Author Page for Scott Lemieux

A Rare Occasion When I Am Proud Of My Hobby

I was quite gratified to see the results of the Google Search for “Antonin Scalia greatest living justice.”

*Something* Good Has To Come Out Of This Thing

So, what have been the funniest wingnut reactions to the ISG? Mark Steyn is always a good place to start. When wondering why a reactionary hack with no discernible knowledge of any relevant issues is lauded as a great sage by so many other hacks, I am often told of his allegedly sparkling pose and biting wit:

Well, the ISG — the Illustrious Seniors’ Group — has released its 79-point plan. How unprecedented is it? Well, it seems Iraq is to come under something called the “Iraq International Support Group.” If only Neville Chamberlain had thought to propose a “support group” for Czechoslovakia, he might still be in office. Or guest-hosting for Oprah.

But, alas, such flashes of originality are few and far between in what’s otherwise a testament to conventional wisdom.

Hardee-har-har. Personally, I would allow at least two paragraphs between complaints about “originality” and the six trillionth comparison of people who don’t think that turning Iraq into an anarchic training ground for anti-American terrorism at an immense human and financial cost is an effective way of fighting anti-American terrorism with Neville Chamberlain, but that’s just me.

For the honorable mention, we have to turn to the nation’s self-appointed moral tutor, Ramblin’ Gamblin’ Bill Bennett:

And conservative commentator William Bennett vented in volcanic fashion. “In all my time in Washington I’ve never seen such smugness, arrogance, or such insufferable moral superiority,” Bennett wrote in a posting on the National Review Web site. “Self-congratulatory. Full of itself. Horrible.”

Hey, give him this: he’s funnier than Mark Steyn.

Tramp the Dirt Down

Randy Paul helpfully supplements the NYT‘s list of important dates in the life of the late Augusto Pinochet:

• September 1974: Has DINA, his secret police organization plant a bomb in the car of General Carlos Prats, his predecessor in Buenos Aires. The bomb kills General Prats and his wife, Sofia. Debris from the explosion is found on the ninth floor of a building across the street.
• October 1975: Has DINA, through Italian fascist terrorist Stefano Della Chiae, attempt to murder Christian Democrat politician and regime opponent, Bernardo Leighton in Rome Italy. Leighton and his wife survive, but live in constant pain for the rest of their lives.
• September 1976: Has DINA blow up the car of Orlando Letelier in Washington, DC, killing Letelier and his American assistant, Ronni Moffitt.
• November 1978: The bodies of fifteen men who were “disappeared” are found in an abandoned limestone mine in Lonquen.
• June 1990: The bodies of 19 men who disappeared in the 1970′s are discovered in a mass grave in Pisagua.
• September 1991: The bodies of 127 victims of Pinochet’s regime are found buried secretly, two to a grave in some cases. Pinochet responds to television reporters by praising the economy of burying two to a grave.

As Randy says, Satan’s probably getting more than he bargained for…

Deathly Quiet

Sullivan:

But let me say this in defense of Althouse. She is at least conceding that the shameful treatment of Padilla is worth discussing. And her defense of the sadism is about as plausible as it will ever get. She sees there is an important principle here – something we once knew as habeas corpus. Here you have a U.S. citizen detained on American soil, kept without charges for 3 and a half years, accused of plotting a dirty bomb attack (an accusation never substantiated in any way), tortured until he may be mentally incapable of standing trial … and the conservative blogosphere is completely, utterly silent. Habeas corpus disappears not with a bang, and not even with a whimper, but with deathly quiet. Well, we know what American conservatism now stands for. You can see the visual above.

IndeedOuchDisturbingBecauseIt’sTrue, with two caveats: 1)I’m not sure that coming up with quarter-assed justifications of torture is better than ignoring it (Althouse, as she always does, is using these quibbles to evade the fundamental issues, just like liberal hawks and Iraq) and 2)in fairness, the conservative blogosphere does have at least a couple of proud Schmittians, including a major member of the “Republican Daily Kos.”

