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Archive for May, 2010

Is Kagan the Democratic Roberts?

[ 28 ] May 10, 2010 |

Responding to attempts to analogize Elena Kagan to Harriet Miers — which are certainly problematic in several respects — Matt analogizes Elena Kagan to John Roberts. I think this analogy, however, is at least equally problematic. First of all, Roberts did have a judicial track record in the federal appellate courts. But even more importantly, orthodox Republican conservatives in the post-Reagan era are a lot more ideologically homogeneous than mainstream elite Democrats. As Matt reminds us by bringing Larry Summers into the discussion, elite mainstream liberalism encompasses a fairly wide variety of views, not all of them very attractive or progressive. Maybe Matt thinks that a moderate, largely pro-business, squishy on civil liberties justice like Stephen Breyer is good enough in the context of a soon-to-vanish 59-41 majority with another appointment almost certainly pending next year. I don’t. And while Kagan could turn out to be better than Breyer, she could also be worse; we have no idea. And that’s the problem.

In a context in which a more accomplished and more clearly liberal justice could be confirmed, the pick just can’t be defended.

Anarchy in the UK

[ 8 ] May 10, 2010 |

Later this afternoon, I will begin a short research trip to the nation formerly known as the United Kingdom. My research had originally focused on pedestrian topics such as the origins of the Royal Air Force and Cold War collaboration between the ASW arms of the RN and the USN. However, in the wake of the post-election collapse of Great Britain into an apocalyptic hellscape, I have an almost unique opportunity to complete my Apocalypse Specialist CAE (Continuing Apocalypse Education) requirement. I can only hope that I arrive before the mobs figure out that the Public Record Office is a source of black magik and witchery most vile, and burn the documents for warmth.

I am told that the following represent actual footage from the streets of London:

Lib Dems set forth negotiating position with Labour:

Labour responds:

Tories set loose the landed gentry upon the mob:

The Crown threatens to make an example of David Cameron:

Incidentally, if you live in London or Plymouth and have always wanted to meet a real, live, genuine founding member of LGM (not one of these latecomer knock-offs) drop a line; will be in the UK until May 21.

The Stark Reality of Defense Contracting

[ 1 ] May 10, 2010 |

Davida Isaacs and I have an article at TAPPED on Iron Man 2 and defense contracting:

Explosions, tattoos, and Scarlett Johansson notwithstanding, the disputes between Tony Stark and his antagonists revolve around ownership of the rights to the Iron Man technology. Iron Man 2 is the most expensive movie ever made about an intellectual property dispute.

There’s a non-trivial connection to the Elena Kagan nomination; to the extent that the Supreme Court allows wide use of the Military and State Secrets privilege, small inventors will remain at the mercy of larger defense contractors.


[ 47 ] May 9, 2010 |

Apparently, Elena Kagan will be nominated for the Supreme Court.   I will go into more detail about this later, but there shouldn’t be any sugarcoating — it’s a poor choice.    One way of seeing this is to examine Marty Peretz’s attempted defense.   Boil off the usual add homienems and you’re left with no actual real credentials for the position attributed to Kagan.   He doesn’t try to argue that Kagan — who has no judicial experience, very limited political experience, and no record of influential scholarship — is a better choice than Diane Wood or Sidney Thomas, because the proposition is pretty much indefensible.   When you’re reduced to noting that a prospective nominee for the highest court in the land is a “brilliant conversationalist” and that other Harvardites think she’s good people. one has pretty much conceded that the pick is Ivy League nepotism of the worst sort.      An the idea that the complete absence of evidence about her constitutional vision is no big deal is something that’s easy for someone who will never be denied an abortion, be discriminated against by an employer, etc. to say, but for people who actually take such things seriously it’s rather important.

As the conservative reaction to Harriet Miers indicates, they do take their constitutional values seriously.  I suspect we’re about to find out that far too many liberals don’t.    And if the Senate that is likely to have many more Republicans after the 2010 midterms rejects or filibusters Obama’s next nominee, this will rank as a blunder on a par with Reagan’s failure to nominate Robert Bork while the GOP still controlled the Senate.     You don’t waste a pick on a blank-slate centrist when your position in the Senate is about to get dramatically weaker.

UPDATE: I should emphasize, in response to an issue raised in comments, that I’m not directly comparing the credentials of Kagan and Miers; obviously the former’s, while much weaker than the other candidates on the shortlist, are superior to those of Miers. Rather, I’m simply noting that many Republicans insisted on a nominee with a clear commitment to conservative constitutional principles, and torpedoed the Miers nomination. Obviously, that’s not going to happen here.

