Author Page for Scott Lemieux

The Problem With Initiatives

Ezra sez:

At this point, virtually the only initiative I’d vote for is one to get rid of initiatives. It’s not that the voters are bad folks, but they’re not trained or experienced legislators, so some of what they approve on face value ends up have subtle and negative impacts down the road. Happily, they seem to have figured this out, and are now rejecting the whole process as a tool of special interests. It’s a shame, because legitimate initiative drives are a positive option, but this sort of cynical overuse is killing the whole medium.

I am even more negative about referenda than Ezra, but it’s for a slightly different reason. It’s not so much that the voters are ignorant, although that’s part of it (and they’re quite right to have seen that initiatives are generally extensions of special interest politics.) The problem is that they’re too rational. Initiatives tend to undermine effective governance because they individuate the issues, which allows voters to get goodies without making the tradeoffs. The reason that California is ungovernable has little to do with bad faith on the part of politicians or “special interests” or whatever. It’s because voters have voted for tax cuts and various mechanisms that make it extremely difficult to raise revenues, and have simultaneously voted to lock in spending for all kinds of pet projects. And when you see the issues in isolation, that’s perfectly rational; looked at on its own terms without specifying what you have to give up, it always seems good to vote for any tax cut or spending increase. But in toto, you get what Michael Kinsley calls the “big babies” syndrome; voters want Swedish level of social services and Mississippi levels of taxation, and if that can’t happen “it’s those damned bureaucrats down in Sacramento with their fraud and waste!” And then you end up with stuff like California going from one of the best education systems in the country to one of the worst to ensure that wealthy homeowners pay fewer taxes.

So to the extent that anti-initiative sentiment is growing, I’m all for it. Representative democracy, which requires officials to make at least some of the necessary tradeoffs, is much better. (And nor are initiatives particularly good at generating nonpartisan reform; as was the case in California, “process” initiatives tend to be badly drafted and/or partisan, and it’s tough to sell process changes.) Nice to see the gas tax repeal–an intrastate version of red state parasitism–get voted down in WA too…

I would say he has quite a few problems. His energy seems to go in the wrong places.

Shorter Stanley Kurtz: Let me tell you something. You’re in a hell, and you’re gonna die in a hell, just like the rest of ‘em!

I think it all has its roots in a failed relationship with Kathryn Lopez. He was so initially smitten (“She appeared like an angel. Out of this filthy mess, she is alone. They. Cannot. Touch. Her.”) But then there was that unpleasant incident at the Pioneer Fund fundraiser…the final scene must have been very awkward for all involved.

Kurtz (forlornly holds out copy of The Bell Curve): “But I bought it for you, K-Lo.”
K-Lo: “I’ve already got it.” (Slams door.)

Sad, really.

Solipsism Is Not A Free Speech Principle

Given my effusive praise for the terrific cover story (buy it at your local newstand!) , I am obligated to note that this article by Jeffrey Rosen about the Fitzgerald indictment is, um, not good. There are a lot of bad parts, culminating in the absurd comparison of Fitzgerald’s indictment with the Starr Inquisition’s prosecution of Julie Hiatt Steele. But it does do one thing that Miller’s defenders generally haven’t: articulate an actual shield law. And, amazingly, he’s proposing one that would indeed protect Miller:

It’s a sign of the declining political clout of the traditional media that Congress is in no rush to pass a version of a federal shield law that would protect professional reporters from having to reveal their sources in federal investigations (except in cases where the disclosure is necessary to prevent imminent harm to national security). Thirty-one states and the District of Columbia have shield laws, as do a number of European countries. But a bipartisan shield law bill is moving slowly through the House and Senate, in part because of the opposition of the Justice Department and in part because of opposition from bloggers.

