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Sports Obits

[ 36 ] June 28, 2016 |


  • Buddy Ryan, R.I.P. Almost certainly the greatest defensive coach in NFL history.  It’s not just that the mid-80s Bears have a strong claim to be the best NFL defense ever, his Eagles teams were also among the greatest defenses ever. As a head coach, he was just another guy — not a complete disaster like LeBeau, but too much of a one-way coach to be really good. As a defensive coach, he was extraordinary.
  • Pat Summitt, R.I.P. A truly remarkable trailblazer.

Why Kennedy Broke

[ 64 ] June 28, 2016 |

Anthony Kennedy

I have a piece at Democracy explaining why Kennedy finally agreed to put some teeth into Casey:

Many state legislatures got the message and passed an increasing array of regulations, the most insidious of which were targeted regulations of abortion providers (TRAP). TRAP laws resembled medical regulations, but their real purpose, in singling out abortion clinics despite the relative safety of the procedure, was to create burdens for these clinics, making it difficult or even impossible for them to operate. Texas HB2, an issue of contention in Hellerstedt, is a classic example. Texas placed requirements on facilities and doctors that would have closed more than half of the states’ already relatively small number of clinics, regardless of actual safety concerns.

It was this sort of practice that almost certainly pushed Kennedy back toward the liberal faction of the Court. Facing a brutal interrogation at oral argument, the medical justifications offered by Texas Solicitor General Scott Keller were almost farcically thin. It’s telling that the dissenting opinions in Hellerstedt focused primarily on procedural questions, and offered only cursory and half-hearted attempts at defending the sham justifications offered by Texas in support of its statute. The Texas regulations are not about protecting women’s health. They’re about trying to restrict, and eventually eliminate, abortion access.

And unlike in Carhart II, not only were the justifications weak, the effects were broad-ranging. Nobody with any commitment to reproductive rights could overlook a statute that shut down large numbers of clinics based on alleged medical justifications that (as Justice Breyer’s opinion showed in painstaking detail) were an insult to citizens’ intelligence. If Kennedy thought liberals were being untrue to Casey during its first decade, it was now being undermined by conservatives. Republican legislators were in fact using Casey to eliminate the rights Casey sought to protect, and it’s not surprising that Kennedy refused to go along.

Plenty of objections can be launched at Casey from both the left and right, and rightfully so. But it’s clear that Kennedy takes the compromises in this decision very seriously. It’s not surprising that state legislatures took his previous opinion as a green light to attack abortion rights, but it’s also not surprising that the pendulum is now swinging back. By demanding that state legislatures provide real medical justifications for regulations that substantially restrict abortion access, the Court has restored needed teeth to Roe. Kennedy’s past deference to anti-abortion interests has now turned to skepticism, and, for supporters of reproductive rights, this is excellent news indeed.

More Hellerstedt commentary from Lithwick, Filipovic, Greenhouse, and Carmon. Emily Crockett explains why it will be difficult for some of the clinics to re-open, which is one reason to reject Alito’s longstanding efforts to create procedural shields against effective challenges to arbitrary abortion regulations. And it’s worth noting that Donald Trump has been silent.

Taking Abortion Rights Seriously

[ 131 ] June 27, 2016 |


And about time:

In a 5-3 opinion written by Bill Clinton-nominee Stephen Breyer and joined by Kennedy and the Court’s other Democratic nominees, the Court forcefully acknowledged this reality. “The surgical-center requirement also provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so,” concluded the majority.

Breyer’s argument that the Texas statute constituted an “undue burden” is straightforward and unanswerable. First, the regulations were not meaningfully related to protecting the health of women. All of the evidence suggests that abortion was already a very safe procedure in Texas, and the state also provided no evidence that these regulations would meaningfully improve safety. Texas, as the majority observed, could literally not name a single case in which the admitting privileges requirement would have allowed a woman to attain better post-surgical care. The health justifications offered by Texas, in other words, were obvious shams, and the Court refused to pretend otherwise.

The other half of the equation — whether the statute made it substantially more difficult for women to obtain abortions — was equally easier to answer. Eight of the state’s abortion clinics closed in the months between the law’s passage and its effective date of application, and 11 more closed the day the law took effect. Making women drive very long distances to obtain abortions is obviously a very substantial burden, and it was one that Texan women outside of a few urban centers would face.

