Author Page for Scott Lemieux

And When He Sees His Reflection, He’s Fulfilled

I see Carville is continuing his ridiculous crusade against the DNC chair who presided over a Congressional victory nobody could have plausibly foreseen a year ago. The key graf is this one:

He said he tried to meet with Dean to argue for additional spending for Democrats in the final days of the campaign, but Dean declined and gave no reason why.

Ah, yes, this is the issue. The real problem with Dean is that he wouldn’t listen to the sage advice of James Carville, just because he’s a far-past-his-sell-by-date hack with nothing worthwhile to offer and no discernible constituency, and is the kind of person who would gin up a circular firing squad on a farcially silly pretext in a period in which the Democrats should be all rights be happy and relatively unified. All one can say is, good for Dean. Indeed, Carville is beginning to remind me of the most destructive faux-populist narcissist to curse progressive politics in America in the last decade:

The Jimmy Carter presidency only saw a heightening of Nader’s schismatic tendencies. “I want access. I want to be able to see [Carter] and talk to him. I expected to be consulted,” he told The New York Times. That Carter filled his administration with former Naderites didn’t help. Less than a year after Carter put former Nader deputy Joan Claybrook in charge of the National Highway Traffic Safety Administration, Nader denounced her, demanding she resign for implementing an air-bag regulation with “an unheard of lead time provision.” In 1980, Nader told Rolling Stone, “In the last year we’ve seen the ‘corporatization’ of Jimmy Carter. Whereas he was impotent and kind of pathetic the first year and a half, he’s now surrendered. … The two-party system, by all criteria, is bankrupt–they have nothing of any significance to offer the voters, so a lot of voters say why should they go and vote for Tweedledum and Tweedledee.” (Liberals today who anguish over Nader’s insistence that no important differences exist between the two parties should note that this belief dates back more than two decades.)

Shorter James Carville and Ralph Nader: “Me me me me me me me me me!!!!” Luckily, during the 2008 campaign they figure to be equally irrelevant…

…Roxanne: “There is serious work ahead. Countless lives are at stake. And your unfounded grandstanding is a distraction from ending our long national nightmare.”

When He’s Right, He’s Right

Patterico on Bush sending some of his most unqualified wingnut appointments back to the Senate again: “polls show that Americans like cautious judges who hew closely to the text of the Constitution and relevant statutes.” Indeed! So I think we can all agree then that the court needs fewer justices, who will, say, invent a heretofore unknown (and utterly inconsistent with the past jurisprudence of said justices) right to have ballots counted in the same manner, claim that it doesn’t apply to any future cases, and then fail to provide a logical remedy even in the case under discussion after the court’s favored litigant got what he wanted. Or, say, discover in “not so much for what [the 11th Amendment] says, but for the presupposition…which it confirms” a concept that state governments should have similar immunities against their citizens as 17th century British monarchs, hence leaving rights without effective remedies. And so on and so forth.

This idea that because the public will agree with nice-sounding platitudes about judicial restraint that no remotely sophisticated legal observer could think that justices appointed by Republicans adhere to in any meaningful way that they therefore want radical right-wingers rated unqualified by the ABA appointed to the federal bench cracks me up almost as much as the “Glenn Reynolds is a nonpartisan libertarian” routine.

…I also agree with Mitch McConnell that Dems should treat Bush’s nominations they way they treated Clinton’s…

"Yes, and that woman’s name was Earl Warren."

Don Surber: “[Mitch McConnell] was the guy who not only opposed McCain-Feingold, but took it to court. Unfortunately, the first woman Supreme Court justice ignored the First Amendment and upheld that campaign deform.” Those damned women–they screw up everything! Whether John Paul Stevens, David Souter, Stephen Breyer, and William Rehnquist–who wrote and/or joined important parts of the court’s opinion(s)–have vaginas remained unclear at press time.

Today In ‘Pro-Life" Illogic

A Republican-led panel in Missouri has claimed that illegal immigration is caused by…abortion. But I’m not sure why they’re stopping there: if they banned birth control, that would really stop those damned immigrants!

Actually, I think that following Woody Allen’s joke about oral contraception, the women of Missouri should just mutually agree to stop having sex with Republicans…

What A Shame The Republicans Lost

Shorter Verbatim Grover Norquist: “Bob Sherwood’s seat would have been overwhelmingly ours, if his mistress hadn’t whined about being throttled.” Yeah, what a tragedy that these moral giants no longer control Congress.

Party of Lincoln: Still Dead

Trent Lott: the #2 Senate Republican. Maybe the GOP will now make Jeff Sessions the RPC chair too, just like Red State wants.

