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[ 0 ] June 28, 2007 |

A judicial panel in Scotland has held that the only person convicted in the bombing of Pan Am Flight 103 may have been wrongly convicted and that potentially exculpatory evidence not available at trial has surfaced. I obviously have no way of judging the reliability of the evidence, but a detailed recent article in the LRB argues that there’s considerable evidence implicating a radical Palestinian group, that the crucial state witness was unreliable, and that there’s some reason to believe that Libya accepted responsibility as the price of re-integration.

School Integration Plans Struck Down

[ 0 ] June 28, 2007 |

And the Alito Court marches on; this was, alas, all too predictable. More when the opinions are released.

…opinions in pdf form here. Will post links to a format compatible with ongoing computer operation when they’re up.

…Christy has a good take here.

LIberal Fascism: The Next Iteration

[ 0 ] June 28, 2007 |

Ted Barlow has received a sneak preview of the next subtitle of Jonah Goldberg’s forthcoming epochal work of American letters:

Liberal Fascism: From Plato to the Pet Shop Boys.

National Review editor Jonah Goldberg lays out, in devastating fashion, the parallels between Hitler’s National Socialist party and modern-day liberals. In a very serious, thoughtful, argument that has never been made in such detail or with such care, Goldberg exposes the liberal plot to replace economic freedom with a council of eleven philosopher-kings, six East Coast boys and five West Coast girls. Read about how (Hillary’s? Obama’s? ed.) plan to abolish the family and destroy private property rights flows inevitably flows from a philosophy where the common good is always on their mind.

Impeccably researched and persuasively argued, LIBERAL FASCISM will elicit howls of indignation from the liberal establishment and rousing cheers from the Right.

And in the interests of fairness, I think it’s important to put this stirring defense on the record:

I resent the implication that the title of my colleague Jonah Goldberg’s new book should be seen as anything other than a deeply serious effort to stimulate a vigorous and productive intellectual debate.

As you well know, the argument has been made many times over the years that Big Government Liberalism is kinda like fascism, and is like, totally oppressive. But this argument has usually been made by anonymous usenet trolls with usernames like “H. Roark,” who rarely flesh out this argument with the detailed research craved by serious scholars, such as random frat-house anecdotes, Battlestar Galactica references, and historical analogies full of big words borrowed liberally from Wikipedia and the works of Victor Davis Hanson.

Never before has this classic freeper message-board screed been made with such detail and care, padded out to book length with filler, published by a non-vanity press, and largely ghost-written by talented writers like Ramesh Ponnuru.

Your refusal to take Jonah’s book seriously just shows how profoundly unserious and unwilling to engage in good-faith debate you cheese-eating surrender monkeys really are.

And he doesn’t even mention the important new findings that Hitler liked organic tofu potstickers!

Wow, And I Didn’t Think This Was Going To Be Profound!

[ 0 ] June 27, 2007 |

Shorter Verbatim Jonah Goldberg: “Brad Plummer [sic] is having predictable good fun with it. Of course, he doesn’t really seem to know what he’s talking about (oh, and it’s not like it’s news to me that the owner of Whole Foods is a self-described libertarian but maybe the German obsession with organic food and environmentalism, for two examples, is news to Plummer [sic.]).”

Oooh, so it’s going to be a book length version of the “Hitler Was A Vegetarian” fallacy. (Perhaps Jonah will even find out that those environmentalist Germans haven’t been fascist for quite some time.) I have no doubt that this will be a major intellectual contribution.

This seems about right.

…See also Julian Sanchez.

Kline: A Postscript

[ 0 ] June 27, 2007 |

An investigation of the Planned Parenthood being targeted by deposed Kansas panty-sniffer-in-chief Phil Kline shows that — he had nothing. Shocking!

Meanwhile, this article about pro-choice politics in Kansas is really interesting (Obama/Sebelius ’08!) [HT: Feministing] I also like this debunking of attempts to argue that the Dems won in ’06 by moving right:

For openers, seven of eight new Democratic senators and one Independent are pro-choice (Casey is the exception). Four more pro-choice governors were elected. The draconian abortion ban in South Dakota was soundly defeated. Voters also turned down ballot initiatives mandating parental notification for abortions in California and Oregon. A stem-cell initiative passed in Missouri, and candidates who ran on support for stem-cell research were overwhelmingly successful. And minimum-wage hikes passed on six of six state ballots. Pundits were also wrong about the Blue Dog Caucus in the House becoming pre-eminent: Actually, the Progressive Caucus gained many new members, and is the largest caucus in Congress.

