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Thank God For the Rain to Wash the Trash Off the Sidewalk

[ 0 ] February 26, 2007 |

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When it came out, I assumed that The Departed was too good and too alive to be competitive for Best Picture; I’m happy to be wrong, and it’s good that the greatest living American director got his award. I still can’t quite believe that this happened with the AMPSA, but it’s gratifying that he won for his best film in nearly two decades rather than for something like The Aviator. It’s partly a testament to Scorsese and partly a testament to the kind of middlebrow doorstops (and, sometimes, utter crap) that the Academy generally likes that while it obviously doesn’t rank with his very greatest work I think it’s by far the best film to be so honored in the last decade (well, OK, that’s also partly a testament to the fact that I don’t get Tolkien.) Indeed, although this is idiosyncratic almost to the point of perversity, the last Best Picture I unequivocally prefer is Annie Hall, granting that 1)Schindler’s List is (at least before its last 20 minutes or so, and John Williams in that context ugh) a tough case, underrated by some cineastes, 2)The Silence of the Lambs is a good thriller, and 3)I know my belief that Unforgiven is merely very good will get catcalls.

My other question: I know there were a lot of other strong candidates–the Children of Men in particular was visually magnificent–how on earth did Scorsese’s great cinematographer Michael Ballhaus not even secure a nomination?

Horrible. Infuriating. Sad.

[ 0 ] February 25, 2007 |

Radley Balko (click through for a summary of all the evidence of how much violence has dropped because of the surge) on the Instapundit-approved evidence-free assertions of Patrick Ruffini:

I wish I could say that it’s merely amusing to watch politicians and war supporters play with other people’s lives to save themselves the embarrassment of having wasted so many lives already. “If only we send a few thousand more other peoples’ kids into harm’s way, this whole “remap the Middle East” plan will finally start to materialize. Then you’ll see. We were right all along.”

Alas. It’s not amusing. It’s horrible. And infuriating. And sad.

Exactly right.

…Roy also points out Ruffini’s claim that the media is devoting wall-to-wall overage of Anna Nicole Smith…as a way of deflecting attention from the success of the surge! Yeah, that’s plausible.

Fake Scandal, Republican Edition

[ 0 ] February 25, 2007 |

Ed Morrissey and Kevin Hayden are right–this is a bullshit smear piece on Romney. Indeed, it seems to me straightforward religious bigotry. I mean, seriously, he had a relative with 5 wives during the McKinley administration? Another one gave sermons about polygamy in 1852? How could this possibly be relevant to anything? (Apparently, it’s “a part of current events” because HBO has a show on the subject. Hmm, maybe Giuliani has some relatives who participated in some political assassinations in ancient Rome? That’s even more cutting-edge!) Does anyone think he’s going to have 3 more wives move into the White House if he gets elected? Ram a constitutional amendment legalizing polygamy through Congress? Should we start scrutinizing politicians to see if they had distant relatives who were involved in the Inquisition, or owned slaves, or opposed the signing of the Magna Carta? At least most silly “character” stories are ostensibly about the candidate, not their great-great-great grandparents.

Shakes: “But this kind of juvenile, he’s-got-cooties, smear-by-association faux-journalism has to stop. It’s pathetic; it lowers the public discourse; it insults us all.” See also Jackmormon on the LDS and public discourse.

…Breaking! Red Sirens! Must credit Lawyers, Guns & Money! A major scandal is erupting surrounding Ezra Klein: “When my great-great-grandfather was 14, he stole a wagon. At 22, he over-imbibed from a wineskin and had impure, though partially humorous, thoughts about a nearby goat. These thoughts were never acted upon, but they existed nonetheless.” So much for him becoming President. Although that’s nothing: my grandfather considered Atlas Shurgged the greatest novel ever written. I expect to receive my notice from TAPPED in the morning.

Great White Rule of Law

[ 0 ] February 24, 2007 |

I am proud of my non-home and native land today, as the Canadian Supreme Court unanimously rejected a government policy that permitted the indefinite detention of foreign born suspects based on secret evidence. Chief Justice McLachlan:

The procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security context. Yet they cannot be permitted to erode the essence of s. 7. The principles of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process that lies at the heart of s. 7 of the Charter. The protection may not be as complete as in a case where national security constraints do not operate. But to satisfy s. 7, meaningful and substantial protection there must be.

