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Freedom Is Forced Pregnancy

[ 0 ] May 12, 2009 |

Shorter Verbatim Ross Douthat: “The pro-life movement is arguably more comfortable with the language of rights and liberties than its opponents. Abortion foes are defending a right to life grounded in the Declaration of Independence, after all, whereas pro-choicers are defending more nebulous rights (privacy, autonomy, etc.) supposedly grounded in “penumbras” and “emanations” from the Constitution.”

Yes, I would have to say that nothing says “freedom” to me like “using (inevitably arbitrarily applied) state coercion to force women to carry pregnancies to term.” And I guess the American public’s massive comfort with the right to privacy is manifested in such things as strong majority support for Roe v. Wade, the fact that no nominee who explicitly denied the right to privacy could be confirmed to the Supreme Court, etc.

Later, he goes on to repeat his frankly absurd implication that there has been no “rollback of Roe’s near-absolute guarantee of abortion rights.” Again, “making clear that virtually every regulation short of a ban is constitutional” is a very curious form of “absolutism.” (Were that Douthat were right that Akron was still good law.) And perhaps some day he’ll explain why there’s some moral significance to pre-viability abortions that occur during the second as opposed to first trimester, but I’m not holding my breath.

…in response to complaints that the linked data is not sufficiently up-to-date, the most recent survey asking about support for Roe v. Wade shows public support for upholding the decision by nearly 20 points, which as anyone who knows anything about the subject knows has been remarkably consistent (like most aspects of public opinion about abortion since the early 70s.) How people answer ancillary questions about abortion is, of course, beside the point in this context.

Torture and shaming

[ 0 ] May 12, 2009 |

One possible response.

"Who-Whom" / "Theory-Policy"

[ 0 ] May 12, 2009 |

A couple of weeks ago at the Duck I poked fun at the debate Joseph Nye stirred up about whether IR theory is relevant to thinking about foreign policy. [He’s still at it, by the way; check out this bloggingheads.]

Then I got my copy of this month’s Foreign Policy. All I can say is, if Strobe Talbott can go around presaging his prognostications about great power politics and Russia’s rise with reference to Hobbes’ state of nature and Kant’s perpetual peace, then we’ve got nothing to worry about.

Strong men also cry…

[ 0 ] May 12, 2009 |

Shorter Donald Douglas:

The moral depravity of the collectivist, nihilistic left is most clearly revealed in their willingness to Photoshop to depict James Inhofe as a clown, or their willingness to compare me to this picture of an improbably aroused moose.

Everyone seems to be amused by Donald these days — Edroso and SEK most recently — but folks should recall that the soul of our friend Americaneocon is indeed easily wounded. If all the merry-making ruins his sense that he’s increasingly prominent neoconservative, he might just go ahead and become as mean as the rest of us.

Score One For Karlan

[ 0 ] May 11, 2009 |

She may have already been at the top of my short list, but this is a strong point in her favor:


Who Bloody Well Cares Whether Torture is Effective?

[ 0 ] May 11, 2009 |

Lots of people are still wasting their breath arguing about how effective torture may be. Now, Joshua Tucker of the Monkey Cage is ruminating about the ethical responsibility of social scientists to weigh in on the debate:

“Which leads to another question: should social scientists be engaging in research where we only want to share the results if they come out in one particular direction? I personally believe US national security is harmed by the use of torture in any form by our government, so I would welcome good empirical findings that provide added weight to arguments against the use of torture. But despite that goal, should I actually engage in research if I’m not willing to accept (or publish) findings to the contrary?

At Foreign Policy, Dan Drezner takes a clear-cut position.

I, too, would welcome good empirical findings showing that torture does not work, but my answer to Josh’s questions are “no.” You have to publish your findings regardless of what you discover. That’s the only way this business can work.

I’m with Dan on the importance of not hiding research findings. But this whole discussion misses the mark. Torture probably does work occasionally. But so what? The whole point of the anti-torture regime is to stay the Inquisitor’s hand even when it’s in our interest to torture. If we only refused to torture when/if there was no conflict with our self-interest, the rule would be unnecessary. Torture is wrong because it’s wrong, not because it’s never effective.

So the ethical problem for social scientists begins not when the numbers have been crunched (actually, they already have been), but when we frame the question in the first place. The more we get into the study of torture’s effectiveness, the more we legitimate the idea that effectiveness matters. It shouldn’t.

What is Wrong With Working Women?

[ 0 ] May 11, 2009 |

The Times can always find something…

Double Standards and Supreme Court Appointments

[ 1 ] May 11, 2009 |

Two good posts from the XX factor about the anti-Sotomayor smear campaign. First, Bazelon explores the obvious double standards in the criticisms of Sotomayor’s temperament. (See also here.)

Second, Lithwick notes Jeffrey Rosen’s longstanding assumptions about the mediocrity of candidates who aren’t white men:

But more troubling still, he seems to have been arguing that female jurists are by definition “mediocre” for more than a decade! Here’s a piece he did for the New York Times in 1995, arguing that President Clinton’s “single-minded pursuit of diversity, combined with an eagerness to avoid controversy, has kept him from appointing the best available legal minds to the courts.” He then names the many, many white men passed over for federal judgeships and contends that liberal judges lack the intellectual firepower to challenge brilliant conservative jurists because “nearly 60 percent of the Clinton appointments have been minority members and women.” (Read: mediocre.) His single data point to illustrate that mediocrity: Instead of appointing a serious intellectual heavyweight to the Seventh Circuit Court of Appeals (a/k/a “The scholars Court”), Clinton tapped “Diane P. Wood, a little-known professor of antitrust law at the University of Chicago, who is currently an assistant to Deputy Attorney General Anne Bingaman.”

