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"That’s some catch…"

[ 0 ] July 7, 2007 |

6 CA upholds the warrantless wiretapping program 2-1…on standing grounds. Great; the prefect ruling for the age of Yoo. The secrecy of the arbitrary executive insulates even the illegal actions of the arbitrary executive from judicial scrutiny. Call me defeatist, but this also sounds like exactly the kind of feeble dodge that Kennedy is going to buy.

The Problem With Game Theory in Constitutional Theory

[ 0 ] July 6, 2007 |

Of limited interest to those of you who aren’t constitutional scholars and/or social scientists, but since I’ve had to read way too much of this literature thought I’d let you know that X. Trapnel makes the case effectively.

Was Article III Repealed Earlier This Week?

[ 0 ] July 6, 2007 |

Many bloggers have already taken whacks at the non-argument, made by Alan Dershowitz and recycled by Marty Peretz, that the Libby conviction was a political conspiracy by conservative Republicans against other conservative Republicans. Obviously, having set this standard of stupidity nothing can really top it, but I was also struck by this claim:

Only President Bush’s political judgment was constitutionally sanctioned, and that is because clemency and pardon are explicit rights of the chief executive.

Uh, what? Since when do federal courts duly created by Congress not have the constitutional authority to pass sentences (that fall within the George Bush approved federal sentencing guidelines!)? What constitutional provision requires appellate courts to grant bail on appeal to every convicted individual? Help me out here.

Politics: About Conflict

[ 0 ] July 6, 2007 |

To follow up on what Thoreau says here, it’s remarkable that people like Ignatius fail to even consider the possibility that Americans won’t just “pull together and take appropriate steps to prepare for future terrorist attacks on America” because people have serious substantive disagreements about what steps are appropriate. Some people, like Ignatius, believed that the appropriate response to 9/11 included replacing a secular dictatorship which had no connection to 9/11 and posed no significant security threat to the United States with an Islamist quasi-state, which would improve American security because…[insert transparently idiotic non-sequitur, preferably expressed in a gambling metaphor, here.] Then you had rational people who thought that terrorism, once Al Qaeda’s sponsors in Afghanistan had been removed, was not a problem that could be solved primarily through military action but would require collaboration, intelligence, policy work — all that much-derided stuff that, you know, actually prevented the terror attacks in Britain. And to borrow a point from Stephen Holmes’s new book, some people simply assume that increases in arbitrary executive power and reductions in transparency automatically increase security; there are others, call them “liberal democrats,” who are skeptical that unconstrained and unchecked power leads to more effective decision-making.

And so on. At any rate, there’s nothing about another terrorist attack that would make these disagreements go away, and it’s not just about partisan politics. Politics is about people with fundamentally differing views. And if “getting serious” means doing all the egregiously counterproductive things that Ignatius wanted to do after 9/11, I’m happy to remain unserious and not join into his sense of “shared purpose.”

The Unconnected

[ 0 ] July 5, 2007 |

With respect to the disgraceful Libby commutation, Laura of 11D provides some interesting data about how likely a petitioner not connected with the Bush administration is to get a pardon or commutation by historical standards. On an individual level, a recent Supreme Court case provides another example. In Rita v. U.S., the Supreme Court recently held that sentences that fall within the (now merely advisory) federal sentencing guidelines can be presumed to be reasonable on appeal without violating the Sixth Amendment right to a jury trial. The man whose appeal failed, Victor Rita, is a man (unlike, say, Scooter Libby) with a genuinely distinguished record of public service: “lengthy military service, including over 25 years of service, both on active duty and in the Reserve, and Rita’s receipt of 35 medals, awards, and nominations.” The sentence that was upheld? 33 months for perjury, making false statements, and obstructing justice. Anyone think he’s getting a commutation or pardon from Bush? I think it’s safe to say you have to be part of a conspiracy to burn a CIA agent in order to further a grossly dishonest case for a disastrous war to merit that kind of attention…

Whew, and I Thought It Was Piece of Crap Based on A Toy Commercial!

[ 0 ] July 5, 2007 |

You will be happy to know that Libertas, home of Conservative Thought (sic) About Film (sic) has screened the latest Michael Bay joint and declared in free from wrongthink.

Another amusing thing about this outpost of wingnuttia is that they don’t really understand capitalism. They are, of course, committed to the idea that the public is completely turned off by all the left-wing propaganda (except for all the extremely popular right-wing films like Transformers, America’s Heart and Soul, and The Great Raid, but…well, nobody’s ever accused them of being rigorous thinkers. Or thinkers at all…) The difficulty of that narrative is that the studios are actually raking in more money (and, indeed, they’re so committed to this narrative that they’ve predicted 15 of the last one declines in revenue.) The solution? Ignore revenues and focus on attendance. Now, someone with any understanding of economics might note that studios are trying to maximize revenues, not attendance, so if higher ticket prices mean more net money a drop in attendance is worthwhile (and, of course, if ticket prices were cut in half and attendance therefore went up this wouldn’t prove that movies are more popular in any substantive sense, and in particular wouldn’t prove that the public is now excited by Hollywood’s allegedly left-wing offerings.) This is one of the problems with letting hack supply-siders write about movies, I guess…

…the screenwriter (and terrific liberal blogger Kung Fu Monkey) speaks

And Now, The Punchline

[ 1 ] July 4, 2007 |

Photo Sharing and Video Hosting at Photobucket

Fred Hiatt is the editorial page editor of The Washington Post.

