Obama’s DOJ And the Arbitrary Strip Search

Glenn:

That there is such vehement condemnation over this strip-search ruling, almost all of which ignores the fact that the Obama administration was fully on board with it and helped to bring it about, is — as this VastLeft cartoon suggests — a microcosm for how and why that has happened.

A few points:

  • I actually don’t really think it’s terribly strange that the commentary on the Supreme Court’s decision didn’t focus on the amicus brief filed by the DOJ (in my case, I didn’t know about it.)   When there’s a bad Supreme Court decision that doesn’t actually involve an administration policy I think focusing on the Court rather than the president is pretty typical.   If you look through my archives for posts about bad Supreme Court decisions during the Bush administration, I think you’ll find that criticisms focused on the Court even in cases where the Bush administration filed an amicus brief on the wrong side, which I think is true of most people who write about the courts.
  • Making criticism of the Obama administration the primary takeaway in this case seems fairly odd, since 1)the causal connection is very weak, and 2)in terms of the most direct impact he had on the case, Obama’s two nominees both dissented.  Had one of the Democratic appointees provided the swing vote then I think the DOJ’s role would be much more central, and obviously had the swing vote come from Sotomayor or Kagan this would be even more true.   But it seems very unlikely that the DOJ brief had much influence on Kennedy.
  • I of course unreservedly condemn the Obama administration for supporting the reprehensible New Jersey policy and deplore even the slightest chance that it had an effect in leading to an awful Supreme Court decision.
  • As is usually the case, I don’t see what Glenn sees in the latest VastLeft strawman burning.  Omitted: any liberal critic of Florence v. County of Burlington who withdrew or moderated their criticism when informed that the Obama administration had supported the state’s position.   Personally, I reiterate my critique, which it’s safe to assume will be true of everybody else.   It also strikes me that a 5-4 Supreme Court decision that breaks along straight party lines is not the ideal basis for Gush-Borism, but to each their own.

298 comments on this post.
  1. david mizner:

    Greenwald isn’t arguing that the Obama admin position should be the “primary takeaway,” only pointing out that it’s odd and telling that it went unmentioned in virtually all the commentary. Odd not least because the position of strip search Sammy and his comrades isn’t the least bit surprising whereas the position of the Obama admin is, a little.

    So little mentioned was the Obama position that Digby cites Greenwald for pointing out this “little known detail.” Maybe you, Scott, knew where the Obama admin stands on this, but Digby didn’t till she read Greenwald.

    Anyway, now that Obama administration position is becoming known, we have some progressives defending the anal-probe stance, as in this Daily Kos thread under a post based on Greenwald’s,
    proving yet again there’s nothing the President could conceivably do that some “progressives” would defend.

    http://www.dailykos.com/story/2012/04/03/1080387/-Obama-justice-department-argued-for-prison-searches

    http://digbysblog.blogspot.com/2012/04/bipartisan-authority-everybody-wants.html

  2. david mizner:

    Oh, sorry — I see you said you didn’t know about it.

  3. Marc:

    Normal people see a reactionary Supreme court majority as the problem. Obsessive Obama-haters have to make him the villain all of the time. And that’s the difference – Glenn would rather talk about Evil Obama in his quest to prove that there’s not a dime’s worth of difference between him and the Republican.

  4. david mizner:

    Pointing out his position = Making him the villain.

    “Normal people” would see you use phrases like “obsessive Obama hater” and roll their eyes,

  5. Jim:

    I read through all of the comments on that thread, and no one makes the argument that the decision was OK because the Obama Justice Department supported the position. Nor does anyone make the argument that the amicus brief by the JD is based purely on progressive motives.

    I’m not going to argue your basic position – I’m sure someone somewhere who calls themselves progressive defended the Obama administration for taking this position. But that thread doesn’t really prove the point.

    If I were going to argue the merits of the JD taking this position, I would say that as an attorney, I don’t know a lot of people who take amicus briefs terribly seriously. That’s not to say that the briefs don’t represent a policy statement, just that I don’t think there’s much indication that amicus arguments ever sway the Justices. So focusing on this amicus brief grants it a fairly artificial significance.

  6. david mizner:

    No one is arguing that the brief swayed the justices, only that it’s worth mentioning — and this case, denouncing — where the President of the United States stands on an important civil liberties issue. Is that even debatable?

    By the way in the (October) article Greenwald cites, here’s a DOJ attorney trying to defend the policy.

    “When you have a rule that treats everyone the same,” Justice Department lawyer Nicole A. Saharsky argued, “you don’t have folks that are singled out. You don’t have any security gaps.”

    http://abcnews.go.com/blogs/politics/2011/10/supreme-court-struggles-with-strip-searches/

  7. vastleft:

    Your “straw man” accusation didn’t make sense last time, and it doesn’t this time either.

    It’s a cartoon, Scott, with characters representing two different mentalities.

    The first character represents Obama apologism. Is this something alien to you? Have you not seen people contort themselves something silly to forgive Obama for his many Bush-like actions on civil liberties, the War on Terror, and such? If not, go to the bathroom mirror. There just might be one there.

    The second character represents an ObamaDem-critical lefty. I’ve got one in every mirror in my house. Your mirrors may vary.

    The dialogue isn’t documentary, it’s illustrative of the aforementioned mentalities.

    Vis-a-vis the strip-search issue, one rapidly heard a lot of criticism of the SCOTUS decision from left/lib/progressives.

    If the Bush DOJ had pushed the case, every one of those critics would have highlighted that fact. Every. One. Of. Them. Because their tribal, mental model was that the SCOTUS that would rule that way was of a piece with Bush and his DOJ.

    But that’s not the prevailing left/lib/prog tribal, mental model of the Obama administration. Thus, the focus is all but wholly on SCOTUS, not much at all on the administration that advocated for it.

    The Obama DOJ’s role was barely mentioned in the first wave of commentary about the decision, and the strip (rightly, it seems) predicts that as more details emerged, ObamaDems will be in no hurry to cast judgments upon the Obama administration commensurate with their upset with the court’s decision and its real-world impact.

    On the other hand, the Obama administration is fundamentally good and shouldn’t be judged for its actions, no matter how Bush-like… and no matter how frequently so. There seems to be a man around here who thinks like that, but he doesn’t seem to be made of straw.

  8. david mizner:

    I’ve seen several people here deny that there’s even such an animal as “Obama apologism.” This is often right before they apologize for some Obama atrociousness.

  9. vastleft:

    Like my relative here in MA, who recently claimed there’s no such thing as a Bahstan accent.

  10. Incontinentia Buttocks:

    I’m appalled that this post fails to mention Ron Paul. Surely no discussion of Obama’s civil liberties record is complete without ritually denouncing Paul, who is just as likely to win the presidency today as he was four months ago.

  11. Thers:

    I liked it better than the last Darleen Click effort. So, kudos.

  12. Thers:

    I hate “they” too.

  13. Scott Lemieux:

    I agree that Greenwald pointing it out was extremely useful. His implication that progressive writers were deliberately suppressing the information or something was much less useful, and his further implication that progressives wouldn’t have criticized the decision if they knew still less useful. (And, yes, if you do enough nutpicking you’ll find some exceptions — this is America! — but you should really wait until this happens.)

  14. DocAmazing:

    And Ralph hasn’t made the requisite appearance, unless you count “Gush & Bore” above. Slipping!

  15. Scott Lemieux:

    Have you not seen people contort themselves something silly to forgive Obama for his many Bush-like actions on civil liberties, the War on Terror, and such? If not, go to the bathroom mirror. There just might be one there.

    [cites omitted]

    The Obama DOJ’s role was barely mentioned in the first wave of commentary about the decision

    Of course it wasn’t. Who the hell thinks federal amicus briefs in a state case drive decision-making, especially when every justice in the majority is hostile to the administration? Obama does not, in fact, bear primary responsibility for every bad thing that happens in the United States. (Although he was on the wrong side of this case and deserves criticism for that.)

    On the other hand, the Obama administration is fundamentally good and shouldn’t be judged for its actions, no matter how Bush-like… and no matter how frequently so.

    Generally, if you want to defend yourself against claims that you’re erecting a strawman, erecting a strawman flatly contradicted by the very post you’re responding to is a bad idea.

  16. vastleft:

    See: your defensive rejections of Glenn Greenwald’s well-considered criticisms of Obama.

  17. Scott Lemieux:

    defensive rejections

    I of course unreservedly condemn the Obama administration for supporting the reprehensible New Jersey policy and deplore even the slightest chance that it had an effect in leading to an awful Supreme Court decision.

  18. LosGatosCA:

    Let’s put aside the animus towards Glenn. Let’s put aside Glen’s animus toward Obama. Why is the Obama administration filing such briefs at all? The biggest picture pretty consistently confirms that Obama is more than comfortable with the strong rightward lurch of all government policies that infringe on what had previously considered the average American’s civil liberties. Volunteering to defend someone’s (New Jersey) worse policies than your own (federal) when you are already aware (or maybe so tone deaf you aren’t) that many folks in your base are very disappointed in your policy choices seems to just confirm the discrepancy between the values of the administration and at least a plurality of the voters who elected him. Given his choices not to prosecute torture, etc. Obama has been a severe disappointment in even trying to restore the rule of previously applied law.

    All the Obama administration has to do to prevent this type of criticism us to stop going out of their way to demonstrate the gap between their values and their base. Of course, this could simply be a case of an embed from the previous administration striking out on their own to embarrass Obama which would then speak to their inability to deal effectively with the bureaucracy.

    Glen may not be the perfect messenger to highlight these serious shortcomings of Obama, but that does not make every one of his criticisms invalid.

    BTW, all of a sudden in an election year with a key Supreme Court ruling in the balance, it appears Obama seems to believe the bully pulpit has some value, although I’m sure he saw Alito shaking his head and mouthing ‘No’ when he talked about their impending decision. Funny, how people view the bully pulpit differently when there is something on the line – for them.

  19. Scott Lemieux:

    but that does not make every one of his criticisms invalid.

    It’s good that nobody’s arguing this, then.

    it appears Obama seems to believe the bully pulpit has some value

    Oh, presidents always think that the bully pulpit has great value. It’s just that they’re wrong.

  20. Thlayli:

    This is Greenwald’s version of “THIS IS EXCELLENT NEWS!!! FOR HILLARY!!!” Everything is an opportunity to 1) bash Obama; and 2) bash people who, in his view, are covering for Obama.

    When your only tool is, etc.

  21. cpinva:

    sounds like a “defensive rejection” to me! Not! seemed more, i don’t know, simply “rejection” like.

    in fact, this is the first i was aware that DOJ had even filed an amicus brief in the case. worse yet that it supported the state’s position. that said, 1. i’m hardly shocked, given the administration’s oddly non-progressive stances on so many things., and 2. given the fact that it was mentioned hardly at all, i suspect few people felt it had an impact (or much of one) on the outcome.

    gotta love that weasely explanation:

    “When you have a rule that treats everyone the same,” Justice Department lawyer Nicole A. Saharsky argued, “you don’t have folks that are singled out. You don’t have any security gaps.”

    translated: this rule treats everyone badly, so it’s ok by us!

    one hopes ms. saharsky choked on apple she was eating at the time.

  22. cpinva:

    rats! you beat me to it!

  23. Bijan Parsia:

    I’ll go a step further and say that the implication/media criticism part was counterproductive. Noting the brief, discussing how it sucks, and even making connections to other administration fails would have made for a much better, informative, and effective read.

  24. Bijan Parsia:

    Actual data would be more convincing, esp. given your track record.

    I would deny that it’s a phenomenon worth attending to. There’s little evidence that it’s prevalent and even less evidence that what there is of it has any substantive effect and no evidence at all that reflexively railing against it is remotely useful. It may even be counterproductive overall.

    But I don’t think your reports of what you’ve “seen” can be taking at face value even a little bit. Frankly, you seem to argue from your conclusion rather than from data, which seems to be the case with Greenwald as well. (He mobilizes some data, but I don’t find it terribly convincing and his interpretations tend to go beyond it, afaict. To be fair, this is mostly suspicion on my part as I’ve not done even a cursory analysis…I’m just reacting off the cases that have been made salient to me.)

  25. Glenn Greenwald:

    Scott – I don’t really disagree with anything you write, except I think you’re downplaying the influence that the DOJ’s position can have in a case like this. I wrote in this post that the DOJ’s position definitely isn’t dispositive – the Court rules against the US Govt all the time – but it’s always influential in general (which is why I think Obama’s refusal to defend DOMA is so significant).

    Here, the DOJ didn’t merely file an amicus brief. The DOJ lawyer argued vigorously for this result at Oral Argument. And the subject matter here makes the DOJ’s position particularly influential: one key question is whether this broad strip-search policy is necessary for prison security, and since the Federal Government manages a large prison system, having it join the state prison system to say that it is necessary for prison security is likely to have an effect on how Kennedy sees the issue.

    It’s not hard to imagine that had lawyers for federal prison officials insisted that this policy is unnecessary, that could have helped produce a better result. That the federal prison system, according to the NYT, doesn’t even have this strip-search policy, makes the Obama DOJ’s position all the more baffling: and damaging.

    I wasn’t suggesting that any progressive writers have diluted their criticism of the decision here because Obama favors it, and I don’t think VL was either. The point I was making (and the one I saw in his cartoon) is a general one: Democrats & progressives often modulate their complaints about policies they hate once Obama is on board with them (your colleague, Robert Farley, often defends this practice as a legitimate rhetorical strategy).

