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Care To Make It Interesting?

[ 16 ] March 23, 2008 |

In wake of a single poll showing Obama with a 7-point lead, Jamie Kirchick asserts that “with a moderate Republican nominee and Barack Obama as the Democratic candidate, there’s an even chance that Massachusetts will go red.” Uh, yeah. I very, very strongly urge the RNC to take this seriously and throw everything they can into the race, accompanied by strong expenditures of resources in California, New York, and Vermont. After all, this would be consistent with the brilliant strategery of Karl Rove!

At times like this, I think that pundits should be forced to have an Intrade account that can be used to back up transparently ridiculous predictions like this.

…and, of course the idea that McCain’s “Scots-Irish” background will help him among Irish Catholic voters in Massachusetts is equally bizarre.



[ 16 ] March 22, 2008 |

Exactly right:

Meanwhile, you need to put Iraq in strategic context. The goal wasn’t merely to topple Saddam, but to intimidate other “rogue” regimes by creating a credible threat to take them out too. That meant that something like a 350,000 troop, 15-year commitment wouldn’t achieve the goals of the policy. It wasn’t “incompetent” for Bush, Cheney, and Rumsfeld to have rejected those methods; the rejection followed directly from what they were trying to accomplish.

And this is why the strategy (especially beloved by liberal hawks) of claiming that this was “really” a war about liberating the Iraqi people and not about the Grave Threat posed by Saddam’s Model Planes Of Terrah has always been a non-starter, because the former war simply wasn’t on the table and never was. The former would have been a bad idea too, because we know nothing about how to create a stable democracy ex nihilo in an institutional context as unfavorable as Iraq, but it’s beside the point because it was simply never an option. Defenders of the war were defending Bush’s war being run by people appointed by George Bush for strategic reasons valued by Bush and Cheney, period.

In the Bag

[ 4 ] March 22, 2008 |

Since ignoring the fact that John McCain hasn’t released his tax returns while complaining that Hillary Clinton hasn’t isn’t quite enough, ABC News “chief investigative reporter” Brian Ross decided to just make stuff up and claim that McCain had released his returns.

The next few months of watching the media ride on the Straight Talkitude Express are going to be depressing as all hell.

Why Did We Get It Right?

[ 3 ] March 22, 2008 |

An op-ed for an alternate universe in which people who were actually right about the Iraq War received a significant media platform, as opposed to giving space to those who regret having supported the war because it will make it less likely that we’ll fight the next crazy war (in the context of claiming that you’ve learned your lesson about assuming that razing a government will allow a better one to magically appear in its place like night follows day!)

Quite A Lot, Actually

[ 22 ] March 21, 2008 |

Kevin Drum asks: “Two Democrats, two committed Christians. So what’s it gotten them?” Well, in the case of Clinton, the answer is that she’s become a popular Senator of a large state and a close runnerup to be candidate for President, but…had a mean blog post written about her by Barbara Ehrenreich. In the case of Obama, he is similarly legislatively situated and will be the favorite to win election as the President of the United States, but there has been some controversy about statements made by the pastor of his church. Seems like a strong net positive to me, especially when you consider that neither of them would be viable presidential candidates if they were atheists.

This brings me back to what’s always puzzled me about what such arguments about religion in the Democratic Party are actually advocating. If the argument is that religious believers should be treated respectfully and that national Democratic politicians should discuss their faith where appropriate, I agree — but since this is already the case I’m not sure what we’re arguing about. If the argument is that religious beliefs and arguments by public figures should be essentially exempt from criticism — including, apparently, from progressive journalists with a distant-to-hostile relationship with the Democratic Party — this is both impossible and undesirable. The answer, it seems to me, is that it’s fine for politicans to bring up their faith and to make religious arguments, but there’s no reason that this should be somehow exempt from scrutiny from the press and the public in a way that secular appeals are not.