There’s also a a fair amount of bad news, of course, but the midterms were very encouraging.

Whole Foods?

[ 0 ] June 27, 2007 |

I think, amazingly, that original title was a trfile less idiotic. I must admit that I’m unclear about how a chain selling food voluntarily to willing consumers represents “fascism” and “totalitarianism” in any sense, or the link between somewhat overpriced tasty organic produce and Hegel, but I’m sure the argument has never before been made in such detail and with such care! But why do conservatives hate capitalism?

“Various unrelated things I don’t like and resent because they’re associated with urban elites are fascism” really isn’t an argument that merits a blog post, let alone a book.

Dave Weigel and Ezra have more.

Oyez: Not Trustworthy?

[ 1 ] June 27, 2007 |

I’ve discussed before the phenomenon of a textbook repeating the right-wing canard that Bush v. Gore was 7-2. And now I see that Oyez, normally a valuable resource, is printing a lie about the vote in the case:

the per curiam opinion held 7-2 that the Florida Supreme Court’s scheme for recounting ballots was unconstitutional.

This claim is straightforwardly factually erroneous (it’s not even phrased in a weaselly technically-accurate-but-misleading way, like “7 justices found an equal protection violation of some sort.”) Breyer and Souter dissented. Full stop. They did not concur in part and dissent in part. They did not join the equal protection analysis of the majority, period; this is not a matter of debate. The fact that they identified an equal protection problem does not mean that they identified the same equal protection problem as the per curiam. To say that Breyer and Souter only disagreed about the remedy is missing the point; Breyer and Souter were pointing out that the remedy was wholly inconsistent with the equal protection violation they found. The difference on the remedy was also a difference on the merits.

Anyway, the per curiam opinion had 5 votes, not 7, and it’s dismaying that a resource so many students rely on is repeating right-wing spin in the immediate wake of the decision rather than the actual facts of the case. (Interestingly, the much-maligned Wikipedia actually gets it right.)

Pick a Theory, Any Theory

[ 0 ] June 27, 2007 |

At this thread over at TAPPED, some commenters tried to defend Scalia’s credentials as a principled originalist who was never political. In response, I mentioned Bush v. Gore, which not only had no conceivable “originalist” justification but failed to conform even to basic standards of the rule of law in order to legitimize the presidency of Scalia’s favorite candidate. A commenter then responded with an, ah, innovative defense:

True, the court didn’t rely on originalist arguments in Bush v. Gore, but that route was arguably foreclosed to it. Otherwise, you would have it overturn precedent that forbids arbitrary and disparate treatment to a state’s voters in its different counties – a precedent established in 1963. Scalia recognizes the doctrine of stare decisis saying it is a compromise operating on all judicial philosophies, origninalism no less than any others.

I trust that the argument that — on the same week in which Scalia called for pverruling two long-standing landmark precedents that were actually directly controlling to the case at hand! — Scalia had no choice but to accept stare decisis in Bush v. Gore based on a precedent that said absolutely nothing about how ballots cast with different voting systems should be counted is too transparently silly to merit substantial engagement. But this desperate gambit can be used to illustrate why grand theories don’t do very much to constrain judges in practice.

The first reason “originalism” doesn’t have a strong constraining effect is that even serious historians will disagree about historical evidence, and law office history generally falls well below these standards. Constitutions and statutes involve agreement among sufficiently diverse parties that originalists can often cherry pick evidence from some politically congenial source to resolve ambiguities. (If you want to (inplausibly) justify Brown v. Board in originalist terms, for example, you can focus on some Radical Republicans, place less emphasis on other legislators, and ignore the state ratifiers altogether.) If that doesn’t work, you can always climb Originalism’s Ladder and define broad constitutional principles at whatever level of specificity happens to support your desired outcome. This can justify a wide range of outcomes, but a potentially inconvenient side effect is that once you permit principles to be defined at a sufficiently high level of abstraction William Brennan’s jurisprudence can be just as plausibly be called “originalist” as Robert Bork’s.

But sometimes — as with, for example, federal affirmative action statutes, or Bush v. Gore — even this won’t fly. So then you can declare that originalism can be constrained by stare decisis, and even if you’re not hackish enough to claim that Bush v. Gore is supported by compelling precedents a pretty wide range of additional outcomes can now be justified, and Supreme Court justices have wide discretion about when to apply precedent and when not to. And to borrow a point from Jeffrey Rosen, in Scalia’s specific case you can also cite “textualism” and “traditionalism,” which gives you even more discretion. The text of the Constitution says nothing about equal protection not applying to gender? No problem; you become a traditionalist, and without paying virtually any attention to the text of the Constitution simply note that the country has a long history of gender discrimination that you decide is therefore self-justifying. But the country also had a long tradition of banning interracial marriage? Look, it’s Halley’s Comet!

