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Every Man A Law Unto Himself

[ 37 ] September 16, 2014 |

A lower court applies Hobby Lobby in a principled manner:

Citing Burwell v. Hobby Lobby, the Supreme Court’s decision last June holding that the religious objections of a business’ owners could trump federal rules requiring that business to include birth control coverage in its health plan, a federal judge in Utah held last week that a member of a polygamist religious sect could refuse to testify in a federal investigation into alleged violations of child labor laws because he objects to testifying on religious grounds.

Admittedly, the original was a “we reserve the right not to apply this principle in if it produces policy results we don’t like” Alito “minimalist” special, so who knows what will happen. But the burden in this case is much more substantial, and there seems to be a less restrictive means of achieving the state interest, so I’m not sure why the claim wouldn’t be valid. The Supreme Court just created a huge mess. (And, again, RFRA was a dumb law in the first place.)

Casey‘s Original Sin

[ 59 ] September 16, 2014 |

I have a piece about the new 72-hour waiting period for women seeking to obtain an abortion that passed over Nixon’s veto in Missouri.

There are regulations that are worse in terms of arbitrarily limiting abortion access.  But few are more nakedly indefensible.  Mandatory waiting periods don’t even take the superficial form of legitimate health regulations; they just make the “women are not rational moral agents” subtext of abortion restrictions text.

I Wish!

[ 32 ] September 16, 2014 |


There are a million moments that shape a team’s season. Given all of the pitches that miss by an inch, grounders that take a bad hop, and long drives that curve just foul, harping on one particular play might seem unfair. Still, there’s no sugarcoating what happened Sunday afternoon, when Ned Yost quite possibly pissed away the Royals’ season.

I wish he had.  But let us be frank: after tonight the Mariners ain’t making the playoffs.  Congrats Kansas City on breaking the drought.  And let us also be clear that when a team is for some reason is running the ridiculous Kendrys Morales out every day at DH during a pennant race — because who doesn’t need a DH who hits .218 without much power who would swing if the pitcher threw the ball into centerfield — it pretty much deserves what it gets.   Jose Vidro, come back, all is forgiven.

Hack of the Day

[ 6 ] September 15, 2014 |

Stuart Taylor Jr. 

Some bonus hackery from the archives. 

Since the Beginning of Time, Republicans Have Yearned To Massively Expand Medicaid

[ 95 ] September 15, 2014 |

Thomas Frank’s lastest profit-taking Salon column begins with the germ of an interesting argument about the problem of over-reliance on experts.  Alas, from there it follows the typical path straight down Pundit’s Fallacy Gulf. Along the way, he makes the usual historical and empirical errors your really don’t need to be a fancy-pants political scientist to identify:

In 2010, the two parties repeated the act, with D’s embracing the extremely unpopular Republican bailout strategy (and a more modestly unpopular Republican healthcare program) and R’s pretending to be some kind of ’30s-style protest movement waving signs in the street.

Omitted: any national Republicans or state-level Republicans not governing alongside massive Democratic supermajorities who supported a massive expansion of Medicaid accompanied by a much more tightly regulated private insurance industry. I also note the implicit argument that the original Medicaid, which left large numbers of poor people ineligible, was “real” liberalism while the ACA’s version, making a significantly superior program available to everyone within 138% of the federal poverty line, was not. Nor do I think there’s anything particularly progressive about letting the entire financial system collapse in 2008. At any rate, the idea that the Democratic Congress in 2009 and 2010 was focused on enacting a “Republican” agenda is simply absurd.

This particular howler is the culmination of the anti-history we’re familiar with:

This approach has had a number of successes. But its limitations are far more striking. I offer, as Exhibit A, last Sunday’s big Upshot piece in the New York Times, “Why Democrats Can’t Win the House” by Nate Cohn, another journalist known for his data-shuffling skills. Cohn asks why Democrats, who are the majority party, have so little chance of re-taking the House of Representatives from the Republicans this fall, despite the Republicans’ extreme misbehavior over the last few years. It’s a good question, and Cohn downplays the usual answer, that it’s all because of partisan gerrymandering. Instead, he points to the concentration of Democratic voters in a small number of urban Congressional districts, which has the effect of leaving the remaining House seats of a given state to the GOP.

Even so, these House Republicans are really, truly awful. Isn’t there a way for Democrats to beat them regardless of the geographic hurdles? According to Cohn, not really. Either Democrats have to appeal to lost voters (like “the conservative Democrats of the South and Appalachia”) by moving rightward, or they will have to “wait for demographic and generational change” to win the seats for them. And maybe that makes sense, given the assumptions of the lame school of political science that D.C. types always gravitate to—the kind in which there are but two poles in political life and politicians of the left party can only win if they move rightward.

