Author Page for Scott Lemieux

Copyrights and the Court

The discussion of copyrights chez Ygelsias and Atrios compelled me to take another look at the Supreme Court’s recent decision in Eldred v. Ashcroft. One of the things that’s fascinating about the case is that, as Atrios notes, the Copyright Clause in Article I essentially requires itself to be read pragmatically and consequentially, granting Congress the power to grant copyrights only for the purpose of promoting “the Progress of Science and useful Arts.” As many of you may remember, the case concerned the “Sonny Bono Copyright Term Extension Act,” which (among other things) gave a 20-year extension to most existing copyrights, extending them to 95 years. The question of the case is whether this extension was consistent with this limitation on Congressional power. The Court ruled 7-2 that the Act was constitutional. This is a tough case, at least for a non-libertarian such as myself, because Congress is entitled to a large degree of deference when it comes to determining what constitutes scientific or artistic progress. While it’s certainly terrible public policy, I would probably even go along with the Court in upholding the extension of the term of new copyrights; as long as the grant isn’t literally perpetual, I don’t know of any principled way of adjudicating when, exactly, a new copyright is too long.

Where I would unquestionably vote with the dissenters, however, is with respect to the extension of existing copyrights. Particularly given how long the original grants are, there simply isn’t any remotely rational connection between expanding existing copyrights and artistic progress. The artistic products in question have already been created; extending the existing copyright cannot contribute to “progress,” and indeed can only inhibit it. The really striking thing about this case is the dissent by Breyer. As many of you are aware, Breyer is famous for his deference to Congressional power, sometimes upholding it by constructing elaborate ex post facto rationales for legislation whose relationship to the actual purposes of Congress are often highly dubious. When even Breyer can’t come up with a halfway plausible story to connect an act of Congress to the public interest, you know you’ve got nothing. As he points out, this is nothing but corporate rent-seeking that simply doesn’t have any connection whatsoever to the ends required by the Copyright Clause:

The economic effect of this 20-year extension–the longest blanket extension since the Nation’s founding–is to make the copyright term not limited, but virtually perpetual. Its primary legal effect is to grant the extended term not to authors, but to their heirs, estates, or corporate successors. And most importantly, its practical effect is not to promote, but to inhibit, the progress of “Science”–by which word the Framers meant learning or knowledge…I would find that the statute lacks the constitutionally necessary rational support (1) if the significant benefits that it bestows are private, not public; (2) if it threatens seriously to undermine the expressive values that the Copyright Clause embodies; and (3) if it cannot find justification in any significant Clause-related objective. Where, after examination of the statute, it becomes difficult, if not impossible, even to dispute these characterizations, Congress’ “choice is clearly wrong.”

I think Breyer is right. On all three points, which I think represent a reasonable standard, the legislation clearly fails; it’s not even close. Moreover, the copyright clause is fairly narrow; the possibility of a less deferential reading of the standard by a future court would not have the dire consequences that, say, returning Commerce Clause jurisprudence to its pre-New Deal state would have. As both dissenters point out, to uphold this Act would be to essentially render the Copyright Clause judicially unenforceable, and I don’t think that this is wise or necessary. But I turn the discussion over to you.

Sexual Assault Myths: More Comparative Perspectives

Shakes Sis has an interesting post about various social and legal problems with enforcing rape laws in Britain. Such problems are of particular interest to me, since a large part of my MA thesis was about an important Canadian Supreme Court decision that impeded an attempt by the legislature to restrict the extent to which myths and stereotypes affected the enforcement of sexual assault law. One of the major problems with enforcing sexual assault law is that a victim’s past sexual history would often be discussed in open court. This both made it difficult to secure convictions based on the appallingly sexist myth that having consented to sexual relations in the past somehow provides evidence of current consent, and also made victims reluctant to pursue legal claims in the first place–who wants irrelevant details of their past sexual lives discussed in open court? Parliament, after studying the issue and finding that a previous law that left a great deal of discretion to judges wasn’t working, passed a “rape shield” law that would 1)prevent the defense from introducing evidence about a victim’s “sexual reputation”–such as was used in the infamous OC rape case–and 2)prevent a victim’s sexual history from being adduced unless it met very narrowly drawn standards of probative value. The Canadian Supreme Court, however, struck down the latter section. The problems with this conclusion are clear–you can’t call a rape victim a slut in open court, but many judges may allow you to discuss her sexual history and hope some members of the jury will draw the inference for themselves–and the Court’s reasoning isn’t very persuasive. What was particularly odd about this is that the Canadian Supreme Court is ordinarily very sympathetic to feminist arguments; I was interested in explaining the case because it was so anomalous. Basically, it’s a classic case of asserting judicial supremacy; even where the court accepts the legitimacy of Parliament’s goals, the Court essentially argued that the legislature had to trust the courts to achieve these goals (despite extensive evidence that the courts couldn’t be trusted to exercise their discretion appropriately in this case.)

