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Arbitrary

[ 0 ] January 26, 2007 |

Another excellent article about the Wilson case, with a useful comparison with other cases of consensual sexual relations with minors that received much lighter sentences:

But wait. It gets worse. At the same time that Wilson was being sentenced to 10 years in prison, down the hall in the courthouse, a 27-year-old high school teacher got a slap on the wrist (probation, 90 days in jail, not prison) for having sexual intercourse with an 16-year-old male student.

Now you tell me: which act represented a greater breach of trust and societal expectations? Which act has the greater potential for harm?

The District Attorney — who makes the decision on how to handle cases: which ones to prosecute, which to drop — charged Wilson with rape and aggravated child molestation. The jury found Wilson not guilty of the rape charge.

According to the jury forewoman, the jury did not know that by convicting Wilson of the aggravated child molestation charge that they had just sentenced him to a mandatory 10 years in prison. “People were screaming, crying, beating against the walls,” she recalls. “I just went limp. They had to help me to a chair.”

Yet right down the hall, Alexander High School English teacher Kari McCarley was standing trial for “carrying on a sexual relationship with a 16-year-old male student.” She was married, with children. This wasn’t a one-time sexual encounter. Her sentence? Three years probation and 90 days in jail.

Part of the problem was the poorly drafted statute; a prosecutor should have never even had the ability to pursue a mandatory 10-year sentence in this case. But there can be no serious question that the prosecutor grossly abused his discretion. I also agree with TChris that the classification (and the application of the statute) should have raised serious due process issues.

Millions of McCarthyite Smears Now Living Will Never Die

[ 0 ] January 25, 2007 |

Glenn “More Genocide, Less Trouble” Reynolds, 11/11/03: “The real problem with the Iraq war is that it’s (1) waged by a Republican President; and (2) obviously in the United States’ national interest. To some people, those characteristics are enough to brand it evil.”

Jonah Goldberg, 1/25/07: “The 11th Commandment for liberals seems to be, “Thou shalt not intervene out of self-interest.” Intervening in civil wars for humanitarian reasons is OK, but meddling for national security reasons is not.”

Even leaving aside the “Democrats are unpatriotic” crap…yeah, sacrificing the lives of more than 3,000 troops and a trillion dollars to install a more terrorist friendly “state” in Iraq: now that’s using your formidable judgment to advance the national interest!

Pardon?

[ 0 ] January 25, 2007 |

ESPN has a good article about the appalling case of Genarlow Wilson. One thing puzzles me about the dodging responsibility game described here:

It’s frustrating work. No one involved believes Wilson should be in jail for 10 years.

The prosecutors don’t.

The Supreme Court doesn’t.

The legislature doesn’t.

The 15-year-old “victim” doesn’t.

The forewoman of the jury doesn’t.

Privately, even prison officials don’t.

Yet no one will do anything to free him, passing responsibility around like a hot potato.

Notice anything missing? It seems to me that the governor could simply end this gross injustice by issuing a pardon. [I am mistaken: see update.] While in some cases like the use of pardons is problematic because it’s such a capricious process, here the use of the pardon would correct an obviously arbitrary sentence. (I’m going to go out on a limb here and assume that consensual oral sex among teenagers is not a highly unusual activity in the state of Georgia, and very rarely lands people in the clinker.) Retroactively amending legislation actually seems like an inferior remedy. At any rate, Wilson remains in jail because of Sonny Perdue’s callous indifference about a tragic injustice, and it seems to be that this should be a political issue.

…A commenter answers my question: apparently the pardon power in Georgia doesn’t rest with the governor.

Also, Matt makes a good point in comments:

Well, it’s clear that “the prosecutors don’t” is true in the way that “George W. Bush wants to cut the deficit” is true; the DA says he doesn’t want him to spend 10 years in prison, and he has the means to free him, but he won’t do it. Though he says that if Wilson grovels a bit he might think about it. But his view is that it serves him right for insisting on a jury trial.

