In response to my point that Mickey Kaus’s nominal support for gay marriage was empty because he never finds any means of achieving it acceptable (the only meaningful difference between people who are flat-out reactionaries and people who support social change unless it might cause social conflict or affect entrenched interests is that the former are at least honest), a commenter asks: “There wasn’t a massive backlash after the San Francisco and Massachusetts decisions? This didn’t mobilize the Republican vote in Ohio and other battleground states, thus costing Democrats the 2004 election?” Although the question is apparently meant to be rhetorical, the short answer is in fact “no.”
I’m presenting the long answer in an updated version of a paper I’m presenting at the MWPSA conference next month, and Dan Pinello does a good job of summarizing the arguments in his new book too. To summarize the many problems with the countermobilization thesis:
- The state backlash was window dressing. The strongest argument for the Kaus backlash thesis are the 13 state initiatives passed in 2004 which passed following Goodridge and Gavin Newsom’s actions. However, the actual cost of these initiatives for the cause of gay rights was trivial. In none of these states did gays and lesbians lose legal privileges*; and as Pinello notes, in 9 of the 13 states the new amendments just mirrored statutory bans on gay marriage that already existed. And since state constitutional amendments are generally no harder to change than a statute, the political cost is nominal. A federal constitutional amendment — which is almost impossible to change — would be a different issue, but of course the FMA was pure cynical exploit-the-bigotry-of-the-rubes politics with no chance of actually passing. Gay marriage isn’t any less popular now than it was in 2004. In other words, there’s no evidence that Goodridge actually made the practical task of achieving gay marriage harder. So, clearly, the decision was a net benefit: they gained in Massachusetts (where pro-gay rights legislators have fared better than opponents of the court’s decision, belying claims of a backlash), without actually losing ground anywhere else. As a general matter, I also don’t believe there’s any significant empirical basis for claims that judicial opinions create uniquely large backlashes.
- The election myth. As Pinello notes, the evidence that gay rights was a decisive factor in the 2004 election is scant-to-nonexistent; once you go beyond eyeballing exit polls and actually do empirical studies of voting behavior, the alleged effects disappears. Moreover, at this point the various strands in the antiliberal obsessions of Kaus and his fellow travelers start to collapse on one another. Kerry in 2004 did historically well given that he was facing a wartime incumbent in a decent economy. Obviously, few people (and Kaus least of all) would claim that this was because Kerry was an incredibly strong candidate. But if a massive anti-gay backlash hurt the Democrats badly, where did the votes go? And none of this is surprising. People who are single-issue gay marriage obsessives are pretty unlikely to be liberal otherwise.
- Predicting 9 of the last 2 backlashes. You may recall Kaus, and may other pundits predicting that the decision of courts in New Jersey to require civil unions would cause a major backlash against the Democrats in the 2006 election. You may also recall that this didn’t happen even at the level of simple correlation, which will be promptly forgotten the next time the courts issue a similar holding.
Obviously, substantive victories (achieved in any branch of government) will produce opposition from people who oppose them, which would obviously be a stupid reason not to want to win. But there’s no evidence that judicial opinions produce a unique backlash, and there’s also no evidence that gay marriage won the 2004 elections for the Republicans.
*UPDATE: As Mithras and another commenter note, this isn’t entirely accurate; while there was no loss of state marriage benefits in these states, in Michigan and Virginia it did interfere with the ability of gays and lesbians to negotiate private benefits.
Matt quotes my colleague Ken Sherrill about why Democrats who support equal rights may be reluctant to disclaim the notion that homosexuality is immoral. The other important point, I think, is that from a political (as opposed to personal) level, what matters is the policy, not the subjective morality. Just as it doesn’t matter what John McCain “really” thinks about abortion when he’s resolutely in favor of criminalizing it, if you support gay rights your personal position about the morality of gay sexuality is not terribly important.
…Pithlord, Matt and lt are correct to point out in comments that it’s wrong to imply that public comments about the morality of sexuality are irrelevant. Obviously, it’s suboptimal for candidates to express the wrong opinion on the issue.
