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The Emosogynist

[ 0 ] July 4, 2007 |

Sara, pointing to this emailer warning his long-suffering ex-girlfriend that she’ll never find anyone who’s just so darn nice about “jokingly” threatening physical abuse and sending pictures of his dick to Craig’s List, suggests that the term “emosogynist” replace “Nice Guy (TM).” However, I think the latter term is too useful to be abandoned; rather, the emosogynist could perhaps by an additional subcategory within the classic typology.

A Genuinely Terrifying Thought

[ 0 ] July 4, 2007 |

Movies by the two worst directors regularly given major American studio projects who aren’t Joel Schumacher have recently opened. And yet, I think I would sit through either of their movies 10 times before sitting through the new unspeakably appalling-looking Robin Williams showcase once. (It’s a heatwarming ode to moralistic busybody conformism! With an exceptionally annoying priest played by a beyond-washed-up indiscriminate-script-approving comedian! Whose 60 second preview is painfully interminable!) Tony Scott argues that it’s even worse that the previews make it look, and I believe him. (Shudder.)

…speaking of Shadyac a commenter points us to this list of “10 Directors You Didn’t Know You Hated.”

The Frontrunner

[ 0 ] July 3, 2007 |

Romney ahead in New Hampshire. This reinforces my belief that the GOP race is basically between Romney and Thompson, and I’m not ready to hand things over to the latter yet.

A Last Word on Affirmative Action and Originalism

[ 0 ] July 3, 2007 |

On the issue of affirmative action and the alleged principled “originalism” of the Court’s conservatives, Simon Lazurus has a very good summary:

On the contrary, as legal and historical scholars — 60 of whom signed an amicus curiae brief to the Court — have exhaustively demonstrated in scores of books and scholarly articles, Reconstruction Congresses, in addition to adopting the Thirteenth, Fourteenth, and Fifteenth Amendments, aggressively promoted racial integration as a goal and deployed race-conscious measures to achieve it. They provided for special payments to “colored” soldiers to ensure they were compensated for service to the Union; established a bank to provide financial services to “freedmen and their descendants;” passed numerous race-conscious anti-poverty measures; and, most important, created the Freedman’s Bureaus to fund school construction and other education programs specifically for blacks. All these measures were enacted over objections, including vetoes from President Andrew Johnson, that marshaled precisely the arguments made today by opponents of school integration programs like those deployed in Seattle and Louisville.

Principled conservatives acknowledge that the Reconstruction generation “originally” understood the Fourteenth Amendment to promote equality for blacks and posed no ‘absolute,” across-the-board bar to race-based classifications. Chief Judge Michael Boudin of the First Circuit Court of Appeals, a widely respected Bush I appointee, observed in a 2005 case that a Lynn, Massachusetts integration plan similar to those in Seattle and Louisville “is far from the original evils at which the Fourteenth Amendment was addressed . . . [which were] the oppression of one race by another.” In the Seattle case itself, in the Ninth Circuit decision under review by the Supreme Court, Judge Boudin’s approach was endorsed by prominent conservative and Reagan appointee Alex Kozinski.

It’s simply overwhelmingly clear that the 14th Amendment was understood as permitting race-conscious policies far beyond the extremely narrow of category of policies Thomas and Scalia would consider “remedial,” and at any rate accepting the policies of Reconstruction makes it abundantly clear that we’re not debating about a “color blind Constitution” (cf. also Scalia and Thomas’s belief in the constitutionality of racial segregation in prisons.) Scalia and Thomas have never bothered to even try to mount an “originalist” defense of their position on affirmative action and to defend their vacuous soundbites about a “color-blind Constitution” because you can’t.

On Pardons

[ 0 ] July 3, 2007 |

Thers makes a comparison.

