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Archive for August, 2006

But…he was Swarthy!!!!11!!ONE!!!!1!

[ 0 ] August 31, 2006 |

Shorter wingnuts: the failure of the national media to immediately label the crazed actions of someone with severe mental problems enraged by a fight with his mother an act or terrorism with no evidence other than the perpetrator’s ethnicity doesn’t prove that we’re drooling racists–it proves that the MSM is objectively pro-IslamoCommieNaziTransnationalHumanist! (Best example here.)


Union Busting

[ 0 ] August 31, 2006 |

Yglesias reminds us that reality TV isn’t just evil; it’s Evil.

Oddly, the last 10-15 years has seen some of the most complex and interesting television in the history of the medium (Buffy through the Sopranos through Deadwood through Veronica Mars), and some of its most irredeemable garbage (any reality show). On the upside, the prevalence of reality TV means that I don’t have to worry about paying attention to half of the schedule in any new season…

This Causal Chain Seems To Be Broken

[ 0 ] August 31, 2006 |

Shorter Ross Douthat: Frat boys would have never engaged in lewd, vulgar behavior or the sexual exploitation of women if it wasn’t for those meddling feminists and Milton scholars who drive fancy cars.

Roy offers an alternative bumper sticker.

The Death of Conservertarianism, Part the Umpteenth

[ 0 ] August 31, 2006 |

Glenn Greenwald has a good post about Richard Posner’s interview with fellow lapsed libertarian Glenn Reynolds and Helen Smith. I find Posner’s arguments troubling in many respects, although I would focus on slightly different aspects than Greenwald does. In fairness to Posner, he cannot be accused of a contradiction in advancing a flexible method of constitutional interpretation; he’s always been (or, at least, is when he’s not engaging in intemperate, tendentious attacks on justices who use his pragmatism to achieve different ideological ends–his attack on Douglas is pretty embarrassing given what he’s now arguing) an explicit advocate of pragmatic interpretation and has always disowned “originalism” and “judicial restraint.” Indeed, his essay “What Am I? A Potted Plant?” remains one of the better critiques of originalism, and while his defense of Bush v. Gore fails it’s the best of an admittedly awful field because he at least makes no pretense that the decision was compelled by text or precedent or consistent with the previous jurisprudence of the justices who authored or joined the opinion of the court. Greenwald is, of course, correct that Posner’s arguments are inconsistent with what Republican elites claim is their constitutional philosophy, but after Bush v. Gore I’m not willing to pretend that these claims are serious even for the purpose of knocking them down.

Even on its own terms, however, I think that his argument is problematic in numerous respects. The first problem, as Marty Lederman argues in detail, is that Posner’s defense of the President’s breaking of the FISA statute both stretches his flexible interpretation past the breaking point and completely contradicts the institutional arguments he’s making. A pragmatic legal approach is consistent with reading the Fourth Amendment very narrowly when construing FISA, but surely it cannot accommodate the ongoing violation of the laws of a coequal branch if pragmatism is to be a legal approach at all. And Posner cannot claim that Congress can act as a constraint on Presidential powers rather than the courts if he believes that the President can simply ignore Congressional constraints.

This leads us to the second problem, which is the amount of circularity that underlies his argument. Posner has a persistent problem with changing the premises of his cost-benefit analyses to reach politically conservative results, and this is no different. Reynolds says, correctly, that “what’s interesting is that Posner’s advocating a “more European” approach to national security powers.” But the problem, as Greenwald and Lederman say, is that for better or worse the United States Constitution establishes very different constitutional standards than France. Surely, this at a minimum this puts on the burden of proof on Posner to demonstrate that such a radical change in the constitutional order is necessary–but based on what we’ve seen of his arguments so far, all we have is multiple layers of question-begging. His argument is premised on a number of extremely questionable assumptions–that terrorism represents a threat of an order sufficiently different in kind from other threats of avoidable death that would surely not justify a substantial de facto revision of the Constitution, that it justifies emergency executive powers although it does not have the time boundaries of a typical military conflict, that these threats cannot be dealt with under the current system, that nearly arbitrary executive power is a more effective means of thwarting terrorism than a system of supervision and robust checks and balances, that expanded executive police powers can be easily cabined by invoking the vague term “national security”–that he makes little effort to defend. Perhaps he will in his book, but so far he hasn’t come close to meeting the high burden that would be necessary to justify his arguments. The skepticism that he applies to state power in other contexts simply vanishes here, despite the considerable scope of the expanded authority he’s arguing for.