I forget if it was Atrios or Josh that put this up on their site during the Lott incident, but let’s return to the 1948 Dixiecrat Platform, which Lott endorsed in 2002:

1. We believe that the Constitution of the United States is the greatest charter of human liberty ever conceived by the mind of man.

2. We oppose all efforts to invade or destroy the rights guaranteed by it to every citizen of this republic.

3. We stand for social and economic justice, which, we believe can be guaranteed to all citizens only by a strict adherence to our Constitution and the avoidance of any invasion or destruction of the constitutional rights of the states and individuals. We oppose the totallitaran, centralized bureaucratic government and the police nation called for by the platforms adopted by the Democratic and Republican Conventions.

4. We stand for the segregation of the races and the racial integrity of each race; the constitutional right to choose one’s associates; to accept private employment without governmental interference, and to learn one’s living in any lawful way. We oppose the elimination of segregation, the repeal of miscegenation statutes, the control of private employment by Federal bureaucrats called for by the misnamed civil rights program. We favor home-rule, local self-government and a minimum interference with individual rights.

5. We oppose and condemn the action of the Democratic Convention in sponsoring a civil rights program calling for the elimination of segregation, social equality by Federal fiat, regulations of private employment practices, voting, and local law enforcement.

6. We affirm that the effective enforcement of such a program would be utterly destructive of the social, economic and political life of the Southern people, and of other localities in which there may be differences in race, creed or national origin in appreciable numbers.

7. We stand for the check and balances provided by the three departments of our government. We oppose the usurpation of legislative functions by the executive and judicial departments. We unreservedly condemn the effort to establish in the United States a police nation that would destroy the last vestige of liberty enjoyed by a citizen.

8. We demand that there be returned to the people to whom of right they belong, those powers needed for the preservation of human rights and the discharge of our responsibility as democrats for human welfare. We oppose a denial of those by political parties, a barter or sale of those rights by a political convention, as well as any invasion or violation of those rights by the Federal Government. We call upon all Democrats and upon all other loyal Americans who are opposed to totalitarianism at home and abroad to unite with us in ignominiously defeating Harry S. Truman, Thomas E. Dewey and every other candidate for public office who would establish a Police Nation in the United States of America.

9. We, therefore, urge that this Convention endorse the candidacies of J. Strom Thurmond and Fielding H. Wright for the President and Vice-president, respectively, of the United States of America.

So, in other words, “these problems” were Brown v. Board and the Civil and Voting Rights Acts. Just keep this in mind the next time some Republican hack tries to claim that the GOP represent MLK’s or Rosa Parks’s true heirs, because they oppose affirmative action…

…C&L has the video.

Raise The Green Lantern

As you would expect, it takes Glenn Reynolds to really push the Green Lantern Theory of Geopolitics to sublime heights of lunacy. Does the deteriorating situation in Iraq prove, say, that state building in a context where civil society essentially didn’t exist and where sectarian divides provide the main basis of social control is enormously difficult? Oh, no. Bush certainly could be turning Iraq into Switzerland with a lot more people being blown up, but: “And my speculation that Iran has some method — nuclear or otherwise — that has deterred us from taking the kind of action that both Bill Quick and I expected in 2004 is seeming better-founded.” (This isn’t the first time, alas, he’s “speculated” about Iran’s mythical nuclear weapons.) At any rate, it’s not “better founded” in the sense that there’s a shred of evidence that Iran has nuclear weapons or some other secret form of blackmail. But it is true that Reynolds’s assumptions that military power can accomplish anything if you want it, that “more rubble less trouble” counterinsurgency can coexist with democratic state building, and that everything in Iraq is great (or at least would be great if it weren’t for those meddling reporters) are becoming more and more transparently false by the day. But Reynolds can’t be wrong, so we must turn to fantasy to explain the easily explicable.

I guess I shouldn’t be too hard on him–at least his visions of armies of Iranian unicorns equipped with death rays is distracting him from his stab-in-the-back arguments, which I’m sure he’ll return to post-haste.

The "Maximizing Abortion Rates" Gambit

Amy Sullivan’s recent article celebrating anti-choice Colorado SenatorGovernor-elect Bill Ritter makes some arguments that allow me to clarify some of my difficulties with “centrist” arguments about abortion. First of all, there’s this:

Early in the 2004 campaign, John Kerry caused an uproar among pro-choice supporters when he told an Iowa newspaper that he believed life begins at conception. But, at the same time, he lost pro-life support when a handful of conservative bishops suggested he be denied communion because of his history of voting against abortion restrictions. And his abortion answer during the second presidential debate didn’t make anyone happy. George W. Bush found it easy to shoot down Kerry’s version of the Mario Cuomo I’m-personally-opposed-but-can’t-do-anything-about-it-as-an-elected-official formulation, immediately replying: “I’m trying to decipher that.”

