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Hillary, Non

[ 0 ] December 8, 2006 |

Thank Jeebus that I don’t think she can actually win the Democratic primary. (I hope somebody’s taking a lot of pictures of today’s Joementum.)

"I don’t see reopening this question in the future"

[ 0 ] December 8, 2006 |

As a follow-up to yesterday’s post, the use of litigation has caused gay rights to be an incredibly divisive issue that will tear Canadian politics apart for generations. Or not:

Prime Minister Stephen Harper has declared the contentious issue of same-sex marriage to be permanently closed.

After a Conservative motion calling on the government to restore the traditional definition of marriage was defeated yesterday by a resounding 175 to 123, Mr. Harper said he will not bring the matter back before Parliament.

“I don’t see reopening this question in the future,” he told reporters who asked whether same-sex marriage would return to the table if the Conservatives won a majority government.

Nor does he intend to introduce a “defence of religions” act to allow public officials, such as justices of the peace, to refuse to perform same-sex marriages.

But had litigation never been brought, I’m sure the legislation would have lost by an even greater margin. Or something.

In other Canadian news, I’ve forgotten to mention the pleasing upset victory of Stephane Dion in the Liberal leadership race; not only was he probably the best candidate on the merits (particularly since on civil liberties Ignatieff makes Alberto Gonzales sound like Nadine Strossen), but it gives hope to academics everywhere.

The Countermobilization Myth: Canadian Edition

[ 0 ] December 7, 2006 |

Gay rights litigation has been very successful in our neighbor to the north, with major victories at both the federal and provincial levels (including with respect to marriage benefits. According to oft-cited conventional wisdom, this success should have been a disaster for the gay rights movement, mobilizing a huge backlash and setting the cause back for generations as citizens were incensed by decision by “activist” courts. The problem is that this is not, in fact, true. Not only did Parliament end up formally recognizing gay marriage, but gay marriage has continued to become more popular, now commanding the support of almost 60% of the Canadian public.

I do not mean so suggest that we can therefore expect a majority of Americans to support gay marriage right away too. My only point is that there is no evidence whatsoever that using litigation has anything to do with it. Courts are likely to provide the initiative with respect to issues that cross-cut existing coalitions (even on issues, such as civil rights and abortion, where national majorities favor reform), and there’s no reason to believe that favorable court decisions will stop inexorable generational trends that will increase support for gay rights. But then, the “countermobilization” argument has never been about evidence. What’s useful about it is providing a component of an ages-old shell game, where complacent elites who aren’t burdened by the status quo nominally support the goals of social change but for who it’s somehow never being accomplished at the right time or in the right way.

[Cross-posted to TAPPED.]

Don’t Forget Orson Scott Card, Adam Yoshida, and Ted Nugent

[ 0 ] December 7, 2006 |

Shorter Verbatim Hugh Hewitt: “[T]he ISG did not find it necessary to talk with, say, Victor Davis Hanson, Lawrence Wright, Robert Kaplan, Mark Steyn, Michael Ledeen, Reuel Marc Gerecht, or Christopher Hitchens.” All superb choices who have exhibited exceptional judgment, wide learning on contemporary military affairs and rigorous logic throughout the conflict, but he’s forgetting the biggest exclusion of all: Trekkie Clausewitz Dafydd ab Hugh. And if ab Hugh wasn’t available, at the very least Glenn “Just Win, Babeeeee!” Reynolds should have played a major role.

I’m afraid I can no longer take this otherwise fine exemplar of High Broderism and Republican Fixerism seriously.

The Johnnie Walker Wisdom Running Low

[ 0 ] December 7, 2006 |

I know the war is going really badly, which leaves its (ostensibly) leftist supporters in something of an awkward position, but does Hitch really have to resort to the “women just ain’t funny” routine as the basis of an article? Pathetic, even for late-period Hitch. (On the merits, I believe that Belle has destroyed this argument and buried the pieces.)

Future Hitchens Vanity Fair columns will feature essays on leaving the toilet seat up, riffs on the driving styles of whites and African-Americans, and space-filling random pictures of the University of Wisconsin campus.

…See also Ann Friedman.

…And Echidne.

…And Shakes.

…And Sara.

