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Lawyers, Judges, and Money

[ 11 ] April 16, 2008 |

The recently retired Justice O’Connor recently spoke at Hunter College with Justice Breyer, and was asked by a student if there was a vote she regretted casting. After rejecting the student’s suggestion that she choose Bush v. Gore, O’Connor named a case in involving judicial campaigns. She didn’t mention it by name, but I assume she meant Republican Party of Minnesota v. White, which struck down a prohibition on judges announcing views about “disputed legal or political issues.” (“Good,” quipped Breyer, “I dissented in that case.”) Dorothy Samuels notes that she has also spoken out recently about campaign donations to judges and their potentially corrupting influence.

I don’t think that the First Amendment should be construed to prevent the reasonable regulation of donations in judicial elections. Despite attempts by a lot of conservatives to portray campaign finance as an easy First Amendment issue, it’s actually complex. Donating or spending money isn’t pure speech but a means to make speech more widespread. This remains a core First Amendment value, of course, but in the context of elections it also conflicts with the crucial democratic assumption that individuals with unequal resources should still be civic equals at election time. And the problem of donations is even more acute with judicial elections: legislators aren’t supposed to be impartial in crafting legislation, but one would think that judges are supposed to be impartial in enforcing it. Other liberal democracies with a commitment to free speech have managed to regulate campaign donations and spending without heading down the slippery slope to crushing political dissent.

White, which was a pure speech case, is a lot trickier; I would probably reluctantly join the court’s opinion. And the case does bring up a broader question; if judges aren’t allowed to state their views, why have elections at all? O’Connor actually identified the problem in her concurrence:

Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. In doing so the State has voluntarily taken on the risks to judicial bias described above. As a result, the State’s claim that it needs to significantly restrict judges’ speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.

I sometimes find it hard to fault the Supreme Court for requiring states to push the idea of electing judges further down its logical path.


Big Media Roy

[ 11 ] April 16, 2008 |

Hey, the Voice still does publish good writing occasionally!

…and Tom Tomorrow visuals!

The Centrist Assumption Fallacy

[ 8 ] April 15, 2008 |

Excellent point about the tendency to assume that because lots of people in their respective parties (or ex-parties as the case may be) hate McCain and Lieberman their positions must be centrist:

Joe Lieberman says Barack Obama’s “got some positions that are far to the left of me and I think mainstream America.” Andrew asks what Lieberman can mean by this. I assume Lieberman is referring to Obama’s overwhelmingly majoritarian position on Iraq. After all, it’s been the key conceit of “centrists” like McCain and Lieberman ever since 2002 that to be for war in Iraq but somewhat aloof from the Bush administration is the centrist position. After all, it’s the view adhered to be John McCain and Joe Lieberman and McCain and Lieberman are well known moderates so their views must be moderate ones and mainstream and anyone to their left is “far left.”

That’s the central conceit of McCainism and Liebermanism alike, and it’s important to both of them to just keep repeating over and over again. After all, if they stop saying it someone might notice that whether or not either or both of them hold centrist views on some issues, they’re the two most extreme hawks in the Senate at a time when 60+ percent of the population agrees with the orthodox liberal view that we need to lay down a marker for leaving Iraq.

A similar dynamic is often at work in the very successful “liberals believe in judicial activism, while conservatives believe in judicial restraint” scam. If the Supreme Court reached a different conclusion about the Constitution’s requirements than Robert Bork, it was therefore “countermajoritarian.” And this is true even if a Supreme Court decision is so overwhelmingly popular that post-Bork conservative nominees feel compelled to evade or give dishonest answers to questions about their positions opposing it.

Subjective Intent Isn’t the Issue

[ 0 ] April 15, 2008 |

One thing to say about this thread, which has won a coveted Belle Waring Award for Outstanding Achievement in the Field of Excellence in Trolldom, is that given the inevitable displays of racism we’re going to see as Obama runs for president we’re going to be seeing a lot more of one of the central arguments there. That is, the “you can’t say that anything is racist, including an experienced border state politician calling an adult African-American man “boy,” without unequivocal evidence of that person’s intent” argument. The beauty of this standard — which his trolls also used to defend George Allen — is that you can never prove racism because the knowledge in question is unknowable. How can you know to an absolute certainty what’s in David Duke’s mind? You can’t.

It’s essentially irrelevant anyway. It’s fair to use people’s statements to make inferences about intent in most cases, but more importantly the intent doesn’t matter; the comment is racist whatever was in Davis’s mind. Just as George Wallace’s ringing defenses of apartheid were racist even if they were in considerable measure just political posturing. When it comes to public rhetoric, it’s public meanings not private intent that matters.

Red-Baiting, Live From 43rd Street!

[ 10 ] April 14, 2008 |

When did Bob Owens get a gig with the NYT op-ed page? Nobody tells me anything anymore.

"I can handle things! I’m smart! Not like everybody says…"

[ 0 ] April 14, 2008 |

Poor Fredo.

In related news, see Gene Healy on John Yoo and the Neoconstitution.

Bitter Gaffe

[ 29 ] April 14, 2008 |

I don’t have an enormous amount to add about Obama’s comment. Evidently, on the merits the controversy is stupid; as Roy says, the comments were a takeoff for politics-of-resentment silliness “in the precise manner Obama described.” And, yes, I wish that Clinton wasn’t discussing it using Page 1 of the Republican playbook, but that’s just another way of saying that I wish Obama had already knocked her out of the race. As long as she’s in, not using it would be to fail Campaigning 101, especially given her base in Pennsylvania.

