Subscribe via RSS Feed

Tail Vigorously Attempts to Wag Dog

[ 0 ] June 10, 2009 |

Now this is fascinating:

In a sign of growing concern in Prime Minister Binyamin Netanyahu’s government over US President Barack Obama’s Middle East policies, Minister-without-Portfolio Yossi Peled proposed Israeli sanctions on the US in a letter to cabinet ministers on Sunday…

In the interim, the minister suggests reconsidering military and civilian purchases from the US, selling sensitive equipment that the Washington opposes distributing internationally, and allowing other countries that compete with the US to get involved with the peace process and be given a foothold for their military forces and intelligence agencies. Peled said that shifting military acquisition to America’s competition would make Israel less dependent on the US. For instance, he suggested buying planes from the France-based Airbus firm instead of the American Boeing.

This puts to test the notion that Israel is a major strategic asset for the United States, rather than a strategic liability. I have never been particularly convinced by the “Israel as asset” notion; it seems to me that underwriting the Israeli economy and Israeli military capability has had… limited strategic payoff for the United States. An irritated Israel could genuinely threaten the United States in the short term by selling advanced military equipment to China or Russia, or by sharing the fruits of US-Israeli intelligence cooperation with either. Both, of course, have already happened; the United States had to apply severe pressure to Israel to halt sales of military equipment to China, and Israeli intelligence cooperation with the Soviets in the 1980s resulted in the severe degradation of US capabilities in the USSR. The key thing to remember, however, is that Israel only has such leverage over the United States because of extraordinary US military and intelligence generosity; if the US were to cut the cord, Israel would have virtually nothing to offer the Russians or the Chinese. In terms of regional military capability, the United States obviously did not need Israeli assistance to undertake the simultaeneous conquest and extended occupation of two Middle Eastern countries. Israeli intelligence on the capability of Soviet weapon systems following the 1967 and 1973 wars did prove useful to the United States, but the technical characteristics of Syrian tanks and surface-to-air missiles are no longer overriding US security concerns. The Syrian and Iranian nuclear programs are a bit more of an issue for the United States, and Israeli intel has done good work especially with the former; given that the Russians and the Chinese don’t particularly care about the issue, however, I’m not convinced that it grants the Israelis much leverage. Israeli intelligence is focused primarily on states and organizations that threaten Israel, not on those that threaten the United States.

This is a short way of saying that Israel needs the United States MUCH more than the United States needs Israel. The Israelis can buy equipment from France and China and Russia and whoever else, but they are extremely unlikely to find a patron willing to undertake the degree of generosity that the United States has exhibited. There are good reasons for this generosity; the United States shares important ideological commitments with Israel, and there are longstanding ties between the Israeli and the American people. The key, however, is that American generosity is justified largely on the basis of these ideological and cultural ties, rather than on the somewhat nebulous notion that Israeli intelligence and military capability are really important to the security of the United States. China, Russia, or France might be happy to explore the limited fruits of tight cooperation with Israel, but none share the ideological and cultural connections that Israel has with the US. As such, the notion that Israel can actively threaten to hurt the United States is a bit silly; I sincerely hope that the Israeli strategic class isn’t taking the idea particularly seriously.


Giant Chinese Submarine Space Carriers Threaten American Way of Life

[ 0 ] June 10, 2009 |

It helps if you read these two posts with the soundtrack from “You Only Live Twice” playing in the background. Via Axe.

Overrated, Thy Name Is Nino

[ 0 ] June 10, 2009 |

I mentioned in my initial post about Caperton that it was a classic example of Scalia’s showy rhetoric concealing substantive points of highly dubious quality. To unpack this a bit, let’s consider the argument:

A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed—which is why some wrongs and imperfections have been called nonjusticiable.

The digression into Talmudic scholarship is actually pretty lame; his rhetorical gambits sometimes are more clever than this. But it’s there to distract you from the fact that the sentence that does all the work — “The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution” — is a feeble strawman beloved by both Scalia and the puddle-deep conservative pundits he resembles much more often than someone as smart as he is should. And it’s worse in context. It wouldn’t be out of place in a decision, that, say, used the 14th Amendment to try to fix major irrationalities in the tax code or the health care system, although the fact that one couldn’t imagine the Court doing such a thing makes clear how specious the argument is. But how is it somehow beyond the legitimate role of courts to attempt to ensure that lower courts are affording fair hearings? If this isn’t relevant to due process, what is? If the argument wasn’t so unserious, Scalia should be refunding most of his salary.