The problems with the Supreme Court’s “trust us” approach can be seen in the Ewanchuk case in 1998. A woman went for a job interview with Ewanchuk, who after it was completed repeatedly made physical sexual advances although she told him to stop several times and never expressed consent. Despite the fact that Ewanchuk didn’t even testify, and that the trial court found the complainant to be a credible witness, Ewanchuk was acquitted based on a defense of “implied consent.” The government appealed, but the Alberta Court of Appeal upheld the trial court. Judge John McClung–a wingnut who was a hero to reactionaries based on his anti-gay rights rulings–argued that:

…it must be pointed out that the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines. . . . she was the mother of a six-month-old baby and, along with her boyfriend, she shared an apartment with another couple…the sum of the evidence indicates that Ewanchuk’s advances to the complainant were far less criminal than hormonal…In a less litigious age going too far in the boyfriend’s car was better dealt with on site with a well-chosen expletive, a slap in the face or, if necessary, a well directed knee.”

It would be difficult to get a better summary of all the various sexist myths that have hampered the enforcement of sexual assault law. By this time, however, Parliament–in response to the Seaboyer decision–had made sexual assault a “reverse onus” defense–if a defense was based on consent, then the burden of proof rests with the defendant to prove that consent was obtained. Obviously, this makes the evidence-free “implied consent” defense the court accepted a non-starter, and the Alberta courts were unanimously overruled by the Supreme Court. Which brings us to our Sunday sermonette, from the concurring opinion by Justice Justice L’Heureux-Dube:

Both the trial judgment and that of Justice McClung do not make the basic distinction that consent is a matter of the state of mind of the complainant and belief in consent is, subject to s. 273.2 of the Criminal Code, a matter of the state of mind of the accused.

This error does not derive from the findings of fact but from mythical assumptions that when a woman says “no” she is really saying “yes”, “try again”, or “persuade me”. To paraphrase Fraser C.J. at p. 263, it denies women’s sexual autonomy and implies that women are “walking around this country in a state of constant consent to sexual activity”.

[...]

Even though McClung J.A. asserted that he had no intention of denigrating the complainant, one might wonder why he felt necessary to point out these aspects of the trial record. Could it be to express that the complainant is not a virgin? Or that she is a person of questionable moral character because she is not married and lives with her boyfriend and another couple? These comments made by an appellate judge help reinforce the myth that under such circumstances, either the complainant is less worthy of belief, she invited the sexual assault, or her sexual experience signals probable consent to further sexual activity. Based on those attributed assumptions, the implication is that if the complainant articulates her lack of consent by saying “no”, she really does not mean it and even if she does, her refusal cannot be taken as seriously as if she were a girl of “good” moral character. “Inviting” sexual assault, according to those myths, lessens the guilt of the accused…

Finally, McClung J.A. made this point: “In a less litigious age going too far in the boyfriend’s car was better dealt with on site — a well-chosen expletive, a slap in the face or, if necessary, a well-directed knee” (p. 250). According to this stereotype, women should use physical force, not resort to courts to “deal with” sexual assaults and it is not the perpetrator’s responsibility to ascertain consent, as required by s. 273.2(b), but the women’s not only to express an unequivocal “no”, but also to fight her way out of such a situation. In that sense, Susan Estrich has noted that “rape is most assuredly not the only crime in which consent is a defense; but it is the only crime that has required the victim to resist physically in order to establish nonconsent.”

