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Call Peggy Noonan! Magic Dolphin Sighting!

[ 0 ] April 14, 2009 |

But I don’t understand; why are the dolphins fighting on behalf of the Communists? Have the Chinese been training dolphins for combat? Do we face a dolphin gap?

Thousands of dolphins blocked the suspected Somali pirate ships when they were trying to attack Chinese merchant ships passing the Gulf of Aden, the China Radio International reported on Monday.

The Chinese merchant ships escorted by a China’s fleet sailed on the Gulf of Aden when they met some suspected pirate ships. Thousands of dolphins suddenly leaped out of water between pirates and merchants when the pirate ships headed for the China’s.

The suspected pirates ships stopped and then turned away. The pirates could only lament their littleness befor the vast number of dolphins. The spectacular scene continued for a while.

If it weren’t for PETA, we’d have more than enough dolphins to eliminate piracy once and for all. Stoopid liberuls…

Wherein I Concur with Rush Limbaugh

[ 0 ] April 14, 2009 |

Via Yglesias, Rush makes a more or less sensible argument about arming merchant vessels:

Now, a lot of people ask, “Rush, how come these ships aren’t armed?” Everybody says just give some machine guns to the crew when you see the pirates showing up, wipe ‘em out. You maritime captains out there can back me up on this, but the historical reason why you don’t arm the crew on a cargo vessel is to guard against mutiny against the captain and the ship, ’cause you know how CEOs are hated today, and the captain of the ship is a CEO, and employees resent and they’re being told to resent the boss.

So the boss makes you do some things on board, if you’ve got machine guns ostensibly to gun down the Somali pirates, you could conduct a mutiny. So that’s one of the reasons that they aren’t armed.

To my understanding, this is entirely correct; ship owners and ship captains are extremely nervous about the idea of an armed crew, or even of having weapons available in an emergency. Merchant ship crews are a heterogenous lot, at sea together for a very long time, and the availability of firearms (even if they’re secured) could create serious problems. This also explains why port authorties don’t care for the idea of allowing weapons on board ship. Still, I like Zengerle’s snark: “It must have been a tough call for Rush, deciding what he loves more: guns or CEOs. But I guess we now have our answer.”

Michelle Cottle has a rundown on some of the other reasons why arming merchant ships is an idea of limited appeal.

Liptak on Ginsburg

[ 2 ] April 14, 2009 |

Adam Liptak had a couple of articles this weekend discussing arguments made by Ruth Bader Ginsburg. The first refers to Ginsburg’s oft-cited (at least by opponents and centrist critics of Roe) claim that Roe went too far too fast. I wish Liptak had been a little less credulous about it, though, because (while I admire Justice Ginsburg) her argument there is exceptionally weak. Among other problems, her central arguments require assuming that 1)immediately striking down 37 state abortion statutes wouldn’t have created a substantial backlash as long as the Supreme Court didn’t specify precisely what marginal regulations of abortion would be permissible in the future and 2)the reactionary minority that opposed the decision would have accepted a decision reached on gender equality rather than due process grounds, even though most of them actually also oppose the Court’s gender equality jurisprudence. To call these assumptions “implausible” is charitable.

The second article showcases a much better argument. As Publius says, the debate over references to international legal sources in Supreme Court opinions is a debate about nothing. For those of you with LEXIS, Mark Tushnet makes the case in more detail in a couple of 2006 articles (“When Is Knowing Less Better Than Knowing More…”, “Referring to Foreign Law In Constitutional Interpretation….”). As Publius and Tushnet note, this debate is trivial in legal terms and is interesting only as an artifact of the culture wars. Tushnet’s bottom line:

My general conclusions are these: the criticisms are either irrelevant, not distinctive to the use of non-U.S. law, or seriously overstated. The structure of the irrelevance claim is simple: the validity of the criticism is entirely parasitic on some other argument – which is merely asserted, not defended – in the course of criticizing the references to non-U.S. law. The irrelevant criticisms apply other criticisms – deployed in a wide range of contexts, not just this one – of various judicial practices. The criticisms of references to non-U.S. law, that is, stand or fall with the validity of those other criticisms, and have little or no independent force. The structure of the nondistinctive-ness argument is a bit more complex. These “nondistinctive” criticisms are applicable to a much wider range of practices than reference to non-U.S. law, but critics do not explain why they have taken as their target the practice of referring to non-U.S. law. One reason might be that the practice is at present relatively unimportant and can be stifled before it becomes an important one. That is, the target is not the actual practice of referring to non-U.S. law but to some imagined practice that might develop out of the present one. Yet critics have provided no reasons why that development – which would involve the transformation of a practice that is defensible on its own terms into an indefensible one – will occur.

