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Projection In Constitutional Interpretation

[ 0 ] April 25, 2007 |

Ruth Marcus on Carhart II:

Second, the Father Court Knows Best tone of Anthony Kennedy’s majority opinion. “Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” Kennedy intoned. This is one of those sentences about women’s essential natures that are invariably followed by an explanation of why the right at stake needs to be limited. For the woman’s own good, of course.

Kennedy continues: “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” No reliable data? No problem!

And I thought women were the ones who were supposed to be bad at science.

Kennedy’s opinion doesn’t merely rely on anachronistic gender stereotypes to defend an otherwise arbitrary law; his opinion consistently reflects the assumptions about defective reasoning and decision-making ability that he erroneously attributes to women. I would suggest he get his own house in order before making demeaning generalizations about an entire gender.

Hogging: Second Round Edition

[ 0 ] April 25, 2007 |

Time for a preview of the Western Conference’s second round (and since I was 8-0 in the first round, you can take these straight to the bank.) One’s enthusiasm is always slightly diminished when one’s primary rooting interest, which looked like a serious contender at the beginning of the year, is hopelessly outclassed in the first round. (They really did leave everything on the ice in Game 6, and it was still only because of Kiprusoff that it was even close.) Bard and Michael, who may be linked or appended later, have no (or only half–sorry about Michael’s angry Penguins. Bring back the scarf!) But if one can’t get over heartbreak, one really shouldn’t be a Flames or Expos fan. Onward:

Detroit (1) v. San Jose (5)
This one should be great. In evaluating the Wings , one faces the difficult dilemma: were they really great, or the Flames just really abysmal? A little of both, I guess, but there really is a huge difference between this Wings team and ’04. They’re tough, relentless, gutty, and still have a deep offense, plus Hasek looks healthy. I liked the Sharks more before the season, and you obviously have to love their top-line scoring. They could certainly win. And yet–at times this season they reminded me of the Flames at a higher level of accomplishment, a very good team that should be better. I think the difference will be at the blueline. The Sharks are thin–I still think Hannan is enromously overrated–and not only do the Wings have Lidstrom but Schneider and (amazingly) Chelios played wonderfully in the first round. I wouldn’t bet on the old guys surviving a war with Anaheim, but they’ll win this round. WINGS IN 7.

Anaheim (2) v. Vancouver (3).
A similar thing here: do I admit that I was wrong about Turco, or is the Canucks’ offense is really shitty? Again, a little from column A…anyway, if one wanted to be optimistic about the ‘nucks they could be compared to the ’04 Flames or ’03 Ducks–well coached, underrated defense, ace goaltender. But as of now they don’t have a Kariya or Ignila–the Sedins are good but not that good, and Naslund had that ability but hasn’t actually done it for two years. And the Ducks present the kind of challenge that the Ducks and Flames underdogs avoided–a similar but clearly better team. I don’t think there’s any precedent for a team having arguably the league’s two best defensemen, one a burner one a rock, in peak form at the same time. (The Devils were close, but I think by the time Niedermayer fully matured Stevens had slipped quite a bit.) I hate to say this, because I hate Burke, but as long as the two are healthy I think they’re by far the best team in the NHL, and they’ll win this one easily–Luongo isn’t a huge edge over Giguere, and the Ducks are also better offensively and tougher. DUCKS IN 5.

As for the East, because perfection is boring I’ll pick the Rangers in a 7 game upset–for some reason I think the Sabres are a year away, although they’re very good (and in retrospect trading Lydman instead of Warrener was a huge blow for the Flames.) I’ll also take the Senators in 6 in what will be a definitive series for them; I think the Devils, which no longer have an A defense, will have similar problems to the ones they had against Carolina last year.

…Berube’s hogging is here, complete with some valuable historical information about the guy who played pervo stay-at-home defenseman Moe Wanchuk. (“What did ya shay to him, Reg?”) Hopefully in the next round we’ll get more data on Billy Charles-boys, from Moose Jaw, Sakatchewan…

Memo To Camille Paglia

[ 0 ] April 25, 2007 |

Please shut up. Nobody cares. No rational person could believe the fact that creepy losers don’t have an unlimited supply of sexual partners is some sort of indictment of feminism. And even Maureen Dowd seems to have stopped short of applying this line of reasoning to the VT shootings.

At this point, it seems worth returning to the Editors’ analysis of Paglia’s inexplicable return to Salon:

Points at which she demonstrates her ignorance of the difference between being interesting and being on a job interview: 3 (plugging her unreadable piece-of-shit book; then naming both publishers; finally, celebrating her ghastly old Salon column – which was, oh by the way, THE WORST THING EVER – with the air of Napoleon returning to Paris.)