All exactly right–this opinion provides a good basis for legal reform, but also explains why, as Shakes Sis explains, even good laws are often so difficult to enforce. These myths are disturbingly resilient.

As a disgraceful coda to the Ewanchuck case, after his arguments were demolished by the Supreme Court McClung wrote a letter to the National Post claiming that the reasoning of L’Heureux-Dube (whose husband had committed suicide) “could provide a plausible explanation for the disparate (and growing) number of male suicides being reported in the province of Quebec.” Lovely fellow.

Why I Am Not A Studio Executive (Or A Populist)

Tom the Dancing Bug asks a good question: what’s the dillio with all these lame movies about big families? If I’m not imagining it, the terrible-looking Rene Russo vehicle this weekend will be followed up in short order with a sequel to the same movie when it was made with Steve Martin. But looking at the boxofficemojo dailies, the question answers itself: Cheaper By The Yours, Mine and Ours is making almost as much per-screen as Walk the Line. Depressing. On the other hand, I’m definitely going to see The Ice Harvest (black comedy? Ramis? Cusak? Thornton? Yes please!), which seems to be belly-flopping. Generally, if you want to know what’s going to make money, put out exactly the opposite of what I like and you’ll be in good shape.

Speaking of which, there’s Rent. I’ve never seen the musical, and…well, I guess I should keep quiet, as nothing can ignite a comments firestorm like criticizing popular middlebrow musicals that provide Uplifting, Morally Edifying Thoughts about Important Social Issues, so I’ll just say that 1)although I was going to say after seeing the preview that Chris Columbus was the ideal director for the project, that’s not strictly accurate–given the redeeming social value, this seems more like a Schumacher gig, and 2)particularly since I once was exposed to the score on CD, I’m entirely persuaded by Carina Chocano (“”Rent” is commodified faux bohemia on a platter, eliciting the same kind of numbing soul-sadness as children’s beauty pageants, tiny dogs in expensive boots, Mahatma Gandhi in Apple ads…How is anyone supposed to get behind a guy whose “films” are just home movies of the homeless and his soon-to-be homeless friends?…Or behind a blocked songwriter who spends an entire year agonizing over a song that turns out to be a bunch of moldy cliches set to power chords?”). But I’m willing to say nothing further on the subject if its partisans will stop claiming that the score has anything to do with “rock” in anything other than the way that Good Charlotte has something to do with punk…

Token Thanksgiving Blogging

Greetings from bucolic central Connecticuit, as I luxuriate in the afterglow of the kind of delicious down-home cooking and family togetherness that a New York bachelor is so rarely able to savor. Alas, such a day leaves one with little to blog about, so enjoy this satire of 76BucsMedia (TM) from TBogg and be infuriated by Sam Alito’s proud membership in an orgainization dedicated to keeping Princeton male, white, and larded with the idiot sons of alumni instead. Happy Thanksgiving to the L,G&M community!

I Hated Me Some of That Movie

Amanda, by IDing my top choice, reminds me that I’m never one to turn down a pointless list, so I might as well get to it. My one condition, which seems implicit, is that the movie have some reputation for quality; otherwise, how are you going to piss people off? Generally, to hate a movie it has to be more than inept. So, a few movies I’ve always hated:

Natural Born Killers Saw it at the opening night of the Monteal Film festival, leading to an intense public argument with friends who considered it a masterpiece. Exemplified what it’s allegedly satirizing. But will be very instructive for those of you who were unaware that tabloids cover the news somewhat differently than the National Journal.

Dances With Wolves I can’t top Pauline Kael: “This film was made by a bland megalomaniac. They should have called him ‘plays with camera.’”

Pretty Woman I admit, this movie is so creepily misogynist it brings out the left-Medvedite even in me. But having said that, from D.H. Lawrence to the Rolling Stones to Phillip Roth to Spike Lee I’ve admired the work of countless artists who have serious issues with women; aesthetic quality makes up for a lot. Needless to say, that’s not an issue here. (Honorable mention: True Lies. Worse than the grossness of the sexism is that is stops the movie dead for a significant period of time to engage in it.)

