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High Stakes Don’t Ensure the Minimum Blues

[ 2 ] April 6, 2007 |

I have a discussion of Jan Crawford Greenburg’s new book up at TAP. The most valuable part of the book, I argue, is that it emphasizes how contingent the (relative) moderation of the late Rehnquist Court was. To excerpt one point:

The most sophisticated denial strategy is to point out that the Court rarely stays outside of the bounds established by political pressures for long. Long-established by the political science literature, this claim actually has considerable merit, and it is true that worries about the return of a “Constitution in Exile” are overblown. (It is highly unlikely that anything like a radical, pre-New Deal vision of federalism will ever command five votes in the Supreme Court. Even if it happened, the effects would be temporary, as the Republican Party would essentially be finished as a political force in its current form.)

Still, it’s important not to overstate the restrictions on the Court’s autonomy, or to assume that justices will always act in the strategic interests of the party that appointed them. In retrospect, it may seem inevitable that the Court has failed to take the highly unpopular step of overturning Roe v. Wade, but as Greenburg reminds us, Roe’s survival (in diluted form) was highly contingent. Had Ronald Reagan nominated Robert Bork when the GOP still controlled the Senate and saved Scalia to replace Lewis Powell, for example, he almost certainly would have gotten both confirmed. Similarly, Souter’s nomination by George H.W. Bush was a fluke based on the influence of John Sununu and Warren Rudman in the White House and strange internal machinations in the Department of Justice; without those things, Kenneth Starr would have been the likely nominee. Either result would have ended in Roe being overturned, and would have had a considerable impact in many other areas of law as well (most notably affirmative action and church and state issues). The Rehnquist Court could have been much more conservative than it was. Liberals shouldn’t get too complacent about the consequences should a Republican president get to appoint the replacement for John Paul Stevens or Ruth Bader Ginsburg.

As I say, it’s true that the Court–in general–tends to gravitate towards the political center. But there are also any number of exceptions to this rule, and (particularly during times of closely divided government) the Court often has considerable discretion about individual issues. The fact that overturning Roe might not be optimal for the Republican Party doesn’t ensure its survival by any means, and in fields where a great deal of rollback can be done outside the public eye the potential damage of making Roberts or Scalia the median vote on the Court is even greater.

The New Web Sexism

[ 0 ] April 6, 2007 |

Jessica breaks it down; read the whole etc. Elsewhere, Ann Althouse uses the article to once again to repeat a shamelessly misleading narrative about the incident, pretending that her silly, oft-refuted claim that being seen with Bill Clinton is a betrayal of feminism (while enthusiastically supporting Sam Alito and George Bush, of course, isn’t) was the only point she was making. But, of course, nobody would remember her post if this was her only argument; feminism being used as a transparent prop for right-wing resentment is pretty banal on the intarweb these days. Rather, people have criticized Althouse because she repeatedly mentioned Jessica’s body for no reason whatsoever, made puerile sniggering remarks about her (how can somebody look like both Paula Jones and Monica Lewinsky anyway?), and put forward grossly dishonest characterizations of the content of Jessica’s website in the midst of deranged conspiracy theories about the meetup. (To state the obvious, claiming that NARAL’s house blogger was invited to a Hillary Clinton event to get set up with Bill Clinton isn’t just evidence of a rather unhealthy obsession with Bill Clinton’s sex life at this late date, but implies that the most prominent feminist blogger in the city where the meetup occurred has nothing to offer a political campaign but her body.) If Althouse doesn’t want to be criticized for her behavior, she should stop being dishonest about why she’s being criticized.

Standing and Executive Power in MA. v. E.P.A.

[ 0 ] April 5, 2007 |

I finally got a chance to read MA v. EPA, the recent decision requiring the EPA to reasonably justify its decision not to regulate greenhouse gases under the Clean Air Act. The first component of the case is whether or not the parties challenging the regulation had standing to challenge the regulatory decision; this part of the opinion I completely agree with, and indeed I only wish that Stevens had the votes to overturn the key rule established in Lujan (a 1992 standing case in which Stevens wrote a concurrence persuasively rejecting Scalia’s narrowing of standing doctrine.) I would strongly recommend Jack Balkin’s two posts on the subject. First of all, he correctly notes that “[s]tanding doctrine is among the most unprincipled and arbitrary parts of American constitutional law.” And second, he’s also correct to point out that the narrowing of standing doctrine under the Rehnquist Court isn’t random, but will generally favor litigants seeking conservative outcomes. (People bringing property rights claims can always claim a direct injury, for example, but challenging the potentially unconstitutional funding of religious organizations becomes much more difficult.) My favorite quote about standing is William O. Douglas’ counter to the arguments of Warren Court house conservative John Marshall Harlan: “Taxpayers can be vigilant private attorneys general. Their stake in the outcome of litigation may be de minimis by financial standards, yet very great when measured by a particular constitutional mandate. My Brother HARLAN’s opinion reflects the British, not the American, tradition of constitutionalism. We have a written Constitution; and it is full of “thou shalt nots” directed at Congress and the President as well as at the courts. And the role of the federal courts is not only to serve as referee between the States and the center but also to protect the individual against prohibited conduct by the other two branches of the Federal Government.” In the American system, the merits of a constitutional argument should be more important than the identity of a litigant, and standing rules are particularly likely to be deployed in an outcome-oriented manner.

