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False Equivalences

[ 16 ] September 19, 2008 |

As one would expect, Stuart Taylor’s article about the campaigns is a masterpiece of false equivalence, using such tricks as balancing lies and smears from John McCain’s campaign with stupid articles in the New York Times that the Obama campaign had nothing to do with. He also somehow gets through an article about campaign lies without mentioning McCain and Palin’s constantly repeated howlers about the “bridge to nowhere.” He approvingly cites Byron York’s defense of the McCain campaign’s claim that Obama “wanted to teach kindergartners about sex” while failing to notice that the “age-appropriate” proviso completely destroys York’s argument. But I especially enjoyed this one:

McCain also deserves criticism for the ugly culture-warring epitomized at the Republican convention by Rudy Giuliani’s keynote speech and sneers about Obama’s stint as a community organizer. But who started the culture-warring? Democratic talking heads and pols–although not Obama–heaped disdain on Palin’s social class, religion, and anti-abortion values from the moment that McCain plucked her from obscurity.

First of all, it’s a big country so I don’t want to say that there are no isolated examples of “Democratic talking heads and pols” disparaging Palin’s “social class” or “religion,” but Taylor really needs to provide evidence that such attacks were made with any frequency by people with any influence. Rather, this strawman has is used by Republican hacks precisely to insulate Palin from any substantive criticism. Which brings us to the next point — Taylor also arguing that it’s not legitimate to criticize Palin’s “anti-abortion values.” Palin is in favor of using state coercion to force women to carry pregnancies to term, and as president would have the power to appoint judges who would allow state governments and the federal government to do that. Since when is it beyond the bounds of acceptable discourse to discuss these views?

And, of course, there’s an even more risible argument — the idea that “culture war” attacks started with unamed attacks on poor Sarah Palin. Yes, no Republican operative or McCain campaign flack would ever dream of attacking Obama as an arugula-eating urban elitist who can’t bowl if some blog commenter somewhere hadn’t said something dumb about Palin’s family.

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An Argument About Nothing

[ 16 ] September 19, 2008 |

On the issue of the citation of foreign law in United States Supreme Court opinions, I think this is the key passage in Adam Liptak’s recent article:

The controversy over the citation of foreign law in American courts is freighted with misconceptions. One is that the practice is somehow new or unusual. The other is that to cite such a decision is to be bound by it.

Even conservative scholars acknowledge that American judges have long cited decisions by foreign courts in their rulings. “The Supreme Court has been doing it for basically all of our history, and with some degree of gusto,” said Steven G. Calabresi, a law professor at Northwestern and a founder of the Federalist Society, a conservative legal group. Professor Calabresi said he generally opposed the citation of foreign law in constitutional cases.

Judicial citation or discussion of a foreign ruling does not, moreover, convert it into binding precedent.

So, first of all, the practice has been a banal one going back to at least the Marshall Court. And even more importantly — as even several of the conservatives working themselves into a foaming-at-the-mouth outrage about this banal practice seem to concede in the course of the article — the idea that references to foreign legal precedents actually affect Supreme Court holdings in any significant way is exceptionally implausible. Nobody’s vote in Roper would have changed if there was a norm against referring to the law in other nations. So who cares? In a nice article unfortunately not available for free online, Mark Tushnet correctly notes that this silly controversy is about the culture wars, not about law.

I think it’s also worth addressing this:

At their confirmation hearings, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. indicated that they were opposed to the citation of foreign law in constitutional cases. Chief Justice Roberts noted that foreign judges were not accountable to the American people and said that allowing the use of foreign precedent expanded judicial discretion.

“Foreign law, you can find anything you want,” Chief Justice Roberts said. “Looking at foreign law for support is like looking out over a crowd and picking out your friends.”

This argument (borrowed from Scalia) has the obvious problem that it’s equally applicable to any data source or method of interpretation. Certainly, it’s true of originalism: between the multiplicity of historical sources and the ability to define constitutional principles at different levels of abstraction a judge can virtually always identify friends which confirm her ex ante preferences, and in those rare occasions where this isn’t possible Scalia et al. will just ignore the evidence anyway. Scalia’s agrument that courts shouldn’t refer to legislative history has the same problems. Of course, legislative history can be misleading, but since this is true of any source of evidence it’s not clear why it’s useful to rely on a smaller number of potentially misleading sources of evidence.