    My point about this is actually similar to the one you just made about the DOJ’s inability to influence Kennedy. I don’t think liberal bloggers and writers will have much effect on the conservative faction of the Supreme Court, so criticizing them – while often accurate – isn’t likely to achieve much. But liberal bloggers and writers can have a real effect on the behavior of the Obama administration – especially in an Election Year – so criticizing them when they do things like this seems much more constructive to me, as it provides an otherwise missing political push from the left.

    I certainly believe that you were unaware of the Obama DOJ’s position here, as you say. But I think trying to downplay its importance now that you are aware of it – while keeping the rage and fury directed at the conservative Court members – does illustrate the dynamic I was describing. In my view, your voice has a bigger impact vehemently denouncing the Obama administration’s support for this policy than it does the Supreme Court’s approval of it.

  26. Bijan Parsia:

    But did you wholeheartedly condem the Obama administration for being as bad or worse or even worser than Bush?!? Did you condem your fellow commentators for failing to rail against ALL the muslim baby, orifice probing evil that is the central defining characteristic of the Obama adminstration? Hell, did you condem YOURSELF for being such a starry eyed Obama apologist that you didn’t even NOTICE the evil amicus brief? A true, steely eyed critic looks at EVERY POSSIBLE event in the US with an eagle eye for Obama perfidy. To fail to do so is akin to be a paid Obama shill. To fail to do so after having uttered one word of criticism of the Bush adminstration just IS rank tribalism of the most intellectually dishonest sort. Why don’t you just admit your double standard?!

    For shame, Scott, for shame.

  27. BigHank53:

    Damn John Jay! Damn everyone that won’t damn John Jay! Damn every one that won’t put lights in his window and sit up all night damning John Jay!

  28. chris:

    Obama does not, in fact, bear primary responsibility for every bad thing that happens in the United States.

    Obama apologism in its purest form, ladies and gentlemen.

  29. Brien Jackson:

    Oh come now Scott, you need look no further than the veritable horde of writers and commenters on this very site who decided that a universal strip search policy for people arrested on any minor charge isn’t such a bad thing. Why there’s….and….and we certainly can’t overlook….

    Savages, the lot of us.

  30. Brien Jackson:

    “In my view, your voice has a bigger impact vehemently denouncing the Obama administration’s support for this policy than it does the Supreme Court’s approval of it.”

    A bigger impact on what? Certainly not when it comes to making the audience better understand the nature and dynamic of the court and, especially, its radical conservative wing. This only makes sense if you accept the idea that the DOJ made the difference in the ruling, which no one but you finds likely. Which is okay in itself, but it’s sort of…odd to take the fact that people disagree with you as to how much influence the DOJ had on Kennedy’s vote and turn that into yet another condemnation of people refusing to flog the administration with sufficient vigor.

  31. david mizner:

    “Deliberately suppressing” is a little strong. It’s quite likely that if the Bush admin had supported (in an oral argument: see GG below) this policy, some progressives would’ve played up the “victory for jails and Bush” angle, and that it would’ve seeped into the coverage. Perhaps the Bush position would’ve been widely known since the fall.
    Not provable, of course, just a assumption that should seem reasonable to anyone who’s been sentient for the last three years (or read Kevin Drum on a semi-regular basis.)

    Of COURSE Dems play up Obama’s good positions and play down his good ones. We can argue about how bad this is, if at all, but it’s silly to deny that partisans engage in partisanship.

  32. Bijan Parsia:

    Stop softpetalling your criticism already! This sort of praising with insufficient damns is at the heart of progressive tribalism.

  33. BradP:

    Certainly not when it comes to making the audience better understand the nature and dynamic of the court and, especially, its radical conservative wing.

    How in the world do you point out the “radical conservative wing” of the Supreme Court when the chosen liberal democrat president agrees with them?

    You undermine your entire argument if your own house isn’t in order. Without making those “on your side” accountable first, any other accountability you try to dish out will rightly sound like bullshit.

  34. Brien Jackson:

    “liberal…president”

    Facts not in evidence and so on and so forth.

  35. Glenn Greenwald:

    This only makes sense if you accept the idea that the DOJ made the difference in the ruling, which no one but you finds likely.

    Leaving aside the fact that I said no such thing – “that the DOJ made the difference in the ruling” – it’s a rather bizarre delusion to imagine yourself the spokesman of Everyone (“no one but you finds likely”.

    Presumably, people in the DOJ thought their involvement in this case could have an impact – unless you imagine that they decided to write briefs, appear at Oral Argument, and publicly take a definitive position in a highly contentious case all while knowing that doing so was totally inconsequential and would have an impact on absolutely nothing.

    I’m really sorry if you wish it hadn’t been pointed out — after progressives spent 48 hours flaying Court conservatives for their evil, sadistic, warped ruling — that the Obama administration forecefully urged and advocated this very result. I know it’s so much more satisfying to rail against Their Evil than have to accept that that same Evil pervades your own side.

    But jjust like American citizens can have far greater influence on the policies of their own government than, say, on the policies of Iran — and thus, in my view, have a duty to protest bad acts from the former more than the latter — so, too, can liberal writers have much more of an influence on the behavior of the Obama administration than on the right-wing faction of the Supreme Court.

    It’s certainly possible to have reasonable disagreements about the influence of the DOJ’s conduct here: it’s all speculation and we’ll never know for sure. But it’s not reasonably possible to dispute that the Obama administration’s position in this case was every bit as warped and extremist as the Kennedy faction on the court.

    I just think that fact should receive the notice and attention it deserves, especially from those in the best position to influence the administration’s future conduct on such matters.

  36. Marc:

    You think that the Obama administration is the bigger problem than the Court. You’re free to indulge your obsessive hatreds, but don’t expect them to be immune from criticism. In particular, this rhetorical habit of assuming hypocrisy in advance of its commission is simultaneously obnoxious and ineffective.

  37. Brien Jackson:

    “it’s a rather bizarre delusion to imagine yourself the spokesman of Everyone..”

    Well, if we’re going to devolve to your intentionally being obtuse routine already, allow me to refine that to “no one I have yet seen disagree with you has stated that they find the DOJ position relevant to the conservative wing’s decision.”

    “I’m really sorry if you wish it hadn’t been pointed out — after progressives spent 48 hours flaying Court conservatives for their evil, sadistic, warped ruling — that the Obama administration forecefully urged and advocated this very result. I know it’s so much more satisfying to rail against Their Evil than have to accept that that same Evil pervades your own side.”

    With all due respect, what the hell are you talking about?

    A) I never complained about you “pointing it out.”

    B) I never defended the DOJ’s stance.

    C) I certainly never changed my opinion that the decision and the policy are awful.

    The only thing I did was take issue with your assertion that focusing more anger on the court that made the decision of their own agency was less useful than training fire on the administration over the argument the DOJ made, and the contention that doing so was more proof that anyone who doesn’t agree with you is insufficiently immune to partisan tribalism.

  38. Anonymous:

    “Leaving aside the fact that I said no such thing”

    Glenn, how were we meant to interpret the following:

    And the subject matter here makes the DOJ’s position particularly influential

    How should we have interpreted the phrase “particularly influential” if not to mean having a potential, well, influence on the court? Apparently that’s not what you meant to convey, but I’m at a loss as to what else this might have meant.

  39. Anonymous:

    It seems to me the DOJ engaged in some cheap talk. But when and where it actually mattered, Obama opposed this sort of thing when he appointed SCOTUS justices that opposed it. I’m a big fan of judging politicians by their actions, rather than their words.

  40. Glenn Greenwald:

    How should we have interpreted the phrase “particularly influential” if not to mean having a potential, well, influence on the court? Apparently that’s not what you meant to convey, but I’m at a loss as to what else this might have meant.

    He claimed I said “the DOJ made the difference in the ruling.”

    Here’s what I wrote:

    The position taken by the DOJ is not dispositive: the Court is free, of course, to rule the opposite way. But the U.S. Government’s position before a federal court is definitely influential in general (which is why I wrote earlier today that the Obama DOJ deserves credit for refusing to defend the constitutionality of DOMA), and in a case like this specifically, it matters a great deal that the U.S. government is insisting that this broad strip-search authority is necessary for prison security.

    Do you know the difference bewteen dispositive (which I said the DOJ’s brief was not) and influential?

    It matters what the DOJ says – they presumably think so, too, which is why they want through the trouble of filing a brief and participating in oral agument in a highly contentious case: because the Court will listen to and take into account what they say on such questions – i.e. it’s “influential”, meaning: it has influence.

    That doesn’t mean it’s “dispositive”: that “the DOJ made the difference in the ruling.”

    Not only did I not say that – I expressly disclaimed it.

  41. Glenn Greenwald:

    It seems to me the DOJ engaged in some cheap talk.

    LOL!

    The act of having the DOJ take a formal position in support of the constitutionality of this strip-search policy, file a brief urging its approval, and then send its lawyers to the Court to argue for it at Oral Argument — that’s just all “cheap talk,” mere “words.”

    Gosh: where did anyone ever get the idea that some Obama fanatics will twist themselves into contortions to mitigate and justify the administration’s blatantly bad acts?

    Just “cheap talk”: that’s the best.

  42. Brien Jackson:

    Pardon me for giving you the benefit of the doubt and assuming you weren’t deliberately arguing out of both sides of your mouth in simultaneous breaths, I guess.

  43. Glenn Greenwald:

    You think that the Obama administration is the bigger problem than the Court.

    I think no such thing – you completely made that up.

    You’re free to indulge your obsessive hatreds,

    Sorry, but Charles Krauthammer wants his shtick back: criticizing the President means you so obsessively hate him to the point of mental illness: Bush Derangement Syndrome.

    It doesn’t embarrass you at all to embrace the same tactics to delegitimize critics of your leader?

    Scott: The Supreme Court’s strip-search decision is awful, warped and terrible.

    Me: The Obama DOJ vigorously supported and urged that decision.

    You: YOU HATE OBAMA!!!!

  44. Glenn Greenwald:

    Nobody ever taught you the difference between binding authority (dispositive) and persuasive authority (influential)?

  45. Brien Jackson:

    You know, occasionally I feel sort of guilty about writing you off years ago. Thanks for assuaging that.

  46. Anonymous:

    so can you describe what you mean by “particularly influential” then? It made Kennedy feel a bit better about his vote? Or made Kagan and Sotomayor feel a bit more unsure of theirs? I simply don’t understand how you’re using the term.

  47. Brien Jackson:

    Are the people who pay you aware that they’re coughing up money for a quality of argument you can find on virtually any wingnut message board at any hour of the day?

  48. BradP:

    Facts not in evidence and so on and so forth.

    Fair enough.

    If you feel it is more important to show that Supreme Court Justices nominated by the Bushes and Reagan are radical conservatives (who would have thunk it?!), rather than showing the hopey, changey democratic president is a radical conservative, those are your priorities. I disagree with them.

    I will admit, focusing on the radical conservatism of radically conservative republicans does make it easier to call oneself a democrat.

  49. Brien Jackson:

    To add, if you think that the DOJ’s argument would be particularly influential, why would it be more influential on Kennedy and/or the more conservative justices on the court than on the justices that were appointed by the sitting President?

  50. Eddie Dean:

    I would deny that it’s a phenomenon worth attending to. There’s little evidence that it’s prevalent and even less evidence that what there is of it has any substantive effect and no evidence at all that reflexively railing against it is remotely useful.

    An objective test (the only one) for partisanship is to switch actors and replace this administration with GWB and then think how this would be treated by you and others.

    I don’t think it would feel the same…

  51. Malaclypse:

    “Imperialist” =/= “conservative.”

  52. Malaclypse:

    Okay.

    I await your denunciation of Reagan.

  53. BradP:

    Mandatory strip searches regardless of offense is some reactionary conservative nonsense that is only supported by those that are comfortably sure they will never unjustly end up on the wrong side of the policy.

    In fact almost all of Obama’s egregious actions have been conservative, rather than imperialistic.

  54. Jesse Levine:

    That’s great. Now, how about a review of Obama’s overall civil liberties record that has us “extremists” so agitated.

  55. Malaclypse:

    that is only supported by those that are comfortably sure they will never unjustly end up on the wrong side of the policy.

    I agree with this portion of your analysis, certainly. But if 2001-2003 taught me anything, it was that plenty of people, right left and center, will apply little Tommy Friedman’s “Suck On This” wherever they think it won’t hurt them personally.

  56. Steve LaBonne:

    Look, this is pretty goddamn straightforward. That amicus brief was absolutely inexcusable. It was not well-reported so many, including I, were unaware of it before now. But once having learned about it, one’s reaction should be straightforward revulsion- no “buts”, no quibbling about how influential it was or wasn’t. If you can’t manage to say “this is terrible” and then just shut up, then yes, you are engaging in shameless Obama apologism. Don’t like hearing that? Bite me.

  57. gmack:

    Before we continue, can one of the participants in this sub-thread actually explain the actual proposition on which you supposedly disagree?

    Here’s how I see the matter:

    (1) The SCOTUS ruling was deplorable.
    (2) The Justice Department’s brief in favor of that position–which, by the way, I did not know about and so I commend Greenwald for bringing it to my attention–is also deplorable.
    (3) The brief has some influence, though I suspect that the influence is less a matter of convincing this or that Justice and more to do with contributing a broader political climate in which the ruling is understood as acceptable. The actual influence, however, is an empirical question that none of us can actually answer here.
    (4) The fact that many of the critics of the SCOTUS ruling haven’t also criticized the Justice Department’s brief does not really demonstrate much of anything, at least not by itself. This is true especially given the fact that all of the parties in this discussion seem to agree with points 1 and 2 above. (Though, of course, the rhetorical positioning sometimes obscures this point).