I have tried to support what Professor Kenneth Anderson calls “Justice Breyer’s “no big deal’ view.” The references to non-U.S. law are few and nonthreatening, and the reaction to those references has been far out of proportion to their importance. Yet, one implication of the “no big deal” thesis is that it is no big deal one way or the other. We would not lose much were U.S. judges to conclude that the game of referring to non-U.S. law was not worth the candle. [Cites omitted]

I agree with pretty much all of this. Criticism of this unimportant practice require erecting strawmen (such as Roberts’s discussion at his confirmation hearings about whether foreign law could be cited “as precedent”), and the idea that these footnotes have any causal force — as if Kennedy would reach different holdings without the cites — is bizarre. On the other hand, it is a trivial practice both ways, and I agree with Tushnet that the best argument you can make against it is that it’s not clear what value these cites have other than tweaking the other side, to make them defend the proposition that “knowing less is better than knowing more.” On a Court where Antonin Scalia is often considered the intellectual leader of the conservative faction, though, I can’t say I’m going to lose any sleep over it.

Forbes Finds A Nut

[ 0 ] April 14, 2009 |

In the midst of the expected collection of Randite wingnuttery, it must be said that the Teabagger’s Manifesto has inadvertently hit on one good policy idea:

When government taxes particular types of income more than others, it distorts the market economy by punishing certain kinds of behavior with double taxation.

I agree that this can be a problem. So we can all agree that it’s time to end the lower tax rates on capital gains than on income. Consensus!


Fleischer wants you to stop being a freeloader

[ 0 ] April 14, 2009 |

I see that one of those guys who used to earn a living lying for the Bush administration has revived the ancient Republican complaint that the nation’s top earners provide a greater percentage of tax revenue than everyone else. Though he offers the predictable suggestion that the tax code has prodiced a kind of ersatz Marxism, he’s kind enough to lard the argument with allusions to ponzi schemes, Bernard Madoff and the like.

Leave aside the obvious qualifier that former employees of the Bush administration — which projected, among other things, Madovian annual returns on the Iraq War while arguing that we could improve Social Security by anchoring its benefits to the stock market — are uniquely unsuited to the task of identifying and offering solutions to policy problems. At the bottom of it all, Fleischer’s argument is based on the nonsensical suggestion that because wealthy people are collectively paying a larger share of federal tax revenue, the tax code is somehow grossly unfair to the rich and dangerous to the economy as a whole. If Fleischer’s column provided the only data available on the subject, you might be forgiven for assuming that wealthy Americans had seen their individual incomes decline over the past few years and that the only means of avoiding the mass Galtification of the upper ten percent would be to start taxing the poor.

Fortunately, we have other sources of data from the CBO, from whom we might learn (.pdf) that since 1979, the share of overall federal income tax paid by the wealthiest decile has indeed risen from 48 to 72 percent. But that’s a meaningless figure in this discussion, since it doesn’t reflect anything about individual income and doesn’t reflect the broad array of tax cuts that the wealthiest Americans have enjoyed in recent years. I’d venture a wild guess that the experience of being rich is shaped not in the least by the fact that one’s class happens to be paying a larger share of federal income revenue; as an ideological device, however, Fleischer’s shocking revelations are useful if you’re the sort of person looking to justify additional tax cuts for upper-income earners.

One way to test Fleischer’s objections would be to ask ourselves how those top earners are in fact doing. By his account, they should be doing pretty badly, if they’re being hammered by such a grossly disproportionate tax code. From the same CBO, however, we also learn (.pdf) that the threshold separating the top ten percent from the rest of the nation has risen during that period from roughly $65,000 to just under $100,000 — a 50 percent increase that corresponds to the radical income growth among the wealthiest Americans over the past 30 years. Moreover, that growth in category income minimums hasn’t been matched by similar rising thresholds in the lower quintiles. During that same period, by comparison, the threshold dividing the first and second quintiles has risen from $16,900 to $18,900 (a 12 percent change). To evoke an image made famous by Fleischer’s old boss, it’s like someone decided to make the pie higher — but then got distracted after taking care of the top quintile. Meantime, as this chart (.pdf) from the Economic Policy Institute points out, the wealthiest 5 percent saw its share of national income grow from 15 to 21 percent between 1970-2004, a figure that helps explain the very piece of data that has Fleischer so upset in the first place.