That same mediocre Diane Wood is not only on every shortlist for the Supreme Court today. She’s also widely regarded as one of the finest judges on the bench, to whom other brilliant judges turn for reviews of draft opinions.

What’s striking about this is that not only is Rosen’s judgment spectacularly wrong in retrospect, it doesn’t even make any sense contemporaneously. Generally, if I was trying to demonstrate that a nominee was an intellectual mediocrity, their position at one of the 5 or 7 best law schools in the country isn’t the evidence I’d go with. Compare Wood’s record to that of, say, Antonin Scalia, as described by Tushnet in A Court Divided:

The law schools Scalia taught at were in the top tier of law schools, but he wasn’t one of either school’s superstars. He was at the top of the second rank of law professors in his generation. His specialty was administrative law, not constitutional law. The titles of his major law review articles give some indication of his interests [omitted]…These were good, solid articles about good, solid topics in administrative law, but they didn’t transform even that field.

Wood would seem to have a record that, a minimum, could match up with Scalia. But does anyone think in a million years that Rosen would have attacked Reagan for diluting the intellectual caliber of the D.C. Circuit by putting Scalia on it? Would anybody take such a claim seriously? These questions answer themselves.

Comment Elevation of the Day

[ 0 ] May 11, 2009 |

This from mrv is worth highlighting:

The recent articles focusing on the absence of memorable language from Souter’s opinions to a certain extent missed that there are other measures of good argument besides pithy quotes. A line of reasoning should be persuasive because of its content and not just because of the particular words chosen to express that content. This post presents a fine example of that.

And some pithy quotes are actually counter-productive even as attempts at persuasion, for instance if they hold one’s colleagues up to ridicule as Scalia seems fond of trying to do.

The fact that Souter showed no interest in the art of the quotable but often simplistic or unilluminating catchphrase is one of the old-fashioned virtues for which he merits admirtaion.

Bacon Vodka

[ 0 ] May 11, 2009 |

I actually know the inventors of this ridiculous product, although I haven’t tried it.

I can’t decide if the possibility they might get very wealthy from this is one of the worst things about capitalism, or one of the best.

Souter’s Greatest Hits

[ 1 ] May 10, 2009 |

I’ve seen in several places that Souter, while an admirable justice, didn’t produce a lot of memorable quotes. I suppose this is true. But his coruscating demolitions of the Rehnquist Court’s “sovereign immunity” jurisprudence shouldn’t be forgotten. Souter is particularly good about noting that the alleged “background principles” that allowed the Court to find a prohibition on citizens suing one’s own state without its consent — although the text of the Constitution explicitly limits the prohibition to citizens of other states — are relics of monarchical systems with no obvious applicability to democratic states where governments rule with the consent of the governed. From Alden v. Maine:

It is symptomatic of the weakness of the structural notion proffered by the Court that it seeks to buttress the argument by relying on “the dignity and respect afforded a State, which the immunity is designed to protect”…Apparently beguiled by Gilded Era language describing private suits against States as “ ‘neither becoming nor convenient,’ ”the Court calls “immunity from private suits central to sovereign dignity,” and assumes that this “dignity” is a quality easily translated from the person of the King to the participatory abstraction of a republican State…The thoroughly anomalous character of this appeal to dignity is obvious from a reading of Blackstone’s description of royal dignity, which he sets out as a premise of his discussion of sovereignty:

“First, then, of the royal dignity. Under every monarchical establishment, it is necessary to distinguish the prince from his subjects… . The law therefore ascribes to the king … certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater ease to carry on the business of government. This is what I understand by the royal dignity, the several branches of which we will now proceed to examine.”

It would be hard to imagine anything more inimical to the republican conception, which rests on the understanding of its citizens precisely that the government is not above them, but of them, its actions being governed by law just like their own. Whatever justification there may be for an American government’s immunity from private suit, it is not dignity.


The resemblance of today’s state sovereign immunity to the Lochner era’s industrial due process is striking. The Court began this century by imputing immutable constitutional status to a conception of economic self-reliance that was never true to industrial life and grew insistently fictional with the years, and the Court has chosen to close the century by conferring like status on a conception of state sovereign immunity that is true neither to history nor to the structure of the Constitution. I expect the Court’s late essay into immunity doctrine will prove the equal of its earlier experiment in laissez-faire, the one being as unrealistic as the other, as indefensible, and probably as fleeting.

However, as Souter pointed out in a previous case — in which the Court held that it would violate this mysterious “dignity” of the states to enforce agreements they made, at the invitation of Congress, in an area of plenary federal authority — to compare the work of the Rehnquist Court in this line of cases to Lochner is unfair. To Lochner:

The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common law or background principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of which is to limit the exercise of governmental power. Some textual argument at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution’s grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal question jurisdiction.

I hope that Souter is right that this embarassing line of cases will ultimately be overruled. But nobody will make the case about why they should be any better.


[ 0 ] May 9, 2009 |

I’m hosting a book salon and discussion with Ben Page, a co-author of Class War? What Americans really think about Economic Inequality, starting right now at firedoglake.