If I can borrow a point Mark Tushnet has made elsewhere, I’d also note that I don’t see any material difference between Caperton and Scalia’s opinion in Heller. In the latter case, Scalia (very plausibly) identified an individual right whose contours he left quite vague, applied it to nullify a relatively draconian statute, made it clear that some other more marginal and more common regulations would probably remain constitutional, and left marginal cases for future litigation. Similarly, Caperton plausibly identified a due process standard, applied it to a fairly extreme set of facts, made clear that more common, smaller donations would not require recusal, and left future marginal cases to future litigation. The Court acted appropriately in both cases, and Scalia’s claim that Caperton represents an “expansion of our constitutional mandate in a manner ungoverned by any discernable rule” a gross exaggeration.

Douthat Again

[ 0 ] June 9, 2009 |

Sorry, busy day with parental visit and various other tasks that need doing, but while I might get to this later see Roy, Barbara, Kathleen Reeves, K-Drum, and Athenae. I do have to address this:

“One reason there’s so much fierce argument about the latest of late-term abortions — Should there be a health exemption? A fetal deformity exemption? How broad should those exemptions be? — is that Americans aren’t permitted to debate anything else. Under current law, post-viability procedures are the only kind you’re allowed to even regulate.”

I note, once again, that an alleged conservative intellectual is either lying about the current law or lacks an even minimal knowledge of what he’s talking about. Unless by “regulate” he means “ban entirely” — which in context would be a another form of dishonesty — this is straightforwardly false. Both states and the federal government are not only permitted under Casey to regulate pre-viability abortions in all kinds of ways, but are permitted to ban some pre-viability procedures altogether. How many times to his editors intend to let him keep saying things about abortion law that are simply false?

…as always, see also Hilzoy.

You know it when you see it

[ 0 ] June 8, 2009 |

Following up on Scott’s post, Potter Stewart was famously derided for describing “obscenity” as something that can’t be pinned down by formal definition, but which nevertheless can be subject to a “you know it when you see it” test.

The mocking of this view always struck me as odd, given that huge numbers of legal standards (unavoidably) operate along similar lines.

Consider the ABA’s Model Code of Judicial Conduct, which says “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.”

The only way the facts in Capteron could be more egregious would be if the litigant had sent a certified letter to the judge telling him he’d give his campaign three million bucks if the judge cast the deciding vote the right way in the litigant’s $50 million lawsuit. West Virginia has adopted the Model Code, but like in almost every other jurisdiction the enforcement of that code is left up to the discretion of individual judges, who decide for themselves if, for example, being given three million bucks by a litigant in a case pending before the court in which the judge will cast the deciding vote might lead to the the judge’s impartiality being subject to reasonable questioning.

Roberts’ dissent adds up to the claim that drawing any line in these circumstances is worse than drawing no line at all, because of slippery slope concerns. That’s the same logic that leads some first amendment absolutists to claim laws against child pornography are unconstitutional — and it’s about as plausible.

Wankers of the Day

[ 0 ] June 8, 2009 |

Hiram Monserrate and Pedro Espada Jr. This is way-bayond-Lieberman wankery. Espada, in particular, has always been a world-class practitioner of the onanistic arts.

Due Process and Judicial Elections

[ 1 ] June 8, 2009 |

In a pleasantly surprising decision, the Supreme Court today held 5-4 (along predictable ideological lines with Kennedy as the swing vote) that West Virginia judge Brent Benjamin violated the due process rights of plaintiffs in a civil suit when he refused to recuse himself despite the fact that the chairman of the company appealing the verdict in favor of the plaintiffs had spent more than $3 million on Benjamin’s campaign. Kennedy’s opinion for the Court emphasized the extreme nature of the facts in holding that the appearance of bias in this case could not be consistent with due process:

Our decision today addresses an extraordinary situation where the Constitution requires recusal. Massey and its amici predict that various adverse consequences will follow from recognizing a constitutional violation here—ranging from a flood of recusal motions to unnecessary interference with judicial elections. We disagree. The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.

It is true that extreme cases often test the bounds of established legal principles, and sometimes no administrable standard may be available to address the perceived wrong. But it is also true that extreme cases are more likely to cross constitutional limits, requiring this Court’s intervention and formulation of objective standards. This is particularly true when due process is violated.