On the merits of the case, I’m actually a little more ambivalent. While I have little sympathy for conservative arguments about standing, I do think they have a point about deferring to reasonable executive applications of statutes. (This is not just conservative, of course; the crucial Chevron case, which requires the courts to defer to reasonable executive interpretations of statutes, was written by Stevens and joined by Brennan.) And it is important to keep in mind that as early as 2009 we could have a Democratic administration being supervised by very conservative federal courts. Still, for better or worse under the modern regulatory state judicial review plays a significant role, I’m much less optimistic than Balkin about the Court’s conservatives being as deferential toward a Democratic administration, and certainly I think that the majority’s construction of the Clean Air Act was far more plausible than the EPA’s (or the dissenters’), so this is probably a good outcome on balance. It is, however, important to remember that the modern state grants enormous policymaking discretion to the executive, and it would be dangerous to count on the Courts to overturn bad administrative decisions in most cases. Control of the White House is extremely important even if the climate for major legislative reform is unfavorable.

The Real Feminists: An Update

[ 0 ] April 5, 2007 |

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Admittedly, it’s hard to be much more of a staunch feminist than Glenn Reynolds, with his innovative program of no voluntary headscarves abroad and state coercion to get the head of the household’s permission before obtaining an abortion while you wait for a Reynolds-approved judiciary to extinguish your reproductive freedom at home. Still, I think when you want truly committed feminism, you have to go to the Family Research Council’s Tony Perkins. No headscarves abroad, no birth control and purity balls at home–frankly, I think this is an even more compelling feminist plan that Instapundit’s. Althouse’s “no Ann Taylor sweaters, support Bush and Alito” program is somewhere in the middle.

2007 Season Preview: NL

[ 0 ] April 4, 2007 |

On to the Senior Circuit, listed in predicted orders of finish that can be taken straight to your local bookie, wildcard asterisked. AL here.

NL EAST: NYM ATL (*) PHI FLA WAS Even among people picking them, there seems to be a consensus that the Mets will be down significantly. I don’t really see it; their starting pitching was thin last year, too, and with Maine there for a full year and Pedro possibly back in the second half (and supported by a good pen), the best offense in the league will cruise to the division title again. The Braves may be in some trouble long-term, but they’ll be a lot better this year; they were better than their record last year, their bullpen is rebuilt, and McCann could be the NL version of Mauer. I don’t think the rotation will be good enough to keep the division super-close, but it should get them the wild card. The Phillies are a hot pick, and certainly Howard-Utley-Rollins is an exceptional core, and Burrell is better than he’s given credit for, they have Hammel and some decent innings munchers. But the core is also no better than the Mets’, and especially after the idiotic Abreu trade the supporting cast is a lot worse, plus the bullpen both sucks and blows. And if there’s a tight race, you have to consider organizations. First of all, you have old-boys retread Charlie Manuel going up against one of the five best managers in the history of the sport and one of the most impressive young managers in the game, and Die on the Vine Gillick against Schuerholz and Minaya. Please. I’m afraid they’re missing the playoffs again. The Marlins are built on young-pitching quicksand, I think they’ll be victims of the Plexiglass Principle. Some people think the National will be historically bad. I think they’ll be saved by the league, and their lineup has more decent players than, say, the 2003 Tigers (although Dimitri Young is on board here too.) Their pitching, though, is atrocious–they will be the worst team in baseball this year.

