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For The Defense

[ 72 ] May 24, 2008 |

To play against recent type somewhat, and since they seem to have been the final straw for a lot of people, I should probably say that I don’t actually think that the RFK comments are a big deal at all. The example was poorly chosen, but I think the point she was trying to make is obvious enough: primaries going to June isn’t an especially big deal. Granted, while I’m sympathetic to the point the example on the merits is stupid and illogical; you can’t compare primaries in 2008 to years in which they started much later on a more spread-out schedule, and in the case of force majeure I’m confident that Clinton has already won enough delegates to prevent Dodd or Kucinich from taking the nomination if she drops out tomorrow.

But illogic pretty much comes with the territory when you’re coming up with rationales for a campaign that has no reasonable chance of succeeding. I find her comparisons of trying ex post facto to count votes no rational individual could think even approach a minimally acceptable measure of voter intent to abolitionism and the fight to enfranchise African-Americans under apartheid infinitely more objectionable.


Eternal Mysteries of the Universe

[ 17 ] May 24, 2008 |
  • The popularity of American Idol (which, according to today’s Times recap, took a major uptick in subtlety and musicality when one of the third-raters essayed a Collective Soul cover.)
  • The baserunning of Jose “Miguel Dilone was my mentor!” Reyes
  • Bloggers who decorate filler posts about trivia with use ultra-obscure references that 0.00001% of their audience might understand
  • How John McLaren keeps his job.

Although I suppose on one level the last one is all too explicable; any team that had the slightest idea what it was doing or interest in winning would never have hired him in the first place. And I should probably be careful what I wish for; if he does get cannned I fully expect him to be replaced by a committee of Bill Virdon, John McNamara, Buddy Bell, and Maury Wills.

The Gods of Sabermetrics must be smiling at the fact that both Washburn and Bedard got torched for nine runs after being assigned their Comfort-Building personal catcher…

And You Think "Blessed" Is Elitist!

[ 0 ] May 23, 2008 |

It looks like even if they amend the Constitution to accommodate Granholm and Schwarzenegger I’ll have no chance of becoming president. I mean, just the French is bad enough…

A Conclusion In Search of an Argument

[ 9 ] May 22, 2008 |

Glenn Greenwald makes the obvious point about Ben Wittes’ critique of the California gay marriage decision: for all intents and purposes, there’s no argument in it. The shallow, bumper-sticker versions of democracy Wittes invokes — that the decision represents the “undermining of the right of people to govern themselves” — prove too much unless you believe that liberal democracy means nothing but simple majoritarianism, which virtually nobody does and at any rate certainly isn’t the constitutional logic of any government in the United States. If taken seriously, these claims are equally applicable against Brown and Loving. Wittes builds his argument around the assertion that arbitrary discrimination on the basis of race is just different than arbitrary discrimination on the basis of sexual orientation. Maybe it is, but he just asserts it repeatedly without defending it. The fact that a majority of Californians may oppose gay marriage is irrelevant to this distinction. Citizens and public officials in most of the states where segregation was ruled unconstitutional were far more committed to apartheid than California is to bans on same-sex marriage. And yet, as Greenwald says, Wittes says nothing about the court’s opinion at all; he doesn’t even begin to make the case that it was poorly crafted or an implausible reading of the California constitution.

This brings up to another point, which is that even if the democratic support for provisions is relevant to construing ambiguous constitutional provisions, we also have to consider what constitutes democratic support. Shouldn’t the fact that a majority of state legislators and the state’s governor almost certainly support the court’s ruling at least be considered when decrying “accretion of power to courts”? But Wittes ignores this, just as suddenly a supermajority in the Massachusetts legislature affirming Goodridge was not longer enough, but instead democratic legitimacy required not just representative majoritarianism but plebiscitarianism. We’ve seen similar shell games about democratic legitimacy from Wittes before: the incredibly shoddy and unprincipled Bush v. Gore is legitimate because it didn’t affect public opinion about the court, but public support for Roe v. Wade is irrelevant to that decision’s “legitimacy problem.” Other than his remarkably consistent conviction that decisions that piss of conservatives are bad and decisions that piss off liberals are good, I frankly don’t know what the content of his standards regarding the democratic legitimacy of judicial review is.

Exclusive! Must Credit LGM!!!! McCain’s Support Entirely Non-Existent!