Well, there’s one person who was happy about Kerry’s squishy response: Amy Sullivan. Is she now saying that this isn’t an effective way of discussing the issue? At any rate, what’s more frustrating is the double standard at work. George Bush’s “position” on abortion–which seemed to consist of platitudes about “the culture of life,” babbling about Supreme Court decisions concerning slavery he didn’t understand, and ignoring the Republican platform’s position on abortion entirely–is considerably less coherent than Kerry’s, but somehow abortion centrists rarely find his arguments hard to decipher.

But this is a minor point. The bigger problem is, again, vagueness about what an abortion compromise should look like. Sullivan says that “Ritter has successfully taken abortion off the table. He has illustrated how people who answer to the labels “pro-life” and “pro-choice” can still reach agreement on the value of reducing abortion rates through prevention of unintended pregnancies and not by locking up doctors and women.” All well and good, but the problem is that the assiduous strawman-building of many pundits and anti-choicers aside the position that abortion should not be criminalized but policies that reduce abortion rates (such as access to contraception, rational sex education, child care, etc.) should be instituted is the pro-choice position. If the compromise to be reached with pro-lifers is simply that the pro-choicers win, fine with me. But obviously it’s more complicated than that. Here’s where the harder issues come in:

This head-on approach is different than that of many older Catholic Democratic politicians, who privately share Ritter’s views but have publicly adopted the pro-choice mantle. These Catholic Democrats aren’t worried that expressing pro-life views would cost them votes–in fact, a majority of Americans (62 percent) believe that there should be some restrictions on abortion short of outlawing it completely. But they do fear losing dollars from pro-choice donors and PACs.

A new generation of Catholic Democrats–which, in addition to Ritter, includes Virginia Governor Tim Kaine, Pennsylvania Senate candidate Bob Casey, and Representative Tim Ryan of Ohio–disdains this political tip-toeing and wants to tap into the pro-restriction voters, 56 percent of whom supported Bush in 2004. They are standing up to both their church and their party by supporting birth control and insisting on a lower abortion rate. And they are putting substance behind this position. In September, Ryan introduced legislation in the House that includes a combination of prevention measures–funding for teen pregnancy prevention programs, improved access to contraception–and support for women who want to have their babies.

OK, first of all, the boldfaced portion drives me crazy. Nobody is “bucking” the Democratic Party by attempting to lower abortion rates per se, and it’s simply dishonest to say otherwise. Sullivan should name the names of the prominent Democrats or pro-choice activists who think that obtaining abortions is inherently preferable to preventing unwanted pregnancies, or she should stop saying it. But the kicker comes in her discussion of “restrictions on abortion short of outlawing it completely.” Since Sullivan, as she often does, invokes public opinion rather than advancing the normative position herself, it’s not clear what, if any, such restrictions she supports. But it’s these kinds of regulations where the conflicts that Sullivan is trying to paper over become manifest. From a progressive standpoint, there’s a huge difference between measures that prevent unwanted pregnancy by enhancing the freedom of poor women–which we can all support–and state coercion that, while leaving abortion access essentially unfettered for women similarly situated to Amy Sullivan, has much more dire consequences for abortion access for poor women who don’t live in major urban centers. Productive discussion of abortion compromises can’t simply conflate all methods of reducing abortion rates short of bans, which ignores very important questions. On providing access to birth control, a compromise is available; when it comes to regulations that make it difficult for abortion clinics to stay open, that’s where I get off the bus. And until Sullivan makes it clear what exactly she’s advocating, it’s difficult for a conversation to proceed.

Republican History Lesson

A commenter in this thread says that recess appointments can’t be used for the federal bench; actually, they can. This seems like a good time to remember that President Clinton used a recess appointment to appoint Roger Gregory, because Jesse Helms otherwise refused to allow an African-American judge to sit on 4CA:

On Dec. 27, in a bold move, Clinton took advantage of a congressional recess to appoint an African American to the most conservative court in the federal appellate judiciary. This was the first time in 20 years that a president has filled a judicial opening with a recess appointment, which allows him to seat a candidate while Congress is out of session.

