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Murphy’s Hamdi Botch

[ 68 ] July 18, 2014 |

Last month, a tweep asked me what I thought about arguments made by the National Review‘s Ed Whelan about Bruce Allen Murphy’s new Scalia bio. I had forgotten to look into it, but taking some time to finish the book I came across a dumbfounding passage that I immediately knew must have been the one under discussion.

As many of you already know, Scalia’s dissent in Hamdi v. Rumsfeld is one of his finest hours on the Court, the bizarro version of his Bush v. Gore stay opinion. Scalia, joined by Stevens, argued that as an American citizen Hamdi had habeas corpus rights unless the writ was suspended, a power Scalia’s opinion locates in Congress. That Scalia wrote an opinion cutting against his both his general ideological and partisan preferences because he believed the law bound him to do so in this case was admirable, and the dissent is therefore both interesting in itself and an opinion that anyone writing about Scalia’s jurisprudence needs to pay careful attention to.

Murphy, however, portrays Scalia’s dissent as arguing “in favor of a ‘blank check’ on behalf of total presidential power.” According to Murphy, for Scalia “Hamdi was a traitor who was working with the enemy in times of war, and thus was not afforded [habeas corpus] protections.” (Both p. 319 in my uncorrected proof; apparently, this argument hasn’t been modified in the final version.) Whelan has further grim details, but…it’s every bit as bad as he says. We all make mistakes, but this is like saying that Dred Scott found all state slave codes to violate the 5th Amendment or that Lawrence v. Texas reaffirmed Bowers v. Hardwick. It’s mystifying. (When I read the “blank check” sentence my first thought was that Murphy was confusing Scalia’s Hamdi dissent with his Hamdan dissent, but he quotes from the former directly so that can’t be it.) It’s the kind of mistake that forfeits a reader’s trust.

I didn’t encounter another mistake of this magnitude, but in an extreme form it illustrates why Scalia: A Court of One is a major disappointment as a follow-up to the excellent Wild Bill. Murphy’s Douglas bio had two major advantages: 1)the subject lived an unusually interesting and eventful life for a Supreme Court justice, and 2)we have a lot more access to the inner workings of the Courts Douglas served on that we do of the contemporary Court. Dealing with a subject whose personal life isn’t particularly interesting, a lot of the book is taken up with Murphy’s analysis of what Scalia contributes to the United States Reports, and this really isn’t Murphy’s strong suit. Again, the hash be makes of Hamdi seems to be an outlier, but he’s sometimes shaky on basic concepts (“the Court defers to a state’s laws because a rational person would agree with them” isn’t really what the “rational basis” test means) and even when his doctrinal analysis is unobjectionable it’s pedestrian. So what you’re going to get out of the book depends on how interested you are in Murphy’s extensive discussion of Scalia’s Catholicism and its impact on his jurisprudence, and for me a little goes a long way. It’s a book I expected to be a lot better.

“And Does Someone Have Judy Miller’s Number if the Replacement Doesn’t Work Out?”

[ 128 ] July 18, 2014 |

Hmm…

Ayman Mohyeldin, the NBC News correspondent who personally witnessed yesterday’s killing by Israel of four Palestinian boys on a Gazan beach and who has received widespread praise for his brave and innovative coverage of the conflict, has been told by NBC executives to leave Gaza immediately. According to an NBC source upset at his treatment, the executives claimed the decision was motivated by “security concerns” as Israel prepares a ground invasion, a claim repeated to me by an NBC executive. But late yesterday, NBC sent another correspondent, Richard Engel, along with an American producer who has never been to Gaza and speaks no Arabic, into Gaza to cover the ongoing Israeli assault (both Mohyeldin and Engel speak Arabic).

[...]

Despite this powerful first-hand reporting – or perhaps because of it – Mohyeldin was nowhere to be seen on last night’s NBC Nightly News broadcast with Brian Williams. Instead, as Media Bistro’s Jordan Chariton noted, NBC curiously had Richard Engel – who was in Tel Aviv, and had just arrived there an hour or so earlier – “report” on the attack. Charlton wrote that “the decision to have Engel report the story for ‘Nightly’ instead of Mohyeldin angered some NBC News staffers.”

Indeed, numerous NBC employees, including some of the network’s highest-profile stars, were at first confused and then indignant over the use of Engel rather than Mohyeldin to report the story. But what they did not know, and what has not been reported until now, is that Mohyeldin was removed completely from reporting on Gaza by a top NBC executive, David Verdi, who ordered Mohyeldin to leave Gaza immediately.

