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The Rolling Stone Mess

[ 188 ] December 7, 2014 |
  • While the it was grossly irresponsible of Rolling Stone to start the piece with specific allegations it apparently made almost no effort to corroborate, it’s also worth noting at this point that we don’t know about whether or not “Jackie” was sexually assaulted.  It has not been proven to be a complete hoax.

Should the Disruptive Silicon Valley Overlords Be Welcomed?

[ 252 ] December 5, 2014 |

This isn’t the most important topic, but rather than make this point again and again in comments I thought I’d make it here. Before that, read Weigel and Fisher and Heer’s twitter essay. And now, to set up my discussion, the always-smart Pierce:

So, no, contra Chait, and even though the magazine unquestionably has regained a lot of its lost quality, especially in its actual reporting, I think the notion that The New Republic is “an essential foundation of American progressive thought” is a ship that sailed a long time ago. Everybody I know who wrote for him thought Frank Foer was a terrific editor, and I’m sure he’ll land somewhere, as will the enormously gifted writers he seems to have nurtured, if they choose not to play in Hughes’s sandbox. (There cannot be a 2016 presidential campaign without Alec MacGillis. I simply won’t allow it.) I am as sure of that as I am that Chris Hughes is going to make a complete hash of the magazine he bought as a chew toy. At least this form of malpractice will be less likely to kill people in distant lands. I guess there’s that.

I don’t disagree with any of this, precisely. Certainly, if this was The New Republic in 2003 I wouldn’t really care that it was effectively ending; I don’t care about its brand. But, to me, the regained quality of the current publication is more relevant than what it was publishing in the 90s or early 2000s. It’s crucial that of his list of the magazine’s sins, only Jeffrey Rosen’s (utterly disgraceful) Stotomayor hatchet job dates from after 2004. (UPDATE: And, yes, as a commenter rightly points out, the awful treatment of Scott Beauchamp by Foer.)  Rosen is a somewhat special case; while he does some good work, especially recently, he has consciously seen himself as preserving the tradition of Frankfurter and Bickel, which is problematic because this tradition is massively overrated. (My only objection to Robert Cover’s classic summary of Frankfurter is that it’s unfair to Bobby Murcer, who while no Mantle or DiMaggio was an underrated player in the end.) At any rate, while Rosen’s contrarianism was typical of TNR 15 years ago it was an outlier now, and was in remission even in Rosen’s own work.

The issue can be thrown into sharp focus by Freddie deBoer’s outright gleeful response to the coming of the Silicon Valley hatchet men. My question: which, specifically, of Jonathan Cohn, Isaac Chotiner, Julia Ioffe, John Judis, Alec MacGillis, Noam Scheiber, Jason Zengerle, Rebecca Traister, Brian Beutler, Rebecca Leber, Alice Robb, or Danny Vinik were producing a “warmongering racist antileft trashpile?” deBoer surely can’t be making a guilt-by-association with past editors argument, given that he’s directly cashed paychecks from the former TNR editor responsible for promoting The Bell Curve, “No Exit,” and Camille Paglia. The thing is that gutting TNR is not going to affect the people responsible for TNR’s past warmongering and racism in any way. The only Iraq War bootser who’s leaving is Wieseltier, who’s going to be just fine, and whose writing will not be mourned but his back of the book will be. The careers of Andrew Sullivan and Betsy McCaughey and Charles Murray and (the now repentant anyway) Peter Beinart and Mickey Kaus and Robert Kaplan and Marty Peretz and Michael Kinsley and all of the Kagans will proceed as they were. Michael Kelly, as best as this blog can determine, will remain deceased. The only people losing anything year are some talented journalists who have been doing some very impressive work, and readers who seem likely to be losing one of the increasingly small number of spaces that pay for good political writing.

Many commenters seem to be squaring the circle by just assuming that the departed will easily be able to find similarly good jobs that will allow them to do serious work rather than produce clickbait. I hope this is right, but it seems to involve a faith in the meritocracy of the journalistic marketplace better suited to The New Republic circa 1998 than our actually existing world circa 2014. Serious political journalism has generally been a loss leader. For all its sins, I don’t see how turning the magazine into another traffic-chaser under the aegis of a CEO who speaks Meaningless Buzzword and apparently lacks the attention span to read more than 500 words at a time is a good thing.

