This will surprise most of you, but our new enemy is in fact real bad, like the Nazis and Pol Pot and Stalin with his goo-lags. We will beat them if we just try really hard. Jihad is over if you want it. If your system of government was a tree, what kind of tree would it be?
Ah, Opening Night, and it is with both pride and sorrow that I note that the noblest franchise in sports has been, somewhat shockingly, picked by Sports Illustrated as the #1 team in the league. Whether I would go that far I don’t know, but they have 1)the best player in the league, 2)excellent goaltending, 3)the best defense corps in the conference (although Regehr’s injury is a concern), and 4)several forwards with the wheels to take advantage of the new rules. Oh yeah–the new rules. I would say that I like get rid of the two-line pass, am fine with the rules restricting goaltenders, and hate the shootout, although at least it goes away in the playoffs. (Seriously, I don’t mean to knock soccer–I’m sure I would be a fan if I lived in most other countries–but there are distinct upper limits of respect I can have for a sport that allows its most prestigious events to be decided by shootouts, which is just abominable. It’s like playing 10 innings of Game 7 of the World Series, and then just deciding the thing with a home run derby.)
Alas, being picked by SI as a league’e best team is a serious problem–ask the 1987 Indians.
When I was looking up the odds for my baseball picks, I notice that the Vegas favorite to lead the league in scoring is none other than the tanned, rested, and beautifully named Mario Lemieux. Granting that he’s one of the best ever and the Pittsburgh offense looks pretty stacked, “sucker bet” seems too generous…
You would like to think that the patently untrue assertion that Bush v. Gore was a 7-2 decision (the first one in history, apparently, with 4 dissenters who did not join any part of a majority or concurring opinion) would be limited to particularly dishonest conservative hacks trying to deny the self-evidently partisan nature of the decision. But the Con Law casebook I used to use made the same claim (although I haven’t checked the new edition yet.) Ugh. I mean, I can understand a reporter in the immediate aftermath of the decision making that mistake, but after you have time to look at it, it’s just a question of being able to count. (And as iocaste notes, it’s not even true in any informal sense; “there is an equal protection problem so…we’ll just shut it down and go with a count that by our own logic is just as flawed as the one we’re saying is unconstitutional” is an entirely different position from “there is an equal protection problem so let’s send it back to the Florida Courts so they can supervise a constitutional recount,” and it’s ridiculous to pretend otherwise.)
…UPDATE: I notice that the new edition of O’Brien does claim that the equal protection claim was “upheld by a vote of 7-2 [my emphasis].” So I will continue to boycott it when I teach the “organizing government” Con Law class…
Shorter Fred Barnes: If it feels this good being used, you can keep on using me until you use me up.
This article does tell us what Bush’s strategy of invoking the Souter bogeyman by reassuring people that she “won’t change” may prove to be very effective. While I’m happy for conservatives to believe this, I think this is an odd misunderstanding of the “problem” (from their perspective) with Souter. He has, perhaps, changed a little bit in his tenure on the Court, as he has further grappled with federal constitutional issues. But, really, I don’t think he’s changed to any significant degree. Souter has always been an incrementalist moderate like his hero, the second Justice Harlan; there was never any chance he was going to start voting to routinely overturn popular decades-old precedents. (And, of course, Harlan thought that the Connecticut ban on contraception was the most flagrantly unconstitutional law he had seen in his time on the bench, and he wrote what some people consider to be the most powerful case for its unconstitutionality. I don’t think there’s any evidence that Souter ever opposed the Griswold/Roe line of cases.) And, of course, Casey came after Souter had been on the bench for less than 3 years–how much can you “evolve” over that time? The problem with Souter, if you’re a reactionary, is not that he changed but that he never agreed with you in the first place, and this the danger of appointing judges with little track record in federal constitutional cases. There are certainly instances of judges changing over time–Blackmun certainly did. But, again, with respect to the case Blackmun is most famous for, I don’t think there was significant “evolution”; if there’s any evidence that he ever thought that a blanket bans on abortion was constitutional, I haven’t seen it. It’s not that Nixon screwed up, it’s that–like, I suspect, the first Bush, who was a pro-choicer until he ran for president–he didn’t particularly care about abortion. Which is why 3 of Nixon’s 4 appointees voted with the Roe majority, and Rehnquist apparently dissented because he’s generally unsympathetic to individual rights claims, not out of any particular affinity with the pro-life cause.
None of this is to compare Miers to Souter. First of all, the latter is a Rhodes Scholar and a very scholarly man who had served on New Hampshire’s Supreme Court (and as its Attorney General), and also had served (albeit briefly) in federal appellate court; it’s frankly outrageous that some people are comparing the two in terms of credentials. And it’s a good bet that Miers will prove to be significantly more conservative. But about how she’ll rule in any particular case, nobody knows, and not knowing can cut both ways.