    If these points are largely true–and please correct me if they’re not, much of the “debate” appears to be just leftist tribal boundary drawing, another case of what IB called the debate over ¿Quien es mas progressive? . It’s a fun diversion, no doubt, but I’m having difficulty understanding what we learn from it.

  58. Brien Jackson:

    That would make more sense as a denunciation if people who didn’t write about it originally (including people who weren’t aware of the fact) hadn’t been pre-empitvely accused of apologism/malfeasance by Greenwald.

  59. Brien Jackson:

    I don’t think there is a material disagreement, and instead is about Greenwald’s pre-emptive attack on the liberal commentators who didn’t mention/know about the DOJ stance, the attacked people’s affront at being attacked, and Greenwald’s continued need to insult anyone who disagrees with him on even a tangential contention.

  60. Uncle Kvetch:

    +1

  61. Brien Jackson:

    A) It is somewhat bad form to use quotation marks around a word that has, heretofore, actually not made a single appearance in a thread. Some might call this…strawman building.

    B) We would first need to find someone to materially disagree with your objection to make it relevant, no?

  62. Uncle Kvetch:

    My +1 is in response to Steve LaBonne’s comment, not Brien Jackson’s reply.

  63. Brien Jackson:

    “But once having learned about it, one’s reaction should be straightforward revulsion- no “buts”, no quibbling about how influential it was or wasn’t. If you can’t manage to say “this is terrible” and then just shut up, then yes, you are engaging in shameless Obama apologism.”

    Upon further review, I’m going to just flat out call BS on this, since Greenwald also claimed that the administration was more worthy of condemnation than the Court. To the extent anyone is arguing with that contention, how influential the DOJ was on the Court is obviously germane, and anyone claiming it’s wrong to say so is doing nothing more than attempting to de-legitimize anyone who disagrees with you.

  64. Uncle Kvetch:

    That would make more sense as a denunciation if people who didn’t write about it originally (including people who weren’t aware of the fact) hadn’t been pre-empitvely accused of apologism/malfeasance by Greenwald.

    We lefties are so damn good at keeping our eye on the ball, y’know? Never mind the absolutely horrendous SCOTUS decision, or the amicus brief from Obama’s DoJ…no, what’s really important here is how we all feel about Glenn Greenwald.

    Christ on a bike. This is getting into People’s Front of Judea territory.

  65. gmack:

    I agree, and I suppose I’m expressing a similar frustration as you are. My problem with Greenwald, I suppose, is similar to the problem I have with debates with or about Noam Chomsky, which is that for various reasons, the debates never seem to illuminate anything. Instead, they disintegrate into obscure discussions of what so-and-so meant by the word “influence,” whether this rhetorical trick implies X or Y, or what this person’s silence on this debate implies about his or her (lack of) progressive bona fides.

    So for instance, I disagree with Anonymous’ claim that the DOJ was just engaging in “cheap talk,” but I also suspect that Anonymous him or herself would, on reflection, probably disavow the implication too, at least if s/he genuinely disagrees with the DOJ’s brief. But in any case, I don’t see much value arising from having that particular debate.

  66. Steve LaBonne:

    And he’s goddamn fucking right. We (sadly) have to expect this shit from the wingnut majority of the court, even as we loudly and rightly condemn it. We shouldn’t EVER expect, accept, or make excuses for it from the Obama Administration or any Democratic Administration. If you can’t bring yourself to just say that without any further quibbling, then fuck you and the horse you rode in on.

  67. david mizner:

    Data! Bring me data! An appropriately absurd technocratic response. It would be like me asking for data showing that some criticism of Obama is unfair. (It is.) Can’t be done.

    Only an idiot (or an apologist) would deny that there would’ve been a larger outcry from progressives if a GOP president had launched a surge if Afghanistan, expanded dirty drone wars in Pakistan, Yemen, and Somalia, entered a war without Congressional approval, waged a war on whistle blowers, killed an American child without due process, codified indefinite detention…etc.

    That’s just one form of apologism. There’s also the 11th Dimensional Chess theory, which posit that the President is doing conservative-seeming things in service of a liberal strategy known only to him. (I exaggerate, a little.) This is Mark Schmitt’s discredited theory but it persists in various forms. Despite copious reporting to the contrary, people still claim that the President didn’t actually seek to cut Social Security and Medicare, that he offered a deal to cut those programs to corner the GOP. Or something.

    There’s also, in the most partisan precincts, direct defenses of every Obama move, no matter how heinous.

    There’s also a smarter form of apologism, popular here at LGM, which places an excessive focus on the institutional hurdles facing a president. Often reasonable, this line of argument, but it tends to discount ideology and philosophy (and things in the President’s sole control) to the point where people claim with an apparently straight face that a Bernie Sanders presidency would’ve been virtually identical to Obama’s.

    Apologism up to a point is just predictable politics. No fighting in the war room! But beyond a certain point, it’s dispiriting and destructive.

    One of my favorite recent examples of apologism is Kevin Drum’s response to Jeremy Schahill’s solid reporting that President Obama is working to keep Yemeni journalist behind bars because he’s uncovered facts embarrassing to the administration and (allegedly) harmful to Obama’s terror-war in Yemen. Drum argues that it’s likely that Shaye is “indeed affiliated with al-Qaeda” because the President just wouldn’t do such a thing.

    http://motherjones.com/kevin-drum/2012/03/barack-obama-murderous-sociopath

  68. BradP:

    I agree with this portion of your analysis, certainly. But if 2001-2003 taught me anything, it was that plenty of people, right left and center, will apply little Tommy Friedman’s “Suck On This” wherever they think it won’t hurt them personally.

    And the resentment and blame that comes along with it is infuriating.

    (And yes, I recognize libertarians can be as bad as any at this)

  69. Brien Jackson:

    So the problem is that people who were attacked got upset about it, not that Greenwald diverted from attacking SCOTUS/DOJ to attack these hypothetical internet liberals in the first place?

  70. Brien Jackson:

    I think it should be clear by now that Greenwald isn’t interested in engaging in any sort of “debate” so much as he’s interested in cultivating his brand by tilting at those dastardly Obots as often and as quickly as possible. His response to Anonymous’ contention (which I also disagree with, ftr), which consisted of totally ignoring the rather relevant observation that both of the justices Obama appointed to the court were on “Glenn’s side” of the decision and proceed straight to blathering about “Obama fanatics” is a fine case in point.

  71. Brien Jackson:

    Well, since you ask that I force myself into such a limited focus of concern for American politics and political institutions, and you asked so nicely, then by golly, I guess I will stop caring whenever the conservative justices do something bad simply because someone else was in (irrelevant) agreement with them.

    In other words, I couldn’t care less that you’re offended if someone doesn’t agree with in complete totality, and if you have a problem with that, you can take how much I care about your opinion and $4.10 and buy a gallon of gas at the store down the street.

  72. Brien Jackson:

    “Only an idiot (or an apologist) would deny that there would’ve been a larger outcry from progressives if a GOP president had launched a surge if Afghanistan, expanded dirty drone wars in Pakistan, Yemen, and Somalia, entered a war without Congressional approval, waged a war on whistle blowers, killed an American child without due process, codified indefinite detention…etc. ”

    But we aren’t talking about any of that stuff, are we?

  73. BradP:

    This “I didn’t know about the amicus brief” like it is some sort of excuse.

    The fact that very few of the most vocal opponents to the SCOTUS ruling did not know that DOJ argued in support of the ruling is more damning than the subsequent apologetics.

  74. Steve LaBonne:

    I don’t ask anything of you, I simply say “fuck you” for being more interested in arguing about Greenwald than in supporting civil liberties.

  75. Glenn:

    That’s true, but the United States is not just any amicus. The views of the SG on a question of federal law certainly get the Court’s attention, at least. And in this case, the SG asked (and was granted leave) to participate in oral argument on behalf of the respondents.

    However, I don’t dispute yours and Scott’s basic point that the DOJ position, at least on this particular case, is much less of the story than the Court’s itself.

  76. Brien Jackson:

    Also, of course, the seemingly relevant point that we don’t as yet have anyone actually arguing that the administration was right, only that it’s not relevant to the court’s decision. Your contention is what, exactly, that if Bush were President Scott would be arguing that the DOJ’s stance was the primary reason Kennedy decided to cast his vote with the conservative bloc on the matter?

  77. Uncle Kvetch:

    So the problem is

    The “problem” is that you can be subjected to a strip search by the police for the “crime” of failing to use your turn signal, or letting your dog off the leash. Because even the most trivial violation of the law just might be a sign that you’re actually a terrorist, and it’s always better to be safe than sorry.

    The “problem” is that this police-state logic has now been given the imprimatur of two of our three branches of government.

    Everything else is territorial pissing.

  78. Steve LaBonne:

    And territorial pissing is all the left has been good at for quite a while now, with the results we see all around us.

  79. Brien Jackson:

    And I say I couldn’t give a fuck less* what you’re intentionally dense (but morally snow white to be sure) self thinks about what I choose to type on ultimately very inconsequential political blog #592. Get the fuck over yourself.

    *(Especially since, as noted above, this side squabble never would have started if Greenwald hadn’t chosen to lob bombs at this faceless mass of Democratic partisan commentators before any of them actually defended the administration or modulated their criticism of the decision. Again, that you are taking your anger out on people who might take a bit of offense at being impugned pre-emptively and without merit, and chastise them for being so vulgar as to not appreciate such an affront when their are important denunciations of the federal government to be made on the internets, is certainly instructive).

  80. BradP:

    has been thrown out like it is some sort of excuse.

  81. david mizner:

    Actually we are talking about “that stuff.” Try to keep up.

  82. gmack:

    Well, I’ll agree with the claim that the DoJ’s brief is revolting and that we (“progressives”) should not, under any circumstances, defend or make excuses for it. I believe, however, that Brien has already agreed with that claim too, though I’m sure he can correct me if I’m wrong. There is, of course, a disagreement about who should receive our strongest condemnation, but then, as Uncle Kvetch has suggested, we really are in People’s Front of Judea territory once we start down that path.

    If I may make a plea, however, it would be for Greenwald and his allies to stop pre-emptively attacking as hypocrites progressives who haven’t (yet) made the error he accuses them of, but also for folks like Brien to not take such attacks so personally. I find these debates so annoying because fundamentally they are all about self-righteousness: one proves one’s status as a true progressive by calling on others to prove their lack of hypocrisy by denouncing X, or one takes offense that someone has implied that you aren’t really moral or progressive. I’m inclined to say to everyone involved: Your personal moral status isn’t important. Achieve salvation on your own time and save your moral posturing for church. The only relevant political question is whether or how to influence our allies and enemies in the Obama administration to take better positions on civil liberties. The rest is just bullshit.

  83. Brien Jackson:

    Well fucking hell, I was going to do some much needed cleaning of the house today, but goddamnitt there was a bad decision made by the Supreme Court, so I guess I’d better hold off on that until Thomas and Alito finally provide the world with a much needed bit of addition by subtraction.

  84. Brien Jackson:

    PERHAPS IF WE ALL BEGIN TYPING IN ALL CAPS ALL THE TIME ON THE INTERNETS WE WILL FINALLY MAKE A DIFFERENCE THIS TIME FOR REALZ!!!!???

  85. Brien Jackson:

    Er, why?

  86. Jackson Hunter:

    Jeebus fucking Christ, you might as well just go the full BlackWaterDog and People’s Spew and just post pretty pictures you all can nut on. BTW, I do think Glenn’s comparison of BWD to Leni Refienstahl was incorrect. Nazi bitch that she was, at least she had some actual, you know, TALENT. She just didn’t steal other people’s pictures and then write junior high level love notes to a fucking politician. Comparing that amateur propagandist to a real (evil) professional like Leni is really a cheap shot at Leni, who whether we like it or not, was really good at what she did. So shame on you Glenn. (LOL)

    Is there nothing that this man can do to draw even the slightest criticism? That throwaway one-liner doesn’t cut it. The Mother Fucker went out of his way to defend this bullshit, and all that most of you can do is attack other Democrats who actually have principles. This blog says he is the most liberal president since LBJ (btw, how many taxes has he raised and how many guns has he banned, because Clinton did both) but then people in this thread deny he’s a liberal in any way?! Aww, fuck it, I could care less, you guys just keep roasting your little weanies over Obama’s fire and sing the camp songs to he hands out the Kool-Aid.

    Two last words, FUCK and YOU you Obamabot pieces of fucking filth. I hope it’s one of you getting a flashlight shoved up your fucking rectum. Just starting chanting OBAMA! OBAMA! OBAMA! so the fucking pigs will taze your fucking pathetic asses for shits and giggles. Then you can sue, and I sure Obama’s DOJ will write an amicus brief on your behalf…if it hits the news like the poor Martin kid did. Otherwise, like Hunter Thompson said, learn to enjoy losing, because your ass will be all alone with a gloved fist in it. FOR NOT HAVING YOUR DOG ON A FUCKING LEASH!

    I’m a fucking LIBERAL, “progressives” are dead to me now. You all don’t care, you’re happy to have the Iron Heel on your chest (D’s) instead of your neck (R’s). (I know, LOndon was both a racist and a hack, so he was never right about anything.) I wanna topple the man who is wearing the boot.

    SEE ‘YA!

  87. Steve LaBonne:

    The only relevant political question is whether or how to influence our allies and enemies in the Obama administration to take better positions on civil liberties.

    Well, we sure as hell won’t do that by always being ready to make excuses for them, and to yell at people who point out their bad actions because, look over there, somebody else is worse.