As I’ve mentioned before, I actually think that the narrow issue of not granting a pardon to Karla Faye Tucker (as opposed to his conduct afterward and his general attitude towards the death penalty) constitutes one of the few times that Bush has acted with any integrity. The pro-death penalty conservatives who wanted Tucker pardoned were advancing a truly indefensible and indeed disgusting position; if people don’t feel comfortable with executing attractive Christian white women, the only acceptable solution is to abolish the death penalty, not to reserve it for poor black men. As Matt says, the Libby pardon presents an excellent example of why use of the arbitrary pardoning/commutation power is generally a bad idea, and the fact that its use has declined is a good thing in general. Connections and publicity end up mattering more than the merits, and if we’re not willing to apply draconian punishments to certain individuals we shouldn’t apply them to anybody. How often has Bush used this power to exempt anyone who isn’t a political ally from punishment?

Such A Night

[ 0 ] July 2, 2007 |

First, I come home to find that Jim Capozzola has passed away (R.I.P.). Then I see that Bush has commuted Scooter Libby’s sentence. (Although, at least for some cross-ideological comity I can agree entirely with Patterico.) Yikes.

…see also Marcy.

Julia has a tribute to Jim.

…make sure to see Lindsay’s tribute to her late father.

Defining Scandal Down

[ 0 ] July 2, 2007 |

Yeah, it’s pretty embarrassing that anyone would consider this a “controversy” or “scandal.” (An obscene word! At a baseball stadium! Heavens to betsy.) On the other hand, I certainly hope the Yankees will take this as another reason to follow Joel Sherman’s advice and trade Slappy — he’ll never have the clutchiosity or Jetertude to hit in New York! Really, the only way they’ll win
is to go back to the days of Scott Brosius and Charlie Hayes, and they already have Certified Gold Glover St. Derek of Pasta Diving to build their infield around. Oh yeah.

The Roberts Court Massacre

[ 0 ] July 2, 2007 |

Marty Lederman identifies the two crucial pieces of data from the first full term of the Roberts Court. The first is that “the Chief Justice voted for the more conservative result (by most observers’ lights) in 24 out of the 24 cases decided by a 5-4 vote.” (By my count this is also true of Alito; if someone has a couterexample feel free to point it out in comments.) This was, of course, utterly predictable — when a justice is very conservative but is a pragmatist without even a sporadic commitment to some grand theory, that’s what happens. It was also predictable that they would prefer to gut precedents rather than overturn them. I suppose some people would consider the the fact that “[f]ully a third of the court’s decisions, more than in any recent term, were decided by 5-to-4 margins” significant, but I can’t fathom why anybody thought the idea of Roberts achieving unanimity in significant numbers of closely divided cases was serious in the first place. The other key point is the effect of Alito replacing O’Connor so far, and for the future. Lederman summarizes:

At the time of her resignation, I identified 31 5-4 decisions in her final decade on the Court that could very well be overturned by a Court with a more conservative Justice replacing her. (A recent iteration of that list can be found here. Steve Vladeck helpfully notes that I should add to it a 32d case — Central Virginia Community College v. Katz, involving sovereign immunity and the Bankruptcy Clause — decided after O’Connor announced her retirement (indeed, on her final day in office)).) So far, only two of those precedents have been (de facto) overruled — but they’re big ones: Carhart and the BCRA title II section of McConnell. And although Grutter was not overruled, its impact was severely compromised in the integration cases on Thursday. That’s already three of the five major areas (abortion, affirmative action, campaign finance) I identified as the most significant doctrinal areas subject to dramatic shifts; the other two are the Establishment Clause and Congress’s remedial powers under the Civil War Amendments. (The Court hasn’t yet considered any cases in which O’Connor precedents such as Mitchell v. Helms and Tennessee v. Lane might be vulnerable.)

Depressing, if not in the least surprising.

