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Federalism, Madison, and the 21st Century

[ 0 ] June 1, 2007 |

Matt has one obvious rejoinder to David Brooks’s pean to the mediocre character actor and undistinguished one-term+ Senator who seems to be the GOP’s New Fresh Hope for ’08. So instead I’ll take issue with Brooks praising Thompson because “[h]e’s going back to Madison and Jefferson and the decentralized federalism of the founders, at least as channeled through Goldwater.” My first response is, how on earth could it be an ipso good thing to go back to a conception of federalism designed for a predominantly agrarian 18th century society? You really need a make a further argument here. So let’s try that.

Advocates of a strong “federalism” are fond of discussing Madison’s argument that federalism is a “double security” for liberty. Unless you place a higher value on such freedoms as the right to ship goods made with child labor than I do, however, it’s not clear how well this has worked in American history. Much more prescient was Madison’s insight in Federalist #10 that smaller, homogeneous polities are much more likely to oppress minorities than larger, heterogeneous polities. Goldwater’s slightly updated beliefs about federalism have, for good reason, been utterly discredited. I suppose it’s nice in a narrow way that Goldwater opposed the Civil Rights Act on principled federalist grounds (unlike the vast, vast majority of the CRA’s opponents, who opposed desegregation at the federal, state and local level, whether it was done be legislatures or courts, etc.) But the effect of his principle was…to oppose the Civil Rights Act, which can be seen as a net positive for freedom only under the most blinkered and formal conception of what freedom means. Similarly, very few people value the “freedom” gained by prohibiting the federal government from providing guaranteed pensions. And so on.

Given this history, it’s telling that Brooks manages to avoid explaining exactly what powers he wants devolved to the states and speaks entirely in terms of pleasant abstractions. Presumably, to Brooks this doesn’t include entirely dismantling the Civil Rights and Voting Rights Act and the New Deal regulatory state, but this just demonstrates once again that arguments about “federalism” don’t do any real work in most arguments. Saying that something should be “left to the states” is normally just another way of saying you don’t think a federally protected right or federal government power is very important. There are a few seriously principled “federalists,” but logically applying their beliefs wouldn’t fly in 1964 (let alone 2008), and for very good reason. Minority rights need federal protection, and the regulation of a complex, interdependent 21st century economy requires federal regulation.

The Court After the Bush Remodeling

[ 0 ] June 1, 2007 |

Simon Lazarus and Rochelle Bobroff have more on Alito in the wake of his casting the decisive vote in the awful Ledbetter decision:

In the meantime, they can expect more opinions in this vein from the Roberts Court. Justice Alito’s solicitude for employers is not new. Before joining the Supreme Court in February 2006, as an appellate judge on the Third Circuit Court of Appeals, he repeatedly pressed legal theories or factual interpretations, usually in dissent, designed to keep juries from hearing employment discrimination claims. In one such case, the majority opinion observed that his position “would immunize an employer” even if he or she were motivated by “conscious racial bias.” In another, the majority noted that if his approach represented the law, “few if any [discrimination] cases would survive.”

And, needless to say, this couldn’t have been more predictable. But he stretches the law to slavishly restrict discrimination claims in a non-acerbic manner, and he likes baseball, so he’s really a moderate!

Deal Breaker

[ 0 ] May 31, 2007 |

The U.S. Attorney had to know he was in trouble with the Bush administration. What was his offense, you might ask? Corruption? Refusing to prosecute serious crimes? Hitting on Laura Bush? No, it’s much, much worse than you could imagine:

For more than 15 years, clean-cut, square-jawed Tom Heffelfinger was the embodiment of a tough Republican prosecutor. Named U.S. attorney for Minnesota in 1991, he won a series of high-profile white-collar crime and gun and explosives cases. By the time Heffelfinger resigned last year, his office had collected a string of awards and commendations from the Justice Department.

So it came as a surprise — and something of a mystery — when he turned up on a list of U.S. attorneys who had been targeted for firing.

Part of the reason, government documents and other evidence suggest, is that he tried to protect voting rights for Native Americans.

Yes, it’s hard to imagine anyone keeping their job after such scandalous behavior. For shame.

Justice Brennan’s Evil Twin

[ 0 ] May 30, 2007 |

The small band of people arguing that Sam Alito would be anything but a catastrophe for liberal constitutional values had very few arguments available to them, given the overwhelming evidence that he would be (including the extremely high esteem in which Alito is held by those who despise the achievements of the Warren and early Burger Courts.) One strategy, favored by Ann Althouse, was to assert that liberals “may discover that there are varieties of judicial conservatives, just as there are varieties of political conservatives, and that Samuel Alito is not Antonin Scalia” without citing a single area of law where Altio is likely to be more liberal than Scalia. (The reverse, conversely, is quite easy.) Obviously, this is not worth taking seriously. The other strategy — favored by the likes of Akiba Covitz and Stuart Taylor — was to claim that Alito would be to the left of Scalia because he was more “congenial” and less prone to the broad pronouncements and acerbic rhetoric of Scalia. This is both true and entirely beside the point. Yes, his strategy is to avoid Scalia’s culture warrior posing and rather — like a bizarro world William Brennan, gone over to the dark side — to cobble together precedents while subtly pushing them towards his ideological preferences, with an extra soupcon of bad faith.