Indeed, if evaluated as a health regulation, the Texas law is massively counterproductive. As Justice Ruth Bader Ginsburg observed in her brief concurrence, “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners… at great risk to their health and safety.” If Texas wanted to protect the health of women in the state, it would want to ensure that women have easy access to licensed abortion clinics, rather than pushing them to the unregulated black market.

If a law that makes it much more difficult for women to obtain an abortion and does not have any serious health justification does not constitute an “undue burden,” then the phrase has no meaning. In striking down the offending provisions of HB2, the Court acknowledged this basic reality.

Another striking indication of how specious Texas’s justifications for its law were is how little of the 60 pages of the dissenting opinions, written by Justices Clarence Thomas and Samuel Alito, actually defend the law as not constituting an “undue burden.” Rather, both Alito and Thomas focused on technical, jurisdictional arguments that would have prevented the Court from hearing the case.

For anyone familiar with Alito’s body of work, this shouldn’t be a surprise.

The thing is that presidential and Senate elections matter a lot.

I’ll have another piece coming out explaining Kennedy’s evolution on the issue. I’m glad that for the second time in the last 7 days he can’t go along with where the Republican Party now is.

You Can Only Push A Kennedy So Far

[ 131 ] June 27, 2016 |

The two key restrictions in Texas’s abortion statute are struck down 5-3, opinion by Breyer, RBG concurrence.

Much more on this later today. I’m not sure what will be more amusing; reading through all of Alito’s 43-page faux-minimalist dissent or reading the forthcoming tortured arguments from Freddie Brogan Bragman about how being cool with Donald Trump picking several Supreme Court nominees makes you the real supporter of reproductive freedom because Roe v. Wade not being overruled pales in significance with Hillary Clinton’s consistent support for reproductive freedom being expressed in overly equivocal rhetoric that one time.

Whole Woman’s Health Politburo Watching

[ 18 ] June 27, 2016 |


We haven’t done a lot of this for the Supreme Court term wrapping up tomorrow, so to honor Lyle Denniston leaving SCOTUSBLOG, here are the possible outcomes in the biggest remaining case in the ascending order of probability as I see it:

  • 4-4 one liner. A one sentence per curiam, like the Court issued last week in U.S. v. Texas, by an evenly divided Court allowing the Fifth Circuit opinion to stand. I think this is very unlikely, for two reasons. First, if this was the outcome the opinion probably would have already been issued. And, perhaps more importantly, I can’t see the liberal faction of the Court allowing the draconian abortion restrictions in Texas and Lousiana to stay in force without commentary.
  • 4-4 with opinions. Kennedy still can’t find any regulations that constitute an “undue burden” under the rather awful plurality opinion he helped write. At least one liberal justice — most likely RBG or Kagan — really lets him have it in a dissent. Kennedy either defends himself or hides under Alito’s robes. A little more likely than a silent deadlock — I don’t have much faith in Kennedy on abortion cases — but I think it’s more likely that he has been pushed too far this time.
  • 5-3 liberal victory. In a reprise of Fisher II from last week, Kennedy can’t stomach the bad faith with which contemporary Republicans have treated Casey, and provides a fifth vote to strike down most or all of the Texas statute. Kennedy’s opinion makes it very clear that the law offends the dignity of women seeking to obtain an abortion in Texas and makes what standard the Court should apply to abortion regulations going forward even less clear. Alito writes a faux-minimalist dissent arguing that the statute is consistent with Casey as Kennedy has previously interpreted it that is as least twice as long as Kennedy’s opinion. Thomas writes a short solo concurrence arguing that Roe needs to be nuked from orbit just to be sure.
  • 5-3 mixed bag. Kennedy finds some but not all of the key parts of the Texas statute unconstitutional. In this scenario, the liberal justices who have been content to let Kennedy speak for the Court if he votes correctly might write one or multiple concurrences/dissents underlying the stakes, plus you’d probably get Alito and Thomas opinions comparable to those above.

I’d say the last two are comparably likely. This doesn’t exhaust every single possibility, of course. Roberts might also write, and I suppose there’s some chance under scenario four that he could join Kennedy, although I doubt it. But I think these are the most likely ways it plays out.

PUMA II: Electric Boogaloo

[ 129 ] June 26, 2016 |


Another reason not to panic:

Donald Trump would like for Bernie Sanders supporters to ditch the Democratic Party and support him. There is very little evidence that they will do that, mind you, but it’s certainly possible that they might just stay home — which would help Trump.

