Author Page for Scott Lemieux

But This Defense of Lawless Partisanship Is Highly Nonpartisan!

“The five justices in the Bush v. Gore majority are thus the only judges involved in this election dispute who fall uniquely within the category that is most indicative of partisan justice: they made a decision that was consistent with their political preferences but inconsistent with precedent and inconsistent with what would have been predicted given their views in other cases. Moreover, their decision received no support from any judge with presumably different partisan loyalties.”

–Howard Gillman, The Votes That Counted (p.189.)

Al Gore apparently made some quips about the abject lawlessness of the 2000 Supreme Court on Leno. Ann Althouse, one of a tiny handful of legal scholars hackish enough to defend the indefensible with an article* that, as this excerpt suggests, is (with the exception of a good but not terribly important refutation of the claim that the Court should have denied the case under the “political questions” doctrine) a compendium of strawmen, evasions, and non-sequiturs, returns to the subject of Bush v. Gore. And…well, the term “Orwellian” seems grossly inadequate:

But, in any case, Scalia’s position in Bush v. Gore worked to extract judges from the election, as it pushed back the Florida Supreme Court, which thought it had the expertise to run things.

No really–she thinks that a case where a bare majority of the Supreme Court ended a recount being conducted under state law with an argument that was strikingly inconsistent with the previous doctrinal commitments of the justices, asserted that this newly-minted “principle” would not apply to subsequent cases, and then refused to apply the “principle” logically within the case itself (leaving in places recount results that if you–unlike the majority–take the alleged principle of the case seriously was just as illegal as the one the Court pre-emptively rejected) is…an example of judicial restraint! We’ve been through this before, but one more time:

• It wasn’t the Florida court which “which thought it had the expertise to run things.” Even leaving aside the fact that in our system the courts have the authority to apply statutes, resolve ambiguities, etc., it was the Florida legislature which thought the court had the relevant expertise. Section 102.168(8) of the election contest statute reads as follows: “The circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances.” [my emphasis] To argue that the Florida courts were arrogantly arrogating power that the legislature explicitly gave to them is beyond ludicrous. No other institution or body, consistent with Florida law, could have deployed their “expertise” to resolve the contested election. I am very skeptical that Rehnquist’s Article II argument is ever valid as long as Marbury remains good law, but if it’s ever applicable it certainly can’t be in a case where the legislature explicitly gives the courts wide discretion to resolve disputes with little in the way of direction or constraint.
• Underlying Althouse’s argument is her assumption that (as she puts it in her article) that the Florida court gave a “strained, result-oriented interpretation” of Florida law. First of all, it takes more than a “strained” interpretation for it to be legitimate for the Supreme Court to override a state interpretation of state law in a case that otherwise didn’t present a remotely serious federal question (and I have no idea what a straightforward application of Florida’s ambiguous, poorly constructed election statutes would look like.) But, more to the point, her assertion that the Florida Court was acting in a “results-oriented” manner is–to the extent that it has any non-tautological meaning–flatly erroneous. The court applied the same legal standard consistently although Gore (allegedly their favored litigant) lost 3 out of 5 cases. A more formalist statutory construction–which would have, for example, led to the exclusion of technically illegal military ballots that ended up being counted–may well have been more favorable to Gore if it were applied consistently.
• And, finally, such defenses of Bush v. Gore seem to be premised on a “two wrongs make a right” theory of constitutional law. I would be interested in some, ah, reasoned elaboration of the merits of this theory. (Even pragmatically, the defense fails unless you start with the assumption–as Scalia implicitly did in his egregious decision to stay the recount–that the presidency rightly belonged to Bush.) But to proceed from this premise to Althouse’s claim that Bush v. Gore was about judicial modesty…I think this is self-refuting.

As the fact that defenses of his conduct would have to become considerably more coherent to rise to the level of being specious suggests, Bush v. Gore will be a permanent disgrace on Antonin Scalia’s record–Gore’s mild ribbing is going to look tame. And rightly so.

*See Ann Althouse, “THE AUTHORITATIVE LAWSAYING POWER OF THE STATE SUPREME COURT AND THE UNITED STATES SUPREME COURT: CONFLICTS OF JUDICIAL ORTHODOXY IN THE BUSH-GORE LITIGATION,” 61 Maryland Law Review (2002.)