His opinion yesterday in Ledbetter is a classic case in point. Alito, before citing a precedent, blandly asserts that Ledbetter’s “argument is squarely foreclosed by our precedents” and that “It would be difficult to speak to the point more directly.” But the precedent cited — which involves a case in which a woman resigned because if a discriminatory policy, and then sued for back pay after being hired several years later — is hardly a “square” or “direct” analogy (or, as Alito claims, “basically the same” argument.) That case dealt with two discrete acts, with the potential discrimination of the first resignation more more transparent than relative pay discrimination between employees. The precedent is a point in the company’s favor, but nothing more than that; it’s hardly controlling. The Morgan case cited by the dissenters — which involved non-discrete, ongoing discrimination — is at least as relevant, and it seems to me much more so. Alito’s bland rhetoric conceals characterizations of precedents that are tendentious in the extreme.

So, yes, Altio’s measured tones don’t have any of the quotable “Kulturkampf” rhetoric of a Scalia opinion; there’s nothing about gender discrimination being a glorious American tradition or something. This doesn’t make him better than Scalia to people oppose gender discrimination, however. It makes him even more dangerous.

A Balk And A Blast

[ 0 ] May 30, 2007 |

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“You ask for a miracle, I give you…Armando Benitez.”

Between the beautiful day and the Perez/Lincecum matchup, I made am impulse decision to buy Mets tickets yesterday (even with the knowledge that Bonds wasn’t going to start), and it ended up being a good decision. It was a classic power pitchers matchup–every run scoring on a homerun except for Human Highlight Reel Reyes flying home from first on a double, and outside of Perez in the first inning both had terrific stuff. The old Husky Lincecum, if he stays healthy, is going to be a dynamite pitcher; not only a fastball in the upper 90s, but also a devastating curve he throws in the mid-80s. The game went to the 12th. In the top of the inning with runners on the corners, Delgado made a risky play by going for the DP on a groundball by touching the bag first. It was tempting because he was right there, but taking the force off [that was stupid on my part; see comments. I was thinking the bases were loaded when the ball was first hit, and didn't make the adjustment after I remembered.] was crucial, as Vizquel slid under the tag with the go-ahead run. In the bottom of the inning, though, Reyes draws a leadoff walk–somewhat unnoticed, the formerly undisciplined Reyes has drawn 29 with a near-.400 OBP this year–and spooked Benitez into a balk. Endy bunts him over to third, but even Reyes can’t score on Beltran’s hard grounder. But Reyes bluffs off third and Bentiez balks again, bringing in the tying run. You can tell Benitez senses the inevitable now, and sure enough Delgado hits a 2-2 pitch for his second mammoth homer to right of the game to win it.

And then I get home and see that the Yankees have dropped to 14 1/2 back in a game involving crucial errors by Jeter and Slappy Rodriguez and a straight steal of home. Oh yeah. BTW, the idiots who claim that if you just watch Jeter you’ll see he’s great shortstop (if the only other shortstops you see play for your local high school, maybe) should have been at Shea last night, where a great shortstop put on a clinic; Vizquel is unbelievable. It looked like the Mets had the game won in the bottom of the ninth when Franco–maybe Vizquel felt extra young at this point–hit a hard grounder up the middle, but Vizquel ranged well to his left, speared the ball, and flipped it to the second baseman who barehanded it for the force. It wasn’t the only great play he made, either. These numbers ain’t a fluke; even at 40, Jeter couldn’t carry Vizquel’s jock as a defensive player.

Hobbyhorse Watch

[ 0 ] May 29, 2007 |

I’ve been meaning to comment on the odious comments of MeMe Roth (see Lindsay and zuzu), but Professor B. beats me to it, cutting to the heart of the issue:

This whole “I’m so concerned for her health!! And the health of all the impressionable girls who watch American Idol!”

Uh huh. Gosh, MeMe, that’s mighty white of you. Funny how your concern doesn’t extend to any of the health issues that don’t make people . . . aesthetically displeasing.

Here’s the thing: anyone dissing fat people? Who concern trolls it by wringing their hands over the health of perfect strangers? Is a big fat liar.

