysis is remarkably weak, blaming feminism for trends that are much better explained by the incompleteness of the feminist revolution that of its consequences. But there’s the even more ridiculous implication of her article–captured wonderfully by Jessica’s “feminism isn’t your dating service” line–that the fact that wealth and power seem to benefit women somewhat less than men in the dating market has some sort of major political consequences. While this may be a manifestation of serious actual injustices, in and of itself it doesn’t mean anything. Mating “markets” are, by their nature, arbitrary and unfair–there are always some things that are more valued than others, and no preference order is any less arbitrary than any other. As it happens, if you looked at the women I have been seriously into I think you’ll find they have little in common physically but almost all have IQs well toward the right end of the curve (and given the audience of an obscure lefty blog, I’m guessing this pretty common among readers), and I guess if my preferences were more generally shared this would benefit Dowd. But so what? It seems to me that conventionally attractive women who don’t have high-wattage IQs or Ivy League degrees or whatever are just as “deserving” of stable relationships as anyone else, and so for that matter are women who have neither quality. Dowd’s frustrations are as worthy of empathy as anyone else’s, but it should also be noted that women who have bad skin or are overweight or are poor single mothers face rather greater obstacles in the dating market that conventionally attractive wealthy women who are perceived as too powerful. So, really, the premise of Dowd’s article is very silly and self-serving. (I will have to send in an article for the Times about how the fact that the job and romantic markets don’t place the highest premium on political science teachers who know a lot about baseball, abortion law and pretentious French movies, and how this proves that the New Deal is a sham.) Whatever one thinks about feminism, the fact that the traits most valued in the dating market don’t precisely map onto your best features is neither here not there with respect to the justice of any particular social arrangement.

And, in an odd way, Dowd and Kass/Douthat make the same mistake: their failure to recognize the simple truth that freedom doesn’t guarantee happiness; no way of organizing society can produce such an outcome. Both–K/D in triumph, Dowd in disillusionment–claim that because the (partial) feminist revolution has left people left some women unhappy some of the time it’s a failure, but this is obviously not the right standard to apply. Despite her exaggerations, I do think there is some truth to Dowd’s claim that the traits of many successful women would be seen as more desirable if they were men (and these are relevant insofar is they’re connected to the persistence of patriarchal stereotypes, although Dowd largely fails to make the connection.) And similarly, I don’t deny that Kass knows female undergraduates who are neurotic and unhappy. The problem with these observations is the “compared to what?” question. Free markets in sexuality are like other free markets; some people benefit more than others, and often even people who are “objectively” successful are less happy than they expect to be. But even Marx realized that the fact that economic free markets have serious problems isn’t a good reason to pine for feudalism, and similarly the fact that some people remain unhappy when core relationships are based on romance instead of being a fundamentally economic arrangement isn’t a good reason to go back to arranged, male-dominated marriages. Dowd isn’t wrong when she says that trying to make connections with others is a bewildering experience, and it’s natural to wonder why one can fail to achieve their goals when they seem to have a lot to offer. But this isn’t the post-feminist condition; it’s life. Even if women were fully emancipated, even under a social order of perfect justice, while may people will find stable, loving relationships, it will remain true that love will burn and fade, people will make bad choices, some relationships will end miserably, and some will choose celibacy or have it thrust upon them. Freedom and equality don’t guarantee any particular ends when it comes to human relationships, which are inherently capricious. But they nonetheless remain a better option than just being marginally comfortable in chains.

Lindsay has more.

Almost As Good As Chapter 12: "The Earned Income Tax Credit: Worse Than the Nuremberg Laws"

[ 0 ] October 31, 2005 |

The Editors have received an advance copy of Chapter 8 from Jonah Goldberg’s new book, (Hitler+Mussolini)*10=Bill Clinton:

Reader: I hate to do this, but I’m swamped with research for chapter ten, “Hitlery Clinton, Robert “Third” Reich, and the Final Solution for American Free Market Medicine”. So I really don’t have any time for this chapter. I’’ve left the next fifteen pages blank, so if anybody knows anything about the genocidal, anti-Semitic roots of the Sierra Club, I’’d really appreciate it if you’’d just kind of fill in this space here, and transcribe it into as many unsold copies of this book as possible, I’d really appreciate it. Thanks in advance!

Plus, if you buy it, you’ll get ten boxes of Rich Lowry’s Legacy gratis…

Benzine Patrol

[ 0 ] October 30, 2005 |

How effective would the Republic of China Air Force be against Chinese shipping in case of active hostilities?

Not a good sign.

And In Forty Years It Will All Be Over

[ 0 ] October 30, 2005 |

(Much) Shorter Maureen Dowd: When I like them, they don’t like me. When they like me, I don’t like them.