The Latest Attempt To Gut Anti-Discrimination Law

It’s generated very little discussion in light of the global warming case, but in some respects a more important case that came before the Supreme Court this week is Ledbetter v. Goodyear. I’ll have a longer piece about the case and the larger issues next week, but the dispute is about a clear-cut case of gender discrimination:

The case was brought to the court by a woman, Lilly M. Ledbetter, who worked for 19 years as a manager at a Goodyear Tire and Rubber plant in Gadsden, Ala. For years, Ms. Ledbetter was paid less than men at the same level, and by 1997, as the only female manager, she was earning less than the lowest-paid man in the department. In 1998, after an undesired transfer, she retired and filed a discrimination charge against the company with the Equal Employment Opportunity Commission.

Seems straightforward, right? Except that there’s a procedural question about the statute of limitations imposed by the Civil Rights Act. Logically enough, according to the plaintiff, the EEOC, and several lower courts every time an employee receives a lower paycheck because of rank discrimination in fact represents ongoing discrimination. But to according to 11CA and (natch) the Bush administration, only the initial act of intentional discrimination counts as discrimination, and ongoing pay inequities created by this discrimination don’t count. This case is yet another illustration of how conservative civil rights retrenchment works: you don’t repeal or roll back popular civil rights legislation, which would attract visibility, but rather you can use executive agencies and the court to quietly create various procedural hurdles that make almost impossible to actually pursue a suit and provide evidence of discrimination. And this is an area where who is appointed to federal courts makes a huge difference, although it’s rarely discussed during confirmation hearings.

It’s not clear how the case will come out. The oral argument suggests, not surprisingly, that Roberts will almost certainly vote to uphold 11CA, and Alito is if anything an even more slavish pro-business hack. An interesting swing vote is Scalia, who’s more a philosophical conservative than just pro-business; his jurisprudence often, but not always, meshes with business interests, and he may believe that the language of the statute constrains him. Kennedy is also a tough call. I may revise my judgment when I read the transcripts more carefully, but I’m cautiously optimistic as of now.

There *Is* A Link Between Abortion And Breast Cancer!

Apparently RU-486 prevents the formation of breast tumors in mice. I’m sure all of the members of the forced pregnancy lobby who support criminalization out of a alleged desire to protect women’s health will be revising their positions about the availability of the drug accordingly…

Another thing worth mentioning about the increasing efficacy of abortion drugs makes the usual American anti-choice position that abortion should be illegal but women who obtain them shouldn’t face any legal sanctions (which, therefore, makes self-abortions legal) even more incoherent than it is on its face. There obviously isn’t the slightest moral or ethical difference between a self-abortion or paying someone to perform one. And with information being much easier to disseminate and improvements in technology, criminalization would have even less effect on overall abortion rates than it did before 1967 (although women would still bear some potentially severe health risks for no good reason.) And because some women would have much greater access to black markets in abortion pills than others, the class inequities in the risks women face would be further exacerbated.

…Ann has much more.

Quiz Time #2

Try to tell the difference between Althouse and Altmouse. No fair peeking at the top before you scroll down!

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Memory Lane With George Will

As we ponder the most recent example of hackery from George Will, let’s recall my personal favorite. That would have to be when he claimed that judicial filibusters were “unconstitutional” during the Estrada nomination controversy–after having argued the (correct) position that the Senate can conduct votes by whatever procedures it chooses while Clinton was in the White House. Hacktacular!

…more amusing commentary from Dave Weigel: “We went from “George Bush is a regular guy you can have a beer with” to “I’m George Bush, bitch!” in pretty short order.”

The Question of Clark

As readers of this blog know, when it comes to the 2008 primary I’m a strong Gore supporter. But I can see cases for two of the major candidates who are currently being discussed (leaving potential runs by various lesser-known governors out of it for now.) Edwards is interesting and has some advantages, but for me the pro-war vote (not because I think he would have initiated the war as President, but because it make it much more difficult to take advantage of what should be an albatross for the Republican candidate) and his lack of executive experience are serious drawbacks. The other interesting one is Wes Clark. About his 2004 primary campaign, I think Ezra is right. I think a good argument could be made that Clark was the best candidate on paper. The Great Unanswered Question of the 2004 campaign is whether Clark’s abysmal performance as a candidate was exclusively the product of the fact that he was greener than the felt on a new pool table, or because he just lacks the skills. I think this question is, as of now, unanswerable. If he runs again, we’ll find out.

As of now, though, I would have to rank him behind Gore. I’m inclined to think Gore would be a better President on the merits, and he’s literally electable. Also, while I’m not sure that much can be inferred from Clark’s campaigning per se I do think that the choice to enter the race so late itself raises serious questions about his acumen as a candidate; it’s not clear what the hell he was doing. I’m open-minded, but as of now I’m skeptical about his candidacy.