I could repeat again that (with the possible exception of diabetes) the independent effects of weight on health are negligible, but in some sense it’s beside the point. These arguments aren’t about health; they’re about using health as a pretext to dress up aesthetic reactions. (And there’s nothing wrong with these aesthetic reactions per se, although they hardly justify the kind of systematic shaming that the health smokescreen seems to justify.) And this is not merely harmless; conflating weight with health quite clearly has a net negative impact on health, creating psychological problems and providing all kinds of incentives for behaviors that are considerably more unhealthy than being overweight. A White Bear is especially good on this point.

Obviously, the bad faith is particularly transparent when your gimmick is a “wedding dress challenge,” but it’s a problem that goes far beyond one Fox News crank.

Court Protects Gender Discrimintion

[ 0 ] May 29, 2007 |

As Ruth Bader Ginsburg notes, the evidence of gender discrimination in the case of Ledbetter v. Goodyear, decided today by the Supreme Court, is unambiguous:

Lilly Ledbetter was a supervisor at Goodyear Tire and Rubber’s plant in Gadsden, Alabama, from 1979 until her retirement in 1998. For most of those years, she worked as an area manager, a position largely occupied by men. Initially, Ledbetter’s salary was in line with the salaries of men performing substantially similar work. Over time, however, her pay slipped in comparison to the pay of male area managers with equal or less seniority. By the end of 1997, Ledbetter was the only woman working as an area manager and the pay discrepancy between Ledbetter and her 15 male counterparts was stark: Ledbetter was paid $3,727 per month; the lowest paid male area manager received $4,286 per month, the highest paid, $5,236.

Despite this, and contrary to the judgment of the EEOC, the Court by a bare 5-4 majority threw out the discrimination claim she brought under the Title VII of the Civil Rights Act. The Court–in an opinion, natch, written by its arch-reactionary newest member–argued that Ledbetter failed to challenge the initial discriminatory pay decision within the required 180 days, and the ongoing pay discrimination did not constitute an “unlawful employment practice.” As Ginsburg points out, this reading of the statute makes little sense; unlike a single discrete act such as a firing, an employee may not be aware of the discriminatory nature of their pay until much later, and moreover it is illogical to hold that only an initial decision to discriminate but not the discriminatory pay itself constitutes an unlawful practice. The effect of the case is to insulate employers from wage discrimination claims as long as they can hide the evidence from the employee being discriminated against for 180 days, a result contrary to the purpose of the statute that is in no way compelled by its language.

The effect of Sandra Day O’Connor being replaced by Alito is particularly stark in this case. O’Connor–who was offered only secretarial jobs after graduating third in her Stanford Law class–had a good record on gender discrimination, while Altio’s record on both gender issues and civil rights claims more broadly is atrocious. The useful idiots who claimed Alito was a moderate notwithstanding, his vote in this case was inevitable; I held out a shred of optimism that Thomas and Scalia might defer to the EEOC based on the former’s opinion in the Morgan case, but this was apparently hopeless optimism. Although these kinds of cases flay under the radar, this is a major way the Alito-fied Court will work to advance bad outcomes. Republicans don’t have to modify or repeal civil rights legislation, and the Court needn’t strike it down; the courts and/or the executive branch can just gut the legislation by making it difficult to enforce in ways that don’t attract public attention.

To end on a slightly less defeatist note, as Ginsburg did, because this is a case of statutory interpretation Congress can respond to the Court by changing the language of the statute to override the Court’s unduly narrow interpretation. They should start working to do so immediately.

Paying For Toxic Global Warming

[ 0 ] May 29, 2007 |

I understand that it’s politically difficult to institute the kinds of policies–most importantly energy taxes–that would be necessary to substantially reduce carbon emissions. But one good first step would be to stop directly subsidizing dirty energy.

There, There

[ 0 ] May 29, 2007 |

General J.C. Christian kindly consoles Ace O. Spades, heterosexual, over the latest humiliation of the wingnutosphere’s Junior Detective division:

I see Greenwald is doing it to you again, and frankly, I’m disgusted by it. I mean, here we have a guy who refuses to answer his nations call to take up his keyboard and go to war against the Worldwide Islamunistofascist Conspiracy and its servants in the media and the Demislamunistofascistsatanic Party, and chooses, instead, to fact check you and Chuck Johnson, two of America’s greatest keyboard heroes.

I know he thinks he’s exposed you as some frightened, hate-crazed supremacist with delusions of martial grandeur, and maybe you are, but who’s to say that isn’t a good thing. It certainly works for Dick Cheney.

Yes, things look bleak right now. Certainly, to most observers, the fact that the State Department authenticated a document you claimed was forged does tend to make you look like an idiot.

