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[ 20 ] October 24, 2007 |

I have to say that I’m getting pretty close to endorsing Dodd. The Arbitrary Executive Power and Surrender of Congressional Prerogatives Act is bad enough, but the blanket immunization of corporations who assisted in illegal activity is beyond the pale. It’s not just awful on the merits; for candidates unwilling to argue against it because Republicans will say “Dimmicrats want Islamofascistcommienazis to kill your children! Booga-booga!” although there’s little evidence that it even works anymore indicates that they plan to run on national security from a permanent defensive crouch. Enough. Clinton and Obama need to try to shape the discourse on the issue or we need to look for another standard-bearer.

Happy Anniversary!

[ 19 ] October 24, 2007 |

Via Roy, I see that conservatives are whining about the great day 20 years ago on which arch-reactionary Robert Bork was justly rejected by the Senate. First if all, it’s worth repeating that in this case the Senate functioned as it should, focusing on constitutional philosophy rather than trivial details, and that attempts to turn “Borking” into a pejorative notwithstanding, it’s ridiculous to argue that the President can consider ideology in nominations but the Senate cannot consider in in confirmation.

In addition, for the occasion it’s worth once again excerpting Bruce Ackerman’s devastating review of Bork’s shoddy, transparently outcome-orietnted attempt to defend his “originalism” in The Tempting of America:

Bork has succumbed to his own temptation. Proclaiming his fidelity to history, his constitutional vision is radically ahistorical. Pronouncing an anathema on value relativism, his jurisprudence brings skepticism to new heights. Insisting on the sharpest possible line between law and politics, his bitter concluding section transforms a legal treatise into a Red-baiting n3 political tract. Tempting reveals that Bork’s ordeal has transformed him into a human type that I, at least, had previously encountered only in Dostoyevsky novels. Mutatis mutandis, he is America’s Grand Inquisitor — grimly excommunicating heretics in the name of a Cause he has inwardly betrayed.


The historical vacuum at the core of Bork’s orthodoxy may seem surprising, since the man spent much of his life as a professor at Yale and had the time to engage in the disciplined historical reflection that his orthodoxy demands. The mystery dissolves when one recalls that Bork’s principal academic specialty was antitrust, not constitutional law. He did not win national leadership in this field by dint of historical research, but by championing the Chicago School of Economics’ notably ahistorical and theory-laden approach to antitrust. Few readers of Bork’s major book, The Antitrust Paradox, would guess that its author would next try to make a name for himself by championing the use of historical methods against the seductions of abstract theory. Indeed, one question left unresolved in Tempting is the extent to which Bork himself is aware of the tension between the ostentatiously theoretical methods of Paradox and the putatively historical concerns of Tempting.

Particularly telling is Bork’s remarkable dismissal of the Ninth Amendment, and its obvious implications for his jurisprudence:

Perhaps we should be grateful, then, that Bork tries to decipher the Ninth Amendment without an independent examination of extrinsic sources. Sticking to the text, he reports that it “states simply, if enigmatically, that ‘[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'”

The puzzle here is why Bork should find the text “enigmatic.” It seems, almost preternaturally, to be written with him in mind. What Bork is up to is precisely to use “the enumeration in the Constitution, of certain rights” to “disparage” the idea that there are other constitutional rights of fundamental importance. I especially admire the Framers’ choice of the word “disparage.” I can think of no better word to describe Bork’s general tone. Nonetheless, Bork finds the text enigmatic and yearns for greater clarity…


It is, of course, an old lawyer’s trick to create uncertainty by writing hypothetical texts that, in the writer’s mind, do a better job than the Framers’. Bork, however, does not seem to recognize that what the Framers wrote is stronger, not weaker, than the texts he considers as replacements. His hypothetical “clarifications” would narrowly address the courts and explain to them that they should not “disparage” unenumerated rights. In contrast, the Ninth Amendment speaks to all interpreters of the Constitution, presidents no less than courts, citizens no less than legislators, and expressly cautions all of them against committing the interpretive blunder that Bork would impose in the name of the Framers.

