Author Page for Scott Lemieux

Jeff Goldstein, Constitutional Scholar

Claims Goldstein: “legal conservatism has the drawback of showing undue deferrence to stare decisis.” So, apparently, Clarence “Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case” Thomas and Antonin “I do not myself believe in rigid adherence to stare decisis in constitutional cases” Scalia are not conservatives. Fascinating. (Thomas’ Seanz dissent is actually worth a separate post sometime; I happen to agree with him that the Slaughterhouse Cases should be strongly reconsidered and substantive due process jurisprudence moved to its proper place in the privileges and immunities clause, although evidently I don’t think the invocations of original intent are particularly helpful.)

Meanwhile, more fun can be had trying to reconcile Goldstein’s asserted opposition to “identity politics” with his argument that there’s something problematic about hiring Juan Cole, despite the fact that he knows absolutely nothing about Cole’s relevant credentials but does know that he disagrees with Cole’s political views. To be fair, however, Goldstein did leave it to Roger Simon to pull the “Ward Churchill” card…

Pretending That Bush v. Gore Is Constitutional Law

6 CA has ruled that Ohio’s 2000 election procedures violated the equal protection clause, based (among other arguments) on the Supreme Court’s innovations in equal protection doctrine. As some of you may remember, this is not the first time that a court has applied Bush v. Gore is if actually constituted a legal opinion; a 9CA panel did so during the California recall, although it was later reversed by an en banc. As the 6CA majority noted, the district court logically held that in light of Bush v. Gore‘s claim that the fundamental nature of the right to vote “lies in the equal weight accorded to each vote and the equal dignity owed to each voter,” that the arbitrary vote dilution of Ohio’s procedures violation of the equal protection clause.

This opinion, and the dissent which all but concedes that Bush v. Gore should not be taken as articulating a legal principle at all, reminds me of Mark Tushnet’s essay “Renormalizing Bush v. Gore: An Anticipatory Intellectual History” (Georgetown Law Journal, 90: 133 (2001)). After discussing some of the strategies that future legal scholars would use to rationalize the transparent lawlessness of Bush v. Gore into legal doctrine, Tushnet concludes:

A final technique of renormalization is in some ways the most interesting. It involves the generalized invocation of rule-of-law norms, typically in the form of assertions that the Supreme Court’s decision, while perhaps incorrect, nonetheless deserves respect because the Court is our nation’s voice of the law. The qualification in the preceding sentence is important. A decision can be justified by the rule of law standing alone only if there are no other reasons justifying the decision. That is, rule-of-law ideas have force only when someone who disagrees with a decision is asked to accept it nonetheless. Not surprisingly, this creates something of a psychological difficulty, related to, but not quite the same as, the phenomenon of cognitive dissonance. People find it hard to think that decisions with which they disagree are nevertheless justified. People also find it hard to give up on the ideal of the rule of law. The outcome is predictable. As time passes, people come to think that the decisions with which they initially disagreed were actually not wrong. I think we can expect to see, and I think reasonably soon, progressives asserting that, as a matter of fact, Bush v. Gore was correctly decided.

As indeed it was. After all, the equal protection doctrine the case articulated can certainly be turned to progressive uses. We can, and should, take the case as another in a long line of decisions by political actors–a category that includes judges–expanding and protecting the expansion of the franchise. Some of us may retain a lurking, or even overt, sense that the Justices who joined the majority opinion in Bush v. Gore did not see the case in those terms and that those Justices were motivated by narrow partisan concerns. Still, the case is there to be used by progressives in the future. And that, to conclude, would be another vindication of a different critical legal studies claim, this one about the indeterminacy of legal doctrine.