I suppose I could have saved myself a lot of time here by just remembering that nobody gives a fuck what Ari Fleischer thinks. But now I’ve got lots more CBO data to use during the last week of my US survey — and if there’s anything guaranteed to plump up those student evaluations, it’s CBO data.

And When You Add in the Jersey, Butter-Braised Lobster Over Foie Gras, And A 2009 Escalade to Drive to the Game…

[ 0 ] April 14, 2009 |

To follow-up on Neyer’s excellent point about the idiotic Team Marketing Report, the one that he quotes (despite the large amount of discretionary purchases it includes) is actually a little more reasonable that the one reports typically cite. I can at least see an argument that a hot dog and a beer is a common enough purchase that it’s worth factoring in. But the usual index cited in the media includes “the cost of two beers, four sodas, four hot dogs, parking for one car, two programs and two souvenir caps.” Seriously, who the hell buys two programs? (If you go to games, when was the last time you bought one, apart from maybe a special event? Better stats and scoresheets can be had for free on the intertubes.) At any rate, baseball remains by far the most affordable sport, and as someone who attended a lot of games as a student cheap seats, bringing a sandwich, and perhaps even not getting a cap every time you go to the park works just fine.

Mark the Bird Fidrych

[ 0 ] April 13, 2009 |

It’s been a bad day for baseball, with the death this morning of legendary Phillies announcer Harry Kalas, and now the sudden passing of Mark Fidyrch. Fidyrch, who was only 54, was killed in an accident on his farm. I was 16 and a fanatic Tigers fan during the Bird’s brief flight across the national landscape. The Tigers were coming off the worst season in their history, and Fidyrch’s combination of brilliant pitching (158 adjusted ERA, not that we knew what that was back then) and totally unselfconscious antics — he talked to the ball before every pitch and had about 50 twitchy mannerisms that were all somehow endearing — remains one of my favorite baseball memories.

The Bird’s career was wrecked after just 35 starts by an undiagnosed torn rotator cuff, and a hard-headed analysis of his stats indicates he probably wasn’t destined for a Hall of Fame career — he only had 97 strikeouts in 250 innings in that magical rookie year. Still for a few months he was on top of the world, and somehow neither that experience nor his sudden fall seemed to have any affect on his personality, which appeared to remain immune to the contaminating power of fame.

Hail to thee blithe Spirit
Bird thou always wert . . .

Raptor Jobs PreservedStabbed in the Back

[ 0 ] April 13, 2009 |

Shorter Air Force Secretary Michael Donley and Chief of Staff General Norton Schwartz: Robert Gates is the kindest, bravest, warmest, most wonderful human being I’ve ever known in my life.

Via Danger Room.

The Courts and Social Change

[ 0 ] April 13, 2009 |

As part of our interminable but hopefully interesting series about judicial review, it may be worth considering Gerald Rosenberg’s The Hollow Hope, invoked by Paul and now out in a new edition. It’s not, exactly, that I disagree with Rosenberg’s central argument. Indeed, if you boil down Rosenberg’s claim to its central essence — that the courts, acting alone against hostile and powerful social actors, cannot generate social change — I agree 100%. To the extent that Rosenberg definitively repudiates the excessive faith in litigation held by some law students who went to school in the shadow of the Warren Court, his book is valuable. To a political scientist, however, his claims that courts are severely constrained in their powers are much less surprising. Moreover, overly simplistic way in which he thinks about causation means that his argument is completely inadequate to prove his concluding assertion that the courts are “flypaper” that are almost always a waste of progressive resources.

Consider, first of all, the way in which Rosenberg attempts to measure the indirect impact of Brown. He argues — convincingly — the Little Rock crisis generated much more media coverage than Brown. But I assume by now many of you have already spotted the obvious fallacy: Little Rock and Brown were not independent events. Without Brown, Faubus wouldn’t have had to attempt to nullify federal law and force Eisenhower to send the Big Red One Screaming Eagles into Little Rock. And so while it’s true that the Civil Rights Act was much more effective at ending desegregation than Brown, it’s also highly unlikely that it would have had the necessary political support in 1964 had the Court not forced the issue. Rosenberg’s requirement that causation be immediate and direct is evidently going to produce false negatives.