Dead Poet’s Society Prettily made, and taps into a particular teenage solipsism so ruthlessly, that many seem not to notice that it’s conceived and written on the level of an after-school special, particularly with respect to its one-dimensional morality play; the evil parents and teachers anticipate Sean Hannity’s books about liberals.

Before Sunrise Perhaps not the worst movie I’ve ever seen, but certainly way, way up there on the pretention-to-achievement ratio. Boring as church, too.

Absolute Power There are some people who consider Clint Eastwood the country’s pre-eminent filmmaker. I would like to think that they haven’t seen this.

The Rock There seems to be some impression that Michael Bay is unfairly picked on, because he makes good popcorn movies. But the thing is, he doesn’t. The action sequences are completely inept (and as pretentious as any art-house wanker), edited to draw attention to the technique while not giving you any sense of where people are or what’s happening. Plus, this movie was the one millionth to feature an interminable car chase through the streets of San Fransisco; I expected to see Walter Matthau behind the wheel.

Batman Forever The movie that turned me into the kind of person satirized in The Squid and the Whale; after being dragged to it has become almost impossible to convince me to see “event movie” Hollywood product absent some promise of cash or sexual favors. Like paying 10 bucks to watch a 2-hour McDonald’s commercial. Runner up: Independence Day.

Mallrats/Chasing Amy/Dogma Please don’t make me choose among Kevin Smith movies. Dogma is the most pretentious and dull, while Chasing Amy and Mallrats are where to go for arch misogyny, and also feature Mr. Smith’s exceptionally annoying and untalented significant other.

The Sound of Music That ain’t music; it’s the sound of me puking. Runner-up: West Side Story.

On the other hand, since it shows up on virtually everybody’s list I’m contrarian enough to note that I kinda like The English Patient. Haven’t seen The Talented Mr. Ripley.

…in comments, Matt asks about the source of Bay revisionism. The ur-text is this Slate article, which hauls out every bad argument I’ve ever heard on the subjetct. (Particularly specious is his point that “[i]n fact, patching a bunch of quick cuts together is a massive undertaking in the editing room.” So it is. And then, making a good-looking commercial requires a lot of technical skill too. So what?) Note too that The Island scores a 50 at Metacritic and The Rock a 59, (Ebert is a fan of both, calling the latter “first-rate”) –pretty generous for genre pictures of no aesthetic distinction (scroll down the list on the left and you’ll note that these are certainly not films the critics generally hated.) And note that Pearl Harbor–which in my experience even Bay’s apologists won’t defend–got a fairly large number of respectful notices from major critics, with outright pans a minority. Critics have generally treated him far more generously than he deserved, and his movies are hardly the cultural touchstones that, say, Lucas’ are.

…I don’t know how I could have forgotten Braveheart.

Why Faux Won’t Show The Alito Ad

Lindsay and the Carpetbagger Report note that Fox News has rejected an ad critical of Alito. What’s puzzling is exactly why the ad was pulled–the Yahoo article doesn’t say. Lindsay assumes that it’s the (completely accurate) strip search reference. Justin Gardner, working from the same article, claims (without saying where he’s getting it from) that the problem with the ad is in the claim that Alito “ruled to make it easier for corporations to discriminate,” and defends Fox because he thinks the claim is “isn’t correct.” But the argument about discrimination is of course substantively accurate. Alito, in fact, has interpreted anti-discrimination law in a way that would make it considerably harder to bring suits against corporations, and this would by definition make it easier for corporations to discriminate. So what’s the problem? PFAW has the answer:

Fox News told IndependentCourt.org that it would not run the ad because it uses the words “ruling” and “voted” in reference to a dissenting opinion issued by Alito as a federal circuit judge.

