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Normally A Scholar Is Pleased When Her Theory Is Confirmed…

[ 0 ] April 9, 2007 |

Mark Graber passes along this chilling story from the eminent political scientist Walter Murphy, author of the classic Elements of Judicial Strategy and many other major works (and a bestselling novel about a Chief Justice of the Supreme Court who becomes Pope to boot!) As Murphy details the incident:

“On 1 March 07, I was scheduled to fly on American Airlines to Newark, NJ, to attend an academic conference at Princeton University, designed to focus on my latest scholarly book, Constitutional Democracy, published by Johns Hopkins University Press this past Thanksgiving.”

“When I tried to use the curb-side check in at the Sunport, I was denied a boarding pass because I was on the Terrorist Watch list. I was instructed to go inside and talk to a clerk. At this point, I should note that I am not only the McCormick Professor of Jurisprudence (emeritus) but also a retired Marine colonel. I fought in the Korean War as a young lieutenant, was wounded, and decorated for heroism. I remained a professional soldier for more than five years and then accepted a commission as a reserve office, serving for an additional 19 years.”

“I presented my credentials from the Marine Corps to a very polite clerk for American Airlines. One of the two people to whom I talked asked a question and offered a frightening comment: “Have you been in any peace marches? We ban a lot of people from flying because of that.” I explained that I had not so marched but had, in September, 2006, given a lecture at Princeton, televised and put on the Web, highly critical of George Bush for his many violations of the Constitution. “That’ll do it,” the man said.”

Fortunately, he finally got a boarding pass, although after a warning that his luggage would be ransacked it was lost (coincidentally or not) on the flight home. Graber points out that Murphy is nobody’s idea of a doctrinaire liberal, but in some sense this is beside the point. Given the importance of air travel in this country, using it to harass and deny access to people who have been critical of the government is appalling, period. As Murphy concludes:

“I confess to having been furious that any American citizen would be singled out for governmental harassment because he or she criticized any elected official, Democrat or Republican. That harassment is, in and of itself, a flagrant violation not only of the First Amendment but also of our entire scheme of constitutional government. This effort to punish a critic states my lecture’s argument far more eloquently and forcefully than I ever could.”

The Profound Moral Commitments of Joe Lieberman

[ 0 ] April 8, 2007 |

Imus in the Morning:

IMUS: So, I watched the basketball game last night between — a little bit of Rutgers and Tennessee, the women’s final.

ROSENBERG: Yeah, Tennessee won last night — seventh championship for [Tennessee coach] Pat Summitt, I-Man. They beat Rutgers by 13 points.

IMUS: That’s some rough girls from Rutgers. Man, they got tattoos and –

McGUIRK: Some hard-core hos.

IMUS: That’s some nappy-headed hos there.

Har-dee-har-har! You can see why MSNBC signed him up. (As the Media Matters story notes, this is not exactly an isolated incident.) Meanwhile, Roger points us to this story, who reminds us (the error Roger points to has now been corrected) about one of Imus’ regular guests:

Both Senator Joseph I. Lieberman, independent of Connecticut, and Senator John McCain, Republican of Arizona, recently appeared on the show, and media figures including Frank Rich of The New York Times and Chris Matthews of MSNBC have also spent time with Mr. Imus. Senator Barack Obama, Democrat of Illinois, appeared on the show some time ago to promote his book “The Audacity of Hope.”

Ah, yes, that Joe Lieberman, the nation’s self-appointed morality co-czar (with Rambin’ Gamblin’ Willie Bennett). Note to all television producers and video game developers: make sure there isn’t a hint of nudity, and use lots of racism instead, and you’ll be fine! Finding some way for Lieberman to address his number one priority–promoting Joe Lieberman–would also help.

…And here, Holy Joe proves himself once again to be a more reliable recycler of feeble right-wing spin that Arlen Specter. Bravo!

Strange Empirical Alliances

[ 0 ] April 8, 2007 |

Reacting to Phyllis Schlafly’s latest support of a husband’s right to rape his wife (another example here), the Happy Feminist makes an excellent point: Schlafly has essentially the same conception of marriage as Catharine MacKinnon. The only difference is that Schlafly sees this institution as normatively desirable, which is as serious problem since if this is true MacKinnon’s normative position is clearly right…

…as Matt says in comments, one can read MacKinnon as making an entirely (and largely valid) empirical and historical argument, rather than an argument about the inherent properties of marriage, although her structuralism can be so crude at times that there’s a lot of slippage between the two.