Like Posner, I am a pragmatist. I happen to agree with Posner that Lincoln’s famous “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” argument is “unanswerable.” The problem–even leaving aside that while Lincoln asserted the right to initiate extraconstitutional powers during periods of genuine emergency, unlike Bush he never claimed these powers were unreguable–is that the situation that Bush faces is simply nothing like what Lincoln faced. There’s no existential threat, there’s no ongoing insurrection, and to strain the concept of “emergency powers” to apply five years after 9/11 with no subsequent attacks on American soil would be to render the qualification to executive power meaningless. It’s possible, I suppose, that the current conflict may justify an informal amendment to the Constitution, such as happened with respect to the powers of the federal government during the New Deal. But Posner has–pending his book–not made a remotely convincing argument that such changes are necessary. And I can’t imagine any argument that could justify the President violating acts of Congress five years after 9/11.

In Other Nerd News…

[ 0 ] August 30, 2006 |


Bond Thoughts

[ 0 ] August 30, 2006 |

I’m sitting here watching Die Another Day on Spike, and thinking to myself that Brosnan-era Bond really failed to live up to its promise. Of the four films one is genuinely excellent (GoldenEye), one is a solid contribution (Die Another Day, with an outstanding first half and a terrible second half), and two are mediocre to poor. Brosnan was certainly a superior Bond to Dalton, but that’s not saying much; it’s hard to evaluate Dalton’s films as part of the canon because they simply don’t feel like James Bond films. I would rate Moore’s tenure marginally higher because of the quality of the first two films, although Roger appeared in some awful clunkers.

In any case, the Brosnan era was characterized by exceptionally well crafted opening bits. The title sequences in GoldenEye and Die Another Day are probably the best in the franchise, although the mediocre Tina Turner song detracts from the former. There’s nothing really surprising about this, given that so many directors today have gotten their starts in music videos, and that a Bond opening sequence is really just a video with some extra action thrown in.

I still don’t know what to think about Daniel Craig.

Conservertarianism Explained

[ 0 ] August 30, 2006 |

Les Nesman was a prophet. Admittedly, the post-9/11 version would involve the Patton side running over the Murrow side with a steamroller, but you can’t predict everything!

With a pointless Dylan list imminent, I should also note that you can knock Infidels all you like, but in its combination of Nice Guy (TM) ressentiment and paranoid hawkishness “Man of Peace” also anticipated the two great themes of the conservative blogosphere by decades!

Sex Discrimination and Supreme Court Clerks

[ 1 ] August 30, 2006 |

Jill points us to this Linda Greenhouse article about the decline in female clerks at the Supreme Court. While I concede Eugene Volokh’s point that you can’t read too much into a one-year decline, given that this is simply another data point in the long-term underrepresentation of women among Supreme Court clerks the larger questions about this remain outstanding, and as Jill says it’s exceptionally implausible to think that discrimination (whether direct or structural) isn’t playing a significant role. It’s worth noting that one explanation for why only 147% of Scalia’s clerks in the last 7 years have been women–“could not find enough conservative women to meet his test of ideological purity”–is problematic because if I understand correctly Scalia usually hires at least one liberal clerk. And it’s also worth noting, of course, that Scalia not only wrote a dissent expressing withering contempt for the idea that the equal protection clause could apply to gender discrimination (although the 14th Amendment is framed in general terms, it’s unclear why the 15th Amendment mentions race explicitly if the general protections of the 14th Amendment were publicly understood as applying only to race, and Scalia’s historical analysis doesn’t even rise to the level of being cursory in any case), but went out of his way to make clear that he was sympathetic to Virginia’s denial of a military education to women as a matter of policy. Is it unreasonable to think that his beliefs might affect his choice of Supreme Court clerks? At any rate, it’s simply doesn’t pass the straight face test to think that less than a half-century after Sandra Day O’Connor graduated third from her class at Stanford Law and was only offered secretarial jobs, and a quarter century after the Chief Justice expressed dismay about the possibility of the first woman being appointed to the Supreme Court, that these attitudes have completely vanished, or that the effects of long-term systematic discrimination have filtered out of the system after such a short time.