Glenn Reynolds asserts as fact that “it was Joe Wilson who outed Valerie Plame.” If you clink through the link, however, you’ll note that the linkee provides no evidence whatsoever for his assertion; he’s got nothing but a just-so story based on pure speculation. Of course, we are dealing with a guy who proclaimed the Plame scandal “bogus” because she appeared in a public photo after she had already been outed, so admittedly the illogic and lack of evidence here are modest by his historical standards.
What Garance said. Beck’s attack on Clinton is no less objectionable than Coulter’s attack on Edwards.
…see also Echidne.
Shakes asks about the most overrated shows ever to appear on the teevee. (Fortunately, I’ve never seen Lost and can avoid her wrath.) Doing this with television can be tricky, especially since so many series go on after being exhausted (because critics seemed to catch up with Six Feet Under only after it became not very good, for example, it could plausibly be on a most underrated and most overrated list.) So I’m thinking of shows in their “prime.” And I also strive to bracket out questions of mere genre taste; I find The X-Files overrated not so much on aesthetic grounds as that I find the entire premise too intensely irritating to get beyond, which I don’t think is really with the spirit of the category. Anyway, here we go:
- Sex and the City: It was a critical darling and cultural icon. And it was also a show with C-grade broadcast sitcom writing and (Cynthia Nixon excepted) barely-adequate-to-horrible acting about exceptionally uninteresting characters learning fundamentally sexist lessons. In other words, the easiest choice on the list.
- 24: The recent discussion about its right-wing politics obscures the real problems with the show, which is that it sucks, something that was quite evident before its politics became clear. In the immortal words of the Editors, “Here’s the plot of “24″: there’s a bunch of terrorists, Kiefer stops them, oh wait no he didn’t, but now he did really, and just in the nick of time! Because even the cruelest TV executive couldn’t stretch this over more than 4 hours, the rest of the show has to be padded out with subplots, mainly involving his daughter getting kidnapped. Oh, Lord, can that girl get kidnapped. Most people can live a good long life without ever getting kidnapped; an unfortunate few do get kidnapped once; there are probably a few examples through history of people getting kidnapped two, or maybe even three, times. Kiefer’s daughter gets kidnapped like seven times a day. She gets kidnapped from people who kidnapped her from kidnappers. If she makes it to dinner time without being kidnapped at least twice, that’s a cause for celebration in the Kiefer household.” And the fact that Keifer Sutherland can win a best actor Emmy tells you all you need to know about the value of those awards.
- The West Wing: It may seem strange to put what is, I guess, Sorkin’s best show on the list, but that’s the overrated/bad distinction. Even if most critics only saw the glaring suckiosity of Studio 60 after it became a ratings fiasco, it’s hard to call it overrated at this late date, and SportsNight wasn’t long-running enough. Between its wholly unearned reputation for political acuity and the fact that it was a mediocre show discussed as if it was comparable in quality to The Sopranos (hint: in an actual great show, all the characters don’t sound like the script’s author), I found it essentially unbearable despite the good actors. I’ll admit that the 9/11 episode was anomalously bad, but when I saw those students trapped in a room so that a “character” could read–complete with blackboard!–trite moderate-liberal position papers about the Political Implications Of Terrorist Attacks at them, I could identify strongly with them because I had seen an Aaron Sorkin show.
- Law and Order: SVU Granted, the all-pervos-all-the-time premise does largely pre-empt the “I’m putting the Iraq War on trial!!!!!!!!!!!!!” moments that make many late episodes of the mother show unwatchable. Still, there’s something about the DeMillian simultaneous exploitation and moralism that’s very annoying, and as a procedural it’s pretty lame. Plus, Mariska Hargitay isn’t that good.
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Shorter Dr. Mrs. Ole Perfesser: “The fact that listening to a fourth-rate pop novelist can cause people to change their minds about the consensus of actual scientists proves that science needs to be balanced with fiction more frequently.”