Backing In

[ 0 ] April 8, 2007 |

More Please

Hey, clinching is clinching even if you do it while losing to a team that I don’t believe had previously scored while Pelosi was speaker. The Flames/Red Wings matchup is interesting, and at least brings back good memories. The game above is the only playoff game I’ve seen the the last 10 years, and one of the 3 or 4 most exciting events I’ve seen live. I happened to be in town for my father’s birthday-anniversary party, and he had tickets to a potential elimination game, so I stayed an extra day and took a crack of dawn flight back to Seattle to give my lecture that afternoon. I doubt that was the best teaching I’ve ever done, but quite worth it.

Alas for my negative rooting interests, the Canucks have a really favorable matchup; playing against the conference’s worst playoff goalie (OK, who are you taking him instead of? Unless you’re worried about Hasek getting hurt, the answer is “you’re crazy”) is what they need — I’m afraid they’re going to round 2. More about this later, perhaps with special guests, I’m sure…

…oh, and in terms of today’s play-in game for the Islanders, Damien Cox anticipates whining by Leafs fans: “But imagine the angst in Leaf-land if that game matters and the Devils trot out Scott Clemmensen and sit Patrick Elias.” You hear arguments like this all the time–it’s very common in baseball too–but it’s an easy question. The responsibility of the Devils is to do what’s in the interests of the Devils, which includes not risking an injury to your stars in a meaningless game before the playoffs. If you need somebody’s help to get into the playoffs, tough shit. The Leafs could have solved this by winning another game, and the Devils don’t owe them a favor.

…Jay reminds me if comments to congratulate Mike and all other Spartan fans for Michigan State’s win in the Frozen 4.

The Theory of Collective Gender Guilt

[ 0 ] April 7, 2007 |

Staunch feminist Glenn Reynolds, after linking to an idiotic McPaper op-ed attacking Nancy Pelosi for doing the same thing Newt Gingrich did (although, for some reason, the Clinton administration didn’t try to use his trip to gin up a pseudo-scandal for particularly dimwitted rubes), says this:

Interestingly, I think that the more Pelosi acts like a wannabe President, the worse it is for Hillary. And I think that Pelosi knows that.

Yes, and all those Republican Congressmen going to Syria–and, hence, wannabe Presidents–must be really bad for male Republican candidates, right? And we can just assume their motives are related to primary catfights, right? And George Bush’s failed, exceptionally unpopular presidency suggests that men are unfit to be President, right? Right? It’s just amazing that a law professor could still think this way in 2007.

…I agree with Sister Nancy Beth Eczema. I wish that Pelosi would stop worrying her pretty widdle head about big manly foreign policy issues. The administration’s immensely successful foreign policy will continue to create stable, pro-American and pro-Israeli liberal democracies throughout the middle east if the uppity women will just get out of the way and leave the big decisions to Bush and obscure members of Congress with more appropriate genitalia.

…and as an additional bonus, the “the fact that it’s cold on an individual day somewhere means that Al Gore is not to be trusted!” argument. Wow.

…good post here.

Rudy Giuliani: Entirely Unacceptable

[ 0 ] April 7, 2007 |

Exhibit Z. Well, at least we can be reassured that his assertions of unlimited executive power won’t extent to providing health care for poor working people, who frankly deserve to die if they “choose” not to purchase insurance.

Are You Sitting Down?

[ 0 ] April 6, 2007 |

Shockingly enough, assertions about operational connections between Iraq and Al-Qaeda turn out to be…completely bogus! Who would have thunk it? And just to pre-empt any claims that this is a strawman that nobody ever put forward as a justification for the war anyway, Glenn Reynolds thoughtfully compiled some links at the time to various conservative bloggers (in addition to himself) demanding more attention to Saddam’s fictitious connections to Al-Qaeda. I particularly enjoyed reading this one: “STEPHEN F. HAYES wonders why the White House continues to downplay the Saddam / Al Qaeda connection. I’ve wondered the same thing.” Yes, indeed, there was an obvious inference to be made from the fact that the administration (with the exception of the Vice President) largely declined to make direct assertions about Iraq’s alleged ties to Al Qaeda although this would have provided an unassailable justification for the war. The fact that Reynolds, Hayes, and other conservative pundits refused to connect the dots is quite remarkable; it’s not easier to make more hackish and factually bereft arguments in favor of the war than Bush himself, but some people succeeded.