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Impetus For An Amendment?

[ 108 ] September 19, 2008 |

Yglesias, commenting on the stupid rule for resolving electoral college ties, notes that “there’s no good reason to wait until after something stupid happens to pass a constitutional amendment to change it.” This is true, but alas probably unrealistic. What I wonder is whether a scenario in which Obama loses the popular vote but wins the electoral college would actually create enough support for an amendment giving the U.S. an electoral system consistent with a 21st century democracy. It’s not as if it favors small states that much, but who knows. There is some precedent for amendments correcting the most obvious screw-ups in the system after they’re revealed, but they don’t clearly benefit the interests of a minority of states the way the electoral college does.

The bigger problem here, of course, is the onerous supermajority amendment requirements in Article V. In general, this hasn’t been as big an issue as it might because constitutional norms have evolved in ways that constitute de facto amendments. And in a sense the electoral college is no exception; starting 1800 a norm that the president should be popularly elected has been in effect, and make the electoral college replicate a democratic vote as closely as possible. But, as has been demonstrated in this decade these norms can’t fully close the gap, and the institution really ought to be abolished by constitutional amendment. Barring elections in close sucession in which a candidate from each party gets screwed, though, I don’t see it happening.

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Johnny, show the folks at home what they’ve won

[ 0 ] September 19, 2008 |

Trillions of dollars in distressed mortgages and their associated financial products!

The Manchester United Association Football team!

But wait, there’s more . . . take a look at this handy vegetable steamer!

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Less Than Credible Witnesses

[ 6 ] September 19, 2008 |

Cole has the scoop on some of the soldiers who had engaged in self-righteous attacks on Scott Beauchamp. Apparently, the winger talking point that if a practice wasn’t consistent with SOP it therefore couldn’t have happened is even dumber than it was on its face, which I frankly didn’t think was possible…

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There’s A Lot of Incomptence There

[ 0 ] September 19, 2008 |

Dave Cameron asserts that the Bedard-for-pretty-much-every-decent-prospect-the-Mariners-have-recently-produced deal is “[i]n terms of results…easily the worst trade in franchise history.” As stated, I think this is clearly wrong. Jones had a pretty good year for his age and position, but there’s no way that in terms of results this trade has remotely approached Swift/Jackson/Burba for Mitchell or Slocumb for Varitek/Lowe in terms of negative value. Over time, Bavasi’s folly may prove even worse, but as of now to declare such an outcome is premature. Bavasi and his superiors are remarkably inept, but Woody Woodward really shot a lot of bricks in his own right.

If the argument is about the logic of the trade at the time, of course, the argument is more tenable.

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The end of the affair

[ 9 ] September 19, 2008 |

Shorter Elizabeth Drew:

Me and John McCain
We had a thing
Goin’ on

Drew becomes the latest in the increasingly long line of journalists to walk out on the news media’s longest-running illicit love affair.

And given how long the affair lasted, it’s not surprised that amid all the hurt and betrayal a lot of confusion about exactly what happened remains.

Drew, who wrote a fulsome book-length tribute to McCain in 2002, now more than suspects that, in the end, she and her colleagues were simply being used all along:

While McCain’s movement to the center was widely popular (if not on the right) – and he even flirted with becoming a Democrat – there’s now strong reason to question whether it was anything but a temporary, expedient tactic. (In his 2002 memoir, “Worth the Fighting For,” he wrote, revealingly, “I didn’t decide to run
for president to start a national crusade for the political reforms I believed in or to run a campaign as if it were some grand act of patriotism. In truth, I wanted to be president because it had become my ambition to be president. . . . In truth, I’d had the ambition for a long time.”) When he decided to run for president in 2008, he felt he couldn’t win without the support of the right, so he adapted. In retrospect, other once-hailed McCain efforts – his cultivation of the press (“my base”) and even his fight for campaign finance reform (launched in the wake of his embarrassment over the Keating Five scandal) now seem to have been simply maneuvers. The “Straight Talk Express” – a brilliant p.r. stroke in 2000 – has now been shut down.

