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There’s A Shocker

[ 0 ] November 21, 2006 |

Wondering where Marshall Wittmann would end up after the termination of his unreadable blog? The answer may not surprise you:

Two weeks after winning reelection as an independent due to losing Connecticut’s Democratic primary, Joe Lieberman has hired a former spokesman for the Christian Coalition as his new communications director, RAW STORY has learned. The new hiree also formerly served as a senior fellow at the Democratic Leadership Council (DLC), a legislative director for the conservative Heritage Foundation, and as communications director to Sen. John McCain (R-AZ).

Fifty-two year old political pundit and activist Marshall Wittmann is very popular with Washington journalists because he often “gives good quote,” according to a Washington Post profile from earlier this year.

My question: why would Lieberman pay for what he’s already getting for free?

"Why Would We Honor This Man? Have We Run Out Of Human Beings?"

[ 0 ] November 21, 2006 |

I’m very torn about this. As a fan, I was very, very pleased to see Jeter not win. The scholar in me sees this as idiocy even by the standards of AL MVP voters, in a league with Gonzalzes over Rodriguez or Bell over Trammell. I wish they had at least voted for Mauer, so it would be colorable, but Morneau is the third-best player on his own team. Ah well, Pasta Diving somehow has two Gold Gloves–live by irrational voters, die by another set of irrational voters.

This also makes clear that, while there has been a clear New York bias in Hall of Fame voting, there is if anything a New York anti-bias in MVP voting. The strange thing is that for most of his career Jeter has been staggeringly overrated–and yet he’s now probably been screwed out of two MVP awards.

Robert Altman, 1925-2006

[ 0 ] November 21, 2006 |

I was lucky enough to see a beautiful 35mm restoration of La Regle Du Jeu last week. The most obvious modern inheritor of the “open” filmmaking style invented by Renoir, Robert Altman, has died.

Altman was a risk-taker, and as is well-known this made him uneven. (Pauline Kael, one of his biggest critical supporters, said about the disastrous Quintet that “Altman has reached the point of wearing his failures like medals. He’s creating a mystique of heroism out of emptied theaters.”) But the upside is that he made a number of pictures that will be seen as long as people watch American movies. For me, the canon starts with the hauntingly lovely McCabe & Mrs. Miller, Nashville–his most successful Renoir-style social panorama–and the superb late-career Raymond Carver adaptation Short Cuts. And since any fan needs one, my favorite of his less-lauded pictures is California Split, his loose, amiable picture about happily degenerate gamblers. He was a giant of American film, and will be sorely missed.

Roy has an excellent tribute; I agree about The Gingerbread Man.

The Left weighs in.

…as does Randy Paul.

The "Undue Burden" Test: It Has Two Parts

[ 0 ] November 21, 2006 |

I have an article about the Supreme Court and the federal “partial birth” legislation up at TAP. I’d like to add something about the lack of connection between the legislation and any legitimate state interest, and what it says about the “undue burden” test:

Based on the court’s existing precedents, this bill should clearly be struck down. Planned Parenthood v. Casey held that the state cannot regulate abortion in a way that constitutes an “undue burden” on a woman’s right to choose, and Stenberg v. Carhart struck down a similar state statute as being inconsistent with Casey. As Justice Stevens held in the latter case, the law is so arbitrary it’s not clear that it would be constitutional even if abortion wasn’t a fundamental right. It is far from clear what rational connection the legislation — which, as Richard Posner has pointed out, bans an abortion procedure based on which way a fetus’s feet are pointing — bears to any legitimate state interest. Certainly it is not in any way related to the protection of fetal life. At oral argument, Solicitor General Paul D. Clement himself conceded “no woman would be prevented from terminating her pregnancy” because of this law. Moreover, to the extent that it has an impact on woman’s health, it’s a negative one.

Meanwhile, Roe and Casey clearly require a health exemption for a regulation such as this law, and the findings that Congress adduced to claim that the D&X was never medically necessary are, as both District Courts found, blatantly erroneous. And if the “undue burden” standard means anything at all, surely it proscribes legislation wholly unconnected to the preservation of fetal life or a woman’s health, and that in fact places women’s health at risk for the sake of sheer symbolism or political strategy. In Judge Posner’s words in Hope Clinic v. Davis, “if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.

