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’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?
Those who argue that some citizens should be excluded from military service because their presence would hurt “unit cohesion” are saying that current soldiers should be able to decide with whom they serve. This is bravo sierra–the military is not a country club whose members should be able to blackball undesirables.
As a tank platoon sergeant I faced a variety of obstacles to unit cohesion, including affairs and arguments over women, unpaid gambling debts, racism, gang membership, laziness, and simple personality conflicts. The biggest one was the constant squabble between single junior enlisted troops who lived constricted lives in the barracks (daily inspections, etc), and the married soldiers who lived off post and lived much more freely (and also got time off for things like sick family members).
The point is that conflicts will always arise among any group of people large enough to complete a destructive military mission, and leaders–like General Pace–have the mission of solving these problems. This turns out to be easier than one might think, since most soldiers, even when slighted, know when they are being treated fairly and when they are not, and they know good leaders when they see them. Good leaders can create cohesive, effective units from diverse raw materials. Saying that military units cannot integrate homosexuals into cohesive units is the same as saying that our armed services have too few effective leaders.
What strikes me as most interesting is not that General Pace is comfortable classifying a non-trivial number of his own troops as immoral. It is that there is a mission that he can’t or won’t complete because of morality or ethics, but this mission has nothing to do with killing thousands of innocent civilians or breaking the Marine Corps he leads. It regards instead his refusal to validate sexual preferences his religion demonizes.
Who is the immoral one?
Right. It should be obvious that the solution to somebody failing to do their job because of their petty prejudices or immaturity isn’t to violate other people’s writes to accommodate them, but to tell them to grow up and if they can’t find people who can, and supervisors willing to indulge this behavior are similarly guilty. And as I’ve said before, somebody who isn’t willing to do his job because of his obsession with someone else’s sex life isn’t exactly somebody I’d be anxious to share a foxhole with. As Rob says, this “unit cohesion” stuff–which has been used to challenge not only gays but women and segregation in the military–is just a transparent pretext to justify exclusionary policies political and military leaders support for other reasons in any case.
Just 3 days removed from almost choking to death because of an allergic reaction to nuts, after repeated requests for the vinaigrette some clown at the Hale&Hearty applied some “Asian Peanut” dressing to my salad, which I discovered only because I happened to see the label on the side at the last minute; I don’t even want to think about what would have happened if I hadn’t been looking. Christ, this kind of thing can kill people, and it’s not exactly a high-skill task to figure out.
No, really! OK, there are some details that are problematic–I’m not sure what campaign finance reform has to do with this, and George Bush was hardly less prone to claiming to transcend partisan conflict than Hillary Clinton–but the more that the argument that “democracy is about disagreement, and you can’t have the former without the latter” appears in our op-ed pages, the better. There’s no stupider genre of op-eds than the Broderesque “all political problems and our horrible partisanship could be solved if we could just agree that I’m right about everything” routine.
I have a post at TAPPED about the strange new conservative trend toward talking about abortion as weakening America’s precious baby supply, an argument that (assuming conservatism wants to preserve any viability at all)–even if it were actually accurate–would obviously prove too much, since birth control is a rather greater brake on fertility rates. I use this to discuss attempts by conservatives to “pull the thread” of Roe without upsetting the Griswold line of cases, which I think usually fails. Since I’m having trouble getting the comments to work and this has come up once before, I thought it was worth explaining this in more detail. A commenter says:
I think that argument is somewhat facile, simply because the main difference between Roe v. Wade and Griswold is the existence of a competing interest — the putative child’s — in abortion cases. That’s not an argument that was advanced to any significant degree in Roe, but it’s one that’s likely to be advanced in any potential repudiation of Roe, specifically for the reason that it would avoid repudiating Griswold.
In theory, this is true: someone can acknowledge that abortion is a fundamental right–which it logically must be, if contraception is–but that is trumped by a more powerful state interest. But, in practice, this is rarely the case. None of the past or current anti-Roe Supreme Court Justices have actually made this argument: Rehnquist, Scalia, Thomas, and White instead argued that a woman’s right to choose an abortion is not a fundamental liberty interest at all. (White actually joined Griswold, making his position hopelessly incoherent.) And, actually, this makes sense, because attempts to “pull the thread” will fail. Anti-Roe arguments, in practice, depend on taking asserted legislative ends at face value and not analyzing the fit between the policy and the stated ends–precisely the opposite of the strict scrutiny applying Griswold requires. Let’s assess the two potentially countervailing interests that could trump fundamental reproductive rights:
Protecting a woman’s health. While this is certainly a compelling state interest, it is obvious that abortion criminalization is a grossly overbroad means of achieving these ends. The legitimate state interest of ensuring the safety of abortions hardly requires them to be banned altogether. Moreover, this justification runs into the obvious problem that abortion is much safer than bringing a child to term. If reproductive freedom is a fundamental right, this isn’t a remotely hard question.
Protecting Fetal Life. This is the somewhat more viable enterprise; one can imagine a moral conception of the fetus that could plausibly trump even a fundamental liberty interest. However, it is clear from the way abortion laws are actually written and enforced that abortion laws do not reflect anything like such a consensus. If fetal life was protected, these laws would be strongly enforced, women who got abortions would face serious jail time, juries would convict doctors for performing abortions absent injury, affluent women would not have de facto exemptions from the law, etc. But none of these things are true. Once we stop taking state assertions at face value–and if a fundamental right is involved, we cannot–the fit between the purported interest and the construction and application of abortion bans is too implausible to sustain abortion bans. Legislation delegating these decisions to panels of doctors under vague standards fares even worse in this respect.
Given actual abortion laws, as opposed to abortion laws in some abstract universe, one can have both Griswold and Roe or neither, period.
There are, of course, many reasons to watch NASCAR, as is clear when you’re stuck in a venue where it’s being shown; it’s excruciatingly dull, it goes on forever, and the sound (both the whine of the engines and the commentary) intensely irratating when you’re trying to watch a real sporting event at the same place. From my narrow perspective, however, what really sucks is that the NASCAR crowd overwhelmed security at the Vegas airport, causing me to miss my flight. Fortunately, I was able to get the last flight out to Boston and connect thorugh there, but ugh. Our guests can feel free to keep contributing today: I won’t be back until this aft.
One thing learned: ambien + these headphones = a red eye on which even I can sleep.