Bork’s jurisprudence in fact had a great deal to do with reaching conservative policy outcomes and very little to do with “originalism.” From the right, Glenn Reynolds makes a similar point.

Topic For Discussion

[ 28 ] October 23, 2007 |

Do people agree with Becks that there are good reasons not to dispense the Pill to teenagers, even if the motives of wingnuts who complain about the practice are different?

…good discussion with plenty of dissent from Becks’s position, including my colleagues bean and djw. An important point from lt, who argues that “Not to mention, while condoms might have fewer side effects, the pill is controlled by the teenage girl, which is important when negotiating teenage sex.” Elsewhere, Tia agrees with Becks, arguing that the quality of medical care provided is likely to be inadequate.

MoDo of the Atlantic

[ 0 ] October 23, 2007 |

Shorter Caitlin Flanagan: The fact that Hillary Clinton gave her cat to another person who would care for it makes her evil. Said cat also had a massive impact on American politics.

No, I’m serious. See also Thers; alas, I doubt we’ve heard the last of this idiocy.

Verbatim Caitlin Flanagan: “I have little interest in national politics.” You say “little interest in,” I say “no apparent knowledge of,” we agree that you should not be writing for the subject for a prominent national publication, and we both go home.

The Follies Of Mike Huckabee, Cot’d

[ 8 ] October 23, 2007 |

Says Huckabee: most” of the signers of the Declaration of Independence were “clergymen.” This is true to the extent that 1 out of 56 = “most.”

Of course, what matters even more than what the Framers personally believed is the Constitution they signed, which is a secular document for a secular state.

Proving Too Much

[ 17 ] October 22, 2007 |

You may have heard about this embrace of utter crackpottery from new social conservative darling Mike Huckabee:

Speaking before a gathering of Christian conservative voters, GOP presidential hopeful Mike Huckabee said legalized abortion in the United States was a holocaust.

“Sometimes we talk about why we’re importing so many people in our workforce,” the former Arkansas governor said. “It might be for the last 35 years, we have aborted more than a million people who would have been in our workforce had we not had the holocaust of liberalized abortion under a flawed Supreme Court ruling in 1973.”

Leaving aside the rather problematic economic assumptions here, we have two classic pieces of stupidity and exploitation common to the rhetoric of the forced pregnancy lobby. First, if abortion is a “holocaust,” one wonders why most anti-choicers believe that the alleged primary perpetrators of this genocide should face fewer legal sanctions than if they spat on the sidewalk. And Huckabee would have signed the North Dakota law that also exempted women from punishment for contributing to the “holocaust.” Does Huckabee believe that Eichmann should have been exempt from punishment? Or maybe he should stop using this idiotic and spectacularly offensive analogy?

In addition to the bizarre causal logic, the “Oh no! Giving reproductive rights to women means more furriners undermining the values of Good White Americans by coming here to feed their families!” argument has perhaps broader implications than he intends. If the key problem with abortion is lower birthrates, forget abortion: we need to stop the production and distribution of contraception immediately! Passing arbitrary laws forcing poor women to obtain unsafe abortions will do nothing while Trojans are freely produced! Oh the humanity!

Again, there are few things as bizarre in American politics as “pro-lifers” who demand constant congratulation for having Unyielding Moral Principles as they advance positions that are a moral, legal, logical, and political shambles.

Tawdry Gossip of the Day

[ 0 ] October 22, 2007 |

Richard Mellon Scaife or St. Derek of Pasta Diving? (The former via the Sultan of Shrill.)

Care To Make It Interesting?

[ 0 ] October 22, 2007 |

Via Sam Boyd, I bring you this Kirchick Komedy Klassic:

Earlier this week, I speculated in a bloggingheads with Jon Keller, political reporter for the Boston CBS affiliate and author of The Bluest State: How Democrats Created the Massachusetts Blueprint for American Political Disaster (which I reviewed here) that Massachusetts might go red if Rudy Giuliani — and, possibly, John McCain — is the Republican presidential nominee.