“It is unconscionable that the 4th Circuit has never had an African American appellate judge,” Clinton said during his announcement. “It is long past time to right that wrong. Justice may be blind, but we all know that diversity in the courts, as in all aspects of society, sharpens our vision and makes us a stronger nation.”

Gregory, a 47-year-old Richmond corporate attorney, finds himself in the middle of a high-stakes political confrontation between Clinton and his senate judiciary committee nemesis Jesse Helms, R-N.C. Helms has used his position as committee chair to foil the nominations of three other African Americans nominated by Clinton to fill appellate vacancies, including the vacancy in the 4th Circuit, which is the longest standing vacancy in the federal appellate system.

But Democratic Senators who opposed William Pryor are the real bigots!

Mario Layola Has Made His Argument; Now Let Him Defend It

In light of Mario Loyola‘s quite remarkable claim that were the federal government were to pass a law requiring militias to disband instead of resisting a foreign occupation the people would obey, because “[n]othing trumps obedience for the rule of law in this country, not even religion,” I propose an L, G & M pop quiz. Which of the following incidents in American history best represents the rule of law trumping all other values in times of war or major social crisis?

A. Abraham Lincoln ignoring Ex Parte Merryman.
B. Andrew Jackson ignoring Worcester v. Georgia.
C. The rise of Klan violence, with the tacit (and often not-so-tacit) assent of state governments, to nullify the 15th Amendment’s enfranchisement of blacks after Reconstruction.
D. The nonviolent resistance to segregationist laws used the civil rights movement.
E. The violent resistance in the South attempting to nullify the desegregation of schools order in Brown v. Board.
F. President Bush asserting the ability to violate the FISA statute.

Seriously, where the hell does NRO find these people, a morgue?

Elections Have Consequences

Four of Bush’s more incompetent and wingnutty choices for the federal courts look dead. In general, the Senate Dems should study how Republicans obstructed Clinton’s choices in the last years of is term and do likewise.

Why "Partial Birth" Legislation Will Not Be Struck Down On Federalist Grounds

Since a couple of people have asked, I should probably say a little more than my flip response to Pithlord’s hope (and, at one time, prediction) that the federal “partial birth” legislation will not be overturned because it exceeds Congress’ Commerce Clause powers. The long version is here. The short version is that the Rehnquist Court’s Commerce Clause jurisprudence has made only very tentative steps (most of the federalism work has been done by its ridiculous “sovereign immunity” jurisprudence, which isn’t relevant to the case), and recent decisions make it clear that they’re not going to go far enough to strike down this legislation.

The Court’s decisions in Lopez and Morrison held that while Congress could, under the Commerce Clause, regulate economic activity, or activities that in the aggregate would “substantially affect” interstate commerce. Regulating possession of firearms around schools or creating a civil remedy in sexual assault cases were held to be neither commercial activities in themselves (which is obviously true) or part of a broader regulatory scheme to regulate substantial effects on interstate commerce (which is true of the first, more problematic with the second.) To strike down the abortion legislation, however, would not be an application but a significant expansion of this doctrine. Paying someone for an abortion (and because upwards of 90% of American counties don’t have an abortion provider, it’s not uncommon for this to be done by women from out of state) is, in itself, an economic activity. While the previous two decisions can be cabined in ways that don’t affect any major element of the modern regulatory state, claiming that regulating actual economic transactions is beyond Congress’ powers would have much broader effects if applied in a principled way–the Court’s decisions upholding the Civil Rights Act, for example, would become highly suspect.

In light of Raich, any chance that this kind of expansion of the court’s doctrines would happen has pretty much vanished. If the federal government can proscribe the use of marijuana grown legally purely for personal purposes, regulating a woman purchasing a medical service isn’t even a close case. Admittedly, judges do not always apply doctrines in a principled manner. But the Court’s more liberal members, as Raich, demonstrates, have been principled in upholding even substantively bad legislation. And one of the conservatives who would have to switch back compared the court’s previous decision striking down state “partial-birth” legislation to Dred Scott.

So, empirically, it’s clear that this legislation will not be ruled outside the bounds of Congressional powers. And, normatively, this is a good thing. Under modern economic conditions, getting the Court back into the business of making judgments about what commercial transactions have enough impact on interstate commerce is both unlikely to produce a coherent jurisprudence and likely to have very bad consequences. Madisonian separation of powers has been fairly effective at constraining the powers of Congress (indeed, Congress not being able to do enough has been a much more serious problem in American history than Congress overstepping its bounds.) The “partial birth” legislation should most certainly be ruled unconstitutional, but that’s because it’s an arbitrary restriction on a fundamental right, not because it’s beyond the powers of Congress.