But Who Moved My Cheese? An Inquiry Into the New Disruptively Proactive Paradigm

[ 73 ] December 5, 2014 |

Well, this is not promising:

The irony is that the end of TNR as we know it comes less than three weeks after the 30-year-old Hughes–who had the good fortune to have been Facebook founder Mark Zuckerberg’s Harvard roommate, and helped Zuckerberg launch the social networking behemoth–spent hundreds of thousands of dollars to stage a gala Washington dinner celebrating the magazine’s 100th anniversary. Among the 400 attendees–who supped on “ribbons of beet-cured char,” “beef tenderloin [with] truffled potato crepes” and “apple pecan tart [with] warm bourbon-caramel sauce”–were keynote speaker Bill Clinton, Supreme Court Associate Justice Ruth Bader Ginsburg, and House Democratic Leader Nancy Pelosi. Wynton Marsalis entertained. Vidra also gave a speech, talking mostly about himself, according to one attendee, and, in a brief mention of TNR’s editor, mispronouncing Foer as “foyer”–a gaffe that provoked gasps and laughter.

“That dinner was like the Red Wedding in Game of Thrones,” a TNR veteran told The Daily Beast.


The friction escalated with the arrival of Vidra, who is said to have complained to Foer that the magazine was boring and that he couldn’t bring himself to read past the first 500 words of an article. According to witnesses, Vidra did little to hide his disrespect for TNR’s tradition of long-form storytelling and rigorous, if occasionally dense, intellectual and political analysis–to say nothing of his lack of interest in the magazine’s distinguished history–at an all-hands meeting in early October.

Presiding at the head of a long conference table, Vidra didn’t acknowledge Foer, who was seated beside him; he didn’t look at him; he didn’t mention him. Instead, as he started to speak, Vidra confided that he liked to stand up and move around the room as he communicated his thoughts, as though he were Steve Jobs unveiling the latest technological marvel. Oddly, he stood up, but he didn’t move.

Vidra spoke in what one witness described as “Silicon Valley jargon,” and, using a tech cliché, declared: “We’re going to break shit”–a vow hardly calculated to ingratiate himself with TNR’s veteran belle-lettrists, who feared that he was threatening the magazine’s destruction. Only a few interns dared to ask questions, which Vidra repeatedly dodged. “The senior people were too shocked to speak,” said a witness. “Jaws were dropping to the floor.” Through it all, Chris Hughes nodded approvingly, an unnerving grin on his face.

To be sure, that meeting was a warning sign. But the manner in which the two technology mavens administered their coup de grâce only two months later has left a bitter taste.

According to informed sources, Hughes and Vidra didn’t bother to inform Foer that he was out of a job. Instead, the editor was placed in the humiliating position of having to phone Hughes to get confirmation after posted an item at 2:35 p.m. reporting the rumor that Bloomberg Media editor Gabriel Snyder, himself a onetime Gawker editor, had been hired as Foer’s replacement. Yes, it’s true, Hughes sheepishly admitted, notwithstanding that he and Vidra had given Foer repeated assurances that his job was safe.

In fairness, I believe them when they say they’re going to “break shit.” Whether anything worthwhile will be built in the place of what was broken is another question. At a minimum, the adaptation-to-the-web issue appears to have been a red herring.

Police Brutality: Crucial Background

[ 81 ] December 5, 2014 |

First, Ian Millhiser on the Supreme Court decision that made it much easier for police officers such as the one that killed Eric Garner to escape legal sanction:

Yet the justices’ decision in Lyons likely played a role in allowing police chokeholds to continue to this day. At the very least, Lyons made it much, much harder for victims of these chokeholds to ensure that other people were not victimized in the future.

Worse, Lyons was just one of many individuals that Los Angeles police targeted with a chokehold, often with fatal results. According to law professor and dean Erwin Chemerinsky’s book The Case Against the Supreme Court, Lyons discovered that sixteen people died after being choked by an LAPD officer, almost all of whom were black men. When police Chief Daryl Gates was asked why almost all of these fatal chokeholds involved African Americans, Gates replied that the “veins or arteries of blacks do not open up as fast as they do in normal people.”

Yet the story of Adolph Lyons and the case that bears his name is also the story of how arcane legal doctrines can reshape decades of police practices. Lyons was a 5-4 decision. If just one more justice had sided with Mr. Lyons, it may have enabled the courts to prevent cases like Garner’s from ever happening.