It is this kind of strikingly unoriginal thinking, which I am sure is shared by the blue team’s high command, that explains why the Democratic Party looks to be headed for another disaster this fall.

Allow me to drop a single, disturbing data point on this march of science. You might recall that Democrats controlled the House of Representatives from the early 1930s until 1994 with only two brief Republican interludes. What ended all that was not an ill-advised swerve to the left, butthe opposite: A long succession of moves toward what is called the “center,” culminating in the administration of New Democrat Bill Clinton, who (among other things) signed the Republicans’ NAFTA treaty into law. Taking economic matters off the table was thought to be the path of wisdom among expert-worshipping Washingtonians, but it had the unforeseen consequence of making culture that much more important for a large part of the population. Democrats were eventually swamped by all the crazy grievance campaigns of the right, which has splashed back and forth in the mud of the culture wars ever since.

First of all, while it’s true that Democrats nominally controlled Congress for most of the period between 1932 and 1976, the implicit argument that it did so through a an uncompromising commitment to economic liberalism is deeply wrong. For most of this period, Congress was in fact controlled by a coalition of conservative Democrats and Republicans. And even during the New Deal, conservative Democrats exerted substantial influence over legislation. (What Democrats had to “offer” the South was plenty of racial discrimination within the new federal welfare state.)  The brief heyday of the Great Society, admittedly, was not similarly compromised, with the result that conservative Southern Democrats permanently exited the party coalition. Frank is obviously getting cause and effect backwards. It is true that the Democrats during the 1990s overcompensated, which is why the Democratic Congress of 2009-2010 was substantially more progressive than its Clinton-era predecessor, something you can get around only if you erroneously label longstanding Democratic priorities as “Republican” despite the total absence of previous or contemporaneous Republican support.

The key point here is that the obvious structural limitation that Cohn is discussing here — the fact that both houses of Congress overrepresent conservative, rural areas — was not absent during the New Deal era. The Democrats were able to control Congress for most of this period, but did so only by having a caucus loaded with members who make Ben Nelson look like Barbara Lee. The idea that these state can be won back by running economic liberals is pining for a past that never existed.  Thinking about this period should also remind us that Frank is very wrong to think that the “crazy grievance campaigns of the right” only became relevant in the mid-1990s (and also wrong, of course, to trivialize civil rights issues, or imply that they’re somehow distinct from economic issues.)


Above: What Happened When Bill Clinton Took Economics Off the Table 

The structural problem Cohn identifies is a longstanding feature of American politics. There has never been a time in which the Democratic coalition consisted entirely of robust economic liberals. Frank offers, again and again, “solutions” that just wish the problem away. Not only could the Democrats retake the House of Representative in 2014 merely by changing ideological positioning, but miraculously enough “agreeing with Thomas Frank about everything” is in every context a political winner. Again, you don’t have to be any kind of expert to see that this is just isn’t hard-headed political analysis; it’s daydream believing.

…Chait has more.   As does Bernstein.  

…and a slightly more positive Kilgore.

“Looking Out For No. 1″ Is A Kind of Ethics

[ 234 ] September 14, 2014 |

I’m happy to mostly outsource my response to Bryan Lowder’s trolling to Madeline Davies. I will only add that the increasingly shabby treatment of non-premium customers by airlines is beside the point. The idea that people should sacrifice comfort so they can be better objects for Bryan Lowder’s aesthetic contemplation while engaging in a form of travel that is never going to be comfortable is just deeply stupid and offensive on its face. (And we’re not talking here about choices that tangibly affect someone else’s comfort — saying people should shower and avoid powerful food odors is a different issue.) Nor is self-interest an issue; I generally wear a button-down shirt and slacks while on planes and never wear sweat pants unless I’m exercising. Nonetheless, you’re a decent human being if you want to wear sweatpants while flying, while pissing and moaning that the “swamp of schlumps” aren’t wearing sports jackets during their periods of encasement in flying sardine tins nowadays is something less than decent.

I hadn’t planned to bother pointing out the obvious, though, until someone on the Facebook pointed out this contrarian comedy classic from Lowder’s archives:

He was talking about the stock. Vegetarians were at that moment speeding up the express subway track toward our home, and, despite my efforts to craft a menu that would appease them, I had just failed by using chicken stock in the mushroom risotto … or had I?

I flashed my chilliest Stepford smile at him as I gently stirred the liquid into the hissing pot. “You won’t say a word, will you, sweetie?”

