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Annals of Bad Decisionmaking

[ 0 ] April 21, 2008 |

Apparently, the effect of eating four day-old spinach when you think you might have some kind of stomach flu is to remove all doubt. Hopefully blogging will remove shortly. In the meantime, since between the onset of illness and deluge of Real Work I neglected to blog for Equal Pay Day, allow me to delegate to Kay, who explains why it’s important to override Ledbetter. (Much more good stuff can be found here.)


Very, Very Bitter

[ 26 ] April 19, 2008 |

Kathy unloads some snark on Maureen “Feminism Should Too Be My Dating Service!” Dowd for asserting that, whatever that condescending girly-man Barack Obama might think, she was never bitter:

But there’s another problem with the opening sentence of the Dowd column. “I’m not bitter.” Oh Maureen — who the hell do you think you’re kidding? The woman positively soaks in bitterness. Marinates in it. It oozes out of her pen and pours into just about every damn word she writes. Her bitterness has utterly corroded her soul. It’s turned her into a twisted freak whose chief pleasure in life seems lie in vicious, barking-mad attacks on the only people capable of ending our long national nightmare — the Democrats. Seriously, if there is any other single person in the media who’s been a more powerful enabler of Republican high crimes and misdemeanors than Modo, I don’t know who it is.


There’s always been a weirdly gendered quality to Dowd’s bitterness. The main, and indeed often the only, point of nearly every column she writes is that male Democrats are girly men and female Democrats are castrating bee-yotches. It’s antifeminist, to be sure, but it goes waaaay beyond that into some warped, dark psychosexual realm of its own. Somerby calls her a “gender nut,” which is as good a term for it as any, I suppose.

Make sure to keep reading for the funny setup-with-MoDo anecdote, which will hopefully give pause to people who accept assertions that the media is obsessed with Bill Clinton’s penis because it’s what the public demands…


[ 78 ] April 18, 2008 |

Ann (or, as she as known in the New Yorker, “one blogger”) points out that Aliza Shvarts will be turned into the kind of apocryphal symbol that will be used by anti-choicers for decades. Ross Douthat approves: “there’s a larger sense in which stories like these – with the uncomfortable questions they raise for at least some segments of the pro-choice side – are too helpful to the pro-life cause to be ignored.”

But what exactly are these uncomfortable questions? The approximate percentage of abortions obtained because women deliberately choose to get pregnant specifically to get an abortion is zero. Even if Shvarts had intentionally induced three miscarriages, it would be silly to change one’s political or legal position on abortion based on such an obvious outlier. It’s also true that defenses of reproductive rights, like defenses of all rights, are not premised on the idea that every single person will exercise their rights in ways that everyone else will recognize as responsible or desirable, for the obvious reason that this would be a ridiculous standard.

On the other hand, Shvarts and the kabuki surrounding her does raise uncomfortable questions…for Americans who believe that (poor and rural) women should be forced by the state to carry pregnancies to term. The official position of the Republican Party, and as far as I can tell most pro-life groups, is that performing an abortion should be a serious criminal offense in all 50 states but obtaining an abortion should be subject to no criminal sanctions at all. Apparently, this is because women who obtain abortions are just too “desperate or helpless” to be considered moral agents in the eyes of the law. At any rate, if we are to take the typical public positions of American pro-lifers seriously, if Shavrts had actually done what she claimed to have done this would be much less problematic than an ordinary situation where a woman goes to a doctor’s office to terminate an unwanted pregnancy. So while Shavarts does nothing to undermine the case for legal abortion, she does provide another useful demonstration that the positions of American pro-lifers are a complete shambles: most of their public representatives are unable to explain why abortion is wrong and what should be done about it without collapsing into incoherence, reducing to extremely reactionary notions about women’s rational capacity, or both.

Stevens and the Machinery of Death

[ 21 ] April 17, 2008 |

Given what bean correctly identifies as the complexity of today’s ruling in Baze v. Rees, I’ll have to leave discussion of the fractured holding until tomorrow. For now, let me discuss one interesting and unexpected development. For the first time since the nearly-retired Harry Blackmun, the Supreme Court now has a justice who believes the death penalty to be categorically unconstitutional under the Eighth Amendment. Justice Stevens:

Finally, given the real risk of error in this class of cases, the irrevocable nature of the consequences is of decisive importance to me. Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses. The risk of executing innocent defendants can be entirely eliminated by treating any penalty more severe than life imprisonment without the possibility of parole as constitutionally excessive.

In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

Stevens’s concurrence provoked a rejoinder from Scalia. I hate to admit it, but while I certainly think Stevens has the better of the policy argument, as a matter of constitutional law I think Scalia’s (while I would certainly not endorse every detail) is more persuasive. In particular, I agree that the explicit mention of “life” in the due process clauses of the 5th and 14th Amendments — while not dispositive — certainly puts the burden of proof on those claiming that the 8th Amendment forbids the death penalty in all cases. And questions such as whether the death penalty has a deterrent effect and what role retribution can play in criminal punishments, there’s enough reasonable disagreement to justify leaving the policy judgment to legislators, especially since nobody could argue with a straight face that there’s anything remotely resembling a national consensus against it. I’m open to arguments about the death penalty as applied, but I continue to think that the Marshall/Brennan position on the death penalty isn’t terribly convincing.

The other interesting twist, as many of you have already inferred, is that Stevens voted to uphold Kentucky’s execution regime, deferring to precedent. (In this, he differs from Blackmun — he may think that the death penalty experiment has failed, but remains willing to tinker with the machinery of death.)

As Long As I Get Credit For Throwing The ’04 Election to Bush!