NL CENTRAL: MIL CHI STL PIT HOU CIN Growing up an Expos fan has deeply ingrained in my memory that there’s a long distance between a compelling collection of talent and a championship team. But although I’d like to avoid the boutique pick, there isn’t actually anything resembling a good team in this division, so they seem as good a bet as anybody. I figure one year they’ll get lucky with their pitching, I like Cordero as a close, and they have some bats that can improve. The Cubs have made a big splash, and Soriano is indeed an excellent hitter and Pinella can run an offense. But their offense (as usual) has power but very little in terms of on base skills. They’ll need to get something out of the back end of their rotation, and I note the following combination of factors: Jason Marquis #3 starter; Alfonso Soriano in center field; managed by Lou “Just throw ^&)^*& strikes” Pinella. I can’t pick them. The Cards are in a lot of trouble, World Championship or no. Pujols is the best hitter in the game, but he’s surrounded by two once-great players with rapidly deteriorating skills and a bunch of OBP sinkholes, butchers, or both. The starting pitching is dubious even if Wainright can make the transition, and I don’t think there’s much reason to believe Izzy can pitch anymore. If Caprenter’s injury is remotely serious, they could lose 90+. The Astros are in similar shape, except that Berkman isn’t as good as Pujols. Lee will help, but not enough for a team that pretty much sends three pitchers to the plate every game, the rotation is highly questionable outside of Oswalt, and Lidge pretty clearly as Schiraldi disease. Clemens won’t save them this year. The Pirates don’t seem much worse than any of these teams; they have more good bats that the Astros, and on balance their pitching doesn’t seem much worse either. They’re not good enough to contend in a serious division, but I could see them being in the race in this one into the summer, which will be good for what looks like the coolest park in the league. Rob has covered the Reds.

Since I gave in an picked the Indians this year, the sabermetric bandwagon I’m jumping off is the Diamondbacks. See what I wrote about Milwaukee–there can often be a longer distance between good young talent and a really good team, and if the Diamondbacks have more impressive talent they’re not as far along. The Padres get no respect, but the offense and Cameron-led defense are both underrated, Giles is a good gamble, and I love Maddux in that park. I think they’ll win again if Hoffman holds up. The Dodgers are the overrated Old Media team, especially with Frucal on the shelf to begin the year, I’m not impressed. Losing Drew will hurt; Gonzalez is finished, and Pierre is a joke in center. Nomar! isn’t a great hitter for a 1B even if he stays healthy, and their best player is a 39-year old 2B. The rotation is pretty good if healthy, but I like the Pads more. The DBacks could win–Webb is backed up with some veterans who may have comebacks in them. But I think the bullpen with cause them to perform less well than their run differential–I’ll pick them in 2008. I frankly never know what the hell to make of the Rockies; it’s hard to build a championship staff in that park, but like the Brewers they have young players who have less upside but are further along than Arizona’s; I could see them putting up a fight. What has happened to the Giants during the last years of Bonds is pretty pathetic. Durham is pretty good but not a cleanup hitter, and the collection of stiffs surrounding Bonds is getting more decrpit every year (and effectively replacing Alou with David Roberts won’t help.) The pitching looks better in the raw stats than it is, and Zito is more a good ininngs eater than a star at this point despite his salary. And their closer is Armando Benitez. That could be one ugly bit of business in the country’s most beautiful city.

World Series: Cleveland over NYM.

The Latest Smearing of Pelosi

[ 0 ] April 4, 2007 |

Charles Johnson et al. crying “Dhimittude!!!ONE!#W!” over Nancy Pelosi wearing a headscarf is, of course, just straightforward bigotry; apparently, we’re expected to believe that Muslims are so subhuman that showing respect to any component of their religious rituals is beyond the pale. (If you’re a Democrat, I mean.)

In a typical twist, Glenn Reynolds affects a feminist pose for the only reason he ever pretends to care about women’s rights: when he can use it to bash Democrats. However, Barbara has some truly shocking news. Apparently, there’s another religion that requires women — and only women — to cover their heads in certain situations. Not only that, but the leaders of this religion exclude women from most positions of authority in their church, believe it’s a good idea to pass arbitrary laws forcing women to carry pregnancies to term, etc. And this religion can be found…among 5 members of the United States Supreme Court! Oh the humanity! How will American women ever reconcile themselves to our culture’s starkly illiberal practices?

…I see that Michael Goldfarb is claiming at the Weekly Pravda that Pelosi was “wearing a burka.” I think he may actually be stupider than Charles Johnson. (Via MY.)

The Smearing Of Matt Drudge

[ 0 ] April 4, 2007 |


At times like this, it always seems worth returning to the Mighty Reason Man’s summary of Instapundit:

HERE’S AN INTERESTING POST by a guy named Steve from Des Moines. He highlights the direct connection between the modern Democratic Party and the National Socialist German Workers Party. Some incriminating stuff here. Of course, you wouldn’t know this if you only watched CNN…

posted at 05:43 PM by Glenn Reynolds

THE NEW YORK TIMES IS FULL OF SHIT because they quote unreliable sources and make things up.

posted at 05:17 PM by Glenn Reynolds

Of course, he had no way of knowing at the time that a prominent conservative pundit would get a contract to write a book about the first subject, but it’s just hard for satire to stay ahead of Republicans these days.