Such a law would, of course, be terrible public policy: a journalist can’t reveal a source, to provide information about a serious felony, even if the public interest is minor? That’s absurd. And it also creates the bizarre idea that this protection should be given to identities (“professional reporters”) rather than an action (“journalism”). This is silly, but also inevitable given the near-absolute shield, which requires it be available to a small number of people. A more rational law, that would balance interests more reasonably, would allow us to focus on the activity, not the identity of the person doing it. But would this uphold the principles that Judy Miller stood for? Which brings us to Respected Small-Circulation Journal With Good Taste in Guest Authors Matt:

The right of journalists to protect their sources? But Libby wasn’t a source for any article Miller wrote or was planning on writing. Nor was the fact that Libby had spoken to Miller on the day in question a secret, Libby had already said as much to the prosecutors. Miller was protecting not the identity of her “source” but the content of what the source told her. There’s no journalistic principle saying reporters shouldn’t disclose what their sources tell them. It would be very hard to write articles on the basis of that principle. Reporters are in the business of disclosing what their sources tell them. They’re not, ordinarily, in the business of saying who their sources were, if their sources don’t want to be identified. But, again, Libby had already identified himself.

There was no principle here. Miller was refusing to testify in order to protect a friend from a perjury charge. That’s an understandable thing to do. People like to protect their friends. The New York Times by agreeing to assist Miller in her quest and drag the first amendment into it managed to delay the investigation by a year. There’s a non-trivial chance the paper, and Miller, thereby got George W. Bush re-elected. Good work.

This is quite right. And I think the implication here is that, as fun as it is to make fun of the Queen of All Iraq the Times should really take the most heat. Miller was trying to save a friend, had good reason to use the First Amendment instrumentally, and was willing to go to jail. Nothing admirable, but nothing awful (unlike her actual Iraq reporting.) But to have invested its capital to defend her despite the utter lack of any free speech principle being involved was a horrible decision by Keller, and more than anyone else reflects badly on him.

The NYU Union

I’ve written before about the attempts of NYU grad students to organize, which were set back by the NLRB. Of course, NYU can still recognize them if they choose, and grad students there have gone on strike. Lindsay has the report.

The argument made by research universities which rely massively on grad student teaching that because grad students are students, they’re therefore not workers is quite remarkably bad. (It’s like saying that because professional baseball is a sport, it’s therefore not a business.) But there’s any easy way to resolve it: universities can just pay students the same money for not teaching; after all, they’re not workers, so who will notice? Problem solved.

The Statements. They Mean Nothing.

He basically said . . . that Roe was precedent on which people — a lot of people — relied, and been precedent now for decades and therefore deserved great respect,” Sen. Joseph I. Lieberman (D (sic)-Conn.) told reporters after meeting with Alito yesterday.” (via FL)

The Court’s opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent.” Rehnquist, J., Roe v. Wade (dissenting)

To repeat, these kinds statements by Alito mean absolutely nothing. Talking about “respected precedents” is a good way of evading the issue, and that’s it. It takes someone as hard-wired to roll over and play dead as Lieberman to infer something from them. It should be noted as well that talking about how much you respect precedents before you overturn them is quite common; considerably more common, I would bet, than the “it was not correct when it was decided, and it is not correct today” rhetoric that was used in Lawrence. Particularly given that Alito knows that advocating the overturn of Roe (whether explicit or sub silento) would be the end of his nomination, these statements mean less than zero.

…AFJ notes that even Clarence Thomas touted the value of stare decisis at his hearings.

…Shakes Sis writes letters.

Ha-Ha

You have to like to see this. I hope someone remembered to take the laces out of Mickey Kaus’ shoes. (Speaking of Kaus, he argues that “you might say it’s time to take the fight to the courts–and there are valid constitutional arguments to be made, along Baker v. Carr lines, against partisan or pro-incumbent gerrymanders.” Yes, I can’t believe nobody has ever thought to do that before!)

By the way, I noted that the allegedly socially liberal, anti-”special interests” Republican engaged in a familiar bargain (which also explains his veto of gay marriage legislation):

Also on the ballot were four other initiatives. Voters were narrowly defeating Proposition 73, which would bar abortions for minors without parental notification. The state Republican Party promoted Schwarzenegger’s endorsement of the measure among evangelicals and other religious conservatives in a bid to boost turnout of voters who would back the rest of his agenda.

At this point, I guess we’re just haggling over the price. But now I can see why he’s such a darling of the bullshit-libertarian movement!

…Digby:

…may I just say how pleased I am that California voted down every single initiative yesterday, thereby shoving Schwarzenegger’s useless 70 million dollar special election down his throat. Even the parental notification for minors seeking abortion went down.