  88. Brien Jackson:

    “Well, I’ll agree with the claim that the DoJ’s brief is revolting and that we (“progressives”) should not, under any circumstances, defend or make excuses for it. I believe, however, that Brien has already agreed with that claim too…”

    Right, so far no one has disagreed with this (save, perhaps, the Anonymous commenter above), which is why Steve Labonne’s “you must disagree louder and stop complaining that you were insulted by someone else because I SAID COMPLAIN LOUDER THAT’S WHY” standard is so self-evidently stupid and/or self-serving.

  89. Scott:

    I really don’t know if this is a parody or not. Either way, it’s fairly hilarious. Kudos, you possibly-joking guy.

  90. BradP:

    For the same reason it would have been extremely well known that Bush had offered the same amicus brief.

    It appears to me that some people are picking targets, rather than causes, and that this has more to do with insurance mandates than it does with strip searches.

    If everyone were really so concerned about strip searches and civil liberties, one would be inclined to think they would be interested in the DOJ’s opinion on the matter as well.

    Is it a coincidence that, out of all these civil liberties hounds, the one that accuses the rest of hypocrisy is the one that makes the White House’s dispicable position known?

    If one were not careful, one could come to the conclusion that no one really cared about the DOJ’s position until someone slapped them in the face with it.

  91. Steve LaBonne:

    Well said.

  92. Steve LaBonne:

    Hardy-har-har. It’s just so funny when a Democratic President endorses police-state tactics. A regular laugh riot.

  93. Barry Freed:

    It would have been nice to see Scott Lemieux engage Greenwald directly here once he showed up in comments instead of the frankly trollish crap he seems to have attracted instead.

  94. Brien Jackson:

    All of this for a grand total of zero people agreeing with or defending the administration’s arguments.

  95. Scott Lemieux:

    “Deliberately suppressing” is a little strong. It’s quite likely that if the Bush admin had supported (in an oral argument: see GG below) this policy, some progressives would’ve played up the “victory for jails and Bush” angle, and that it would’ve seeped into the coverage. Perhaps the Bush position would’ve been widely known since the fall.

    I read about the Supreme Court for a living, and I think your assumption that federal amicus briefs in state cases are usually a central focus of coverage (especially when they can’t be plausibly said to have swayed any votes) is very wrong.

  96. Brien Jackson:

    This doesn’t make a whole lot of sense. I would imagine that, for the vast majority of people, they didn’t know about the brief because none of the sources they read about the matter mentioned it. I mean, I certainly don’t have the time to go through every single amicus brief filed in every court case for the hell of it. Do you?

    More materially, it seems to me that your position only makes sense if the fact that someone wrote an amicus brief changes your opinion about the decision. But if you think that the decision is bad before you know about the DOJ’s stance, and you still think it’s bad after you learn of the DOJ’s stance, what difference does it make to the critical analysis of the decision you wrote prior to learning of the DOJ’s position?

  97. R. Porrofatto:

    Criticism by progressives of this administration’s non-progressive positions and policies is certainly warranted and expected. Who says otherwise? I’m a lefty pinko from way back but I have never been under the delusion that Obama is anything more than a centrist Democrat on most issues. So when this administration (and AFAIK every other administration in my entire lifetime*) supports the positions of our rather entrenched Military/Law Enforcement/Security establishments I’m not surprised despite my personal opposition. Heck, I’d be shocked if even a Bernie Sanders administration would have the power, the will, or the political capital to take on these institutions.

    *In other words, whose DOJ of the past 50 years can anyone imagine wouldn’t file such a brief?

  98. Brien Jackson:

    Really? Where?

  99. david mizner:

    Why do you keep distorting my position? I’m not claiming the Obama position (expressed not just in a brief but in an oral argument) should’ve been “central” to the coverage, or that it swayed the justices. My view is only that it was worth mentioning as part of the story, especially on political, as opposed to legal, blogs.

    You applaud Greenwald for bringing it to people’s attention, so you must agree with me.

  100. david mizner:

    Come on, you can do it. Read.

  101. Brien Jackson:

    Right. That people did not respond to premature insults with a “thank you my moral superior you are correct and in the future I will be sure not to make the same transgression I did not make this time” are trolling, not the guy who a) did the premature insulting in the first place or b) came to someone else’s comment section to continue hurling the same insults at their readers.

    God projection is a fascinating beast.

  102. Scott:

    Well, “Jackson Hunter’s” possibly-insane, possibly-tongue-in-cheek rant is either great parody or humorously over-the-top Pythonesque silliness. You usually have to go to Peewee League baseball games to see people in the bleachers ranting that hard…

  103. Brien Jackson:

    Well you’re going to have to hold poor little ole me’s hand, I guess, because for the life of me I can’t find anyone but you talking about it here.

  104. Steve LaBonne:

    What’s really fascinating is the way you feel compelled to go on and on and on with this crap. A Freudian would have a field day.

  105. Brien Jackson:

    Pots and kettles, bloke.

  106. Scott Lemieux:

    Glenn — I just don’t agree that, in this specific case, the DOJ brief played a significant role. Kennedy, as you know, has an abysmal record on the Fourth Amendment, and if you consider Scalia the swing vote in the case having the Obama administration endorse New Jersey’s position would, to the extent it mattered, probably make him less likely to uphold the searches.

    As I said, had one or more of the Democratic appointees voted to uphold the search, then I would see a stronger causal connection and I agree that it would have been irresponsible not to check the amicus list. But given how overdetermined the outcome in this case was, it’s not reflexive Obama apologism to question its impact. (Which, again, certainly doesn’t mean that you were wrong to point it out, and you’re right that any chance is too much.)

  107. Jesse Levine:

    A) Extremist is a word that has been used many times on this and other sites to describe those of us who believe these issues are the most fundamental measure of the heart and mind of a President.

    B) This issue is low hanging fruit. I believe that in discussing how progressive our President is the totality of the record on these issues must be considered.

  108. BradP:

    But if you think that the decision is bad before you know about the DOJ’s stance, and you still think it’s bad after you learn of the DOJ’s stance, what difference does it make to the critical analysis of the decision you wrote prior to learning of the DOJ’s position?

    It doesn’t change anything about one’s opinion on the decision.

    But if one were going to post multiple pieces on multiple outlets about how horrific a decision it was, and if one also cared about the degredation and abuse of civil liberties, one would be aware of what the president had to say on the issue. Especially considering this whole “Green Lantern” argument going around.

    This issue is not constrained by the hidden deliberations of nine judges, yet the analysis on this site up until this has been.

    Plus, I would like to think that the writers on this blog would not need to wait until an abcnews blog lets the cat out of the bag (in an aside) to learn this sort of info.

  109. joe from Lowell:

    Normal people recognize obsessive Obama haters when they see them. Normal people don’t pretend that such specimens don’t exist.

  110. Barry Freed:

    Heh, and there I was just about to reply and include the line “Also, what Steve LaBonne said above” and here you are.

  111. Glenn:

    Oops, I suppose in this thread I should point out I’m not that Glenn.

  112. Brien Jackson:

    A) And still, without a cite of any sort. So, yeah, putting it in quotations is inappropriate.

    B) It’s also the issue at hand, so waiving off the fact that no one is in disagreement to argue about all that other stuff you don’t cite is rather unconvincing.

  113. joe from Lowell:

    Counterproductive, for whom? Counterproductive for what?

    For Glenn Greenwald, attempting the 547th iteration of his superior dance, writing up the story this way was not counterproductive at all.

  114. Scott Lemieux:

    it would have been extremely well known that Bush had offered the same amicus brief.

    Assumes facts not in evidence.

  115. Steve LaBonne:

    The depressing thing about politics, at all points on the spectrum, is that 90% of it is just tribalism. Given that, I suppose we should count it as a miracle that democracy ever works at all.

  116. Brien Jackson:

    I guess I should also point out that this doesn’t even make any sense as an attempted insult in this case because, well because there’s no logic to the “and yet…” bit. You’re the one who declared that there should be no further discussion of the topic, not me.

  117. Scott Lemieux:

    You ARE Not ATTTAckING OBaMA’s POLICIes LOUD Enought WITH ENOUGH CaP LOCK YOU ObaMABOT PIECE of SHIT! A SupReme COURt decision ALong STRAIGHt PARTY lines PrOvEs that OBAma is WORSE Than BUSH! noT TO MENTION the EXTREMELY PRoGRESSive BILL CLintON WHo Would NEVER havED SIGNed ACTUAL LEGislATION GUTIING HABEAS CORPUS or ANYTHING! FUCK Youuuuu!

  118. Brien Jackson:

    It’s also a sort of overly broad accusation. For the vast majority of us, what is “widely known” depends entirely on what other people report/write. So, yes, if the New York Times or you had mentioned it, I would have known Bush defended the policy. Otherwise, not so much.

    I obviously can’t speak for how likely you or court reporters would have been to report on the fact that the Bush administration defended some policy under those different circumstances.

  119. joe from Lowell:

    Because their tribal, mental model was that the SCOTUS that would rule that way was of a piece with Bush and his DOJ.

    I would just like to point out that this person is arguing that the only reason a liberal would claim that the Roberts Court acts in coordination with, and in a manner reflecting the influence and agenda of, the Bush administration is because of tribalism on the part of that liberal.

    Some people are quite enamored of the concept of “tribalism” to denounce the behavior of the majority of liberals in this country. I find this commenter’s statement to be a pretty good indication that this sneer has jumped the shark.

  120. Glenn Greenwald:

    SCOTT –

    But given how overdetermined the outcome in this case was, it’s not reflexive Obama apologism to question its impact.

    I’m definitely not arguing that it is.

    As I said, I think there’s a very reasonable debate to be had over the impact of the DOJ’s brief and argument on the court’s decision here: it’s just speculation and we’ll never know for sure what role, if any, it played. I do think the DOJ’s argument in any case is taken as important by most judges – more so in cases like this for the reasons I argued – but I agree: it’s far from clear it was anything close to decisive.

    It’s not apologism to question the impact the DOJ’s argument had.

    It is apologism to dilute or minimize what a bad act this was for the Obama DOJ to take the position it took, regardless of the impact it had.

    My real goal in writing what I wrote was to cause this fact to be inserted into discussion of this case — since it had been generally omitted — and to urge progressives to push back against behavior like this from the Obama administration (and, obviously, noting that the DOJ did this and criticizing them for it is a pre-requisite to that).

  121. Brien Jackson:

    Holy crap, somehow I actually didn’t register that the first time I read the comment. Jesus Christ.

  122. joe from Lowell:

    Read through the whole thread.

    You’re the only one changing the subject, david.

  123. joe from Lowell:

    Hey, I know this game!

    OK, Scott, fine, you found a Muslim who condemns terrorismparagraph in which you criticized Obama’s position.

    But why don’t they you do it more?

  124. Steve LaBonne:

    *In other words, whose DOJ of the past 50 years can anyone imagine wouldn’t file such a brief?

    Can you come up with an example of Carter’s or Clinton’s DOJ going on record in support of a domestic civil-liberties position as bad as this one? That’s a rel question, not a rhetorical one, since in those days I was not as aware of these things as I ought to have been.

  125. joe from Lowell:

    Little heads up, IB: You’re the only person who has brought up Ron Paul in months, and you’ve done it repeatedly.

    Every single time you’ve brought up Ron Paul out of the blue, it has been in an attempt to complain about people who bring up Ron Paul.

    I don’t think this is as effective to the reader as you seem to think.

  126. Barry Freed:

    Ask and you shall receive, it seems:

    http://www.lawyersgunsmoneyblog.com/2012/04/obamas-doj-and-the-abrirary-strip-search/comment-page-1#comment-248659

    I’d like to see yet more now that Glenn has replied.

  127. Scott Lemieux:

    Yes. I don’t think we disagree on the merits at all, and as I said your bringing this to everyone’s attention was a valuable contribution. My only disagreement is that the point could have been made more effectively without preemptive accusations of hypocrisy (particularly evident in the link to the VastLeft cartoon.) If people were changing their minds about the merits of the case after finding out that Obama supported the outcome, that would be different — but as far as I can tell, nobody (nutpicking aside) is.

  128. BradP:

    It’s also a sort of overly broad accusation. For the vast majority of us, what is “widely known” depends entirely on what other people report/write.

    I should clarify: There are doubtless a great deal of people who did not know, and I do not wish to direct any of those attacks personally.

    My point, put more specifically, is that the lack of reporting on the DOJ’s position despite the outrage over the decision tells me that there is a broad deference to the Obama administration (on civil rights, at least) that he does not deserve.

    It was a very important bit of information that feeds into a greater debate over the Bush-like trends in the Obama White House.

  129. joe from Lowell:

    Why is the Obama administration filing such briefs at all? The biggest picture pretty consistently confirms that Obama is more than comfortable with the strong rightward lurch of all government policies that infringe on what had previously considered the average American’s civil liberties.

    The biggest problem with your comment is your impression that you are “the base.” You’re not.

    The second-biggest problem with your comment is your conflation of “the DoJ” with “the administration,” as if this brief was ordered up from the Oval Office. The Department of Justice is, primarily, a law enforcement organization, and one with enormous institutional/bureaucratic mandates and imperatives. Federal law enforcement filed a brief in favor of broader powers for law enforcement organizations, because law enforcement organizations want the courts to grant them as much latitude as possible.

    The third-biggest problem with your comment is thinking that it demonstrates greater principled support for civil liberties, as opposed to a narrower, political rooting interest, to treat the DoJ’s amicus brief as more important than the actual decision itself.

  130. BradP:

    There is a big difference, however, between the paranoid, insular tribalism of conservatives, and the apologetic tribalism you see from liberal democrats.

