Archive for March, 2006
The rule of law? Vaffanculo!
Between Scalia’s recent civility and judicial conduct issues and attending this excellent (if depressing) conference last Friday I was reminded of my favorite assessment of Bush v. Gore, Kim Lane Scheppele’s “When the Law Doesn’t Count: The Rule of Law and Election 2000.” It does a marvelous job of analyzing all of the legal issues, as well as adding interesting comparative perspectives. It’s all worth reading if you’re into this sort of thing, but a couple of points are worth extra emphasis. One of the countless ways in which the decision was utterly lawless that I haven’t mentioned was the obvious Catch-22 the Supreme Court presented the Florida courts with. The Court ruled that the recount ordered by the FSC violated equal protection because the recount didn’t have a uniform standard; and, of course, the recount didn’t have a uniform standard because the Supreme Court told the Florida courts not to use one. As Scheppele points out, to be engaged in this kind of gamesmanship is not be meaningfully engaged in “law” at all:
The U.S. Supreme Court majority in the story of the 2000 election seems to have taken its inspiration from the Knights Who Say NI! in the Monty Python version of the Arthurian legend. Dressed in dark uniforms and towering above the petitioners who came before them, the Justices of the Supreme Court possessed the magic words that, when shouted in chorus, caused those who needed their permission to proceed to cower before them. For it was by pronouncing the magic words that the Supreme Court Justices could cause the most self-confident pretender to the throne to slink away. And, as in the standard fairytale, the Court could set a challenge for the pretender to the throne who, if he met the challenge, must be allowed to get what he sought. The majority’s reading of the fairytale requirements, however, follows Pythonesque conventions rather than the standard ones, and it deviates substantially from what the emerging comparative constitutional standard for rule of law would require.
Between Bush v. Palm Beach County Canvassing Board (the protest phase case) and Bush v. Gore (the contest phase case), the Supreme Court turned itself from the Knights Who Say NI! into the Knights Who Go Neeeow … wum … ping!, no longer “contractually bound” to be satisfied by a litigant who met the challenges that were set originally and who was therefore looking to pass. Transforming itself into the Knights Who Go Neeeow … wum … ping!, the Supreme Court had other ideas. In its new guise, instead of being satisfied by a shrubbery brought before it designed according to their initial request (a solution crafted under a literal reading of the Florida statute), the majority insisted on a new shrubbery with a totally different design (federal constitutional equal protection analysis rather than the literal wording of the Florida statute set the standard). New magic words were necessary to pass through this part of the dark forest of the law, except that the Knights had obviously tired of the game and so simply declared it over.
What is wrong with this, on a rule-of-law account? A great deal, but let me concentrate on two things in particular:
(1)The Whipsawing Problem: There was an apparent shift in the legal frameworks that were found to be important as one case followed another, leading to a sense that the applicable law was not stable and making it very difficult for anyone to orient their conduct in light of the law either before, during, or after the sequence of litigation.
(2)The Impossibility Problem: There was, in the per curiam opinion in Bush v. Gore, an announcement of two crucial legal conclusions – that an equal protection test applied to court-ordered vote-counting procedures and that 3 U.S.C. 5 combined with a “legislative wish” required that recounts not be extended past the December 12 “safe harbor” date. But these two conclusions worked at cross-purposes. Meeting one required violating the other, and vice versa. With this logic, there was simply no place left to stand to claim a remedy that the law seemed to allow and perhaps even to require. The election was declared over as it stood at the moment the Court issued its decision, and no state has ascertained whether the results as they stood on the evening of December 12, 2000 met the equal protection standards the court laid down.
From all of this, we might legitimately wonder whether the United States in fact decided its most recent presidential election according to any coherent law at all.
Between the moving goalposts and the fact that the remedy was completely indefensible given the purported constitutional violation, Bush v. Gore was wholly unprincipled even leaving aside the lack of precedent for the legal argument and the glaring contradictions with the past jurisprudence of at least three members of the majority.