The thing about solipsistic whining is that while it can be the basis of great comedy sequences, when it comes to interminable NYT Magazine pop-soc thumbsuckers (and, even worse, books! Jeebus, I think I’d rather read Jonah’s the-New Deal-is-just-like-fascism thing, which would at least be funny) that are apparently meant to be taken seriously, not so much.

[UPDATE: Marginally less snarky and more substantive post here.)

BONUS SNARK: Speaking of solipsistic whining, when we were in Vegas Jon Pareles had a great piece called “The Case Against Coldplay,” which I regrettably forgot to link to before it vanished behind the archive wall. Reading an old Voice I still unaccountably had in my backpack while riding the subway yesterday, however, I see that Robert Christgau has provided the concise version:

Tunewise, this is the craftiest of their well-crafted albums. Conceived as a boy group, showing girls who long to believe it that not every guy is a jock, a thug, a lothario, or a male-bonded mook, they might even have their uses. Conceived as a pop alternative to U2 and Radiohead, however, they’re an argument for death metal. Precise, bland, and banal, their sensitivity emotionless and their musicality never surprising, they’re the definition of a pleasant bore–easy to tune out, impossible to care for.

A little generous–Chris Martin is such a wanker I don’t even find them pleasantly dull–but close enough.

New Frontiers In Hackdom

[ 0 ] October 29, 2005 |

You would think that Hugh Hewitt would have enough self-respect to dial his abject shilling for the Bush Administration down to, say, an 8 when writing for the New York Times. You would be wrong. And yet, everyone seems to be focusing on the (admittedly roll-on-the-floor hilarious) claim that the Swift Boat Vet Republican Party has never before used “exaggeration, invective, anonymous sources, an unbroken stream of new charges, television advertisements paid for by secret sources.” But the remarkable thing is, the op-ed consists pretty much entirely of arguments like this; I guess it falls to me to note the other gems. Marvel at the man who would try to pass off something so baldly stupid on a national audience, and the debased standards of the newspaper that would print it:

OVER the last two elections, the Republican Party regained control of the United States Senate by electing new senators in Florida, Georgia, Minnesota, Missouri, North Carolina, South Carolina, South Dakota and Texas. These victories were attributable in large measure to the central demand made by Republican candidates, and heard and embraced by voters, that President Bushs nominees deserved an up-or-down decision on the floor of the Senate.

There are two rather major problems with the claim that the Republican principle that judicial appointees deserve an “up-or-down” vote where a major factor in the Republican takeover of the Senate. The first is that the Republicans don’t believe in any such principle, and this was particularly obvious before the 2000 elections:

In his 1997 year-end report to Congress on the federal judiciary, the Chief Justice pointed out that by the end of 1997, one in ten seats on the federal judiciary were vacant, twenty-six of them had been vacant for at least eighteen months, and a third of the seats on the Ninth Circuit were vacant. He rebuked his fellow conservatives for “serious delays in the appointment process,” a tactic that he said was threatening the nation’s “quality of justice.” “The Senate is surely under no obligation to confirm any particular nominee,” Rehnquist wrote, “but after the necessary time for inquiry it should vote him up or down. In the latter case, the president can then send up another nominee.” Senate Republicans backed away from their stall tactics and the backlog of vacancies eased up in 1998.

But in 1999, as the 2000 election loomed, Republicans again slowed down the confirmation process. Despite Attorney General Meese’s claim that President Reagan’s judicial appointments would “institutionalize the Reagan revolution so it can’t be set aside no matter what happens in future presidential elections,” President Clinton—just ten years after Reagan left office—was close to appointing a new majority on the federal bench. Senate Republicans wanted to prevent that, and they hoped that a Republican president would be elected in 2000 to fill any remaining vacancies that they managed to keep open.

And, of course, in particular, there’s the classic example of the Republicans suddenly abandoning the blue slip rule…after having actively used it throughout the Clinton years to block “up-or-down” votes. So, Hewitt’s claim that the Republicans have always supported “up-or-down” votes for judicial nominees is a claim of breathtaking dishonesty. But even if the claim was true, it would still be risible. Upwards of 90% of the American public can’t even name the Chief Justice of the Supreme Court. To argue that obscure procedural rules governing appointments to lower federal courts played any kind of significant role in shifting control of the Senate provides good evidence that you know absolutely nothing about voting behavior, but nothing else.

And then he turns his Bush-whoring on the somewhat more principled people in his own party who had the temerity the President’s decision to nominate a patently unqualified crony to the Supreme Court, with similar results:

The Miers precedent cements an extraconstitutional new standard for nominees. Had the framers intended only judges for the court, they would have said so. No doubt some Miers critics will protest a willingness to support nominees who have never sat on the bench, but no president is going to send one forward after this debacle.