[...]

I conclude that the IRPA’s procedures for determining whether a certificate is reasonable and for detention review cannot be justified as minimal impairments of the individual’s right to a judicial determination on the facts and the law and right to know and meet the case. Mechanisms developed in Canada and abroad illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA. Precisely what more should be done is a matter for Parliament to decide. But it is clear that more must be done to meet the requirements of a free and democratic society.

The opinion is, I think, a good model for thinking through questions of balancing fundamental rights against legitimate security interests. I wish I thought we would see somethign similar from the United States Supreme Court.

And Then There Were Eight

[ 0 ] February 24, 2007 |

Another U.S. Attorney is fired. According to the WaPo story Jeralyn points us to:

Deputy Attorney General Paul J. McNulty told senators earlier this month that all but one of the prosecutors were fired for “performance-related” reasons. McNulty said that former U.S. attorney Bud Cummins of Little Rock was removed so the job could be given to a former aide to presidential adviser Karl Rove.

Nearly all of the dismissed prosecutors had positive job reviews, but many had run into political trouble with Washington over immigration, capital punishment or other issues, according to prosecutors and others. At least four also were presiding over high-profile public corruption investigations when they were dismissed.

I actually think that the precise reason for the firings makes a big difference. It’s at least defensible for the administration to fire attorneys because they won’t seek the death penalty, for example. I disagree with the substantive priorities of the Bush administration, but they are entitled to hire people who will, within the law, follow them. If competent U.S. Attorneys are being fired for investigating corrupt Republicans, on the other hand, that’s appalling.

Judicial Activism: The Real Definition!

[ 0 ] February 24, 2007 |

The Conservapedia (via everybody and their cat) is indeed pure gold, and many people have picked out their favorite bits. (I’m particularly partial to “[Nineteen-Eighty-Four] is a utopian book because it talks about a place where everyone is watched over by Big Brother.”) I like the entry on “judicial activism“:

There are two major types of judicial activism practiced in the United States’ court system:

1. Liberal judges striking down laws that uphold core conservative American values
2. Liberal judges refusing to strike down laws that subvert core conservative American values

The most famous example of this is Roe v. Wade. Other examples include Brown v Board of Education[1] and Loving v Virginia[2] which stripped state control over education and marriage, respectively, putting it in the hands of the federal government.

Indeed. I only wish someone would add the Rehnquist quote about “strict constructionism,” (perhaps with a discussion of whether overturning Roe or Loving would produce more sweet, sweet freedom), and that the entry had an initial definition of “judgifying we don’t like.

…as a commenter points out, make sure to check out Patrick and his commenters as well.

Freedom Is Forced Pregnancy

[ 1 ] February 24, 2007 |

Finally the New York Times adds a strong (self-described) feminist voice to its op-ed pages:

Similarly, Giuliani respects the distinctive work of judges and the separate role of the state legislatures. If Roe were overruled, those legislatures would decide how to regulate abortion. And decentralized legislation really is fairly called “part of our freedom” because the Constitution’s framers saw the balance of power between the national government and the states as a safeguard against tyranny.

Ah, yes, nothing would enhance our freedom like the ability of state legislatures to violate people’s fundamental rights–just ask George Wallace! Anyway, there are some obvious problems here:

  • The Madisionian “double security” argument is at least plausible if you’re defending a narrower construction of federal legislative powers, but when (as with abortion) it’s a question of individual rights versus state power, to claim that expanding the power of the state–in this case, to force women (not in Ann Althouse’s economic bracket, so who cares?) to carry pregnancies to term–enhances freedom is Orwellian. Perhaps the increase in state power is desirable, but it’s absurd to claim that it’s a net increase in freedom for American women.
  • But, of course, the argument is even worse because the idea that overturning Roe would return the issue to the states is transparent nonsense. If Althouse gets her wish and Giuliani (or any other Republican) is able to appoint enough justices to completely gut or overrule Roe, abortion will be a federal as well as a state issue, and Congress can and will pass abortion regulations (indeed, this term Althouse’s beloved Justice Alito is almost certainly going to vote to uphold a particularly irrational federal abortion law.)
  • And most farcical of all is Althouse’s claim that Giuliani’s pledge to appoint judges that are (to use a term that is essentially meaningless in the context of constitutional interpretation) “strict constructionists” is a signal that he won’t “populate the judiciary with politicos.” As William Rehnquist said in an admirable moment of candor, “A judge who is a “strict constructionist” in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs—the latter two groups having been the principal beneficiaries of the Supreme Court’s “broad constructionist” reading of the Constitution.” Anybody who thinks that Republican presidents that appoint alleged “strict constructionists” aren’t seeking some particular political outcomes would lend their credit cards and house keys to someone they just met through a Craig’s List personal.

Why oh why can’t we have better guest columnists?

…oh, and one more thing to add. In light of Althouse’s alleged commitment to the Sacred Principles of Federalism and purported opposition to “politicos” on the Supreme Court, you may wonder what she thinks about Bush v. Gore, in which 1)a ludicrously insubstantial federal constitutional question was used to override a state court interpretation of state law, 2)the Court not only declared that the ad hoc federal principle was inapplicable in future cases but failed to apply it logically in the case itself, and 3)all of this had the result of putting the favored candidate of the Court’s bare majority in the White House. Needless to say, she supports it.

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Abortion, Choice, and Communitarianism

[ 0 ] February 23, 2007 |

Russell Arben Fox has a thoughtful post, expressing his ambivalences about abortion, which you should read. Obviously, much of my disagreement is on well-trodden ground: I don’t think that a woman’s reproductive freedom can be legitimately abridged to further a vague sense that traditional (and generally patriarchal) sexual morality is preferable, I’m happy to be candid that an increase in sexual freedom is a feature not a bug, etc. As even casual readers will know, I also think it couldn’t be more wrong to claim that reproductive freedom is about rights for the middle class. The affluent will always have access to contraception and safe abortions, under any legal regime (including when abortion is formally illegal in most circumstances.) It’s the centrists on abortion, not pro-choice “extremists,” who abstract abortion discourse from social inequities. Whether the decision was framed as a “negative” right or not, Roe matters far more to poor women than the middle class. Things brings us to what I think the the fundamental error in Russell’s analysis:

But at least, in trying, I’m engaged in a genuine social project–whereas the rhetoric of rights and choice is mostly non- or even anti-social. Not that that hurts it as a movement in contemporary, non-participatory, my-your-own-business America; anything but, in fact. Still, it’s a point for liberal defenders of abortion rights to keep in mind, next time they wonder why so few people from the office or the grad seminar show up to walk the picket line with the janitors.

This is very similar to the William Saletan argument that abortion rights advocates won the battle but lost the war, because the rhetoric of choice helps conservatives more. I think this is completely wrong on several levels. First of all, it gets cause and effect backward: reproductive freedom is often framed in terms of rights because it’s effective, not vice versa. Radical feminist critiques of Roe sometimes make a similar error: the choice was not between Roe and a Canadian-style regime of unregulated state-funded abortions; the choice was Roe or nothing. It’s a fantasy to think that abortion would be more accessible if not for the Supreme Court’s intervention, and I also think it’s a fantasy to think that there would be more labor solidarity in the United States if only states could use their coercive power to stop (poor) women from getting abortions, or if women were less aggressive about making rights claims. By looking at other liberal democracies, we can notice that having greater access to abortion than in the United States doesn’t seem to prevent many countries from having robust welfare states, strong labor movements, etc., which further suggests that Russell is getting the cause-and-effect backward. (Moreover, pace Mary Ann Glendon–who focuses too much on law on the books and not enough on actual practices–abortion discourse in Germany is saturated with discussion of rights.)