Big Media Lindsay

Speaking of Majikthise, I note that she wrote the cover story in this week’s New York Press.

Alcohol Reviews

I’ve been meaning to blog about this for a while, but acting on a tip from Lindsay and A White Bear I was sent a free bottle of the 2004 Amelie by the Mankas Hills Vineyards. (It didn’t come with any obligation to write about it.) I also decided to pick up a bottle of the 2002 Contado Cab, for which I paid full retail (New Yorkers can get ‘em both at Sherry-Lehman.) I lack the chops to be wine critic–trying to communicate the quality of wine immediately makes me think “OK? Now, stick your nose in it. Don’t be shy, really get your nose in there. Mmm… a little citrus… maybe some strawberry…and, oh, there’s just like the faintest soupçon of like asparagus and just a flutter of a, like a, nutty Edam cheese…are you chewing gum?” But I can say that both have become part of my wine rotation. I prefer the cab slightly to the Amelie (which is a cab/merlot blend), but perhaps by less of a margin than I was expecting. I rarely taste purported hints of mocha in a wine, but in the Amelie I did; it was quite complex for the genre. I had a half bottle tonight with a ziti a la bolognese and a spinach/chick pea salad, and it complemented it very well. When it comes to west coast wines I try cabs almost exclusively, and I thought the complex but very fruity straight cab measured up well to others in its price range. I would definitely recommend either if you like the varietals in question–it’s good wine for the price.

In addition, the Times has a good article about American-made rye (as opposed to Canadian) whiskey today. I’ve only sampled two–the Van Winkle is terrific, and the Rittenhouse is a bargain; and thanks to a friend with a PhD in mixology I can testify that it makes an excellent Manhattan.

Today In Aesthetic Stalinism

When I’ve posted about Orson Scott Card, I am often assured that despite of his recent tendency to express nutty political ideas (and film reviews) in terrible prose he was once a gifted novelist. I cannot judge this claim, but it is now clear that the only viable version of this claim requires the word “once”. Really, one can make this point by picking almost any sequence from his new “novel” at random, but here’s my candidate:

Princeton University was just what Reuben expected it to be — hostile to everything he valued, smug and superior and utterly closed-minded. In fact, exactly what they thought the military was.

He kept thinking, the first couple of semesters, that maybe his attitude toward them was just as short-sighted and bigoted and wrong as theirs was of him. But in class after class, seminar after seminar, he learned that far too many students were determined to remain ignorant of any real-world data that didn’t fit their preconceived notions. And even those who tried to remain genuinely open-minded simply did not realize the magnitude of the lies they had been told about history, about values, about religion, about everything. So they took the facts of history and averaged them with the dogmas of the leftist university professors and thought that the truth lay somewhere in the middle.

Well as far as Reuben could tell, the middle they found was still far from any useful information about the real world.

Am I like them, just a bigot learning only what fits my worldview? That’s what he kept asking himself. But finally he reached the conclusion: No, he was not. He faced every piece of information as it came. He questioned his own assumptions whenever the information seemed to violate it. Above all, he changed his mind — and often. Sometimes only by increments; sometimes completely. Heroes he had once admired — Douglas MacArthur, for instance — he now regarded with something akin to horror: How could a commander be so vain, with so little justification for it? Others that he had disdained — that great clerk, Eisenhower, or that woeful incompetent, Burnside — he had learned to appreciate for their considerable virtues.

And now he knew that this was much of what the Army had sent him here to learn. Yes, a doctorate in history would be useful. But he was really getting a doctorate in self-doubt and skepticism, a Ph.D. in the rhetoric and beliefs of the insane Left. He would be able to sit in a room with a far-left Senator and hear it all with a straight face, without having to argue any points, and with complete comprehension of everything he was saying and everything he meant by it.

In other words, he was being embedded with the enemy as surely as when he was on a deep Special Ops assignment inside a foreign country that did not (officially at least) know that he was there.

[...]

Thank heaven he could go home to Cecily every day. She was his reality check. Unlike the ersatz Left of the university, Cessy was a genuine old-fashioned liberal, a Democrat of the tradition that reached its peak with Truman and blew its last trumpet with Moynihan.

The “no, he was not” is a nice touch.

Anyway, it’s not surprising that this would win the endorsement of Glenn Reynolds. Recently, Reynolds quoted a passage from Neal “Into the Nipples” Stephenson, which consisted of two “characters” expressing trite points about hypocrisy by reading B+ high school essays at each other. According to Reynolds, not only does this demonstrate that “Stephenson’s position as a moral thinker is underrated” but–I swear I’m not making this up–he was able to “slip that stuff in without being overbearing.” Yeah, if you find Neal Stepehnson subtle then Card’s recent novel should be just right.