So the problem–which Gardner is, perhaps unintentionally, quite misleading about–is not any substantive claim about his jurisprudence, but some technicalities. And, yes, it is technically inaccurate to say that he “ruled” about employment discrimination in Bray v. Marriot Hotels, since the opinion referenced here was so illogical and wingnutty it was a dissent, and not a controlling opinion (so his opinion thankfully could not “rule.”) The same it true, of course, about Groody. Complaining about the use of the word “vote” is even more trivial hair-splitting; it’s obvious what it means in context, and I don’t think it’s inaccurate at all. As PFAW notes, both descriptions are common ways of describing opinions in the media. Does anybody think that this use of terms would have caused any problems if it was a pro-Alito ad? But, at any rate, apparently even Faux isn’t claiming that the ad is substantively inaccurate, because it isn’t, although its refusal of the ad will create that impression. Which I’m sure is the point.

Unsought Responsibility

Shorter Antonin Scalia (R-USSC): “As soon as the “Gore people” had the nerve to file for the recount they were legally entitled to, we has no choice but to put an end to it by issuing a flagrantly unprincipled opinion overturning a state court’s interpretation of state law in order to ensure the legitimacy of our preferred candidate.”

Law And Politics in the Supreme Court

I see that Ann Althouse is again accusing anybody who disagrees with her about Samuel Alito’s nomination of undermining “the rule of law and the legitimacy of the courts.” Implicit here is the claim that the public legitimacy of courts is tied to the use of grand theory in legal reasoning, a claim which has the disadvantage of not being supported by any evidence. (I’m also puzzled: if originalism is such a publicly popular theory of jurisprudence, why are Alito and many of his defenders–including Althouse–falling over themselves to deny that he is a principled originalist like Thomas? I’d ask Robert Bork…) But then, of course, I’m just a liberal who believes that people don’t have rights, especially the most precious rights of all: you know, your right to be strip-searched without a valid warrant, your right to be sexually harassed at work, your state’s right to steal your copyright without having to pay damages, all the core freedoms at the heart of the liberal tradition.

Her strawman demolition does, however, remind me to comment about this recent post at Balkinization. It must be said that Tamanaha’s post is not a strawman; there are some political scientists who do indeed adopt a very strong version of legal realism. Jeffrey Segal, whose new book Tamanaha discusses, co-wrote the most influential political science book on judicial behavior of the recent decades, The Supreme Court and the Attitudinal Model. Segal and Spaeth argued that judicial decisions are effectively predicted by the political attitudes of the justice, with legal reasoning being mere ex post facto rationalization. Now, I don’t entirely disagree with their findings. Indeed, I think when you boil things down to their central thesis: that outcomes of votes on the merits in Supreme Court cases generally fall along predictable ideological lines–it’s largely correct. However, there are some major limitations to this way of thinking that are familiar to those who know the literature, and the data Segal and Spaeth adduce quite clearly cannot justify the fairly crude version of legal realism that they infer from it. I’ll summarize what I see as the two most significant problems. (I distinguish this from the more modest legal realist argument that law cannot be entirely separated from politics and that judges do not mechanically apply the law, which I think is self-evidently true.)

The first problem is that there’s a good deal of slipperiness in terms of defining a political attitude–is it a legal policy preference, or a political policy preference, or a partisan preference? The problem can be illustrated with the Supreme Court’s recent Raich decision. If the relevant attitudes are about legal policy (and as I read their model, that’s what they’re talking about), then the model works quite well: every justice but Scalia and Kennedy adhered to their long-standing preferences with respect to the Commerce Clause. But by the same token, if what’s relevant are the political policy outcomes–if judges are just “politicians in robes”–then the model gets as many as 7 of the 9 votes wrong. O’Connor, at least, suggests in her dissent that the state marijuana initiatives were bad policy, while Stevens implied in subsequent public statements that he though the law he upheld is a bad one, and it seems like a fair guess that Scalia and Kennedy support the federal drug law (with Thomas, I’m less sure, although his jurisprudence on federalist issues has been quite consistent.) So, oddly, an outcome that proves that many justices do adhere to their legal principles even when confronted with an outcome they dislike is used be some political scientists to advance a claim that the law doesn’t matter. With respect to Bush v. Gore, although Segal and Spaeth disagree it seems to me that if coded as an equal protection case the attitudinal model gets every vote wrong; the case was particularly bad because the majority voted their partisan preferences, as opposed to legal policy preferences.

