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Archive for June, 2009

Standing By Your Principles, in Defiance of All Evidence

[ 0 ] June 13, 2009 |

I want to take the opportunity to reiterate one of Lawyers, Guns and Money’s core, foundational beliefs: That Raul Ibanez will never amount to anything.

In search of lost Time

[ 0 ] June 12, 2009 |

Radley Balko and Jeff Winkler stroll down Memory Lane at Time magazine, where moral panic isn’t a sociological concept — it’s an exciting brand of contemporary journalism.

I was at the “obesity summit” Balko references in re the last cover, as pretty much the lone dissenting voice in an ocean of hysteria, and after I did my thing Time’s science editor said from the podium for the benefit of the audience “Paul, we may disagree with what you say, but we will defend to the death your right to say it.” (By “defend to the death” I think he meant “will invite you to conferences like this sometimes”).

Iran Election Thoughts

[ 0 ] June 12, 2009 |

Mahmound Ahmadinejad is a billion times worse than Hitler, unless he loses the election, in which case he was always irrelevant.

… each major candidate seem to believe that he won by forty points. Such views are not, as they say, reconcilable. Could be trouble on the streets of Tehran tonight…

Moussavi continues to claim victory, while Iran’s state controlled media claims that Ahmadinejad has won. Obviously, suggestions of election fraud on the part of pro-Ahmadinejad forces should be treated as plausible. At the same time, polling bounced around enough (and was questionable enough in method) to suggest the possibility of an Ahmadinejad victory.

If Ahmadinejad forces did steal the election, or if they are widely perceived to have stolen the election, then violence seems possible. Indeed, even if Ahmadinejad won legitimately by taking large margins in rural areas, the Iranian regime still has a major problem. If Mousavi’s mostly urban supporters believe that they’ve been cheated, then they may well take to the streets, forcing the regime to respond. And then all bets are off.

I Know Thurgood Marshall, and John Roberts Is…

[ 0 ] June 12, 2009 |

Commenting in defense of grandfather clauses that help to perpetuate previously racist admissions policies and John Roberts’s empty formalism in Parents Involved, David Nieporent asserts:

And both you and Stevens might want to review Marshall’s arguments in Brown. He explicitly explained to the Court that the purpose was to end race-concious decisionmaking, not to (to use the current parlance) promote “diversity.”

This is rather puzzling (except insofar that it’s true that Marshall didn’t think much of the diversity justification per se; my post specifically said that diversity was not the only reason to reject formalism.) I don’t see anything in either Marshall’s oral argument and certainly nothing in Warren’s famously narrow opinion in Brown that leads one to believe that race can no longer be considered in school admissions or that racial classifications designed to promote integration are the equivalent of racial classifications that promote apartheid or stigmatize some races as inferior. Certainly, the forceful way in which Warren and Marshall interpreted Brown with respect to the formally race-neutral (but in practice discriminatory) policies many school boards developed in its wake doesn’t suggest that they find Roberts’s crude tautologies to be a very useful way of proceeding. Stevens’s interpretation of Brown is obviously far more accurate.

As for what Marshall thought about the equivalence of affirmative action and Jim Crow, well, I happen to have Thurgood Marshall right here, and:

For it must be remembered that, during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.


I do not believe that the Fourteenth Amendment requires us to accept that fate. Neither its history nor our past cases lend any support to the conclusion that a university may not remedy the cumulative effects of society’s discrimination by giving consideration to race in an effort to increase the number and percentage of Negro doctors.

I know you’re shocked that a progressive African American lawyer who litigated death penalty cases during Jim Crow didn’t think that affirmative action was equivalent to Jim Crow. But, in fact, Marshall didn’t think that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”; rather, he much more plausibly agreed that “In order to get beyond racism, we must first take account of race. There is no other way.”

Maybe Douthat Was Hired…

[ 0 ] June 12, 2009 |

…because he makes Saletan look good by comparison?

The Paranoid Style, Mainstream GOP Edition

[ 0 ] June 11, 2009 |

It would be irresponsible not to speculate.