When "None of the Above" Is The Right Choice

Nancy Pelosi has, thankfully, chosen to reject both Hastings and Harman, the obviously correct option. The evidence against Hastings is pretty compelling, and taking a bribe as a federal judge isn’t the typically vacuous “character” issue; it suggests a lack of ethics and judgment in ways that can affect policy. Moreover, the political hit would have been immense, and it’s not as if Hastings was so great on the merits it would be worth paying the price. Meanwhile, Matt is right that Hastings’s only virtue was not being Harman: “Hastings shook some dudes down for $150,000 and ruined three FBI investigations. Jane Harman, by contrast, supported an invasion of Iraq based on bogus intelligence that’s costs hundreds of billions of dollars and killed hundreds of thousands of people. Who do I have more doubts about?” Avoiding both of them was clearly the right call, and kudos to Pelosi for bucking the various caucus pressures and doing it.

Alas, it seems as if the oft-touted Rush Holt is out of the running. I don’t know much about any of the three viable candidates, but while it’s not literally true that they can’t be worse than the two who were passed over it seems like a safe assumption.

…UPDATE: As Matt Weiner points out in comments, I should note that Yglesias is just stipulating to a worst-case scenario; Hastings is almost certainly innocent of the charges of sabtoging FBI investigations.

Strike 73!

The Dead-EnderSphere’s latest attempt to gin up another Dan Rather story out of nothing at all has apparently gone the way of such classics as the “fake” Schiavo memo. Of course, as Jim Henley points out, even had this been something other than unsubstantiated state propaganda, it’s still all about evasion:

But beyond that, what’s the point? Let’s imagine for a minute that the mosque burning story was exaggerated or fabricated. Does that mean that three thousand bodies a month aren’t turning up at Baghdad’s morgues these days? Does it mean that Mohammed of Iraq the Model didn’t spend the weekend barricading his block against rievers? Does it mean that no Sunnis are being killed by Sadrist death squads? Does that mean we should think more highly of Baby Sadr? Does it mean no Shia are being butchered by Salafist bravos?

[...]

Unless these fellows with suspect surnames in the newspapers are making it all up and Iraq is really quite swell, then impeaching this or that specific report or reporter is a trivial pursuit. It doesn’t change the structure and trends. It’s fun to pretend that “a goodly portion of our success or failure in Iraq has ultimately to do with how we react in terms of either lending our support or leveling our criticisms against the campaign.” Among other things, it’s very self-flattering. It allows the sedentary hawk to feel good about himself, to imagine that, just by feeling the proper emotion, “I’m fighting too!”

It’s also utter bullshit. The real constraint on success or failure is the US governmenet’s capacity to achieve its political objectives in Iraq itself. The audience that matters is one the deadenders neither understand nor even like much. (Michael Novak gets this exactly and completely backward.) It gets its news from papers we can’t read, television and radio broadcasts we never hear and couldn’t translate, phone calls to and from people we’ll never meet and the direct experience of things we can only pray never to find on our curbs of a morning. Every thesis that does not recognize the primacy of a local situation we can neither completely know nor even successfully imagine is mere narcissism, every attempt to pretend that touching up some detail obliterates the big picture is folly.

Indeed.

The Death of South Park Republicanism and the Conservative Conscious

Shorter Ann Althouse: Mocking religion is bad. When it’s done in a mild form by a blogger Glenn Reynolds doesn’t like.

Elsewhere, Roy saves me the bother of dealing with the latest excretions of Pajamas Media’s resident foreign policy epxert, which several commenters have already brought up. I think this sentence says it all:

“So don’t expect the world’s liberal conscious to weigh in much on the latest poisoning of Alexander Litvinenko.”

Sure, one could point out that the media hasn’t ignored this at all, but the nice thing about inventing the “liberal conscious” is that it makes falsification all but impossible (especially if you don’t have access to the same acid that Hanson was on when he wrote the column.) But what really amuses me is the idea that it’s liberals who have been naive about Putin’s authoritarianism. Let’s turn to VDH’s most-admired political leader:

“I looked the man in the eye. I found him to be very straight forward and trustworthy and we had a very good dialogue.

“I was able to get a sense of his soul.

“He’s a man deeply committed to his country and the best interests of his country and I appreciate very much the frank dialogue and that’s the beginning of a very constructive relationship,” Mr Bush said.

I think Hanson needs to work on the “conservative conscious” first.