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The Chamber Of Commerce Court

[ 8 ] March 17, 2008 |

Jeffrey Rosen’s article about the pro-business court — the Chamber of Commerce’s “litigation center filed briefs in 15 cases and its side won in 13 of them” — is very much worth reading. It’s worth being reminded, again, that although court watchers tend to divide the Court into symmetrical groups of “liberals” and “conservatives” there’s no Marshall or Douglas or Brennan on the current Court, as evidenced by the Chamber’s enthusiastic support of Ginsburg and (especially) Breyer. It’s instructive that the Court’s two Democratic appointees are no more liberal than its two Rockefeller Republicans.

I do think some parts of the general assessment of the Court that starts this analysis should be qualified:

What should we make of the Supreme Court’s transformation? Throughout its history, the court has tended to issue opinions, in areas from free speech to gender equality, that reflect or consolidate a social consensus. With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business. Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception. It should come as little surprise that John Roberts and Stephen Breyer, both of whom studied the economic analysis of law at Harvard, have similar instincts in business cases.

This elite consensus, however, is not necessarily shared by the country as a whole. If anything, America may be entering something of a populist moment. If you combine the groups of Americans in a recent Pew survey who lean toward some strain of economic populism — from disaffected and conservative Democrats to traditional liberals to social and big-government conservatives — at least two-thirds of all voters arguably feel sympathy for government intervention in the economy.

Seeing the Supreme Court as an adjunct of a social consensus is a more accurate reductionism than seeing the Court as a valiant defender of powerless minorities, but it’s a little problematic. The Court, because of the appointment process and its own inherent institutional weaknesses (especially its reliance on other political actors to enforce its commands), is unlikely to stray outside a broad range of political acceptability for long. But on many important issues, a social consensus doesn’t exist, and as long as the Court has some support among powerful elites it has more range of action than the idea that the Court follows the opinion polls might imply. In the long run, this is likely to mean a Court that’s more libertarian than the median voter. And while talk about restoring a “Constitution in Exile” is overblown, just as the late Rehnquist Court was more socially liberal than the Republican-controlled Congress so is the current Court likely to make it more difficult for Democratic Congresses and presidents to enact desirable regulations and (especially) to enforce existing ones, even if these laws are broadly popular. Indeed, as the article demonstrates the Republican-dominated Court heps Republicans in Congress greatly, as it makes it harder to do thing like enforce civil rights legislation without forcing conservative legislators to modify the legislation and take the hit.



[ 0 ] March 17, 2008 |

I have no idea if the public babe-in-the-woods routine of Jim McGreevy’s wife was, in fact, false. But the story does remind me that I’m always a little puzzled by confident assertions (I don’t mean to single out that particular post, just using it as an illustration) about how families will be affected by someone’s bad actions or what the bad actor’s wife should do about it. None of us, unless they knew them, has any idea what Silda Wall knew or what she should do or whether it would be best for their daughters if she took them back to North Carolina. She seems to be an extremely smart person and I trust her to make her own judgments. The idea that people think they can know about the relationships of total strangers is bizarre.

And this has always been a locus of unfair commentary about Hillary Clinton. She’s been frequently attacked — mostly by people who are indifferent or hostile towards feminism — as a betrayer of feminism for staying with her husband. And, of course, had she left she would have been roundly attacked by many of these people as selfish, cold, unforgiving, etc. etc. had she left. You can never win, especially if you’re a woman. Which is why minding one’s own goddamned business about how consenting adults conduct their own relationships is generally a sound principle.

In The Bag

[ 0 ] March 15, 2008 |

John McCain riding in a first-class car on the Alcela is, to an AP reporter either unfamiliar with train travel in the northeast corridor or lying about it, an example of him being “a man of the people.” The reporter was at McCain’s recent BBQ, what a coinky-dink.

This is definitely a bad variable in the general for the Democrats; the capacity of much of the press to embarrass itself about John McCain is pretty much boundless.