Relatedly, I think there’s also false a claim that rights upholding individual choice are “non” or “anti-social.” A woman’s right to choose does involve individual claims against a particular vision of the social (patriarchy, class and gender double standards, assumptions that the biological capacity for childrearing should be central to a woman’s experience, etc.), just as the civil rights movement was opposed to the deeply embedded social mores of Jim Crow. But the right to choose is also part of a social vision of its own, one that assume that a woman’s equality, dignity, and security of person are better for men, women, and society as a whole. (It’s not feminists, after all, who oppose the welfare state, and nor does the communitarian, religion-drenched rhetoric that is so pervasive below the Mason-Dixon line seem to lead to more unionization.) Moreover, even if one assumes that most people are happier and children better off in committed, monogomous relationships and society should encourage this, it is (to put it mildly) unclear that increasing the number of unwanted–or, at least, unplanned–pregnancies will increase family stability. (Consider LizardBreath’s post about Roe–I think that the individual/community split is a false dichotomy. Her exercise of abortion rights was in her interest, and also in the long-term interests of her committed relationship and eventual loving family.) I have to respectfully reject the claim that abortion rights-claiming is fundamentally anti-social.

Crazy Canucks Invade Beltway Journalism

[ 0 ] February 23, 2007 |

Hmm, Can West has taken over the New Republic–but, alas, Marty Peretz is keeping his stake. Apparently they’ll be moving to a bi-weekly, twice-the-length format (if this means more space for the book review, frankly it could be an improvement.) Amusingly, Kit Seelye’s article takes at face value claims that the decline in circulation was largely due to voluntary “culling” while not mentioning, say, its full-throated endorsement of a disastrous and unpopular war (especially among its target audience), its endorsement of Joe Liberman’s walking-punchline primary run, etc.

Meanwhile, J-Pod sez:

I can’t think of a publication that has ever altered its publication schedule in this way that has benefited from the change.

Um, didn’t the National Review start as a weekly? Its founder seemed to think so:

The launching of a conservative weekly journal of opinion in a country widely assumed to be a bastion of conservatism at first glance looks like a work of supererogation, rather like publishing a royalist weekly within the walls of Buckingham Palace.

Of course, I suppose you could say he still has a point…

UPDATE: The article I read in the print edition today does discuss the Lieberman endorsement and the war. I’m 99% sure that this was not in the version of the article I read, but if so obviously I retract that criticism.

Academic Freedom and Political Blogging

[ 1 ] February 23, 2007 |

Obviously, I agree entirely with the substance of Paul Campos’s reply to Glenn Reynolds’s attempts to defend illegal and counterproductive assassinations. Since it came up in comments too, I should perhaps further address the question of academic freedom that Campos brings up:

A final note: My column suggested that, given the support of people like Reynolds and Hugh Hewitt for disciplinary action against Ward Churchill, it wouldn’t be untoward to inquire if the University of Tennessee’s employment policies require unlimited toleration of, for example, a law professor who uses lies to justify murder. Again, this isn’t a rhetorical question: it genuinely interests me. Obviously, academic freedom isn’t unlimited. No one, I presume, would defend a professor’s “right” to, for instance, verbally abuse students with racial slurs, or to appropriate the work of others without proper citation, and so forth. And I certainly respect the views of people like Glenn Greenwald and Scott Lemieux, who if I understand them correctly go very far toward arguing that no expression of opinion per se should ever be a basis for the sanctioning of an academic.

This basically gets my position right; no rights are absolute, but I’m a near-absolutist on such questions. (I’m speaking here about what people say in their personal lives–obviously, academic freedom is not compromised if someone is fired for professional misconduct such as plagiarism or attacking students personally):