Belle Waring finds this gem from “The American Thinker(sic),” approved as “persuasive” by Glenn Reynolds:
As the court’s new junior member, the 60 year old lady Harriet Miers will finally give a break to Stephen Breyer, who has been relegated to closing and opening the door of the conference room, and fetching beverages for his more senior Justices. Her ability to do this type of work with no resentment, no discomfort, and no regrets will at the least endear her to the others. It will also confirm her as the person who cheerfully keeps the group on an even keel, more comfortable than otherwise might be the case with a level of emotional solidarity.
But there is much more to it than group solidarity, important though that ineffable spiritual qualty may be. Ms. Miers embodies the work ethic as few married people ever could. She reportedly often shows up for work at the White House at 5 AM, and doesn’t leave until 9 or 10 PM. I have no doubt that she will continue her extraordinary dedication to work once confirmed to the Court. She will not only win the admiration of those Justices who work shorter hours, she will undoubtedly be appreciated by the law clerks who endure similar hours, working on the research and writing for the Justices. These same law clerks interact with their bosses in private, and their influence intellectual and emotional may be more profound than some Justices might like to admit.
So, Harriet Miers is qualified for the Supreme Court because 1)she was willing to bring pastry to Sunday School, and 2)she works hard. Of course, by these criteria a fairly large percentage of the country is qualified to sit on the Supreme Court–think how qualified she would be if she would only pet kittens and say nice things about babies on a regular basis!–but since I don’t have an MBA I guess I don’t understand these strategic complexities.
And even Reynolds isn’t buying this claim that because Robert Jackson didn’t have a law degree, Harriet Miers must therefore be well-qualified. (Incidentally, like Mark Tushnet I’m not really inclined to go along with the idealization of Jackson that seems to permeate these debates, although I guess that’s a subject for another post.)
I notice that Atrios just linked to it, which makes my link somewhat pointless, but there is one element of Roy’s extremely persuasive critique of Bill Bennett that’s worth highlighting:
The actually offensive part of Bennett’s statement was his assertion that mass black fetuscide would, of necessity, cause crime to drop. Bennett’s defenders do not dispute this idea — in fact, they appear to consider it beyond dispute.
It’s strange that so many public intellectuals think the condition of black folks will not improve in another generation. In a way I am more surprised by the conservatives than by the eventheliberals. We are constantly assured by them that Iraq will swiftly improve, indeed, will soon flower into an oasis of democracy. If that shitstorm can subside, why not black crime stats?
Right. The assumption made by liberal like Yglesias or DeLong that crime rates will be higher among African-Americans in the next generation can be easily explained by the assumption of most progressives that 1)racism remains a stubborn problem, especially where criminal justice is concerned, and 2)even is individual prejudice and the worst formal inequalities are lessened, the structural effects of racism persist. But conservatives, of course, generally disagree with these premises. At any rate, conservatives who defend Bennett’s premises have two options:
1)They can believe that black people are inherently more likely to commit crimes. (Or, in other words, they are racists.)
2)They can concede that the general conservative dismissal of the continuing importance of racism–whether direct or structural–is wrong.
There is no third option.
The Justice Project has an extremely useful page about the Streamlined Procedures Act, the awful proposed legislation I recently wrote about. It includes good analysis, links to the legislative text in both the House and Senate, and opportunities for action. Definitely check it out.
Yankees v. Angels The Angels actually had a better run differential than the Yankees, although once you adjust for the competition the Yanks are a little better. I don’t care for the Angels’ free swinging -offense, which looks even weaker next to the Yanks’ classic on-base-and-power machine. And yet, I don’t think it’s a fluke that the Angels have fared well against them; the matchup is very favorable, as the Angels’ high-contact offense is well-position to take advantage of the Yankees’ terrible defense. In particular, the one LF-and-and-two-DHs outfield is going to be a serious problem against the Angels. My co-blogger with a Prospectus subscription tells me that Jeter is having is first good statistical defensive year, but I’m dubious; as I understand them, the BP adjustments can’t fully account for the fact that somebody has to make outs on a bad defensive team, his ZR is below-average for major league SS (although barely this time), and in September to my eye he was covering about as much ground as Kate Moss’ bikini. Rodriguez is good and Cano can turn the deuce, and this exhausts the Yankees’ defensive assets. Johnson will beat the Angels, but I think that the gutty but low-strikeout Chacon and Wang are going to run into trouble, and who knows what to expect out of Mussina. The Angels rotation is underrated, and while Rivera gets the edge as closer the Angels’ bullpen depth is vastly better. Home field helps too; I think the Angels will squeak it out. WINNER: Angels IF YOU HAD TO BET: Angels +120
White Sox v. Red Sox I don’t have any special insight here; like most people, I don’t think the White Sox are a legitimate 99-win team, and I think the the 4-game difference in “3rd order” wins probably underestimates the gap between the teams. The White Sox are a model of teams who don’t do well in the post-season: dubious on-base skills, aggressive baserunning, not enough power. Although I don’t trust the White Sox’ low-K rotation against a good offense, admittedly the ChiSox have an edge in starting pitching. But I don’t think their offense can exploit the Red Sox’ somewhat shaky rotation. (The strange thing is that the Red Sox losing the division worked out well in the end; I think they get the much easier series.) WINNER: RED SOX IYHTB: Red Sox -150