Fortunately we know better. Fuck Greenwald and those of his ilk who are stabbing America in the back with cold hard facts. We have a war to win. We don’t have time for facts or reality. They are merely crutches for the weak. We will build our own reality; a reality where going to war with Iraq was a smart move; a reality where all men are strong and ruggedly handsome and, by God, a reality in which all women are eager to sleep with us even if we live in our mother’s basement eating Cheetos and compulsively masturbating to reruns of 24.

I must echo these sentiments, in the interests of civility.

…Speaking of the Schiavo memo, a compendium of Powerline’s greatest hits.

Lend A Hand

[ 0 ] May 28, 2007 |

Christy on Memorial Day, with many suggestions of what you can do to help.

Today In Aesthetic Stalinism

[ 1 ] May 28, 2007 |

Reihan Salam explains the wrongthink of…Fletch. Disappointingly, he doesn’t also discuss how Spies Like Us failed because of its traitorous attacks on American military values, and how Cops and Robbersons wasn’t funny because it was a subtle pre-preemption of Rudy Guliani’s candidacy, but hopefully that will be in the next column.

We Will Not Accept Defeat In the War on Prose

[ 0 ] May 27, 2007 |

I understand that anything less than fulsome praise for the artistic stylings of untalented multi-millionaires will crush the Fragile Spirits of today’s Sensitive Teenagers (and, alas, I do think that this comment was serious.) Despite this, I see no way to avoid quoting from this review of Newt Gingrich’s new literary classic, which has the soaring ambition to be the worst art ever produced about Pearl Harbor (far from an easy task, given that America’s Worst Director has already set the standard.) How bad does a book have to be to get a hatchet job from Janet Maslin? Behold:

When the attack began, it was Dec. 7 at Pearl Harbor but Dec. 8 in Japan. The book is subtly subtitled “A Novel of December 8th” to signal its attention to the Japanese point of view. On the basis of that detail, you might expect a high level of fastidiousness from “Pearl Harbor.”

And you would be spectacularly wrong. Because you would find phrases like “to withdraw backward was impossible,” sounds like “wretching noises” to accompany vomiting, or constructions like “incredulous as it seemed, America had not reacted.” Although the book has two authors, it could have used a third assigned to cleanup patrol.

This is not a matter of isolated typographical errors. It is a serious case for the comma police, since the book’s war on punctuation is almost as heated as the air assaults it describes. “One would have to be dead, very stupid Fuchida thought,” the book says about the fighter pilot Mitsuo Fuchida, “not to realize they were sallying forth to war.” Evidence notwithstanding, the authors do not mean to insult the fighter pilot’s intelligence — or, presumably, the reader’s.

Some of these glitches are brief, while some are windier. The long ones are particularly dangerous. Here is what happens when James Watson, an academic and a decoding expert who is one of the book’s cardboard Americans (as opposed to its cardboard British and Japanese figures), has lunch:

“James nodded his thanks, opened the wax paper and looked a bit suspiciously at the offering, it looked to be a day or two old and suddenly he had a real longing for the faculty dining room on campus, always a good selection of Western and Asian food to choose from, darn good conversations to be found, and here he now sat with a disheveled captain who, with the added realization, due to the direction of the wind, was in serious need of a good shower.”

James lives in Hawaii with his half-Japanese wife, Margaret. Margaret is the book’s only female character, and she barely appears. This is evidence that Mr. Gingrich has learned that politicians writing fiction are well advised to avoid eroticism. The book’s only trace of the lascivious is a reference to rising wartime hemlines in Britain because of an effort to conserve cloth.

Elsewhere in Hawaii, among the fighting forces, things are typically editor-proof. In a case for James’s decoding skills, the book says: “The boys had money in their pockets to burn and fresh in from the West Coast the obligatory photos with hula girls, sentimental silk pillows for moms and girlfriends, and ridiculous-printed shirts had sold like crazy.”

Even leaving aside the writing that could make Jewel look like Yeats, the apparent lack of not only eroticism but female characters pre-empts some of the so-bad-it’s-entertaining moments that distinguish the fiction of Bill “He was speaking hushed tones, telling her how much he enjoyed her body, using words that in polite conversation would have been vulgar, but in this context were extremely erotic” O’Reilly and Orson “Thank God after a long day of dealing with liberal academics who, after solemn reflection, I’ve convinced are entirely evil I can return home to the killer bod of my wife, Scoop Jackson” Scott Card. Whoops, there I go again, discouraging teenagers who might otherwise be writing novels about killing everyone who ever gave them a negative job evaluation or stapling a bunch of position papers rejected as “too simplistic and knee-jerk reactionary” by a local Young Republican newsletter together and calling it a “novel.” My apologies, but keep in mind that if they keep pressing on they can get a featured podcast interview from Glenn Reynolds, so it will all be good…