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The Expansion of Religious Exemptions To Deny Women Health Care Continues

[ 26 ] February 22, 2008 |

Most of our readers are familiar with wingnut pharmacists claiming that they should be exempt from doing their jobs for religious reasons. In Canada, some doctors are apparently extending this to pap smears.


Better Policies: Sometimes Even Easier To Sell

[ 28 ] February 22, 2008 |

I had it on while doing other work and then watched it at the gym, so I didn’t see at all, but it should be noted that I don’t know whether it’s happy or sad that it was surprising to see a presidential candidate would say this:

And it’s absolutely true that I think our policy has been a failure. I mean, the fact is, is that during my entire lifetime, and Senator Clinton’s entire lifetime, you essentially have seen a Cuba that has been isolated, but has not made progress when it comes to the issues of political rights and personal freedoms that are so important to the people of Cuba.

In a sane world, this would be the starting point of a rational policy as opposed to an unusual claim, but once again thank Article II for giving relatively small constituencies in a few key states wildly disproportionate power.

To give the optimistic take on the debate tonight, in a rare triumph of public reason having the better policy on the merits was a considerable advantage to the debater. Clinton is at a bit of a disadvantage on her best issue, because while mandates are the better policy they can be a tougher sell politically, but she parried Obama bringing up garnishing wages very effectively. On the other hand, on the biggest American issue of the young century, Obama cut right to the heart of the matter:

But it also means using our military wisely. And on what I believe was the single most important foreign policy decision of this generation, whether or not to go to war in Iraq, I believe I showed the judgment of a commander in chief. And I think that Senator Clinton was wrong in her judgments on that.


And I think that, when we’re having a debate with John McCain, it is going to be much easier for the candidate who was opposed to the concept of invading Iraq in the first place to have a debate about the wisdom of that decision…


… than having to argue about the tactics subsequent to the decision.

Exactly right, and also proves the political benefits of good policy judgments at a larger level. As Clinton showed tonight, she isn’t a bad candidate, at all; very smart, likable, tough-minded. She continued to waste time with the “plagiarism” idiocy, but her closing (as has been noted elsewhere) was outstanding. Obama has gifts she doesn’t, but she’s a good candidate who would make a good president. But getting the biggest issue of her Senate tenure wrong, which also produces a clear political liability in the 2008 election, creates a prima facie case against her when up against a credible anti-war candidate. Among a majority of Democrats, she hasn’t overcome this (correctly, in my view.) But it’s hard to imagine that had she voted the right way her initial lead wouldn’t have been beyond even the ability of Mark Penn to screw up, especially since Obama may well have sat out this race. I think there’s a lesson there.

The Clinton Campaign

[ 0 ] February 21, 2008 |

Ezra and The World’s Most Dangerous Professor get in some shots before the plug is officially pulled. And, indeed, the late Penn/Ickes era of strategery is pretty much begging for mockery. What, for example, is this trying to accomplish? It’s 1)silly-to-appalling on the merits (with the particularly high comedy of a campaign dedicated to arguing that states don’t count if they’re too small, use caucuses, have too many black people, if Obama once spent a week there on vacation, etc. arguing that retroactively counting straw polls as elections is central to a “50 state strategy”), 2)not going to work directly because superdelegates aren’t going to reverse a loss in pledged delegates, and 3)unlikely to work politically (“if we go down narrowly we’re taking the Democratic Party with us” is unlikely to persuade many swing voters in Texas and Ohio to help stop the bleeding.) On the other hand, at this point such nonsense is just borne out of desperation; there’s no effective strategic means of getting out of the kind of hole the campaign finds itself in.

In some respects, then, I agree with Matt’s more charitable take although I’d put it a little differently: it was a failure to adapt. Pre-Iowa, the Clinton campaign was a logical frontrunner’s strategy well-executed. I agree with Matt that her communications and speech-writing people are good. What Iowa should have revealed, however, is that Obama was an unusual underdog not only because he has more compelling political gifts but — and this is the key — he had more resources. A frontunning strategy works against Huckabee, although he’s a better politician than his major competitors, because he just didn’t have the resources to compete outside of his base. Because Clinton almost but not quite squandered her big New Hampshire lead, she had a reprieve to react to Obama’s unique advantages, but she failed to do so; rather, her campaign seemed to think that their initial strategy was vindicated. It’s not exactly that the campaign intentionally left states on the table, but that focusing on big states usually allows the frontrunner to take the small states. However, Obama’s fundraising changed the usual calculus, and the Clinton campaign did blunder badly by failing to recognize this in time and not making the modest investment necessary to control Obama’s margins in small states.

In this sense, making fun of Mark Penn’s silly “states we lose don’t count” spin isn’t just a cheap shot, because it seems to reflect genuinely mistaken beliefs about the nature of this particular campaign. Usually, frontrunners can clean up small states off the momentum of big wins, but there’s nothing inevitable about this, and in a PR system failing to understand this is particularly costly. Clinton’s campaign did a lot of things well but could never react properly to the unique challenge posed by Obama.

