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The Principles of John Roberts

[ 5 ] October 21, 2014 |

You might think that the fact that the Supreme Court is willing to allow Texas to conduct an election with a racially discriminatory poll tax reflects a complete disinterest unwillingness* to intervene in the electoral process. Of course, this is not exactly true:

There is no right more basic in our democracy than the right to participate in electing our political leaders,” Chief Justice John G. Roberts Jr. wrote in April.

Roberts spoke then for the court’s conservative majority in striking down part of a federal election law so as to allow a wealthy Republican businessman from Alabama to give more money to candidates across the country.

The contribution limit restricted the donor’s free speech, Roberts concluded, and the Constitution requires the court to err on the side of safeguarding that cherished 1st Amendment protection.

But the right to vote, which is the way most Americans participate in a democracy, has gotten far less protection from the Supreme Court under Roberts.

There is no starker example than the high court’s order early Saturday allowing Texas to enforce a new photo identification law that a federal judge had blocked earlier this month after deciding the law would prevent as many as 5% of the state’s registered voters, or 600,000 people in all, from casting a ballot.

Fortunately, the law in its majestic equality permits rich and poor alike to donate great sums of money to political campaigns, which will surely be a consolation to the disenfranchised.

*As Jacob Levy noted on the tweeter, this is a misuse of the word, a misusage I particularly regret in the context of discussing the Roberts Court and voting rights.

A Movement For Everyone: Alcoholics, the Unemployable, Angry Loners…

[ 259 ] October 20, 2014 |

and now come the grifters. It’s just amazing how important an issue ethics in gaming journalism* has gotten!

*Note: underlying “scandal” unlikely to contain any actual evidence even of unethical journalistic behaviors, although it might involve interminable screeds about how someone you don’t know allegedly cheated on someone you don’t know, and the next person to coherently explain why anyone else should give a rat’s ass will be the first.

“There Are Too Many Federal Regulations Nowadays. Please Eliminate Many At Random. I Am Not A Crackpot.”

[ 9 ] October 20, 2014 |

Janice Rogers Brown strikes again.

Today In the Party of Lincoln Becoming the Party of Calhoun

[ 27 ] October 20, 2014 |

The Supreme Court has allowed Texas conduct its midterm elections with a patently unconstitutional election statute:

The fact that Texas’ law is unconstitutional twice over — both by being racially discriminatory and imposing a direct cost on voting — is not a coincidence. Even after racial discrimination in voting was made illegal by the Fifteenth Amendment, for nearly a century states were able to use formally race-neutral measures like poll taxes and literacy tests to disenfranchise minority voters. The Texas law is very much part of this long and ignoble tradition.

Unfortunately, the Supreme Court’s decisions in 2013 and 2014 allowing the Texas law to go into effect are part of another long and ignoble tradition: the Supreme Court collaborating with state governments to suppress the vote rather than protecting minorities against discrimination. As long as Republican nominees control the Supreme Court, this problem is likely to get worse before it gets better.

MLB’s Disgrace

[ 33 ] October 20, 2014 |

The winner-take-all economy:

The LumberKings, named for the millionaire timber barons who once ran this town, are the Class-A affiliate of the Seattle Mariners, who, like every other major-league team, pay their A-level minor leaguers roughly $6,300 for the five-month season — about two-thirds what Jose Bautista makes per inning.

Players in the NBA’s affiliated minor leagues make three to five times as much, while the NHL’s unionized minor leaguers can earn even more, with greater benefits to boot. (The NFL doesn’t have an affiliated minor league.)

Minor-league baseball players regularly work 60- to 70-hour weeks with only two or three days off a month, but they get no overtime pay. They receive only a $25 meal per diem — no salary — for the mandatory four to six weeks of spring training. Same goes for any instructional leagues they may be required to attend when their 140-game schedule ends.

Players are required to pay $5 per day in clubhouse dues for each home game

A handful of players receive six-figure signing bonuses in their first year, but many sign for $5,000 or less. So most players earn less than the federal U.S. poverty line, which in 2014 is an annual income of $11,670 for a single-person household.

Another consequence of the unfree minors…

Dear Massachusetts Democrats

[ 88 ] October 19, 2014 |

There are too many Martha Coakleys being nominated for high-profile electoral positions nowadays. Please stop nominating one. I am not a crackpot.

Donner Party Conservatism

[ 94 ] October 19, 2014 |

Corey Robin:

And here we come to Ground Zero of conservative commitment. The conservative believes in excellence, as Douthat says, but it is a vision of excellence defined as and dependent on “overcoming.” It’s a vision that abhors the easy path of acceptance, of tolerating human frailty and need, not because that path is wrong but because it is easy.  Or, to put it differently, it’s wrong precisely because it is easy. And though that vision often claims Aristotle as its inspiration, its true sources are Nietzschean.

