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Forever in Blue Jeans and Baseball Caps

[ 0 ] April 16, 2009 |

Is George Will just another Lee Siegel sockpuppet?

Frankly, I think it would explain a lot.

UPDATE [BY SL]: I excerpt some gems from the column here.

Sarah Palin Crash-and-Burn Watch

[ 0 ] April 15, 2009 |

I’m starting to think my governor might actually be mentally ill:

Gov. Sarah Palin surprised lawmakers Tuesday by forwarding the names of three appointees to the single open state Senate seat. Two of them, Tim Grussendorf and Joe Nelson, have already been rejected by the Senate Democrats.

Palin said the third, Alan Wilson, is a “successful small businessman and active in the community.” He is a former president of the Alaska State Home Building Association and is currently president of Alaska Renovators, a Juneau remodeling company. Wilson only became a Democrat on March 4. He was previously registered nonpartisan, and Juneau Democratic Party officials are opposing him, as they did Nelson and Grussendorf.

Palin appears to have ditched the weird legal theories on which she was relying a few weeks back, when she argued that a 22-year-old legal memo provided sufficient basis to nullify a state law governing the selection of replacement legislators. Now, however, she’s apparently discovered a new way to read the law and — rather than submitting a single name (customarily selected from a list provided by local party officials) — she’s decided to submit a list of her own, indicating that among other things she doesn’t understand the meaning of simple parts of speech like “a,” “the,” or “another.” Tellingly, Palin’s misogynist and homophobic attorney general nominee believes the senate Democrats should stop arguing about whether the governor’s actions are “legal or illegal” and just accept someone to fill the seat.

Meantime, Palin seems wedded to the belief that the state’s capital city deserves unqualified, inexperienced representation in the upper house of the legislature. Tim Grussendorf, like Alan Wilson, had recently changed his party affiliation to qualify for the senate nomination; Wilson’s primary qualification appears to be that his wife sold her some shoes when John McCain decided to end the presidential race two months early she was named as McCain’s running mate. Joe Nelson’s party credentials were reputed to be similarly thin (though I’ll outsource the details there, since Nelson happens to be an administrator at a certain fine public university that has yet to grant me tenure.)

Some of this is rooted in Palin’s widely-known disregard for Juneau — a city she doesn’t believe should be the state’s capital to begin with — and some is surely part of the fallout from the Troopergate investigation (along with earlier conflicts with the legislature over line-item budget cuts). The rest of it is simply a function of Sarah Palin being a uniquely awful executive.

"When they have a club in their hands, no one is more sadistic. When the club is removed, no one is more whiney."

[ 0 ] April 15, 2009 |

What Glenn said.

Force Feeding

[ 0 ] April 15, 2009 |

The Yankees move from ordinary villainy to cartoonish super-villainy:

The New York Civil Liberties Union today filed a federal lawsuit against the NYPD on behalf of a Queens man who was ejected from the old Yankee Stadium last August after trying to use the restroom during “God Bless America.”

The lawsuit maintains that Bradford Campeau-Laurion, a 30-year-old lifelong baseball fan and resident of Astoria, was the victim of religious and political discrimination on Aug. 26, 2008 when police officers forcibly restrained and ejected him from Yankee Stadium after he tried to walk past an officer during the playing of “God Bless America.”

I *HATE* God Bless America.

Call It Democracy

[ 0 ] April 15, 2009 |

Via Yglesias, I see that Megan McArdle has actually pushed the logic of opposing judicial review because it involves decisions that (at least at the federal level) are made by unelected officials where it leads, arguing against an independent federal reserve. I actually think that this is to McArdle’s credit. As djw said, one of the strange things you encounter when reading a lot of constitutional theory is that the properties that allegedly make judicial review “deviant” are, in fact, utterly banal. I think there’s even a certain superficial attractiveness to the idea of considering decisions made by non-elected state actors “undemocratic”; I always like teaching Scalia’s Mistretta dissent, with its objection to creating a “junior varsity Congress” to make decisions elected officials are unwilling to. But my problem with both McArdle and Scalia’s arguments remains that they’re essentially useless. All modern liberal democracies involve large amounts of delegation to unelected officials, and it’s obvious that this is inevitable. Even smart and well-informed legislators are only going to be able to develop policy expertise with respect to a small percentage of what the state does, let alone have time to make the huge volume of relevant judgments. So if an instance of delegation works well — like the federal reserve — works well, I see no reason to dismantle it in tribute to a vision of “democracy” that never has existed and never will exist, and under any foreseeable set of circumstances probably wouldn’t even be desirable.

Another point to make is that the belief that judicial decisions mean that an issue will therefore be “insulated” from the political process that’s quite mistaken. In the case like the Iowa same-sex marriage decision — where there’s an explicit, not-terribly-cumbersome override mechanism and if the court’s decision is “final” it’s only because a majority of legislators and/or the public want it to be — this is clear. But even at the federal level, Supreme Court decisions can’t “insulate” issues from the political process. With respect to abortion, for example, the questions of which marginal regulations will apply to abortion has now been left almost completely to the political process, and the Supreme Court’s prohibition on total abortion bans stands only because of politics — because a bipartisan, cross-regional majority of senators defeated Robert Bork, largely because of his highly unpopular views about the right to privacy. Courts have real powers, but settling public policy disputes of any consequence or removing them from the political process isn’t one of them.