But, having looked the whole sordid business in the face, Drew can’t quite bear to consider that there wasn’t a time when things were different, and the Dreamboat Maverick-turned-Unprincipled Scumbug really was different than all the rest, if only just a little:

McCain’s caving in to this “compromise” [on the anti-torture
legislation] did it for me. This was further evidence that the former free-spirited, supposedly principled, maverick was morphing into just another panderer – to Bush and the Republican Party’s conservative base.

Even in the course of a single sentence, she can’t make up her mind regarding whether those sweet mavericky nothings he used to whisper were never more than a calculated pose, and indeed the most disingenuous of all: since being “candid” and “straight-shooting” primarily because — and therefore only so long as — it’s an effective political tactic is actually more reprehensible than good old fashioned honest lying.

Ah, you should have changed that stupid lock . . .

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Ha Ha Ha Ha Ha!

[ 0 ] September 18, 2008 |

*Snicker* chortle heh heh heh heh.

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Thursday Frigate Blogging

[ 0 ] September 18, 2008 |

Meet SPS Almirante Juan de Bourbon. She is 6200 ton AEGIS frigate (more of a destroyer, really), capable of 29 knots and armed with SM-2 Standard surface-to-air missiles, Harpoon surface-to-surface missiles, and anti-submarine torpedos. SPS Almirante Juan de Bourbon (named after King Juan Carlos’ father) was one of the first NATO warships to enter the Black Sea following the South Ossetia War. If Georgia were admitted to NATO (as Senator McCain has suggested), and if Russia nevertheless attacked Georgia, SPS Almirante Juan de Bourbon would be expected to shoot down Russian aircraft, sink Russian ships and submarines, and endure Russian attacks.

Spain’s prime minister, however, should not expect an invitation to John McCain’s White House.

…via Juan Cole, it appears that it was Spanish intelligence that blew the whistle on the inaccurate airstrike that killed 92 civilians in Afghanistan a couple of weeks ago. Unrelated, I’m sure.

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McCain campaign: Our candidate is crazy, not senile

[ 27 ] September 18, 2008 |

This story is getting better all the time.

It’s pretty clear from the interview that McCain is a very tired old man who was having trouble concentrating, while being interviewed by a native Spanish speaker with an accent who was speaking pretty fast. And even though she asked him four separate times if he would invite Zapatero to the White House, and helped him out a couple of those times by mentioning that Zapatero is the head of the Spanish government, McCain was confused about who Zapatero was (even though he was doing an interview with a Spanish radio network).

But instead of owning up to this, the McCain campaign, using their standard operating procedure, decided to think up a lie and think one up quick, to wit: McCain was fully intending to say that he would refuse to meet with the head of the government of a NATO ally — a country we are by treaty required to defend with military force if they’re attacked (by someone other than us I suppose). As Kevin Drum and others are pointing out this is a fairly insane position to take, but the campaign people have clearly calculated it’s less damaging than to admit that he was just out of it.

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The Mind Boggles

[ 26 ] September 18, 2008 |

My governor, promising thorough reform:

Through reform, absolutely. Look at the oversight that has been lack [lax?], I believe, here at the 1930s type of regulatory regime overseeing some of these corporations. And we’ve got to get a more coordinated and a much more stringent oversight regime . . . government can play a very, very appropriate role in the oversight as people are trusting these companies with their life savings, with their investments, with their insurance policies, and construction bonds, and everything else.

I would suggest here that Sarah Palin is pig-ignorant, but that would be an insult to pigs. Pigs, after all — being pigs — know what it is that they’re supposed to do each day, what with the rooting and wallowing and squealing and such. Sarah Palin, apparently, does not realize that modern American conservatives did not object to the regulatory innovations of the New Deal because they were antiquated, but rather because they existed in the first place. And modern conservatives — like the erstwhile economic adviser to John McCain, to say nothing of John McCain himself — rectified the problem by sending those regulations into the spindler.

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Wallace Links

[ 0 ] September 18, 2008 |

A useful collection of writings (fiction and non-fiction) from the late David Foster Wallace available online. I particularly recommend “Tense Present” and his take on Updike.

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