It does, however. remind me to link to this fine recent piece by Eric Alterman about the ridiculous use of the epithet “elitist” by conservatives:

John Podhoretz, the son of neoconservatism’s second couple, Norman Podhoretz and Midge Decter, who attended elite private schools and the University of Chicago before his father’s connections helped him secure jobs in the media empires of Sun Myung Moon and Rupert Murdoch, also professes to see America through rose-hued glasses. “Bush Red is a simpler place,” he explains, on the basis of a visit to Las Vegas. It’s a land “where people mourn the death of NASCAR champion Dale Earnhardt, root lustily for their teams, go to church, and find comfort in old-fashioned verities.” His comrade in anti-intellectual arms, former CBS News reporter Bernard Goldberg, who has spent a career working within what conservatives would call the “liberal media elite” and who wrote a book comparing his former friend Dan Rather to a “prison bitch,” has sworn off all association with liberals even when he agrees with them, he says, “because of their elitism. They look down their snobby noses at ordinary Americans who eat at Red Lobster or because they like to bowl or they go to church on a regular basis or because they fly the flag on the Fourth of July.”

In red-state America, explains the slumming blue stater David Brooks, “the self is small”; whereas in blue-state America, “the self is more commonly large.” Unlike the citizens of the states that voted for Al Gore, according to Andrew Sullivan, they can even be trusted not to betray their country on behalf of Islamic terrorists. Yet while unelite America is wonderful in every way, it’s just not a place where Laura Ingraham or Rush Limbaugh or Bernard Goldberg or Ann Coulter or John Podhoretz or Newt Gingrich or Peggy Noonan or Andrew Sullivan or David Brooks would ever choose to live.

This isn’t to exculpate Obama for his comments; it was bad politics to frame his perfectly banal point in the precise way that he did. But wealthy urban conservatives and quasi-liberal pundits pretending to be offended on behalf of working-class rural people is a stupid kabuki, as well as considerably more condescending than anything Obama said.

The Greatest Silence

[ 0 ] April 14, 2008 |

I haven’t had a chance to watch the new HBO documentary about the revolting amount of gang rape in the Congo and its heartbreaking aftermath yet, but Lauren has and gives it her recommendation.

Life Imitates Seinfeld

[ 2 ] April 13, 2008 |

Pinkberry settles suit launched, in part, because the company falsely understates the caloric content of its product. On those rare occaisons where I’ve felt like dessert in SoHo, I’ve always been a Rice To Riches man anyway…

Making Trends out of Nothing At All

[ 6 ] April 13, 2008 |

As Tim Noah points out, what’s particularly strange about the bizarre NYT article claiming that blogging was turning into a job so stress-inducing it could kill you is that the author actually concedes within the text that these are not only random anecdotes but even with respect to these anecdotes there’s no reason to believe that there was a significant causal relationship between the job and the death. How this could still have ended up a Page One story I certainly can’t tell you.

Post-Convention Electability

[ 26 ] April 11, 2008 |

Brad DeLong makes a stronger case for Sean Wilentz’s assertion that Hillary Clinton deserves the Democratic nomination than Wilentz managed, and as he says it remains highly unconvincing. Since I assume the only possible purpose of Wilentz pointing out that given some arbitrary, post hoc changes to the Democratic nominating process Clinton might have done better is to convince superdelegates to back Clinton, it’s worth making one additional point. Like DeLong, I disagree with the claim that Clinton is more electable, but given her potential strength in some important swing states it’s at least plausible enough to potentially justify a vote for her in the first instance. To make Clinton the nominee now, however, means that one has to argue that that she would be the most electable candidate after superdelegates awarded her the nomination over the pledged delegate and popular vote winner who also would have otherwise been the first African-American candidate for president. It’s quite obvious that Clinton would not be the most electable candidate under than scenario. Given that she has much less ability to enlarge the Democratic coalition, a Clinton candidacy with significant parts of the Democratic base demobilized because they think the nomination was stolen would be very poorly positioned in the general.

Southern-Fried Red-Baiting

[ 0 ] April 10, 2008 |

Shorter All-too-verbatim Treason-in-Defense-of-Slavery Yankee:

Is Obama “merely” another radical leftist like another one of his mentors, Saul Alinsky?

Is he a Marxist, as would befit his continued 20-year association with a church founded on the Marxism underlying Black Liberation Theology?

Is he a socialist revolutionary with Maoist tendencies that wants to wage war against the United States like his close friend, fellow Woods Fund board member, and domestic terrorist William Ayers?

Is he a communist, like his mentor Davis, his father, his ethic-cleansing, Islamist-coddling cousin, and even his own wife Michelle Obama, who insisted just yesterday the thought that, “someone is going to have to give up a piece of their pie so that someone else can have more.”

At this point we simply do not know where along the radical leftist continum Barack Obama’s thoughts reside, because no one has ever pressed him on his beliefs or his meager record.

Is Obama the moderate liberal (or center-rightist in virtually any other non-Stalinist liberal democracy) his record suggests? Or is he the Maoist radical envisioned in Bob Owens’s Southern-Comfort-and-Coke-fueled fever dreams? If you’re a star writer for Pajamas Media, it’s a real puzzler!

Bonus wankery in comments:

He hasn’t yet tried to nationalize corporate property, but promising to take money (also property) from you for the common good is the same thing in my mind. That is certainly a statist philosophy. Is it communist? Marxist?

Nozick lives! In really, really dumb form! Sure, the income tax, being sent to Siberia by an undemocratic government for 6 months, what’s the difference? Also note above that he considers “adding to the budget deficit” evidence of Obama’s communism, which I guess puts Bush well to the left of Brezhnev…

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