Author Page for Scott Lemieux

Cohen: The Poor Man’s Bobo

Following up his ridiculous pre-emptive dismissal of the Fitzgerald indictments, Richard Cohen–for whom laziness is even more central than parroting center-right received wisdom–pulls the old “what’s the big deal if Roe gets overturned” routine out of the mothballs. Every fallacious assertion is there: Roe produced a social backlash because of its weak legal reasoning, overturning Roe will just return the issue to the states, choice won’t really be threatened by overturning Roe, and most legislatures won’t ban abortions because public opinion would oppose it. Let me say a bit more about the last two erroneous assumptions.

First of all, even if Cohen’s argument that just a handful of states would ban abortion post-Roe were true, it’s still pretty appalling; as Elton pithily explains, it’s sure easy for some guy sitting in Washington D.C. (or New York or LA) to tell poor women in Mississippi and Texas and Alabama to suck it up and head to the back alleys. It’s always easy to sell out other people’s interests. But, of course, it’s not true. Again, it’s remarkable the way that the abortion debate makes people forget things they should know about American politics, but it’s simply nonsense to assume that favorable public opinion leads straightforwardly to policy outcomes. And the nature of the abortion issue tends to emphasize countermajoritarian outcomes. In 1973, abortion had only been decriminalized in 4 states although public opinion was roughly the same as it is today, and of course a major reason for this is that affluent women already had abortion-on-demand irrespective of the legal situation in their state; generally, they could get a quite abortion from a doctor who would not be prosecuted, or at worst they could just go to a state where abortion was legal. Formally legal abortion matters most to women who have the least political power, which makes it much easier to keep formal abortion bans on the books. (If abortion bans were actually strictly enforced, that would be different, but they weren’t and wouldn’t be.)

But that was 1973–has something changed? Well, one thing has changed for the better: some states formally repealed their abortion statutes, which makes the status quo more favorable. But, still, 17 states would have immediate abortion bans in place, a lot more than Cohen is letting on. And, of course, two things have changed for the worse. First, very conservative Republicans have taken over statehouses, which favors pro-lifers greatly. And second, politicians are more insulated from public opinion, because beating incumbents has become virtually impossible (this is particularly important for the prospects of regulating abortion from the federal level, but matters at the states to.) As Hacker and Pierson point out:

As recently as a decade ago, a quarter or more of congressional seats were genuinely in play in any given election. Today, virtually none are. Thanks to the increasing power of gerrymandering, most house districts are completely safe…and Senate elections are also less competitive than they once were. This leaves favored candidates in to worry almost exclusively about pleasing their partisans. (9)

Incumbency’s power has also been increasing at the state level. In light of this, anybody who thinks that public support for legal first-trimester abortions will make abortion legal in most places has a remarkable naive and unsophisticated view of American politics. The precise number of abortion bans would depend on a number of factors, but in a context of Republican state governments largely insulated from electoral pressure, 15 states passing or maintaining abortion bans after Roe is a conservative, low-end estimate; it could be much higher. And it’s more a question of “how much” rather than “whether” Congress will regulate abortion unless the Dems can take over one or both Houses. But, hey, if you’re a sixty-year old man and most of the women you know live in the most liberal states in the country, what do you care?

Sharpen Up The Forks

Jack Balkin recently discussed Epstein and Segal’s new study of judicial nominations, which suggested that the Miers nomination would be an uphill climb at best. My assumption has always been that the historical data would be of only limited relevance, because of the increasing parliamentarization of Congress (which I’ll discuss further in what will I’m sure be a flurry of posts about the new Hacker and Pierson book.) I figured that Bush would be particularly stubborn about the nomination of his friend, and that he would be able to ram it through. But I think right now that it’s very unlikely. The increasing circulation of minor ethical lapses suggests a number of rationales that could be used to withdraw the nomination; it reminds me of the alleged conflicts of interest that were used to sink Clement Haynsworth (the first of the two Nixon appointees rejected before Nixon appointed Blackmun.) My sense is that a lot of Senate conservatives are making the same calculations I have–forcing Miers’ withdrawal is likely to lead to someone younger, better and more conservative. While, conversely, the defenses of Miers have been so inept and her qualifications so poor that it would be (rightly) difficult for Senate Dems to actually support her, as opposed to passively letting Republicans vote to confirm. Bush is no longer just lame; he’ certainly giving off a pretty ducky odor these days, and it’s not clear if he would have the leverage to get recalcitrant Senators in line. And the remarkably small number of committed Senators is an ominous sign. I think, contrary to my initial assumption, that the nomination is doomed.