2007 Season Preview: AL

[ 0 ] April 4, 2007 |

Allright, time for some picks (teams listed in order of finish, * wildcard):

AL East: NYY, BOS, TOR, BAL, TB I hate to tell you this, but I think the Yankees are the clearest-cut pre-season favorites they’ve been in a while. Their offense, if healthy, will be one of the better ones in major league history, while the Red Sox have let theirs thin out a bit. The bullpen is anchored by the greatest ever to hold his position by a considerable margin, and backed up well too. The biggest caveat is that they have an old and/or injury-prone finesse rotation, but I think they’ll win more than 100. I didn’t criticize the move at the time, but in retrospect not signing Damon was a big mistake for the Sox. Not only did he let a good player at a scarce position go to divisional rivals, but the Red Sox have never one without quality defense in center. And while Crisp is capable of having a Damon-like year with the bat, he’s not a major league CF, and of course Manny is a butcher. Drew will help a little, at least for the 70 games he’s healthy, but I think a lot of what looks like disappointing pitching last year was a result of the bad defense they were throwing out there. Their rotation is better than the Yankees but the defense will mitigate some of the edge, and they’ll score fewer runs and blow more leads. The Blue Jays don’t have the offensive depth to compete with the big two, and they can’t afford injuries to their injury-prone starters; I’d like to pick them but I think they’ll regress a bit. The Orioles could be competitive; I like a lot of their arms and the bullpen, but the offense isn’t going to permit competitiveness in this division. In the short term, the Rays are if anything going backward; they have some interesting young players but no proven middle-of-the-order hitters in a division with three formidable cores, and their have one good starter and no good relievers. They could be back to losing 100+.

AL Central: CLE DET (*) MIN CHI KC I wasn’t on the Cleveland bandwagon last year, and one still has to have some concerns, especially about the bullpen. Still, their offense is terrific and the rotation at least OK, and they were as good as any team in baseball two years ago; this year I think they’ll get lucky. The Tigers are a real team, and adding Sheffield will help, but the young, high-workload pitchers scare me a little. The Twins could win, but there offense is full of holes and the pitching behind Santana dubious (although their bullpen is could allow them to beat Cleveland.) I don’t like the direction of the White Sox at all; their rotation, in particular, is a lot worse than the world championship team, and the offense is second-tier. The Royals will be more interesting than the previous two years because of Gordon, but that doesn’t mean they’ll be competitive (although I think they will be better than Tampa.)

AL West: OAK LA TEX SEA I guess I’m stubborn about the Angels, who with Lackey, Guerrero, Rodriguez and some new blood could well be back in first place. But I don’t like the offense’s on base skills, and they have a lot of sore-armed pitchers; I think the A’s will beat them again. The Rangers could win too; firing a hardass manager like Showalter can sometimes pay off the next year, Blalock could come back, and if Gagne returns to anything near 100% that’s a mjor asset. But they seem serious about playing Sosa, and it’s too hard to build a rotation in that park. The Mariners have the base of a good team with Hernandez and decent players at most positions, but have a lot of missing pieces in the rotation and bullpen, and are a middle-of-the-order hitter or two short as well. It’s well-known that their offseason was a catastrophe (with the Vidro addition especially bizarre), but what’s doubly irritating that their penny-pinching let a two potential championship teams die on the vine, and they finally started overspending on players when they weren’t good enough anyway. One bit of good news: if the year is bad enough, not only Bavasi and Hargrove will go, but maybe Armstrong as well.

The Authoritarian

[ 0 ] April 3, 2007 |

Yglesias finds Rudy Giuliani asserting an “inherent authority” to fund troops without Congressional appropriations. Evidently, it would be difficult to find a claim made by a mainstream candidate more transparently at odds with the text and structure of the Constitution. (Even John Yoo concedes that Congress can check the President’s wartime powers by cutting off funds.) Meanwhile, Hilzoy notes that Giuliani responded to Ed Crane’s question of whether “the president should have the authority to arrest U.S. citizens with no review” by saying that “he would want to use this authority infrequently.” So he believes in the kind of arbitrary executive power that directly contradicts the core premises not just of the American Constitution but of liberal democratic constitutionalism in general, but don’t worry–he’d use it sparingly! Trust him!