Scheppele also demolishes the claim recently made by Scalia that the Court had no choice but to rule because it was dragged into the case by a politicized Florida court. This implies that the court violated the clear language of the Florida election statute to produce a desired outcome. But Scheppele points out numerous “infelicities” in the Florida election statutes, pointing out the vague language and internal contradictions that make the readings of both the majority and dissenting opinions of the FSC perfectly plausible. Particularly important are infelicity #4 (“In the “contest” phase under Florida election law, a candidate who still believes that there are serious flaws in the election tallies may challenge the certification of the election results. Unlike in the protest phase when the complaint goes to the county canvassing boards for their resolution, the contest phase sends all complaints directly to the Florida courts, which are given very broad latitude to investigate and fashion remedies to fix any complaints they find to be valid. But this great judicial power does not come with many critical constraints – the most crucial one in the presidential electors context being whether there are any deadlines in the process”) and #5 (“If a judge decides that a contest identifies a legitimate problem, then under section 102.168(8) of the Florida Statutes Annotated, the judge can “provide any relief appropriate under such circumstances.” There is no further guidance to the judge.”) The idea, then, that the FSC “usurped” the power of the Florida legislature is absurd: the legislature, in fact, delegated broad powers in resolving election disputes to the courts. And, as I mentioned yesterday, the FSC used a contestable but plausible reading, and it adhered to this reading consistently whether it helped Gore or Bush.
So the claim made by Rehnquist, Scalia and Thomas that the Florida Supreme Court wasn’t engaged in jurisprudence at all couldn’t be more implausible–but it certainly is a reasonable description of their own work. A mild obscene gesture would be a polite way of responding to Scalia’s next pompous lecture about the alleged failures of other judges.
If you saw Atrios’ post today but you don’t read The Stranger, Seattle’s fine alt-weekly, and only know “Savage Love,” you may not be aware of how abjectly bad Dan Savage’s writings before the war were. We’re not talkng about tortured, reluctant, careful support of the war without demonizing its opponents here. Savage, a genuinely first-rate editor, when writing about politics is highly prone to shallow, self-congratulatory contrarianism, and his defense of the Iraq war was as demagogic as Reynolds, as naive as Totten, as ignorant of basic facts and counterarguments as…well, insert name of pretty much any Keyboard Kommando here. Allow us to revisit his less-than-prescient proclamations. We start with an old classic, “the left is objectively pro-Saddam, unlike that sincere liberal internationalist Dick Cheney:”
While the American left is content to see an Iraqi dictator terrorizing the Iraqi people, the Bushies in D.C. are not. “We do not intend to put American lives at risk to replace one dictator with another,” Dick Cheney recently told reporters. For those of you who were too busy making papier-mache puppets of George W. Bush last week to read the papers, you may have missed this page-one statement in last Friday’s New York Times: “The White House is developing a detailed plan, modeled on the postwar occupation of Japan, to install an American-led military government in Iraq if the United States topples Saddam Hussein.”
Hopefully he’s learned by know that discussing how bad “A” is does not compel action without an analysis of what option “B” is and what opportunity cost “($*trillions and trillions)” is.
Wait, it gets worse. The American left, we’re told, consists entirely of pacifists:
Because claiming this victory means backing this war, and the American left refuses to back this or any war–which makes the left completely irrelevant in any conversation about the advisability or necessity of a particular war. (Pacifism is faith, not politics.) What’s worse, the left argues that our past support for regimes like Saddam’s prevents us from doing anything about Saddam now. We supported (and in some cases installed) tyrants, who in turn created despair, which in turn created terrorists, who came over here and blew shit up… so now what do we do? According to the left, we do nothing. It’s all our fault, so we’re just going to have to sit back and wait for New York City or D.C. or a big port city (like, say, Seattle or Portland) to disappear.