I remain convinced that this is likely to be a bad thing for progressives, on balance. I hope I’m wrong about the type of judge that Bush would appoint as a replacement, but it would seem to me that the obvious move for him would be to appease his base. It could get really ugly.

Hacktacular!

Kay Bailey Hutchison on potential indictments in the Plame case:

I certainly hope that if there is going to be an indictment that says something happened, that it is an indictment on a crime and not some perjury technicality.

Hutchison’s statement on the impeachment of William Jefferson Clinton:

(i) The President of the United States willfully, and with intent to deceive, gave false and misleading testimony under oath with respect to material matters that were pending before the Federal grand jury on August 17, 1998, as alleged in Article I presented to the Senate. I, therefore, vote `Guilty’ on Article I of the Articles of Impeachment of the President in this Proceeding.

So, to clarify, perjury as part of a conspiracy to protect someone who burned a CIA operative, with charges brought by a Republican prosectutor–not even worth an indictment. But perjury as a result of a trap set by a rabidly partisan prosecutor: sufficient grounds for impeaching the President of the United States, despite the fact that the perjury had nothing whatsoever to do with his role as President. Okey-dokey! (And this was not ordinary political rhetoric–Hutchison was formally justifying an impeachment vote during a Senate trial.) And I’m sure we’ll be seeing a lot more of this when Fitzmas comes…

…Whoops: Julia, not suprisingly, already had this.

The Tautology That Broke the Camel’s Legs

St. Maggie of the Non-Sequitur:

Imagine you stand in the middle of vast, hostile desert. A camel is your only means of transversing it, your lifeline to the future. The camel is burdened– stumbling, loaded down, tired; enfeebled– the conditions of the modern life are clearly not favorable to it. But still it’s your only hope, because to get across that desert you need a camel.

Now, chop off its legs and order it to carry you to safety.

That’s what SSM looks like, to me.

Like, whoa, man. I didn’t know cultural conservatives had become OK with dropping acid before blogging, but I suppose this may portend some flagging in the drug war.

The thing, though, is that this ridiculous analogy really isn’t any worse than any of her other “arguments”. SSM just feels wrong to her; there’s ultimately nothing else going on here. The core of her non-arguments is feeble claims that since we’ve generally excluded same-sex couples from marriage we have to keep doing it (“History is on my side,” “This would be a major social change”), which have the obvious problem that they’re equally applicable to segregation, female disenfranchisement, and any other historical injustice you can name–in a liberal democratic society, traditions should not be self-justifying. Perhaps recognizing this, she argues that there is a rational reason: marriage is defined by procreation. But this justification fails because 1)it’s false (marriage has many other functions, we don’t exclude heterosexuals who can’t or won’t procreate from marriage), and 2)it wouldn’t logically exclude same-sex marriages even if it was true. So rather than defending this ostensible justification, it’s back to crazy metaphors about camels. And this is what all comes down to: irrational prejudice, a feeling that it would just be icky to let people whose sexual practices some people don’t like to get married. This argument is nothing but a crude tautology, and it’s never getting any better. Maybe I’ve been too hard on Volokh; if he was using Gallagher as a double agent to prove that arguments against SSM are remarkably bad, her guest-posting stint was certainly a success.

Julian Sanchez explains in more detail.

The Positive Effects of Lawrence

It’s obviously good news that the Kansas Supreme Court has ruled that anti-gay discrimination in the state’s statutory rape law is unconstitutional. This would this also seem to mean that Michael M.–which ruled that statutory rape laws that exclude women from punishment are constitutional–is an effective dead letter (unless the Supreme Court overturns this decision) since gender classifications face a higher level of constitutional scrutiny that classifications based on sexual orientation. And that’s a good thing (the discrimination being illegal, I mean, not the fact that classifications based on sexual orientation do not face a higher level of scruitny, which they should.) As Brennan correctly noted in his Michael M. dissent, the law was quite clearly based in “outmoded sexual stereotypes,” and no aspect of criminal law should hand out differential punishments based on irrational discrimination.