Schwarzenegger is toast. After watching Bush and him in action maybe people are finally beginning to move beyond the “dumbshit guy I’d like to hang out with” and “movie stars are, like, awesome” methods of choosing our leaders.

Rhythmic Admirer of The Day

Paul “I encourage free speech in the blogosphere by filing risible nuisance suits” Deignan. What Deignan doesn’t understand is that if you say something stupid to another person, that person might actually tell someone else about it; that’s how free speech works. When you’re on the job market, your advisors may talk to other people who have met you, and some people may even contact her! (What “Wally” did in this case strikes me as inappropriate and excessive, but it’s not a violation of free speech or any other rights. As I believe John Stuart Mill once said, if free speech means anything, it’s that you’re allowed to tell person A that person D is a jagoff based on person D’s behavior.) That you write up your puerile rants on other people’s blogs doesn’t provide you insulation from the consequences of social interactions, no matter what your profession. Suck it up.

…More at unfogged. In comments, alameida summarizes Mr. Deignan’s game theoretic innovations: “it’s as if there were a poor man’s steven den beste, and then there was the poor man’s poor man’s steven den beste. and then we had to turn to this guy, later, after the poor man x2 den beste suffered a fatal brain haemmorage brought on by being a fucking eeeedjeet. and we found this guy’s writing rolled up with some used BART transfers in that other guy’s pockets after he passed out.”

Remakes and Reissues

I see here that there will be a remake of the greatest of all heist movies, Rififi [Mmm, probably not a great idea] starring Al Pacino [This whole casting system is out of order!!!!!!!!!] and directed by Mercury Rising auteur Harold Becker [No, really, see the original. I mean, I love Pacino too, when he's good. But trust me; really, really bad fit.] What’s worse is the likelihood that I’ll end up seeing the thing.

On the other hand, I didn’t really trust my fond memories for The Passenger, which I retained from a grainy VHS copies I watched as an undergrad many moons ago. My subsequent viewing of his previous movie, Zabriskie Point, didn’t increase my trust; it’s worth seeing only to see how bad a film by a major director not doing actual hackwork can get. But I saw the reissue last weekend and I think it holds up very well; unlike Manohla Dargis I still prefer L’Avventura and L’Eclisse, but it still often produces a haunting beauty, and the final sequence deserves its classic status.

Streamlined Procedures Act Hearing

I wrote recently about the Streamlined Procedures Act, which has generated signifcant concerns but apparently remains in active consideration. There will be a hearing on Thursday; more information about what you can do is here.

Non-Sequitur of the Month

Shorter Ann Althouse: People who oppose Samuel Alito’s nomination because of his remarkably consistent hostility to reproductive rights, rights against unreasonable search and seizure, worker’s rights, and civil rights must be doing so because they believe people don’t have rights.

On the Filibuster

As many people have argued, I would advocate that Alito be filibustered in the Senate. About the nature of his conservatism, there’s simply no serious debate, as I have argued here and here and here and here; any systematic look at his decisions indicates that he’s overwhelmingly likely to be a Scalia/Thomas/Rehnquist kind of conservative, and until Monday morning this wasn’t particularly controversial. (On any individual case you can construct an argument that it’s a purely legal disagreement, but if that was all that was going on there would be a significant number cases where he used ambigiuous legal materials to produce a more liberal result, but there aren’t. There’s nothing wrong with this per se; it’s just evidence that he’s very conservative. It’s the body of work, not any one case.) Obviously, this is very bad from a progressive standpoint, especially since he will be replacing a moderate conservative swing vote. Most liberals agree that Democrats should certainly vote “no.” But should there be a filibuster?