Judge Posner understands–while Justice Kennedy, in his frankly bizarre claim to have been double-crossed, does not–that the “undue burden” test, to the extent that it has any content at all, is a two-part test. The Solicitor General mentioned again and again that other (if more dangerous) procedures would always be available, presumably to minimize the burden. And, indeed, the extra risk to women’s health might be acceptable if the state had some legitimate interest at stake. But it doesn’t–the statutes certainly don’t protect fetal life or woman’s health, and punishing women for sexual choices is neither asserted as an interest nor a legitimate interest under our current constitutional law. This is the same issue as the error Alito made with husband notification laws. It’s not just the “burden” that’s relevant–one must also consider whether the burden is “due,” and since common law conceptions of marriage have been discredited the state cannot have the same interest in husbands supervising and protecting wives as parents do with respect to children. “Partial birth” laws are even easier cases–if they’re constitutional, then the first word might as well be stricken from the test.

All The More Money To Promote Other Assholes Responsible For Many Deaths!

[ 0 ] November 21, 2006 |

Fortunately, the Murdoch empire, in a rare manifestation of good taste, has decided not to publish the “book” “written” by an illiterate who chopped off his wife’s head. However, as Steve points out ReganBooks will still have plenty of gems coming out next year:

* If I Helped Turn Iraq into an Open-Air Abbatoir for Human Beings, Here’s How It Happened by Douglas Feith
* If I Invented Ideological Ambulance-Chasing, Here’s How It Happened by Larry Klayman
* If I’ve Become Rich Spewing Bigotry and Enabling Some of the Worst Political Leaders on the Planet, Here’s How It Happened by Neal Boortz
* If I’m Responsible for the Rise to Power of the Worst President in American History, I’m Going to Avoid Talking About How It Happened by Ralph Nader
* If My Pomposity Back in the 1980s Helped Make It Acceptable for the United States to Openly Embrace Brutality Overseas, Here’s How It Should Happen Again by Jeane Kirkpatrick

I think you can see why she thought the O.J. book was a good idea–he’s roughly on the current moral level as these types, and you can imagine somebody actually buying his book…

Judicial Activism For Me

[ 0 ] November 20, 2006 |

Mitt Romney goes to the next step in his program against an out-of-control state judiciary that had the un-American arrogance to scrutinize legislative enactments for their consistency with the state constitution:

Gov. Mitt Romney said Sunday he would ask the state’s highest court to order an anti-gay marriage amendment question onto the ballot if legislators fail to vote on the matter when they reconvene in January.

Romney said he would file a legal action this week asking a justice of the Supreme Judicial Court to direct the secretary of state to place the question on the ballot if lawmakers don’t vote directly on the question on Jan. 2, the final day of the session.

In case you had any doubts that the procedural objections to state judicial decisions that favor gay rights are any less farcical than most claims that opposition to Roe v. Wade is about “federalism.”

Profiting From Domestic Violence

[ 0 ] November 20, 2006 |


Dear Judith Regan:

I’m leaning towards believing your explanation for why you would publish that murderer’s confession. Please consider putting your money where your mouth is and donate ALL NET PROCEEDS from the sale of OJ Simpson’s book to organizations that help women escape from living in abusive relationships.

Agreed. (Well, except for the “leaning towards believing her explanation” bit…)

…Worse, this is forcing me to agree with Christopher Hitchens. This is a good point:

Of the many things I can remember about the trial–one of them being a chat I had with a DNA specialist who told me the statistical odds against the blood being proof of guilt, which really weren’t “odds” at all–one detail that sticks in my mind was the incidental disclosure that Simpson can barely read or write. This is, in other words, not just a decision to publish “his” book. It is a decision, which must have been taken some time ago, to get such a book written and to get him to cooperate with it.

Seeing Through the "Federalist" Solution to Abortion

[ 0 ] November 20, 2006 |

Neil links to very detailed public opinion about abortion. In light of the previous discussion of John McCain, I was particularly interested in this:

“Do you think the question of whether abortion should be legally permitted is something that should be decided at the national level, or is it something that each state should decide for itself?”

National Level 55%

Each State 39%

Unsure 6%

This suggests that, even in the abstract, a surprisingly large percentage of the public recognizes the “federalism” evasion as the unprincipled dodge that it is. The other thing to say is that the majority of the public is, in this case, clearly right: the “leave it to the states” argument, even if it were serious, doesn’t make any sense. If you believe that the state has a sufficient interest in protecting fetal life to make abortion a serious crime, the “federalist” position makes no sense at all–it’s ridiculous to say that a fetus as largely analogous to a baby in Mississippi but is not protected at all if a woman boards a plane to New York. And if you don’t believe this, reproductive rights have been embedded in our constitutional law for decades, and if you don’t think the state has a substantially larger interest in protecting fetal life, these precedents are obviously applicable to abortion: it makes no sense to say that a woman has less interest in reproductive autonomy after she’s pregnant. So unless you think Griswold should be overturned–and the number of pro-choicers who believe this could fit in a phone booth–leaving abortion “to the states” is unacceptable. It’s nice to see that more people than I would have expected understand what the David Brookses of the world don’t.