Now, very atypically for Hewitt, the literal claim that the Constitution doesn’t require Supreme Court justices to have served as judges is accurate, although his attribution of the argument that nobody without experience as a judge could be appointed to the Court to his opponents is not. The problem, of course, is that the Constitution doesn’t specify any qualifications for a Supreme Court justice–any standard that one uses to evaluate Supreme Court nominees would constitute an “extraconstitutional new standard.” To demand that someone be literate, more than 10 years old, or not think that the 14th Amendment reinforced rather than overturned Dred Scott–according to Hewitt, if the framers had wanted to make these qualifications for serving on the Court they would have said so. Therefore, to apply any standards at all to the President’s judicial appointments is an illegitimate “extraconstitutional standard,” so the only alternative is to support literally anybody nominated by the President*, QED. Frankly, it’s unclear why, under Hewitt’s logic, the framers bothered to give the Senate “Advice and Consent” powers at all. (*Offer void during Democratic Administrations.)

As Dan Nexon asks over at Crooked Timber, “[i]s it logically possible for “ideal types”” (e.g., an “ideal-typical hack””) to exist, or is Hugh Hewitt an analytical construct pretending to be a blogger?” I lean toward the latter theory. And there’s another question–is there anything the New York Times op-ed page wouldn’t publish? I’m certainly no fan of the LA Times “Wikitorial,” but when Pinch Sulzberger claims that “[w]e’re not going to open our pages to random people without our having looked at it,” one wonders what the value-added is when Gail Collins apparently applies no more standards than Hugh Hewitt would apply to the judicial appointments of George Bush. There are a lot of intelligent conservatives who would make arguments not larded with comically transparent falsehoods and arguments that would have to gain several levels of plausibility to rise to the level of being “specious”; can’t the Times start looking for some?

Holmes v. Berman

[ 0 ] October 28, 2005 |

While Paul Krugman has turned out to be very effective, I’ve always thought the academic who could be a really exceptional op-ed columnist (or blogger, for that matter) is Stephen Holmes. In addition to his theory scholarship, he’s written a less specialized book (with Cass Sunstein) called The Cost of Rights, which is excellent, very convincingly making the point that the distinction between “negative” and “positive” liberty is inevitably blurred in practice because upholding individual liberties requires a significant amount of state intervention (and, hence, taxation.) In his theoretical work, however, his command of rhetoric and exceptional polemic abilities carry some predictable costs. The Anatomy of Antiliberalism is a good book, but also less than the sum of its parts; he has a lot of devastating critiques of individual theorists–the demolition of Christopher Lasch, in particular, is a treasure–but fails to convincingly make his case that Strauss, de Maistre, Schmitt, MacIntyre et al. share a common intellectual tradition (apart from being reactionary antiliberals.) But there’s no writer I’d rather see turned on contemporary American conservatism on a regular basis.

In early 2003, Homes wrote a superb decimation of Robert Kagan’s much-discussed but very silly Americans Drive Like This, But Europeans Drive Like This. As Holmes pointed out, Kagan’s argument fails in numerous ways, but most importantly by taking into account the ways in which having low military capacity may cause states to underestimate military threats, while ignoring the ways in which having high military capacity causes states to overestimate military threats. Of course, with respect to Iraq the European evaluation of the threat posed by Iraq was far more accurate. In addition, there’s Kagan’s dismissal of non-military means of combating terrorism is far “less realistic” than the European recognition that police work is a crucial component to stopping terrorism.

Now, Holmes has trained his sights on liberal hawks, and produced an even better review essay. While Paul Berman is a more sophisticated thinker than Kagan, the number of fallacies he shares with him are remarkable, and Holmes elucidates them in painstaking detail. Berman’s central argument–like Kagan’s–is that terrorism poses a threat of essentially the same type as fascism and communism, and therefore like security threats from powerful nation-states requires an emphasis on traditional military power. The entire essay demands to be read, but here are a some of the reasons why Berman’s argument fails:

His analogies, first of all, are tendentious to an extreme. Islamist murderousness resembles Bolshevik and Nazi murderousness. The planetary battle against terrorism (World War IV) resembles the planetary battle against communism. Baath dictatorship resembles Islamic militancy. The problem with such comparisons is not only that they are strained. They are also transparently calculated to serve a partisan political program. Analogies that challenge the Bush Administration (such as Palestinian violence and anticolonial violence) are filtered out, not because they are unrevealing but because they introduce a dissonant note.

Take, for instance, Berman’s peculiar claim that “on the plane of anti-American propaganda, the Iraqi Baath and Al Qaeda were already allied” because Saddam’s press had celebrated the September 11 attacks. The nature of this purported alliance between religious insurgents and a secular oppressor is never explained. In other passages, moreover, Berman concedes that Islamic radicalism has arisen in opposition to authoritarian secular regimes. But he is much less interested in possible causal connections between the two than in their metaphysical identity. His false moral clarity rests entirely on his assertion that spiritually they are one and the same. The Administration’s attempts to associate Iraq and Al Qaeda logistically came to naught. Berman’s cultural and philosophical approach, by contrast, raises the identification of Saddam and Osama, the tyrant and the terrorist, to a level of blurry abstraction that no facts can possibly refute.