Episodes of egregious self-aggrandizement: 1 (1940-present)

Moments of unintentional comedy: 1 (complaining that the blogosphere is “numbingly predictable and its prose too often slapdash, fragmentary or drearily prolix,” and then yammering on for another 50,000 words about how geocaching is the Promethean spectacle of Dionysian abandon on a field of mythic American post-feminist manhood and how Madonna has succeeded where Spinoza failed, or whatever.)


The Truth About Celebrity Politics

[ 0 ] April 25, 2007 |

Steve nails it. For some reason, the Politics of Resentment wing of the Bush-dead-enders club seems to think that poking holes in the arguments of celebrities is some sort of major coup. (Glenn Reynolds has written at least 6 posts about Sheryl Crow this week.) What they don’t seem to realize is that the only people who give a rat’s ass what Rosie O’Donnell or Sheryl Crow or Sean Penn have to say about anything are conservatives. You’re really not sticking it to anybody; you’re just demonstrating that you’re incapable of engaging with serious arguments. (Which, if you’re still an uncritical defender of the Iraq War at this late date, pretty much goes without saying.)

A Pox On the House of False Equivalences

[ 0 ] April 24, 2007 |

Karen Tumulty has an account of Carhart II that fits squarely within the extremely annoying pox-on-all-their-houses genre endemic to media coverage of the subject. First, she has to claim that both sides are being dishonest in the D&X debate. The anti-choice lobby is criticized because the distinction between methods at the same stage of gestation is completely arbitrary; in other words, their position is genuinely incoherent and unprincipled, and the issue is purely a ginned-up political tactic. Pro-choicers (although not any of their specific statements) meanwhile, are criticized 1)for making statements about the relative rarity of the procedure that are in fact accurate, and 2)for claiming that the procedure is used for medical reasons although “there are alternative ways to perform the abortion safely, though perhaps not as safely as when intact D&E is used.” Uh, what? Since when does using a procedure that reduces medical risk not count as a medical decision? If a doctor chose to prescribe an anti-cholesterol medication with the same positive effects but less risk of producing heart attacks, this wouldn’t count as a medical judgment? This is just a bizarre claim. And it’s unclear why women should be burdened with any degree of greater health risks at all given that the two procedures in question are morally indistinguishable.

In addition to this blaming-both-sides-regardless-of-the-facts, which seems to be a contractual obligation for this kind of article, she also makes the strange claim that despite further watering down of Casey “I don’t expect the court decision this week to have many larger implications.” She explains:

The fact is, where the two sides of the issue are at war over abortion and always will be, most Americans long ago decided what they think about it. They want abortion to be legal, but they don’t want it to be easy. And their qualms about it grow as a pregnancy progresses. As with everything else about this debate, the absolutes will always give way to the individual.

This is just a non-sequitur. The fact that public opinion is relatively stable does not mean that the statutory obstacles put in front of (some classes) of women will remain stable. Public opinion didn’t change much after Webster or Casey, but the number of regulations increased a great deal. Most of these regulations, moreover, have nothing to do with the stage of pregnancy at which an abortion is contained (and indeed these centrist regulations make later abortions more likely.) When legislation is used to close abortion clinics, for example, those clinics remain just as closed for first-trimester abortions. The fact that the Supreme Court has assumed that women are irrational is not only appalling in itself but makes virtually any obstacle short of a ban defensible. And finally, one thing these regulatory regimes do not do is “give way” to the “individual.” Their effect is the opposite: to permit reliable access to safe abortions for affluent urban women irrespective of the circumstances, and to make it more difficult for poor rural women to obtain abortions irrespective of the circumstances. The law is simply too crude an instrument to make these kinds of subtle moral distinctions. If you want individual circumstances taken into account, the solution is the “extreme” pro-choice position of leaving decisions about abortions between a woman and her doctor. As Ann says, “letting individuals make personal decisions about abortion is not the “middle ground.” That’s a flat-out pro-choice position.”

A New Voice Enters the Vlogopshere

[ 0 ] April 24, 2007 |

I think she’ll go far!

And Every Time You Buy A Copy, Ann Althouse Cries

[ 0 ] April 23, 2007 |

Rebecca Traister interviews Jessica Valenti, who discusses her new book Full Frontal Feminism (available at fine booksellers everywhere!)