Jeffrey Rosen: Center-right Crit at TNR

I have a post at TAPPED about Jeffrey Rosen’s touting of John Roberts’s would-be “centrist” justification for upholding “partial-birth” abortion legislation that should clearly struck down based on the current law. A couple more points that I couldn’t fit in to a post that was already too long.

The article contains, first of all, a classic example of TNR pox-on-both-housesism:

Breyer is not the only justice who runs the risk of betraying his principles. If Justice Clarence Thomas decides to uphold the partial-birth abortion ban, abandoning his usual skepticism of federal regulations, he, too, would look opportunistic. By the same token, conservative defenders of the ban, such as former Attorney General Edwin Meese, are urging the Court to construe Congress’s power to regulate interstate commerce very broadly, even though they take the opposite position in cases involving civil rights and environmental regulations; liberal groups are similarly hypocritical.

Needless to say, Rosen declines to name any of the “liberal groups” urging that the Supreme Court strike the law on Commerce Clause grounds. Perhaps there are some examples, although I’m not aware of any, but such arguments certainly didn’t play more than a trivial role in litigation seeking to overturn the statute. Or maybe he’s referring to Breyer’s unwillingness to defer to congressional fact-finding, but while Breyer can certainly be hacktacular I hardly think it’s inconsistent to refuse to defer to Congressional assertions that 2+2=74. Moreover, I’m not sure how Rosen can attack Breyer on this count. The Rosen/Roberts position–that rather than accept congressional findings of fact and the policy choices Congress deliberately made, the Supreme Court should just go ahead and read a very narrow health exemption into the statute based on its own reading of the data–is considerably more unprincipled and incoherent. If the findings of “fact” adduced by Congress cannot justify the legislation, then Breyer’s remedy–to strike the statute and let Congress craft an appropriate health exemption if it so chooses–is the obviously correct one.

The other odd thing about this article is its strange brew of moth-eaten 50s-era vulgar pluralism and crude normative legal realism. As many of you know, The New Republic has generally been (literally) a citadel of the Frankurter-Bickel variant of “legal process” theory, and Rosen used to invoke this school constantly. To put it crudely, legal process had two crucial components. The first part is its claim that what makes courts distinctive is that they have to identify legal principles, apply them in subsequent cases, and give a plausible account of what they’re doing. Rosen seems to have entirely abandoned this prong of the theory (unless he can invoke it to oppose Roe itself.) Indeed, what’s most remarkable about Rosen is the extent to which he’s stopped worrying and learned to love the jurisprudence of Sandra Day O’Connor. His argument in this article–in which he urges the court to adopt his preferred policy outcome without even the pretense that it represents a plausible reading of the Constitution or the Court’s precedents–is the kind of preening, transparently unprincipled difference-splitting that gives “minimalism” a bad name.

The part of legal process theory that he does remained attached to is the idea that the courts can manage (if not end) social conflicts and produce stability by deciding difficult issues the right way and saying the right things about them. (Who knew that Rosen’s only objection to Casey‘s justly-mocked call for “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution” was that the Court didn’t allow quite enough poor women to be denied abortions and women be burdened with health risks for no reason to hit the sweet spot.) As Digby so brilliantly pointed out today, the idea that anti-choicers will be satisfied with a few bones thrown in their direction is sheer fantasy. The court’s decision in this case will not affect the extent to which the abortion issue is controversial–the only thing at stake is the reproductive freedom of the most vulnerable women in society. To sacrifice the latter in the hope that a pony farm will grown on ice cream castles in the air is as silly as Felix Frankfurter thinking he could convince Southerners to accept desegreagtion if he were permitted to craft judicial opinions in just the right way.

Hillary, Non

Thank Jeebus that I don’t think she can actually win the Democratic primary. (I hope somebody’s taking a lot of pictures of today’s Joementum.)