I should probably apologize for this supposedly egregious violation, but for some reason, the words choke in my throat. For starters, the addition of my carefully crafted homemade stock to the risotto was not malicious. In my daily cooking, the ingredient is as basic as kosher salt and freshly ground pepper; I reach for a half-cup of it to thin a sauce or enrich weeknight rice just as I would somnambulistically reach for the AC remote in the middle of a steamy August night. In other words, it was an accident.

But the more I meditate on this issue, the more I think that it is not I who should feel guilty, even for an honest mistake. After all, one version of a saying by none other than famed gastronome Jean Anthelme Brillat-Savarin tells us that “stock to a cook is like voice to a singer.” Can you really justify taking away my voice? When I have vegetarians over for dinner, I’m already making a sacrifice by forgoing a real entrée in favor of a meatless one. Fairness and common sense would argue that, in return, vegetarians shouldn’t make a big deal about some small amount of a near-invisible (if crucial!) liquid. I’ve compromised my culinary integrity enough already—now it’s your turn: Vegetarians and vegans, chicken stock does not count as meat.

Look, part of being a good host is that you should accommodate the dietary and ethical concerns of your guests. If your guests don’t eat animal products, don’t serve animal products. You can make a perfectly good risotto with homemade vegetable stock, or if you can’t make a decent vegetable stock you can serve one of the countless good vegetarian dishes that don’t use it. Your guests shouldn’t be required to compromise their principles because you lack imagination. And if you want to pretend there’s some principle involved in never cooking without chicken stock, don’t lie to your guests about it. I mean, really.

BREAKING! Olive Garden Is Terrible

[ 252 ] September 13, 2014 |

Of course:

Hedge fund Starboard Value delivered the mother of all food reviews this week with a 294-page slide presentation tearing apart Darden Restaurants, the struggling parent company of Olive Garden. It charges the Italian chain with all manner of incompetence—from serving too little alcohol to serving too many breadsticks—but the most powerful accusations are reserved for its pasta.

Here’s why: Olive Garden has stopped salting its pasta water.

“According to Darden management, Darden decided to stop salting the water to get an extended warranty on their pots,” Starboard, which is in a proxy fight for control over Darden’s board, explains. “Pasta is Olive Garden’s core dish and must be prepared properly. This example shows how disconnected Darden management is from restaurant operations and how little regard Darden management has for the guest experience. If you Google ‘how to cook pasta,’ the first step of Pasta 101 is to salt the water.”

According to the slides, they also just ladle the sauce over the pasta rather than properly combining them in the pan, which is the second day of Pasta 101. (Although, granted, when the sauce is sufficiently bland I don’t know how much it matters.)

I don’t even understand the economic sense of the move. I mean, let’s say you either live in an area that lacks the culinary sophistication of Utica and doesn’t have any decent independent Italian restaurants or are for some reason opposed in principle to eating anywhere but a national chain. Once you went to the Olive Garden and have pasta that’s horrible even by national chain Italian restaurant standards, wouldn’t you take your business to Buca de Carino’s Macaroni Grill instead? (Which is indeed what seems to be happening.) Can the longer warranties possibly be worth it? I wonder if treating their customers with contempt is almost an end in itself.

It also strikes me that Darden HQ being located in Orlando seems overdetermined.

This Is What Child Abuse Looks Like

[ 154 ] September 12, 2014 |

More details about the Peterson indictment:

Peterson’s son had pushed another one of Peterson’s children off of a motorbike video game. As punishment, Peterson grabbed a tree branch – which he consistently referred to as a “switch” – removed the leaves and struck the child repeatedly.

The beating allegedly resulted in numerous injuries to the child, including cuts and bruises to the child’s back, buttocks, ankles, legs and scrotum, along with defensive wounds to the child’s hands. Peterson then texted the boy’s mother, saying that one wound in particular would make her “mad at me about his leg. I got kinda good wit the tail end of the switch.”

Peterson also allegedly said via text message to the child’s mother that he “felt bad after the fact when I notice the switch was wrapping around hitting I (sic) thigh” and also acknowledged the injury to the child’s scrotum in a text message, saying, “Got him in nuts once I noticed. But I felt so bad, n I’m all tearing that butt up when needed! I start putting them in timeout. N save the whooping for needed memories!”


According to police reports, the child, however, had a slightly different story, telling authorities that “Daddy Peterson hit me on my face.” The child also expressed worry that Peterson would punch him in the face if the child reported the incident to authorities. He also said that he had been hit by a belt and that “there are a lot of belts in Daddy’s closet.” He added that Peterson put leaves in his mouth when he was being hit with the switch while his pants were down. The child told his mother that Peterson “likes belts and switches” and “has a whooping room.”