They Pull Me Back In

[ 0 ] December 6, 2006 |

Having been admonished by several friends to stop wasting mental energy on such silliness, I’ve been trying desperately to avoid this situation. It hasn’t been easy, let me tell you. But I’m only human, and if you think I can stay away from quoting this follow-up, you’re probably nutty enough to think that it’s plausible that Jose Padilla (who was, you’ll remember, kept in solitary confinement) was being tortured to keep him from sending secret messages, possibly by playing the Judas Priest albums he stashes under his bed backwards:

He was on camera. In any case, quite aside from whether people have signals, if he could see, he could try to find people to communicate with. With the goggles on, he doesn’t know where he is or if any outsiders are in a position to see him. If he could see, he might at one point spot someone and — forget the code — yell out something… which we would all now be talking about.

My only point here — and mock me all you want, it doesn’t change it — is that it is at least possible that there was some reason to blindfold him that wasn’t about just trying to hurt or pressure him. The people who are saying it is impossible that there could be any other reason are the ones hanging on to a fiction. I’ve met my burden here. You’re just holding your fingers in your ears and screaming.

He could…try to find people to communicate with! The horror! (What he would yell and how this could damage national security, needless to say, go unexplained.) I’d also suggest that if Al Qaeda has a plan that requires videotape featuring precisely the right passage being leaked so that a prisoner in solitary confinement can communicate messages with his eyes, I think they need a new plan. Call me crazy, but I can’t say this scares me enough to throw the United States Constitution, the Magna Carta, and the rule of law itself under the bus. What I really like, though, is the “met my burden” line, so appropriate for the age of Yoo. (“Why hasn’t this American citizen been given a trial after being tortured for a year?” “Your honor, a trial is simply impossible. It cannot be proven to an absolute certainty that he wouldn’t use the positioning of his shackled feet to communicate messages to a race of all-powerful space aliens, informing them that it’s safe to devour our men and clothe our women in slutty high-cut Gap sweaters, where they will have no choice but to engage in objectively pro-Islamofascist breastblogging. We’ve met our burden.”)

And now, the punchline:

I don’t think you’re stupid. I think you’re a hardcore ideologue, so committed to your positions that you are willing to be dishonest.

Wow. If she could say that in this context, she’s probably the kind of person who would, with a blissful lack of self-awareness, berate people about writing long posts about substantive political issues while she can fill up screens at a time discussing American Idol and Project Runway. Oh, wait…

[Note: Mickey Kaus, Ralph Nader, and Derek Jeter were not mentioned in the making of this post.]

The Court and De-Segregation

[ 0 ] December 5, 2006 |

A quick follow-up to yesterday’s post:

  • Things do not, alas, look good for the de-segregation side in yesterday’s cases. With Alito replacing O’Connor, the only chance was Kennedy, who was extremely hostile, although Lithwick thinks that he’ll try to split the baby for future cases: “He will add that he looks forward to some future hypothetical case in which some school district somehow remedies racial imbalances without accounting for race.”
  • I would say that Patterico has climbed Originalism’s Ladder, except that not surprisingly he can’t be bothered to make a constitutional argument at all. I actually think that Publius is being too generous to such arguments when he says that “I suspect few of them thought the new amendment banned affirmative action-type preferences that disadvantaged white people because respectable opinion in 1868 wouldn’t have even conceived of such policies.” The Freedman’s Bureau, for example, seems to me a classic race-conscious remedy. So, really, I think affirmative action is like Brown: if originalism has any connection to concrete historical meanings, there is no originalist justification for striking the programs down. (Those interested in the nitty-gritty should see Michael Klarman‘s definitive takedown of claims that Brown can plausibly be defended in originalist terms.) And if all originalism means is that principles must be applied at a high level of abstraction, I’m not sure why we can ignore 19th century conceptions of education and distinctions between social and civil rights, but we have to remain bound to 19th century conceptions of “commerce.” To the extent that originalism has any content at all, the choice is between Brown and originalism; myself, I’m going with the former. But once you’ve reduced originalism to these kinds of broad abstraction, there’s simply no good reason to treat racial classifications used to ossify apartheid and racial classifications used to dismantle segregation as being equivalent. It is, regrettably, virtually impossible to remedy past segregation without being conscious of race, and I see no reason why the Seattle and Louisville program’s aren’t “reasonable.”

Stupidest. Sentence. Ever.

[ 0 ] December 5, 2006 |

Wow.