Yes, well, except for the fact that the vast majority of the American left supported not only the Kosovo intervention but the invasion of Afghanistan, and pacifism is a fringe ideology with about as much influence in American politics as the use-legalized-hemp-to-free-Mumia lobby. Which leaves us with two options: either Savage defines “the American left” as “the socialist cranks handing out fliers on John and Broadway”, or he’s entirely full of shit. Anyway, moving past a few more strawmen, we get this doozy:
But wait! Iraq isn’t in cahoots with al Qaeda, so why attack Iraq in the war on terrorism?
Because we’re not just at war with al Qaeda, stupid. We’re at war with a large and growing Islamo-fascist movement that draws its troops and funds from all over the Islamic world. Islamo-fascism is a regional problem, not just an al Qaeda problem or an Afghanistan problem. To stop Islamo-fascism, we’re going to have to roll back all of the tyrannous and dictatorial regimes in the Middle East while simultaneously waging war against a militant, deadly religious ideology.
Omitted: an explanation of how replacing a (certainly brutal) secular dictatorship with a Shiite theocracy that relies on sectarian militias for basic social control represents a blow against “Islamo-fascism.”
And, finally, we end up with this old favorite, the Domino theory:
In the meantime, invading and rebuilding Iraq will not only free the Iraqi people, it will also make the Saudis aware of the consequences they face if they continue to oppress their own people while exporting terrorism and terrorists. The War on Iraq will make it clear to our friends and enemies in the Middle East (and elsewhere) that we mean business: Free your people, reform your societies, liberalize, and democratize… or we’re going to come over there, remove you from power, free your people, and reform your societies for ourselves.
Yeah, thank heaven for the invasion of Iraq, or an increasingly reactionary Iranian government might be pursuing nuclear weapons, with the full knowledge that we can’t do anything about it because are troops are stretched to the breaking point elsewhere. Whew, feel the wind of freedom!
So, you know, it’s nice that he’s now seen the light about Bush’s war, but if I were him I would think a little modesty might be in order.
Why has boxing become irrelevant?
Five years ago, ten years ago, fifteen years ago I was always able to name the heavyweight champion, a few of the major heavyweight contenders, and a few of the other major titletholders. Now, I find that the heavyweight title is divided among four different contenders, none of whom I’ve ever heard of.
Boxing is not such a bad sport to watch on TV. It has clear commercial breaks, and tends to be reasonably exciting. The possibilities seem to be as follows:
1) America has outgrown boxing: The American public can no longer, on a consistent basis, deal with the violence of boxing. This seems patently absurd.
2) There are no charismatic boxers: Was Mike Tyson charismatic? Lennox Lewis? Larry Holmes? Evander Holyfield? Doesn’t make any sense.
3) Boxing lacks a central organizational body: This one make a lot of sense. MLB, the NFL, and the NBA all devote an extraordinary amount of effort to marketing their product. The major boxing organizations seem to be most interested in competing against one another, and only tangentially interested in drumming up interest in the sport as a whole.
4) Bad Marketing: I also find this one plausible. I wonder if the major promoters and organizations were too greedy, too enthusiastic about seizing the revenue available from cable and pay-per-view, while remaining oblivious to larger considerations regarding developing a future audience for the sport. The NFL is smart enough to refrain from making the Superbowl pay-per-view, if only because it helps develop a younger audience.
My introduction to Cicero came in a Classics class my freshman year at the University of Oregon. We read Against Verres I, an early case prosecuted by Cicero against the former governor of Sicily, and the Second Philippic Against Antony, a speech written in the days following the assassination of Caesar. Cicero is an odd figure among those ancients still read today. He wasn’t a historian, or a philosopher, or a playwright, although he dabbled in the first two. Cicero’s surviving work is mostly about the practical diffculty of being a politician in Rome at the end of the Republic. Whereas you can read Plato or Thucydides without caring overmuch about local Athenian politics, Cicero is ALL politics, and an interest in Cicero depends, to some degree, on an interest in his times.