I should start by saying that I am actually against filibusters, if I could set the rules (which, ironically, is an argument in favor of its use, as I will argue later.) But as I have said before, unilateral disarmament is not a plan. The rules are in place; it’s legitimate to use them until they’re changed. There are, however, some good arguments for abjuring the filibuster, and I’ll discuss the two big ones using a framework suggested to me by Publius. The first is what might be called the “Bush won the election” argument, that since Bush won Democrats can only filibuster someone who’s completely unqualified or an utter crackpot, and Alito obviously is neither. I don’t think, however, that this means that the Dems can’t filibuster Alito. First of all, Democratic (and moderate Republican) senators won their elections too, and they’re entitled to use the Senate’s rules to exercise its advise and consent powers, just as the President has the right to nominate (and will obviously not–and should not– nominate someone progressives will like.) I do agree that the Dems should not be able to double-cross Bush if he appointed someone suggested as part of discussions; Hatch let Ginsburg and Breyer through based on a tacit agreement, and that’s fair. But it’s obviously inoperative in this case; not only did Reid not say he was acceptable, he specifically said that his nomination would provoke a major fight. I also don’t think that a filibuster would be justified if Alito were replacing another staunch conservative, but he’s not. I don’t think that Bush’s “victory” in 2000 and historically narrow win for a wartime incumbent provide some kind of normative mandate to effect a major ideological change on the Supreme Court (and judging by the way they’re selling him as a moderate, the White House doesn’t think it has one either.) Both the President and the Senate have their institutional prerogatives, and the nomination’s outcome can and should be fought on that basis; I don’t think there’s any reason to defer to the President here.

The other important objection is a more pragmatic one: the turnaround-is-fair-play argument. The problem, this argument goes, is that if we filibuster then so will they, with nobody better off in the long run. In a context in which the norms of judicial nomination were stable, I think this would be quite compelling. But, of course, that’s not the case. As their rule changes like doing away with the blue slip rules indicates, there’s no reason to believe that Senate Republicans will respect past arrangements, and nor is their any reason to believe that they will defer to the Supreme Court nominees of a Democratic President no matter what happens to Alito. (We don’t know what would have happened had Clinton ignored Hatch and appointed someone like Babbit, but it almost certainly would have been a very hard-fought struggle at best.) Of course, the most likely outcome of filibustering Alito would be getting rid of the filibuster rule altogether–which, of course, as Yglesias says is the best reason to filibuster of all. To paraphrase Joey LaMotta, if we win, we win. If we lose–we still win:

The filibuster is bad. In the long run, the aspects of the U.S. Constitution that make it hard to enact legislation favor conservatism. On any given day, of course, either side may be helped. At the moment, the Democrats are in the minority so filibusters let them do useful things. But over the long haul, a more parliamentary system would advantage liberals.

Breaking the rules is also bad. This, at the end of the day, is what the nuclear option comes down to: not changing the filibuster rule, but violating some other procedural rules in order to change the filibuster rule. The seven Republican members of the gang are engaging in shameful acts of political blackmail. If they think the Senate rules shouldn’t be violated, they should stand against efforts to violate them, not go around striking compromises.

Last, Judge Alito is bad. Since filibusters are, under the current rules, permitted, Democrats may as well use them to stop bad things from happening.

All that being said, the worst possible outcome here is one in which moderate Democrats allow Alito on to the bench in order to preserve the filibuster — a re-run, in other words, of the original “Gang of 14″ deal. If Alito winds up on the Supreme Court, the best possible way for that to happen would be a way that also eliminates the filibuster rule. If the filibuster rule is to be maintained, then the best possible way for that to happen would be one that keeps bad judges off the bench.

Yes. If the Senate were planning to enact a legitimate change in the rules to exclusively eliminate the judicial filibuster, then this would be a neutral outcome at best. But since they simply plan to pretend that the Senate’s procedures don’t apply to judicial nominations with no justification at all, this would be the beginning of the end of the filibuster; once this precedent is set, whenever you want to break one you just have the Vice President announce that it doesn’t apply to the given case. And, in the long term, although a lot of short-sighted Republicans don’t see it this will be a clear advantage for progressives over the long run. So if a filibuster leads to detonating the nuclear option, this is a good thing.

None of this is to say that I think it’s likely. Alito was a very smart pick, as conservative as you can get without a paper trail that would make him unconfirmable, and it will be tough to sustain a filibuster. But if you’re asking me what Democrats should do, I think it’s a no-brainer.