Good Question

[ 0 ] January 25, 2007 |

Yglesias:

I wonder if Jon Chait and others concerned about Wesley Clark’s alleged anti-semitism feel it’s a problem that one of America’s leading political magazines is owned and operated by a man whose political opinions appear to be primarily driven by bigotry against Arabs and Muslims; keep your eyes on The Plank for a response.

Yeah, keep lookin’. If they’re going to publish “The Spine,” I’m not sure why they don’t go all the way and bring in Charles Johnson

Benjamin Wittes Explained

[ 0 ] January 24, 2007 |

Standard of legitimacy #1: “Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion.”

Standard of legitimacy #2: “Consider finally the prediction that Bush v. Gore would gravely damage President Bush’s and the Court’s own legitimacy. That claim is subject to empirical testing. And the tests prove it false–that is, if legitimacy is regarded as a function of public opinion.”

Indeed. And Wittes’ claims about Roe are also “subject to empirical testing,” and one will find that Roe is in fact supported by 2-to-1 majorities (which is why Democratic candidates for President explicitly say they will appoint pro-Roe candidates while Republican candidates obfuscate about “strict constructionists.”) At any rate, the fact that he considers Roe indefensible but considers Bush v. Gore a perfectly reasonable application of doctrine by conservative justices (I particularly enjoyed the section where he and Berkowitz–attempting to defend the completely indefensible remedy–make not argument except to cite the Court’s own risibly disingenuous “deference” to a state court three justices were otherwise analogizing to Jim Crow nullifiers, although of course the Florida court had never held that the taking advantage of the “safe harbor” provision should pre-empt a constitutional recount) tells you all you need to know about Wittes. Being a straight-up conservative hack is fine if that’s what you want to be, but why the New Republic is hiring this man to provide legal analysis I can’t tell you.

Republic Party Jagoff of the Day, Scientific Illiterate Division

[ 0 ] January 24, 2007 |

Kantian Nihilist Chris Muir.

Republic Party Jagoff of the Day

[ 0 ] January 24, 2007 |

President George W. Bush.

I’m In Ur Think Tank Supporting Ur Opponents’ Policeez II: The Heretic

[ 0 ] January 23, 2007 |

Having Benjamin “legalizing abortion was a disaster for abortion rights” Wittes as a scholar at Brookings would be like having Kenneth Pollack and Michael O’Hanlon as foreign policy scholars at Brookings. Oh, wait

The Solution To Failed Wars is More Failed Wars

[ 0 ] January 23, 2007 |

Matt notes that there’s no discernible difference between the substantive positions of The New Republic and Liz Cheney’s widely and justly mocked op-ed on Iraq. Meanwhile, it seems as if Marty has discovered a new toy to play with:

So why did Marty take the unusual step of teasing Michael Orin and Yossi Klein Halevi’s forthcoming Iran piece on his blog? According to TNR office scuttlebutt, the piece is causing shpilkis about being yet another hysterical, warmongering embarrassment to the magazine. Right now it’s just a rough draft, but insiders fear it could still emerge in print as something pernicious — hence Marty’s preemptive guarantee of publication.

Great. Maybe he thinks TNR‘s circulation is too high.

Speaking of which, Glenn “more rubble less trouble” Reynolds asserts that the only problem with Bush’s foreign policy is that he hasn’t used more troops that don’t exist to start more disastrous wars. His innovation is to use Talleyrand to defend the Green Lantern theory of foreign relations: “you can do anything with bayonets except sit on them.” Leaving aside the fact that I’m quite sure that the point of the Talleyrand quote is the opposite of what Reynolds claims (it’s translated by a more reliable source as “the one thing you cannot do with a bayonet is to sit on it,”) somebody may want to explain to Reynolds what happened with the French Revolution…

The "Convienience" Trope

[ 0 ] January 23, 2007 |

It’s been widely linked, but this post by (former L, G & M guest-blogger) Lizardbreath is good enough to merit further discussion:

Continuing that pregnancy wouldn’t have been an epic tragedy for me; any proposal for abortion rights that requires abortion to be permissible only when the only alternative would be starving on the streets would leave me right outside.