As the passage above suggests, Roberts’s dissent focuses on the alleged inapplicability of the rule, coming up with a 3940-part parade of horribles lamenting the fact that judges will actually have to apply discretion in determining whether the risk of judicial bias “is too high to be constitutionally tolerable.” (In his short dissent, Scalia combined his trademark advocacy of bright-line rules with his trademark showy-but-unilluminating rhetorical move, in this case quoting a Talmudic maxim.) At least Scalia and Thomas are being consistent, however. Note that when it comes to protecting the interests of big business Roberts and Alito have no objection to due process standards that require substantial judicial discretion. (And, certainly, reducing the appearance of judicial bias seems more central to due process concerns than limiting punitive damages.)

Because of its fairly minimalist nature, it will take a while to fully gauge the effects of today’s ruling. To the extend that today’s decision creates disincentives to buy judicial elections and increases incentives for judges to recuse themselves when there is a glaring appearance of bias, it must be considered salutary.

[X-Posted to TAPPED.}

Strasburg Superstar?

[ 0 ] June 8, 2009 |

Recently in comments somebody noted with regret that Stephen Strasburg would be wasted as a superstar on a bad team; using the (probably not very good) example of Brien Taylor, I noted that it was unlikely that Strasburg would be a superstar, as most “best pitching prospects in history” haven’t been close. This is a little more systematic in making the same point.

Or another way of putting it is that easily the best pitcher taken #1 overall was…Andy Benes. (With position players, on the other hand, you have first ballot HOFers like Griffey, Chipper and Slappy, plus Strawberry (HOF caliber player in career a little too short for Cooperstown) and Baines (very good player forever) and some guys like Burrell and Burroughs who were at least as valuable as Benes. And, yes, Mark Prior would almost certainly would have been better than Benes or Bannister or Belcher had he been healthy — but that’s the point. Pitchers tend to get hurt, and even if injuries don’t stop you from having a career they sap a pitcher’s ability. Strasburg almost certainly won’t be worth what Boras will try to get for him.

The UK Sends Fascists to Brussels/Strasbourg; Sweden Responds With Pirates.

[ 0 ] June 8, 2009 |

This does not surprise me in the least.  It’s been well known in the pol sci lit that the EU Parliament is best considered a “second order” election since the 90s (which is a fancy way of saying the EU Parliament is a largely powerless body devoid of meaning or purpose, so voters see fit to have all manner of fun with the process).  As such we will see a general protest vote against sitting governments as well as a shift from larger established parties to smaller, more radical (left or right) parties (very good paper by Marsh here).  What did surprise me is the general shift to the right across the entire EU, regardless of the ideological proclivities of the sitting government.  The right of center parties held their own in Germany and France, both governed by such (to be fair, Germany is in the midst of a Grand Coalition, but the Social Democrats are the junior partner, and they did get hammered.  Sarkozy’s party in France actually had the plurality of votes in the EUP election, which cuts against the grain).  

So the UK sends two BNP MEPs to Brussels, and 13 UKIP (United Kingdom Independence Party; they do what it says on the tin) MEPs.  It doesn’t make Britain racist, does it?  No more or less than it was in 2004.  What was impressive is just how hard Labour were pounded.  Labour finished third, behind the Tories and UKIP.  They lost an election in Wales for the first time since 1918.  In the Southwest England constituency, Labour finished fifth, behind not only the Tories and UKIP, but also the LibDems and the Greens.  The Southwest lost its sole Labour MEP as a result of this election (the EUP elections in England, Scotland, and Wales use PR, so the SW constituency has six MEPs; just to keep things interesting, Northern Ireland uses STV to elect its MEPs).
I’d say something about the relative success of The Party for Freedom in the Netherlands, led by Geert Wilders, who is banned from entering the UK due to his extremism, but at least the two BNP MEPs will have some drinking buddies in Brussels (and I know a few good pubs they can all hang out in together) but I can’t be bothered.  I do find the situation where a sitting MEP is barred from visiting one of the constituent states of the EU hilarious.  It would be like if a sitting Senator from North Carolina once said . . . oh, hang on.
A few more random thoughts on this: you have to embrace a country (Sweden) that elects one or two (presumably they’re still counting) MEPs from The Pirate Party.  A student, possibly one of mine, possibly in one of my classes, might have possibly once penned the following on a final exam: “equally important is that all country-members of the European Economic Community have the same currency, the Euro”.   Said student is British, attending a British university, presumably paid in Sterling at his or her part time job.  I wonder if this student voted on Thursday.  Finally, this result, while anticipated, doesn’t much help the case for Gordo.  