And, personally, I’m not willing to leave aesthetic judgments aside. What’s next, “Joel Scuhmacher is often referred to as the Orson Welles of his time?” “James Patterson is often called the Chekhov of his time?” “Kevin Federline is often referred to as the James Brown of his time?” “Ramon Santiago is often cited as the Honus Wagner of his time?” Yeesh.

Appalling on Every Level

[ 0 ] December 4, 2006 |

Lizardbreath lays out why the treatment of Jose Padilla is indefensible on every level:

We seem to be systematically ill-treating our prisoners in a way that doesn’t make any legitimate sense. If it’s punishment, it’s simply wrong because they haven’t been tried. If it’s for interrogation, it seems insanely excessive. If the argument is that “We are certain enough that Padilla had vital information that we are justified in confining him for years and treating him in any manner, no matter how psychically damaging not likely to cause organ failure in the hopes of extracting that information,” I really want that argument to be made explicitly. What do they hope to find out from these people? And if we’re claiming that the ill-treatment is necessary for security, that is patent nonsense. What was done to Padilla (and is being done to prisoners at Guantanamo) is obviously not necessary to keep them from escaping or hurting other people, and anyone putting forth that justification for blindfolding Padilla on his way to the dentist is either deceiving themselves or a liar.

This is all correct — and there’s an additional issue. Let’s assume, for the sake of argument, that Padilla was an extremely dangerous man who should have been locked up (although the government can’t actually substantiate the most serious charges against him.) As Andrew Sullivan points out, torturing Padilla is also counterproductive because it will make it extremely difficult to convict him. This kind of systematic mistreatment of prisoners is an utter disgrace on every level: moral, political, legal, and pragmatic.

(Cross-Posted to TAPPED.)

The 14th Amendment and School Desegregation

[ 0 ] December 4, 2006 |

I have a post up at TAPPED discussing “originalist” arguments in light of today’s Supreme Court case considering school integration in Louisville and Seattle. A follow-up question might be: “OK, Scott, since you’re not an originalist, why isn’t the Scalia/Thomas “color-blind Constitution” argument right, even if it contradicts their own stated jurisprudence?” Well, for the following reasons. First, I agree with Thurgood Marshall that the equal protection clause is most usefully construed as reflecting an antisubordination principle, and read this way it’s obviously implausible to see programs intended to remedy past discrimination as the constitutional equivalent of programs designed to entrench a racial caste system. And, second, on a pragmatic level, the brute fact that school segregation was largely crated and reinforced by state action makes race-conscious remedies, while suboptimal in a perfect world, necessary. The problem of school segregation has hardly been solved. The actions of the school boards here should be upheld.

Reprehensible

[ 0 ] December 4, 2006 |

Shorter Erick Erickson: It’s just a simple fact that Jose Padilla “plotted to blow up a radiological dirty bomb inside the United States,” despite the fact that the government doesn’t have sufficient evidence to even indict him for these charges. But because 9/11 was really horrible, the American state can arbitrarily detain and torture anybody they want–it’s logically impeccable! And anyone who opposes arbitrary state power is just pro-terrorist.

Needless to say, Treason in Defense of Slavery Yankee also agrees with Erickson’s fascist claims.

Torture In Our Names

[ 0 ] December 4, 2006 |

The destruction of Jose Padilla’s mind. It’s difficult for me to find the words to speak about this. Digby:

I know that all the tough guys on the right will say that Padilla is just being a typical whining malcontent but I have a feeling that most of them would crumble into blubbering babies after five minutes in his position. This treatment is extremely inhumane. They basically blinded, deafened and then isolated him, essentially destroying his mind. There is no reason on earth to put those goggles and earphones on him to go to the dentist in the prison in South Carolina except to keep him from ever feeling like a normal human being, part of the natural world. It’s sick.

But, although this kind of torture is unjustifiable in any case, at least the state has an ironclad case that he’s an extremely dangerous terrorist, right? Right?

Mr. Padilla was added as a defendant in a terrorism conspiracy case already under way in Miami. The strong public accusations made during his military detention — about the dirty bomb, Al Qaeda connections and supposed plans to set off natural gas explosions in apartment buildings — appear nowhere in the indictment against him. The indictment does not allege any specific violent plot against America.

Disgrace is much too weak a word here.

…Prof. B. has more. As does Greenwald.

…and GFR.

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