Padres v. Cardinals Yeah, anything happen in a short series. And while they’re far better I actually have some of the doubts about the Cardinals that I do about the White Sox; I wouldn’t trust the back end of their rotation against a quality offense, and while Carpenter is legit LaRussa was crazy to have him throw 240 innings. Peavy is a legitimate ace. But sill, the Padres are by far the worst team ever in the post season, somehow getting outscored by 40 runs in a brutal division. The Cards remain the class of the league. The Padres winning would be the biggest upset in baseball since the ’90 World Series; about the only hope the Padres fan can have is who was managing the team on the receiving end of that upset. WINNER: Cardinals IYHTB: Padres +330
Braves v. Astros Ugh; here’s a series I didn’t want to see again. As I have argued before, I think that Cox’s relatively poor outcomes in the playoffs are as much luck as anything else. The problem is that this team just isn’t that good; I think the Phillies and Mets would both have a better shot at this point of the year. The Braves’ offense is better, but not enough; in a short series the Astros’ rotation is a huge advantage, especially with Smoltz in dubious health, and the Braves don’t have a Lidge in the bullpen. I wouldn’t mind seeing the Braves win this year, but I don’t see it. WINNER: Astros IYHTB: Astros -120
..admittedly, I probably should have placed more emphasis on the fact that Matt Clement hasn’t gotten anyone out in 2 months…
Brad Plumer makes a good point about Miers: “Still, whatever leftward shifts may come, it does seem that Miers could do lasting damage to the Constitution in her first few years by giving the president the ability to declare whoever he feels like an “enemy combatant,” and hold ‘em without trial.” The most obvious recent precedent for Miers was Truman’s nominees, whose most salient characteristic was going along with the desires of the executive branch (although, in fairness, Burton did refuse to uphold Truman’s steel seizure.) In Truman’s case, this deference to the executive branch did have one benefit: the Truman administration, largely because of the Cold War, started to file briefs in favor of civil rights, and Vinson, Burton and/or Minton–despite being quite conservative overall–supported a number of major civil rights decisions, including Shelley v. Kramer (ruling that discriminatory housing covenants are unenforceable) and Sweatt v. Painter (exclusion of blacks from UT Law School was unconstitutional.) Obviously, a justice who will defer to what this executive branch wants is much worse; as Plumer says, we can expect Miers to strongly support large expansions of unchecked presidential authority to prosecute the “war on terror.”
Another interesting issue with respect to Miers is: even if she may be more moderate than the justice who Bush would nominate in her place, should progressives oppose her nomination because she’s to patently unqualified? Iocaste makes a strong case for this proposition. I’m not entirely sure, though. With respect to federal agencies like FEMA, iocaste is certainly right. FEMA actually has particular tasks that need to be carried out effectively, and I’d rather have a competent conservative than an inept liberal heading the agency. With the Supreme Court, though, I’m much less convinced. (Indeed, on those terms, I’m sure it doesn’t apply; I would definitely rather have an inept liberal than a brilliant conservative on the Supreme Court, although that’s not the option Miers presents.) The most important thing about a justice is their vote outcomes, and Miers is 1)just one vote and 2)the vote outcomes of a different Bush nominee are likely to be as bad or worse. Of course, a justice also has to write opinions, and if Miers turns out to be incompetent this could create some doctrinal problems. But I’m not sure how serious this is; it seems to me–although I am certainly open to evidence to the contrary–that the Mintons and Van Devanters of the world basically just pass without really leaving any particular stamp on the law, rather than having serious long-term negative effects. A court of 9 Mierses would be disastrous, of course, but that won’t be the case either; there remain a lot of high-wattage bulbs on the Court. There’s no question that putting someone of Miers’ qualifications on the Court is suboptimal, but the question is whether it’s worth risking a Janice Rogers Brown or Priscilla Owen in order to prevent Myers from getting the job. I’m inclined to say “no”; I think an Owen or Brown would do a lot more damage even if they’re more conventionally qualified. But I’d be interested to know what others think (and, of course, this is complicated by the fact that there are some crucial variables that we really don’t know about: how conservative Miers really is, who Bush would appoint in her place, whether the Senate could block a really awful nomination.)
On the other hand, it does seem to me that people who claimed that the Democrats were obligated to vote for Roberts because he was “qualified” are certainly bound to tell the Republicans to oppose Miers…
Zoe Kentucky notes that the holiday seems to have been met with a gift. Now if only Fitzgerald would step up…in the meantime, happy Rosh Hashana to all our readers.
However logical it might be for conservatives to scuttle the Miers nomination to get someone they can be more sure about, I think Matt is basically right: the conservative movement has made it entirely clear that they’ll eat anything Bush puts between two slices of rhetorical Wonder bread, and they’re not going to stop now…
(Via Rox.)
Paul Campos, Above the Law 2011 Lawyer of the Year
Erik Loomis, HNN Cliopatria 2011 Best Series of Posts