Meanwhile, several bloggers have noted this comedy gold from the Washington Post, in which it consistently decries the inevitable results of the confirmations it supported. What’s striking about the editorial endorsing Alito is that despite some hemming and hawing it doesn’t really take the Althouse/Taylor tack of asserting that he’s a “moderate” on the basis of no evidence whatsoever, although there is some nonsense about Alito favoring judicial restraint (still foolishly assumed to be a conservative trait in the wake of Bush v. Gore, the “sovereign immunity” cases, etc. etc.) Rather, once you boil off some nonsense about how judicial restraint would be great “if applied apolitically” (And a pony! What this has to do with a longtime GOP operative who impressed the administration with a voting record of remarkable conservative consistency I can’t tell you), the argument seems to be that given some minimum set of qualifications the President is entitiled to get anyone he wants confirmed. As a commenter at Ezra‘s puts it with exquiste Broderite vacuity, “[t]he standard view has been that neither the President or the Senate should have specific political litmus tests, but neither ignores ideology either.” (What this will mean in practice since the terms mean nothing, of course, is that when the Bush administration selects a judge who casts conservative votes in virtually every contested case, has a long-time history of expressing reactionary legal views, etc. they want someone “broadly conservative,” but if the Senate objects to this they’re applying a “litmus test.”)

Obviously, this is silly. The Senate should limit itself to qualifications…at exactly the same that Presidents start picking nominees at random from a list of well-qualified ABA judges. Otherwise, it’s entirely resonable for the President to consider ideology, and it’s entirely resonable for the Senate to consider ideology. A President is due considerable ideological deference on cabinet appointments, but not on lifetime appointments to a third branch of government. If you disagree with Alito’s legal views, you should oppose his confirmation by the Senate. And if you think that because Alito went through the Senate the GOP will give the next Democratic unlimited deference to choose a qualified justice I hope you’ll let me guard that new shipment of i-Phones for you.

George Bush: From Churchill To Chamberlain

[ 0 ] July 2, 2007 |

Ah, the travails of the (ex)-warblogger for whom everything is World War II again and again.

I also think this a good point about Powell:

Think about Colin Powell, once arguably the most respected man in the United States. In 2003 Bush sent Powell to the U.N. with a bunch of fuzzy pictures and a scary story to sell the Iraq War. That nonsense being now exposed, Powell’s a joke. No one’s ever going to talk about him running for President again.

Like a lot of other people, Powell has mildly turned on the Bushies. But like the late protestations of Sullivan, Reynolds, and Noonan, Powell’s gripes count for nothing but a bit of post-facto positioning, a quick step into a doorway just as the dawn breaks.

Given that he was the one person who could possibly have stopped the fiasco, the amount of credit Powell deserves for ex post facto criticisms of the war is “absolutely none.” Putting some misguided conception of “loyalty” to crackpot incompetents over the interests of one’s country is worthy of no respect whatsoever. If Powell’s disgrace at the UN makes him a permanent laughingstock, that’s as it should be.

Keyboard Kommando: Liberal Fascism From Justin To Kelly Edition

[ 0 ] July 2, 2007 |

I especially like panel #5. Speaking of which, Orson Scott Card has decided to take time off from writing political “novels” so subtle they make Atlas Shrugged look like The Charterhouse of Parma to favor us with an twelve-billion word essay recycling the most specious warblogger World War II analogies from 2004. If only the damned Some Guys With A Sign Somewhere didn’t want to surrender like Chamberlain everything would be OK!

The End of the Human Rain Delay

[ 0 ] July 1, 2007 |

A friend still in Seattle emailed recently to note that the Mariners’ surprisingly good season was a mixed blessing, in that it probably wouldn’t be good enough to make the playoffs but good enough to save the jobs of the hapless Bavasi and Hargrove. Well, at least in the latter case, apparently that’s no longer something to worry about. Having said that, though, one can’t be happy about the circumstances of a manager resigning in the midst of a long winning streak; hopefully it’s nothing too dire.

The "De Farco" Overruling

[ 0 ] July 1, 2007 |

I’ll have more substantive comments on the post (and the Greenhouse article, and the WaPo‘s ridiculous “we’re strongly opposed to the rulings that were made utterly inevitable by the justices we endorsed” editorial stance) later. But I wanted to have some fun this comment from Lederman first:

even when it means a very heatedly divided Court, and when (as in Leegin, WRtL and elsewhere), it requires de jure or de facro overruling of past cases.

I wonder if that’s a typo? Either way I think that it could come in handy in describing a depressing amount of future Roberts Court jurisprudence. A case, such as Carhart II, in which the Court makes a farcically trivial or specious distinction in order to avoid formally overruling a precedent is a “de farco overruling.” I like it!

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