    But yes, it is all very depressing.

  131. david mizner:

    My long comment was a direct response to Bijan, who said:

    I would deny that it’s a phenomenon worth attending to. There’s little evidence that it’s prevalent and even less evidence that what there is of it has any substantive effect and no evidence at all that reflexively railing against it is remotely useful. It may even be counterproductive overall.

    More to the point maybe, the reasonableness of Greenwald’s suggestion — that progressives would’ve mentioned (or sought to find out) the presidential position had it been Bush’s — hinges the existence of Obama apologism (partisanship).

  132. joe from Lowell:

    Ah, so a purely semantic distinction without a difference.

    Sort of like

    I wasn’t suggesting that any progressive writers have diluted their criticism of the decision here because Obama favors it…Democrats & progressives often modulate their complaints about policies they hate once Obama is on board with them

  133. Brien Jackson:

    Reporting by whom?

  134. joe from Lowell:

    Christ, what an asshole. Even the forced laughter “LOL!” at the beginning.

  135. Brien Jackson:

    Well yes, this perfectly explains why liberals are so outraged by the conservative judges making a decision while simultaneously defending the Obama administration for agreeing with them.

    Or, you know, not.

  136. Anonymous:

    “Making criticism of the Obama administration the primary takeaway in this case seems fairly odd”

    No, because it reveals–like so many other events–what’s really at the heart of Obama. His blind followers claim he has good intentions but that is obviously not so.

  137. joe from Lowell:

    “I am definitely not arguing that (questioning its impact” is “reflexive Obama apologism.”

    Scott: The Supreme Court’s strip-search decision is awful, warped and terrible.

    Me: The Obama DOJ vigorously supported and urged that decision.

    You: YOU HATE OBAMA!!!!

    No, definitely not. Definitely.

  138. mark f:

    It’s like a firebagging Day by Day, except instead of trying to draw T&A you didn’t bother trying to draw . . . eggs?

  139. Brien Jackson:

    Who claimed this?

  140. joe from Lowell:

    Everything else is territorial pissing.

    Would that include your comment, which went off into a tangent about those terrible Obama apologists?

    Would it include Greenwald’s column, which was all about a tangent about those terrible Obama apologists?

    It seems to me that the appropriate target for your “eye on the ball” complaint would be the guy who changed the subject from the decision to “Obama apologists.”

  141. Steve LaBonne:

    I don’t think we disagree on the merits at all, and as I said your bringing this to everyone’s attention was a valuable contribution.

    Would it have killed you to make that the main focus of your post, and only then quibbled with Greenwald? Instead, three of your four points were about either minimizing the importance of the brief or picking nits with Greenwald.

    I mean, I ought to have learned about that brief from this blog, and I didn’t. That kind of pisses me off, and it really ought to cause you to pause and reflect.

  142. joe from Lowell:

    I have the same question about this beloved “progressive hypocrites” line:

    Why is it that I only ever see it phrases theoretically? Those terrible progressive critics did this, and would have totally done something different if there had been some similar situation under Bush. This is what I always see, and here we see it again.

    Why, if this tendency is so incredibly pronounced and obvious, why can’t the people propounding this theory ever provide any actual, non-imaginary examples of this different behavior?

    That that cannot find any – that they are forced to find cartoon characters and imaginary episodes to make predictions about, in place of actual examples – convinces me that we are more in the realm of beloved mythology than reality-based thinking.

  143. Brien Jackson:

    Yes Scott, in the future please stick to agreeing at length with the posts you link to, and do refrain from responding to implicit accusations of bad faith on your part.

  144. Bijan Parsia:

    Data! Bring me data! An appropriately absurd technocratic response. It would be like me asking for data showing that some criticism of Obama is unfair. (It is.) Can’t be done.

    Given that your past claims about what people have said e.g., on this blog were provably false, it’s great that you decide to doubledown on the evidential helplessness. It reminds me of your reacting to a reasonable weighting request with laugher and insinuation that Scott was trying to cheat. Alas, your mockery is about as skilled as your judgement.

    (There are plenty of criticisms of Obama that are easy to show are unfair. I’m not sure why you think otherwise. I mean, really. That’s just bizarre.)

    Oh, btw, nice shift of topic! Note that the claim I was asking evidence for is, you know, the one you wrote:

    I’ve seen several people here deny that there’s even such an animal as “Obama apologism.” This is often right before they apologize for some Obama atrociousness.

    This is the sort of thing that it is impossible to mobilize evidence for? This is pretty pathetic hackery.

    I can see why trying to get everyone to admit that they are partisen or a hack would appeal to you.

  145. Bijan Parsia:

    My experience is that progressives (including myself) are unhelpfully evenhanded. I went out of my way to praise Bush the few times he did something good (e.g., talking about Islam as a religion of peace and visiting a mosque sans shoes soon after 9/11). I really don’t see Scott or loads of other people giving Obama a pass for crap that his administration does. Obama gets less overall crap because he’s not as bad. Switch the actors and given them the same record and I would still be personally repelled by Bush’s awful personality but I would still think Katrina was a disaster, Iraq an unmitigated disaster, etc.

    I’m not sure why you would find this convincing if you ex ante decided that I was partisen.

  146. Njorl:

    There seems to be a man around here who thinks like that, but he doesn’t seem to be made of straw.

    Nor is he of any significance. No insult to that person is intended – blog commenters, like me, are in general insignificant when it comes to these matters.

    Small numbers of random individuals who hold no political or journalistic power who may be Obama apologists is not a topic worth discussion.

  147. Bijan Parsia:

    I see you misread my comment. Please just read the first paragraph and defend your initial comment.

    I’m happy to talk about apologism in general in an evidence based way, but first I’d like you to establish that you are working from anything besides your conclusion.

  148. Scott Lemieux:

    Not only did the Clinton administration go “on the record” with a civil liberties position (gutting federal habeas corpus rights) worse than this one, they signed fucking federal legislation to that effect, as opposed to filing a brief in a case in which their two appointees voted the other way.

  149. david mizner:

    Apologism? Look no farther than this thread where Joe tries to let the president off the hook by claiming that the DOJ really isn’t part of the administration.

    The second-biggest problem with your comment is your conflation of “the DoJ” with “the administration…

    If anybody had tried claiming that the Bush DOJ weren’t really part of the Bush administration, s/he would’ve been rightly mocked.

  150. Steve LaBonne:

    Thanks, that was the kind of information I was looking for. I was aware that they’ve all been awful on foreign policy, but I don’t know as much as I should about the track record on domestic policy.

    Depressing.

  151. david mizner:

    That shoulda been blocked:

    The second-biggest problem with your comment is your conflation of “the DoJ” with “the administration…

    And btw, as for the Ron Paul stuff, I never claimed to know that Scott wrote more about Ron Paul than civil liberties, only speculated that it was close, and expressed amusement when Scott urged me to count the number of words, not the number of posts. His concern proved my point about his bizarre fixation on Ron Paul.

  152. dms:

    Well, I’m rooting for LaBonne, Kvetch, and BradP.

  153. Brien Jackson:

    Well, okay, we’ve established the JFL is very inclined to defend the administration and that the sky is a shade of blue. Anything else?

  154. joe from Lowell:

    And this is why you are so roundly considered a hack, David.

    No effort to engage with a shades-of-grey argument. The notion that the actions of the DoJ are motivated by more reasons than top-down orders from the White House? Clearly absurd, because it isn’t anti-Obama enough.

    Blunt minds don’t do well with fine points, and you have the bluntest mind I’ve ever seen.

  155. joe from Lowell:

    Of course it did.

    Has any refutation of a claim you’ve made ever failed to prove you point?

  156. erik:

    This was a totally unfair dig at Glenn. The person Glenn was paraphrasing as “you hate Obama” (Marc) had acutally accused Glenn of “obsessive hatreds”.

  157. Scott Lemieux:

    His concern proved my point about his bizarre fixation on Ron Paul.

    Yes, clearly a 1,200 word column and a one-sentence link post display precisely the same amount of interest and attention to a given topic, and only an OBot would reject this obvious truth. Anyway, even based on your stupid metric your speculation proved to be utterly wrong.

  158. joe from Lowell:

    Here is the entirety of the comment:

    You think that the Obama administration is the bigger problem than the Court. You’re free to indulge your obsessive hatreds, but don’t expect them to be immune from criticism. In particular, this rhetorical habit of assuming hypocrisy in advance of its commission is simultaneously obnoxious and ineffective.

    You want a cheap shot? Summing this up as “YOU HATE OBAMA!!!” – all caps, onetwothreefour exclamation points – and ignoring the points he makes is a cheap shot.

    What about “assuming hypocrisy in advance of its commission?” What about “You think Obama is a bigger problem than the courts?”

  159. Bijan Parsia:

    Yeah, this is really bugging me as well. It reminds me of all the accusations of Bush Derangement Syndrome. I remember being accused of being a democrat (when I wasn’t), of being in the tank for Gore (it took me a long time to come around on Gore), and that I wouldn’t make my criticism if it were a Democrat in office.

    The fact that Republicans do such flopping systematically and routinely (filibuster, mandate, everything) seems to have legitimized it as a general accusation.

    It’s rather odd.

  160. Anonymous:

    Nobody can outdo joe from Lowell in his pious devotion to The One, that’s for sure.

  161. joe from Lowell:

    My favorite is the accusation that we would all be condemning George Bush if he was using drones to strike al Qaeda leaders in Yemen and Pakistan.

    Never mind that George Bush actually did use drones to strike al Qaeda leaders in Yemen and Pakistan. Never mind that the same people who are writing about politics now were writing about them. Never mind than any history of these people denouncing George Bush would be easy enough to find in their archives and quote.

    No, we’re just going to assume that anyone who doesn’t condemn Obama for using drone strikes against al Qaeda was railing against Bush when he did the same, because it just happens to fit a pre-existing theory that makes a certain class of people feel better about themselves.

    Too good to check.

  162. Brien Jackson:

    Right. Pointing out that Greenwald took time away from whatever else he could have been doing to write a post that didn’t even attempt to engage the fairly relevant things the commenter said beyond hurling insults at him is truly the height of Dear Leaderism.

  163. joe from Lowell:

    You sum up the validity of the argument pretty well.

    There’s certainly no one who provides more evidence of logic than this.

  164. Anonymous:

    Has joe from Lowell ever disagreed with Obama’s actions?

  165. david mizner:

    The point is that no one, certainly not a progressive, would’ve tried to defend Bush by saying his DOJ was not actually part of his administration.

  166. joe from Lowell:

    Well, you see, Brien, just as any criticism of Obama must be accepted uncritically as the truth, so does any disagreement of that criticism count, by definition, as mere obedience.

    We don’t have to actually consider whether the criticism, or the objection to it, is valid.

    It is Good to denounce Obama. It is wrongthink to find problems with any denunciation.

  167. joe from Lowell:

    Has joe from Lowell ever disagreed with Obama’s actions?

    Yep.

  168. david mizner:

    Congratulations, Scott. You wrote more about civil liberties than about Ron Paul.

  169. Bijan Parsia:

    First you write:

    I never claimed to know that Scott wrote more about Ron Paul than civil liberties, only speculated that it was close,

    then:

    and expressed amusement when Scott urged me to count the number of words, not the number of posts. His concern proved my point about his bizarre fixation on Ron Paul.

    You know your more sophisticated hacks try to spread their contradictions over more than one paragraph so it’s not quite so obvious that they forgot what they wrote 20 seconds before hand.

    But focusing on the last bit, you take Scott making a perfectly reasonable weighting point (perfectly standard and obvious) as “proving” your contention.

    I can see why technical points scare you. And evidence too! Brrr! It’s so absurd to demand that your characterization of a person’s writing be related to what they actual wrote instead of being determined by your fever dreams.

    BTW, it was hilarious that you “speculated” what would have taken a few minutes to casually check and took me but 30 minutes to systematically disprove. Why introduce crap into the discourse?

  170. Anonymous:

    You seem to spend a lot of time here doing nothing but obsessively defending him. I’ve never seen you denounce him even once.

    Work for the DNC by any chance?

  171. joe from Lowell:

    No, Daviid, the point is that I never claimed the DoJ wasn’t part of the administration.

    Your blunt mind made that up.

    There is another point, one that people with sharper minds could pick up on, that I was making.

    And you just keep whiffing on it.

  172. Hogan:

    I’m taking Bijan Parsia and the points.

  173. joe from Lowell:

    Interesting thing about the word “seem.”

    It doesn’t actually tell us anything about the thing that “seems.” To be strictly grammatically accurate, the word “seems” should be followed by a “to-” statement.

    I absolutely believe that it “seems” like that to you. Not my problem.

  174. mark f:

    No, we’re just going to assume that anyone who doesn’t condemn Obama for using drone strikes against al Qaeda was railing against Bush when he did the same, because it just happens to fit a pre-existing theory that makes a certain class of people feel better about themselves.

    As Ta-Nehisi Coates put it in another context:

    [T]here are pundits who write more than they read, and talk more than they listen, and prefer an easy creationism to a Google search.

  175. joe from Lowell:

    Work for the DNC by any chance?

    I work in an urban school where 75% of the kids get free/reduced lunch, and about half of them have parents that speak a language other than English at home.

    How about you, champ?

  176. Uncle Kvetch:

    Well, I’m rooting for LaBonne, Kvetch, and BradP.

    Thanks, but count me out. This is too fucking depressing.

  177. joe from Lowell:

    I would have bet on Greenwald to write a comment with one of those forced-laughter pretensions and then flounce off dramatically once things started to go badly for him, but I got to the window too late.