There seems to be some sentiment among some progressives that Giuliani would be a relatively tolerable Republican President, but I agree with Matt that this is dead wrong. In the context of the White House, Giuliani’s “moderation” would be as phony as Ann Althouse’s. As far as I can tell, his “moderation” would mean that he would claim to be “pro choice” while consistently appointing anti-Roe statist reactionaries to the federal courts; or, in other words, nothing, except that it might make him more electable. He’ll certainly be on board for the upper-class-tax-cuts-plus-corporate-pork fiscal agenda of the contemporary Republican Party. And his complete contempt for the rule of law and for legal restraints on his authority make him a completely unacceptable choice for President, worse than even McCain or Romney.

UPDATE: Make sure to read this from Greenwald too.
[Cross-posted at TAPPED.]

Dog And Pony Show

[ 0 ] April 3, 2007 |

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A red rubber nose would really complete this outfit

JMM analyzes the moldering corpse that is John McCain’s ambition to be President, and links it to the ice-cream-castles-in-the-air rhetoric that has consistently characterized pro-war discourse about Iraq:

So much of this country’s experience of Iraq — and I mean the experience of those of us who’ve watched the carnage at a great distance — has been the widening, agonizing, often comical but always awful gap between what we are told about what’s happening in Iraq and the overpowering reality of what we can see, read and hear about it. A few quotes capture the disjuncture — Dick Cheney’s line about the insurgency in its “last throes”. Perhaps, in retrospect at least, the president’s Mission Accomplished stunt. Actually, for the best evidence that none of this is real and that we’re all just characters on the pages of a tragicomic novel, you need look no further than the fact that our new public culture of cartoonish flimflam was prefigured in the words of the neo-jingoistically named ‘Baghdad Bob’ at the start of the story.


And here I think we have it. The aging war hawk, proving that security is returning to Baghdad by walking into a market encased in body armor, surrounded by rooftop sharpshooters and enveloped in a shield of a hundred soldiers, helicopters (Blackhawks), helicopter gunships (Apaches) and all after another group of soldiers went in for a pre-jaunt security sweep which, in the words of Larry Johnson, “searched for explosives, sent informants into the crowd, set up a perimeter, and secured the area before the Senators showed up with their 100 armed guards.”

It’s an iconic moment, like but much more than the Dukakis image, since its ridiculousness can be come at again and again. And from so many angles. Here, for instance, Times reporters go back to talk to the merchants on hand for McCain’s dog and pony show, who promptly dump on the senator’s malarkey. When asked about the senators’ claims that their jaunt showed that security was returning to Baghdad, appliance shop ower Ali Jassim Faiyad said, ““What are they talking about? The security procedures were abnormal!”

Politicians can be wrong and successful. But what no politician can handle or sustain is to be ridiculous. And isn’t that what we have here? And especially from someone who, at least some seasons ago, some of us had learned to expect so much more from.

I can’t endorse the last bit–given his conducts over the last few years, could we really expect anything more of Maverick McStraightTalk?–but otherwise this is dead on. One wonders if even his media glee club will still be singing his praises to the same extent after this.

"Or you’re gonna what, fire me? On an $80,000 day?"

[ 0 ] April 3, 2007 |

Obviously, Lamoriello deserves a pretty high benefit of the doubt, but his firing of Claude Julien with 102 points and counting is just bizarre. I really can’t think of any non-Devil precedent for the coach of a very successful team being fired this late in the season. Even Steinbrenner didn’t fire his manaagers in the last week of pennant-winning seasons (although whether you would survive until next May was another matter.) The obvious precedent is Lamoriello’s own firing of Ftorek, but I don’t think it was quite this late, and Ftorek and well-known issues with his players. And Esposito fired Michel Bergeron with 2 games left, but that team was barely over .500, and Esposito was a walking punchline as a G.M. It’s very strange.


[ 0 ] April 2, 2007 |


And all of this, of course, was a convenient distraction from Saint McCain taking a “stroll” accompanied by a bulletproof vest, 100 troops, and aerial cover…

Quite correct: “In answer to that need, the Perfesser and his peers embed their rightwing talking points in a creamy, formless mess that we might call I Can’t Believe It’s Not Politics. Its apotheosis is — was, I guess I should say; who takes this shit seriously anymore? — the “Anti-Idiotarian” concept, which held that old ideas of “Left” and “Right” had lost all relevance, and the real litmus was now whether you agreed with the Perfesser’s right-wing ideas, or were an idiot. This is politics with no fuss, no muss — that feeling of resentment the Perfesser’s hehs and indeed have stirred in you are all the sign you need that you’re in the right church.”