The Individualized Second Amendment

[ 46 ] March 19, 2008 |

The first question about the D.C. gun case is, how will they rule? Reporters who observed the oral argument today seem nearly certain that 1)a majority of the Court will find some individual right to gun ownership in the Second Amendment, and 2)the D.C. gun ban will be struck down. All observers also point out that most of the interesting questions will come in the scope of the Second Amendment rights identified by the Court: what kind of regulations short on an outright ban of a large class of gun might pass constitutional muster? Given the minimalism that tends to characterize the late Rehnquist and Roberts Courts, my guess is that they will say very little about how the newly identified right will apply in future cases. (Scalia’s dismissal of Dellinger’s claim that finding an individual right would make it harder to ban machine guns or armor-piercing bullets makes it unlikely that even he will press for a particularly broad rule.)

The other question is whether this is a good thing. As with most constitutional issues of any interest, the text is unclear and can plausibly support both positions, so we’re left with a largely pragmatic judgment. I don’t really have a problem with where the Court seems headed. At least in a context of a federal system where weapons can be easily acquired right outside District limits, it’s hard to argue that the D.C. ban is an especially effective public safety measure, and it’s a very broad restriction. And although I’m often skeptical of minimalism, I think in this case leaving future cases open to particularized judgments that balance Second Amendment rights against the reasonableness and effectiveness of regulations makes a lot of sense.

The Civil Union Question

[ 5 ] March 18, 2008 |

Yesterday’s Times article about the inequities of civil unions is indeed important reading. In many contexts, obtaining civil unions is an improvement on the status quo, but it’s also important that civil unions haven’t produced marriage-in-all-but-name but in practice seem to fall short of equality. For state courts considering the question, such inequities seem relevant to whether civil unions (as opposed to equal marriage rights) can be consistent with the equal protection of the laws, especially since the legislative entrenchment of gay marriage in Massachusetts makes assumptions that civil unions will provoke much less backlash than actual equality quite questionable.

More On Decriminalization

[ 14 ] March 18, 2008 |

Kerry Howley responds to my post on feminist-libertarian arguments for legalizing prostitution. Given Amanda‘s (also quoted by Ann) take, she has a fair point in noting that my isolated quote created a misleading impression about her post. I definitely didn’t read Howley as ignoring the realities of prostitution or focusing on (what she concedes to be unusual) women who become sex workers because they “love sex enough to make a career out of it.” Rather, I took her to be arguing that an additional problem with criminalization is the reinforcement of stereotypes about female sexuality and the problems inherent in legally constituting sex workers as victims. I don’t think either of these are trivial concerns by any means. I still don’t think, however, that they would be in and of itself sufficient reasons to legalize prostitution. I’m not sure that the constitutive effects are that strong in this case (although it’s a very difficult question to answer) and on the more tangible question I’m very much unconvinced that criminalization in itself is a major variable in pushing the most desperate women into sex work. (If data were to show that prostitutes in Nevada had a significantly different class profile than prostitutes in other states, I would re-examine the question.) And while the law is a crude instrument that in some measure has to treat differently situated workers similarly, this is something I’m willing to live with if the benefits outweigh the costs. The maximum hours laws struck down in Lochner may well have genuinely restricted the freedom of a few bakers who weren’t financially desperate and fully understood the risks and would have chosen to work the overtime even if they had more bargaining power, but when the health of workers is involved it’s fair for the state to base regulations on the rule, not the exception.

So I would be willing to support the criminalization of prostitution if I thought it worked (i.e. that it generally protected sex workers from exploitation.) Where I still pretty much agree with Howley’s bottom line is that I don’t think it does, and that singling out sex workers for unique “protection” (with futile attempts to ban some jobs outright rather than intelligent regulation) is difficult to justify without smuggling patriarchal Sex Is Sacred, Especially Where Virtuous Women Are Concerned assumptions into the argument. I still think the best alternative would be for states to experiment with different decriminalize-and-regulate approaches, backed up by strong federal enforcement of anti-trafficking measures. And I think we can all agree that he status quo in most states — the arbitrary enforcement of outright bans with more focus on sex workers than their clients — is indefensible.

Florida Primary Vote

[ 43 ] March 18, 2008 |

…regrettably, won’t happen this cycle.