The Myth Of 1960

[ 13 ] March 14, 2008 |

I don’t mean to pile on the Mamet essay — given that it consists entirely of sophomoric cliches it will convert nobody, and as Roy says if it compels some wingers to check out Glengarry Glen Ross or American Buffalo the net effect will be positive — but since this particular foolishness gets wider circulation I figure it’s worth shooting down:

Bush got us into Iraq, JFK into Vietnam. Bush stole the election in Florida; Kennedy stole his in Chicago. Bush outed a CIA agent; Kennedy left hundreds of them to die in the surf at the Bay of Pigs. Bush lied about his military service; Kennedy accepted a Pulitzer Prize for a book written by Ted Sorenson. Bush was in bed with the Saudis, Kennedy with the Mafia.

Admittedly, some of this stuff about JFK has some merit (and, indeed, his “reverence” for Kennedy demonstrates the same shallowness as the collection of reactionary bromides under discussion). But “stole his in Chicago”? Leaving aside the fact that JFK stealing a net positive of votes in Illinois is assumed rather than proven, some simple math is in order:

1960 Election Electoral Votes

JFK: 303
Nixon: 219
Thurmond: 15

Illinois: 27

I think even a guy who couldn’t find his fuckin’ couch in the living room could figure this one out.

Wanksta’s Paradise

[ 24 ] March 14, 2008 |

Wow. YouTube certainly does create entirely new possibilities for profound embarrassment.

Having said that, I think Matt is being too quick to cede the large tacky middlebrow vote to Clinton, although the lameness of the particular manifestations that sometimes emerge from Clinton supporters has been striking. Middlebrow is not a monolith! For example, correct me if I’m wrong, but the Oprah Winfrey Show strikes me as…not un-middlebrow. And while The Wire I’ll concede, I find it very puzzling to cite’s musical support in behalf of the proposition that Obama is too cool to win.

Above: middlebrow schlock.

If Obama can just get a supporting video from an American Idol contestant, he’ll be back to par!

Speaking of which, since I was stuck at a hotel in exburban Virginia earlier in the week because I was in D.C. to give a lecture and waited too long too book a hotel at this time of year, I actually for the first time saw some American Idol as part of a captive audience at the hotel restaurant. Apparently, involves a bunch of fourth-rate singers murdering the Lennon/McCartney songbook, and doing an unspeakably atrocious arena-rock “Eleanor Rigby” gets you talked about as if Sam Cooke came back to earth and inhabited your body. (Note: I do not speak for the Obama campaign.)

Somewhere, Heath Ledger Is Smiling

[ 28 ] March 14, 2008 |

John Gibson can’t quite meet the standards of Fox News.

Silver Platter

[ 0 ] March 13, 2008 |

In light of the too-late resignation of Clinton campaign Senior Adviser For Race-Baiting Gerry Ferraro, it’s worth highlighting this about New York’s new governor:

With Spitzer announcing his resignation amid a prostitution scandal, Paterson, 53, will become the country’s third African American governor since Reconstruction.

Still, black people just have it too damned easy in this country!

The Case For Decriminalization In Context

[ 23 ] March 12, 2008 |

Matt links to without fully endorsing Kerry Howley’s feminist-libertarian argument for legalizing prostitution. I’m inclined to agree with her bottom line, but I do find the argument in this form a little problematic. The key is this line: “Even decriminalization, which treats Johns as outlaws and sex workers as victims, assumes that all sex workers are damaged, that no woman would ever love sex enough to make a career out of it.” There is a certain power to this argument. But then, there was a certain power to the justly discredited majority opinion in Lochner v. New York striking down maximum hours laws: “There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are able to assert their rights and care for themselves without the protecting arm of the State.” In practice, though, the problem is not that bakers don’t understand their own interests but rather that structural realities put them in a position of much less bargaining power than their employers. Similarly, while I don’t think most feminist critics of prostitution would deny that some women may choose to become prostitutes because they really “love sex,” the reality of a majority of women who are prostitutes and why they end up in the job makes this a rather implausible motivating factor unless poor women, women with drug problems, etc. are especially predisposed to “loving sex.”