Arbitrary Executive Power Hack Watch

[ 6 ] February 21, 2008 |

Julian Sanchez is probably right that in order to refute Andy McCarthy’s claim that the Sixth Circuit rejecting the ACLU’s standing to sue over the the Bush administration’s wireless wiretapping (and then the Supreme Court rejecting the appeal) demonstrates that the program is constitutional on the merits one needs merely to restate it. But just in case Tim Lee gives the long version. I’ll add that if anything the fact that the two Republican judges rested on standing if anything suggests that the program isn’t constitutional; if they believed the program to be constitutional they could have granted standing — as the dissenting judge plausibly did — and simply upheld the program on the merits. Although it’s possible in theory that the two conservative judges felt the program was constitutional but decided to rest on an illogical standing argument instead, it seems rather unlikely.

I’d have to say this may be my favorite example of McCarthy’s hackery since he suddenly reversed course and discovered in 2005 with no textual or logical support that filibusters of judicial nominees are unconstitutional. If all goes well, I think we can expect him to revert back to the correct position in roughly January of 2009.


[ 27 ] February 21, 2008 |

From what I can gather, at least from the standpoint of someone who has never thought John McCain had any particularly high level of integrity and could care less even if unsubstantiated implications that he might have had sex with someone not his wife are true, this is about as much a “blockbuster” as The Hottie and the Nottie. I just don’t see anything remotely surprising or, with the exception of the well-known Keating scandal, terribly important (although perhaps this portends something else or its political impact will be greater.) And although one might take solace from the fact that the Times is actually taking on the Straight Talkitude Express, the fact that they let his campaign kill an apparently more substantive version dilutes this.

Publius has more. In a rational world, I would agree that it’s “hard to imagine the NYT (after institutional deliberation) going forward with such an explosive article with such a thin foundation,” but when we’re talking about the former employer of Jeff Gerth and Judy Miller this isn’t necessarily true.

Today In Media Sexism

[ 7 ] February 21, 2008 |

The bad news is that Neil Cavuto discussed Hillary Clinton’s “kind of bitchy image.” The good news is that it was on Faux Business, so nobody was watching.

Exclusionary Rule Back On the Chopping Block

[ 12 ] February 20, 2008 |

I cringe whenever I see that the Roberts Court is taking a case like this:

In theory, a criminal-law doctrine known as the exclusionary rule forbids prosecutors from using evidence obtained by the police as the result of an improper search. In practice, the rule has significant exceptions, like for evidence obtained in good faith through reliance on an invalid search warrant or as the result of erroneous information from a court official.

Justices on the current Supreme Court have made no secret of their desire to carve more exceptions out of the nearly 100-year-old exclusionary rule. On Tuesday, the court accepted a new case that could provide a route toward that goal.

The question in the case is whether the list of exceptions should be expanded to include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police.

As Greenhouse points out, the disdain expressed for the exclusionary rule in the Hudson decision last year, which in yet another manifestation of the War On (Some Classes of People Who Use Some) Drugs being where civil liberties go to die refused to apply the exclusionary rule to illegal “no-knock” searches, makes clear that this decision is unlikely to be favorable to the protection of civil liberties. The Rehnquist Court has already held that — for no remotely convincing reason — the exclusionary rule shouldn’t be applied when the illegality was the result of a bad warrant rather than directly illegal police behavior. It seems pretty obvious that an even more reactionary court that illegal behavior by one branch of the police won’t require evidence obtained by other police officers as the result of the illegality to be suppressed. The fake-minimalist Roberts Court won’t overturn the exclusionary rule, just continue to gut it.

I explained last year why I think reducing the exclusionary rule to an empty shell is a bad thing. To repeat, “[w]hen Congress passes the “Ice Cream Castles In The Air. And A Pony!” act creating an effective, viable civil remedy for this particular violation of the 4th Amendment I might happily join” opponents of the exclusionary rule, but until then it’s the best remedy available. And it’s misleading to claim that the rule can’t benefit innocent victims; this is true in individual cases, but the larger effect of the exclusionary rule is to encourage professionalism and legality by the state by removing incentives to violate rights. The trend of the Rehnquist and Roberts Courts making it clear that the police can usually find a way to get illegally obtained evidence admitted creates the opposite incentives.


[ 28 ] February 20, 2008 |

Obama with a convincing win. But it doesn’t count because it’s a caucus there are too many black people there aren’t enough black people the state is too small. Now, if he wins a state with one candidate on the ballot and no campaign, then he might have something. Also, I have been informed that unlike most politicians he — and I don’t mean to shock you — does not personally write all of his own material. It’s only a matter of time before this crucial issue catches up to him.