That said, Cicero’s life gives us one of the clearest possible windows into the political life of ancient Rome. Cicero was one of the four or five most important men in Rome during the civil wars, and the contours of his life are particular important to an understanding of that conflict. Although much of his work has been lost, many of his most important speeches survive, and we have a lifetime of correspondence between he and his friend Atticus. We know Cicero better than any but his closest friends. As with any political memoir, we are susceptible to Cicero’s deception, but only to the same extent that he deceived himself; the Cicero that comes down to us is not the writer of a self-serving memoir.
The existence of Cicero as a fully realized historical individual is one of the things that attracted me to his writings. Another is an amateur interest in his time and place. Probably most important, I liked Cicero as a politician. Although driven to save the Republic, he was also motivated by a powerful sense of the practical and the possible. In this sense he reminds me most of Edmund Burke, although his purpose leaned more to the institutional than to the social. The revolution in Rome was small potatoes compared to the French Revolution.
Cicero’s experience also demonstrates the inadequacy of a Burkean program. By Cicero’s day, the constitution of the Republic was simply not up to the management of an Empire and its consequent enormous urban capitol. Cautious reform is not a helpful program when one major faction is so entrenched that it resist any meaningful change, and the other is so radical that it rejects basic common ground. Cicero knew this on some level, which is why he was so reluctant to throw his support (and the support of the Senate) behind Pompey in the 50s or behind Octavian in the wake of Caesar’s assassination. The victory of Pompey over Caesar, Antony over Octavian, or even Brutus and Cassius over the Second Triumvarate might have altered the contours of the new Roman state, but would never have saved the Republic as it existed. The fall of the Republic serves to remind that simply because there MUST be a solution does not mean that their WILL be a solution.
Cicero: The Life and Times of Rome’s Greatest Politician, by Anthony Everett, is a solidly enjoyable account of Cicero’s life. It’s not the most exhaustive nor the most accurate biography, but it is very readable. Everett is clear about the evidence that we don’t have, but still makes sensible decisions about filling in Cicero’s life with what we know of the typical existence of an upper-class Roman citizen.
It wouldn’t surprise me to discover that Anthony Everett’s account of Cicero has been used by the writers and producers of Rome. The depiction of the death of Caesar was very close to Everett’s account, and the book came out not long before the series was contemplated. One episode that Everett relates might be fun to depict in the series; although Brutus seems like a stand up guy and all, he once ordered his men to lock the senate of a small town in its building until several of the senators starved. “Nice guy” was a relative term in ancient Rome.
I’m not going to pretend to be scandalized by Scalia’s apparent before-the-fact discussion of the merits of Hamdan v. Rumsfeld. I certainly don’t hold the naive view that Supreme Court justices approach cases with an open mind ready to be persuaded of anything, and in particular oral arguments at the Supreme Court level mean very little (and, indeed, I have defended Justice Thomas from ignorant claims that anything can be inferred from the fact that he rarely speaks at oral argument.) Still, there is something about what seems to be a pretty clear violation of the court’s norms that’s offensive, particularly from Scalia, who attacks his colleagues frequently and pompously for alleged deviations from proper judicial practice. (As Dahlia Lithwick points out, he’s becoming more and more the Bill O’Reilly of the Supreme Court.) Particularly galling is Scalia’s claim in the interview that the Florida court in 2000 was “politicized,” when in fact it consistently applied a perfectly defensible interpretation of the Florida statutes even though this interpretation favored Bush in a majority of cases. (A “politicized” court, for example, surely would have thrown out technically illegal non-postmarked absentee military ballots that almost certainly favored Bush.) Bush v. Gore, conversely, was both completely unprincipled on its face and completely irreconcilable with any substantive legal view or theory of interpretation previously expressed by Scalia, and his stay opinion all but assumes that his preferred candidate was entitled to the Presidency. As Goldstein points out, it’s impossible to say whether Scalia is bound to recuse himself, but his comments are, at least, highly grating.