There are a couple of other interesting things about the case. The first is to note that the discrimination here is far from minor:

In a case closely watched by national groups on all sides of the gay rights debate, the high court said the law ”suggests animus toward teenagers who engage in homosexual sex.”

Gay rights groups praised the ruling, while conservatives bitterly complained that the court intruded on the Legislature’s authority to make the laws.

The case involved an 18-year-old man, Matthew R. Limon, who was found guilty in 2000 of performing a sex act on a 14-year-old boy and was sentenced to 17 years in prison. Had one of them been a girl, state law would have dictated a maximum sentence of 15 months.

16 extra years in the slammer purely because of your sexual orientation–serious discrimination indeed. The other thing is that we can see in the lower court’s opinion yet more examples of classic cultural conservative illogic, neatly skewered by the KSC’s opinion:

The two appeals judges in the majority offered various justifications for the differing punishments.

One judge, Henry W. Green Jr., said the Kansas law promoted “traditional sexual mores,” “the traditional sexual development of children,” marriage, procreation and parental responsibility. Judge Green added that the law helped protect minors from sexually transmitted diseases, which he said were more generally associated with homosexual than with heterosexual activity.

A second appeals court judge, Tom Malone, endorsed only the final rationale, though he called it tenuous. A dissenting judge, G. Joseph Pierron Jr., wrote that “this blatantly discriminatory sentencing provision does not live up to American standards of equal justice.”

In its decision yesterday, the Kansas Supreme Court ruled that the Lawrence case required reversal of the lower-court decision in Kansas. The State Supreme Court rejected all justifications offered by the appeals court. “The moral disapproval of a group cannot be a legitimate state interest,” Justice Marla J. Luckert wrote for the unanimous court.

Justice Luckert rejected the argument that homosexual sex is more likely to transmit diseases.

“The Romeo-and-Juliet statute is overinclusive because it increases penalties for sexual relations which are unlikely to transmit H.I.V. and other sexually transmitted diseases,” Justice Luckert said, referring to the oral sex in the Limon case and sex involving two women. “Simultaneously,” she continued, “the provision is underinclusive because it lowers the penalty for heterosexuals engaging in high-risk activities,” notably anal sex.

The fit between the law and the rationales offered for it is so poor, she concluded, that it violates the Constitution’s equal protection clause.

The appeals court’s majority, in other words, depended on one judge for whom the public health rationale was the only justification that could save the statute. But this rationale is, of course, transparently unserious. As the KSC pointed out (and as a couple people noted when Eugene Volokh trotted out his own pernicious arguments about homosexuality and public health), if male homosexuality is to be discouraged because it is more likely to lead to STDs, then the state would have to be logically committed to encouraging same-sex intercourse among women, as this is safer in general than heterosexual intercourse, and certainly could not punish relations between women more than heterosexual relations. But the Kansas law didn’t make such a distinction, because of course the arguments about “traditional sexual mores” are doing 100% of the work. And this is not the rational, secular justification that is necessary if the state is going to mete out massively inequitable punishments to different groups of people.

The fact that even in one of the country’s most conservative states judges are beginning to see through this kind of discrimination is a very positive sign, and also shows the importance of overturning Bowers.

Annals of Sports Self-Pity

As Rob’s recent post notes, the presence of one team that hasn’t played in a World Series since its inception in 1962 and another that hasn’t won since the Wilson administration has generated a lot of discussion about cursed sports teams. The greatest pain, however, is not a team that’s really bad–when you have no hope, there’s less to be crushed. This reminds me of a study published in the 1999 Big Bad Baseball Annual ranking teams by their number of close finishes versus their successful seasons. It was listed under the Angels team comment, as the author was sure that they would finish first (evidently, this is no obsolete.) They were third; the Giants second, Milwaukee fourth. (The Cubs, because they won the division the only two years of the 80s their team was better than atrocious, don’t rank particularly high.) The #1 team, however, should have been clear: none other than mes amours, The Expos. And the hard numbers don’t tell the whole depressing take.

