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Nixon’s Piano

[ 0 ] July 17, 2008 |

Jesse and David say most of what needs to be said about Bruce Bartlett’s op-ed, but it’s worth saying more about one specific point. The central problem with Bartlett’s argument is its triviality and irrelevance: it’s indisputable that in the immediate wake of the Civil War and for several decades afterward the Republican Party was better on civil rights, but since this this is widely known and says nothing about contemporary politics, who cares? Presumably recognizing that persuading African-Americans to vote for people who have been dead for decades and wouldn’t be Republicans if they were alive is not a viable approach for the GOP, Bartlett tries a more recent example and the tendentiousness becomes embarrassing:

Richard Nixon is said to have developed a “Southern strategy” of using racial code words like “law and order” to gain votes in the South. Yet he did more to desegregate southern schools than any president in history.

It’s true that, because the late 60s was the high water mark of strong anti-desegregation opinions in the federal courts (led by the precedents created by the Warren Court that Nixon campaigned against) and there were a lot of holdover pro-civil rights lawyers in the DOJ, that a significant amount of desegregation took place in Nixon’s initial years in office. To claim that Nixon was responsible for this desegregation, however, requires evidence that he supported these policies and attempted to continue them. Needless to say, nothing of the sort is true. (As the fact that he appointed William Rehnquist and unsuccessfully nominated two Southern judges with segregationist histories to the Supreme Court indicates.)

As Rick Perlstein notes in Nixonland, the Nixon administration broke with previous administrations and started filing briefs against desegregation plans. Nixon’s reaction to the Swann decision (p. 604) lays out the basic strategy: talk about how the Courts have tied your hands in public, peel off Southern Democrats, and then appoint reactionary judges who will stop applying Brown aggressively.

And, of course, when Nixon got his appointments on the Supreme Court, this is what happened. In two landmark decisions with Nixon’s appointees providing 4 of the 5 votes, the Supreme Court effectively held that school systems could be separate and unequal as long as this was accomplished through tax policy and and the arbitrary drawing of district boundaries rather than through direct pupil assignment. To give Nixon credit for the desegregation policies he opposed is grossly ahistorical nonsense.

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Ambiguity Is Not the Problem

[ 52 ] July 17, 2008 |

Dahlia Lithwick on the new War Powers Commission and the new FISA revisions:

Our war-powers problems lie not so much in the failure of checks and balances, but in the fact that Congress is invariably comfortable opposing wars only in hindsight. This might explain the fact that Congress’ popularity ratings dipped into the single digits last week. It doesn’t change the fact that you can’t amend a statute that tried to get Congress to consult, with another statute that tries to get Congress to consult more. In a statement last week, even Warren Christopher conceded that “it comes down to questions of congressional will … to resist funding or to limit it. …. [T]here is nothing we can do by statute that will change that.”

This leads to the second mistaken premise behind the War Powers Commission: Baker and Christopher’s bipartisan belief that the core failure of the War Powers Act lies in its poorly drafted, ambiguous language. Consider last week’s Senate vote to amend the Foreign Intelligence Surveillance Act—the 1978 wiretapping law that made one guilty of a felony if one “engages in electronic surveillance under color of law except as authorized by statute.” That language is perfectly clear and unambiguous. Indeed, it’s so clear and unambiguous that last week a federal judge had no trouble determining that President Bush had violated it.

And yet last week the Senate voted to clarify FISA again. So, now the same electronic surveillance that was illegal when the president did it six years ago will be really, really illegal. Except when it’s not. The hope appears to be that this time, the president will abide by the law because it’s clearly written. But the problem with FISA was never that it was poorly or ambiguously drafted. The problem was with an overreaching executive that disregards crystal-clear, and also ambiguous, laws in about equal measure. I am hardly holding up the War Powers Act as a model of perfect clarity. But it already had consultation and reporting provisions, and yet nobody saw fit to consult or report. So, let’s stop blaming ambiguous torture, wiretapping, and war-declaring laws for our current situation. Let’s call executive overreaching what it is.

And needless to say, the circumstances of the passage of the new FISA legislation and the fact that Congress gave away the show makes is pretty clear that tougher oversight to ensure that the White House is hewing to the new, looser guidelines is unlikely to be forthcoming.

Posner and Vermeule make a similar point in their recent book, arguing all-too-convincingly that attempts to strengthen congressional power versus the executive when anything that can be defined as war powers are concerned are highly unlikely to work. Since their normative claim that this is a good thing is far less persuasive, it’s a depressing read.

"Pro Life": It Means More Unwanted Pregnancies

[ 14 ] July 16, 2008 |

The Bush administration signs on to the idea that it’s an act of High Principle to get paid when you’re not willing to do your job, and it’s desirable for people to use their state-granted gatekeeping authority to obstruct women’s access to health care. Indeed, these things need to be protected by law, even if this involves ludicrously redefining various forms of birth control as “abortion.”