In fairness, Mohyeldin was naive to think that reporting actual news was a way to advance your career working for a major network newscast.

Comment Section Changes: A Brief Q&A

[ 516 ] July 17, 2014 |

Rather than applying to a bunch individual comments, I thought I’d make a few points as we ponder changes to the comment section.

Q: Why change?

A: Trolls destroy potentially interesting comment threads.  Registration will not eliminate this problem but it will attenuate it.

Q: Why not delete troll comments?

A: In addition to time issues, since even the laziest pro forma trolling is guaranteed to immediately generate several comments deletions destroy comment threads by unraveling the threads.

Q: Why not disemvowel trolls/moderate comments?

A: Send me a check for $60 grand and we can consider this for a year.  Otherwise, I already have a full time job.

Q: Are you going to switch to Facebook commenting? That sounds horrible!

A: No.

Keep the feedback coming!

Getcher Hot Links

[ 6 ] July 17, 2014 |

Things to click on and possibly read:

“And, In Conclusion, KU’s Teams Will Now Be Known As the Kansas Reagans.”

[ 158 ] July 16, 2014 |

Shorter Sam Brownback: “My crazy Democratic opponent thinks that raising taxes is a way to solve the disastrous fiscal meltdown caused by the tax cuts I favored. But everyone knows this solution is insufficiently Reagan because Reagan, and in addition Reagan. Note: this “Reagan” bears no resemblance to the actual Reagan.”

“The story is a convergence of helicopter parenting with America’s primitive family policy.”

[ 323 ] July 15, 2014 |

This is…amazing in a horrible way:

Debra Harrell is currently in jail because she let her 9-year-old daughter play, unsupervised, in a public park. Almost everything about this story (which I noticed courtesy of Lenore Skenazy) is horrifying. Harrell works at McDonald’s. Her daughter used to tag along and stare at a screen at her mother’s workplace during the day. She asked to go to the park instead, was discovered to be without an adult, and her mother was arrested.

If I had grown up in South Carolina (and there was any chance these laws would be applied to white people), I think my parents would be doing life without parole. The idea that there are no circumstances under which a 9-year-old can be in public without supervision is bizarre. And the asusmption that 9-year-olds need constant supervision certainly isn’t reflected by American social policy (and that goes triple for deep red statehouses.)

And as Friedersdorf says, even if you assume that the child was in actual peril there’s no way that the trauma of being separated from her (arrested and now presumably unemployed) mother isn’t a net negative to the welfare of the child.

The Republican War on the ACA Never Ends

[ 109 ] July 15, 2014 |

The Republican Party will never rest until it has stripped tens of millions of people of their health coverage, but at least their latest dumb lawsuit will fall into the symbolic rather than the substantive realm of opposition.

I wonder if Boehner’s stunt will even serve its central purpose, appeasing the Tea Party’s perpetual skree machine. For example, Andrew McCarthy’s new treatise P.S. I AM NOT A CRACKPOT* proposes seven articles of impeachment, “each of which has several subparts.” If the suit is ultimately limited to one narrow issue that will be moot before the suit goes anywhere, it’s hard to imagine this brigade being satisfied.

*The man who caused Pauline Kael to flee film reviewing in horror is impressed: “The Left has the late Saul Alinsky as a model. We have a rejoinder — Andrew McCarthy.” Palajams Media, at the intersection of crank and cliche.

On Zizek and Plagiarism

[ 105 ] July 15, 2014 |

I concur with Michelle Dean:

And two: as a description of the intellectual process, this makes Žižek sound supremely lazy. Copying a summary is indeed a different thing than straight up stealing an idea, particularly if you’re cutting and pasting to criticize. But it still means Žižek was less than personally familiar with the book he’s holding up as a signature example of an evil trend. He’s not exactly setting a shining example of academic rigor, there.

All of these plagiarism panics, of late, share that laziness storyline. Is it just that hitting the top will do you in, make you a target for haters who will comb your work for harmless error? Is it the relentless demand to produce that comes with success that trips people up? Or is it that meritocracy is a total lie and lots of terrible, sloppy work can be so elevated by everyone’s genuflection to intellectual status that it takes years to discover it was constructed with all the finesse of your average Reddit hack?

I’ve been defaulting to that last explanation, myself.

Voodoo Economics in the Sunflower State

[ 208 ] July 14, 2014 |

Kansas Republicans pushed through a series of massive tax cuts.  As always, they were justified as a free lunch — economic growth would be so explosive that revenues would actually rise! How did that work out? 