What It Means to be A "Pro-Life" Republican

[ 0 ] April 23, 2007 |

The federal GOP’s social and economic model Mississippi, as some of you know, is one of the more than 20 states with latent abortion bans that would come into effect if Roe v. Wade was overturned. (Although, of course, as Ben Wittes points out, going from abortion being legal in all 50 states to being banned in 15-25 states and more heavily regulated in many of the other states would actually be better for reproductive freedom because…I’m not going to lie to you Marge. Well, goodbye!) And should the Court decline to overturn Roe explicitly, it has also been at the forefront of legislation instituting arbitrary regulations used to harass abortion clinics until they close. Via Barbara O’Brien, however, after fetuses become children are born the state’s interest in them seems to wane somewhat. How did the “pro-life” Mississippi GOP respond to increases in infant mortality? I think you can guess:

In 2004, Gov. Haley Barbour came to office promising not to raise taxes and to cut Medicaid. Face-to-face meetings were required for annual re-enrollment in Medicaid and CHIP, the children’s health insurance program; locations and hours for enrollment changed, and documentation requirements became more stringent.

As a result, the number of non-elderly people, mainly children, covered by the Medicaid and CHIP programs declined by 54,000 in the 2005 and 2006 fiscal years. According to the Mississippi Health Advocacy Program in Jackson, some eligible pregnant women were deterred by the new procedures from enrolling.

One former Medicaid official, Maria Morris, who resigned last year as head of an office that informed the public about eligibility, said that under the Barbour administration, her program was severely curtailed.

“The philosophy was to reduce the rolls and our activities were contrary to that policy,” she said.

Mississippi’s Medicaid director, Dr. Robert L. Robinson, said in a written response that suggesting any correlation between the decline in Medicaid enrollment and infant mortality was “pure conjecture.”

Dr. Robinson said that the new procedures eliminated unqualified recipients. With 95 enrollment sites available, he said, no one should have had difficulty signing up.

As to Ms. Morris’s charge that information efforts had been curbed, Dr. Robinson said that because of the frequent turnover of Medicaid directors — he is the sixth since 2000 — “our unified outreach program was interrupted.” He said it has now resumed.

The state Health Department has cut back its system of clinics, in part because of budget shortfalls and a shortage of nurses. Some clinics that used to be open several days a week are now open once a week and some offer no prenatal care.

The department has also suffered management turmoil and reductions in field staff, problems so severe that the state Legislature recently voted to replace the director.

Oleta Fitzgerald, southern regional director for the Children’s Defense Fund, said: “When you see drops in the welfare rolls, when you see drops in Medicaid and children’s insurance, you see a recipe for disaster. Somebody’s not eating, somebody’s not going to the doctor and unborn children suffer.”

Providing further evidence for Barney Frank’s dictum that for Republicans life begins at conception and ends at birth.

(Also at TAPPED.)


[ 0 ] April 22, 2007 |

Ugh. At least it could have been a quick execution, not an ugly 2 overtime job. It would have been a temporary stay with a hearing in front of Scalia on Tuesday anyway; Kiprusoff really deserves a better team in front of him (and coaching staff) than this.

The only good thing is that if Vancouver wins tomorrow I’ll put up a rare 8-0 in my first round predictions, which is better than certain English professors or New Republic writers I could name…

Kennedy’s As-Applied Maze

[ 0 ] April 22, 2007 |

Not surprisingly–given that it’s charged with the task of defending a law that is indefensible under current doctrine–there are many bad elements to Kennedy’s opinion besides its egregious sexism and acceptance of straightforward factual errors. Another weakness is the bizarre illogic of Kennedy’s claim that an “as-applied” challenge to the statute would still be viable. Ginsburg’s dissent identifies the obvious problem:

If there is anything at all redemptive to be said of today’s opinion, it is that the Court is not willing to foreclose entirely a constitutional challenge to the Act… But the Court offers no clue on what a “proper” lawsuit might look like. Nor does the Court explain why the injunctions ordered by the District Courts should not remain in place, trimmed only to exclude instances in which another procedure would safeguard a woman’s health at least equally well. Surely the Court cannot mean that no suit may be brought until a woman’s health is immediately jeopardized by the ban on intact D&E. A woman “suffer[ing] from medical complications,” ante, at 38, needs access to the medical procedure at once and cannot wait for the judicial process to unfold.

The Court appears, then, to contemplate another lawsuit by the initiators of the instant actions. In such a second round, the Court suggests, the challengers could succeed upon demonstrating that “in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used.” One may anticipate that such a preenforcement challenge will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.