The Expos had a formidable talent base in the late 70s and early 80s, but in 1979 and 1980 lost a pennant race on the last weekend of the year to the eventual World Champion (in the latter year, the deciding game was lost when Dick Williams decided to pitch to Mike Schmidt with a runner on and first base open in the top of the 11th with the immortal Pat McCormack on deck. The result is currently orbiting Neptune.) In 1981, they won the mini-series, but lost a deciding game 5 of the NLCS on a homer in the top of the ninth by Rick Monday. (During the strike, they actually played the game on the radio–and I listened. You don’t become an Expos fan without a lot of masochist in you.) They slowly squandered the Carter/Raines/Dawson/Wallach/Rogers years in bitter disappointment, under the hapless direction of Jim Fanning and Bill Virdon, finally recovering under Buck Rodgers but with considerably less talent. In 1987 and ’89, they occupied first place for significant periods but lost (and the latter year was costly, as they traded Randy Johnson as part of the pennant race.) With the hiring of Felipe Alou, they began to build into an excellent team again–Dan Duquette does a lot of dumb things, but he made a series of exceptional trades during this time. (It could be argued in retrospect that my argument that he was wrong to trade Delino DeShields for Pedro Martinez was not sound.) in 1992 and ’93 they again lost pennant races in September. In 1994, of course, they were the best team in baseball…when the World Series was cancelled. After that, Expos history was a long death march as ownership decided to strip-mine the team, although they lost the wildcard on the last weekend again in 1996. And, of course, the team has finally expired, meaning that for the Expos fan the coitus interruptus is permanent. So, to all you other self-pitying fans, I say you’re pikers!

To return to something that at least a small percentage of out readers would actually care about, there’s the question of this World Series. I still have some doubts about the White Sox, but one thing I didn’t take sufficiently into account is that they do have a lot of power. (This is particularly important in the post-season, because the better the pitcher, the harder it is to put together long offensive sequence.) I wouldn’t trust Garland against a really good offense, but the Astros don’t have a really good offense, and otherwise the White Sox’s pitching depth balances out the Astros’ superior front line (although I’d much rather have the ‘stros bullpen.) If Clemens were clearly healthy, I think the series would be dead even; since he isn’t, I’ll say White Sox in 6. That’s fine with me; they’ve probably suffered enough.

Give Me Something To Work With Here

I’m trying as hard as I can to maintain my contrarian stance about Harriet Miers. (And, ultimately, I still maintain it; I still haven’t heard a persuasive argument, in specific and tangible terms, explaining why whatever damage it is that Miers would do could possibly outweigh the bad effects of having a Priscilla Owen on the Supreme Court. Given that the Court’s only sustained period of great progressive jurisprudence hit its stride with people like Sherman Minton and Charles Whitaker and Tom Clark on the Court, it certainly can’t be the case that one mediocre justice threatens the Court’s institutional legitimacy.) But still, I admit that things like her inability to understand basic aspects of equal protection law on her questionnaire does make it difficult to sustain even a passive-aggressive Machiavellian defense. And as Drum said, this is particularly embarrassing for the Bush Administration. As Pamela Karlan says: “Are they trying to set her up? Any halfway competent junior lawyer could have checked the questionnaire and said it cannot go out like that. I find it shocking.” It’s not like it’s the LSAT; it’s pretty embarrassing the Bush can’t get it together enough to find a lawyer who could competently answer the questions for her. See also Dahlia Lithwick’s alternative questionnaire (“4. Is it correct for a comma to appear before a coordinating conjunction linking the parts of a compound predicate? 5. You have named Chief Justice Warren Burger as one of your favorite Supreme Court justices. Is it his devastating intellect, his soaring writing style, or his evenhanded administration of the court that you most admire? Where do Charles Whittaker and James McReynolds rank among your Top 10 Justices? 9. Please name any state Bar Associations from which you have yet to be suspended.”)

In other Miers news, I noted last week that Charles Krauthammer accused anyone who disagrees with him of not doing judicial interpretation at all, while his examples were entirely outcome-oriented. Well, as Dwight Meredith points out, he’s certainly out-hacked himself this week. A few months ago, Krauthammer–not alone among conservative commentators–invented a constitutional obligation for the Senate to give a nominee an “up-or-down” vote. Now that Bush has appointed an ideologically ambiguous crony, however, the Senate’s role has once again been transformed back into something resembling the real one; how surprising. Dwight sums up Krauthammer’s “principles” effectively:

So, let’s see if we can discern the principle Krauthammer applies to judicial nominations. First, he decries the use of a parliamentary maneuver, the filibuster, when it is used to block nominations he favors. He supports the use of a parliamentary maneuver, the nuclear option, when it would result in confirmations of nominees he favors.