[ 17 ] April 17, 2008 |

Shorter Armed Liberal: A story poking mild fun at some conservative bloggers not notable for either their working-class cred or commitment to civil discourse will cost Democrats the 2008 election.

Evidently, this is doubly funny coming from Danzinger. What the Democrats really need, apparently, is to enthusiastically support a decision to waste hundreds of thousands of lives and trillions of dollars replacing a dictatorship that poses no significant security threat to the United States with an Islamist quasi-state allied with Iran. Now there’s electoral and policy gold! As long as all of the many people in midwestern dive bars who pick up the Voice every Wednesday don’t see a story making fun of some reactionary bloggers, of course…

[Via BMR.]

Trivial Pursuit

[ 0 ] April 17, 2008 |

I can’t say I’m sorry I missed this.

Lawyers, Judges, and Money

[ 11 ] April 16, 2008 |

The recently retired Justice O’Connor recently spoke at Hunter College with Justice Breyer, and was asked by a student if there was a vote she regretted casting. After rejecting the student’s suggestion that she choose Bush v. Gore, O’Connor named a case in involving judicial campaigns. She didn’t mention it by name, but I assume she meant Republican Party of Minnesota v. White, which struck down a prohibition on judges announcing views about “disputed legal or political issues.” (“Good,” quipped Breyer, “I dissented in that case.”) Dorothy Samuels notes that she has also spoken out recently about campaign donations to judges and their potentially corrupting influence.

I don’t think that the First Amendment should be construed to prevent the reasonable regulation of donations in judicial elections. Despite attempts by a lot of conservatives to portray campaign finance as an easy First Amendment issue, it’s actually complex. Donating or spending money isn’t pure speech but a means to make speech more widespread. This remains a core First Amendment value, of course, but in the context of elections it also conflicts with the crucial democratic assumption that individuals with unequal resources should still be civic equals at election time. And the problem of donations is even more acute with judicial elections: legislators aren’t supposed to be impartial in crafting legislation, but one would think that judges are supposed to be impartial in enforcing it. Other liberal democracies with a commitment to free speech have managed to regulate campaign donations and spending without heading down the slippery slope to crushing political dissent.

White, which was a pure speech case, is a lot trickier; I would probably reluctantly join the court’s opinion. And the case does bring up a broader question; if judges aren’t allowed to state their views, why have elections at all? O’Connor actually identified the problem in her concurrence:

Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. In doing so the State has voluntarily taken on the risks to judicial bias described above. As a result, the State’s claim that it needs to significantly restrict judges’ speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.

I sometimes find it hard to fault the Supreme Court for requiring states to push the idea of electing judges further down its logical path.

Big Media Roy

[ 11 ] April 16, 2008 |

Hey, the Voice still does publish good writing occasionally!

…and Tom Tomorrow visuals!

The Centrist Assumption Fallacy

[ 8 ] April 15, 2008 |

Excellent point about the tendency to assume that because lots of people in their respective parties (or ex-parties as the case may be) hate McCain and Lieberman their positions must be centrist:

Joe Lieberman says Barack Obama’s “got some positions that are far to the left of me and I think mainstream America.” Andrew asks what Lieberman can mean by this. I assume Lieberman is referring to Obama’s overwhelmingly majoritarian position on Iraq. After all, it’s been the key conceit of “centrists” like McCain and Lieberman ever since 2002 that to be for war in Iraq but somewhat aloof from the Bush administration is the centrist position. After all, it’s the view adhered to be John McCain and Joe Lieberman and McCain and Lieberman are well known moderates so their views must be moderate ones and mainstream and anyone to their left is “far left.”

That’s the central conceit of McCainism and Liebermanism alike, and it’s important to both of them to just keep repeating over and over again. After all, if they stop saying it someone might notice that whether or not either or both of them hold centrist views on some issues, they’re the two most extreme hawks in the Senate at a time when 60+ percent of the population agrees with the orthodox liberal view that we need to lay down a marker for leaving Iraq.

A similar dynamic is often at work in the very successful “liberals believe in judicial activism, while conservatives believe in judicial restraint” scam. If the Supreme Court reached a different conclusion about the Constitution’s requirements than Robert Bork, it was therefore “countermajoritarian.” And this is true even if a Supreme Court decision is so overwhelmingly popular that post-Bork conservative nominees feel compelled to evade or give dishonest answers to questions about their positions opposing it.

Subjective Intent Isn’t the Issue

[ 0 ] April 15, 2008 |

One thing to say about this thread, which has won a coveted Belle Waring Award for Outstanding Achievement in the Field of Excellence in Trolldom, is that given the inevitable displays of racism we’re going to see as Obama runs for president we’re going to be seeing a lot more of one of the central arguments there. That is, the “you can’t say that anything is racist, including an experienced border state politician calling an adult African-American man “boy,” without unequivocal evidence of that person’s intent” argument. The beauty of this standard — which his trolls also used to defend George Allen — is that you can never prove racism because the knowledge in question is unknowable. How can you know to an absolute certainty what’s in David Duke’s mind? You can’t.

It’s essentially irrelevant anyway. It’s fair to use people’s statements to make inferences about intent in most cases, but more importantly the intent doesn’t matter; the comment is racist whatever was in Davis’s mind. Just as George Wallace’s ringing defenses of apartheid were racist even if they were in considerable measure just political posturing. When it comes to public rhetoric, it’s public meanings not private intent that matters.

Red-Baiting, Live From 43rd Street!

[ 10 ] April 14, 2008 |

When did Bob Owens get a gig with the NYT op-ed page? Nobody tells me anything anymore.

"I can handle things! I’m smart! Not like everybody says…"

[ 0 ] April 14, 2008 |

Poor Fredo.

In related news, see Gene Healy on John Yoo and the Neoconstitution.

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