Instead, job growth in Kansas trails the nation. The state’s rainy-day fund is dwindling to zero. Month after month, revenue comes in even lower than fiscal officials’ most dire expectations.

In the rest of the country, school budgets are finally beginning to recover from the toll of the last recession; in Kansas, they’re still falling. Healthcare, assistance for the poor, courts, and other state services are being eviscerated.

But they have more great ideas!

More tax changes were enacted last year. The top rate was cut to 3.9% in stages through 2018. But other cuts were reversed; much of a sales tax reduction was canceled, and the standard deduction was cut back, effectively raising taxes for the middle- and working-class.

In all, as the CBPP documents, the changes will cut the taxes of the wealthiest 1% of Kansans by 2.2%. The poorest 20% of Kansans will see their taxes rise by 1.3%.

The impact on overall state revenue has been devastating. Despite Laffer’s prediction, the state ended fiscal 2014 with a shortfall of $338 million.

In conclusion, upper-class tax cuts cannot fail — they can only be failed.

On MoDo And Chelsea Clinton

[ 119 ] July 14, 2014 |

I’m surprised it took Dowd this long to glom onto the emerging narrative.  A few points:

  • Chelsea Clinton’s career path so far does indeed reveal several rackets central to the American political economy that are eminently worthy of criticism.  Her $600 K “news” sinecure at NBC certainly represents much of what is wrong with America today.  $75K speaking fees ditto, although since Clinton donates them to the family foundation I’d say she wasn’t the perfect representative of this point (her parents, I agree, are a different story.)
  • As always, I’m dubious about personalizing what are systematic issues, which of course is what Dowd does.  The $600 grand from NBC to do nothing in particular is certainly the symptom of something very wrong and it’s fair game to note that Clinton benefited from it, but we also shouldn’t lose sight of the fact that she didn’t cause the problem. Had Clinton turned down NBC’s money it wouldn’t have gone to elementary school teachers or starving orphans or cancer research; it would have gone to some other pseudo-celebrity to do pseudo-journalism.
  • Dowd strikes me as particularly poorly positioned to tell this as a story of “wanton acquisitiveness” among individuals.  What does Dowd get paid for writing 1600 shallow, consistently fact-challenged words a week?  Does Dowd donate her own speaking fees to charity?

The Final

[ 70 ] July 13, 2014 |

After more than 110 minutes, I finally have a rooting interest — Argentina being shut out the rest of the way to avoid the abomination of penalty kicks.

“The current death score is 159-0.”

[ 243 ] July 13, 2014 |

This Saletan column has been sitting in my tabs for several days, waiting for me to contain my amazement long enough to write about it. Fortunately, Bertram has already beaten me to the punch:

I wonder if Israel’s cheerleaders realize the damage they do their own cause when they write things like “Israel, unlike Hamas, isn’t trying to kill civilians. It’s taking pains to spare them” and “But in the Gaza war, it’s clear that Israel has gone to great lengths to minimize civilian deaths. The same can’t be said of Hamas.”…Anybody who is not parti pris can see that the Netanyahu government has partially contrived and partially been trapped by a domestic political climate that requires them to kill numbers of Palestinians in order to satisfy the Israeli electorate. Of course there’s the usual blather about “operatives” and “terrorist infrastructure”, but it is hard to take seriously the idea that anyone believes this as a description of Israeli aims. In fact nobody does, but lots of people in political power in the West think they have to go along with the story and pay lip service to Israel’s “right to defend itself”, even though concretely this takes the form of airstrikes against densely populated urban areas with predictable civilian deaths. Meanwhile, those who speak for the Israeli government go around claiming that no state could tolerate missiles being fired into its territory and that any state would have to retaliate. This is false, indeed absurd: much of British policy in Northern Ireland in the 1970s and 80s was deplorable, but though the IRA fired plenty of mortar rounds across the border, nobody seriously contemplated taking out “terror operatives” by aerial bombardment of civilian housing in the Irish Republic.

I have only a couple of small points to add. First of all, this is another illustration of why focus on motives in politics is generally misplaced. I also find Saletan’s readings of the relevant Israeli officials implausible, but it doesn’t actually matter whether they sincerely think they’re minimizing civilian deaths or not. They’re using tactics that guarantee many civilian deaths; what the motives are is fundamentally beside the point.

This also isn’t a defense of Hamas’s rocket strikes. They’re both objectionable in themselves and as with most heighten-the-contradictions strategies the chances that they will make things better by making things worse as opposed to just making things worse are roughly 0%. But this doesn’t change the fact that the Israeli response has been grossly disproportionate.

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