I will observe at this point that 3 of the five justices in the majority (as well as, admittedly, one dissenter) were appointed by the Last Liberal President, Richard Nixon.

Brian Beutler is also making sense here:

If prosecutors and police departments are too tightly linked for due process to mean anything, then puncturing the impunity requires breaking the link.

One way to do this would be for citizens at state and local levels, through ballot initiatives, to take the authority for presenting evidence of police misconduct to grand juries out of the hands of local prosecutors. That authority could be handed to publicly accountable review boards staffed with civilian lawyers from within the jurisdiction, or to special prosecutors’ offices.

The point would be to eliminate the conflict of interest that arises—as it did in Ferguson and Staten Island—when local prosecutors investigate the officers on whom they rely for evidence, cooperation, and political endorsements.

“I think it’s viable,” Ronald Wright, a distinguished professor of criminal law at Wake Forest University told me by phone Wednesday evening. “You could revise state law so that you could describe the category of cases where the appointment of a special prosecutor is mandatory. The governor shall appoint a special prosecutor in the possible criminal wrongdoing by police officer in jurisdiction with the same boundary as the district attorney. You could have an automatic trigger.”

Governors would also face pro-police political pressures, needless to say, but it’s hard to believe this wouldn’t be an improvement.

Thoughts On the Quasi-End of the New Republic

[ 157 ] December 4, 2014 |

Interesting. A few points:

  • Evidently, the magazine’s tradition is a mixed blessing.  Ta-Nehisi Coates has been running through some of the lowlights on his Twitter feed, and you know many of them: The Bell Curve, racist cover defending welfare reform, comprehensively dishonest anti-health care reform cover story, Marty Peretz, etc.  Don Graham’s “TNR … looking for a qualified black since 1914!” retort to Ruth Shalit’s terrible affirmative action story should still sting. It’s particularly worth emphasizing an often-forgotten fact about the Stephen Glass story: the fiction that made him was a grotesquely racist story about made-up African-American cab drivers.  (Glass’s major talent was telling people what they wanted to hear, and what Marty Peretz wanted to hear was white supremacist bullshit.)  I regret what seems to be happening to TNR, but we shouldn’t forget this part of their legacy either.
  • Still, since Beinart was replaced by Foer the first time it has, on balance, been an excellent magazine.  A lot of first-rate journalists write for it — Jon Cohn, Rebecca Traister, Brian Beutler, Julia Ioffe, and I could keep going for a bit. They were good hires given the space to do their best work. There just aren’t a lot of remaining forums that pay for serious political and cultural writing, and the fact that one seems to be undergoing a major shift in direction isn’t good news.
  • The empty corporate buzzwords that the magazine’s owner and CEO have used to describe their new vision for the magazine are…not promising.
  • Leah Finnigan’s retort, I think, is understandable but misses the point. If Foer were being replaced with Snyder and nothing else was changing, the reaction would indeed be overwrought.  But, of course, that’s not the case.  In particular, the issue with Wieseltier resigning isn’t the loss of his atrocious column but the loss of a superb literary review editor.  Even when the politics pages have been uneven or bad, the back pages of TNR have generally been outstanding.  I hope I’m wrong, but it seems pretty likely that to the extent that the new TNR covers culture at all, it will be much closer to the BuzzFeed smarm model.
  • It’s possible that the new Gotham TNR will be good.  Gabriel Snyder is very well-regarded, and he might be able to retain and attract enough talent to produce a worthwhile magazine.  But given the aforementioned vision of Hughes and Vidra, I find it hard to be optimistic.

…a lot of interesting points from Ezra here.

Saying The Quiet Part With A Bullhorn, Phyllis Schlafly Edition

[ 59 ] December 4, 2014 |

Dahlia Lithwick and Irin Carmon have good roundups of yesterday’s oral arguments in the UPS pregnancy discrimination case. Evidently, anyone bringing a gender discrimination case before the current Court is usually drawing dead, although this case seems a little less clear-cut. Breyer was also particularly…Breyer.