The conservative believes the excellent person is a kind of mountain climber, a moral athlete who is constantly overcoming or trying to overcome his limits, pushing himself ever higher and higher.  When it comes to sex, he’s not unlike the Foucauldian transgressor, that sexual athlete of novelty and experiment: but where Foucault believes that taboos against sex are all too easily reached (that’s why, if we are to attain the peaks of experience, we have to move beyond those limits), the conservative’s remain out of reach. The value of a rule lies in its difficulty and potential unattainability, the ardor of the struggle it imposes upon us. We might call this ethic the ardor of adversity.*

Very much so, yes. And it gives us another opportunity to revisit Holbo’s classic David Frum essay:

“Contemporary conservatives still value that old American character. William Bennett in his lectures reads admiringly from an account of the Donner party written by a survivor that tells the story in spare, stoic style. He puts the letter down and asks incredulously, “Where did those people go?” But if you believe that early Americans possessed a fortitude that present-day Americans lack, and if you think the loss is an important one, then you have to think hard about why that fortitude disappeared. Merely exhorting Americans to show more fortitude is going to have about as much effect on them as a lecture from the student council president on school spirit. Reorganizing the method by which they select and finance their schools won’t do it either, and neither will the line-item veto, or discharge petitions, or entrusting Congress with the power to deny individual NEA grants, or court decisions strinking down any and all acts of politically correct tyranny emanating from the offices of America’s deans of students – worthwhile though each and every one of those things may be. It is socials that form character, as another conservative hero, Alexis de Tocqueville, demonstrated, and if our characters are now less virtuous than formerly, we must identify in what way our social conditions have changed in order to understand why.

Of course there have been hundreds of such changes – never mind since the Donner party’s day, just since 1945 … But the expansion of government is the only one we can do anything about.

All of these changes have had the same effect: the emancipation of the individual appetite from restrictions imposed on it by limited resources, or religious dread, or community disapproval, or the risk of disease or personal catastophe.” (p. 202-3)

Words fail me; links not much better. The Donner party? Where did all these people go? Into each other, to a dismaying extent. A passage from one of those moving, stoical diary entries:

“…Mrs. Murphy said here yesterday that [she] thought she would commence on Milt and eat him. I don’t think she has done so yet, [but] it is distresing. The Donno[r]s told the California folks that they [would] commence to eat the dead people 4 days ago, if they did not succeed in finding their cattle then under ten or twelve feet of snow & did not know the spot or near it, I suppose they have [cannibalized] …ere this time.”

The stoical endurance of the Donner party in the face of almost unimaginable suffering is indeed moving. The perseverance of the survivors is a lasting testament to the endurance of the human spirit. (On the other hand, the deaths of all who stoically refused to cannibalize their fellows might be deemed an equal, perhaps a greater testament.) But it is by no means obvious – some further demonstration would seem in order – that lawmakers and formulators of public policy should therefore make concerted efforts to emulate the Donner’s dire circumstances. What will the bumper-stickers say? “It’s the economy, stupid! We need to bury it under ten to twelve feet of snow so that we will be forced to cannibalize the dead and generally be objects of moral edification to future generations.”

I think we are beginning to see why Frum feels that his philosophy may be a loser come election time. I think the Donner party – who, be it noted, set out seeking economic prosperity in the West, not snow and starvation – would not vote Republican on the strength of William Bennett’s comfortable edification at the spectacle of their abject misery. (“Let’s start with the fat one over there in the corner, playing the slots. We can eat off him for a week. See how he likes it.”)

To put what is surely rather an obvious point yet another way: if the Donner party is really what you want, the policy riddle (how to reproduce these conditions, since the Donner party was not political, per se?) already has an answer: Stalinism.

…Warren Terra in comments:

I had heard the term “Donner Party Conservatism” before, but it had never occurred to me that it reflected actual sentiments from a famous Conservative Thought Leader in praise of the Donner party – I assumed it was just an insult hurled at the party that professes to represent some sort of Conservative ideals, and that in reality so well recapitulates the experience of the Donner Party.

Think of it: a bunch of god-fearing but frankly ignorant buffoons were sold promises of wealth and opportunity if only they’d pledge themselves to a grand venture. They were then taken advantage of by profiteers who badly outfitted them for the undertaking, and were literally misguided, as in sent along the wrong path, at the wrong time. When they became trapped, the few survivors made it by eating their own; others more principled or more circumspect did not – or were perhaps slain to be food. It’s like the George W Bush administration, plus literal cannibalism. It is, in short, what the Conservatives deliver, but not what they claim to seek. Except, apparently, Bill Bennett.

The War on (Some Classes of People Who Use Some) Drugs, Two Questions

[ 158 ] October 17, 2014 |
  • Does anyone think Joe Biden’s son belongs in prison?
  • Irrespective of your answer to #1, he’s not going to be sent to prison. So why should anybody for doing the same thing?

…travel day, missed that Atrios beat me to the point I later originated.

And He Pulled Himself Up By His Bootstraps Anyway!

[ 49 ] October 17, 2014 |

Andrew Cuomo, a true Horatio Alger story:

You also write that there are ultimately more negatives than positives to being a famous politician’s son. Why? I wouldn’t trade my father or our experiences for anything. But politically, it’s a negative, because you get all your father’s enemies — and not all his friends.

