I have a post over at TAPPED noting that Kennedy’s opinion in Carhart II was a “gaffe” in the Kinsley sense of telling the truth. And in this case, the truth was particularly inconvenient for the anti-Roe pro-choice position. What I had in mind in particular was this claim in Rosen’s mock opinion in What Roe v. Wade Should Have Said:
The only evidence we have of the purpose of the legislators who passed the abortion laws (as opposed to the doctors who lobbied for them) is their text, and that text clearly suggests that the primary purpose of the laws was to protect fetal life…We must, I think, take them at face value; and search for hidden purposes to enforce stereotypes would be empirically fraught and hard to sustain.
I agree that it’s the text, as opposed to the subjective intention of legislators, that is most important, but (as Balkin’s mock opinion demonstrated in detail) the assertion that it’s clear from the text that the sole purpose of these laws is to protect fetal life is exceptionally unconvincing. The case of “partial-birth” abortion bans make this especially clear. It’s hardly necessary to search for “hidden motives” when the anti-choice lobby enthusiastically supports legislation that can injure women but doesn’t significantly protect fetal life even in theory. If Kennedy had been strategically savvy enough to not mention this it wouldn’t have changed this fact, and the only good thing to come from Carhart II is that is makes the extent to which debates about abortion are debates about 19th and 21st century conceptions of women very clear.
Holbo on the range of acceptable debate among the Bealtway elite and its implications for assertions about whether parties have “new ideas” and “vigorous debates”:
Let’s take it from the top: if the Republicans have got a guy who wants to spend money building a wall against Canada, that’s intellectual vibrancy. If the Democrats get someone who wants to expand health insurance or combat global warming, that’s a canary dying in the coalmine of the Democratic party’s political extremism?
It’s a nice illustration of a dilemma for Democrats. The only way they can get credit for ‘having ideas’ is by turning Republican – not because the Republicans have ideas, but because the range of media-acceptable impulses you can exhibit runs the gamut from the far right to the right-leaning left.
Right. And to be clear, having vigorous debate within your party about whether torture and arbitrary executive power are good things is really not a selling point.
Amazingly, the appalling Scottsboro Boys/Duke analogy has reared its ugly head again in the pages of the nation’s most prestigious clearinghouse for irrational wingnuttery, with (natch) a hearty heh-indeed from the blogosphere’s ditto. Let us summarize some of the key reasons why this analogy is grossly inappropriate:
- The unjustly accused young men in the Scottsboro case were effectively denied legal counsel, provided at the last minute with a single lawyer unfamiliar with Alabama criminal procedure and who had every incentive not to put on more than a token defense. The unjustly accused young men in the Duke case were able to afford good lawyers.
- Most of the first group were sentenced to death after what was essentially a formalized lynching. The second group were released before trial.
- Even after their first convictions were overturned, most of the Scottsboro boys were given more show trials, and served between 5-20 years in prison. I think you can see the difference here.
There is, in short, absolutely no basis for comparison here. The injustices involved in these two cases are different not merely in degree but in kind. Some members of the Duke faculty behaved irresponsibly (in the kind of way that in America doesn’t necessarily stop you from getting your own cable news show), but not only does Gordon have no substantiation for his claim that the rush to judgment was “racist,” but rather more importantly they don’t have the power to sentence people to death. And as Blue Texan notes, what’s especially odious is the implication that privileged white men at Duke are in a situation in any way analogous to blacks in the apartheid south, an exceptionally offensive implication even by the standards of the Politics of Resentment.
Ye gods. I guess this is the “nuclear option” in all future YouTube wars…by the way, who is the other singer in the video?
…Apparently this was widely linked a while ago. But clearly it’s more relevant than ever!
To those who demand competent acting, I say “Vaffanculo!”
I, for one, am happy that an Associate Justice of the Supreme Court is taking jurisprudential lessons from sixth-rate torture porn. What’s doubly scary is that he at least seems to favor jury nullification in torture cases rather than simply ceding unlimited arbitrary power to the executive, which I believe puts him well to the left of the current Republican Party…
I have an article up at TAP about the recent rejection of an anti-gay constitutional amendment in Massachusetts and its implications for claims that using litigation is a counterproductive strategy. I also discuss the extent to which normative attacks on Goodridge rarely come from any kind of coherent democratic theory. At times like this, it’s especially useful to strip away too-clever-by-well-more-than-half “contrarian” arguments and explain what’s actually happening:
Despite the attempts of contrarian pundits to muddy the waters, what happened in Massachusetts is simple, and a straightforward win for equality and justice. Under American constitutionalism, for better or worse, the judiciary scrutinizes legislative enactments to ensure their compliance with state and/or federal constitutions. The Massachusetts Supreme Judicial Court reached a decision that did not contradict the text or purpose of the relevant provisions of the state constitution, and as far as I know nobody has argued that the decision was inconsistent with principles previously expressed by the Court’s majority. While contestable, in other words, the court’s holding was hardly an illegitimate “usurpation” of democratic prerogatives. Since the court’s decision, same-sex marriage rights have grown more popular in the state, and supporters of equality have fared better at the ballot box than opponents. Less than five years later, opponents of same-sex marriage were unable to scrounge up even the bare 25 percent of the vote necessary to permit a vote on an amendment to go forward, and polls suggested that the referendum would lose in any case.