It’s also worth nothing the various ways that sex discrimination plays a role in the lack of women among Supreme Court clerks. Last month, Volokh suggested that women “might have more difficulty getting their husbands to move with them than men would have getting their wives to move with them (perhaps because the women’s spouses are more likely to have hard-to-move jobs than the men’s spouses)” and “might have more difficulty clerking, especially in a highly demanding clerkship, if they have children than comparable men would.” This is right, but of course this isn’t an alternative explanation to sexism–these practices constitute sexism. Justice Scalia has nine children–does anybody think that the responsibilities inherent in having a large family should have prevented him from being a prominent academic and judge? There’s nothing inevitable about women will the ability and training to be top-rank lawyers being forced to choose between family and careers; nothing about having a penis makes one incapable of caring for children.

A final note is that I don’t mean to suggest that there’s anything about being “conservative” per se that leads to sexism in choosing Supreme Court clerks. As you can see here, Thomas–who, I reiterate, is not a Scalia clone at all–has a pretty good record of hiring female clerks (and, conversely, the great liberal William Brennan was notoriously hostile to female clerks.)

Don’t Whine, Fight

[ 0 ] August 30, 2006 |

Big Number of Blogs Matt gets it exactly right:

This, I think we can assume, is the fall campaign. The idea is to psyche the Democrats out. To make them think they can’t win an argument about foreign policy. To make them act like they can’t win an argument about foreign policy. And to thereby demonstrate to the American people that even the Democrats themselves lack confidence in their own ability to handle these issues.

It’s essential that the debate be joined, and joined with confidence. Rumsfeld is a buffoon. A punchline. A well-known liar. He and his bosses — Bush and Cheney — are running around the country trying to cite the failures of their own policies as a reason to entrust them with additional authority in order to continue and intensify those same failings. We’re witnessing the bitter, bitter fruits of the Iraq War. Other nations learned that they must seek nuclear weapons as soon as possible to safeguard themselves from a newly trigger happy United States of America. Muslim opinion was sharply polarized against us. Iran and Syria were told that their cooperation against al-Qaeda was no longer needed because their governments would topple soon enough. A power vacuum was left on the streets of Baghdad that parties aligned with Iran have rushed to fill. The Arab-Israeli conflict was sidelined as something that would magically resolve itself once Saddam Hussein was out of the way. And America’s allies were taught that our government was not to be relied upon — that we operated with bad intelligence and initiated wars of choice without any real plans or ideas about how to cope with the aftermath.

That’s how we got here. By listening to Bush. By listening to Cheney. By listening to Rumsfeld. The idea that we should keep on listening to them is absurd.

Right. Complaining about “politicizing” the debate is silly, not only because it’s perfectly appropriate to “politicize” questions of foreign policy but because it’s inevitable. The Democrats faced legitimate difficulties in 2002 and 2004 because wars are generally popular in the beginning, but even that’s no longer the case. They have to hit back against this nonsense hard, and given the manifest failures of Bush’s policies it’s not as if there isn’t plenty of material. And I agree that this is a good start.

In related news, according to Thomas Ricks’ Fiasco Cheney gave this speech–which, in addition to virtually every word being a lie, all but committed the administration to an invasion or Iraq–without Bush’s advance knowledge.

The Baseball Bat of Analogies

[ 0 ] August 30, 2006 |

When in doubt, whine about appeasement.