Carmon cites it at the end of her piece, but connoisseurs of crank reactionary arguments really should examine the amicus brief filed by Phyllis Schlafly’s Eagle Forum. As Carmon says, in the policy section of the brief they argue that reading the Pregnancy Discrimination Act as a statute designed to inhibit discrimination against pregnancy would “harm American families”:

In enacting PDA, Congress never intended:
(1)to eliminate stereotypes of husband-breadwinner, wife-homemaker families;
(2)to have women return to work immediately after giving birth to the exclusion of caring for their newborns;
(3)to have pregnant women work as package – delivering truck drivers; or
(4)to privilege the status of female truck drivers over either male truck drivers or the women married to male truck drivers.

While the eradication of typical – or even stereotypical – families was the goal of the feminist movement [cites ommittted — ed.], Congress generally has taken the more moderate path advocated by UPS here.


At all times relevant to this action, Young herself was married to a man whose job provided medical insurance. Nonetheless, much of the advocacy and data submitted to this Court press the concerns of single women who work and want to have children. If PDA did allow women like Young and similarly situated single women to impose their pregnancies on coworkers [! — ed.], PDA might provide enough of a cushion for Young, but it would leave similarly situated single women short, once their children were born. Facilitating single motherhood out of strained sense of equality does not do the women or the children a significant or long – lasting favor.

The last paragraph is followed by a lengthy quote from a 1993 Charles Murray op-ed, arguing that single mothers “must destroy the community’s capacity to sustain itself.” Murray is cited again to argue that all attempts to promote economic equality are futile. Oddly, the cites showing that the typical member of Congress that voted for the PDA shared Murray’s crackpot views are omitted.

In addition, I also enjoyed the fact that the brief argues that reading the PDA as trying to prevent discrimination against pregnant women would threaten the nation’s most precious resource of all, the right of citizens not to have an effective remedy when their rights are violated by state governments:

Finally, although UPS itself is not a state entity entitled to sovereign immunity [the Roberts Court is leaving that until 2017 — ed.], Young’s broad reading would – as explained below – exceed the power of Congress as applied to states. As such, the canon of constitutional avoidance argues for the UPS reading as a way to avoid an unconstitutional statute as applied to states.

Although Congress enacted Title VII under both the Commerce Clause and, as to states, Section 5 of the Fourteenth Amendment, Congress can abrogate states’ sovereign immunity only under Section 5. For Congress to do so, there must be a violation of Equal Protection taking place. Unlike prior decisions that have upheld abrogating states’ sovereign immunity to address sex discrimination, the PDA reading pressed by Young and her amici seeks preferential treatment (not non – discrimination) based on the state of being pregnant (not based on sex).

The law, in its majestic equality, should treat men and women who get pregnant exactly the same!

Anyway, anyone can make a horrible argument opposing gender equality, but to combine this with a particularly bad federalism argument in a case that doesn’t even involve a state government — that’s some world-class wingnuttery right there.

Don’t Forget the Sidewalks, Paid For By The Slavery of Taxes!

[ 65 ] December 4, 2014 |

I wonder what the true progressive alternative in 2016, America’s greatest champion of civil liberties Rand Paul has to say about Eric Garner’s killer going unindicted?

Rand Paul blames Eric Garner’s death on high NYC cigarette tax

I appreciate that CNN is trying to dip into satire to try to restore its market share, but this seems a little on-the-nose.

In fairness to Rand, Peter King is a much bigger asshole.

Today In Ridiculous ACA Counterfactuals

[ 177 ] December 3, 2014 |

Tom Harkin has pretty much joined the Rahm/Schumer/Frank bandwagon:

“We had the power to do it in a way that would have simplified healthcare, made it more efficient and made it less costly and we didn’t do it,” Harkin told The Hill. “So I look back and say we should have either done it the correct way or not done anything at all.”

On the general argument that Democrats should have just given up on health care reform until it was possible to get the unicorn and the magic pony, I continue to believe that this position is not merely wrong but grotesquely immoral. It’s one thing to think this in 1974. But at this late date, it should be obvious that Republican control of any legislative veto point makes any health care reform impossible, and there’s also no reason to believe that health care reform failing will magically lead to more progressive reform the next time Democrats get rare full control with a Senate supermajority.

Harkin’s arguments about what was possible at the time are no more convincing:

“We had the votes in ’09. We had a huge majority in the House, we had 60 votes in the Senate,” he said.

He believes Congress should have enacted “single-payer right from the get go or at least put a public option would have simplified a lot.”

“We had the votes to do that and we blew it,” he said.