I wouldn’t say that this changes anything much about the outcome of the Democratic race; Clinton had essentially no chance before this, and she still has essentially no chance. Obama will win the pledged delegates easily, delegates from the Florida straw poll will not be a decisive factor, and the vast majority of superdelegates voting to overturn this lead is Not. Going. To. Happen. (Obama is now almost certain to win the popular vote as well, although why this is supposed to be an important factor in a race in which obtaining the most popular votes per se isn’t the goal, states use radically incommensurate systems, and some states don’t even report popular vote totals I can’t tell you.) This latest example of Florida electoral ineptitude, however, may make the obvious apparent to a greater number of people.


[ 26 ] March 17, 2008 |

Kristol smears Obama. It’s almost as if hiring a unscrupulous propagandist famous for thoughtful analysis of why the editors of your paper belong in prison for revealing illegal government behavior has its downside!

The Chamber Of Commerce Court

[ 8 ] March 17, 2008 |

Jeffrey Rosen’s article about the pro-business court — the Chamber of Commerce’s “litigation center filed briefs in 15 cases and its side won in 13 of them” — is very much worth reading. It’s worth being reminded, again, that although court watchers tend to divide the Court into symmetrical groups of “liberals” and “conservatives” there’s no Marshall or Douglas or Brennan on the current Court, as evidenced by the Chamber’s enthusiastic support of Ginsburg and (especially) Breyer. It’s instructive that the Court’s two Democratic appointees are no more liberal than its two Rockefeller Republicans.

I do think some parts of the general assessment of the Court that starts this analysis should be qualified:

What should we make of the Supreme Court’s transformation? Throughout its history, the court has tended to issue opinions, in areas from free speech to gender equality, that reflect or consolidate a social consensus. With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business. Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception. It should come as little surprise that John Roberts and Stephen Breyer, both of whom studied the economic analysis of law at Harvard, have similar instincts in business cases.

This elite consensus, however, is not necessarily shared by the country as a whole. If anything, America may be entering something of a populist moment. If you combine the groups of Americans in a recent Pew survey who lean toward some strain of economic populism — from disaffected and conservative Democrats to traditional liberals to social and big-government conservatives — at least two-thirds of all voters arguably feel sympathy for government intervention in the economy.

Seeing the Supreme Court as an adjunct of a social consensus is a more accurate reductionism than seeing the Court as a valiant defender of powerless minorities, but it’s a little problematic. The Court, because of the appointment process and its own inherent institutional weaknesses (especially its reliance on other political actors to enforce its commands), is unlikely to stray outside a broad range of political acceptability for long. But on many important issues, a social consensus doesn’t exist, and as long as the Court has some support among powerful elites it has more range of action than the idea that the Court follows the opinion polls might imply. In the long run, this is likely to mean a Court that’s more libertarian than the median voter. And while talk about restoring a “Constitution in Exile” is overblown, just as the late Rehnquist Court was more socially liberal than the Republican-controlled Congress so is the current Court likely to make it more difficult for Democratic Congresses and presidents to enact desirable regulations and (especially) to enforce existing ones, even if these laws are broadly popular. Indeed, as the article demonstrates the Republican-dominated Court heps Republicans in Congress greatly, as it makes it harder to do thing like enforce civil rights legislation without forcing conservative legislators to modify the legislation and take the hit.


[ 0 ] March 17, 2008 |

I have no idea if the public babe-in-the-woods routine of Jim McGreevy’s wife was, in fact, false. But the story does remind me that I’m always a little puzzled by confident assertions (I don’t mean to single out that particular post, just using it as an illustration) about how families will be affected by someone’s bad actions or what the bad actor’s wife should do about it. None of us, unless they knew them, has any idea what Silda Wall knew or what she should do or whether it would be best for their daughters if she took them back to North Carolina. She seems to be an extremely smart person and I trust her to make her own judgments. The idea that people think they can know about the relationships of total strangers is bizarre.

And this has always been a locus of unfair commentary about Hillary Clinton. She’s been frequently attacked — mostly by people who are indifferent or hostile towards feminism — as a betrayer of feminism for staying with her husband. And, of course, had she left she would have been roundly attacked by many of these people as selfish, cold, unforgiving, etc. etc. had she left. You can never win, especially if you’re a woman. Which is why minding one’s own goddamned business about how consenting adults conduct their own relationships is generally a sound principle.

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