Right. Being the governor’s son is a net negative. It’s amazing how many public officials in this land have managed to get beyond this handicap anyway.

Today In the Machinery of Death

[ 10 ] October 17, 2014 |

Texas justice, which is national when Republicans appoint the median Supreme Court justice:

Four years before he murdered his in-laws in Texas, Scott Panetti buried some furniture in his yard. The devil, he claimed, was in it. After he was arrested and charged with the killings, Panetti, who has a history of severe mental illness, represented himself at his capital trial wearing a purple cowboy suit. He called himself “Sarge” and subpoenaed Jesus, among other notables. He lost, of course. The jury found him guilty and sentenced him to death.

The case made its way though the appeals courts, eventually reaching the United States Supreme Court, which in 2007 ruled that the state of Texas hadn’t adequately evaluated whether Panetti’s mental condition allowed him to fully understand the nature of his punishment—a constitutional prerequisite for the death penalty. The court stayed the execution and sent the case back for further proceedings.

Seven years later, Panetti’s illness hasn’t gone away, but the Supreme Court has given Texas the green light to kill him. The court’s decision, announced on October 6 without comment, upheld a 5th Circuit Court of Appeals ruling that Panetti was sane enough for execution. The appellate court’s decision, in turn, was based in part on the opinion of a Florida psychiatrist who has deemed at least three Florida death row inmates with long and well-documented histories of mental illness to be sane enough for the needle.

[...]

The details in this story, gleaned from hundreds of pages of court documents and other official filings, indicate that Scott Panetti was no malingerer. He began showing signs of serious mental illness in 1981, back when he was still a teenager. By 1992, he had been diagnosed with paranoid schizophrenia, delusions, auditory hallucinations, and manic depression, and had been hospitalized 14 times.

Well, in a state where you can be executed even when the state has no actual evidence that you’ve committed any crime at all, not executing actually killers because they’re severely mentally ill is probably going to be off the table.

The Eternal Mystery of Republican Health Care Policy

[ 57 ] October 17, 2014 |

One summary of Republican health care principles:

That’s the fundamental belief that motivates most, if not all, the conservative opposition: Health care should be a privilege rather than a right. If you can’t afford health insurance on your own, that is not the government’s problem.

I happen to find this belief morally bizarre. People who cannot afford their own insurance either don’t earn much money, or have health risks, or family members with health risks, too expensive to bear.

[...]

Indeed, very few Republicans have the confidence to make the case openly that the inability of some people to afford the cost of their own medical care is their own problem. But that is the belief that sets them apart from major conservative parties across the world, and it is the belief that explains why they have opposed national health insurance every time Democrats have held power, and why they have neglected to create national health insurance every time they have.

Hmm. Chait’s unorthodox view seems to derive the content of Republican health care policy based on such strange metrics as “what Republicans do when they control the legislative and executive branches of state and federal governments” and “what conservative intellectuals favor” and “what conservative politicians favor when not creating transparent decoys during periods when they need to pretend to have an alternative.” Odd. If you use more relevant measures like “what laws single Republican governors (mostly) sign when massive veto-proof majorities of New England Democrats put them on their desk” and “what New England Republican Senators who also favor national handgun bans propose when Republicans are in opposition,” you’ll see that the Affordable Care Act represents long-standing Republican policy preferences, even if it took that dastardly neoliberal sellout Obama to use the third term of the Bush administration to pass it.

Another Winner From Late-Period Posner

[ 46 ] October 16, 2014 |

Judge Posner’s Voter ID opinion — which, alas, came in the form of a dissent from the denial of an en banc hearing — is indeed a beauty. My favorite graf:

Voter-impersonation fraud may be a subset of “Misinformation.” If so, it is by all accounts a tiny subset, a tiny problem, and a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government. Those of us who live in Illinois are familiar with a variety of voting frauds, and no one would deny the propriety of the law’s trying to stamp out such frauds. The one form of voter fraud known to be too rare to justify limiting voters’ ability to vote by requiring them to present a photo ID at the polling place is in-person voter impersonation.

Or maybe it’s this one:

As there is no evidence that voter impersonation fraud is a problem, how can the fact that a legislature says it’s a problem turn it into one? If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials? If the Supreme Court once thought that requiring photo identification increases public confidence in elections, and experience and academic study since shows that the Court was mistaken, do we do a favor to the Court-do we increase public confidence in elections-by making the mistake a premise of our decision? Pressed to its logical extreme the panel’s interpretation of and deference to legislative facts would require upholding a photo ID voter law even if it were uncontested that the law eliminated no fraud but did depress turnout significantly.

You also have to love the appendix titled “Scrounging For Your Birth Certificate in Wisconsin” (a direct shot at Easterbrook’s embarrassing opinion.) The dissent also does a good job distinguishing the case from Crawford, although Posner and the Supreme Court were wrong then too.

I really hope that Ponsner ends up hearing a case brought by the ACA troofers; that could possibly result in the most entertaining opinion in judicial history.

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