  • The biggest problem here is: who decides which political comments are beyond the pale? There are, after all, scholars who could sincerely argue that because I’ve argued that Roe v. Wade was correctly decided I’m an advocate of lawlessness and murder. Before one advocates consequences for political statements, remember that it’s not just your standards but David Horowitz’s that will determine whether people can keep their jobs. This is a cycle where nobody wins.
  • Even if we could come up with a principled way of determining that Reynolds’s comments were uniquely problematic and wouldn’t affect others, I still wouldn’t support any professional consequences. Indeed, for me this goes beyond academia and applies to anybody. People who remember my writings about the “Ivan Tribble” controversy will know I’m something of a crank about this, but people should be evaluated for jobs based on their ability to do the job, full stop. Even when employers are within their legal rights–which outside tenured academia is most of the time–people who use hiring and firing authority to indulge political, personal or cultural grievances are engaging in appalling (and, to the extent that they’re responsible to other stakeholders, grossly irresponsible) behavior. I suppose I’m an old-fashioned Millian, but I believe there are enough social pressures to conform and cower to authority, and employers have far too much power over employees’ private lives. That may be unavoidable, but I’m not going to contribute to it. Reynolds–barring some extreme misbehavior that would go well beyond a reactionary and poorly reasoned blog post–should be evaluated based on his teaching, research, and professional behavior, period. And this applies to everyone as far as I’m concerned.
  • Finally, I don’t know about Hewitt but if I understand correctly Reynolds–at least nominally–didn’t call on Churchill to be fired for his 9/11 comments. He may have called for him to be fired for his professional misconduct, but that’s different. Admittedly, it’s a complex issue because the legitimate questions about Churchill were the fruits of a wholly illegitimate political witch hunt, but I still don’t think it’s strictly accurate to call Reynolds a hypocrite on this unless he wrote something I couldn’t find in a quick search. But even if he did, I don’t think it matters. It’s very tempting to say turnabout is fair play, given Reynolds’s constant reliance on the tu quoque (or, at least, attempted reliance: as with the current case, one generally finds under cursory inspection that his tus fail to even quoque) but even if Reynolds called on Churchill to be fired or investigated for his political views it means he was wrong, not that he should also be subject to unjust treatment.

Compared To What?

[ 0 ] February 22, 2007 |

In comments to this post, I’m afraid that regular commenter Anderson has fallen for the old conservertarian bait-and-switch:

Yeah, quite frankly, I think punitives are a terrible idea in general — they take what should be a policy issue & make it a judicial one. And it makes no sense for the plaintiff to collect the punitives, except of course for the unspoken assumption of a 40% or more contingency fee.

It’s not, exactly, that I disagree with him. The punitive damage system does lead to arbitrary windfalls to individuals to provide broader incentives, and on balance I would prefer the European regulatory model to the American system, which relies more heavily on torts to constrain injurious corporate behavior (although obviously the more bureaucratic model also comes with costs.) But I don’t see how any of this is relevant to the question of whether the due process clause should be read as limiting punitive damages:

  • Arbitrarily limiting damage awards based on how many of his fingers Tony Kennedy decides to count on a given day doesn’t solve the windfall problem; it just reduces the disincentives for bad behavior.
  • It’s not as if Roberts, Alito and Kennedy are voting to limit damage awards to that the U.S. can move closer to the European system of regulating corporations. As soon as regulations to replace a less effective tort system are proposed, Republicans will immediately start talking about how the genius of the American legal system means we don’t need more regulations.
  • Most importantly, when construing whether the due process clause limits punitive damages, surely we must consider the issue in the context of the American state as it actually exists, not some pony state we would actually prefer instead. Whether it’s optimal or not, punitive damages are a major method for constraining behavior that is ccontrary to the public interest in the American system. If legislatures want to limit punitive damages–whether to move to a more bureaucratic model of (much more likely) to make it easier for corporate donors to injure people without consequences–that’s their privilege. But I don’t see any basis for using a (to put it mildly) highly contestable reading of the Constitution to limit damages in the hope that a better system might spring up in its place.

The BMW v. Gore line of cases should be overruled, and the latest (to borrow Stevens’s phrase) adventure in doctrinal wonderland just makes the rules more confusing for no good reason.

All Your Uterus Are Not Belong To South Dakota (Yet)

[ 0 ] February 22, 2007 |

Good news from the Great Faces, Great Places state:

An abortion ban with exceptions for rape, incest and health of the mother was rejected Wednesday morning by legislative committee in Pierre.

The Senate State Affairs Committee just voted 8 to 1 to kill HB1293 without a vote of the full Senate.

Supporters of the bill can still force the bill out of committee with a one-third vote of the full Senate, but even key supporters of last year’s ban spoke against the measure.

Given that the law would have been unenforceable, the biggest winner here is the South Dakota taxpayer–who won’t be footing the bill for a frivolous lawsuit by the forced pregnancy lobby–but it’s nice to see all around.