History’s Greatest Monsters

[ 6 ] July 16, 2008 |

Shorter Verbatim Some Clown At Chicago Boyz: “I suspect Obama will he a horrible president, somewhere on a continuum between Jimmy Carter and Robert Mugabe.”

In fairness, this guy is a bit of a wet, thinking that there’s merely a continuum between Mugabe and History’s Greatest Monster…

(Via Edroso.)

All That Is Solid Melts Into Air, Where It Consequently Tastes Like Michelob Ultra

[ 70 ] July 15, 2008 |

A Belgian/Brazillian producer of bad beer has purchased an American producer of vaguely beer-flavored alcoholic water. This has caused some conservatives to realize that there may be some contradiction between capitalism and the preservation of local tradition–how about that? Being not a conservative, I can’t really understand the concerns, although I do worry that this may lead even more store space devoted to Sellases and Beckeses and Labattses and less devoted to beer. (Seriously, this is one gigantic mountain of crap. Well, Boddington’s is OK, although when I feel like the genre I prefer Old Speckled Hen, if only for those cool coasters with the wolf in a suit. Oh, and if you’re ever in Western Canada and someone starts touting Kokanee, make a mental note to ignore any judgments about beer ever offered by said individual permanently.) Anyway, I think this makes it clear that nobody has to worry about the Budweiser recipe being altered; it fits right in…

A neighborhood in Queens was once the country’s leading consumer of Bud. I had never actually heard of Breezy Point before; they have bad taste in beer but a cool name.

…a commenter is correct to note that I missed Hoegaarden, which is pretty good. Another expert notes that the list may exclude some of their good small Belgian beers, which I assume is also true.

A Brief Note On the Latest Silly Season Controversy About Nothing

[ 150 ] July 15, 2008 |

I’m going to go even beyond where bean is and straight-up endorse the views of Edroso and the Editors. On the proposition that all satire requires extensive belaboring-the-obvious signaling lest some complete idiot misunderstand the point, I vote “no.” On the proposition that everything in a magazine (or movie or song or whatever) should be precisely calibrated so as to weigh its potential partisan impact, I vote “double hell no, you want to be like those NRO tools who decry the wrongthink in movie trailers and are only capable of enjoying “Clampdown” if they can convince themselves that it was really an endorsement of Reagan’s policies in El Salvador?”

Veep Random Notes

[ 72 ] July 14, 2008 |

Kathy G has an exhaustive roundup on potential running mates for Obama. I bascially agree with the rankings, if not all of the reasoning. A few points:

  • This adds further ammunition to my belief that Sebelius is the best choice. Of the top three, she’s the only one with significant executive experience, and the only woman. Edwards’s greater national experience cuts both ways; his performance on the previous ticket was underwhelming. With respect to Brown, I don’t think that having a Democratic governor in Ohio ends the problem with appointing a red-state Senator. Whether we would get another re-electable, progressive Democratic Senator in Ohio is questionable. I’d rather have Brown in the Senate unless he was clearly better than the alternatives, and I don’t think he is. Edwards offers similar strengths without the obvious downside.
  • This point about is important: “Evan Bayh is one of the biggest Democratic corporate ‘hos in the senate — he’s “fiscally conservative,” voted for the bankruptcy bill, is a DLC Dem all the way. He is literally one of the Wall Street Journal’s favorite Democrats.” Although it’s tempting to describe divisions within the Democratic caucus as falling along cultural lines, red-state Democrats tend to straightforward economic reactionaries. (Tim Roemer whining about not being made DNC chair although he voted for Bush’s tax cuts and against Clinton’s budget package is a classic example.)
  • Kathy’s claim that Lieberman may have cost Gore the election is, I think, a pretty clear pundit’s fallacy. I knew a lot of people how voted for Nader or flirted with the idea at the time, and I don’t recall Lieberman being a major issue for anybody, and nor am I aware of any contemporaneous evidence for the proposition. Moreover, selecting Lieberman was the only time period of the campaign in which Gore received generally positive press coverage, which has to at least balance whatever trivial loss of voters there were. On the other hand, Lieberman also suggests that picking running mates on the merits is important, as he certainly would have been a disaster in he job, especially had 9/11 happened.

Hell Exists on Earth? Yes. I Won’t Live In It.

[ 0 ] July 14, 2008 |

When you hear that the country’s most prominent op-ed page can feature the Feng Shui Princess of Georgetown describing a conversation between Mike Barnicle and Margaret Carlson, you know that the State of Perfect Complacent Vapidity has been achieved.

And what’s worse is that they weren’t even the first to get there.

Somerby: “Things have deteriorated to the point where staffers at People are mystified by the inanity of the political press corps.” Sad, but true.