I would like to think this would stop anyone from making “oh I got a spanking once or twice no big deal” excuses. But I suspect there will still be too many people who agree with Peterson that he did nothing wrong.

The Republican Attitude Toward Women In A Nutshell

[ 99 ] September 12, 2014 |

Parody is killed yet again:

One Missouri lawmaker has taken the fight against birth control coverage to a new and very personal place: His own daughters, two of whom are adults.

State Rep. Paul Joseph Wieland and his wife Teresa are suing the Obama administration over its minimum coverage requirements for health plans under the Affordable Care Act, which includes contraception. They say the government is forcing them to violate their religious beliefs because they have three daughters, ages 13, 18 and 19, who are on their parents’ plan and might get birth control at no additional cost.

The Wielands’ case was filed before the Supreme Court ruled in Burwell v. Hobby Lobby that private employers could deny contraceptive coverage to their employees, but they say that decision strengthens their case.

“The employees are to Hobby Lobby what the daughters are to Paul and Teresa Wieland,” Timothy Belz, an attorney from the conservative Thomas More Society, who represents the Wielands, told a panel of three federal judges on the appeals court in St. Louis on Monday. A district court had dismissed the case, saying the Wielands lacked standing to sue.

A worldview in which female employees are like children, female offspring are like employees, and either way even when they are adults the sexuality of women needs to be regulated by another, preferably male adult. It really does get right at the essence of how Republicans view women. In 2014.

Hammer the Ginger Hammer

[ 99 ] September 12, 2014 |

Roger Goodell has said many things about the Ray Rice affair that are false. Which is probably for the best, because when he tries to explain what he’s actually thinking it’s outright appalling:

On Thursday, an anonymous NFL owner explained to The Wall Street Journal that Goodell was quick to drop the incident because Janay told him (during a meeting with six male NFL executives and the man who hit her, as Deadspin notes) that she felt she was partly to blame. He also accepted that she was knocked out when she fell, not from the punch. While that’s a textbook response from a victim of domestic violence, supposedly Goodell felt it would have been “insensitive” to question her story.

Even if the video had corroborated the boldfaced claim…what? Yes, clearly someone suffering further injury when falling down after being punched in the face by a professional athlete is completely unforeseeable, and the puncher should not be held accountable for these injuries. Ye gods.


Thus, the NFL is retroactively claiming that the reason it came down with a universally-derided two-game suspension in the first place is that it ignored hard evidence in favor of a first-person account given by the person accused of committing domestic violence. This is the league’s actual excuse!

Cary Nelson’s Ongoing, If Selective, War On Academic Freedom

[ 124 ] September 11, 2014 |

I hadn’t intended to write more about the Salaita case for the time being, with the vote in and the matter to move to the courts. But Bijan alterted me in comments to an article with yet more comments from Cary Nelson, who is still using his status as a past president of the AAUP and erstwhile defender of academic freedom to side with the administration against academic freedom in an important case. Given his status in the field, Nelson’s conduct during this affair has been a disgrace, and the quality of his arguments remains pathetic:

Cary Nelson, a professor emeritus at the U of I, has long been a defender of academic freedom; from 2006 to 2012, he was head of the American Association of University Professors, which wrote the book on academic freedom.

While the AAUP supports Salaita in this matter, Nelson says Salaita’s allies are missing key nuances about the case.

Ah, yes, nuances. What are these complexities? Something on the order of “[p]eople are mixing up this individual personnel issue with the whole question of freedom of speech and academic freedom,” perhaps.

Nelson doesn’t think Salaita should be recognized as a tenured professor, as his hiring hinged on a full review of his dossier – which happened last year.

Let us say, for the sake of argument, that this is true, that as a formal legal matter Salaita is not tenured, and UIUC had the authority to fire him. The nuance Nelson is willfully forgetting is that tenure is a means of protecting academic freedom, not the sum total of academic freedom. Let is turn to the version of Nelson who supported academic freedom:

Academic freedom gives both students and faculty the right to express their views — in speech, writing, and through electronic communication, both on and off campus — without fear of sanction, unless the manner of expression substantially impairs the rights of others or, in the case of faculty members, those views demonstrate that they are professionally ignorant, incompetent, or dishonest with regard to their discipline or fields of expertise.