Absolutely right, and so is the Sixth Circuit. The Supreme Court has announced that there is a fundamental right not to have one’s vote diluted, a right clearly violated by Ohio’s 2000 election procedures, as well as those of all states that allow some individuals to have their votes diluted by less reliable voting machines or arbitrary recount procedures. Whether or not this decision was right in the first instance, lower courts should apply the principle. There is no reason, conversely, to be bound by the B. v. G 5′s lawless “minimalist” dictum that “[o]ur consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities”; it is the responsibility of lower courts to sort through these complexities, and faithfully apply the precedent to cases in which there is vote dilution inherent in state election procedures. The rule of law demands no less. To paraphrase Michael McConnell, is the bottom of the slippery slope so bad? Reforming the country’s egregiously irrational electoral system would certainly be a good outcome.

There is another upside to taking Bush v. Gore seriously, in that it would put the 5 justices [well, yes, actually only 3, although it will be fun to see Bush's appointments squirm too--ed.] who disgraced themselves in 2000 into a delicious bind, like George Costanza driving Susan’s parents to his fictional house in the Hamptons. Either they can allow lower courts to apply the precedent with some measure of logic, or they can take a case and admit that the case was not constitutional law in any relevant sense at all. I say we get to it…

The Trekkie Clausewitz

Doghouse Riley on Powerline’s resident foreign policy expert.

Well, it could have been worse; they could be using Orson Scott Card…

Tink? Is That You?

This defense of the Lubriderm Euston Manifesto illustrates its silly underlying assumptions quite nicely. Consider:

Because Iraqi reconstruction has been a fiasco, the liberal temptation is to side intellectually with the insurgents. But, for example, trade unions are forbidden to organise in the Iraqi public sector because of the Saddam Hussein ban still in force; the comment pages of the liberal press are hardly full of articles insisting that the Iraq government entrenches union rights. Little space is given to arguments about the wider importance of building a sustainable democracy. Rather, there is another piece on why the US and Britain must get out of Iraq now to allow, presumably, the establishment of a theocratic, authoritarian state.

It’s like every strawman, non-sequitur, and self-aggrandizement of the “decent” left in one handy paragraph!

• “…Iraqi reconstruction has been a fiasco.” Nice of you to admit that, except that you fail to comprehend that the people who were actually responsible for the occupation are still in charge of it, and they assure us that things are going perfectly well in Iraq, and we need to stay the course. What makes you think that the long-term continuation of policies you admit have failed will suddenly cause them to work? (And to answer “but we don’t favor those policies, we favor policies that will allow us to win!” is no answer at all. The choice is: Bush and Blair’s war, or leaving. There is no third option on the table, unless decision-making authority constitutionally reverts to would-be Orwells signing position papers in pubs.) Also, perhaps some of these people should familiarize themselves with the concept of “path dependence.” The bad effects of the failed reconstruction on Iraqi state and society cannot simply be undone just because things might have been different if signatories of the Tinkerbell Manifesto had been in charge during the relevant time period.
• “[t]he liberal temptation is to side intellectually with the insurgents.” Um, what “liberals” have shown any “temptation” to support the Iraqi insurgency? Does Hutton believe that opposing the Soviet invasion of Afghanistan compelled one to “support” the Taliban?
• “the comment pages of the liberal press are hardly full of articles insisting that the Iraq government entrenches union rights. Little space is given to arguments about the wider importance of building a sustainable democracy.” Well, first of all, anybody who thinks that an invasion of Iraq led by George Bush was likely to make the right to organize in Iraq a priority should really not be allowed to walk the streets alone. But leaving that aside, what exactly is such a thing supposed to accomplish? Just to make sure that I can be part of the “decent left,” I, Scott Lemieux, proclaim my belief that workers should have the right to organize, and also that liberal democracy is preferable to either secular or religious authoritarianism. Now perhaps Hutton can fill us on in the causal mechanism that will cause the writings of the Guardian‘s op-ed pages to be inscribed in Iraqi law. I’m guessing that a lot of clapping is involved.
  