I wonder when the “lesson” of 1938 will lose its force. I would like to think that its days are numbered, especially given how often (and how badly) supporters of the 2003 Iraq War have been driving the analogy into the ground. By invoking the analogy ad nauseum, I suspect that “hawks” are slowly depriving it of any rhetorical meaning. Then again, 1938 survived the Vietnam War, an experience that should have put any decent analogy in its grave.

Let’s be brief. There is no meaningful parallel between 1938 and 2006. Appeasement is a strategy that has been in the toolbox of statecraft since the beginning of diplomacy, and it often works. The experience of 1938 is commonly simplified and misunderstood. “Appeasement” exists now only as a rhetorical stick capable of bashing anyone who opposes any war under any circumstances; it’s more a baseball bat than a helpful tool for thinking about international politics.

To put it as clearly as possible, when you hear someone invoke 1938 to justify military action, you know they’ve got nothing. It’s as dead and meaningless as any cliche can be. You’re either talking to a moron or to someone unwilling to supply his or her real reasons for military action.

The Self-Hatred of the Anti-Pluralist

[ 0 ] August 30, 2006 |

s.z., writing about Mark Steyn’s upcoming book, notes this curious argument from the jacket: “The future, as Steyn shows, belongs to the fecund and the confident. And the Islamists are both, while the West–wedded to a multiculturalism that undercuts its own confidence, a welfare state that nudges it toward sloth and self-indulgence, and a childlessness that consigns it to oblivion–is looking ever more like the ruins of a civilization.” You will recognize Steyn’s argument from the Cold War–in the 70s and early 80s, remember, neocons were convinced that the C.I.A was underestimating the strength of the crumbling Soviet Union. A common error of the jingoist is a paradoxical underestimation of the strength of liberalism as a political system. Henley:

Much of the rhetoric about “dhimmitude” confuses, out of cowardice or ambition, the inability to impose Western will on Muslim territories with the inability to resist Muslim aggression. Take the recently concluded (or paused, if you’re a pessimist) Israel-Hezbollah War. Actually, take the 1982-1990 Israel-Hezbollah War. In 1982 Israel went into Lebanon intending to impose a particular order in the country’s South. Hezbollah was able to frustrate that aim and, a couple of decades later, compel Israel to quit the country entirely. What it has always been unable to do, and remains unable to do, is to take and hold even an inch of Israeli territory for so much as a day.


The notion that the Islamic Way of War could achieve grandiose objectives, like imposing the much-feared “dhimmitude,” is just laughable. Forget for a moment that, if push comes to shove, we still have enormous stocks of conventional and nuclear weapons. There’s nothing inherently “Islamic” about TIWOW. Simply put, we could do it too if we had to.

This is quite right. Islamic terrorism is quite incapable–even with the formidable power of the graduate seminar–of creating a “spread of totalitarianism” that could get anywhere near liberal democratic states. Indeed, I think Henley concedes too much when he says that “The 3/11 atrocities in Spain were ambiguously successful in convincing Spain to quit Iraq.” Granting the “ambiguously” qualifier, the fact is that the Iraq war was extremely unpopular in Italy Spain [although the original was accurate!] prior to 3/11–its citizens apparently being rational enough to understand that installing an Islamic quasi-state in Iraq would not be an effective way of combating the legitimate problem of terrorist attacks. To the extent that 3/11 mattered, it was almost certainly because of the government’s dishonest attempt to pin the attack on Basque secessionists rather than some desire to engage in appeasement. At any rate, while terrorists are capable of inflicting isolated but horrific attacks, it’s equally clear that Al Qaeda’s goals are utterly unachievable. Liberal democracy, with its recognition of the fact of pluralism, is in fact a considerably more robust system of government than authoritarianism.

Making a Desert out of the Desert.

[ 0 ] August 29, 2006 |

Huzzah to Yglesias for pointing out that settlement in an area once known as “The Great American Desert” is project likely to suffer from the occasional drought. If I recall my undergraduate history correctly, the period between 1870 and 1890 was one of milennially high rainfall in the Great Plains, which led to a situation in which the area was radically oversettled, well beyond what it could actually support. Drought in the area isn’t the exception, it’s the rule.

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