[ 0 ] May 22, 2008 |

Obviously, one has to agree that the fact that a band played before an Obama rally is an immensely important issue which proves his popularity is a fraud. I particularly admire Geraghty inferring the effect of the opening act from Rolling Stone reviews rather than some less important metrics as record sales or usual size of venue played. I can’t believe the MSM is covering this up this critical fact.

However, some unimpeachable sources have informed me that the crowd of 1,500 that John McCain recently drew in Indianapolis was a product of a rare free appearance by the Recess Monkeys, whose latest show was rated “five stars all the way!” by the Birch Bayh Junior High Herald:

“This is real wholesome, old-fashioned music, none of that noise pollution! Although frankly I’d prefer a little Frank Mills.” –M. Goldfarb.

I can only conclude that John McCain’s real drawing power is -30,000 people. When, on when, will the MSM stop covering up this important story?

On Not Getting Into the Mud

[ 0 ] May 22, 2008 |

Evidently, Clinton using the civil rights and suffragist movement to defend her attempts to count the North Korean Michigan not-even-a-straw-poll is beyond appalling. But nonetheless, I can’t agree with Isaac Chotiner here:

I suppose I see the utility of this strategy on Obama’s part, but there is something unseemly about the Illinois Senator going out of his way to praise Senator Clinton at a time when her entire posture in the campaign is so aggressively negative and pathetic. And now that Clinton has decided that there is no distinction between her quest and the quest of women everywhere, it would be best if Obama resisted the temptation to hold her up as a feminist icon.

However indefensible some of the Clinton campaign’s rhetoric has been, Obama is definitely doing the right thing here. Clinton’s campaign has been historic, and has therefore inspired deep commitment from her supporters. Clinton’s recent tactics are odious but it’s not as if they stand any chance of working or anything; as Chait says, “Democratic superdelegates don’t want to commit suicide.” We political observers should feel free to make fun of hack arguments, but for the candidate to make peace with Clinton’s supporters is appropriate. It’s the winner’s strategy. I personally think it would be better for the party and her reputation if Clinton weren’t going down by saying this kind of thing, but that’s politics; it’s her judgment how to run her campaign. There’s no need for Obama to take the bait — upping the ante would just make things worse.


[ 6 ] May 22, 2008 |

Responding to a WaPo editorial suggesting that Obama offer a Supreme Court appointment to Hillary Clinton, Mori Dinauer interestingly points out that such an offer would seem to be illegal. Does anybody know if there are examples of someone actually being prosecuted under the statute?

On Clinton being appointed, I would respond with one number (1947) and two words (therefore no.) Jack Balkin gives the somewhat longer version.

Clinton Campaign Self-Parody Watch

[ 0 ] May 21, 2008 |

Make it stop:

If I’m not mistaken Terrry McAuliffe just announced two new goalposts.

1. Hillary has gotten more votes and delegates since March 4th.

2. Hillary has gotten more votes in a nomination race than anyone in history. “Hillary Clinton has now received more votes than any candidate ever running for president in a primary.”

The central premise here is a Grade A, or a Jeff Jacoby, level of illogic:

Bush was reelected with the highest vote total in American history.

I trust the idiocy here is transparent.

But wait! At least what Jacoby said is literally true. Whereas, as Josh points out, unless you insult people’s intelligence by counting North Korea-style one-major-candidate unsanctioned not-even-straw polls and not counting several contests actually sanctioned by the party (under standards McAuliffe contemporaneously supported), the person who wins under the meaningless “most primary votes in history” metric is…Barack Obama.

Given that the Clinton campaign seems to think this crap will actually convince people, it’s pretty easy why they thought that blowing off a month’s worth of primaries and caucuses was an effective strategy.

…I can understand people thinking this kind of thing is trivial. But I don’t think that’s right. It should be remembered that Clinton’s campaign (see also) is using these ridiculous Calvinball metrics to undermine the legitimacy of the Democratic nominee. If there was any significant chance that she could win, that might be acceptable. If she even had a credible argument that she was ahead in the popular vote — one anyone would have accepted before the nomination, without knowing who it would benefit — that would be a different issue. But to send flacks to rile up other Democrats against Obama under these circumstances is a disgrace.

The Hitter

[ 72 ] May 20, 2008 |

The greatest hitting catcher ever retires.