He thinks that it is important and, indeed constitutionally required, for a judicial nomination to receive an up or down vote when he favors the nominee. When he opposes a nomination, he calls for withdrawal of the nomination without the need for an up and down vote.

When Democrats use a dispute over the production of documents as an excuse to block a nomination Krauthammer favors, he is prepared to go nuclear. Nonetheless, since he opposes the Miers nomination, he advocates using the excuse of the failure to produce documents as a way to prevent an up or down vote on her confirmation.

Krauthammer’s principle is clear. He is for or against whatever it takes to confirm the nominees he favors and to prevent confirmation of those he opposes. It is the principle of convenience.

100% right.

Judy Under The Bus: Better Late Than Never

Ah, looks like phony First Amendment martyr Judy Miller is finally being abandoned by the Times, although this would have meant considerably more had the Times figured this out a few months ago, or even better when she was destroying the paper’s reputation by acting as a shameless government propagandist in the run-up to a war. (In other words, Keller should be going down with the ship too–he staked his credibility on Miller, and he was wrong.)

Kassism At Target

Media Girl notes that Target is defending its pharmacists when they refuse to fulfill prescriptions for contraception. Great. (It is nice that Kass informed us that female contraception is particularly evil, which explains a lot; somehow I doubt that any of these pharmacists refuse on principle to work at stores that sell condoms.) And the fact that Target is willing to buckle demonstrates that the beliefs of the President’s handpicked bioethics czar about gender and sexuality are far from fringe ones. As MG says: “There are people who believe women must be punished for having sex, and now, in the 21st century, they have corporate and governmental backing, leaving women to fend for themselves when it comes to healthcare.” And, of course, making contraception harder to obtain will increase the number of abortions, but when conflicts emerge between controlling female sexuality and protecting fetal life, we all know which one gets thrown under the bus.

One thing to add about this: while Target’s defenders will talk about the “principles” of the pharmacists who refuse to fulfill prescriptions that may give women more autonomy than they consider appropriate, this issue as about anything but. People are, of course, free, to oppose contraception, despise non-submissive women, etc., if they so choose. And if their professional obligations conflict with their principles, they have an obvious choice: they can resign and find a job consistent with their principles. These people, conversely, want to be able to get paid despite not being willing to do their jobs. That’s pretty much the opposite of standing on principle. But, of course, if they resigned they wouldn’t be able to use their gatekeeping authority to inflict their anachronistic moral principles on people who don’t share them, which one suspects is the more important “principle” here.

Related: another eminent Straussian at a top American university informs us that gender relations would improve if only the 19th century would return.

…UPDATE: Aspazia reminds us (and tells us how) to contact Target and let them know what you think about this.

Deep Thoughts From the Land of Double Standard

World O’ Crap uncovers a real gem from University of Chicago “pro-life” ethicist Leon Kass, lecturing the kiddies in Focus on the Family’s children’s magazine, The Good Old Days When Women Were Bound. Oddly, we have yet another nationally prominent pro-lifer, endorsed by a major pro-life organization, who combines a strong belief in the state’s dominion over the woman’s uterus with mind-blowingly reactionary conceptions of gender relations, but I’m sure this is just a coincidence. s.z. does great work as always, but here are a couple key quotes from Leon:

For the first time in human history, mature women by the tens of thousands live the entire decade of their twenties — their most fertile years — neither in the homes of their fathers nor in the homes of their husbands; unprotected, lonely, and out of sync with their inborn nature. Some women positively welcome this state of affairs, but most do not; resenting the personal price they pay for their worldly independence, they nevertheless try to put a good face on things and take refuge in work or feminist ideology.

Chilling but true: some women live for some period of time when they could be churning out babies without the protection and supervision of a man! I’m as shocked as you are. And the only possible explanation can be unuspported assertions that women really hate what they choose to do, and fall into feminism as an ex post facto rationalization of their profound unhappiness that they are no lonnger controlled by men. I certainly can’t think of another explanation; I mean, surely it can’t be the case that some silly hysterical women know their desires and values better than kindly ol’ Leon does.