Well, we have some bad news for the Trump campaign. Sanders supporters aren’t just rallying around Clinton; they’re doing it rather quickly. And it’s a big reason Clinton just extended her lead over Trump into the double digits, 51 percent to 39 percent.

A new Washington Post-ABC News poll shows that Sanders backers, who polls have shown were reluctant to jump over to Clinton and even flirted with supporting Trump, are coming home faster than we might have expected.

Last month, 20 percent of Sanders supporters said they would back Trump over Clinton in the general election. This month, that figure is down to 8 percent.

And the poll was conducted before, we would note, Sanders began saying last week that he would support Clinton over Trump in the general election. (Even as he’s not endorsing Clinton and is still technically a candidate, Sanders said his supporters would and should not vote for a “bigot” like Trump.)

Between this and the utter shambles of the Trump campaign — Democrats shouldn’t be complacent but they can be confident.

Was Cameron’s Referendum Decision Defensible? (SPOILER: No.)

[ 152 ] June 26, 2016 |

david-brentAbove: A More Competent British Leader Named “David”

In comments, Murc argues that Cameron’s catastrophic decision to call for a referendum was defensible:

We talk a lot on this blog how all politics is the work of coalitions and that political leaders often are, counter-intuitively, often forced to follow their electorates rather than the other way around. This comes up a lot during Clinton-related sturm und drang; people will say “They put the boot into the welfare state and ran on making poor people poorer and locking up black people” and they’re not wrong, but then others will come back with “the political atmosphere of the Democratic Party and the national mood as a whole at that time required them to make compromises with the no-more-handouts and tough-on-crime wings of their own party, to say nothing of the Republicans” and they aren’t wrong either.

Or, in a more British context… there’s been a lot of talk about how Cameron is going down as “the worst PM since Neville Chamberlain.” Chamberlain is reviled by history for his appeasement… but it is ignored that Chamberlain was representing the will of the vast majority of his party, the opposition party, and most of the British electorate. If he’d tried to drag Britain to war in 1938 there’s a very good chance his government implodes.

The thing is, I buy the Chamberlain defense in re: Chamberlain. Chamberlain probably made the best choice available to him, and even if he didn’t, he certainly had no good choices available, which is often the case with famous political blunders. James Buchanan is currently ranked as the worst president in American history by scholars, and between what he stood for and his ridiculous passivity in the face of secession, I don’t find that particularly objectionable. But, to be frank, he’s ranked as the very worst because of the many generic Jacksonian hacks to attain the White House he was the one who happened to be in office when the police finally raided the floating craps game. I don’t think there were any choices Buchanan could have made to keep the Democratic coalition together. Polk, often ranked as an average or above-average president, almost certainly did more to create the conditions for the Civil War than Buchanan did. Douglas would certainly have better after secession than Buchanan was, but he wouldn’t have been able to stop the secession from happening. By that point I don’t think anybody could have. The category of political leaders remembered as being uniquely bad largely because of circumstances beyond their control is real enough.

Which is exactly what makes Cameron’s incompetence so astounding — this catastrophe was a completely unforced error. He didn’t need to call this referendum, and he really didn’t need to call this referendum.

On the first point, I just don’t buy that coalition politics compelled him to call a referendum. It should have been pretty obvious that Johnson and Gove were cynical rube-runners rather than people deeply committed to leaving the EU (and, certainly, the fact that they’ve gone into witness protection after “winning” settles the question.) While I understand the temptation to use the referendum to stop the trolling, given the downside risk the better option is obviously “put up or shut up.” It is highly unlikely that Johnson could have led a successful coup against Cameron, who had just delivered the Tories their first majority government in more than 20 years even if he wanted to, which he almost certainly didn’t.

But let’s say, for the sake of argument, that you think Cameron had to call the referendum. As MacK said (and, I should note, Murc apparently agrees), it should be blindingly obvious that this referendum should have had some kind of supermajority requirement, starting with the assent of Scotland, Northern Ireland and Wales. In theory, I would also prefer something like a 60% national vote, but the multiple majority requirement would make it superfluous in any case. What you certainly don’t do is call for a referendum that would lead to Brexit given 50%+1 on any given day. Even leaving aside the merits of leaving the EU, you don’t make such momentous changes based on bare popular majorities from a single vote. That a decisive number of voters who were indifferent or actively opposed to leaving the EU might have voted Leave to send a message of frustration or patriotism or whatever is something that any remotely competent leader should have seen coming. You can blame the voters if you want, but the blame is much better directed at Cameron’s stupid decision rule.