But man, did I not want to be pregnant. I did not want to be locked into a minimum eighteen-year relationship with someone I’d been dating for a couple of months. I did not want to be responsible forever for someone who didn’t exist yet. I didn’t want to be physically pregnant. I had no idea of where I was going professionally — I was a temp receptionist, thinking about maybe taking the LSATs — or of how I would support myself or a child, and had no idea of how I’d find my way into a career with a new baby. The only thing being able to get an abortion did for me was give me some control over the course of the entire rest of my life.

So, politically useful as it is, I get a little edgy about rhetoric that stipulates that abortion is always a strongly morally weighted decision. I don’t think it is, and if it were I’m not certain that my reasons for not wanting to continue a pregnancy at the time qualify as sufficient to do a wrong thing — if abortion is an evil, it’s not clear to me what evil would have been the lesser under those circumstances. But I am thankful every day of my life that I had the option to end that pregnancy back in 1995.

Some other bloggers have already addressed one important implication: the long-term cost of the potential short-term political games inherent in “abortion is icky” rhetoric. To make a somewhat different point, LB’s post reminds me that a common rhetorical strategy of the forced pregnancy lobby is to describe an abortion obtained under any but the direst cirumstances as an abortion for “convenience”–Byron White used it himself in his dissent in the first abortion cases. As LB’s story suggests (see a similar one from A Rational Animal) , this is a grossly misleading and offensive description. “Convenience” invokes something nice, but trivial–it’s “convenient” to have a branch of your bank open up a few blocks close. A decision about whether to bear a child, conversely, involves large, irrevocable effects (or potential effects) on your employment, intimate relationships, education, and financial situation–the central pillars of most people’s lives, in other words. To describe large changes in these aspects of life reflects an essential belief in the subordination of women–do you think that if pregnancy had similar effects on men’s lives, an unwanted pregnancy would be a mere “inconvenience?” Implicit in such arguments is the assumption that for women educational and career advancement is sort of a luxury, nice if you can get it but easily displaced by a woman’s “natural” role as a mother (a role a woman apparently agrees to take on every time she engages in heterosexual intercourse, which is of course silly.) The description trivializes pregnancy, and trivializes women’s lives.

Blogging For Choice Day: Why I Am Pro-Choice

[ 1 ] January 22, 2007 |

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Honourable Madam Justice Bertha Wilson

This year’s Blogging For Choice topic is to write about why you’re pro-choice. On the merits of being pro-choice, I have an extensive body of work, and I will hopefully have a piece coming out at the Prospect later today about abortion as a class issue. So today perhaps I’ll take a slightly more personal tack.

My direct interest in the abortion issue is easily traced. The first court decision I remember hearing about and discussing was R. v. Morgentaler, the 1988 decision of the Supreme Court of Canada that ruled Canada’s federal abortion legislation unconstitutional. I gave a speech defending it at that year’s persuasive speech at my high school, and my interest in the subject has never really waned. (One can probably also trace my eventual decision to become a scholar of law and courts back to that decision too, although I would have never dreamed it at the time.) Morgentaler is worthy of examination by American supporters of reproductive freedom, because it addresses some issues that its American counterpart (with the partial exception of William O. Douglas’s short, brilliant concurrence in Doe v. Bolton) doesn’t. While I strongly believe that Roe v. Wade was correctly decided (1, 2, 3), like almost everybody I find Blackmun’s opinion for the Court deficient in many respects. Morgentaler is not the perfect opinion, but is does a much better job with similar legal materials.