The way I would make Howley’s point is to say that the real problem with criminalization is a “compared to what?” issue. Sex work tends to be (although not necessarily in every case) grossly exploitative, but it’s unclear to me that it’s more exploitative than cleaning toilets, working odd hours at Wal-Mart with no benefits, etc. In this sense, outright bans in the practice do tend to smuggle in reactionary assumptions about sex through the back door even if they’re intended to protect the worker; there’s good reason to be wary about the assumption that women need to be uniquely protected from engaging in sexual activity as opposed to other potentially degrading work. So I don’t think bans are generally appropriate, but I do think that sex work can be regulated like other forms of commericial activity, and it’s perfectly reasonable for such regulations to take into account how sex work tends to function in practice, even if the general trends don’t apply in every single case. (An independently wealthy person who wants to serve as a Wal-Mart greeter to kill time doesn’t need the protection of labor regulations, but that’s not a good reason to get rid of them.)

Finally, it should be noted that there is one way in which prostitution is different from many other forms of exploitative labor: the widespread presence of trafficking. This doesn’t clinch the case for me because bans don’t seem to be an especially effective way of stopping it, and by denying sex worked police protection also creates lots of negative externalities (vulnerability to sexual assault and blackmail from police, pimps, etc.) , which to me is crucial. But if evidence emerged that decriminalization led consistently to an increase in trafficking, the issue would become a lot more difficult.


[ 24 ] March 12, 2008 |

24-point win for Obama, netting +6 delegates and nearly 100,000 popular votes. Also note that this was despite GOP voters going for Clinton 3-to-1.

I must also admit finding it grimly amusing in light of these antics that I was supposed to be outraged by Samantha Power.

Really, No

[ 0 ] March 11, 2008 |

I agree with K-Drum and Atrios about this Orlando Patterson op-ed. I mean, even if there was a potential racial subtext that the ad should have avoided — and Patterson’s case that there is, to put it charitably, strained — to compare it to a film that was not merely pro-Klan and anti-Reconstruction but actually played a major role in mobilizing private terror is really far, far beyond the pale. I think a couple criticisms of Clinton campaign’s use of race have been valid, and many more have not been, but if you’re going to make this kind of analogy your case has to be far stronger than Paterson’s is.

More, Please

[ 16 ] March 11, 2008 |

The Obama campaign hits back on Clinton’s allegedly extensive foreign policy “experience.” (Admittedly, they don’t seem to be counting the time she went to Albania with Amy Grant and Nipsey Russell in their rundown.) And, of course, the bottom line remains the most important thing:

Barack Obama has a very simple case. On the most important commander in chief test of our generation, he got it right, and Senator Clinton got it wrong…He possesses the personal attributes of a great leader — an even temperament, an open-minded approach to even the most challenging problems, a willingness to listen to all views, clarity of vision, the ability to inspire, conviction and courage.

That’s the way to do it, in both the primary and the general. Even if Clinton had the foreign policy experience she claimed, if she thought that the Iraq War was a good idea it can’t have done her much good. And although Clinton may think McCain would be a bang-up Commander in Chief his own misjudgments make clear that this isn’t true.

Simple Answers To Inexplicable Questions

[ 21 ] March 11, 2008 |

Richard Cohen:

At the moment, no one can figure out how the Democrats are going to get a nominee.

I believe it involves the obscure method of “holding some more primaries,” after which one candidate will almost certainly have a 100+ delegate lead, and then a lot of superdelegates will vote for him (almost certainly a majority, but since he doesn’t need anything like that it doesn’t matter) and he will get the nomination. You’re welcome!

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