In conclusion, Cameron massively blundered. He was trolled into calling an unnecessary referendum, and even worse structured the referendum ineptly. Comparing him to Chamberlain is unfair to Chamberlain.

St. Stein Speaks!

[ 234 ] June 25, 2016 |

Jill Stein, as is well known, is the Only Real Leftist in America. Indeed, she is a figure of such pure, undiluted leftist perfection she agrees with Donald Trump only 41% of the time. So I’m sure her thoughts on Brexit will be highly enlightening:

The vote in Britain to exit the European Union (EU) is a victory for those who believe in the right of self-determination and who reject the pro-corporate, austerity policies of the political elites in EU. The vote says no to the EU’s vision of a world run by and for big business.

This is just ludicrous nonsense. The bulk of Brexit support came from pro-austerity Tories. What Brexit means is more austerity as EU subsidies vanish, oh and also the end of progressive EU labor and environmental regulations. If you think this is a defeat for big business, I’d hate to see what a victory would look like. Granted, some City finance types will presumably have to ply their trade in Paris or New York City or Frankfurt now. FIGHT THE POWER!

Insane as this is, though, it helps to explain why she’s campaigning in swing states in a year when 1)the Democratic Party’s platform features a $15 minimum wage, expanded Social Security, and a repeal of the Hyde Amendment and 2)the Republican candidate is Donald Trump. Her politics seem to consist entirely of assuming that if something she doesn’t like loses than her ideal outcome therefore must win.

Unfortunately, the rejection was also motivated by attacks on immigrants and refugees, which must be opposed. That is a defeat.

Apart from that, Mr. Farage! Admittedly, by even acknowledging that xenophobia may have played some role in the Brexit vote, Stein risks being denounced roundly on Twitter for selling out to BIG NEOLIBERAL and wanting to punish the white working class. But, don’t worry, she departs from reality soon enough:

The increase in anti-immigrant, anti-Muslim and anti-refugee sentiment expanded because of the EU’s economic policies, and was a key driver in support of the UK’s departure from the European Union.

Ye Gods. First of all, British austerity — while certainly terrible policy! — was driven by Parliament, not by the EU. Leaving the EU will in fact result in more austerity. And if you think British political elites love austerity now, wait until Scotland leaves the UK, which it almost certainly will if Brexit proceeds. And, finally, while it’s a nice story that all racial resentments are really just epiphenomenal masks for class and economic anxieties it’s not actually true.

Seriously, if it’s very important to you not to sully your personal brand by voting for an icky Democrat in November, find a better alternative candidate than this.

Brexit — The Ultimate “Triumph” Of Voter-As-Consumer

[ 281 ] June 25, 2016 |


We’ll be seeing lots of more of this kind of thing, I would assume:

Mandy Suthi, a student who voted to leave, told ITV News she would tick the Remain box if she had a second chance and said her parents and siblings also regretted their choice.

“I would go back to the polling station and vote to stay, simply because this morning the reality is kicking in,” she said.

“I wish we had the opportunity to vote again,” she added, saying she was “very disappointed”.

Khembe Gibbons, a lifeguard from Bury St Edmunds in Suffolk, also said she had regrets about her decision after Mr Farage said he could not guarantee NHS funding.

“We’ve left the EU, David Cameron’s resigned, we’re left with Boris, and Nigel has just basically given away that the NHS claim was a lie,” she wrote.

“I personally voted leave believing these lies, and I regret it more than anything, I feel genuinely robbed of my vote.”

A woman calling into an LBC radio show echoed the sentiment, saying she felt “conned” by the claim and felt “a bit sick”.

A voter who gave his name as Adam told the BBC he would have changed his pro-Brexit vote if he knew the short-term consequences it would have for the UK economy.

“The David Cameron resignation has blown me away to be honest and the period of uncertainty that we’re going to be magnified now so yeah, I’m quite worried,” he said.

“I’m shocked that we voted for Leave, I didn’t think that was going to happen. I didn’t think my vote was going to matter too much because I thought we were just going to remain.”

I don’t know how many Brexit voters fall into the remorseful category. But I remember seeing somewhere (HELP ME BROCKINGTON) that a large majority of Brexit voters assumed that Remain would win. For what was surely a decisive number of Brexit voters, the vote was not a considered view that leaving the EU would be better than remaining, but rather was a vehicle for sending a message to British elites.

