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Reputational Hits

[ 0 ] October 7, 2008 |

Ezra presents an optimistic perspective about whether McCain’s “dishonor before death” campaign will damage his reputation, at least if he loses. I’m not as sure.

In the long-term, I’m inclined to agree that (especially if Obama’s presidency is generally regarded as successful) McCain’s disgraceful campaign will be seen as the last gasp of Nixon’s Southern Strategy as a successful tool for the GOP. (I also think that it would eventually come to be seen that way even if he won, especially if he proved to be an unpopular one-termer.) In the short-term, though, I’m not sure. Given that even writers appalled by McCain seem to see his behavior as some sort of betrayal of McCain’s fundamental nature, my guess is that most of them will forgive him just as they’ve done so many times before. McCain will apologize, claim that Obama made him do it, serve some BBQ, and journalists will start swooning again.


The New Supreme Court Term

[ 4 ] October 6, 2008 |

Adam Liptak has a useful roundup, noting that the Court does not have any “blockbusters” comparable to last year’s Second Amendment, death penalty, and war powers decisions. There are, however, some cases that indicate the likely direction of the Roberts Court and why many of his holdings will matter more than you might think. In particular, it’s important not to focus excessively on whether the Court explicitly announces the overturning of precedents. There are two examples that are instructive:

  • Standing. “In Summers v. Earth Island Institute, the court will consider who has standing to challenge environmental regulations.” As we’ve already seen with respect to church and state issues, by narrowing standing rules the Court can nominally keep important precdents on the books but make it exceptionally difficult to actually enforce them by declaring that most people don’t have standing to challenge potentially unconstitutional state actions. Moreover, this narrowing of standing rules is likely to be a one-way ratchet; plaintiffs advancing claims that conservatives find sympathetic are unlikely to see their ability to bring suits affected. These cases seem technical, but substantially affect the substantive rights of individuals as well as areas like environmental policy.
  • Pre-emption. Wyeth v. Levine, concerns only implied pre-emption and is perhaps the most important business case of the term. Wyeth, a drug company, seeks to overturn a Vermont jury award of more than $6 million to Diana Levine, a musician who lost much of her right arm in a medical disaster caused by the injection of a Wyeth anti-nausea drug. Wyeth argues that it cannot be sued because it had complied with federal safety standards.” Again, business cases of this sort tend to attract less attention, but making it more difficult for states to punish corporate malfeasance in the courts is a potentially very important outcome. For several of the court’s conservatives, their alleged commitment to “federalism” will clash with business interests, and (especially for Roberts, Alito and Kennedy) I know how I’m betting. Also look for Breyer, at a minimum, to vote with Wyeth.

Another trend Liptak brings up: “The court will also return to an emerging theme of the Roberts court, which has repeatedly turned back general, or “facial,” challenges to laws in favor of more focused, or “as applied,” attacks.” Again, this seems tehcnical, but in any number of areas — including aboriton — it will make the enforcement of rights more difficult. Given the formal “minimalism” of the Court, many of its important decisions will fly under the radar — but that doesn’t mean they aren’t important.

Back to the Blog

[ 19 ] October 6, 2008 |

With his beloved Rangers having opened their season in Prague, this seems like as good a time as any to note that world’s most dangerous professor Michael Berube has returned to his own blog. As happy as I am to have him back, however, I’m appalled that he could compile a list of bad cover songs that excludes Linda Ronstadt’s reading of “Sail Away.” (And while this doesn’t count because I only saw it live, Sting’s “Purple Haze” deserves a mention.)

Pre-Emptive Hackery

[ 1 ] October 6, 2008 |

To no non-wingnut’s surprise, Yoosta-Bee has-been David Zucker’s latest film Michael Moore is teh Fat Heh Indeed! has been a commercial and critical fiasco. So if you’re the kind of person for whom the failure of a liberal movie represents not a lack of interest in a particular film but massive public support for the Bush administration combined with a pent-up demand on the part of the public for Mallard Fillmore: The Movie!, what are you to do?

Well, if you’re Glenn Reynolds, you can start by exhorting your audience to shell out money to watch this crap. But then — perhaps realizing the magnitude of the dud you’ve been shilling for — you can then start making excuses, talking about how nobody goes to movies anymore and how it’s all about DVD sales. How the fact that some people prefer watching movies at home can explain the movie’s dismal performance relative to other movies is, needless to say, not explained. (We can also safely assume that as soon as Reynolds needs to for the umpteenth time claim that Hollywood is in deep trouble because of its alleged excess of liberal movies, box office figures will suddenly become relevant again.)
I’m looking forward to Reynolds’s upcoming post explaining how if you look at it properly The Right Brothers are more popular than Kanye West…

…also note the comparison with Religulous.

A Story About Nothing

[ 25 ] October 4, 2008 |

Just in case you had some strange compulsion to read the thing, Benen identifies the important part of the Timeslengthy attempt to indulge winger guilt-by-distant-association games with Obama and William Ayers:

[T]he two men do not appear to have been close. Nor has Mr. Obama ever expressed sympathy for the radical views and actions of Mr. Ayers, whom he has called “somebody who engaged in detestable acts 40 years ago, when I was 8.”

Hope that saved you some time. Still I’m outraged that Obama isn’t holding daily press conferences with Treason-In-Defense-Of-Slavery Yankee to address this pressing issue! The fact that he isn’t is the precise equivalent of Sarah Palin’s unwillingness to answer follow-up questions about her policy positions!

My Favorite Moment

[ 0 ] October 3, 2008 |

Was Biden talking about how he came to believe that the Senate should take the philosophy of the president’s judicial appointments into account. Helping to torpedo Bork was indeed one of his finest moments, and good for him for not kowtowing to the “OMG accurately stating Robert Bork’s views about various issues and then rejecting him for the position to which he was allegedly inherently entitled was the Greatest Outrage Ever” conventional anti-wisdom.