Oh, and here’s the quote that some of our commenters would prefer not to be made public:

Here is a (partial) list of the recent changes that hamper courtship and marriage: the sexual revolution, made possible especially by effective female contraception; the ideology of feminism and the changing educational and occupational status of women; the destigmatization of bastardy, divorce, infidelity, and abortion; the general erosion of shame and awe regarding sexual matters, exemplified most vividly in the ubiquitous and voyeuristic presentation of sexual activity in movies and on television.

Birth control (I mean, female birth control–men have to have their freedom, ya know), the ability of women to work, abortion–it’s all connected, and it’s all bad. Women’s freedom is inherently “anti-family.” But I’m sure Kass must be the only person who thinks that, and this article was printed by Focus on the Family by mistake.

Still, I think this is the most offensive passage:

Many, perhaps even most, men in earlier times avidly sought sexual pleasure prior to and outside of marriage. But they usually distinguished, as did the culture generally, between women one fooled around with and women one married, between a woman of easy virtue and a woman of virtue simply. Only respectable women were respected; one no more wanted a loose woman for one’s partner than for one’s mother.

Yes, society used to be constituted by a Virgin/Whore complex that would embarass Jake LaMotta (a woman who likes sex as mother of your children? That’s disgusting!)–and this was a good thing. And as for why men who avidly seek pre-marital sex can be good people and husbands while women with the same desire are women of “easy virtue” and hence of no social value…I’m sure a non-misogynist explanation is forthcoming in Part 2.

For bonus crackpottery, make sure to check out Maggie Gallagher’s feeble defenses of homophbia at Volokh. Shorter Gallagher: “Society has never been better off, except for the fact that the family (and the ‘natural’ definition of the family is what existed during the time in which women were subordinate but not quite as subordinate in marriage as they were for the previous centuries, during which the static institution of marriage was also apparently unnatural) is crumbling, which proves that the ubiquity of bourgeois marriage is critically important. And the fact that the family crumbled before same-sex marriage appeared in the United States makes stopping same-sex marriage a particularly important remedy.” I can’t argue with that logic! Actually, Kieran makes a very important point here. If you’re serious about protecting traditional forms of marriage, no-fault divorce is far more important than gay marriage, given that the latter consists of a small minority most of whom won’t get married to people of the other gender anyway. Except, of course, that tightening divorce rules might actually affect large numbers of “pro-family” reactionaries, so we don’t see a lot of state referendums trying to reinstitute tough divorce laws. It’s much easier to deny rights and benefits to a small minority, and it’s amazing how much stronger the impulse to protect “the family” becomes when it allows you to stigmatize your pre-existing prejudices. (As even Gallagher admits, “It’s true” that “many people are opposed to gay marriage simply because they despise homosexuals, or have a strong religious feeling that homosexuality is wrong, wrong, wrong.” But not her, though.) Oh, and as for my earlier comments to the effect that Volokh’s conflation of the banal claim that “people try to have sex with people who may be attracted to them” with the reprehensible claim that “gay people try to convert others to their diseased, unhealthy lifestyle” was attempting to legitimize the prejudices held by the majority of his party, I reiterate them.

Laundering Greenspan

The editor of The Economist is currently on NPR. Responding to a question from a listener about Alan Greenspan’s role in the Bush deficits, he deflected it by saying that Greenspan is just in charge of monetary policy, so it’s really on Bush, but perhaps could have used his “bully pulpit” more. The dishonesty here, of course, is implying that Greenspan has consistently opposed Bush’s fiscal policy but not loudly enough. Er, no. As the country’s Randian-in-chief is let out to pasture, let his profoundly embarrassing argument in 2001 that the possibility that the national debt would be paid off too quickly was a good reason for Bush’s unpaid-for upper-class tax cuts be mentioned as much as possible.

Good Question

Roger Ailes responds to the hapless Lord Weisberg:

Actually, there’s plenty of evidence that Rove and Libby knew exactly what they were doing — why else would they go to such lengths to conceal the fact that they were the sources of such information? If they thought Plame wasn’t undercover, why wouldn’t they pass along the information without demanding confidentiality and, in Libby’s case, demanding a misleading attribution?

Indeed.