McCain and Abortion: The Dance of Disingenuousness Continues

[ 0 ] November 19, 2006 |

John McCain has come out for overturning Roe. Frankly, I’m not sure what this tells us that we didn’t already know. McCain has already expressed support for the draconian ban in South Dakota, and voted to confirm Robert Bork and Samuel Alito. And in case inexplicable McCain apologist Jon Chait once again mentions that McCain “said that if his daughter wanted an abortion, he would leave the decision up to her,” I note that the fact that McCain wouldn’t dream of applying general bans on abortion to people in his social circles doesn’t make him a pro-choicer; it makes him a Republican. John McCain’s daughter won’t have a problem getting an abortion whether Roe is good law or not, but a lot of other women won’t be so lucky. Social conservatism for thee-but-not-for-me is pretty much what social conservatism means in this country.

And his justification for supporting the overturning of Roe is also classically dishonest:

MCCAIN: I don’t think a constitutional amendment is probably going to take place, but I do believe that it’s very likely or possible that the Supreme Court should — could overturn Roe v. Wade, which would then return these decisions to the states, which I support.

STEPHANOPOULOS: And you’d be for that?

MCCAIN: Yes, because I’m a federalist. Just as I believe that the issue of gay marriage should be decided by the states, so do I believe that we would be better off by having Roe v. Wade return to the states. And I don’t believe the Supreme Court should be legislating in the way that they did on Roe v. Wade.

It’s not just that the idea that overturning Roe would “return the issue to the states” is a pernicious myth, and invoking federalism is just question-begging, because if a fundamental right is involved preventing states from legislation isn’t necessarily an intrusion on the powers of states. (It’s the status of reproductive rights, not federalism, that does the important work here.) It’s more than that: nothing in McCain’s own record suggests that he thinks abortion should be left to the states. He had voted for nation-wide “partial birth” bans at least 6 times. He voted to deny the use of military facilities for women in the military who needed abortions. He voted for this year’s Fugitive Uterus Act. Indeed, given his 0% NARAL rating, he apparently has yet to meet a federal regulation of abortion he doesn’t like. So while I suppose it might be possible in the abstract to oppose Roe on “federalist” grounds, in McCain’s case it’s a pathetically disingenuous dodge. The brutal truth is that McCain clearly, unambiguously opposes abortion rights, and has no objection to federal restrictions of these rights, no matter what his centrist fans try to project onto him.

…and Lindsay reminds us that he supports a constitutional amendment banning abortion. I’m not sure if it’s the Human Life Amendment in the GOP platform–which would make abortion first degree murder in all 50 states–but it certainly renders the “federalism” dodge an even more ridiculous lie.

It’s important to get a yearly doctors exam to make sure there are no major issues with your health you don’t know about. Even if you are scared of various medical procedures and doctors it may behoove you to at least get the annual. Also if you are looking to take prescription drugs you need to talk to your doctor about your levels. If you’d like to buy prescription tenuate to lose weight you’ll have to carefully monitor your heart for example as diethylprion is a stimulant.

The Collapse of the Post-Brown Dream

[ 3 ] November 18, 2006 |

This story reminds me of something I’ve been meaning to talk about. Some New Jersey legislators are proposing that the state end “the special financing given to the state’s poor [school] districts.” Since this funding exists because the New Jersey courts found unequal school funding to be unconstitutional this hopefully won’t go through even if they try it, but it reminds us of the depressing situation that exists in far too many states.

Some history here. Earl Warren, as many of you know, resigned in 1968 so that LBJ could appoint his replacement, but LBJ screwed it up by nominating his long-time crony Abe Fortas to the position. (The problem wasn’t that Fortas wasn’t qualified–he was certainly far more able than the man Nixon chose instead–but that he had serious ethical problems.) Because Fortas had to resign soon after that, Nixon got two appointments right off the bat. This had less impact than one might think, partly because Blackmun ended up being a moderate and because Burger was such a catastrophic bungler that Brennan retained more influence that the court’s lineup would suggest. But one one issue it had a massive historical impact: school desegregation and equality.