Even more problematic, his assumption that institutions have power only if they force other institutions to do things they don’t want to do isn’t very appropriate to a separation-of-powers system, which almost always requires significant collaboration. Consider his striking graph showing that there was virtually no desegregation in the Deep South until 1965. This is an accurate inference as far as it goes — the courts aren’t going to have much of a direct impact in cases where their directives require ongoing enforcement by extremely hostile actors. But Rosenberg also shows (albeit much more quietly) that Brown did have an immediate and significant impact in border states where political elites were much less committed to apartheid. But, often, attempts to generate social change are much more analogous to the situation in the border states: you have some political elites committed to the status quo, some who are committed to change, and a crucial third group who don’t really care how a divisive issue is resolved as long as they don’t have to take responsibility for it. The fact that the political cover provided by courts in such situations doesn’t represent fully “independent” power is beside the point. The courts in such situations to do have real power, and do provide real leverage for groups seeking social change. (And, of course, in situations like #1 there probably aren’t going to be good short-term political options in any institutional forum. What exactly was the alternative to litigation in 1954 — lobbying the Alabama legislature? Hoping that Southern senators would generously agree not to filibuster?) To assess the power of institutions acting alone isn’t the right standard to apply to a Madisonian system.

And, returning to the issue at hand, same-sex marriage in many cases is going to be the second type of case — legislative majorities that would be unwilling to initiate same-sex marriage rights have proven willing to go along with judicial holdings requiring such rights. So far litigation has produced stable same-sex marriage rights in three states, and Iowa is overwhelmingly likely to be a fourth (and, at worst, will have same-sex marriage until 2014, with each passing year making repeal less likely.) While legislation without judicial intervention is come up with bupkis. To conclude that the courts are “flypaper” that generally cannot make a meaningful contribution to social change is therefore clearly erroneous.

The Way it All Went Down

[ 0 ] April 13, 2009 |

According to the New York Times, the kidnapping of Captain Richard Phillips was resolved thusly:

Just after dark on Sunday, snipers on the U.S.S. Bainbridge saw that one of the pirates was pointing an automatic rifle at Captain Phillips, and that the captors’ heads and shoulders were exposed from the capsule-like lifeboat. President Obama had previously authorized the use of force if the commander on the scene believed the captain’s life was in danger, so they fired, Admiral Gortney said. The lifeboat was about 100 feet from the Bainbridge when the shots were fired, a little after 7 p.m. Somalia time (seven hours ahead of Eastern time). The vice admiral said he did not know Captain Phillips’s location at the time the shots were fired, but given the length of the lifeboat, he was less than 18 feet from the snipers’ targets.

Some observations:

  • I’m no marksman, but hitting a pirate in the head on a moving platform at 100′ from a moving platform sounds ridiculously difficult. Kudos to the skill of the professionals on board USS Bainbridge.
  • Conservative hysteria aside, this is not a “walk the plank” scenario. If the USS Bainbridge executed the fourth pirate, who either surrendered or was conducting negotiations, then we’d have such a scenario. What went down, on the other hand, is much more akin to the resolution of a domestic hostage taking/kidnapping scenario.
  • I don’t feel at all bad for the pirates. They were given ample opportunity to surrender and face trial, and under the circumstances they certainly must have understood that maintaining ransom demands could be fatal. An understanding of why pirates act (both to survive AND to get rich) cannot preclude law enforcement activity.
  • I also wouldn’t have felt bad if the USN had guaranteed payment of the ransom, then simply arrested the pirates anyway. Payments to kidnappers and hostage takers in the domestic context is not seen as granting immunity; the police continue to investigate and conduct arrests even after the hostage is released. I don’t see why pirates should be treated with more courtesy.
  • Yes, Victor Davis Hanson is a silly, silly man. I shouldn’t have to point out the silliness of arguing that pirates thrive on feminist theory and unrelated apologies from President Obama, but for some reason people insist on taking this man and his ilk seriously.


[ 0 ] April 12, 2009 |

As I blame Strunk and White for adding a year to my dissertation (and thus taking a year of my life), I’m deeply sympathetic with this argument.

Lying Is Exhausting!

[ 0 ] April 12, 2009 |

Apparently, America’s Moral Sage Rick Warren was too “exhausted” to appear on This Weak. This exhaustion seems to have been caused by his straining to come up with a good explanation for lying about his support for Prop H8.

I suppose it is a sign of progress that at least he feels to compel to lie about his support for enshrining bigotry in the California state constitution…