Personnel and Precedent

[ 10 ] July 14, 2008 |

Reading Linda Greenhouse’s valedictory essay , Digby emphasizes this passage:

In five days on the witness stand, Judge Bork had a chance to explain himself fully, to describe and defend his view that the Constitution’s text and the intent of its 18th-century framers provided the only legitimate tools for constitutional interpretation. Through televised hearings that engaged the public to a rare degree, the debate became a national referendum on the modern course of constitutional law. Judge Bork’s constitutional vision, anchored in the past, was tested and found wanting, in contrast to the later declaration by Judge Anthony M. Kennedy, the successful nominee, that the Constitution’s framers had “made a covenant with the future.”

It has made a substantial difference during these last 21 years that Anthony Kennedy got the seat intended for Robert Bork. The invective aimed at Justice Kennedy from the right this year alone, for his majority opinions upholding the rights of the Guantánamo detainees and overturning the death penalty for child rapists — 5-to-4 decisions that would surely have found Judge Bork on the opposite side — is a measure of the lasting significance of what happened during that long-ago summer and fall.

Elsewhere in the dead tree edition, the paper identified three landmark cases; Casey was called “The Triumph of Precedent.” But was it, at least in the sense that precedent compelled justices to do something they would otherwise have been strongly opposed to? It’s far from clear. The three justice plurality in Casey reached pretty much the same conclusion you would expect reasonably moderate Rockefeller Republicans to reach: formally legal pre-viability abortion while states have wide latitude to pass silly regulations that make it harder for poor women to procure them. More importantly, had Bork been confirmed the Roe precedent would have been worth nothing. It was the defeat of Bork, rather than the pull of precedent, that explains Casey.

And for this reason, as I’ve said before, it’s unwise for progressives to get too complacent about Roe or other landmark liberal precedents. The upholding of Roe may seem inevitable in retrospect. but it wasn’t. Had Reagan nominated Bork and Scalia in reverse order, or Bush had gone with Ken Starr rather than Souter, Roe would have been overruled. It’s true that the Court rarely swims far outside the mainstream, but governing factions have a variety of interests and political priorities. In the Rehnquist Court, culturally moderate conservatives controlled the center. I would be unwise to assume that the same would be true of the Roberts Court after another Republican term or two.

The Bonds Question

[ 11 ] July 14, 2008 |

I was at Shea yesterday, which was great except for Pedro leaving the game early (although he was pitching 1-hit shutout ball with no stuff.) Between that and Alou unsurprisingly out for the year, it makes me a little sad (and makes me feel old) as the number of still-active players from the definitive team of my baseball fan existence continues to shrink. You have to think this is it for Alou, and the careers of Better Than Koufax Martinez and Floyd aren’t exactly looking robust right now.

Anyway, with the Expos playing Cinderallas and marginal prospects on the corners but back in contention, I guess this brings up the Barry Bonds question. At his subscription site, Bill James has made an extensive case against a team signing him in most circumstances:

Look, I like Barry Bonds. I don’t have to deal with him, but I was always on his side, and I still am. I don’t think he belongs in jail; I think he belongs in the Hall of Fame. Ten years ago, he was playing by the rules as they were enforced ten years ago. It seems self-righteous to me to say now that he was cheating.

But. . .it’s over.

The argument is primarily baseball related: basically, that once a player 1)starts getting hurt, and 2)produces value solely by hitting homers and drawing walks the chances of a complete collapse in his value have to be considered very high. (Perhaps this could be called the Jack Clark effect? Although I still wish he had showed up to the ’93 Expos…)

Is this right? It’s certainly plausible. I think there’s a tendency to rely to much on the Ruth analogy, although the 1935 Braves are certainly a powerful example (pretty good team signs still-high-OPS Ruth, Ruth collapses, team literally posts worse record than 1962 Mets.) Still, one can say something similar about Aaron and Mays, and the comparable players you can’t say that about (Williams, Mantle) retired without pressing the issue. None of those players peaked in their late 30s, but it’s reasonable between that and the circus he would create (especially when he didn’t go through spring training) you would want to pass. In the context of New York, I can understand if the Mets would prefer to make a play for Ibanez or Rivera or Bay. Still, if I’m the Devil Rays, and look at my athletic, good pitching-and-defense team notably lacking in the power core your main wildcard rivals have…I’d be pretty inclined to take the risk. Tom Tango summarized the discussion and disagrees with James.

9/11 Changed Nothing

[ 13 ] July 13, 2008 |

I wanted to think this was a joke. I really did. Alas. Still, there’s a sort of Zen perfection in the same paper that print Fred Hiatt’s pro-disastrous-war editorials and stable of reliably pro-disastrous war columnists returning us to the 2001 summer of “Gary Condidit.”

Graphical FISA

[ 1 ] July 12, 2008 |

A useful tool. (Via Sanchez.)

Bonus: Lanny Davis, a wanker for all seasons. (Davis: “The compromise bill would provide strict supervision by the special FISA Court.” Sanchez: “This is right, if by “strict supervision” you mean ‘checking whether Mike Mukasey can fill out a form correctly.'”) Anyway, when Lanny Davis is defending you it’s pretty much a dead certainty that you’re wrong; I hope he will be back to being an anti-Obama hack soon.

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