  178. Anonymous:

    Ah, union parasite, then. Got it.

  179. Anonymous:

    So the NEA or AFT is probably putting you up to this. I hope your union boss is at least paying you a little extra under the table for your troubles.

  180. joe from Lowell:

    Ah, union parasite, then. Got it.

    Lol, I wish.

    I guess the question is, knowing that this “progressive hypocrites/Obamabots” line of bullshit is being pushed by wingnut activists to try to weaken liberals politically, how many people who purport to support liberalism are going to help Anonymous et al in their efforts?

  181. Brien Jackson:

    It’s depressing that everyone agrees the administration was in the wrong here?

  182. Anonymous:

    Shorter slightly different joe from Lowell:

    “We must not let foreign saboteurs and counterrevolutionaries undermine our Dear Leader’s Five Year Plan.

  183. Brien Jackson:

    “Ah, union parasite, then.”

    Real Progressive here everyone.

  184. david mizner:

    Sorry, Joe. You criticized someone for “conflating” the DOJ and the administration. That’s much more reasonable.

  185. Bijan Parsia:

    I mean counterproductive for opposing such policies (in a general sense), i.e., for the prima facie reason for such an article.

    I take your point that it could be useful for other purposes, but I’m don’t think it’s worth attributing to Greenwald secret cynical motivations. It’s perfectly possible for his schtick to be sincere, after all.

  186. joe from Lowell:

    And what sort of memes does the “Real Progressive” show up here to push?

    The One.

    Dear Leader.

    “obsessively defend him.”

  187. mark f:

    Real Progressive here everyone.

    Heh.

    I hope your union boss is at least paying you a little extra

    Deep understanding of unions, too.

  188. joe from Lowell:

    Destroy the Counterrevolutionaries and the Trotskyites, and fulfill the vision of our Dear Leader!

  189. Brien Jackson:

    Also cartoonish right-wing anti-Communist mumbo jumbo. Because, you know, Real Progressive.

  190. david mizner:

    Bijan. My point was that Scott wrote about Ron Paul often. Very often. Comically often. He did. So often that even he thought that maybe he’d written more posts about Paul than civil liberties.

  191. joe from Lowell:

    Oh, look now he’s engaging in name-jacking.

    Way to totally make me look unreasonable for accusing you of using dishonest subterfuges.

  192. Scott Lemieux:

    Bijan. My point was that Scott wrote about Ron Paul often. Very often. Comically often. He did. So often that even he thought that maybe he’d written more posts about Paul than civil liberties.

    Wrong, and wrong again.

  193. joe from Lowell:

    Trust in Obama with all thine heart; and lean not unto thine own understanding.

  194. Brien Jackson:

    And our collective point is that you asserted as such before taking a relatively short amount of time to research it, and after it was shown to be wrong attempted to double down on it. Which makes you a hack.

  195. joe from Lowell:

    Be not wise in thine own eyes: fear Obama, and depart from evil.

  196. joe from Lowell:

    Honor Obama thy substance, and with the firstfruits of all thine increase: So shall thy barns be filled with plenty, and thy presses shall burst out with new wine.

  197. Anonymous:

    And you have forgotten that word of encouragement that addresses you as sons: “My son, do not make light of Obama’s discipline, and do not lose heart when he rebukes you.

  198. Bijan Parsia:

    Joe wrote that it treating the DoJ as if it were a direct conduit for Obama’s will failed to take into account lots of important institutional factors and might well have been a “bottom up” rather than “top down” move.

    I don’t think this means that Obama doesn’t bear formal responsibility, or that Joe thinks that the brief itself wasn’t dreadful. The point was narrower and against the reading that this brief reveals Obama’s inner mind about civil liberties.

    A more positive way to put it is that you need a lot — a hell of a lot — of commitment from the president to shift this institutional bias and, probably, a wider change in the political climate. Look at the attempt to downsize and restructure the military even a little bit. Now imagine trying to unwind the war on drugs.

    Now, the fact of the brief isn’t valueless as data about the adminstration as a whole, but it’s one piece of evidence. Given that US presidents have a lot of incentives to be bad on civil liberties and few incentives to be good, plus the general momentum of the government is toward the bad on civil liberties, you have to do a fair bit of work to tease out the differential (positive or negative) of Obama.

    In this case, for example, we have Obama’s court picks (good) vs. the DoJ brief (bad). There’s no evidence that the Obama administration is unhappy with their SCOTUS picks or feel betrayed by them (e.g., on this case). Thus, things are rather complicated.

    (It’s not complicated whether the brief was bad. It’s clearly terrible.)

  199. Bijan Parsia:

    No no! I must demure.

    He’s roundly considered a hack because he can’t, and won’t, count! And likes to “har har” demands that he supply simple evidence for simple points.

    I put binary thinking well down the list!

  200. Bijan Parsia:

    Extremist is a word that has been used many times on this and other sites to describe those of us who believe these issues are the most fundamental measure of the heart and mind of a President.

    Data please.

    Besides, I would say that if you “believe these issues are the most fundamental measure of the heart and mind of a President.” that you’re unserious, silly, and grandiose. I mean, “heart and mind of a President”. Really?

    Even toning it down to “these issues are the key measure of the success (or goodness, or progressiveness, or…) of a presidency” leaves you at best “narrowly single issue”.

  201. joe from Lowell:

    Didn’t mizner just tell us, rather hilariously, that he wasn’t interested in the hearts and minds of political figures?

  202. Joe:

    Roberts and Alito, contra the cartoon, rejects the broadest expression of what the opinion allows, but it’s great that so many want to help those who would hurt people who want to convince lower court judges to interpret it more narrowly. Also, Breyer notes federal policy doesn’t even encourage the practice in its own prisons. Who cares though?

  203. Njorl:

    In my view, your voice has a bigger impact vehemently denouncing the Obama administration’s support for this policy than it does the Supreme Court’s approval of it.

    Once you exit the ideological realm of criticizing the administration for being wrong on this issue, and enter the practical realm of how best to deter invasions of human rights, the path becomes less clear. Our rights are much more likely to be in jeopardy if Obama loses the next election. Obviously, you can’t let that be a catch-all defense for anything Obama does, but you need to keep it in mind.

    Optimally, stories complaining about Obama should be of the “Obama is wrong” variety rather than “Obama is like the Republicans”. The latter type is discouraging while the former portrays a need for action. It’s hard to write this story as critical of Obama without painting him as a Republican.

    That being said, practicality is not the only reason for writing.

  204. Cheap Wino:

    Jesus, this whole debacle reminds of why I stopped reading Greenwald years ago.

    Now, worse, the whole anti-Obama left thing is a real threat to his re-election. Read the comments at Greenwald’s blog or Digby and they are rife with hatred that rivals the stuff coming from Hannity followers. These dumbasses are effectively giving votes to Mitt fucking Romney (they sure as hell are not voting for Obama). And it’s has the potential to be devastating to re-election chances.

    It’s idiotic response to the political realities. Is it so important to hold rigidly to your principal that you get Romney elected and potentially make the SC even worse than it already is? He’s not a real liberal or progressive so better off getting the Republican du jour?

    Greenwald aggressively foments this kind of attitude. It’s damn frustrating.

  205. david mizner:

    Thanks.

    I don’t think this means that Obama doesn’t bear formal responsibility

    I wonder if Joe would agree. I doubt it based on what he wrote.

  206. Cheap Wino:

    Yep. All too predictable.

  207. Brien Jackson:

    So, to sum up basically this entire thread, the Obama DOJ did something bad, and everyone agrees that it was bad. There is, however, a slight disagreement over whether that bad action makes any material difference, and there is also one writer who, in addition to noting that the DOJ did something bad, chose to launch a pre-emptive attack against a segment of American liberals and liberal commentators accusing them of hypocrisy and bad faith for not noticing that the DOJ did something bad as quickly as he did. Some of the targets of that pre-emptive insult are offended by this, and that proves that they’re tribalist partisans, because obviously only a tribalist partisan would perhaps not take kindly to being insulted before the fact for taking a position they don’t take.

    Of course, that segment of commentator who won’t take agreement on the larger question for agreement and instead insist on picking a fight with the insulted group and the strawmen in their head are most certainly not being tribalistic in any way.l No siree, they just happen to be on the side of angels, you see, so much so that if you so much as don’t care for being insulted by them you must disagree with them on the important things somehow. And no, they will not be apologizing for erroneously impugning you, thank you very much, if you still have a problem with being insulted you should just shut up and get over it by agreeing that the DOJ did something shitty even more forcefully you stupid OBot.

  208. Brien Jackson:

    Also, to point out the even more obvious, Scott’s primary area of focus/expertise is the Court, so an argument that he has sinned for focusing on the Court seems like a bit of an overreaction, at the very least.

  209. Bijan Parsia:

    It’s a really interesting question how to improve the civil liberties behavior of presidents and their adminstrations, esp. on privacy and criminal procedure. I keep looking at the success of gay rights activists, but they have the tide of history and public opinion on their side, which really helps. Civil liberties are, always surprising to me, a hugely harder sell. Frankly, I still can’t believe that asset forfeiture is legal, much less a standard tool. You would think that after 2000 that felon disenfranchisement reform would be of moderate interest to Democrats. Etc.

  210. david mizner:

    And I continue to be amused that people think the fact that Scott wrote more posts about his area of expertise than Ron Paul shows he didn’t fixate on the 4th place candidate for the GOP nomination. The fact that there was some question about this says it all.

    But thankfully we’ve moved on. At least I have. Bijan is still very determined to try to disprove a claim I never made.

  211. Njorl:

    One generally spends more space disagreeing with people than agreeing with them. The person you’re agreeing with has often already supplied the necessary argument.

  212. Barry Freed:

    Um, wow.

    (You know I took a few years off from blogs while I was dealing with some life shit, including this one which was an old haunt of mine and when I came back some time ago I saw Uncle Kvetch having a go at you to the effect of that’s why he doesn’t respond to you anymore and I remember thinking to myself what was that all about? Thanks for that, now I know.)

  213. joe from Lowell:

    You think a lot of things, david, and you keep having to admit you were wrong.

    Is there something you’d like to ask me, instead of playing your brand of never-fail guesswork?

  214. Brien Jackson:

    Jesus Christ, do you really desire to have your level of credibility reach absolute zero?

  215. joe from Lowell:

    The fact that there was some question about this says it all.

    The only “question” about this fact was in your head.

  216. joe from Lowell:

    Um….you’re welcome?

  217. Bijan Parsia:

    I think it’s a bit depressing that we’re in Yet Another Round of metacritcism.

    Not that I am, shall we say, blameless in this! If I thought any of it would shift some people from being a bit less annoying and hacky, it could be worth it.

    I would really like it if some sort of strategy or organization emerged that might have a fighting chance of influencing the administration to do better on various classes of civil liberties. I suspect pre-election is a bit of a lost cause and if the Republicans take congress, it also seems pretty dire. It’s hard to imagine even simple things that would be popular like rolling back some airport security theater happening anytime soon.

  218. Njorl:

    I’m just waiting for Steve to say, “Cut his mic! Cut his mic!”

  219. Bijan Parsia:

    I wonder if Joe would agree. I doubt it based on what he wrote.

    I don’t see how you are getting that out of what he wrote (rather than what you believe of him). He nowhere says anything remotely like Obama doesn’t bear formal responsibility for the DoJ. It would be exceedingly silly of him to say anything like that (DoJ is part of the adminstration, the AG is on the cabinet, Obama appointed the AG, etc.)

    Your wondering really continues to make you look bad. But whatev.

  220. Brien Jackson:

    It seems to me that the metacriticism could have been avoided by Glenn simply saying “It’s nice that we agree on the larger point, though we disagree about how influential the DOJ was in this case, and I apologize for impugning you before the fact instead of merely allowing that you perhaps didn’t check to see if the administration had made an argument in a case they weren’t a party to and in which the decision broke down along purely partisan (and predictable) lines.”

    Instead, Greenwald chose to continue flinging insults at everyone who disagreed with him on any point, and commenters like LaBonne decided to run to the fainting couches over the possibility that people who were accused before the fact of holding opinions they don’t actually hold might voice their displeasure over that rather than simply DENOUNCE OBAMA LOUDER DAMNITT!

  221. david mizner:

    I just did, Joe. Do you think Obama bears responsibility for this DOJ’s position?

  222. joe from Lowell:

    Do you think Obama bears responsibility for this DOJ’s position?

    To some extent. Anything that happens in the executive branch is, to one degree or another, the responsibility of the President.

  223. joe from Lowell:

    And no, you didn’t “just” ask my anything. You said what you thought I believed.

  224. R. Porrofatto:

    Correct me if I’m mistaken, but didn’t even the Johnson administration argue against Miranda, in the person of the Solicitor General at the time, none other than Thurgood Marshall?

    Yes, it is depressing.

  225. joe from Lowell:

    one proves one’s status as a true progressive by calling on others to prove their lack of hypocrisy by denouncing X, or one takes offense that someone has implied that you aren’t really moral or progressive.

    Excuse me, but these are not remotely equivalent.

    Insulting someone and taking offense at an insult? No, this is not a “both sides” situation. Don’t insult people who haven’t done anything wrong; they tend not to like it.

  226. Njorl:

    I think he’s right, but it’s not significant.

    You have to keep in mind, that there are political actors and ideological actors, and the political actors are much more numerous and well connected. Those with political motivations would have a motive for disseminating the information that the Bush administration filed such a brief. Ideological actors would be more likely to have such information in that case. In the present situation, no political actor on either side stands to gain from disseminating the information that the Obama administration was filing that brief. That makes it less likely to be known. It is perfectly logical that progressive bloggers would be less aware of such a brief filed by the Obama administration than if it were filed by the Bush administration.