The Washington Post sums up the sharp rightward turn made inevitable by the judicial nominees whose confirmation they endorsed: “the outcome was simultaneously unsurprising and disappointing.” I must admit I’m not sure why you would be “disappointed” by something that’s “unsurprising”, but hopefully they’ve learned a lesson about basing one’s evaluation of judicial nominees on meaningless confirmation-hearings banalities (and pure wishful thinking) rather than a focus on the relevant aspects of their actual record. I suspect, however, that this lesson will last exactly until the next Republican Supreme Court appointment.

The Emosogynist

[ 0 ] July 4, 2007 |

Sara, pointing to this emailer warning his long-suffering ex-girlfriend that she’ll never find anyone who’s just so darn nice about “jokingly” threatening physical abuse and sending pictures of his dick to Craig’s List, suggests that the term “emosogynist” replace “Nice Guy (TM).” However, I think the latter term is too useful to be abandoned; rather, the emosogynist could perhaps by an additional subcategory within the classic typology.

A Genuinely Terrifying Thought

[ 0 ] July 4, 2007 |

Movies by the two worst directors regularly given major American studio projects who aren’t Joel Schumacher have recently opened. And yet, I think I would sit through either of their movies 10 times before sitting through the new unspeakably appalling-looking Robin Williams showcase once. (It’s a heatwarming ode to moralistic busybody conformism! With an exceptionally annoying priest played by a beyond-washed-up indiscriminate-script-approving comedian! Whose 60 second preview is painfully interminable!) Tony Scott argues that it’s even worse that the previews make it look, and I believe him. (Shudder.)

…speaking of Shadyac a commenter points us to this list of “10 Directors You Didn’t Know You Hated.”

The Frontrunner

[ 0 ] July 3, 2007 |

Romney ahead in New Hampshire. This reinforces my belief that the GOP race is basically between Romney and Thompson, and I’m not ready to hand things over to the latter yet.

A Last Word on Affirmative Action and Originalism

[ 0 ] July 3, 2007 |

On the issue of affirmative action and the alleged principled “originalism” of the Court’s conservatives, Simon Lazurus has a very good summary:

On the contrary, as legal and historical scholars — 60 of whom signed an amicus curiae brief to the Court — have exhaustively demonstrated in scores of books and scholarly articles, Reconstruction Congresses, in addition to adopting the Thirteenth, Fourteenth, and Fifteenth Amendments, aggressively promoted racial integration as a goal and deployed race-conscious measures to achieve it. They provided for special payments to “colored” soldiers to ensure they were compensated for service to the Union; established a bank to provide financial services to “freedmen and their descendants;” passed numerous race-conscious anti-poverty measures; and, most important, created the Freedman’s Bureaus to fund school construction and other education programs specifically for blacks. All these measures were enacted over objections, including vetoes from President Andrew Johnson, that marshaled precisely the arguments made today by opponents of school integration programs like those deployed in Seattle and Louisville.

Principled conservatives acknowledge that the Reconstruction generation “originally” understood the Fourteenth Amendment to promote equality for blacks and posed no ‘absolute,” across-the-board bar to race-based classifications. Chief Judge Michael Boudin of the First Circuit Court of Appeals, a widely respected Bush I appointee, observed in a 2005 case that a Lynn, Massachusetts integration plan similar to those in Seattle and Louisville “is far from the original evils at which the Fourteenth Amendment was addressed . . . [which were] the oppression of one race by another.” In the Seattle case itself, in the Ninth Circuit decision under review by the Supreme Court, Judge Boudin’s approach was endorsed by prominent conservative and Reagan appointee Alex Kozinski.

It’s simply overwhelmingly clear that the 14th Amendment was understood as permitting race-conscious policies far beyond the extremely narrow of category of policies Thomas and Scalia would consider “remedial,” and at any rate accepting the policies of Reconstruction makes it abundantly clear that we’re not debating about a “color blind Constitution” (cf. also Scalia and Thomas’s belief in the constitutionality of racial segregation in prisons.) Scalia and Thomas have never bothered to even try to mount an “originalist” defense of their position on affirmative action and to defend their vacuous soundbites about a “color-blind Constitution” because you can’t.

On Pardons

[ 0 ] July 3, 2007 |

Thers makes a comparison.

As I’ve mentioned before, I actually think that the narrow issue of not granting a pardon to Karla Faye Tucker (as opposed to his conduct afterward and his general attitude towards the death penalty) constitutes one of the few times that Bush has acted with any integrity. The pro-death penalty conservatives who wanted Tucker pardoned were advancing a truly indefensible and indeed disgusting position; if people don’t feel comfortable with executing attractive Christian white women, the only acceptable solution is to abolish the death penalty, not to reserve it for poor black men. As Matt says, the Libby pardon presents an excellent example of why use of the arbitrary pardoning/commutation power is generally a bad idea, and the fact that its use has declined is a good thing in general. Connections and publicity end up mattering more than the merits, and if we’re not willing to apply draconian punishments to certain individuals we shouldn’t apply them to anybody. How often has Bush used this power to exempt anyone who isn’t a political ally from punishment?