To be clear, the biggest villains here are not ordinary voters. David Cameron’s entirely unnecessary gamble was astoundingly incompetent and grossly irresponsible. The reaction of Boris Johnson — the proverbial dog that caught the car — should make it pretty clear that the anti-EU faction of the Tories were more trolls than revolutionaries. And the way you deal with trolls is to ignore them, not to try to shut them up with a binding referendum with huge downside risks. Needless to say, Johnson and Farage and the pro-Brexit tabloids are absolutely shameless liars mobilizing racist resentment, and they deserve all of the criticism they receive and worse. But Cameron knew what they were, and he empowered them to try to gain a short-term advantage within his party.

But if you want to know why I spend so much time criticizing people with prominent platforms trying to convince people the ballot box is not a place for collective political decisions but for life-affirming consumer choices, well, Bregret is why. In the American context, the consumerist arguments from the nominal left for refusing to support Democratic candidates even as the consequences of a Republican victory get increasingly dire generally don’t even really pretend to be tactical; they’re just statements that certain individuals are too good for coalitions that require sharing political space with people who fail to see your unfailing wisdom. This stuff seems harmless until it isn’t. If you want to know when I’m going to stop criticizing pundits who try to encourage this kind of thinking, or the Ralph Naders and (now, apparently) Jill Steins willing to play with fire to stoke their own egos, the answer is “never.” Elections are literally life-and-death matters.

What Brexit Means, And What It Doesn’t Mean

[ 113 ] June 25, 2016 |

Bouie has more.

Now, enjoy this dissing of America’s most ridiculously pompous blowhard, and also Donald Trump.

Does Brexit Mean We’re Doomed?

[ 339 ] June 24, 2016 |


I suspect we’re going to see a lot of this kind of analysis:

Britain’s stunning vote to leave the European Union suggests that we’ve been seriously underestimating Donald Trump’s ability to win the presidential election.

When you consider all his controversies and self-inflicted wounds over the past month, combined with how much he’s getting outspent on the airwaves in the battleground states, it is actually quite surprising that Trump and Hillary Clinton are so close in the polls. He’s holding his own, especially in the Rust Belt.

Does this make sense? Not really:

  • I mean, on one level it’s scary that Trump is within 6 points. But, still 6 points, in presidential election terms, is getting your ass kicked. And there’s no reason to think he has much upside potential.
  • It might be possible for a formidable campaign organization to overperform the polls. But Trump has the opposite of that. Clinton’s dominance of the airwaves and superior organization is going to make it harder for Trump to overcome a substantial deficit and harder to get his supporters out.
  • The argument against these facts seems to be something like “nobody expected Brexit to win, nobody expected Trump to win, but Brexit won, and Trump has already won once, so Trump can win twice.” But this doesn’t really make any sense. Unlike with Brexit, Trump took a commanding lead in the polls early on in the primaries; skeptics (like me) were ignoring the polls. I don’t think there’s any reason to believe there’s a large reservoir of untapped support for Trump that polls aren’t picking up.
  • One major comparative advantage for Brexit is that none of the prominent assholes on its side were actually on the ballot. People who would never dream of voting for Nigel Farage or Boris Johnson in a national election could vote Brexit. Implicitly voting against Cameron didn’t require voting for someone you hate as much or more. If the question on the ballot in November was “do you want Hillary Clinton to be president?” I would be pretty worried. But it’s not. If Trump is going to win, he’s going to need a plurality of voters to affirmatively vote for him, although he’s a very well-known and widely despised figure heading a nationally unpopular party while barely running a presidential campaign at all.
  • The United States is a much bigger and more diverse country, which really makes a big difference in terms, which is rather important for how a campaign based around mobilizing white resentment will play out. How is Trump going to win Florida, barely a white majority state? What’s his path to the Electoral College without it? (Hint: even if he can win Ohio and Pennsylvania, that’s not enough.)
  • Brexit is helpful to Trump for one reason only: if it harms the American economy, it hurts the incumbent party. Will the effects on the American economy be enough to make a big difference? I doubt it, but that’s the only reason to worry about Brexit in terms of the American presidential election.

Brexit Open Thread

[ 342 ] June 23, 2016 |

I guess this calls for a fresh thread. I will leave the analysis to our British correspondent, but I can tell you that LGM has obtained some exclusive footage of David Cameron, political SUPERGENIUS (#5.)

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