Whether he is the greatest catcher ever is tough to say, of course, since it all comes down to how much the defensive edge of Berra and Bench should be weighted. It’s a big edge, since Piazza wasn’t merely bad for a guy who played a key defensive position for a long time, like Hornsby, but was really bad. I can see a certain intuitive strength to the position that at a key defensive position a player has to be at least adequate to rank #1. On the other hand, he was a considerably better hitter overall than Bench or Berra, and how many runs does having a cactcher who can’t throw at all cost you anyway? (Bench and Berra deserve credit for being key members of some of the greatest teams in history too, but this has to be mitigated by the fact that those teams were anchored by even greater players.) He belongs in the discussion, anyway.

Get Out Your Hankerchiefs

[ 0 ] May 20, 2008 |

GOP vote suppression guru Hans Von Spakovsky cries in the Wall Street Journal about unfairly being denied a spot in the FEC for such trivial matters as lying to the Senate Rules Committee and pre-clearing de facto poll taxes struck down by the federal courts. Boo hoo hoo hoo hoo!

Family Values

[ 0 ] May 20, 2008 |

As Vito Fossella ends his political career in disgrace, let us remember such things as his belief that the Constitution of the United States should be amended to explicitly make gays and lesbians second-class citizens:

Vito Fossella built a career as a staunch “family values” pol, polishing his image in his predominantly Catholic district with a string of anti-gay votes.

He even shuns his gay sister, Victoria Fossella, refusing to go to family events if she and her partner attend, a source close to the family said.


As congressman, Fossella voted to prohibit any funding for joint adoptions by gay couples.

He has voted for the Marriage Protection Amendment, a federal prohibition on gay marriage.

He also demanded housing funds be held back from San Francisco unless it repealed its domestic partnership law.

I’m embarrassed that New York City was ever represented by this hateful clown, although admittedly in some way I suppose I respect his shunning of his sister more than Cheney-style wining on gay bashing while treating his sister daughter cordially. At any rate, whether the prospect of some same-sex couples getting married is a greater threat to Traditional Family Values than maintaining multiple families while lying to each partner about the other’s existence and relying on your mistress to bail you out when you risk other people’s life by driving when stone drunk, I leave to the reader’s judgment.

Part of the American Democratic Process

[ 16 ] May 19, 2008 |

In response to Eugene Volokh, I should say that I’m perhaps making a slightly different argument than the one he’s addressing. My point about the vote in the legislature, as well as the support for same-sex marriage signaled by the governor urging the courts to resolve the issue and opposing a referendum to overturn it, is that claims of judicial usurpation of the prerogatives of the political branches are not in any way a useful description of this case, as a majority of legislators and the governor almost certainly agree with the court’s ruling. As is often the case, the California Supreme Court’s decision does not involve a zero-sum struggle for power, but rather is a case where the courts are resolving an issue because it cross-cuts existing party coalitions. This, in itself, doesn’t mean that the court’s decision was right; it’s possible to disagree on the merits. In many cases, one can also argue that the courts should respond to evasion by the other branches by throwing the ball back, but in this case it’s complicated by California’s silly system allowing its constitution to be amended (and hence judicial decisions overridden) by a simple majority of the popular vote.

I am, however, somewhat puzzled by his implication of disagreement with the proposition that “California Supreme Court’s same-sex marriage decision actually consistent with the democratic process.” In the American system, for better or worse, it’s part of the democratic process for the judiciary to scrutinize the actions of the other branches as well as (in California’s case) popular initiatives and pass judgment about their constitutionality. Strong-from federal review is a well-established part of this process, making California’s effectively very weak-form review certainly consistent with it (as Volokh somewhat concedes here.) I can imagine, in the abstract, an argument that the courts should always defer to other branches or the people unless the text of the constitution is clear. But, in practice, virtually nobody in the American system believes this or acts like this in practice, so these claims generally amount to arguments that progressives should unilaterally disarm. I don’t know if this is true of Volokh specifically, but certainly most of the critics of the California decision have no objection to cases where the courts use ambiguous constitutional materials to override electorally accountable officials to reach more congenial policy results (cf. Parents Involved, Garrett, Morrison) and are also strongly critical of the court in some case where it does defer in the face of ambiguity (cf. Kelo, Raich, Grutter.)

The California court could, I suppose, be criticized for usurping the democratic process if its reading of the state constitution were simply unreasonable, but that’s not the case. The majority’s reading is not commanded by the constitution, but it’s certainly defensible. And if we’re going to have judicial review, protecting unpopular minorities from being arbitrarily excluded from fundamental privileges strikes me as being at the type of case where judicial intervention is most defensible. But even if one disagrees, I fail to see how the court’s holding is in any way inconsistent with democracy as it is actually practiced in this country.

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