Toward Even Happier Mothers’ Days…

[ 1 ] May 8, 2010 |

Send mothers you know a customized version of this video at Also, check out Nicholas Kristof’s a long list of organizations working to improve the world for mothers to which you can contribute.

VE Day, Moscow Style

[ 22 ] May 8, 2010 |

Nice slideshow of the 65th anniversary celebration of the end of the Great Patriotic War. Love the T-34s:

But especially dig Medvedev’s handshake with Death:

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Marty Peretz weighs in on the awesomeness of Elena Kagan

[ 32 ] May 8, 2010 |

And boy does he have good argument!

I’m a bit bemused that my favorite trivial pursuit is illustrated by a cover story in Peretz’s own magazine.

Is It Time to Ban Explosive Weapons?

[ 21 ] May 8, 2010 |

UK-based NGO Landmine Action says yes. In a recent report, the organization points out that we do not consider explosive bombs an acceptable tool in police operations, and proposes they be stigmatized as tools of counter-insurgency and military operations other than war as well – at least when used in populated areas. Read more…

Want Electoral Reform Mr. Clegg?

[ 30 ] May 8, 2010 |

Then the time is now to stop pussyfooting around with the Tories, and do this, FFS.  The SNP and Plaid Cymru are open to a progressive coalition?  Do it, Nick.  If you think that David Cameron is going to pay any more attention to the long standing goal of the Liberal Democrats for Proportional Representation than piss all over it once he has the keys to Number 10, you’re an idiot.

If, however, you’re not really keen to seize this moment to introduce electoral reform (which would have prevented the humiliating irony of increasing your vote share yet decreasing your seats), but would rather prop up a minority Tory government until they feel confident enough to call a snap election and secure their own majority in Parliament, thus pissing all over you twice, have at it.

At least I was correct in suggesting that the interesting moments of this election would not be on election day itself, but the days that follow.

One More Kagan Point

[ 7 ] May 8, 2010 |

To follow up on one point raised by Paul, I was genuinely puzzled by this post by Ilya Somin. This isn’t because I disagree with his argument that being an outstanding dean doesn’t require one to be an outstanding scholar. Rather, my puzzlement comes from the opposite direction: I would have thought that it’s obvious to the point of banality that being a successful scholar generally provides little evidence that one can be a successful administrator, and vice versa. And while I’m reluctant to address this on Paul’s behalf, I think — and he can correct me! — that it’s flatly erroneous to claim that it’s Paul’s “implicit assumption that being an outstanding dean requires you to be an outstanding scholar.” This turns the case against Kagan on its head. In its most extreme form, the argument against Kagan would run more along these lines. I do think Jotman goes too far, in that assuming that deans aren’t serious scholars is (to put it mildly) a very dangerous one that is likely to be fallacious in many cases. One only has to look at Harvard Law (where Kagan was replaced by Martha Minnow) and Yale Law (where Harold Koh was replaced by Robert Post) — all first-rate scholars; indeed, I would be very happy to see any of the three get a Supreme Court nomination. I’m also disinclined to second-guess the tenure process at Chicago; even elite law schools — hell, perhaps even especially elite law schools — need outstanding teachers.

But none of these caveats add up to much of a justification for nominating Kagan for the Supreme Court. The real issue, as Somin eventually acknowledges, is this:

Whether that record justifies an appointment to the Supreme Court (which requires skills somewhat different from either a dean or a scholar) is a different question.

Right – that’s the issue. While I wouldn’t say that administrative ability is entirely irrelevant to the work of a Supreme Court justice, especially for an associate justice it’s a credential of very marginal importance. If we were dealing with a Koh or Minnow or Post or Sullivan — where a prospective nominee had demonstrated administrative ability on top of a record of outstanding scholarship — it might be considered a small additional point in their favor. But in evaluating a Supreme Court nominee, I think it’s obvious that scholarship is vastly more important than administrative ability, both because it’s more relevant to the position and because without scholarship or a judicial record it’s impossible to evaluate a nominee’s constitutional vision.

Being There, Elena Kagan edition

[ 8 ] May 8, 2010 |

Some thoughts on the impending nomination.