High Stakes Don’t Ensure the Minimum Blues

[ 2 ] April 6, 2007 |

I have a discussion of Jan Crawford Greenburg’s new book up at TAP. The most valuable part of the book, I argue, is that it emphasizes how contingent the (relative) moderation of the late Rehnquist Court was. To excerpt one point:

The most sophisticated denial strategy is to point out that the Court rarely stays outside of the bounds established by political pressures for long. Long-established by the political science literature, this claim actually has considerable merit, and it is true that worries about the return of a “Constitution in Exile” are overblown. (It is highly unlikely that anything like a radical, pre-New Deal vision of federalism will ever command five votes in the Supreme Court. Even if it happened, the effects would be temporary, as the Republican Party would essentially be finished as a political force in its current form.)

Still, it’s important not to overstate the restrictions on the Court’s autonomy, or to assume that justices will always act in the strategic interests of the party that appointed them. In retrospect, it may seem inevitable that the Court has failed to take the highly unpopular step of overturning Roe v. Wade, but as Greenburg reminds us, Roe’s survival (in diluted form) was highly contingent. Had Ronald Reagan nominated Robert Bork when the GOP still controlled the Senate and saved Scalia to replace Lewis Powell, for example, he almost certainly would have gotten both confirmed. Similarly, Souter’s nomination by George H.W. Bush was a fluke based on the influence of John Sununu and Warren Rudman in the White House and strange internal machinations in the Department of Justice; without those things, Kenneth Starr would have been the likely nominee. Either result would have ended in Roe being overturned, and would have had a considerable impact in many other areas of law as well (most notably affirmative action and church and state issues). The Rehnquist Court could have been much more conservative than it was. Liberals shouldn’t get too complacent about the consequences should a Republican president get to appoint the replacement for John Paul Stevens or Ruth Bader Ginsburg.

As I say, it’s true that the Court–in general–tends to gravitate towards the political center. But there are also any number of exceptions to this rule, and (particularly during times of closely divided government) the Court often has considerable discretion about individual issues. The fact that overturning Roe might not be optimal for the Republican Party doesn’t ensure its survival by any means, and in fields where a great deal of rollback can be done outside the public eye the potential damage of making Roberts or Scalia the median vote on the Court is even greater.

The New Web Sexism

[ 0 ] April 6, 2007 |

Jessica breaks it down; read the whole etc. Elsewhere, Ann Althouse uses the article to once again to repeat a shamelessly misleading narrative about the incident, pretending that her silly, oft-refuted claim that being seen with Bill Clinton is a betrayal of feminism (while enthusiastically supporting Sam Alito and George Bush, of course, isn’t) was the only point she was making. But, of course, nobody would remember her post if this was her only argument; feminism being used as a transparent prop for right-wing resentment is pretty banal on the intarweb these days. Rather, people have criticized Althouse because she repeatedly mentioned Jessica’s body for no reason whatsoever, made puerile sniggering remarks about her (how can somebody look like both Paula Jones and Monica Lewinsky anyway?), and put forward grossly dishonest characterizations of the content of Jessica’s website in the midst of deranged conspiracy theories about the meetup. (To state the obvious, claiming that NARAL’s house blogger was invited to a Hillary Clinton event to get set up with Bill Clinton isn’t just evidence of a rather unhealthy obsession with Bill Clinton’s sex life at this late date, but implies that the most prominent feminist blogger in the city where the meetup occurred has nothing to offer a political campaign but her body.) If Althouse doesn’t want to be criticized for her behavior, she should stop being dishonest about why she’s being criticized.

Standing and Executive Power in MA. v. E.P.A.

