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On the Reverse-Filibuster

[ 0 ] July 17, 2007 |

I have to admit that I think Henley is probably right here:

I confess a suspicion that the Dem leadership is counting on not getting an up-and-down vote. There’s a decent chance that some of the Senators happy to vote for a cloture motion they know is doomed to lose will be unwilling to vote for a troop drawdown they know could win. And then what will we tell the netroots? Thirty hours of theater that ends in another unsuccessful cloture vote is the safe-sex version of defunding the war.

I don’t really think that this is Reid’s fault, per se; this kabuki is probably the best way of communicating opposition to the war given that he doesn’t have the votes to stop. But it remains depressing.

The Hilzoy Curve(s)

[ 0 ] July 17, 2007 |

Some applications of the econometric innovations of Dow 36,000 co-hack Kevin Haslett.

Yoo Tortures The Law Again

[ 0 ] July 16, 2007 |

He’s back, with another crackpot theory justifying arbitrary executive power in defiance of the plain language of several constitutional provisions as well as the structure and underlying theoretical basis of the Constitution.

As Stephen Holmes points out (and expands on in his new book), it’s not just that Yoo believes as a normative matter — contrary to the fundamental principles of liberal democracy– that power is most effectively deployed when it’s secret and unchecked, but his farcical attempts to locate the monarchical executive in the original meaning of a Constitution that (although it leaves the precise contours of executive power vague) plainly cannot support such a reading:

The Framers charged the President with protecting the nation, he tells us, “even if that meant fighting with the legislature to enforce the desires of the people.” True to their British heritage, Yoo also asserts, the Framers modeled the President’s war powers on those of King George III. They therefore refused to grant Congress even a concurrent power to commence war. At its core, the Constitution embodies the Framers’ intention to prohibit Congress from “encroaching” on the executive’s power to initiate as well as conduct war.

To make his contrarian claim ring true, Yoo whites out contrary evidence and draws dubious conclusions on the basis of fragmentary and carefully selected facts. He disregards the main thrust of the historical record and misrepresents the parts he acknowledges. He ferrets out (and exaggerates the importance of) scattered shreds of evidence that, at first glance, seem to back up his predetermined narrative. This cherry-picking of the sources may explain why he fits so comfortably into an administration known for politicizing intelligence, smothering doubts, silencing critical voices and fixing the facts around the policy.

But why would an aspiring legal scholar labor for years to develop and defend a historical thesis that is manifestly untrue? What is the point and what the payoff? That is the principal mystery of this singular book. Characteristic of The Powers of War and Peace is the anemic relation between the evidence adduced and the inferences drawn. The footnotes and citations teem with ambiguity and complexity, while the summary statements snap dogmatic simplicities. For instance, in a section devoted to the powers of war and peace in various state Constitutions, between independence and the ratification of the Constitution, Yoo uses selective citation to convey the impression that state executives not only possessed substantial foreign-policy powers but were also, when commanding the state militias, freed from any obligation to act according to laws passed by state legislatures. That his case is wobbly on both counts is the least that might be said. But what makes his misleading account additionally baffling is that he cites without comment the very provisions in several state Constitutions that deny the executive branch any power to act except “under the laws” passed by the legislative branch.

Even by the standards of this administration, Yoo is an embarrassment.

Great Moments In Cafeteria Catholicism

[ 0 ] July 16, 2007 |

I have a follow-up post on the Troy Davis case at TAPPED. Among other things, I discuss the famous Scalia concurrence in which he asserts that there is no constitutional right to bring evidence — no matter how compelling — of actual innocence after one had been validly convicted of a capital crime. But why worry?

I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.

Whatta card! And, of course, the governor will meanwhile claim that no actually innocent person could ever be convicted and have this conviction upheld for one whole round of federal habeas appeals — state criminal defendants, of course, never have anything but the best legal representation! — and round and round we go and before you know it some innocent person will be executed.

While We’re Flashing Back

[ 0 ] July 16, 2007 |

This discussion of Brookings Institute Fellow For Disastrous, Counterproductive Foreign Interventions and Bush Administration Apologism Michael O’Hanlon reminds me of my very favorite “liberal hawk” argument defending the surge, this comedy classic from Jeffrey Herf:

If the Democratic party’s national leadership continues in its opposition to the strategy Bush has just announced, and if, against expectations, that strategy is successful, Democrats may look forward to another decade or more of losing Presidential elections.

And if you don’t give my $50,000 right now for a share of my Mega Millions ticket, you’ll look really stupid when I win!

The Perot Myth

[ 0 ] July 16, 2007 |

I have to agree with Michael against Chris Clarke that I don’t see any basis for the assertion that the post-1992 Republican strategy was to “find out what the disaffected [Perot voters] wanted that the GOP failed to offer, and offer it.” If the Republicans became the party of deficit reduction and protectionism, they have certainly kept it well hidden. (Although on only one of Perot’s two key issues, Michael is right that there’s a better case that Clinton co-opted Perot voters.)

In addition, I think it’s worth nothing that the claim that Perot cost Bush the 1992 election is really not even “arguable.” Perot’s support was much more cross-cutting than Nader’s, and the only state polling data indicates may have flipped to Bush in Perot’s absence was Ohio — which would have left Clinton with a 150 electoral vote margin. There’s no serious empirical basis for the assertion that Perot plyed a decisive role in the 1992 campaign.