All Piracy, All the Time

[ 0 ] April 15, 2009 |

Dan Drezner and I talk piracy:

See also Spencer on piracy and navy reformers.

Non-Resignation Resignation

[ 0 ] April 15, 2009 |

Apparently, any flamboyant, extremely whiny public resignations notwithstanding, Jake DeSantis is still using the immense expertise he gained by knowing absolutely nothing about the relevant deals to collect paychecks from AIG. I’m sure he’s preparing an op-ed about his lost job security right now…

The Radical Harold Koh

[ 0 ] April 15, 2009 |

The man is so beyond the pale that even the well-noted Trotskyite Ken Starr has endorsed him.

The Post You’ve All Been Waiting For!

[ 0 ] April 15, 2009 |

If it’s mid-April, it must be time for the joint Berube-Lemieux Stanley Cup Playoff preview. Michael’s picks are here, and I’m dismayed that he’s not giving the Flames more respect after watching them humiliate the Rangers at MSG. Although, right, that came when some of our good defensemen were healthy. Never mind. In his spirit, I’m going to try not to just pick the chalk

The picks:


(1)SJ vs. (8) ANA This is an incredibly tempting upset pick. Any team with defensemen like Pronger and Niedermayer is a live dog, Giguere (despite is uneven year) has been to two finals and won one, and I like Carlyle. Still, this is a much older and thinner team, and before the matchups I thought that this really would be San Jose’s year, and I’ll stick with that. It won’t be easy, though. Sharks in 6.

(2)DET vs. (7) CLB Despite having seen them choke up a 3-goal lead live, my main impression of the Red Wings is just the obvious one: that they’re scary, scary good. Lidstrom — who I think might be the best defenseman of my hockey-watching lifetime, including Bourque — has barely lost a step, he’s well backed-up, and the forwards remain superb. Hossa was a terrific signing. I generally don’t like to pick teams in their first playoff run. And yet — partly to send a message that I don’t think the Wings will get out of the strong conference again — I’m going to pick the upset. Hithcock’s superb defensive coaching will, I think, mitigate the first-year jitters effect, and the general profile of the team seems similar to the ones that have pulled similar upsets (especially the Ducks). I also think Mason is the real deal, which brings us to the one thing about the Red Wings’ slight playoff underachievement Michael didn’t mention: Holland has, for reasons I can’t fathom, repeatedly taken his Bentley of a team and outfitted it with Lada goaltending. The rest of the team is so good that he’s gotten away with it more than he should, but I don’t think they can win with by far the first goaltending in the playoffs again. It may not catch up to them in Round 1, but it will. BLUE JACKETS IN 7.

(3)VAN vs. (6) STL Given that Luongo is the best goaltender in the conference and St. Louis (though on a nice streak) is the weakest of the teams new to the party, this is the easiest one for me to call in the conference. Vancouver probably doesn’t have the firepower to get to the finals, but they’re too well-disciplined to lose to a clearly inferior team. CANUCKS IN 5.

(4)CHI vs. (5) CGY I should probably be standing up for my team here, and you can make a case. As I’ve said, I don’t like first-time playoff teams, and I’m not sure Chicago’s defense is physical enough. Though once again uneven in the regular season Kiprusoff is talented enough to get very hot in the playoffs (cf. getting the Flames to Game 6 OT against Detroit in a series in which they were otherwise completely dominated in every game two years ago, after beating them two years before that), and their forwards are the deepest and most skilled in the conference after the big 2, and Bourque is apparently ready to go. If they can get far enough to get Regehr healthy, they could be very dangerous. But that’s the rub. I agree with Michael that you can’t pick a team facing the kind of skill Chicago has with their best defenseman out and their #2 and #3 gimpy. And Khabibulin owns the Flames. HAWKS IN 5.


(1)BOS vs. (8) MTL Since I picked Boston as a #8 seed last year, I’m certainly not giving up on them this year. I think that this year’s mediocrity is much closer to the Habs‘ real level than last year’s fluky #1 seed. BRUINS IN 5.

(2)WAS v. (7)NYR Sort of a similar dynamic to the 2-7 matchup in the West — the underdog has the Stanley Cup coach and the better goaltender. Except that Washington ain’t nearly as good as the Wings, even if they have the best player the sport and Green has become the defenseman Phanuef was supposed to be. I like the upset. RANGERS IN 7.

(3)NJ vs. (6)CAR A lot of people see the upset here, because the Devils slumped a bit before the playoffs. But I see the Devils as similar to the Canucks — don’t quite have the offense to go all the way, but it will take a clearly better team to beat them. DEVILS IN 6.

(4)PIT vs. (5)PHI Very interesting series, and tempted to pick the upset as my gut all year has told me that the Penguins won’t get back to the finals quite yet. But I don’t like the matchup the Flyers have; I think Malkin, Crosby et al. will survive at least one round. PENS IN 5.

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.