  227. Bijan Parsia:

    And I continue to be amused that people think the fact that Scott wrote more posts about his area of expertise than Ron Paul shows he didn’t fixate on the 4th place candidate for the GOP nomination.

    (Love the shifting claims!)

    You wrote:

    [Scott] doesn’t have to write about imperialism or war or the national security state or Israel, but it’s strange to ignore those things then blame Greenwald’s praising Paul for the lack of discussion about those things.

    And then:

    Do you really want me count to see if you’ve written more posts about Ron Paul or civil liberties over the last months?

    Didn’t think so.

    I dearly hope you aren’t going to try to weasel out of the plain insinuations of these passages. The clear, direct implication of the second passage is the indicative form of the rhetorical question. It’s fair to attribute this claim to you. Thus, I have conclusively refuted a claim you actually made. Yay me!

    The fact that there was some question about this says it all.

    It must be nice work taking one’s own unsubstantiated, groundless, and easy-to-falsify claims as evidence that there’s some there there.

    Bijan is still very determined to try to disprove a claim I never made.

    I am bound and determined to disprove a lot of claims you’ve never made (my day job requires it!). But the above claim you in fact made I in fact have already disproved. Conclusively. With technocratic absurd data goodness.

    I am, however, curious as to whether you’ll ever reach a moment of epiphany and realize that you are taking unmitigated crap. It’d be really easy to stop talking such crap. I don’t think anyone would give you a hard time, but you should really note how unmoored from reality your simple observations are.

  228. david mizner:

    “To some extent”

    Not quite a yes, but I’ll take it. Progress!

  229. david mizner:

    I gotta run, friends. Talk amongst yourself.

  230. Brien Jackson:

    “…but also for folks like Brien to not take such attacks so personally.”

    Missed this earlier but, if I may, I don’t take anything said on the internet personally, and I’m not taking this personally beyond noting that Greenwald chose to launch a before the fact accusation of hypocrisy. Rather, what makes this example noteworthy relative to the dozens of other threads this intra-tribal divide animates is that, in this case, Greenwald and the commenters here who agree with him are choosing to lob these attacks against their perceived intra-tribal enemies over an example where no meaningful disagreement exists. That seems fairly illustrative to me.

  231. david mizner:

    Whoops — one more, I see Bijan posted a comment, unintentionally showing that I never made the claim that Scott wrote more about Ron Paul than civil liberties. My comment didn’t claim anything. I speculated. I speculated that such a comparison wouldn’t be flattering. And damn, Scott sure did write a lot of posts about that guy whose name I can now barely remember. Who was it again?

    But it’s always easier and more pleasant for Democrats to write about that guy than, say, the innocent Muslims President Obama is killing. By the way, that guy has of course faded from the scene, but President Obama is still innocent Muslims.

  232. joe from Lowell:

    For it to have been “progress,” it would have to represent change on some level, when in fact, this observation is perfectly consistent with everything I’ve written.

    In fact, it’s basically a reiteration of the point I made earlier about federal law enforcement, which you characterized at the time as craven Obama apologetics, before you were compelled to back down.

    I do like the way that the only method you have for understanding what I wrote was to say “progress.” It demonstrates quite well what has been clear for a long time – you lack both the ability and the inclination to judge any statement or argument by any standards other than whether it seems pro- or anti-Obama. This statement isn’t “progress” because it demonstrates a better understanding of issues or facts. To you, it represents “progress” because it seems to be “harder on” Obama, and that’s really your one trick.

  233. Bijan Parsia:

    Yeah, I’m not a fan of drone warfare now or then.

    My big visceral repugnance to Obama was when he cracked the Predator drone line at the National Correspondent’s dinner. Horrible, just horrible. And horrible in a relevantly similar way as Bush’s mocking Karla Faye Tucker or Bush’s “looking for WMD” skit.

    Just utterly disgusting.

    Bush still seems, personally, like a tremendous jerk. Much more so, on a personal level, than Obama. (The whole nickname crap, plus the self-aggrandizement, really got on my nerves.)

    Now, obviously, this isn’t about policy per se, but it’s not dissimilar. My impression (a quick search supports it) at the time is that the left in general didn’t much care for it.

  234. Brien Jackson:

    I’m willing to bet that it’s simply a matter of david not understanding what is meant by “formally responsible.”

  235. Bijan Parsia:

    Obviously, I’m with you on where the (instigating) blame lies.

    And some of it is entertaining.

  236. Njorl:

    For most groups, the challenge is to be treated like everyone else. For criminals, we have already decided to take away some rights. It becomes a question of where to draw the line. That’s much harder than deciding not to draw a line at all.

  237. Bijan Parsia:

    Whoops — one more, I see Bijan posted a comment, unintentionally showing that I never made the claim that Scott wrote more about Ron Paul than civil liberties. My comment didn’t claim anything. I speculated. I speculated that such a comparison wouldn’t be flattering.

    Wow, this is how you’re going? Fine.

    I showed that your speculation, which you strongly suggested that was so obviously true that it wasn’t even worth doing a cursory check, was utterly bogus.

    I’m not sure why you think your ineptness or laziness vindicates your shoddy and insulting speculating or protects you from criticism, but then again, I’m not a hack.

  238. Bijan Parsia:

    President Obama is still innocent Muslims.

    Are you a birther as well as a “not-only-is-Obama-not-Christian-he’s-actually-a-whole-mosque-himself”er?!?!

    (And duh, you miswrote. I got what you meant. I also got what you meant when you “speculated”.)

  239. joe from Lowell:

    See, I remember thinking, when a CIA drone lew up a car full of al Qaeda terrorists, one of whom was an American, in November 2002, my response was exactly the same as when the CIA did something similar in 2011: good. I want the government to go after al Qaeda, and much of my criticism of Bush during the Iraq War was, like that of most liberals, about “taking his eye off the ball.”

    And I remember that there were some liberals at that time who were horrified by that strike, and I can’t think of any who flip-flopped and supported the similar action under Obama.

    So, we disagree. But, of course, no one actually disagrees with Glenn Greenwald. They’re all perfidious traitors who changed their stripes.

  240. joe from Lowell:

    I can think of one prominent example of liberals who have changed their position on an issue since Obama came to office: a whole lot of them who used to support the Afghan War have come out against it.

    Oddly enough, this actual, easily-demonstrable example of liberals changing their mind is not presented as a demonstration of “disgusting progressive hypocrisy” or anything else.

    However, we get all of these (imaginary, theoretical, made-up, fantasyland, bullshit, pulled-from-his-ass) “examples” of what he just knew people would have said, and because he’s written the same shtick so many times, all of those “examples” are supposed to prove an underlying point which is then assumed as the context by which to judge the next time. It’s really quite a bit like how Gingrich used to operate under Clinton. “Even if I can’t prove any one of these claims, taken together, there’s a cloud…

  241. Brien Jackson:

    “I can think of one prominent example of liberals who have changed their position on an issue since Obama came to office: a whole lot of them who used to support the Afghan War have come out against it.”

    A-fucking-men.

  242. Njorl:

    I don’t think the metacriticism is so bad. We’re going to be stuck with this dilemma for decades. Popularizing progressive causes will tend to cause short-term political harm. We have to learn the most effective ways of dealing with it.

    While conservatives face the same problems to some extent(the anti-contreception crusade isn’t a political winner), they don’t have to popularize their issues, they can rely on promoting ignorance. That has no political cost.

  243. Bijan Parsia:

    Really? (I was against it, at least to how it came about. Exchanges with Farley and some reading out of that made me think that withdrawing was much less clear cut than I thought it was.)

    Names/pointers? I guess I could see thinking that the war was a good one to start but now it’s well past it’s finish?

  244. Brien Jackson:

    I’m not really sure that says anything about this case, however, because again, there’s no material disagreement between any of us. Literally all of the self-identified liberals in this thread agree with

    My point is that Greenwald and the people agreeing with him are now so invested in fighting these intrasquad scrimmages, as it were, that they’re going out of their way to provoke fights between the two supposed progressive camps even on an issue like this where no one disagrees with each other in any meaningful way. That says quite a bit, I think.

    (And of course, like any good reactionary, Greenwald has to accuse the other side of the sins he is in the process of committing.)

  245. Bijan Parsia:

    It’s really quite a bit like how Gingrich used to operate under Clinton. “Even if I can’t prove any one of these claims, taken together, there’s a cloud…“

    I have to say, I’m still a bit stunned by Mizner’s
    “The fact that there was some question about this [that I raised with no evidence or attempt at evidence against what even a causal reader would have concluded] says it all.” line.

  246. Brien Jackson:

    Perhaps no one here engaged in it, but I can most certainly remember a lot of rhetoric coming from liberals pre-2009 about how one of the big problems with Iraq was that it diverted resources/attention away from Afghanistan, which was the “good war” since the people who perpetrated 9/11 were there.

    I distinctly remember this because I got very little support even from progressives when I expressed the opinion that the Afghan war was an obvious strategic mistake, in hindsight. Not condemnation, to be sure, but a lot of *well it had to be done* stuff.

  247. Steve LaBonne:

    My point is that Greenwald and the people agreeing with him are now so invested in fighting these intrasquad scrimmages

    Poster child for lack-of self-awareness syndrome. I mean, just count the comments. Jesus.

  248. Scott Lemieux:

    So, to summarize:

    1)Mizner was far more interested in defending his Paul-curiosity and the Paul-curiosity of others than in actual substantive civil liberties issues.

    2)In an act of pure projection, he accused me of caring more about making fun of the Paul-curious rather than posting about substantive civil liberties issues.

    3)This accusation was completely false.

    4)But this falseness was, in the best Jonah Goldberg tradition, central to his point.

  249. Brien Jackson:

    It seems to me that the first stone cast should be weighted a tad bit higher, no?

    In any case, we long ago established that there isn’t any disagreement on the question of whether the Obama DOJ’s stand was terrible. What has *not* happened, unless I’ve missed it, is a single comment from Greenwald or someone else on his side, as it were, apologizing for pre-emptive charges of hypocrisy or at least acknowledging that it was wrong to assume that anyone who didn’t notice it as quickly as Greenwald must have been guilty of bad fait. Again, I’d say that’s telling.

  250. Brien Jackson:

    And just to be extra explicit, let’s not divorce this from Glenn’s infamous “rape a nun” moment.

  251. BradP:

    Yes, although I wouldn’t even try to differentiate between those that are political actors and those that are idealogical.

    This all comes down to the fact that those most likely to take a strong civil liberties stance on something like this largely overlaps with those who would be inclined to support Obama. I am backing off calling out individuals on this, including Lemieux because there is very good chance it actually would be an unfair accusation.

    But while it may be unfair to lay blame to individuals, I think there is a degree to which Obama is treated with the kid gloves, so to speak. And while I have no doubt that Scott and Brien are just as outraged by this as I am, but on the whole, Obama is not feeling the sort of constant pushback and pressure that Bush felt for similar actions.

  252. david mizner:

    I’ve not now nor have I ever been Paul curious.
    The only thing I was curious about was why people like you went to such lengths to criticize people who praised some fo Paul’s positions in a (mostly but not entirely unsuccessful) effort to generate discussion about security state issues.

    And I haven’t mentioned Paul in weeks, till this thread. In that two month old discussion that Bijan dredged up in an effort to question my credibility (he must waste more time here than even I do), I said:

    If I can attempt to take a step back from this increasingly silly debate, I’m well are of your primary areas of focus, and respect you for it. I recently piggy-backed on your piece on Sotormayor’s dissent to write a post.

    More broadly, your position is pretty much the mirror image of Greenwald’s. You don’t think he’s sufficiently horrified by Paul’s racism, and he doesn’t think (people like) you are sufficiently horrified by drone strikes and the like. This is really an esoteric, nitpickly debate between civil libertarians who agree on a lot. Please help it stop.

  253. Brien Jackson:

    Well you’ve certainly done a good job of learning Greenwald’s rhetorical tactics, I will grant you that.

  254. BradP:

    and there is also one writer who, in addition to noting that the DOJ did something bad, chose to launch a pre-emptive attack against a segment of American liberals and liberal commentators accusing them of hypocrisy and bad faith for not noticing that the DOJ did something bad as quickly as he did.

    Can I go ahead and posit that, were it not for that “pre-emptive strike” (how long ago was that brief submitted?) by that particular writer, the readers of this blog would have never known.

  255. Bijan Parsia:

    In that two month old discussion that Bijan dredged up in an effort to question my credibility

    Technically, it was to successfully demonstrate that you have no credibility. But close enough!

    (he must waste more time here than even I do)

    Oo, this is something you could check…whoops, I forgot that that’s beneath you.

  256. Brien Jackson:

    Well, you can, but I think “never” is rather obviously too broad a contention.

    Beyond that, however, even if we stipulate that it’s fair, exactly zero people in this thread have argued that Greenwald was wrong to bring this to our collective attention, which only serves to make the pre-emptive attack even more gratuitous.

  257. Brien Jackson:

    I guess I’d also note that there’s a more than subtle amount of elitism in Greenwald’s behavior. Consider that, though his original piece must be read as implicitly accusing Scott of bad faith, when actually confronted by Scott on it he was much more deferential and cordial which is, suffice it to say, not the case as it relates to his behavior towards commenters. Particularly, consider this statement towards me:

    Leaving aside the fact that I said no such thing – “that the DOJ made the difference in the ruling” – it’s a rather bizarre delusion to imagine yourself the spokesman of Everyone (“no one but you finds likely”.