[ 0 ] April 5, 2007 |

I finally got a chance to read MA v. EPA, the recent decision requiring the EPA to reasonably justify its decision not to regulate greenhouse gases under the Clean Air Act. The first component of the case is whether or not the parties challenging the regulation had standing to challenge the regulatory decision; this part of the opinion I completely agree with, and indeed I only wish that Stevens had the votes to overturn the key rule established in Lujan (a 1992 standing case in which Stevens wrote a concurrence persuasively rejecting Scalia’s narrowing of standing doctrine.) I would strongly recommend Jack Balkin’s two posts on the subject. First of all, he correctly notes that “[s]tanding doctrine is among the most unprincipled and arbitrary parts of American constitutional law.” And second, he’s also correct to point out that the narrowing of standing doctrine under the Rehnquist Court isn’t random, but will generally favor litigants seeking conservative outcomes. (People bringing property rights claims can always claim a direct injury, for example, but challenging the potentially unconstitutional funding of religious organizations becomes much more difficult.) My favorite quote about standing is William O. Douglas’ counter to the arguments of Warren Court house conservative John Marshall Harlan: “Taxpayers can be vigilant private attorneys general. Their stake in the outcome of litigation may be de minimis by financial standards, yet very great when measured by a particular constitutional mandate. My Brother HARLAN’s opinion reflects the British, not the American, tradition of constitutionalism. We have a written Constitution; and it is full of “thou shalt nots” directed at Congress and the President as well as at the courts. And the role of the federal courts is not only to serve as referee between the States and the center but also to protect the individual against prohibited conduct by the other two branches of the Federal Government.” In the American system, the merits of a constitutional argument should be more important than the identity of a litigant, and standing rules are particularly likely to be deployed in an outcome-oriented manner.

On the merits of the case, I’m actually a little more ambivalent. While I have little sympathy for conservative arguments about standing, I do think they have a point about deferring to reasonable executive applications of statutes. (This is not just conservative, of course; the crucial Chevron case, which requires the courts to defer to reasonable executive interpretations of statutes, was written by Stevens and joined by Brennan.) And it is important to keep in mind that as early as 2009 we could have a Democratic administration being supervised by very conservative federal courts. Still, for better or worse under the modern regulatory state judicial review plays a significant role, I’m much less optimistic than Balkin about the Court’s conservatives being as deferential toward a Democratic administration, and certainly I think that the majority’s construction of the Clean Air Act was far more plausible than the EPA’s (or the dissenters’), so this is probably a good outcome on balance. It is, however, important to remember that the modern state grants enormous policymaking discretion to the executive, and it would be dangerous to count on the Courts to overturn bad administrative decisions in most cases. Control of the White House is extremely important even if the climate for major legislative reform is unfavorable.

The Real Feminists: An Update

[ 0 ] April 5, 2007 |

Photo Sharing and Video Hosting at Photobucket

Admittedly, it’s hard to be much more of a staunch feminist than Glenn Reynolds, with his innovative program of no voluntary headscarves abroad and state coercion to get the head of the household’s permission before obtaining an abortion while you wait for a Reynolds-approved judiciary to extinguish your reproductive freedom at home. Still, I think when you want truly committed feminism, you have to go to the Family Research Council’s Tony Perkins. No headscarves abroad, no birth control and purity balls at home–frankly, I think this is an even more compelling feminist plan that Instapundit’s. Althouse’s “no Ann Taylor sweaters, support Bush and Alito” program is somewhere in the middle.

2007 Season Preview: NL

[ 0 ] April 4, 2007 |

On to the Senior Circuit, listed in predicted orders of finish that can be taken straight to your local bookie, wildcard asterisked. AL here.