"I don’t see reopening this question in the future"

As a follow-up to yesterday’s post, the use of litigation has caused gay rights to be an incredibly divisive issue that will tear Canadian politics apart for generations. Or not:

Prime Minister Stephen Harper has declared the contentious issue of same-sex marriage to be permanently closed.

After a Conservative motion calling on the government to restore the traditional definition of marriage was defeated yesterday by a resounding 175 to 123, Mr. Harper said he will not bring the matter back before Parliament.

“I don’t see reopening this question in the future,” he told reporters who asked whether same-sex marriage would return to the table if the Conservatives won a majority government.

Nor does he intend to introduce a “defence of religions” act to allow public officials, such as justices of the peace, to refuse to perform same-sex marriages.

But had litigation never been brought, I’m sure the legislation would have lost by an even greater margin. Or something.

In other Canadian news, I’ve forgotten to mention the pleasing upset victory of Stephane Dion in the Liberal leadership race; not only was he probably the best candidate on the merits (particularly since on civil liberties Ignatieff makes Alberto Gonzales sound like Nadine Strossen), but it gives hope to academics everywhere.

The Countermobilization Myth: Canadian Edition

Gay rights litigation has been very successful in our neighbor to the north, with major victories at both the federal and provincial levels (including with respect to marriage benefits. According to oft-cited conventional wisdom, this success should have been a disaster for the gay rights movement, mobilizing a huge backlash and setting the cause back for generations as citizens were incensed by decision by “activist” courts. The problem is that this is not, in fact, true. Not only did Parliament end up formally recognizing gay marriage, but gay marriage has continued to become more popular, now commanding the support of almost 60% of the Canadian public.

I do not mean so suggest that we can therefore expect a majority of Americans to support gay marriage right away too. My only point is that there is no evidence whatsoever that using litigation has anything to do with it. Courts are likely to provide the initiative with respect to issues that cross-cut existing coalitions (even on issues, such as civil rights and abortion, where national majorities favor reform), and there’s no reason to believe that favorable court decisions will stop inexorable generational trends that will increase support for gay rights. But then, the “countermobilization” argument has never been about evidence. What’s useful about it is providing a component of an ages-old shell game, where complacent elites who aren’t burdened by the status quo nominally support the goals of social change but for who it’s somehow never being accomplished at the right time or in the right way.

[Cross-posted to TAPPED.]

Don’t Forget Orson Scott Card, Adam Yoshida, and Ted Nugent

Shorter Verbatim Hugh Hewitt: “[T]he ISG did not find it necessary to talk with, say, Victor Davis Hanson, Lawrence Wright, Robert Kaplan, Mark Steyn, Michael Ledeen, Reuel Marc Gerecht, or Christopher Hitchens.” All superb choices who have exhibited exceptional judgment, wide learning on contemporary military affairs and rigorous logic throughout the conflict, but he’s forgetting the biggest exclusion of all: Trekkie Clausewitz Dafydd ab Hugh. And if ab Hugh wasn’t available, at the very least Glenn “Just Win, Babeeeee!” Reynolds should have played a major role.

I’m afraid I can no longer take this otherwise fine exemplar of High Broderism and Republican Fixerism seriously.

The Johnnie Walker Wisdom Running Low

I know the war is going really badly, which leaves its (ostensibly) leftist supporters in something of an awkward position, but does Hitch really have to resort to the “women just ain’t funny” routine as the basis of an article? Pathetic, even for late-period Hitch. (On the merits, I believe that Belle has destroyed this argument and buried the pieces.)

Future Hitchens Vanity Fair columns will feature essays on leaving the toilet seat up, riffs on the driving styles of whites and African-Americans, and space-filling random pictures of the University of Wisconsin campus.

…See also Ann Friedman.

…And Echidne.

…And Shakes.

…And Sara.