A second weakness appears in Berman’s repeated assertion that antiwar liberals are naive optimists, oblivious to the deep roots of irrational violence in human nature and therefore unable to take the true measure of our fanatical enemies. But should someone who speculated that an American invasion of Iraq would force Islamic extremists to give up their paranoid conspiracy theories about the Jews accuse others of facile optimism? He classifies Saddam’s Iraq as “totalitarian” because “there was no sign of democratic opposition at all.” But did this absence not suggest that an occupying army would find no well-organized constituencies for a reconstruction of Iraqi politics along liberal lines? What kind of political system did Berman imagine would emerge in Iraq after the toppling of Saddam? Was it going to be a democracy, namely a system in which a well-organized incumbent party loses elections to a well-organized opposition party and voluntarily leaves office knowing that it will not be harmed once out of power? Is that what he, with his understanding of human irrationality, expected for Iraq?

And how good a job does Berman himself do at identifying and understanding the gravest threats to American national security? Here lies the third flaw in Berman’s framework. He uncritically endorses Bush’s repeated claim that 9/11 was not a crime of mass murder but rather an act of war against America. Putting his own thoughts, as he often does, in the mouth of his subject, he writes: “Fischer rejected the policeman’s view of Islamist terror–the idea that, with a handful of well-chosen arrests or the dismantling of a small number of underground cells, the problem could be solved.” Terrorism is not a police problem, because policemen cannot redraw the political map of the Middle East, spread freedom or compel extremists to abandon their extremism. Only soldiers, apparently, can do these things.

We are dealing, admittedly, with off-the-shelf categories, since neither the war paradigm nor the crime paradigm fits perfectly the battle against transnational Islamic terrorism, which involves political violence by nonstate actors. But Berman, like Bush, prefers the war model to the crime model, because the former seems to signal a more serious approach, a willingness to send young men to die in large numbers, for example.

But this suggestion of greater realism and seriousness is deceptive. The war paradigm, besides inflating all too conveniently the unsupervised powers of the executive branch, assumes that America’s unrivaled military superiority guarantees its success in the current struggle. It suggests that our enemy will eventually surrender and that we will be able to put the nightmare behind us. The crime paradigm has less rosy implications. It assumes that our government can no more stop the importing of a nuclear weapon into a major urban center than it can stop the clandestine flow of contraband drugs. That is to say, the crime paradigm, when applied to terrorism, has chilling implications precisely because it denies that “the problem could be solved.” To turn from the crime paradigm to the war paradigm, therefore, does not bespeak a greater willingness to face the enemy. On the contrary, it is a classic case of sticking one’s head in the sand (of Iraq). [My emphasis]

All quite correct. Another very important point is Berman’s elision of the role of religion in terrorism (which is related to his incomprehensible claim that “jihadi suicide” is “the height of modernity.”) In addtion to being coniveient to his current Republican allies, this also allows him to further avoid thinking about the tensions between secular authoritarianism and Islamic terrorism, in ways that are quite crucial to defending the Iraq War. Given the fact that Iraq posed no direct threat whatsoever to the United States, in order to make the case for war as a security benefit the liberal hawk requires the assumptions that 1)the deposal of Hussein would lead to a reasonable stable pluralistic liberal democracy, and 2)that such a state would provide a model that would create a domino effect that would democratize the middle east. There are obvious problems with the second peg of the argument, but prarticularly problematic for the first is the liklihood that a quasi-democratic Iraqi state is also likely to be an Islamic quasi-theocracy, which is some ways will be even more hostile to Israel and more supportive of Islamic terrorism than the Baathists. As Holmes notes, Berman’s attempt to subsume a complex conlifct into the categories of “freedom” versus “tyranny” leaves him unable to deal with these crucial distinctions.

Anyway, a summary cannot do it justice–read the whole etc.

No Rove

[ 0 ] October 28, 2005 |

…apparently he won’t be indicted. Not surprising.

They’re in the Bingo Halls

[ 0 ] October 28, 2005 |

Redbeard alerts me to a crucial victory in the War on Terror, one that is happening in my own backyard.

Kentucky has been awarded a federal Homeland Security grant aimed at keeping terrorists from using charitable gaming to raise money.

The state Office of Charitable Gaming won the $36,300 grant and will use it to provide five investigators with laptop computers and access to a commercially operated law-enforcement data base, said John Holiday, enforcement director at the Office of Charitable Gaming.

The idea is to keep terrorists from playing bingo or running a charitable game to raise large amounts of cash, Holiday said.

Five laptop computers and access to a law enforcement database cost $36000? Ain’t federalism great?

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