Congratulations to regular LGM commenter Matt Weiner, who will be leaving beautiful Lubbock, Texas for a new position at the University of Vermont; I have to say that sounds like an excellent move, plus he will be more likely to attend unfogged meetups. Bobby Knight is probably happy to get another damned northern liberal off campus…
I’m working on a piece about Jan Crawford Greenburg’s new book, so I was interested in this take by John O. McGinnis. I agree that it’s a good book, although obviously to me her credulous acceptance of self-serving arguments made by conservatives is more a bug than a feature. I agree with McGinnis that the idea that Clarence Thomas is simply Antonin Scalia’s sockpuppet–see also Mark Tushnet’s excellent book about the Rehnquist Court–should be put to bed permanently. Really, this would be obvious enough from just reading their opinions, but Greenburg has some interesting material about how on his first term Thomas actually convinced Scalia to adopt a stronger position (but, as McGinnis says, in doing so alienated O’Connor.)
McGinnis does, however, makes a familiar conservative move by claiming that conservative justices aren’t result-oriented while brining up examples that fatally undermine the proposition. McGinnis asserts that “Antonin Scalia and Clarence Thomas…think that constitutional rulings should proceed only from analysis of the text” and refers to “Justice Thomas’s steadfast adherence to the original understanding of the Constitution.” Ironically, however, he cites affirmative action as an example of O’Connor being unprincipled, when of course it is one of the best examples of Scalia and Thomas not being “steadfast” about applying originalist jurisprudence. Affirmative action by state governments can violate the 14th Amendment only by defining its original meaning at such a high level of abstraction that virtually any outcome can be called “originalist.” And the idea that the 5th Amendment was understood at the time of its enactment in 1791 as forbidding all racial classification is simply farcical, and yet both Scalia and Thomas (without even attempting an originalist justification) have held that affirmative action is impermissible even at the federal level. Also telling is the fact that McGinnis seems to use textualism and originalism interchangeably. In fact, they can suggest quite different results (the Scalia/Thomas position on affirmative action is a plausible–though not inevitable– reading of the text, but can’t be squared with an originalism of any meaningful content), leaving Scalia and Thomas a wide range of possible outcomes that can accommodate conservative policy outcomes in most cases.
While I agree that it’s not accurate to claim that judges are simply “politicians in robes,” the claim that disputes on the Supreme Court are purely “legal” is just as much of a half-truth. Affirmative action is an excellent case in point, although oddly conservative scholars sometime cite it as the opposite.
Just in time for him to approvingly quote an email from a reader asserting that “[t]he left doesn’t attempt to persuade, they vilify,” I see that the publication date for Jonah Goldberg’s sober-minded, closely-argued new book Liberals Are Worse Than Hitler, Plus They Call People Names! has been delayed once again:
It’s taking longer than expected for Jonah Goldberg’s ghostwriter to finish his long awaited worstseller, I Heart Hitler: Without You, Adolf, I’m Nothing. Back in 2003, the Pantload’s publisher was promising a 2005 release date. As 2005 passed, Goldberg promised a March 2007 release date, and then a September 11, 2007 (!) release date.
The dupes at Doubleday are now announcing a December 26, 2007 release date which, no doubt, will roll over to a 2008 date by the end of Spring.
Or maybe not. I searched the Doubleday website and could find nothing on Lucianne Jnr.’s manfesto. A page at the website of Doubleday’s parent, Random House, refers to Goldberg and has a picture of the book’s cover, but has no information about the Pantload’s volume. And the Pantload’s not one of the ten Goldbergs on the publisher’s author roster.
At a promised 272 pages, this means that Goldberg hasn’t managed to complete even a fifth of a page per day. Factoring in the huge margins, large type, bogus endnotes and eight to sixteen pages of red and black Crayola illustrations, it’s probably closer to less than a tenth of a page. Of course, Goldberg’s churned out much more than 272 pages worth of Corner Crap over the past four years (and that’s not including his syndicated column and BSG slash fiction). So he’s got no excuse for delivering his book 2 and 1/2 years late.