I’m dismayed to see Harkin use one of the favorite rhetorical strategies of left opponents of passing the ACA — namely, conflating single payer and the House version of the public option as if they were comparable. Single payer would indeed be better and simpler than the ACA, but the idea that Democrats “had the votes” for it in either house is insane, and Harkin can’t possibly believe it.

With the public option the possibility of obtaining the necessary votes is not nearly as risible, but the first problem with this shell game is that the House public option 1)was small potatoes and 2)certainly wouldn’t have made the ACA less complex. I support the public option all things being equal, but as structured in the House bill the public option would not have been available to everyone, would very likely have had higher premiums, and most likely would have ended up as a group of the least healthy people on the exchanges. It was worth trying, but it did not fundamentally change the structure of the ACA.

And even so, I still don’t see how there were 60 votes for it. Harkin, as always in cases like this, doesn’t explain how the votes could have been obtained. The most obvious problem is Lieberman, who repudiated policies he had previously favored to spite liberals, but there were a number of opponents of the public option and Harkin doesn’t explain exactly what leverage Obama or Reid had over them. Indeed, Harkin’s argument in total becomes very nearly self-refuting. If he was willing to walk away from health care and have nothing pass, you don’t think Nelson and Lieberman and Linclon etc. etc. were willing to?

I have nothing against Monday morning quarterbacking in principle, but these arguments about how the leadership that succeeded where Clinton, LBJ and Truman failed actually screwed things up have a very high burden of proof, and this burden cannot be met with bare assertions, hand-waving, and wishful thinking. Alas, that’s all they ever have.

…Mayhew is excellent on this.

BREAKING! Benefits of Arbitrary Police Power Greatly Exaggerated

[ 58 ] December 3, 2014 |

Well, whaddya know:

Mayor Bill de Blasio said on Tuesday that a city his opponents once said would grow more dangerous under his watch had, in fact, become even safer.

Robberies, considered the most telling indicator of street crime, are down 14 percent across New York City from last year. Grand larcenies — including the thefts of Apple devices that officials said drove an overall crime increase two years ago — are also down, by roughly 3 percent.

And after a record-low 335 homicides in 2013, the city has seen 290 killings in the first 11 months of this year, a number unheard-of two decades ago.


With a month still to go before the end of the year, the favorable crime numbers appeared to render a verdict on at least one question: Would a vast decline in the number of recorded stop-and-frisk encounters create an opening for violence to return? So far, Mr. de Blasio and Mr. Bratton said, the answer has been no.

Mr. Bratton said that by the end of the year there would be fewer than 50,000 such stops, down from a high of over 685,000 in 2011. That sharp decline, like crime over all, began well before Mr. de Blasio took office and has continued.

I don’t understand – Principled Libertarian and not-at-all Republican hack Glenn Reynolds informed me that systematic arbitrary searches were crucial for crime control!  It’s a real puzzler.


Circuit Courts Are Not Bound by Dead Letters

[ 4 ] December 2, 2014 |

Linda Greenhouse has an excellent critique of Jeffrey Sutton’s outlier opinion upholding bans on same-sex marriage. Jonathan Adler disagrees:

Adler can’t capture this in 140 characters or less, of course, but Greenhouse does discuss this point extensively. Adler’s argument is that Baker v. Nelson, an 11-word order dismissing a mandatory appeal to a decision confining marriage in Minnesota to opposite-sex couples, remains binding precedent. Greenhouse recounts the arguments made and joined by more than 10 federal judges — including Richard Posner — explaining why Baker is no longer authoritative. Even if one disagrees with Antonin Scalia that Romer, Lawrence, and Windsor imply a right to same-sex marriage, they certainly make clear that at a minimum challenges to the constitutionality of same-sex marriage bans now present a “substantial federal question.” It is perfectly appropriate for circuit courts to take these doctrinal developments into account.

Just as it does on the merits, Daughtrey’s dissent has by far the better of the argument on this question:

If ever there was a legal “dead letter” emanating from the Supreme Court, Baker v. Nelson is a prime candidate. It lacks only a stake through its heart. Nevertheless, the majority posits that we are bound by the Court’s aging one-line order denying review of an appeal from the Minnesota Supreme Court “for want of a substantial federal question.” As the majority notes, the question concerned the state’s refusal to issue a marriage license to a same-sex couple, but the decision came at a point in time when sodomy was legal in only one state in the country, Illinois, which had repealed its anti-sodomy statute in 1962. The Minnesota statute criminalizing same-sex intimate relations was not struck down until 2001, almost 30 years after Baker was announced. The Minnesota Supreme Court’s denial of relief to a same-sex couple in 1971 and the United States Supreme Court’s conclusion that there was no substantial federal question involved in the appeal thus is unsurprising. As the majority notes—not facetiously, one hopes—“that was then; this is now.”