Shelby Steele’s Identity Politics

[ 0 ] June 8, 2009 |

Shorter Shelby Steele: Because she is a Latina, Sonia Sotomayor is ipso facto unqualified to be nominated to the Supreme Court. Her extremely impressive formal qualifications are beside the point; by definition, only white men and maybe reactionary African-American men can be qualified for the office.

Is the Cajun Primary the Answer?

[ 0 ] June 8, 2009 |

The comments to my Anarchy in the UK post on Thursday spawned an interesting discussion surrounding the cause of polarized politics in the CA state legislature.  While I agree the damning variable that impedes compromise is the 2/3 rule for budgetary measures, I still maintain that closed primaries tend to produce candidates to the left or right of the party support writ large.  There’s heaps of poli sci literature on this: the composition of a primary electorate is more engaged, and more ideological, on average, than either the support for either party in general, or the general electorate, thus you’re more likely (not always, but more likely) to get candidates more ideologically inclined than the general party support.

While I was reading my new Economist on Saturday (when my 2 yr 8 month old daughter would let me, that is) I was pleasantly surprised to see an article on the Washington State primary system (and the article juxtaposed the WA system against the mess in CA, which isn’t sporting).  WA used to have a blanket primary, which is the system I grew up with: no party registration, vote for a single candidate for each office, and the top vote getters from each party proceeded to the general election.  That is, until California adopted a similar system, which was in turn torpedoed by the USSC in California Democratic Party v Jones in 2000.  As collateral damage, that case also stuck down the system used in WA and Alaska.
Washington would not be deterred, and wide opposition existed against a closed primary used in ’04.  The resulting system results from the passage of I-872 in 2004, and was first used in 2008 (I believe — I now vote in the ‘Democrats Abroad’ primary; hey, we get seven entire delegates to the convention man, which I think puts us somewhere between Guam and the American Samoa in terms of influence).  It’s very similar to the Louisiana system (insert gratuitous comment about the suitability of taking pointers on political systems from said state) in that the top two vote getters proceed to the general election, regardless of party.  In theory, this should reduce the chances of ideological outlier candidates, as it creates an incentive for moderation.
I-872 was tossed by the 9th Circuit, but upheld by the USSC in 2008.  Having essentially grown up in WA, and considering my normative view that elections ought to reflect the policy preferences of the electorate as closely as possible, I find much merit in such a system.  However, a legitimate question regarding the role of parties in this process remains.  In the UK, candidates standing for Parliament are selected by their party, not the electorate.  The same is true in the NL, where I used to live; a candidate’s ordinal placement on the party list is a function of the party leadership.  In the US, the closed primary is the norm, thus limiting candidate selection to a declared subset of the electorate.  In WA, the party hardly matters.

The Deadliest Game

[ 0 ] June 8, 2009 |

Via Mr. Trend, we read of this morbid collection of stories about people killed in baseball-related injuries. Trend is right to wonder why the article fails to mention Ray Chapman (or a this more recent echo), but I was more surprised to learn that

[i]n the past 150 years, only one fan at a major league baseball game has been killed by a foul ball—a 14-year-old in Los Angeles named Alan Fish. The liner that fractured Fish’s skull came off the bat of Dodger pinch-hitting specialist Manny Mota…

Ron Carlson wrote a great short story in 1994 called “Zanduce at Second,” about a Baltimore Orioles’ third baseman who kills about a dozen people with foul balls during a stretch of several weeks. He can’t get a proper hit to save his life, but he can take out innocent fans almost at will. After reading that, I always wondered why life didn’t more often imitate art (at least at ballparks more crowded than the Metrodome, where the odds of a foul liner hitting an empty seat were a virtual lock.) I’m sure someone more mathematically capable than I could run a moderately simple calculation that shows that one dead fan in a century and a half is about right (based on the number of dangerous foul balls in any one game and the number of points on the human body that, having been struck, could lead to death, plus who the hell knows what other variables you’d need to know). But still. Only one?