What makes this more mysterious is that I think it’s pretty safe to assume that fans of BSG slash have considerably more exacting standards of taste and judgment than Goldberg’s editor Adam “In Refutation of Nepotism” Bellow (cf. 1, 2, 3).
“I heartily endorse this event or product.”
We’ve had to turn down a couple BlogAds recently–the most recent a particularly egregious bit of union busting–so it’s nice to get an advertiser expressing a sentiment I can endorse unreservedly.
I’m a little puzzled by this Sasha Volokh post, in which he cites an article by Mike Seidman pointing out that the indeterminate nature of legal materials has produced conservative results as the federal courts have become dominated by Republican appointments and then uses it as a “gotcha” against CLS scholars, warning them that “progressives who, in the name of indeterminacy, try to undermine rule-of-law norms, will find this biting them back in the end.” If Volokh thinks that this would be remotely surprising to the crits, however, he doesn’t understand their work. First, the indeterminacy thesis is an empirical one, and as both Volokh and Seidman seem to concede, the federal judiciary under the Bush administration has provided powerful evidence for it. I’m not inclined to agree with the strongest versions of the crit/realist argument, but as Mark Tushnet (the most important CLS scholar) has pointed out, Bush v. Gore “seems to have let critical legal studies arise like Lazarus from the grave.” One would have to be incredibly naive to believe that the law would not have taken a more conservative turn had only some academics not made arguments about legal indeterminacy in obscure law review articles. Secondly, one can disagree with CLS scholars on any number of points, but one thing you certainly can’t accuse them of is being unaware that legal indeterminacy can work to reactionary purposes. Indeed, the whole point of a lot of CLS scholarship is that the indeterminacy of legal principles served powerful interests and obstructed progressive social change. Despite my disagreements with CLS scholars one useful thing about the critical literature is that it serves as a reminder about how anomalous the Warren Court was in American history; people who expect the federal judiciary to reliably stand up for the rights of unpopular minorities against the powerful are likely to be disappointed more often than not.
Good for Alan Simpson, who notes the empirical difficulties with the idea that if we don’t indulge the ex ante bigotry of some military and political leaders it will somehow cause morale and cohesion to collapse:
Military attitudes have also shifted. Fully three-quarters of 500 vets returning from Iraq and Afghanistan said in a December Zogby poll that they were comfortable interacting with gay people. Also last year, a Zogby poll showed that a majority of service members who knew a gay member in their unit said the person’s presence had no negative impact on the unit or personal morale. Senior leaders such as retired Gen. John Shalikashvili and Lt. Gen. Daniel Christman, a former West Point superintendent, are calling for a second look.
Second, 24 nations, including 12 in Operation Enduring Freedom and nine in Operation Iraqi Freedom, permit open service. Despite controversy surrounding the policy change, it has had no negative impact on morale, cohesion, readiness or recruitment. Our allies did not display such acceptance back when we voted on “don’t ask, don’t tell,” but we should consider their common-sense example.
Third, there are not enough troops to perform the required mission. The Army is “about broken,” in the words of Colin Powell. The Army’s chief of staff, Gen. Peter Schoomaker, told the House Armed Services Committee in December that “the active-duty Army of 507,000 will break unless the force is expanded by 7,000 more soldiers a year.” To fill its needs, the Army is granting a record number of “moral waivers,” allowing even felons to enlist. Yet we turn away patriotic gay and lesbian citizens.
So plenty of countries (and Simpson’s list presumably doesn’t include Israel, which of course has somehow maintained a superb military while maintaining both gender and gay and lesbian integration) have openly gay people serving and this has no discernible effects whatsoever and increases the potential pool of talented recruits, and yet some people claim that American soldiers are too immature and hateful and American military leadership too incompetent for gay people to openly serve in our military they way they do in many of our allies. Why do anti-gay bigots hate America?