At the same time, the majority argues that we are bound by the eleven words in the order, despite the Supreme Court silence on the matter in the 42 years since it was issued. There was no recognition of Baker in Romer v. Evans, nor in Lawrence v. Texas, and not in Windsor, despite the fact that the dissenting judge in the Second Circuit’s opinion in Windsor made the same argument that the majority makes in this case. And although the argument was vigorously pressed by the DOMA proponents in their Supreme Court brief in Windsor, neither Justice Kennedy in his opinion for the court nor any of the four dissenting judges in their three separate opinions mentioned Baker. If this string of cases—Romer, Lawrence, Windsor, Kitchen, Bostic, and Baskin—does not represent the Court’s overruling of Baker sub silentio, it certainly creates the “doctrinal development” that frees the lower courts from the strictures of a summary disposition by the Supreme Court. See Hicks v. Miranda.

This is clearly correct. The point about Windsor is in and of itself pretty much dispositive. It’s hard to argue that Baker remains binding precedent when neither the majority nor dissenting opinions in a major Supreme Court case decided last year consider it even worthy of mention. Adler’s response is that Baker wasn’t applicable because it was a federal, not a state, case. But Kennedy’s rationale clearly remains applicable to both:

The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does,the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

In the first paragraph, Kennedy cites Bolling v. Sharpe, which as many of you know held that segregation in D.C. schools was unconstitutional although the 14th Amendment applies only to state governments. The “reverse incorporation” theory of Bolling held that the federal government was bound by the equal protection clause through the 5th Amendment. If the disabilities imposed by gays and lesbians by DOMA violate the “equal protection component” of the due process clause of the 5th Amendment, how can it be true that the disabilities imposed on gays and lesbians by state bans on same-sex marriage do not even raise a “substantial federal question” under the equal protection clause of the 14th? It can’t. And even if you want to claim that somehow the “equal protection component” of the due process clause is meaningfully different in content than the equal protection clause, Romer and Lawrence were state cases and they didn’t mention Baker either, although the former was an equal protection case and in the latter a concurring opinion (extensively critiqued by the Scalia dissent) rested on equal protection grounds.

Sutton, in other words, is an outlier for a reason. He’s being disingenuous when he suggests that he’s bound by Baker, which has clearly been superseded by multiple subsequent opinions. Which, presumably, is one reason Sutton didn’t just rely on Baker and refuse to consider the merits but devotes the bulk of his opinion to making his own (shallow and exceedingly unpersuasive) arguments on the merits.

The Slope Is Permanently Slippery

[ 76 ] December 2, 2014 |

Eric Posner on Obama’s immigration executive order:

What might these ends be? Imagine a President Rand Paul entering office in 2017. An enormous regulatory structure will greet him, nearly all of it the creature of liberal policy-making going back to the New Deal, and it’s his to defer action on. Financial regulation required by the hated Dodd-Frank act, health regulation under the even more hated Obamacare, climate regulation despised by the coal industry, antitrust regulation opposed by big business—in all cases, President Paul will be able to argue that he can follow in President Obama’s footsteps and “defer action.”

To be sure, President Paul will not enjoy complete freedom to defer enforcement. The Constitution’s take-care clause would block him from disregarding the law entirely. Legal precedent establishes that he can’t refuse to spend congressional appropriations on enforcement. Many regulatory agencies enjoy independence from the executive, and private parties can sometimes force agencies to act. The courts say that the executive must comply with specific statutory mandates. And immigration law, as I have argued, falls uniquely under executive authority, as a matter of history and tradition. Still, because most of the regulatory statutes contain pockets of vagueness, and the immigration-law arguments bleed over to those other areas of the law, President Paul’s power to lift regulatory burdens through non-enforcement will be extensive.