But, of course, these cases are somewhat unusual–most cases are fairly easy to code, and in general there’s significant consonance between political and legal policy preferences. The bigger problem is the extent to which confining the model to Supreme Court outcomes on the merits, which in itself concedes a great deal of importance to law. First of all, Supreme Court justices–as Segal and Spaeth concede–generally weed out legally unambiguous cases, which is in itself a very important way in which the law constrains the ability of judges to impose political preferences. In addition, the attitudinal model tells us nothing about why a vote on the merits comes down to any 2 particular outcomes, as opposed to 2 others. If judges were merely “politicians in robes,” than Scalia’s abortion jurisprudence should consist of reading fetal personhood into the 14th Amendment, rather than simply permitting the states to legislate. It also doesn’t explain why the courts avoid cases they could take–it is almost certain that the most of the judges on the Supreme Court in 1971 were strongly opposed to the Vietnam War, but only Douglas wanted to take the cases suggesting that the war was unconstitutional. And, of course, lower courts are much more constrained than the Supreme Court (and while with respect to the public it’s results that matter, for lower courts the content of the Court’s reasoning certainly matters a lot.) So even if one accepts the validity of Segal and Spaeth’s data, it simply cannot support the kind of legal realist argument sometimes inferred from it; it just doesn’t (and cannot) prove that judges are political actors completely unconstrained by law.

To say that Supreme Court justices are merely “politicians in robes,” then, is just as untenable as a formalist arguing that judges can somehow avoid exercising significant discretion when interpreting frequently vague statutes or broad, abstract Constitutional provisions. Judges certainly do exercise discretion, in ways that are related (although not simply reducible to) political preferences, and unlike Althouse I think it’s appropriate for the Senate and not just the President to take these into account, and nor does pointing this out mean that you’re against “the rule of law” or believe that people don’t have rights. But this certainly doesn’t mean that the law is just politics, or that there is little difference between a Supreme Court justice and a legislator. The law certainly does matter, both as a constraint and as a constitutive part of a judge’s thinking. I don’t oppose Samuel Alito’s nomination because I believe he will simply use legal materials as a means of rationalizing simply policy preferences; I oppose him because I disagree with the theories and inclinations–the complex mix of legal and political judgments–that he will use when exercising the significant discretion that a Supreme Court justice has.

Russell And Casey

Russell Arben Fox has a typically thoughtful response to my recent post about Bob Casey and abortion politics. You should read the whole thing. I have a couple quick comments related to Casey and abortion specifically, and another comment that is more broadly applicable. On the former, I should first of all say that if the race, as it almost certainly will, comes down to Casey vs. Santorum, then of course pro-choice progressives should support Casey. Even from the standpoint of reproductive freedom, it’s a wash from a direct standpoint, and the more seats the Dems get in the Senate the better. (I also take no position on the primary; making the electability/ideological compatibility tradeoffs requires more local knowledge than I posses.) Secondly, I’d like to repeat a distinction that I think I’ve made before: I think it is clearly possible for someone to be a progressive feminist and opposed to abortion, and even to favor some regulations. I do not, however, think that a feminist can plausibly support laws that criminalize abortion as they are actually written and enforced. As a quick comparison of Latin American and Canadian abortion rates will make clear, criminalization is a very ineffective method of discouraging abortions, and also carries with it all kinds of negative externalities (the most important ones being the death and maiming of poor women.) So while compromises that lower abortion rates are certainly possible, I agree that where abortion bans (whether total or partial) are concerned I’m just not willing to compromise, barring some massive cultural shifts. And even where lesser regulations are concerned, I would urge anti-abortion feminists to think very carefully about the effects and class implications of such regulations.

On a broader point about Alito, I think there’s a very important distinction to be made with respect to this comment:

Casey’s silence regarding Alito, if it isn’t just canny campaign politics, may represent nothing more than a general faith that socially responsible reforms need not come to an abrupt end even if the Supreme Court does become even more unfriendly to progressive politics than it is today–in fact, such an occurance might turn out to be a helpful step in getting Democrats to take popular, grass-roots legislation more seriously.