• “Rather, there is another piece on why the US and Britain must get out of Iraq now to allow, presumably, the establishment of a theocratic, authoritarian state.” See, the problem here is known as “begging the question.” What Hutton fails to understand is that the illiberal, theocratic state is already here. Again, a couple links of the causal chain seem to be missing; it is not, in fact, true, that the presence of American and British troops can be expected to simply conjure up a liberal democracy ex nihlio if they just try really hard. (On imagines the Euston signees favoring us with a hearty chorus of “Illiberal sectarianism is over…if you want it!”) The uselessness of the kind of “leftists” who signed this silly document is precisely this kind unseriousness, its unwillingness to deal with any arguments that don’t end with accusing critics of being objectively pro-bad thing x. Moreover, any solution that involves an open-ended occupation by foreign troops without whom the state has virtually no effective coercive capacity renders justifications of “democracy” and/or “Iraqi self-determination” moot. And, finally, one must note that many members of this “decent left”–and certainly their Reactionary Allies Who Must Not Be Criticized Without Noting At Length That Inappropriate Analogies About State Torture Are Worse Than State Torture–seem to want the magic of military imperialism to bring freedom, democracy, and labor rights to many other states. If we cannot withdraw troops from Iraq without being objectively pro-fascist, where exactly are the troops to carry out these missions going to come from?

These are people who would, in Loudon Wainwright’s phrase, rather be dreaming than living.

The La Flanagan Report

After seeing this, I would have to say that I was unfair to Harvey Mansfield; his sense of humor during his appearance was a little less forced, and his misogyny was a little more nuanced…

Right 25% Of The Time

For those who miss my sparking prose and universally interesting topics, Michael Berube and I have a preview of the NHL playoffs over at his place. One cool thing about the NHL playoffs, unlike some other leagues I could name, is that 1)there’s some serious doubt about who will meet in the finals, and 2)the first round is terrific fun. Anyway, the short version:

I’ll take Detroit, San Jose, Calgary, Colorado in the west, the first two near-locks, the last two tepidly. (Michael, like pretty much everyone else, thinks the last pick is crazy.) Michael takes Ottawa, Carolina, New Joisey, and Buffalo; my only disagreement would be about the Rangers, and that’s really more statement of my conviction that “momentum” is a Latin word meaning “bullshit” rather than a serious prediction.

The only other disagreement I have is that I think, especially in recent years, that Ottawa’s inability to beat increasingly inferior Leafs teams was more due to Lalime’s sieve-like properties than the fact that Quinn’s teams are always ready with the cheap shot. A problem, as Michael notes, that it’s not clear they solved with Hasek probably not ready to play. But then the question is, who’s going to beat them? You got me, but then Toronto shouldn’t have been beating them either, so…who knows.

My Kinda Town

In Chicago conferencing; blogging from my end will be intermittent over the next two days.

The First Amendment: Don’t Use It Or Lose It

Shorter Christopher Hitchens: “The press has destroyed freedom of the press by using it to present information unfavorable to the current administration.”

Kline: Rebuffed Again

The story of Kansas Attorney General Phil Kline‘s attempt to rifle through the health and sexual records of adolescent girls has been rebuffed once again in U.S. District Court; Lizardbreath has the news and links to the decision. She also makes a good point:

Something that gets forgotten when people talk about “judicial activism” is that judges are all that stand between us and executive activism, like that of the Kansas Attorney General trying to use a law that had never been held to apply to minors having consensual sex with each other, and that when it was passed in 1989 was clearly not intended to mandate the reporting of consensual sex between minors, to further his political agenda. If Mr. Kline wants laws that he can use to harass abortion clinics, he can lobby the legislature for them like any other citizen. Until then, the judiciary is there to protect us from an otherwise uncontrolled executive.

The Theater Critic

Ah, that’s more like it. As is generally the case when not writing about John McCain (which, alas, I may have to come back to for another round) or Iraq, Jon Chait remains very acute. His evisceration of the odious Joe Klein is terrific. First of all, Chait notes the wages of making judgments about politicians based on superficial gestures and meaningless attributions of “authenticity.” Klein thought, of course, that the Bush era would be one of competent, managerial continuation of Clinton’s policies. No, really:

The theory outlined in Klein’s book will be familiar to readers of his Time columns or watchers of his regular appearances on “Meet the Press.” Politics, he writes, “has become overly cautious, cynical, mechanistic, and bland.” It needs less boredom and more spontaneity, color, and charisma. The bulk of the book consists of his recounting of various presidential campaigns over the last three decades. The highlight is Robert Kennedy’s moving, off-the-cuff speech in Indianapolis announcing the assassination of Martin Luther King Jr. The low point is John Kerry’s dismal, overly scripted 2004 campaign. (Unfortunately for Klein’s premise, which postulates a steady decline, the two most spontaneous campaigns he describes–John McCain in 2000 and Howard Dean in 2004–took place within the last two election cycles.) He closes with a rousing call for a politician “[w]ho believes in at least one idea, or program, that has less than 40 percent support in the polls. Who can tell a joke–at his own expense, if possible. Who gets angry, within reason; gets weepy, within reason … but only if those emotions are rare and real. Who is capable of a spontaneous, untrammeled belly laugh.” In fact, we have a president right now who does all those things. (There’s hardly a Bush idea these days that does crack 40 percent in the polls.) Somehow, though, these are not the best of times in American politics. Which suggests that having authentic, regular-guy candidates may not be the cure-all that Klein envisions it to be.

Again and again, Bush has exposed the limits of Klein’s theater-critic interpretation of politics. In 1999, marveling over Bushian slogans like “no child left behind,” Klein gushed in The New Yorker that the Texas governor represented “the first significant Republican rebellion against the Reagan template.” In Bush, he found the Republican counterpart to the Clintonian Third Way.

[...]

It may have seemed like a stretch to infer some deeper conclusion about the GOP’s ideological direction from the looks of some panelists at a nominating convention. And, if one was to draw such an inference, it’s puzzling to interpret a resemblance to snooty Depression-era bankers (who, after all, had notoriously reactionary political views) as evidence of moderation, rather than the opposite.

Yet nothing could shake Klein from his theory. Not even Bush’s decision to bring on non-compassionate conservative Dick Cheney. “Anybody who tries to take a really strong position on [Cheney] from the left or from the right seems kind of silly,” Klein said of Bush’s vice presidential selection on a “Meet the Press” panel. “We’re all Clintonians now. Everybody is a Third Way Democrat or Republican, you know, and I think that that’s one of the central problems that politicians in both parties face right now, is that there are no huge differences, or at least very few.”

And then, after the election, Klein predicted that the result would be “a quiet, patient, and persistent bipartisanship,” with no big tax cuts or Supreme Court ideologues. Klein suggested helpfully, “Bush could easily retain Lawrence Summers at Treasury and Richard Holbrooke at the United Nations.” And this scenario could have easily come to pass, provided every other Cabinet-eligible American citizen had been wiped out in a nuclear holocaust.

And in addition to his personality-obsessed vapidity and attachment to meaningless symbolism (which, as Chait notes, makes him Rove’s ideal mark) is his tendency to project millionaire pundit values onto a populace that wants little part of them:

There are also Klein’s ideological prejudices, which pop up throughout his book. Like other centrist pundits, he has a disdain for populism. Unlike the others, he makes his disdain explicit rather than simply assuming it as an unquestionable truth. “The least successful form of populism,” writes Klein in his book, “is [Bob] Shrum’s economic class warfare, which has only received majority support during tough times, like the Great Depression.” (Harry Truman? Lyndon Johnson? Al Gore plus Ralph Nader?) Klein argues that Democrats would win more elections if they focused on gun control and global warming, favored issues of the latte set. I’m tempted to suggest that the set of issues Klein derides in the book as “jobs, health-care, and blah-blah-blah” has some resonance with the segment of the voting public that doesn’t lead the privileged lifestyle of a multimillionaire author and TV pundit. But that would sound populist.

Yes, the most “liberal” Time columnist thinks that typical people don’t care about jobs and health care. What a world we live in.