It’s the Votes

Preparing links for a new Alito link dump, I notice that this excellent New Republic cover story is behind the subscription wall, and I wanted to get some excerpts online. It’s particularly relevant given this awful Newsweek article, co-written by the hacktacular Stuart Taylor, which argues that Alito is a moderate–but bases this mostly on his personality and tone, which are irrelevant to the question of ideology. The two cases they discuss to make the case in any detail are used to burn down strawmen rather than evaluate them for evidence. Yes, of course, his Casey dissent was not a lawless application of precedent, but it is surely relevant that he (unlike the other two judges on the panel) interpreted an ambiguous precedent in the most conservative way possible (and, needless to say, they ignore the crucial facial challenge issue entirely.) Even worse, they note his willingess to strike down a “partial birth abortion” statute without noting that he filed a concurrence, which many have (correctly) interpreted as sending a signal that he was reluctantly applying a precedent he disliked. And, yes, his Rybar dissent doesn’t mean he was “fronting for the gun lobby,” but it does demonstrate that he will be a strong supporter of the “new federalism,” which unlike Taylor and Thomas’ conclusion is actually relevant to something.

Andrew Seigel, on the other hand, is actually engaged in serious analysis, focusing on votes rather than who’s a friendlier fellow, and draws the right conclusions:

The implication of this conclusion was that liberals should breathe a sigh of relief, since Alito is no Scalia 2.0. The reality, however, is much more complicated. While Scalia’s bellicose tone and general lack of civility have long been fodder for his left-wing critics, they have also served to hold back his judicial agenda, both by alienating potential allies within the Court and by marking his ideas as extreme in the court of public opinion. But Alito, who marries Scalia’s conservative jurisprudence with tact, politeness, and a deferential writing style, is infinitely more dangerous to liberals. In Alito, they may have met their worst nightmare.

In 15 years on the bench, Alito has had opportunities to weigh in on almost all of the controversial constitutional issues facing the Supreme Court today–from abortion and the death penalty to the scope of federal power and the role of religion in the public square. The opinions that he has written in these cases share two essential characteristics. First, each is calm, rational, and well-written. Second, on virtually every significant issue where his conclusion is not mandated by direct Supreme Court precedent, the result is conservative.

[...]

Two lessons can be drawn from the substance and tone of Alito’s appellate opinions. First, contrary to what many commentators want you to believe, the individual predilections and judgments of jurists have a substantial effect on the direction of U.S. constitutional law. While many legal questions can be resolved through a relatively straightforward application of reason to the relevant legal texts, most of the controversial constitutional questions that reach the Court are not susceptible to such simple resolution. When confronting such cases, judges are forced back–almost inexorably–to their own, often inchoate, ideas about human behavior, social policy, and the judicial role. For most Supreme Court nominees, we need to guess how these “priors” will shape their jurisprudence, but, for Alito, we have a long and consistent answer: He will tack hard to the right.

The second lesson is really a caveat about the first. With the opinions of most justices–particularly the savvy–it’s hard for a reader to separate the application of legal sources and precedents from individual will. The norms of the legal profession push judges to ground their opinions directly in the legal sources, whatever the wellspring of their decisions. Those who are accomplished at this task have the ability to make even the most controversial result sound inevitable. In a substantial percentage of their cases, Scalia and Luttig eschew these professional conventions and lay bare their motivation. Alito never does. In many ways, the scrupulous fidelity of Alito’s opinions makes him a more powerful advocate for his conclusions and a bigger danger to those who sport opposing legal or constitutional visions.

This is exactly right. Thomas and Taylor, like Althouse, provide literally no evidence–nothing–that Alito’s votes will be more liberal than those of Scalia. (You couldn’t have produced a more conservative outcome than he did in Casey, and Rybar went further than Scalia has been willing to go so far. And, of course, they also skip Groody, which suggests that on search and seizure Alito is likely to be if anything more reactionary than Scalia.) The fact that Alito is less acerbic and more careful than Scalia makes him worse, not better, if you disagree with him philosophically.

Again, evaluating circuit court opinions is inherently uncertain, relying on probabilistic judgments, and we can’t be sure how Alito would vote. But his tendency to push the law in a conservative direction suggests the very strong possibility he’ll be as conservative as anyone on the Court, and whether he’s a nice guy has absolutely nothing to do with how he’ll vote. Thomas and Taylor’s tripe will be the administration line–don’t buy it.