The wildly contrasting impressions about Kagan can be easily reconciled if one assumes that people who know Kagan are simply projecting their own political inclinations and commitments onto her. This is an extremely common phenomenon: if you like someone and believe she is fundamentally a good and fair-minded person, while at the same time knowing nothing about her own politics, it’s the most natural thing in the world to attribute your politics (for after all, are you not eminently “fair-minded” on all sorts of difficult political questions?) to her. Thus naïve progressives assume a Justice Kagan would be lion of the left, despite the profound affection she elicits among establishment and conservative figures (and the checks she’s cashed while consulting for Goldman Sachs), while conservatives assume she will be a “good” liberal” (which is to say not very liberal at all).

In this sense, Kagan is a much more extreme version of her former University of Chicago colleague, Barack Obama. As an elected politician, Obama has not of course been able to go to anything like Kagan’s lengths in avoiding public positions on controversial issues. Still, a year and a half into the Obama administration, progressives continue getting a rude surprise every time Obama does something profoundly objectionable to the left wing of the Democratic party – even though evidence of Obama’s supposedly progressive political agenda has always tended to consist of little more than wishful thinking.

In some ways, nominating Kagan to the Supreme Court would be the ultimate expression of this trend. Armed with a nearly filibuster-proof majority in the Senate, and poised to replace the most “liberal” (sic) member of the Supreme Court, Obama seems ready to nominate someone whose progressive legal credentials are basically invisible.

Progressives – and indeed people of all political inclinations – should demand more. In theory, there’s nothing wrong with nominating someone to the Supreme Court who has never been a judge. And I have no reason to doubt that Elena Kagan is as fine a person as all her friends say she is. But in practice, a lifetime appointment to the Court should require more than having lots of friends in high places. Meriting such a position should involve clearing a very high evidentiary bar. In Kagan’s case, that bar seems to have been placed on the ground.

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Robin Roberts and the Whiz Kids

[ 31 ] May 7, 2010 |

Another great tribute from Posnanski. Roberts was just a tremendous pitcher for his first 8 years (and had a second wave of very good pitching after joining the Orioles in the 60s), although because of the relative failure of his teams doesn’t seem to get discussed in that light as much as he should. R.I.P.

As someone who cut his baseball fan’s teeth on the Dick Williams Expos, and then became a follower of the Mariners (along with the 60s Giants, one of the few teams to squander even more front-line talent) from watching a wave of exciting prospects in Calgary, for a long time I’ve been fascinated by the Whiz Kids. The 1950 Phillies won the pennant with a very young team whose young core went on to long, productive careers — and yet never came close to winning again. On an interesting recent discussion on his pay site, Bill James argues that this was a product of lazy roster construction: the Phillies kept falling behind because they didn’t care how good the supporting cast was, and especially faced with two outstanding organizations in New York City this wasn’t going to cut it. This is, I think, an important lesson: while a team’s best players are often blamed for a team’s disappointing performance, the disappointment is much more likely to result from the surrounding talent not being good enough. Since I’m not sure about lengthy quotes of stuff from behind the paywall, a couple of relevant classic quotes about my beloved dead team, from the 1984 and 1985 Abstracts, respectively:

To put this in plain, unmistakable English, Doug Flynn does just as much to destroy the Montreal offense as Tim Raines can do to build it. If you give him the opportunity, Doug Flynn can do just as much to lose games with his bat as Tim Raines can do to win them. And Bill Virdon chose to give him that opportunity…My point is that the Expos’ problems, while they may very well have their origin in some aloof, distant intangible, do not find their way into the loss column by some mystical route. The Expos lose games because specific ballplayers fail to do specific things. The Expos have the core of a great team, but they are not ever going to win as long as they surround that core with Doug Flynns and Ray Burrises.

The 1984 Expos, not meaning to slight Charlie Lea or anything, had essentially two strengths. In Gary Carter, the Expos had one of the greatest catchers in the history of baseball. In Tim Raines, they had the outstanding leadoff man in the history of the National League…so what do they do? They trade off the catcher and worry about the center fielder’s throwing arm. It’s crazy, but if you’re losing and you’re frustrated, it seems logical. Losing teams focus their frustrations on their best players…

These remain important insights, I think. In some way, it’s a tribute to Roberts, Ashburn at all that today’s Phillies have taken over their division by learning this lesson: they’re actually supplemented their impressive core with some care and attention rather than (with the exception of the idiotic Abreu trade) taking out some early disappointments on their core players.

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