Yesterday’s oral argument, however, did seem to give some reason for optimism. Both Lyle Denniston and Linda Greenhouse think there are probably five votes to hear the case rather than using a jurisdictional dodge or accept the argument that Congress stripped the Court’s jurisdiction, and both seems to think (as does Lithwick) that it’s very possible that the government will not win on the merits. (In case you’re wondering, the government won at the previous level, so 5 votes are still necessary to curtail the government’s authority despite Roberts’ recusal; a tie would mean the upholding of the military commissions.) Scalia (and, of course, the hyper-statist Alito) were predictable, as Greenhouse reports:
Of the other members of the court, Justice Antonin Scalia appeared most supportive of the administration. He intervened several times to offer Mr. Clement a helping hand, something the solicitor general rarely needs but accepted gratefully.
For example, Justice Kennedy was questioning Mr. Clement on the government’s position that even if the court had jurisdiction, it should abstain from ruling on the validity of the military commission until after Mr. Hamdan’s trial.
Justice Kennedy said he found the argument troubling, pointing out that Mr. Hamdan was arguing that because the commissions lacked the procedures required by the Geneva Conventions, they were invalid. “The historic office of habeas corpus is to test whether or not you’re being tried by a lawful tribunal,” Justice Kennedy said. “And he says, under the Geneva Convention, as you know, that it isn’t.”
Mr. Clement replied that Mr. Hamdan could raise that argument later, before the military commission itself. He predicted that the argument would fail and said that in any event, there was no reason “why that claim has to be brought at this stage.”
Justice Scalia then jumped in to support the solicitor general. “In the normal criminal suit,” he said, “even if you claim that the forum is not properly constituted, that claim is not adjudicated immediately.”
Along with Justice Scalia, Justice Samuel A. Alito Jr. also appeared to support the argument that the court should allow the trial to go forward. Justice Clarence Thomas alone asked no questions.
Hopefully there will be 5 votes to reverse, so that Scalia’s failure to recuse himself won’t end up mattering.
Looks like no more Arrested Development.
On the upside(?), it looks as if there will be an Ocean’s Thirteen, featuring Soderberg, Clooney, Pitt, Damon, and the rest of crew, but excluding Julia Roberts and Catherine Zeta Jones. The exclusion of Roberts can only be met with great rejoicing, as she was the only major flaw to mar the first film, and was key to the worst excesses of the second.
Thanks to the magic of ten channels of HBO, I’ve seen Ocean’s Twelve several times in the last few months. My attitude on it has matured a bit. On the plus side, every moment that Garcia is onscreen is outstanding. The same can be said for Vincent Cassel. Damon is probably better in the second film than the first, largely because he has a richer role. On the other hand, there’s not enough Pitt or Clooney (especially the latter), the pacing is off (Soderberg couldn’t manage the trick of humanizing all eleven members a second time), the scenes with Roberts are uniformally terrible, and the plot is slapped together with visible tape and paste.
So, I don’t know what to think of the third effort. I’ll almost certainly see it, though.
Good one this week, as he slices and dices the Reynolds/Goldstein “the media did it” argument.
Which reminds me: Dave recently noted in comments that Reynolds appeared on Hewitt’s radio show and compared media coverage of Iraq to Southern media coverage in the Jim Crow era. Mickey Kaus, of course, thought this was a good point. I’m not sure the phrase “a new low” can usefully be associated with either gentleman, but using the struggle against Jim Crow apartheid as a shield to defend feeble tautologies about how everything would be good well in Iraq if it wasn’t for that pesky Emm Ess Emm tempts me to use it anyway.