    With this from Scott’s post:

    Personally, I reiterate my critique, which it’s safe to assume will be true of everybody else.

    And consider that he was most certainly nowhere near as snide/dismissive with Scott as with me.

  258. bobbyp:

    Wow. 250 comments, AND EVERYBODY AGREES THIS WAS A TERRIBLE DECISION!

    Good job, Scott.

  259. Bijan Parsia:

    Ok, I believe the diversion bit (wasn’t that an Obama line?).

    But then there’s no real flopping if you think Afghanistan was the right war then but that its gone on too long.

    I.e., I don’t quite see this as the right kind of example.

    I can think of one prominent example of liberals who have changed their position on an issue since Obama came to office: a whole lot of them who used to support the Afghan War have come out against it.

    They (who?) haven’t decided that the Afghan war was always a mistake, have they?

  260. Brien Jackson:

    Well that’s fair, although I don’t know that you see it put in such a self-aware fashion too often. Certainly not in the context of calling the administration warmongers for expanding Afghan operations.

  261. BradP:

    I guess I’d also note that there’s a more than subtle amount of elitism in Greenwald’s behavior.

    I’ve read Greenwald for a while, and while I wouldn’t say he is typically elitist, he can be obsessive and self-righteous.

    I won’t fault him for it because I am very much the same way. In fact, I think with the general political climate and the rapid dissolution of rights, one would be a little justified in being obsessive and self-righteousness.

    Its easy to feel like Noah building an ark these days.

  262. Brien Jackson:

    Which would just make his eagerness to pick fights with people who are agreeing with him that much stranger.

  263. !:

    douchebag

  264. Bijan Parsia:

    I’m not sure that it’s strange, per se. This sort of insularity and rigid conformity enforcement are more normal than not, eh?

  265. multitasking:

    working in an urban school and posting comments all day

    must be in administration

  266. Brien Jackson:

    Well strange if you assume that picking the fight isn’t the primary goal from the start, obviously. Again, see the nun-rape incident.

  267. 53:

    You need another hobby.

  268. Bijan Parsia:

    Bijan. My point was that Scott wrote about Ron Paul often. Very often.

    The data show that in that 1 month period Scott wrote 95 posts of which I coded 10 (generously bias toward you), that is 10.5%. (Note that this does not take into account post length, which also biases in your favor. It was also a month where Glenn and several other writers, plus the dynamics of the primaries, made Paul salient.)

    Before and after that month where Paul was salient, Scott’s written almost nothing about him.

    Comically often. He did.

    This is just clearly false.

    So often that even he thought that maybe he’d written more posts about Paul than civil liberties.

    This is just clearly false as well. Not only has Scott denied it, but your “gotcha” moment consists solely of Scott pointing out that length of post matters if you’re going to attribute obsession. If I were to take into account length of post (i.e., total amount written) it would be even more lopsidedly against you.

    (Obviously, if Scott writes one, 10,000 word post about Paul and twenty 30 word posts not about Paul, no sensible person would say that he wrote “more” about things other than Paul. This is such a simple point that continues to elude you. It led you to a ridiculous and juvenile inference about Scott.)

    No wonder you hate data.

  269. Bijan Parsia:

    No, I don’t think we need to assume that fight picking was the goal. I don’t think Greenwald is trolling per se. I mean, it’s possible, I suppose. But it’s seems more likely that he’s pretty sincere in his belief, it’s easy (at this point) for him to write these smears, and he has a bit of a compulsion about not letting his posts run under 2000 words.

  270. Njorl:

    I went looking at a few right-wing news sites, and their commenters seem pissed off as well. Of course, they view it as “big government”. Only one of them that I saw associated the conservatives on the court with the decision.

  271. Steve S.:

    But it seems very unlikely that the DOJ brief had much influence on Kennedy.

    Things I have learned from LGM:

    1. What Presidents say is mostly pointless theater. Not exactly inspiring, but not dispiriting either, in that it merely reinforces what I’ve always thought about politicians.

    2. What happens at the SCOTUS (all federal courts?) is almost entirely pointless theater. It would be more honest and efficient if Wolf Blitzer simply asked for a show of hands on Day One and rendered the ruling based on that.

    And I thought I stopped learning civics decades ago.

  272. Scott Lemieux:

    What happens at the SCOTUS (all federal courts?) is almost entirely pointless theater.

    You’re just learning that now? Before this, you thought that Sam Alito always sided with the state in criminal cases because the state always happened to write a more convincing brief?

  273. Scott Lemieux:

    In fairness, during the BUsh administration if you look at my Court analysis it mostly consisted discussing the amicus briefs that rarely have any effect on Supreme Court voting.

  274. gmack:

    Since I participated I guess I feel an obligation to respond. If one is interested in fixing blame, I agree with Bijan Parsia about where the fault for this silliness lies. The purpose of my comment, anyway, wasn’t to do a pox on both your houses nonsense; it was a somewhat forlorn plea to stop having this conversation, which from the very start wasn’t going anywhere interesting. It was to diagnose the “stuckness” of this debate so that we might talk about a topic where we might learn something.

  275. gmack:

    I agree with that and I think my wording was poorly chosen. It is wrong to say that you took things personally. My only point is that I find the whole discussion distracting from the important political questions that this case raises. Instead of talking about civil liberties, we’re talking about Glenn Greenwald’s insinuations about the hypocrisy of self-described progressives. And that’s annoying, partly because it’s not like there aren’t actually substantive differences to talk about. For instance, elsewhere in this thread JfL articulates a position about drone strikes that I find pretty problematic, and I suspect that you and I have political differences as well. Those are issues that I’d like to hear more about, which is why my hope is to take out of Greenwald’s post what’s useful in it and simply ignore the rest of it.

  276. Bijan Parsia:

    The thing that gets me is that I’m repeatedly shocked with how loathsome the SCOTUS has become. Bush vs. Gore was shocking, but they seem to be growing more and more cavalier and naked in their exercise of power. I mean, I always worried about Roe, but I didn’t think that the court would ever be quite this bad.

  277. chris:

    The Department of Justice is, primarily, a law enforcement organization, and one with enormous institutional/bureaucratic mandates and imperatives. Federal law enforcement filed a brief in favor of broader powers for law enforcement organizations, because law enforcement organizations want the courts to grant them as much latitude as possible.

    This seems kind of plausible, but do you really think there wasn’t some channel by which Obama could be made aware of what kind of argument the DoJ was going to make and had an opportunity to say “You know what, guys, that’s a bridge too far, don’t go there”? In which case his failure to do so is still potentially a legitimate target for criticism.

    I do agree, though, that it’s not unreasonable to focus more on factors that have a stronger influence on the outcome of the case, which includes the personal opinions of the justices and doesn’t include amicus briefs, no matter who they’re by.

  278. chris:

    Do you know the difference bewteen dispositive (which I said the DOJ’s brief was not) and influential?

    Only one of them is falsifiable?

  279. chris:

    You left out

    Anonymous @7:12: But the actual justices Obama actually appointed opposed the decision.

    You: (crickets)

    (Insert between the second and third line, adjusting pronouns accordingly.)

    Literally your only response to the “actions speak louder than words” argument was to mock it for underestimating the power of words; you didn’t engage with the actions part of the post *at all*.

    Obama had two opportunities to take the balance of power away from Kennedy and appoint a fifth member of the right-wing bloc that would usher in an age of conservatism that could reach as far as reviving _Lochner_. He appointed moderates instead. Granted they’re not Brennan and Marshall — there hasn’t been a true liberal on the Court in decades — but isn’t this a serious obstacle to the “Obama is a stealth conservative” thesis?

  280. chris:

    …the ultimate example of which is the three-word “What (name) said” post, which you do occasionally see at some blogs, but usually not this one.

  281. chris:

    It seems to me that the metacriticism could have been avoided by Glenn

    ISTM that if this whole business proves anything, it’s that Glenn loves him some metacriticism. Remember when people used to say he was partisan because he opposed Bush so often? He’s still trying to disprove an argument that was transparent bullshit back when it was first made a decade ago.

    Really, you can stop, Glenn. You’re not a partisan, you’re an ideologue, and you’ll criticize anyone who violates your principles. We get it.

    But just because you’re not a hack doesn’t mean that everyone who disagrees with you ever *is* one.

  282. chris:

    These dumbasses are effectively giving votes to Mitt fucking Romney (they sure as hell are not voting for Obama). And it’s has the potential to be devastating to re-election chances.

    I’m going to disagree with that just a tad. In order for someone to believe that Obama is right of center, they have to live in an enclave so blue, they literally don’t believe in the existence of the kind of people purple-state residents interact with on a daily basis. So they’re probably not in an in-play state anyway.

    On the other hand, if people in purple states listen to them on the Internet, *that* could endanger his reelection chances.

  283. Jesse Levine:

    Scott: do you really believe DOJ briefed and argued a position in a case to which it was not a party because the administration thought it wouldn’t make any difference what they said? You’ve got to be kidding.

  284. Scott Lemieux:

    What they thought is beside the point. I’m sure they were trying to influence the outcome, but it is exceptionally implausible to think that in this case they did.

  285. Bijan Parsia:

    I don’t think Joe’s point is that Obama was not aware of the brief (at least at some level). It’s Obama’s DOJ and he bears ultimate and formal responsibility. This clearly wasn’t a rogue operation nor has, to my knowledge, Obama condemned it. It’s totally reasonable to criticise the administration and Obama on these grounds.

    We can look to where the DOJ has been good (not defending antimarriage laws, working against voter surpression, depoliticalization, etc.). Obama deserves some praise for those. They mostly aren’t brilliant, but they are better than what we just had, and probably better than, say, Reno’s.

    But, as Joe said, a law enforcement agency is going to pursue law enforcement agency priorities. Obama has only so much time and energy to invest in controlling it, and it’s hard to resist your allies and own people when they speak conventional wisdom with a unified voice.

    You can infer from this that Obama hasn’t made it a cause to resist government encroachment on e.g., prisoner’s rights. And that’s a big failure. But it’s not the same as him driving it. And if we’re assessing his record as a whole, his supreme court picks are much better on civil liberties than anything we’ve seen in quite some time and potentially will have a bigger impact.

    (Now, he just might have gotten lucky there.)

  286. Bijan Parsia:

    Is it? I don’t see it. “Should a person who’s served the designated punishment be a second class citizen” seems to have a simple and obvious answer.

    Even framing it as, “Should a convicted criminal have certain rights stripped for life?” seems obvious for many cases (i.e., no; if you are free to move around society you should be free to vote).

    I think the case is clear even for people behind bars.

    Given how it plays out with racial disparity, it’s also pretty obvious that it’s not a “How do we treat criminals” but part of “How do we treat black people”.

  287. Jesse Levine:

    Almost every intramural political discussion on your site contains a “giving aid and comfort to the enemy” component. Don’t you think it applies in legal arguments as well? The DOJ brief certainly does that.

  288. Scott Lemieux:

    I frankly have no idea what the hell you’re talking about here. (By the way, I’ve never argued that criticizing Obama is bad because it helps the enemy. I have argued that organized third party campaigns nominally from the left to elect Republicans are bad, because they obviously are, but that’s different.) You know that Kennedy has a consistently atrocious record on the Fourth Amendment, literally worse than Scalia, right? Are you arguing that the DOJ amicus is the reason he voted the way he always does? Are you arguing that he’s only always voted for the state because the state always just happens to submit the more convincing argument? Are you seriously arguing that Scalia, who spent last week’s oral arguments railing against the Obama administration like a fourth-string winger talk show host, didn’t know what he thought about the case until the administration weighed in?

    This is silly. The only significant impact Obama had on this case is by nominating Kagan and Sotomayor, who both voted correctly. The DOJ brief might have influenced them but it didn’t.

  289. Jesse Levine:

    I give up. Obama asked for the ruling his appointees opposed. If you think that this is great stuff by Obama, we’re on different planets. On to your next post.

  290. Bijan Parsia:

    Scott clearly said that it was bad that the Obama administration filed this brief.

    What more do you want?

  291. Joe from Brooklyn:

    You are wildly incorrect.

    Greenwald has a set of policy issues he cares about (they remind me a lot of Chomsky’s positions). He trashed the GOP and President Bush when their actions were contrary to his desires, and now he trashes the Dems and President Obama when their actions are contrary to his desires.

    He also trashes people who claimed to care about the issues he cares about, but then proved to care more about their party than the specific issues.

    You don’t have to agree with Greenwald on the issues, or like his work, but it’s stupid and childish to pretend that he’s writing because he wants to bash Obama. I’m sure he’d be a lot happier if Obama had taken positions less antithetical to Greenwald’s ideology.

  292. Erik Loomis:

    Isn’t Greenwald basically a libertarian? I think he is happy bashing Obama for many reasons.

  293. Scott Lemieux:

    If you think that this is great stuff by Obama

    I would strongly recommend reading the posts before commenting on them.

  294. Hogan:

    the sort of constant pushback and pressure that Bush felt

    There was pushback and pressure, but I see no reason to believe Bush felt it.

  295. BradP:

    This is a very valid point.

  296. Bijan Parsia:

    He also trashes people who claimed to care about the issues he cares about, but then proved to care more about their party than the specific issues.

    And he trashes people who care about the issues he cares about. Period. He falsely (or carelessly) accuses* them of caring more about their party than the issues.

    Surprisingly, the targets of such accusations do not care for them, nor does other otherwise sympathetic people.

    * Often by insinuation.

  297. Presidential Power Addenda - Lawyers, Guns & Money : Lawyers, Guns & Money:

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