The Burger Court issued two 5-4 decisions in the early 70s (both of which all 4 of Nixon’s appointees joined) that effectively ended the desegregation that the Court required in 1954 but (except for a brief period at the end of the Warren Court) never followed up on very assiduously. The first, San Antonio v. Rodriguez, upheld Texas’ system of funding its schools through local property taxes, ensuring that affluent areas would have much higher levels of funding (and also creating further incentives for white flight.) Thurgood Marshall’s dissent in this case is almost certainly the strongest opinion of his judicial career. And then, for the coup de grace Milken v. Bradley held a desegregation plan in Detroit could not involve the entire Metropolitan area unless it could be proven that every single individual school district (as opposed to the system in Detroit proper, which everyone conceded had an extensive history of intentional segregation) had engaged in de jure segregation. In a sense, calling this a retreat from Brown is too generous. Combining these two decisions, states were explicitly permitted to maintain school systems that were segregated and unequal. In his dissent, William O. Douglas connected the dots:

If this were a sewage problem or a water problem, or an energy problem, there can be no doubt that Michigan would stay well within federal constitutional bounds if it sought a metropolitan remedy….Here the Michigan educational system is unitary, maintained and supported by the legislature and under the general supervision of the State Board of Education. he State supervises schoolsite selection. The construction is done through municipal bonds approved by several state agencies. Education in Michigan is a state project with very little completely local control, except that the schools are financed locally, not on a statewide basis. Indeed the proposal to put school funding in Michigan on a statewide basis was defeated at the polls in November 1972. Yet the school districts by state law are agencies of the State. State action is indeed challenged as violating the Equal Protection Clause. Whatever the reach of that claim may be, it certainly is aimed at discrimination based on race.


Today’s decision, given Rodriguez, means that there is no violation of the Equal Protection Clause though the schools are segregated by race and though the black schools are not only “separate” but “inferior.”

So far as equal protection is concerned we are now in a dramatic retreat from the 7-to-1 decision in 1896 that blacks could be segregated in public facilities, provided they received equal treatment.

…there is so far as the school cases go no constitutional difference between de facto and de jure segregation. Each school board performs state action for Fourteenth Amendment purposes when it draws the lines that confine it to a given area, when it builds schools at particular sites, or when it allocates students. The creation of the school districts in Metropolitan Detroit either maintained existing segregation or caused additional segregation. Restrictive covenants maintained by state action or inaction build black ghettos. It is state action when public funds are dispensed by housing agencies to build racial ghettos. Where a community is racially mixed and school authorities segregate schools, or assign black teachers to black schools or close schools in fringe areas and build new schools in black areas and in more distant white areas, the State creates and nurtures a segregated school system, just as surely as did those States involved in Brown v. Board of Education, when they maintained dual school systems.

This is all correct. The distinction between du jure and de facto discrimination in cases such as this is one without a difference. The state, which is bound by the 14th Amendment, is responsible for drawing largely racially homogeneous school districts, and funding them unequally. And when the sanctity of district boundaries are transcended for countless other reasons the sophistries Burger piled on top of one another are particularly apparent. But, at any rate, the Court had ruled that states could insulate themselves from having to desegregate their schools as long as they had suburban districts that themselves didn’t have a history of explicit segregation (often because residential segregation meant they didn’t have to.)

The result of this is that the school system in Detroit is still essenitally segregated today. Make sure to scroll to the numbers at the end. Keeping in mind that the Dissimilarity Index of schools in the South in 1968 was about 83, these numbers are a national (and, to me, local) disgrace. Detroit, Chicago, New York, Cincinnati, Newark, and Cleveland remain above 80, even higher scores than Birmingham (and in many of these cases the trends are getting worse, not better.) New York state, at least, has a court order requiring equal funding, but it hasn’t been implemented yet. More than 50 years after Brown, American schools in many cities remain largely segregated, and in many cases there are egregious disparities in resources and other measures of quality as well.

If Aaron Sorkin Wrote A Show About Baseball

[ 0 ] November 18, 2006 |


"Mort, Why Don’t You Throw Out The First Sexist Slur?"

[ 0 ] November 18, 2006 |

I’ve always wondered exactly who was supposed to represent “the left” on The Beltway Boys. I think according to O’Reilly Kondracke is the Trotskyite to the Beetle’s center-left…

Anyway, on the substance I think we can all share Mort’s shock that a congressional leader would try to influence the votes of the caucus for other leadership positions. This kind of thing would never happen if Sam Rayburn or Newt Gingrich were still in charge! Damned women, they screw everything up.

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