The point is not just that Republican presidents can do what Obama has done. It is that enforcement discretion creates an advantage for Republicans—it favors conservative governance and hurts liberal governance. The reason for this asymmetric effect is that the great bulk of federal law is liberal economic regulation, not conservative morals regulation.

This is a good summary of the kind of things the next Republican president will do, and I also think it’s right that there’s an asymmetry where selective non-enforcement is more likely to favor conservative goals. What I continue to dispute is the assumption that Obama’s executive order will play any causal role in this process. Congressional Republicans have relentlessly discarded norms in order to use formally legal mechanisms to advance their goals. Does anyone think that the next Republican occupant of the White House will be any different? This is the political universe we’re already in — as Posner’s work with Adrian Vermeule has quite convincingly demonstrated — and you can’t enforce norms through unilateral disarmament.

I’d also note that there’s nothing new in Republican administrations being, ah, less than aggressive about enforcing liberal regulations. Clarence Thomas’s tenure heading the EEOC is both an excellent rebuttal to the myth that he’s an intellectual lightweight and strong contemporaneous evidence that he was very reactionary. Hans von Spakovsky worked on — and, therefore, against — voting rights in the Bush administration. And so on.

I’d say something similar about David Savage’s speculations that Obama’s order might cause John Roberts to side with ACA trooferism. I think Roberts will do what he wants to do and Obama’s order will be neither here nor there. I can’t resist quoting this, however:

Ilya Shapiro, a lawyer for the libertarian Cato Institute, said the immigration order is the “starkest example” of what he called the president’s “pattern of lawlessness.”

Except for the fact that it doesn’t actually, you know, break any laws. Maybe Shapiro can explain how the executive order is “lawless” after he finally explains what constitutional provision Section 4 of the Voting Rights Act violated…

“Genetics’ embarrassing, cranky old uncle”

[ 90 ] December 2, 2014 |

As Laura Helmuth explains, James Watson has always been a definitive case study in the perils of thinking that being an expert on one thing makes you an expert on everything:

One of his earliest sins: Watson didn’t credit Rosalind Franklin, a chemist also working on DNA at the time, for her crucial research on X-ray diffraction images, without which he and Francis Crick would not have been the first to discover the double helix structure. (Linus Pauling and others were right behind them and would have figured it out.) In Watson’s The Double Helix memoir, he calls Franklin “Rosy” (not a nickname she used), critiques her clothing and makeup, and characterizes her incorrectly as another scientist’s assistant.

Watson was also famously insulting and arrogant as a professor at Harvard, even for a professor at Harvard. Fellow faculty member E.O. Wilson described Watson in the 1950s and ’60s as the “Caligula of biology” for his contempt of scientists who studied anything other than molecules. Wilson wrote that, unfortunately, due to Watson’s stroke of genius at age 25, “He was given license to say anything that came to his mind and expect to be taken seriously.”


And, of course, Watson fundamentally misunderstands research on race, genes, and intelligence. Scientists have been debunking ideas like his since well before The Bell Curve made a mockery of statistical analysis. The latest for-crying-out-loud-do-we have-to-do-this-again moment came this year with the publication of Nicholas Wade’s book Troublesome Inheritance, which Watson blurbed as “a masterful overview of how changes in our respective lineages let us begin to understand how human beings have evolved.” Anthropologists, evolutionary biologists, and pretty much anybody with real expertise explained why the book’s assumptions about race-based traits were wrong—and Wade is much more sophisticated in his thinking than Watson is.

Watson had a major insight 61 years ago about the physical structure of DNA. He is one of the founders of a very important but very specific subset of modern biology, and he devoted most of the rest of his career to the study of cancer biology. But he knows fuck all about history, human evolution, anthropology, sociology, psychology, or any rigorous study of intelligence or race. It is a fundamental misunderstanding of how science works for him to think that his expertise at one level of analysis—a molecular level—predicts anything at a higher level of analysis. The structure of DNA does not predict the workings of a cell, which does not predict the shape of a body, which does not predict the characteristics of a culture. It’s not as if the idea that people with dark skin are genetically inferior to people with light skin is some horrible secret that scientists had been trying to hide from the world until Jim Watson came along and revealed the truth. It’s simply incorrect.

Helmuth is also very good on the passive-aggressive self-pity of Watson auctioning off his Nobel Prize — he’s been extremely well-compensated for decades, but like many privileged white supremacists he’s always looking for a chance to whine in public.

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