The Court’s allowance only of an “as-applied challenge in a discrete case,” jeopardizes women’s health and places doctors in an untenable position. Even if courts were able to carve-out exceptions through piecemeal litigation for “discrete and well-defined instances,” women whose circumstances have not been anticipated by prior litigation could well be left unprotected. In treating those women, physicians would risk criminal prosecution, conviction, and imprisonment if they exercise their best judgment as to the safest medical procedure for their patients. The Court is thus gravely mistaken to conclude that narrow as-applied challenges are “the proper manner to protect the health of the woman.”

Ginsburg is obviously correct. Clearly, Kennedy cannot be claiming that an “as-applied” challenge would have to start when a doctor is about to begin the surgery and defines a “discrete” circumstance; the judicial process cannot operate that quickly. If the “as-applied” challenge doesn’t mean that, then this litigation would seem as good as any unless the point is to claim that in any situation short of a woman who immediately needs the surgery the suit is insufficiently “well defined” and “discrete.” The correct application of Casey is to tell Congress to come back if it actually obtains serious evidence that the procedure is never necessary, not to put a (nearly impossible) burden of proof on doctors. Waiting for an “as-applied” challenge makes sense in a case where the status quo can be frozen through a stay, but biology makes it completely inappropriate for the abortion context.

Like David Garrow I would like to see doctors perform the procedure when it better protects a woman’s health and go to court to defend their rights. But I can also understand a doctor’s reluctance to do so. First, the doctor would have to hope for a favorable application of a doctrine that is a complete shambles and reflects unremitting hostility towards women and doctors who perform abortions, and can easily be interpreted to make any plausible challenge inadequate. And in addition, doctors may also be aware that a highly politicized Department of Justice will be in charge of enforcing the law. As long as this case remains good law, a chilling effect is inevitable unless doctors are saints.

Appeasing the Unappeasable

[ 0 ] April 22, 2007 |

I don’t really agree with the take of Garance and Ezra on Maureen Dowd’s abjectly horrible column yesterday. The error they’re making, I think, it to assume that these charges have some sort of objective merit to someone, or that there’s some way of avoiding having junior high narratives being developed about you. Consider what similar advice given to Al Gore would look like (and there are many people who blamed Gore for running a horrible, horrible campaign and not adapting to the media.) He wouldn’t be able to wear “earth tone” suits, or casual jackets, or Armani suits, or work clothes…actually, I’m not sure what he could wear. He couldn’t discuss past political achievements because the media would distort them and make them look arrogant. He can’t pass on things a newspaper told him about his friend’s novel because it might not turn out to be fully true. He can’t pay a feminist consultant. And on and on and on. And if he had done all of these things, Dowd, Rich, Connolly, et al. still would have just made stuff up out of whole cloth, as they in fact did. And it’s the same thing with Kerry. If he engages in his actual hobbies, he’s an upper class twit. If he does anything else, he’s a phony. If he talks about NASCAR, Dowd will make him into a phony by lying about what he said. I assume the unwinnable choices and double standards facing Clinton are clear enough that going into detail would be belaboring the obvious.

In other words, I see no benefit to Edwards trying to appease this crowd. If he got a cheap- looking haircut, he would be attacked for that. If he tried to quietly get a mid-price haircut, he would be attacked as a flip-flopper who would really prefer to get expensive haircuts but is being a pandering phony. And then they will attack his suits, and his house, and his teeth, and his previous job, and his decision to betray his wife by staying in the race although she has cancer etc. etc. etc. Precisely because these narratives are 100% vacuous bullshit, there’s no way of avoiding them. If you want to read political significance into ordinary personality traits, a Dowd or a Givhan or anyone else who’s won a Pulitzer for degrading our political discourse will find something. The best strategy is to ignore them, and if they must be engaged the goal should be to point out that they’re clowns who have no business working on major newspapers. Maureen Dowd will be spending the next two years engaging in catty, sometimes dishonest gossip about Democratic candidates, and this will be true no matter what they do. Trying to change your behavior to accommodate this is an inherently futile enterprise.

UPDATE: Since a couple of commenters seem to have misunderstood me, I should clarify that by “ignore” I mean that Democratic candidates should not attempt to change their campaigns in response to these silly narratives; as the Gore campaign demonstrates, this just makes things worse. If the response is to undermine the idiots who make these arguments, I repeat that I support this entirely. See also Matt on how these personality tautologies are part of a larger trap that inexorably tilts towards right-wing outcomes.

Conservative Self-Parody Watch

[ 0 ] April 22, 2007 |

The mass murders at VT were caused by…evil professors! (Well, some of them are professors, some are people the wingnut in question thinks are professors because he’s an idiot.) However, the post seems not to try Cindy Sheehan and Hillary Clinton’s desire to cover up the murder of Vince Foster into the mix, so I can only give it a B+.