Also, Jon Chait on why people Glenn Reynolds need to learn it’s actually possible to be right wing and still hate Jews.

The Fugitive Slave Act, The Freedman’s Bureau, It’s All the Same…

[ 0 ] June 11, 2009 |

Shorter verbatim Jonah Goldberg: “People say, ‘well, why should we be neutral on race when people aren’t neutral about whose family gave more money to a school and all the rest?’ And there’s a longer answer, but a short answer is simply that, you know, we fought a civil war over race. We amended the constitution a couple of times because of race. We had the civil rights act because of race.”

Since you did well in responding to a slightly more concise version of the same silly tautology from John Roberts, over to you, Justice Stevens:

There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education. The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”1 The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.

I know that this will come as a shock to the nation’s conservatives, but if you’re going to claim that racial classifications intended to promote diversity or account for the effects of past discrimination are the precise equivalent of classifications intended to uphold a violent caste system, you really need to at least make an argument. It’s not self-evident.

And, if we’re going to stop with the mindless formalism, maybe we can start by asking — given this country’s extensive history of public and private apartheid — in what sense legacy admissions can be considered race-neutral.

AMA: Maximizing Profits More Important Than The Health of American Citizens

[ 0 ] June 11, 2009 |

Well, this isn’t surprising. Hopefully, this time parochial interests won’t trump the compelling public interest, although given the extent to which American political institutions favor the former I’m still not inclined to bet on it.

The BH We’ll Never See

[ 0 ] June 11, 2009 |

This is clever.

Worst American Birthdays, vol. 50

[ 0 ] June 11, 2009 |

John Yoo and his uncrushed testicles turned 42 years old today.

Because John Yoo is not, in fact, a conservative at all, he seems unbothered by the fact that his government managed to sustain itself for well over two centuries without relying on the insane legal yodeling for which he’ll forever be remembered. As one of the architects of the previous administration’s “theory of presidential dictatorship”, Yoo developed the uniquely indecent claim that the US Constitution was written with a notion to immunize the executive branch from legislative or judicial constraints during a time of war, the definition and duration of which was limited only by the discretion of the executive branch itself. Believing, furthermore, that international laws governing torture are subordinate to US law (and to the extremely narrow definition of “severe pain” espoused by the OLC), Yoo provided cover to the Bush administration as it turned the US into the world’s most sophisticated torture state. His memos and other public statements have proven at least as disgraceful as the conduct they helped authorize.

While John Yoo’s fantasies of unstrapped executive power are of the sort that inspire nocturnal emissions from the likes of Dick Cheney, they have been properly rejected by nearly everyone else, including the more capable legal minds who succeeded him and his fellow torture apologists after they departed the OLC. In a respectable world, Yoo’s disdain for the rule of law would have brought about genuinely unpleasant consequences for him; we can take some minor comfort, perhaps, in knowing that John Yoo will have to be somewhat careful about where he travels, lest he find himself snared by some of the laws he detests so vigorously.

Deep Thought

[ 0 ] June 10, 2009 |

I wonder which of Ross Douthat and Megan McArdle’s pre-existing policy preferences we’re going to have to institute in order to appease the latest domestic terrorist. Certainly, I don’t think there’s any question that this horrible tragedy could have been averted if only the Supreme Court would overrule Roe v. Wade.

Just imagine

[ 0 ] June 10, 2009 |

If radical Muslims had carried out terrorist attacks in Kansas and Washington DC over the past five days, we might be trying to pass legislation giving the president the legal authority to place people in preventive detention, and Daniel Pipes would be implying that we need to round up Arab-Americans (correction: Muslims) and put them in relocation camps.

But it was only a couple of old white guys, so our civil liberties remain unthreatened.

Update: From the Holocaust Museum shooter’s website:

“In 1981 Von Brunn attempted to place the treasonous Federal Reserve Board of Governors under legal, non-violent, citizens arrest. He was tried in a Washington, D.C. Superior Court; convicted by a Negro jury, Jew/Negro attorneys, and sentenced to prison for eleven years by a Jew judge. A Jew/Negro/White Court of Appeals denied his appeal.”

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