This is not to say that these principles have absolutely no content, especially in the case of Thomas. And as I’ve said before, even the sporadic commitment of Scalia and Thomas to “originalism” is preferable to Alito, who is similarly reactionary without much of an overaching grand theory. But the idea that “originalists” are engaged in entirely non-political or non-”outcome-oriented” judging is obviously untenable.

Seems About Right

[ 0 ] June 27, 2007 |

From a chat at the Washington Post, responding to the Fred Hiatt’s bizarre decision to hire Slate‘s scientifically and mathematically illiterate advice columnist to share some inane thoughts about climate science and how Al Gore is very, very scarrrrrryyyyyyy [/Count Floyd]:

Silver Spring, Md.: I think Copernicus, Galileo and the modern astronomy community are all wrong about the sun-centered solar system. I don’t have any data, or any particular expertise in the field. All I know is that it bothers me to have people saying we orbit the sun, when I can clearly see it moving across the sky. Plus it is scaring the children to hear people talk about it. Could you tell me how to get an op-ed piece published at The Post? I hear they have no standards for this anymore. Thank you!

Eugene Robinson: I think there must be a Bush administration science panel that has a spot for you!”

Good one. And, of course, if there’s no science panel currently hiring there’s always the Supreme Court of the United States


[ 0 ] June 26, 2007 |

Make sure to pass condolences on to Lindsay.

Fraud Caucus

[ 0 ] June 26, 2007 |

It is definitely true, of course, that talking about how the war is awful while you continue to give the Bush administration everything it wants is much, much worse than just uncritically supporting the war. The effect is precisely the same, but the latter at least could theoretically be idiocy undertaken in good faith while the former position wants to add some unjustified self-congratulatory moral preening on top of their de facto support of the war. Lugar deserves less than no credit.

Free Speech and Selective Originalism

[ 0 ] June 25, 2007 |

Today’s “Bong Hits 4 Jesus” case actually turns on relatively narrow grounds. The problem with Roberts’ opinion is that it turns on a claim that punishing the student was justified because the banner was seriously advocating drug use. As Stevens points out, though, this isn’t very plausible:

I would hold, however, that the school’s interest in protecting its students from exposure to speech “reasonably regarded as promoting illegal drug use,” cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more.

… I take the Court’s point that the message on Frederick’s banner is not necessarily protected speech, even though it unquestionably would have been had the banner been unfurled elsewhere. As to the second, I am willing to assume that the Court is correct that the pressing need to deter drug use supports JDHS’s rule prohibiting willful conduct that expressly “advocates the use of substances that are illegal to minors.” But it is a gross non sequitur to draw from these two unremarkable propositions the remarkable conclusion that the school may suppress student speech that was never meant to persuade anyone to do anything.

In this case, however, I am happy about Alito and Kennedy concurring to narrow the scope of the opinion, emphasizing that Tinker is being upheld and that “it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.” I still find the application to be puzzling–couldn’t a principal, under this standard, “reasonably” conclude that a “legalaize drugs now!” poster “promotes” drug use?–but in this case better it be a misapplication of an acceptable principle.

Thomas, meanwhile (and, interestingly, without a join from Scalia) wrote a concurrence arguing that the landmark student speech case Tinker v. Des Moines should be overturned and schools be given the essentially unlimited power to censor student speech on (plausible, it must be said) originalist grounds. Oddly, however, in joining Scalia’s concurrence in another case today arguing that virtually all campaign finance laws are unconstitutional, neither of the Court’s two “originalists” managed as far as I can tell to muster a shred of evidence that the First Amendment was understood in 1791 as creating an absolute prohibition on the regulation of campaign spending and donation. Nor did Thomas’s dissent in McConnell contain a historical analysis of the original understanding of the First Amendment, although it does cite any number of libertarian 20th century precedents that would seem erroneous under a strictly originalist standard. Hmm, and the ability of wealthy people and corporations to give and spend money for political purposes is enormously important to the modern Republican Party and protecting the free speech of students who if you squint really hard can be vaguely construed as encouraging drug use is not. What an amazing coinky-dink!