Not what this doesn’t say — “tenured” faculty. And it shouldn’t. If an assistant professor or adjunct instructor is fired for expressing political views, this is a violation of academic freedom even if they do not have access to the same due process rights. Which, in this case, settles the question. Salaita was given an extremely harsh sanction for expressing political views. There has been no showing that he is professionally incompetent or violated the rights of others.

Nelson said Salaita’s tweets and other comments about Israel should be taken into consideration now that they’ve drawn so much attention and criticism.

This is an absolutely remarkable statement. Academic freedom applies…unless someone’s electronic communications attract a lot of attention, in which case they’re fair game. How this is distinguishable from just abandoning academic freedom altogether is unclear. As with any free speech protection, it is not necessary to protect speech that is unheard or universally regarded as inoffensive.

He said it’s not just Salaita’s tweets that are concerning; he’s read Salaita’s books and says their overall tone leads him to believe Salaita’s classroom would not be one for open and free discussion when it comes to Israel and Palestine.

I’ve already addressed this line of argument in my critique of Nelson’s first op-ed. To summarize, 1)the idea Salaita’s twitter feed is a more reliable guide to his teaching than his teaching evaluations is self-evidently risible; 2)the same applies to an assessment of the “tone” of his books; and 3)this argument proves too much, since it can be inferred that anyone who expresses a political view cannot teach those who hold opposing views. In addition, if Nelson has carefully read all of Salaita’s books I’ll wear a Derek Jeter jersey with one of the special memorial patches in class for a month.

And, finally, since Nelson would probably prefer that people think that he still favors academic freedom, we have a self-serving attempt to find a limiting principle:

“He has a position, a political position, on the Middle East,” he said. “And he explains that position in detail in several of his books. But they’re not based on research, they’re based on his opinion. So I wouldn’t count objectivity as one of the defining characteristics of his work at all.”

As Atrios has put it elsewhere on the internets, the argument is that Salaita’s political views are mere “opinion,” while Nelson’s are “objective.” Amazing how that works. And, of course, we can absolutely trust in the objectivity of Nelson’s ex post facto evaluations of the scholarly merits of Salaita’s work, even though he reached a conclusion that he should be fired based on some isolated and in some cases willfully misread tweets. To re-state these arguments is to refute them.

I’d like to conclude with some remarks from Chancellor Wise, because they allow us to consider the wages of the abandonment of academic freedom that Nelson is defending:

Then came those controversial tweets about Israel. And By late July, U of I chancellor Phyllis Wise was tipped off that the Board of Trustees wouldn’t approve Salaita’s hiring, normally little more than a procedural move. Wise says because of the narrow window of time before Salaita was to arrive on campus, she took action quickly — more quickly than she usually would — and let Salaita know his job offer was cancelled.

“My first reaction was, ‘Oh my goodness, this man must be packing,” Wise said. “I can’t let him risk bringing his whole family from Virginia all the way to Urbana-Champaign and then not really have a position.’”

See — she was doing him a favor! Sure, he may have resigned his tenured position, his wife might have resigned her position, they may have sold their house, his career might have been ruined because a job offer that under the norms of the profession he had every reason to expect was final was yanked at the last minute…but as long as he hadn’t actually moved to Champaign to teach the classes he had been scheduled to teach, no harm, no foul! This is a family blog, so I’ll just leave the evaluation of these remarks to your judgement.  But this does underscore the importance of this case, which goes well beyond one individual.  A precedent has been set, and if UIUC gets away with it there were be plenty more Salaitas. 

…Bijan in comments: “Nelson’s current behavior is really so disgraceful that his name should become a term of abuse as in to Cary water for the administration or to put your principles in a full Nelson.”

UIUC Reaches Peak Gibberish

[ 42 ] September 11, 2014 |

Shorter verbatim Phyllis Wise: “People are mixing up this individual personnel issue with the whole question of freedom of speech and academic freedom.”

This really says it all, doesn’t? “I believe in principles, so long as they never have to apply in individual cases. Especially if the development office is involved.” Joe Freeman Britt should have thought of this. “People are mixing up this individual criminal case with the whole question of due process and Maryland v. Brady and whether it’s appropriate to execute innocent people.”

And yet, it makes sense in its own perverse way. Salaita’s firing obviously cannot be squared with basic principles of academic freedom, even if UIUC can establish that it acted within its formal legal authority. Some UIUC apologists are willing to come out and say that academic freedom is just a racket and firing someone for their political views is perfectly OK, but Wise can’t say that either. So we’re left with pure distilled 100 proof nonsense.

…As expected, the vote goes 8-1 against Salaita. I have no idea how strong Salaita’s case will be under Illinois law, but if the lawsuit gets to discovery it will be interesting indeed.

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