NL EAST: NYM ATL (*) PHI FLA WAS Even among people picking them, there seems to be a consensus that the Mets will be down significantly. I don’t really see it; their starting pitching was thin last year, too, and with Maine there for a full year and Pedro possibly back in the second half (and supported by a good pen), the best offense in the league will cruise to the division title again. The Braves may be in some trouble long-term, but they’ll be a lot better this year; they were better than their record last year, their bullpen is rebuilt, and McCann could be the NL version of Mauer. I don’t think the rotation will be good enough to keep the division super-close, but it should get them the wild card. The Phillies are a hot pick, and certainly Howard-Utley-Rollins is an exceptional core, and Burrell is better than he’s given credit for, they have Hammel and some decent innings munchers. But the core is also no better than the Mets’, and especially after the idiotic Abreu trade the supporting cast is a lot worse, plus the bullpen both sucks and blows. And if there’s a tight race, you have to consider organizations. First of all, you have old-boys retread Charlie Manuel going up against one of the five best managers in the history of the sport and one of the most impressive young managers in the game, and Die on the Vine Gillick against Schuerholz and Minaya. Please. I’m afraid they’re missing the playoffs again. The Marlins are built on young-pitching quicksand, I think they’ll be victims of the Plexiglass Principle. Some people think the National will be historically bad. I think they’ll be saved by the league, and their lineup has more decent players than, say, the 2003 Tigers (although Dimitri Young is on board here too.) Their pitching, though, is atrocious–they will be the worst team in baseball this year.

NL CENTRAL: MIL CHI STL PIT HOU CIN Growing up an Expos fan has deeply ingrained in my memory that there’s a long distance between a compelling collection of talent and a championship team. But although I’d like to avoid the boutique pick, there isn’t actually anything resembling a good team in this division, so they seem as good a bet as anybody. I figure one year they’ll get lucky with their pitching, I like Cordero as a close, and they have some bats that can improve. The Cubs have made a big splash, and Soriano is indeed an excellent hitter and Pinella can run an offense. But their offense (as usual) has power but very little in terms of on base skills. They’ll need to get something out of the back end of their rotation, and I note the following combination of factors: Jason Marquis #3 starter; Alfonso Soriano in center field; managed by Lou “Just throw ^&)^*& strikes” Pinella. I can’t pick them. The Cards are in a lot of trouble, World Championship or no. Pujols is the best hitter in the game, but he’s surrounded by two once-great players with rapidly deteriorating skills and a bunch of OBP sinkholes, butchers, or both. The starting pitching is dubious even if Wainright can make the transition, and I don’t think there’s much reason to believe Izzy can pitch anymore. If Caprenter’s injury is remotely serious, they could lose 90+. The Astros are in similar shape, except that Berkman isn’t as good as Pujols. Lee will help, but not enough for a team that pretty much sends three pitchers to the plate every game, the rotation is highly questionable outside of Oswalt, and Lidge pretty clearly as Schiraldi disease. Clemens won’t save them this year. The Pirates don’t seem much worse than any of these teams; they have more good bats that the Astros, and on balance their pitching doesn’t seem much worse either. They’re not good enough to contend in a serious division, but I could see them being in the race in this one into the summer, which will be good for what looks like the coolest park in the league. Rob has covered the Reds.


NL WEST: SD LA ARI COL SF
Since I gave in an picked the Indians this year, the sabermetric bandwagon I’m jumping off is the Diamondbacks. See what I wrote about Milwaukee–there can often be a longer distance between good young talent and a really good team, and if the Diamondbacks have more impressive talent they’re not as far along. The Padres get no respect, but the offense and Cameron-led defense are both underrated, Giles is a good gamble, and I love Maddux in that park. I think they’ll win again if Hoffman holds up. The Dodgers are the overrated Old Media team, especially with Frucal on the shelf to begin the year, I’m not impressed. Losing Drew will hurt; Gonzalez is finished, and Pierre is a joke in center. Nomar! isn’t a great hitter for a 1B even if he stays healthy, and their best player is a 39-year old 2B. The rotation is pretty good if healthy, but I like the Pads more. The DBacks could win–Webb is backed up with some veterans who may have comebacks in them. But I think the bullpen with cause them to perform less well than their run differential–I’ll pick them in 2008. I frankly never know what the hell to make of the Rockies; it’s hard to build a championship staff in that park, but like the Brewers they have young players who have less upside but are further along than Arizona’s; I could see them putting up a fight. What has happened to the Giants during the last years of Bonds is pretty pathetic. Durham is pretty good but not a cleanup hitter, and the collection of stiffs surrounding Bonds is getting more decrpit every year (and effectively replacing Alou with David Roberts won’t help.) The pitching looks better in the raw stats than it is, and Zito is more a good ininngs eater than a star at this point despite his salary. And their closer is Armando Benitez. That could be one ugly bit of business in the country’s most beautiful city.

World Series: Cleveland over NYM.