Contra La Flanagan

I had been meaning to get to Pamela Paul’s defense of Caitlin Flanagan’s upper-class anti-feminism–which essentially argues that people vociferously disagree with Flanagan’s crude gender stereotypes and bourgie conformism because they secretly agree with it, but fortunately Ann Bartow, Amanda and Echidne are all on the job. Make sure to check out the comments at Pandagon, which also raise some good points. The Happy Feminist notes Flanagan’s baffling sexual politics, which are captured perfectly in this paragraph cited by Amanda:

If marriages are sexless, it’s because ball-breaker women, exhausted from long hours at the office and from nagging their husbands to fold the laundry properly, are not home putting home-cooked hot meals on the table, not greeting their husbands at the door in heels and slinky negligee and, worst of all, not putting out. “Under these conditions,” she writes, “pity the poor married man hoping to get a bit of comfort from the wife at day’s end. He must somehow seduce a woman who is economically independent of him, bone tired, philosophically disinclined to have sex unless she is jolly well in the mood, numbingly familiar with his every sexual maneuver, and still doing a slow burn over his failure to wipe down the countertops and fold the dish towel after cooking the kids’ dinner. He can hardly be blamed for opting instead to check his e-mail, catch a few minutes of SportsCenter, and call it a night.”

We’re all but in Kass meets Dowd territory here: passive women who see sex as a grim chore desired only by men (and hence we would lose any interest in sex once they’re “financially independent”), sexual pleasure as something women give to men period, women controlling the domestic sphere while the man trudges home with his briefcase who just wants his wife to bring his pipe, slippers and a hummer and is that really to much to ask? (And, to mount another hobbyhorse, she also implies quite frequently that anyone who doesn’t share her fastidious standards for domestic labor don’t merely have different priorities or aesthetic preferences but must be guilty of some moral failing.) I can assure the Times‘ reviewer that I don’t criticize this stuff because I agree with it.

Also odd is her defensive claim that “I am pro-choice, anti-war, anti-Bush, I’m a Democrat, and only a conservative on family issues,” but whining that “I’ve got nothing but derision from the left–you’ve got to check everything on the menu to please them.” As a couple of commenters note, this isn’t surprising given that the family issues are pretty much all that she writes about. If she wrote mostly about abortion or the war, nobody would criticize her, and if Charles Johnson did nothing put post pictures of the sky nobody would criticize him either…

But Don’t Worry: John McCain’s Daughter Will Have Abortion On Demand!

USA Today has a handy-dandy chart showing what a post-Roe landscape would look like. As you can see, despite disingenuous claims that overturning Roe is no big deal, roughly 200 million people live in states where the rights of non-affluent women either will or are at significant risk of having their reproductive rights stripped. (And, again, in many cases this will be triggered automatically.) Just so we’re clear about how many women the Richard Cohens of the world are happy to throw under the bus.

Speaking of which, I’m afraid that Jon Chait–who I honestly thought would have figured things out by this late date–still has his unrequited crush, sitting at home with his “Straight Talk Express” mixtape and telling himself that “despite his public statements, voting record, and the nature of the party he’s seeking to lead, I’m sure that John McCain is secretly a liberal!” Get a load of this:

McCain also showed signs of abandoning his social conservative views. He came out in favor of government-financed stem cell research. During the 2000 presidential campaign, he declared “certainly in the short term or even in the long term, I would not support the repeal of Roe v. Wade.” He said that if his daughter wanted an abortion, he would leave the decision up to her. (He did retreat from both these comments after conservatives recoiled in horror, but his real thinking on the subject seemed perfectly clear.)

Of course John McCain wouldn’t actually want the state to coerce his daughter not to have an abortion. That just makes him a typical American “rights for me but not for thee” social conservative. And the nice thing for him is that there’s no contradiction in his positions. Overturning Roe, as a justice appointed by a President McCain would probably vote to do, certainly wouldn’t prevent John McCain’s daughter from getting an abortion–she’ll have the money to fly to California in the unlikely event that her old man’s connections can’t get her a grey market abortion within her current metro area. Abortion laws are about restricting the rights of some other nameless sluts whose judgment can’t be trusted, not a woman of good solid Republican stock. I’m just amazed that Chait is taking this standard-issue Republican double standard as evidence that McCain is “with us at heart.” Really, give it up.