The Gaffe Bowl

[ 12 ] October 2, 2008 |

Even though as political scientist I’m duty-bound to note that tonight’s festivities are unlikely to affect the election, I’m also looking forward to watching. I may chime in if there’s something really notable, but here’s a thread for your commenting pleasure.

The famous Jon Lovitz “I can’t believe I’m losing this guy” line may not apply this year (knock on wood), but it certainly applies in re: the Mets and Brewers…

Fundamental Rights and State Interests

[ 19 ] October 2, 2008 |

Since there seems to be some confusion here, allow me to save time in comments by explaining a basic distinction:

1)Under current law, a woman has a fundamental right to choose an abortion. And if Griswold is right, this conclusion is inescapable. (It’s possible to argue that this implicit right doesn’t exist, of course, but that’s a different argument.)

2)To say that a woman has a fundamental right to choose an abortion does not mean that this right is unlimited. The Supreme Court’s current standard has watered the right down in O’Connor’s classic incoherent manner, but even if you believe in a robust right it can be abridged if legislation is narrowly tailored to a compelling state interest. No rights are absolute, and this certainly includes the right to privacy. Bans on post-viability abortions with a health exception qualify. Bans on pre-viability abortions as they are typically written and enforced do not. If you think that obtaining an abortion should carry less legal sanctions than spitting on the sidewalk, you’re essentially conceding that the state does not have a compelling enough interest to override a fundamental right.

At any rate, to say that a right can be overriden in certain limited circumstances is quite different than the more typical conservative claim that a woman’s right to choose an abortion doesn’t exist at all.

Pulling the Thread

[ 28 ] October 2, 2008 |

To follow-up on Adam’s point here, the conservative project to separate the implied constitutional “right to privacy” from Roe v. Wade is longstanding. (I should note, contra to Ponnuru’s fancy shuffling, the question — and Palin’s answer — were both about the “right to privacy” as opposed to whether specific provisions of the Bill of Rights protect “privacy.” Although I guess it’s good to see a conservative admitting that Douglas’s “penumbras and emanations” argument is, in fact, perfectly logical!) Reagan’s solicitor general Charles Fried argued that the Court could “pull the thread” of Roe without affecting Griswold and the general “right to privacy.”

The problem with the argument that privacy could entail a right to use contraception but not a right to an abortion is that it’s absurd. As Stevens memorably pointed out in Thornburgh:

For reasons that are not entirely clear, however, JUSTICE WHITE abruptly announces that the interest in “liberty” that is implicated by a decision not to bear a child that is made a few days after conception is less fundamental than a comparable decision made before conception. There may, of course, be a significant difference in the strength of the countervailing state interest, but I fail to see how a decision on childbearing becomes less important the day after conception than the day before. Indeed, if one decision is more “fundamental” to the individual’s freedom than the other, surely it is the postconception decision that is the more serious.

If there is a fundamental right to use contraception, there must be a fundamental right to choose an abortion, and given how abortion laws are actually written and enforced it’s nearly impossible to argue that a state’s interest in protecting non-viable fetal life could trump a woman’s fundamental reproductive rights.

An Army Of Morons

[ 5 ] October 1, 2008 |

Blogs of the year, every one!

The Sexism of Sarah Palin

[ 0 ] October 1, 2008 |

I see we have a key Republican policy so common that even Sarah Palin can repeat it with some measure of coherence. This “principle,” alas, is the idea that women lack the moral agency to be held accountable for actions that are allegedly so bad that assisting someone in such an action should be a serious crime in all 50 states:

Gov. PALIN: I’m saying that personally I would counsel that person to choose life, despite horrific, horrific circumstances that this person would find themselves in. And if you’re asking, though, kind of foundationally here should anybody end up in jail for having had an abortion, absolutely not. That’s nothing that I would ever support.

There are two ways of explaining this ridiculous position: either Palin has indefensible views about the rationality of women or she doesn’t believe her own “pro-life” rhetoric. There is no third option.

Bad Strategy and Double-Crosses

[ 13 ] September 30, 2008 |

Yglesias makes a couple good points about the failure of the bailout bill. I especially agree that Paulson isn’t getting nearly enough blame for having completely botched the process at the start. Paulson’s initial proposal reminds me of the great scene in A Civil Action where Schlichtmann opens up settlement negotiations with an utterly outrageous proposal, which rather than bringing a counter-offer simply causes the other parties to walk away from the table, starting a spiral that would lead to him losing his shirt although he had a good case against one of the defendants. While an initial proposal should be more than you think you can get, Paulson’s proposal was so baldly indefensible that it made getting even an improved plan passed much more difficult, and initial negotiations should have occurred in private.

I think this is also right:

The House conservatives who sank the bailout didn’t do so because they were listening to loud and angry voices. They sank the plan by accident. They were trying to double-cross the Democrats. First, they wrung lots of concessions out of Democrats at the negotiating table as the price for delivering 80 votes. Then, by not delivering 80 votes and forcing Pelosi to pass the bill as a partisan Democratic bill, they were going to wage a demagogic anti-bailout campaign. But Pelosi refused to be played for a sucker and so the conservative inadvertently sank a bill that, all evidence suggests, they actually wanted to pass. They just wanted to vote “no” on it for short-term political gain.

It seems pretty obvious that if Boehner can’t get enough of the people sharing his clown car to vote for a bill, then the Dems simply need to pass a better bill and take responsibility for it (since they’ll get it anyway.) If the GOP wants to make a big issue out of maintaining stringent bankruptcy laws in this economic climate, let ’em.

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