The Court in Morgenlater was divided and produced two broad rationales, both of them compelling. The first–based in procedural due process–I’ve already discussed. Canada’s abortion law required that a woman obtain a certificate from a “Therapeutic Abortion Committee.” (This is very relevant to the American case, because similar legislation was the preferred “reform” legislation in American states as well. Being more concerned with the rights of doctors than the rights of women, it’s sort of the holiest of holies for abortion “centrists.”) The opinions of Chief Justice Dickson and Justice Beetz meticulously detailed the irrational construction and arbitrary operation of these committees, and correctly argued that a women’s fundamental rights could not be violated in such a manner. As I’ve said before, I like this opinions because 1)they focus on how abortion statutes work in practice and their tenuous-at-best relationship to protecting fetal life, and 2)because they call the bluff of the “pro-lifers.” The other (and most famous) concurrence was by the first woman to serve on Canada’s highest court, Justice Bertha Wilson. I wish that she had linked her analysis to the gender equality provisions of The Charter of Rights and Freedoms rather than making a more straightforward substantive due process argument (although it’s embarrassing to Harry Blackmun that her opinion shows much greater command of the relevant American precedents than its American counterpart.) Wilson does, however, explain very eloquently why reproductive freedom is critical to the dignity of women, and her explanation is a good way to conclude a post on Roe‘s anniversary:

I agree with my colleague and I think that his comments are very germane to the instant case because, as the Chief Justice and Beetz J. point out, the present legislative scheme for the obtaining of an abortion clearly subjects pregnant women to considerable emotional stress as well as to unnecessary physical risk. I believe, however, that the flaw in the present legislative scheme goes much deeper than that. In essence, what it does is assert that the woman’s capacity to reproduce is not to be subject to her own control. It is to be subject to the control of the state. She may not choose whether to exercise her existing capacity or not to exercise it. This is not, in my view, just a matter of interfering with her right to liberty in the sense (already discussed) of her right to personal autonomy in decision-making, it is a direct interference with her physical “person” as well. She is truly being treated as a means — a means to an end which she does not desire but over which she has no control. She is the passive recipient of a decision made by others as to whether her body is to be used to nurture a new life. Can there be anything that comports less with human dignity and self-respect? How can a woman in this position have any sense of security with respect to her person? I believe that s. 251 of the Criminal Code deprives the pregnant woman of her right to security of the person as well as her right to liberty.

…In comments, Pithlord points out that s.15 of the Charter didn’t apply at the time of the alleged offense, so Wilson couldn’t refer to it (and, for reasons I don’t fully understand, the explicit guarantee of gender equality in s.28 has done very little work in Canadian constitutional law.)

It’s National Forced Pregnancy Day!

[ 0 ] January 22, 2007 |

George the Obtuse issued the following proclamation on the occasion of the anniversary of Roe v. Wade:

America was founded on the principle that we are all endowed by our Creator with the right to life and that every individual has dignity and worth. National Sanctity of Human Life Day helps foster a culture of life and reinforces our commitment to building a compassionate society that respects the value of every human being.

Among the most basic duties of Government is to defend the unalienable right to life, and my Administration is committed to protecting our society’s most vulnerable members. We are vigorously promoting parental notification laws, adoption, abstinence education, crisis pregnancy programs, and the vital work of faith-based groups. Through the “Born-Alive Infants Protection Act of 2002,” the “Partial-Birth Abortion Ban Act of 2003,” and the “Unborn Victims of Violence Act of 2004,” we are helping to make our country a more hopeful place.

So the justification for various abortion regulations and subsidies of anti-abortion organizations is that there is an “unalienable right to life” that applies to fetuses, and that the principle that “every individual has dignity and worth” apparently applies to fetuses. So I can only assume that the next step will be an intense national campaign to have abortion immediately prosecuted as first degree murder in all 50 states–the only defensible policy flowing from Bush’s premises. At the very least, every women who obtains an abortion, every doctor who performs and abortion, and everyone who assists in the abortion should be executed, and everyone who knows about the abortion be prosecuted as an accessory to capital murder. It’s the least he can do and sleep at noght.

Or, alternatively, Bush could stop justifying stupid, irrational laws using moral arguments that as applied to abortion he (like most people who use them) obviously doesn’t take seriously. And in doing so, cynically degrades our highest constitutional principles (and, indirectly, uses the dignity of the civil rights movement to justify the restriction of women’s rights.) That would be good too.

As for the other revolting irony of George W. Bush announcing “National Sanctity of Human Life Day,” Maha, Shakes, and Mona are on the case.