I think it’s very important to be clear about this. I should emphasize that I would be perfectly willing to do without judicial supremacy, although I’m not willing to unilaterally disarm (and I certainly still maintain my position that social changes achieved through the courts don’t create more opposition than those obtained elsewhere). But much of Alito’s jurisprudence is problematic not because he will refuse to go along with creating new rights, but because he will make legislatively created rights much harder to enforce. The awful “sovereign immunity” jurisprudence that he almost certainly supports, for example, makes it much more difficult for state employees to get legislatively-created rights (such as the ADA) enforced. Even worse from this standpoint is the extent to which he would make it much harder for employees to sue under anti-discrimination laws. It’s very important not to fall into this trap: Alito’s elevation to the bench would not decrease the Court’s role in American society, or undermine judicial supremacy, or make it easier for liberals to pursue legislative change. Rather, Alito represents a part of the classic conservative bait-and-switch in which broad readings of the constitutional clauses to protect minority rights are “judicial activism,” but when liberals go the Congress the laws are found to be outside of Congress’ power, or made extremely difficult to enforce by the executive and judicial branches. And this is why it’s so disturbing that Casey will not oppose Alito’s nomination. Rights are only relevant if there are effective remedies. Enforcing protection for workers is already very difficult; employees generally have many fewer resources and much less knowledge (and security) than their employers. The last thing we need is to make it even more difficult for employees to enforce their rights. Supporting a judge who supports the “New Federalism” and is hostile to lawsuits brought under anti-discrimination statutes will make the problems Russell describes worse, not better.

Ten Pro-War Fallacies

Good post by Daou.

I Do Not Think That Means What You Think It Means

Wow–Todd Zywicki called P.Z. Myers a “Lysenkoist” because he was arguing against Scott Adams’ ID apologism. And apparently the basis for this charge is…P.Z.’s critical remarks about the pseudo-science of evolutionary psychology! Um, between evolution and tautological just-so stories about the innate inferiority of women, I think it’s pretty obvious which one actually fits the model of politically-motivated distortions of science…

The Alito Kabuki

I’ve noted several times that according to many conservatives apparently the gravest insult of Samuel Alito is to point out that he agrees with them. Dahlia Lithwick has the finest distillation of this pathetic phenomenon that I’ve seen yet:

So, here we have a lawyer putting forth a legal opinion on a constitutional matter, and now he and his supporters seek to reduce it to the functional doctrinal equivalent of, “You simply must tell me what’s in this artichoke dip.”

[..]

Might it be that your calls for this big old national bull session over activist judging are as cynical and results-based as the holding in Roe that you so revile? Could it be that the national polls—which indicate robust support for Roe and strong opposition to justices who’d reverse it—have rendered this conversation too dangerous? Or is it the prospect of the national backlash that would follow from actually reversing Roe that has rendered you speechless? Aren’t you eager, finally, to defend the GOP platform, which overtly promises that the president will appoint judges who will defend the “sanctity of life” and overturn Roe? Or are your notions of scrupulous judicial purity less compelling in the cold light of political reality?

[...]

Conservatives have argued that there is a double standard at work here, that Ruth Bader Ginsburg was confirmed despite her “radical” espousal of abortion, polygamy, and other mad notions. But of course, besides the fact that so many of the claims made about Ginsburg’s views are false or distorted, Ginsburg was willing to discuss her views of abortion and women’s rights quite openly. Also, her views were in line with the law. What part of her confirmation hearing makes it acceptable to retreat to smoke signals when the nominee opposes Roe?

A few weeks back, I optimistically suggested that the death of the Harriet Miers nomination also spelled the death of coded speech about abortion. I asserted that the GOP base that had scuttled her confirmation would no longer accept coded messages about Roe. But here’s the flip side: Movement conservatives will no longer accept coded messages about nominees and Roe, but they are not brave enough to send clear ones when it matters the most.

This couldn’t be more right. To all the conservatives who (when a Supreme Court nomination isn’t pending) say that eveyone knows that Roe is bad law, or that the Court is usurping “the will of the people” or whatever, here’s a potentially pivotal nomination–put up or shut up. (And liberals who are “weary” of defending Roe may want to pay attention to the way Alito and so may of his supporters studiously try to dodge the issue. What does this tell you?)