First, you have the amusing asusmption any Democrat not currently cashing a paycheck from Marty Peretz is fooled by the “McCain is a Really A Closet Liberal” scam. Then you have the claim that the GOP is live in the Massachusetts electoral college. The evidence for this seems to be that 1)the Democrats won an off-year Congressional election by a slighter lesser margin than might have been expected, and 2)more than two decades ago a Republican incumbent carried the state that went for George McGovern as part of a massive Republican landslide. Well, I’m convinced! I do hope, however, that following the strategery of Karl Rove, Super Genius (TM), that they don’t neglect other likely GOP pickup candidates like California, Rhode Island, and Washington, D.C.

Right-wing Identity Politics, Crappy Cartoon Edition

[ 10 ] October 22, 2007 |

Even for Bruce Tinsley, this is incomprehensible. Does he really think that benching Hope Solo was some form of racism? Beats me. I think we need the Comics Curmudgeon to weigh in here…

Game 7

[ 0 ] October 22, 2007 |

Finally, we’re getting one; hopefully, unlike most of the rest of the series, this will actually be a good game…

…If the first inning is an indication that pre-All-Star-Break Dice-K has shown up…that would be a problem. A pitcher’s duel would actually be appropriate, sort of the opposite of the first Beckett/Sabathia game…

…Ah, yes, another installment in the desultory return of “every play is a force play” umpiring…

Captain Clutch!

[ 0 ] October 21, 2007 |

It’s good that the Red Sox have a player with the grit, determination, clutchitude, and leadershipiosity of J.D. Drew rather than a choker like Derek Jeter!

Anne Applebaum, You Gotta Be Putting Me On

[ 57 ] October 20, 2007 |

In this week’s installment, she contributes to the Ridiculous Martyrdom of Larry Summers by backing up nonsense spoken by Christina Hoff Sommers :

How will we ever be able to talk about sex differences in an interesting way if we’re not allowed to study them? If the subject is an academic taboo, then the same old cliches will just live on for another generation. Or ten generations.

Of course, nobody criticized Summers for suggesting that academics should study sex differences. He was criticized for suggesting that the most likely reason that women were underrepresented in some academic fields was an innate lack of mental capacity although this is not supported by solid scientific evidence and Summers had no expertise in the field. As Brian Leiter put it:

Alas, it turns out that no one was objecting to research being done on the hypothesis. They objected, rather, to the chief administrator of a research university–a man with no scholarly expertise in the area (as in none)–floating an hypothesis potentially damaging to women for which there is, at present, no well-confirmed scientific support (as in none).

As I’ve said before, the context is also important. Summers was not a random academic reporting on his research (and, indeed, nobody is calling for Steven Pinker’s tenure to be revoked because of his male supremacist just-so stories.) He was the president of an elite university that, as it happens, had a poor record of attracting and retaining female faculty in the sciences under his tenure. Not alienating the remaining faculty by saying dumb things is part of his job. At any rate, the criticism of Summers’s remarks did not establish a taboo against conducting scientific research into sex differences. It may have reflected a taboo against university presidents justifying gender discrimination by engaging in the same kind of pseudo-scientific speculation that once caused women to be unfairly excluded from elite universities, the legal profession, etc. etc., but this is a different matter entirely (and a good thing.)

Relatedly, make sure to read this from Cosma Shalizi (via CT.)

..It’s not terribly important to my overall argument — what matters is that he considers it more important than discrimination — but in comments Ken C. is correct that Summers only placed a lack of aptitude as the second most important factor exonerating his horrible record with female faculty. First was the “high-powered job hypothesis,” his description of which was somewhat problematic in its own right for reasons I’ve discussed with respect to Supreme Court clerks; it’s bizarre to discuss the fact that women are expected to do far more of the domestic work as a category distinct from gender discrimination. (It’s also problematic given that gender discrimination remains durable at non-elite institutions where tenured professors don’t have to work 80 hour weeks.)

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