…In comments, Rick Perlstein points us to this book, which he says supports Chris’s claims. I admit to being skeptical about the first claim — I really find it hard to believe that Perot swung well over 100 electoral votes, but maybe they have data I haven’t seen — but it is certainly plausible that the GOP was thinking about these voters when crafting the Contract On America. (Of course, there’s also little evidence that the COA had a substantial impact on the election, but at least narrowly Chris’ point was just about what the GOP was trying to do. And evidently it also doesn’t follow that chasing 17% of the electorate isn’t more potentially profitable than chasing 3% of the electorate.) Anyway, I’ll check it out.

The Democrats and Habeas Corpus

[ 0 ] July 16, 2007 |

Nicole Belle notes that a large number of Democratic Senators haven’t co-sponsored the Habeas Corpus Restoration Act; this doesn’t mean that they will oppose it, of course, but it would be nice to see a more robust list.

Speaking of which, Bean notes below that “because of a recent (1996) law ‘intended to streamline the legal process in death penalty cases, courts have ruled it is too late in the appeals process to introduce new evidence and, so far, have refused to hear it.’” I’m inclined to think that the AEDPA is the worst legislation Clinton signed into law during his tenure, even worse than DOMA (although both are obviously horrible.)

Sunday Links and Brief Comments

[ 0 ] July 15, 2007 |
  • Publius has some sympathy for John McCain’s profound yet futile humiliation and self-abnegation. I do feel it with respect to his daughter; politics requires you to make alliances with ugly people and forget ugly tactics. But where any sympathy I had for McCain vanishes with his reprehensible legitimazation of the Bush administration’s torture and gutting of habeas corpus. It’s not even as if he just quietly sold out; he provided invaluable cover by claiming he wouldn’t compromise and then abjectly selling out. (The irony, of course, being that his preening meant that he would get no credit from the pro-torture-and -arbitrary-power base anyway, so he sold out for nothing.) To hell with him.
  • Some apologist for the new gilded age claims of St. Derek of Pasta Diving that “I cannot find another ballplayer with that same set of skills.” Yeah, unless he turns to his right and sees the player with vastly more impressive offensive and defensive skills…
  • Aspazia is a new mother.
  • Zuzu, ex of Feministe, has a new blog.
  • Albini speaks! Quite interestingly. (Via Wolfson.)
  • Scott McLemee points out that a central issue of the “Late Night Shots” clowns is that exclusivity fails if nobody else actually wants to be a member. This reminds me of the appalling Details article asking “is it OK to demand anal sex?” (Categorical answer, regardless of sex act in question: “No.” You’re welcome.) The point is not that it cannot be mutually enjoyable for many people, but to this particular subset of assholes “mutually enjoyable” would seem to defeat the purpose. As Amanda correctly notes, this is a classic example of patriarchy being bad for everybody, insulting to men as well as women.
  • Liberal or patriotic? According to SIRUS, this is a fair question….

Today In Strawman Building

[ 0 ] July 14, 2007 |

HTML points us to this post by digamma. HTML says he “has” me, which is kind of strange because I basically agree with this:

No one on the left ever dreamed that Clinton would create a major progressive domestic policy shift. The most they ever hoped for was that he wouldn’t actively push conservative policies. And he fell well short of that goal.

The Telecommunications Act? Communications Decency? Antiterrorism? Welfare reform? These were all passed with Clinton’s signature and, with the POSSIBLE exception of welfare reform (on which he waffled repeatedly), with his enthusiastic support. You can’t blame the Constitution for that.

How about we compare this to what I actually wrote:


This also comes up a lot in debates with my Naderite friends, but while there are any number of valid critiques of Clinton, to attack him for not achieving any major progressive initiatives after 1994 is bizarre; with a Republican Congress this simply wasn’t a possibility.


digamma and HTML, in other words, simply misread the post. I never said that Clinton was beyond criticism — indeed, I specifically said otherwise. What I actually said was that Clinton couldn’t be criticized for not being able to singlehandedly pass major new progressive initiatives, which digramma concedes. If we’re talking about DOMA, the Telecommunications Act, the Antiterrorism and Effective Death Penalty Act, etc., criticize away; I certainly have. But his comment was a non-sequitur, and the claim that I’m “moving the goalposts” by pointing this out bizarre.

Precious

[ 0 ] July 14, 2007 |

Reports on the credibility and journalistic standards of dead-ender hero Michael Yon…are not promising. Which I supposes goes without saying. (I think the definitive warblogger moment was Judy Miller being invited at the keynote speaker at the Pajamas Media launch party. They don’t want good reporters; they want Bush administration propagandists and stenographers.)

Why Do Liberals Reject Reality?

[ 0 ] July 13, 2007 |

Kevin Drum, writing about the Most Dishonest Editorial Ever, argues that “a junior high school geometry student would be embarrassed to produce work like this.” Apparently he hasn’t gotten the latest memo from the Intellectually Serious Yoosta-Bees of the blogosphere — everything that appears in any part of the Wall Street Journal must be accepted as the unquestioned truth, even when it’s a highly unpersuasive defense of a policy written by the wife of the policy’s architect! I hope Kevin will correct the record.

Meanwhile, Ezra asks if the Journal‘s op-ed pages are so mendacious and destructive that it may be worth sacrificing the terrific news pages that lend them unearned credibility. I don’t think I agree, but I admit that it’s tempting…

Sawicky: “This…is the dumbest thing I’ve ever seen, and I’ve seen a lot.”

Black Years in the Clinker

[ 0 ] July 13, 2007 |

Lord Conrad facing 35 years. I’ve never had much sympathy for someone who is so desperate to be part of an anachronistic manifestation of illegitimate hierarchy he would renounce his Canadian citizenship anyway…