The Summers Principle, In Graphic Form

[ 0 ] February 19, 2008 |



Clinton Rules

[ 24 ] February 19, 2008 |

Dr. Black:

I wonder when Politico will give us the “scoop” that Clinton is planning to hire the hit man who killed Vince Foster to take out all of Obama’s delegates.

As has been established at interminable length, I”m more than willing to point out actual examples of dirty tactics or incompetence from the Clinton campaign, but progressives really should be careful before accepting the truth of anonymously sourced articles in Drudgico.

The Federalism Dodge In Historical Perspective

[ 9 ] February 19, 2008 |

Dave’s post on Confederate nostalgia premised on an imaginary commitment to “States’ Rights” reminds me that one reason why John Marshall Harlan’s dissent in the Civil Rights Cases is one of my very favorite in the U.S. Reports is that he not only anticipated the bogus “special rights” argument but in contrasting the Court upholding the Fugitive Slave Acts and striking down the Civil Rights Act was also an incisive critic of the federalism dodge:

With all respect for the opinion of others, I insist that the national legislature may, without transcending the limits of the Constitution, do for human liberty and the fundamental rights of American citizenship what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves. If fugitive slave laws, providing modes and prescribing penalties whereby the master could seize and recover his fugitive slave, were legitimate exercises of an implied power to protect and enforce a right recognized by the Constitution, why shall the hands of Congress be tied so that — under an express power, by appropriate legislation, to enforce a constitutional provision granting citizenship — it may not, by means of direct legislation, bring the whole power of this nation to bear upon States and their officers and upon such individuals and corporations exercising public functions as assume to abridge, impair, or deny rights confessedly secured by the supreme law of the land?

Amazingly, the same faction that seceded in 1861 strongly favored the Fugitive Slave Act in 1850, although the wording of the Fugitive Slave clause and its placement in Article IV rather than Article I suggests that the rendition of fugitive slaves was a state rather than federal responsibility. (An argument can be made for the constitutionality of the law, but it certainly wouldn’t be made by someone with a serious commitment to narrow federal power.) And this was part of a completely consistent pattern. Mark Graber’s recent book is good on this, but until demographics shifted in favor of the free states most Southerners were advocates of strong federal power — John Calhoun started as a nationalist, Jefferson may have been tortured by the Louisiana Purchase but most of his supporters weren’t (and even he went ahead with it), and so on. The relevant principle the slaveholding states adhered to is straightforward: the protection of human bondage. When the federal government advanced the interests of slaveholders, they advocated strong federal powers; when the federal government didn’t advance those interests, all of a sudden the rights of the states were paramount.

And, of course, has been consistent from Reconstruction onward as well. Pro-apartheid Southerners who claimed that Brown v. Board was an outrageous arrogation of federal power generally didn’t object to the Tennessee Valley Authority, constitutionally dubious federal persecution of communists, federal spending programs as long as most of the benefits went to white people, etc. Almost everybody who purports to want abortion “sent back to the states” favors every federal abortion regulation to come down the pike. And so on. “Federalism” has never been an especially important independent factor in American politics; much more commonly, it’s a way of advancing substantive claims you’d rather not defend on the merits.

Hillary Clinton, Machiavellian Super-Genius

[ 50 ] February 18, 2008 |

I recently said that one shouldn’t be too harsh on the Clinton campaign, but this may have been premature:

Good lord, let’s see if I have this right. The Clinton campaign decides to cede every post-Super Tuesday state to Obama under the theory that Texas and Ohio will be strong firewalls. After – after – implementing this Rudy-esque strategy, they “discovered” that the archaic Texas rules will almost certainly result in a split delegate count (at best).

While they were busy “discovering” the rules, however, the Obama campaign had people on the ground in Texas explaining the system, organizing precincts, and making Powerpoints. I know because I went to one of these meetings a week ago. I should have invited Mark Penn I suppose. (ed. Maybe foresight is an obsolete macrotrend.)

I dunno, if I were paying someone upwards of $2 million for consulting I might expect them to, say, know the basic delegate allocation rules of states that might determine the nomination. Maybe they think that the “states that Mark Penn considers insignificant don’t count” rule will be applied ex post facto right after they count the delegates from the Michigan and Florida straw polls.

These errors are particularly problematic given the extent to which cases for Clinton depend on her allegedly greater political savvy, something that is more often asserted than demonstrated (which is pretty much inevitable when Mark Penn, Union Buster (TM) is running your campaign.) It’s true that the campaign can be seem as “tough,” but not in ways that are effective; leaving delegates on the table while you focus on futile strategies like trying to steal votes in Michigan or expect superdelegates to reverse a clear victory really wasn’t a good idea. But this is one good thing about a competitive primary: the proof of the pudding is in the eating.
If assertions about Clinton’s allegedly brilliant strategic skillz continue to prove false, she won’t be the nominee.

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