They Pull Me Back In

Having been admonished by several friends to stop wasting mental energy on such silliness, I’ve been trying desperately to avoid this situation. It hasn’t been easy, let me tell you. But I’m only human, and if you think I can stay away from quoting this follow-up, you’re probably nutty enough to think that it’s plausible that Jose Padilla (who was, you’ll remember, kept in solitary confinement) was being tortured to keep him from sending secret messages, possibly by playing the Judas Priest albums he stashes under his bed backwards:

He was on camera. In any case, quite aside from whether people have signals, if he could see, he could try to find people to communicate with. With the goggles on, he doesn’t know where he is or if any outsiders are in a position to see him. If he could see, he might at one point spot someone and — forget the code — yell out something… which we would all now be talking about.

My only point here — and mock me all you want, it doesn’t change it — is that it is at least possible that there was some reason to blindfold him that wasn’t about just trying to hurt or pressure him. The people who are saying it is impossible that there could be any other reason are the ones hanging on to a fiction. I’ve met my burden here. You’re just holding your fingers in your ears and screaming.

He could…try to find people to communicate with! The horror! (What he would yell and how this could damage national security, needless to say, go unexplained.) I’d also suggest that if Al Qaeda has a plan that requires videotape featuring precisely the right passage being leaked so that a prisoner in solitary confinement can communicate messages with his eyes, I think they need a new plan. Call me crazy, but I can’t say this scares me enough to throw the United States Constitution, the Magna Carta, and the rule of law itself under the bus. What I really like, though, is the “met my burden” line, so appropriate for the age of Yoo. (“Why hasn’t this American citizen been given a trial after being tortured for a year?” “Your honor, a trial is simply impossible. It cannot be proven to an absolute certainty that he wouldn’t use the positioning of his shackled feet to communicate messages to a race of all-powerful space aliens, informing them that it’s safe to devour our men and clothe our women in slutty high-cut Gap sweaters, where they will have no choice but to engage in objectively pro-Islamofascist breastblogging. We’ve met our burden.”)

And now, the punchline:

I don’t think you’re stupid. I think you’re a hardcore ideologue, so committed to your positions that you are willing to be dishonest.

Wow. If she could say that in this context, she’s probably the kind of person who would, with a blissful lack of self-awareness, berate people about writing long posts about substantive political issues while she can fill up screens at a time discussing American Idol and Project Runway. Oh, wait…

[Note: Mickey Kaus, Ralph Nader, and Derek Jeter were not mentioned in the making of this post.]

The Court and De-Segregation

A quick follow-up to yesterday’s post:

• Things do not, alas, look good for the de-segregation side in yesterday’s cases. With Alito replacing O’Connor, the only chance was Kennedy, who was extremely hostile, although Lithwick thinks that he’ll try to split the baby for future cases: “He will add that he looks forward to some future hypothetical case in which some school district somehow remedies racial imbalances without accounting for race.”
• I would say that Patterico has climbed Originalism’s Ladder, except that not surprisingly he can’t be bothered to make a constitutional argument at all. I actually think that Publius is being too generous to such arguments when he says that “I suspect few of them thought the new amendment banned affirmative action-type preferences that disadvantaged white people because respectable opinion in 1868 wouldn’t have even conceived of such policies.” The Freedman’s Bureau, for example, seems to me a classic race-conscious remedy. So, really, I think affirmative action is like Brown: if originalism has any connection to concrete historical meanings, there is no originalist justification for striking the programs down. (Those interested in the nitty-gritty should see Michael Klarman‘s definitive takedown of claims that Brown can plausibly be defended in originalist terms.) And if all originalism means is that principles must be applied at a high level of abstraction, I’m not sure why we can ignore 19th century conceptions of education and distinctions between social and civil rights, but we have to remain bound to 19th century conceptions of “commerce.” To the extent that originalism has any content at all, the choice is between Brown and originalism; myself, I’m going with the former. But once you’ve reduced originalism to these kinds of broad abstraction, there’s simply no good reason to treat racial classifications used to ossify apartheid and racial classifications used to dismantle segregation as being equivalent. It is, regrettably, virtually impossible to remedy past segregation without being conscious of race, and I see no reason why the Seattle and Louisville program’s aren’t “reasonable.”