The Editors remind us of the most risible piece of Domenech apologism–Tacitus’ argument that his critics were motivated by not by, say, his red-baiting of Coretta Scott King on the day of her funeral, or the fact that he’s an unqualified hack, but by…a hatred of parents! (In fairness, The Left’s similar hatred of apple pie goes unmentioned.) It’s sort of the ultimate Tacitus post: prolix, not merely spectacularly wrong on the merits (in retrospect you have to particularly enjoy the claim that “the left’s frenzy over WaPo’s Red America is turning out to be a good thing”) but premised on a ludicrous non-sequitur, minor-league McCarthyite mention of a professor’s institutional affiliation without engaging their actual argument, citing an incredibly shoddy Michelle Malkin relieve-the-suckers-from-their-cash “book” as if it was a piece of serious research, and of course a pretension-to-achievement ratio that far exceeds that of Ryan Adams, Matthew Barney, and Andrew Lloyd Webber put together. It’s good that we can at least get a good laugh out of this fiasco…
One of the biggest differences between the Mariners and the Reds is that while the Mariners are guaranteed of 4th place, the Reds merely aspire to it.
Last year the Reds went 73-89, scoring 820 runs and giving up 889. Both of those were the highest in the National League, the latter really a tremendous achievement for any team not playing in Colorado. They were 27 games out of first place and 6 games out of fourth place. Part of the high run totals are because the Great American Ballpark is a solid hitters ballpark, with a factor of about 105 (favorable to hitters). The more important reasons for the high run totals are the Reds’ excellent offense, horrible pitching, and criminally negligent defense. Of the latter, only the Colorado Rockies and the Kansas City Royals had worse defensive efficiency numbers.
Not terribly much has changed between this year and last in Cincinnati. The offense remains potent, with plus offensive players at every position except second base (Freel/Womack/Aurilia), and first base (Scott Hatteburg). The defense remains awful, especially in the outfield. Austin Kearns can play a plausible corner outfield, but Adam Dunn really belongs at first base, and Ken Griffey Jr. can no longer play center. BP has him at -18 runs in centerfield last year, and expects a similar performance this year. The infield defense is a lot better, although the right side of the infield has some obvious difficulties.
The pitching staff remains a big problem. The rotation seems to consist of Aaron Harang, Bronson Arroyo, Brandon Claussen, Eric Milton, and Dave Williams. Harang was a good pitcher last year. Claussen is decent, as is Bronson Arroyo, although Arroyo’s flyball tendencies probably couldn’t have found a worse home than Cincinnati. Eric Milton, on the other hand, turned in one of the worst performances in the history of major league baseball. A 6.47 ERA in 186.1 innings is a bad thing, and there is no reason to expect him to perform any better this year, as he remains a mediocre, flyball heavy pitcher in a wholly inappropriate park in front of a catastrophically leaky outfield defense. Dave Williams will eat some below average innings. Nevertheless, the rotation will probably be slightly better than it was last year. In the bullpen, only David Weather and Matt Belisle are really distinguished.
The best that the Reds can expect is that Austin Kearns will regain his offensive form and deliver the 4-5 WARP (wins above replacement) that he seems capable of. Griffey will be a net plus if he remains healthy and hits like he did last year. Second base will be a disaster unless Ryan Freel takes over quickly from Aurilia and Womack. Edwin Encarnacion looks like a fine regular, and I’m not so worried about his defense. The pitching staff could achieve its extreme upside of mediocrity. If all of that happens, and if Chicago and Houston collapse, then a third place finish in the division and about 81 wins aren’t out of reach.
The worst that can happen is utter disaster. If Griffey gets injured he’s going to be replaced by Ryan Freel, meaning that Womack and Aurilia will be free to suck at second base all year long. Encarnacion may have trouble developing. Kearns may remain stuck at his current level of sub-par production. Harang could take a slight step back, and Arroyo could completely fail in GAB. Eric Milton will remain Eric Milton. In this scenario, the Reds find themselves firmly in sixth place, behind the (gasp) Pirates.
My guess? About the same as last year, roughly 71-73 wins, and probably fifth place.