And while you’re there, check out Kay Steiger’s article about strategies for overriding Ledbetter.
Matt notes that libertarians may be irrationally unsympathetic to Michael Bloomberg because of his support for relatively trivial nanny state regulations like public smoking and trans fat bans. (As an aside, it’s worth pointing out that public smoking bans have a serious non nanny-state, if not quite libertarian, justification: even I’m libertarian enough to oppose smoking bans to protect the health of smokers or patrons, but they’re defensible insofar as they protect the health of workers.) However, there is a serious reason libertarians should be skeptical of Bloomberg: the appalling string of arbitrary detentions with no serious justification during the 2004 GOP convention. With Giuliani (in my view) effectively out of the race, it’s conceivable that Bloomberg’s stance on crucial issue of lawful constraints on executive power could be worse than even the GOP nominee.
Odd as it seems to think that Mitt Romney should be considered the prohibitive frontrunner, with Fred Thompson the only other candidate with a non-remote chance…what can I tell you, it doesn’t seem right, but the process of elimination doesn’t lie.
Good line from Ross Douthat:
That would be the same Mary Matalin, of course, whose fingerprints have been all over three of the biggest right-wing fiascos of the last twenty years: George H.W. Bush’s 1992 Presidential campaign, Dick Cheney’s Vice-Presidency, and Threshold Books’ fall catalogue.
On the latter point, some K-Lo, submitted without (much) comment:
I just did a quick flip through a Simon & Schuster catalog for the fall. Mary Matalin’s Threshold imprint looks to be really taking off. How can you not be excited by the upcoming John Bolton Surrender Is Not an Option (Amen!)? She’s also got a Lynne Cheney autobiography (our next First Lady!), What’s the Matter with California?, and a book by the Duke lacrosse coach — subtitled: The Untold Story of the Duke Lacrosse Rape Case and the Lives It Shattered. One can’t help to be glad that she’s in the book business.
Oh. Goody! I guess Liberal Fascism was a little too highbrow to make the cut…
I try to remain focused on substance here, but I am also puzzled about why someone running for President would analogize themselves to an (albeit fictional) mob family. And, of course, Cox is correct that the punchline is even more horrific; embodying a mass murder and his enabler is one thing, but choosing the song of History’s Greatest Monster is well beyond the pale of human decency. I’m afraid I’m going to have to, er, continue to not support her primary campaign. (Via MY.)
Shorter Verbatim Ann Althouse: “Now, the script says onion rings, because that’s what the Sopranos were eating in that final scene, but I doubt if any blogger will disagree with my assertion that, coming from Bill Clinton, the “O” of an onion ring is a vagina symbol. Hillary says no to that, driving the symbolism home. She’s “looking out” all right, vigilant over her husband, denying him the sustenance he craves. What does she have for him?” I really hope that she wasn’t kidding with the “no blogger will disagree” bit. A consuming obsession with Bill Clinton’s sex life is merely banal among American conservatives, and with Althouse more than well-established in any case, but the assumption that it’s universal is special.
The Supreme Court held this week that securities underwriting should not be subject to antitrust law. (Try to control your excitement please.) If I understand correctly from contacts who are actual experts in the field, what’s important about this case is not so much the outcome as the dicta, in which the Court rails against the ability of juries to apply antitrust law. Being a Breyer opinion it’s almost entirely a policy argument, and he argues that it is unwise to apply antitrust law to securities because of “the difficulty of drawing a complex, sinuous line separating securities-permitted from securities-forbidden conduct [and] the need for securities-related expertise to draw that line.”
At any rate, of interest to non-specialists is that while the rest of the Court’s current coalition of moderate Democrats, Rockefeller Republicans, and standard-issue Federalist Society reactionaries joined the opinion, Clarence Thomas dissented. Rather than making (dubious) assumptions about that capacities of juries, Thomas actually focused on the statute, noting that “the Securities Act and the Securities Exchange Act contain broad saving clauses that preserve rights and remedies existing outside of the securities laws.” Which, again, demonstrates that claims that Thomas are merely Scalia’s sockpuppet are very, very mistaken. In many respects he’s the most reactionary member of the Court, but he’s also much more consistent and principled than the other conservatives, and he’s not just a pro-business hack. (The work of Souter and Breyer on these recent securities cases, conversely, reminds us that what’s considered a “liberal” on the current Court is rather different than a Warren Court-era liberal.)
Speaking of which, in an example of successful marketing I’ve picked up the new book about Thomas. I’ll have commentary when I’ve read it.