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I Agree With Belle

[ 0 ] June 27, 2007 |

Yes, given the choice of Republican Law and Order alums, I also would much prefer to sleep with Angie Harmon than Fred Thompson.

Oyez: Not Trustworthy?

[ 1 ] June 27, 2007 |

I’ve discussed before the phenomenon of a textbook repeating the right-wing canard that Bush v. Gore was 7-2. And now I see that Oyez, normally a valuable resource, is printing a lie about the vote in the case:

the per curiam opinion held 7-2 that the Florida Supreme Court’s scheme for recounting ballots was unconstitutional.

This claim is straightforwardly factually erroneous (it’s not even phrased in a weaselly technically-accurate-but-misleading way, like “7 justices found an equal protection violation of some sort.”) Breyer and Souter dissented. Full stop. They did not concur in part and dissent in part. They did not join the equal protection analysis of the majority, period; this is not a matter of debate. The fact that they identified an equal protection problem does not mean that they identified the same equal protection problem as the per curiam. To say that Breyer and Souter only disagreed about the remedy is missing the point; Breyer and Souter were pointing out that the remedy was wholly inconsistent with the equal protection violation they found. The difference on the remedy was also a difference on the merits.

Anyway, the per curiam opinion had 5 votes, not 7, and it’s dismaying that a resource so many students rely on is repeating right-wing spin in the immediate wake of the decision rather than the actual facts of the case. (Interestingly, the much-maligned Wikipedia actually gets it right.)

Who/What Should be the Focus of the Abortion Debate?

[ 0 ] June 27, 2007 |

I arrived on the promise to write more about criminal justice, but it seems like there’s been a lot of straight up repro freedom news these days. I wrote the other day about Melinda Henneberger’s truly atrocious NY Times Op-Ed. (Side note: later that very same day I received an email offering me a free copy of the book to review. Funny, eh?)

Yesterday the Times published the Letters to the Editor in response to the piece. Predictably, there was the letter from the “pro-life feminist” (who calls those who support repro freedom “bleeding heart liberals”), the letter from the person proclaiming that Henneberger is right on point (who calls on the “warriors of the women’s rights movement” to change their priorities). And then there’s the good stuff — a letter from Nancy Northup, head of the Center for Reproductive Rights, and – most interestingly – a letter from National Advocates for Pregnant Women founder and exec. director Lynn M. Paltrow (full disclosure: a friend and mentor of mine). Here’s why Lynn’s letter stands out: it’s not about how wrong Henneberger is (though she is indeed) but about how wrong the rhetoric on the reproductive rights side can be. She writes:

Melinda Henneberger notes that opponents of abortion have made progress by making abortion a “human rights issue comparable to slavery.” The real problem, though, is that pro-choice advocates have defended abortion rather than the women subjected to such outrageous analogies.

Sixty-one percent of women who have abortions are already mothers, and another 24 percent will go on to become mothers. Eighty-five percent of all women bring life into this world and provide the majority of care for the lives of those around them. Individual pregnant women, whether seeking to end a pregnancy or to go to term, are certainly not the same as governments that use state power to enslave particular groups of people.

Failing to defend pregnant women — mothers and caregivers — against such comparisons is what is bad for pro-choice advocates, Democrats and Republicans alike.

The slavery point is worth noting, if only because BOTH sides of the abortion debate have compared it to slavery — on the abortion rights side, it’s the forced pregnancy that compels a woman into servitude; on the anti-freedom side, it’s the fetus whose personhood is not acknowledged (hence the “Dred Scott” secret phrase). But what really piqued my interest here is that Paltrow takes this is an opportunity to obliquely criticize Henneberger, but to blatantly take much of the mainstream pro-choice movement to task. And she’s got a point. By focusing on the abortion procedure itself, we (reproductive justice activists and advocates) buy into the antis’ trap — we put a procedure about which many people feel uncomfortable in the spotlight. How might it change the conversation if we stopped talking about abortion itself and started talking more about the women — many of them already mothers, as Paltrow points out — who have abortions?

Many people are going to say this won’t work — talking about women’s autonomy wasn’t successful before Roe and hasn’t been successful since. But this strategy is not about intangible concepts like freedom and autonomy. It’s about actual women and their real lives. I think it’s a pretty compelling turn of phrase.

Pick a Theory, Any Theory

[ 0 ] June 27, 2007 |

At this thread over at TAPPED, some commenters tried to defend Scalia’s credentials as a principled originalist who was never political. In response, I mentioned Bush v. Gore, which not only had no conceivable “originalist” justification but failed to conform even to basic standards of the rule of law in order to legitimize the presidency of Scalia’s favorite candidate. A commenter then responded with an, ah, innovative defense:

True, the court didn’t rely on originalist arguments in Bush v. Gore, but that route was arguably foreclosed to it. Otherwise, you would have it overturn precedent that forbids arbitrary and disparate treatment to a state’s voters in its different counties – a precedent established in 1963. Scalia recognizes the doctrine of stare decisis saying it is a compromise operating on all judicial philosophies, origninalism no less than any others.

I trust that the argument that — on the same week in which Scalia called for pverruling two long-standing landmark precedents that were actually directly controlling to the case at hand! — Scalia had no choice but to accept stare decisis in Bush v. Gore based on a precedent that said absolutely nothing about how ballots cast with different voting systems should be counted is too transparently silly to merit substantial engagement. But this desperate gambit can be used to illustrate why grand theories don’t do very much to constrain judges in practice.

The first reason “originalism” doesn’t have a strong constraining effect is that even serious historians will disagree about historical evidence, and law office history generally falls well below these standards. Constitutions and statutes involve agreement among sufficiently diverse parties that originalists can often cherry pick evidence from some politically congenial source to resolve ambiguities. (If you want to (inplausibly) justify Brown v. Board in originalist terms, for example, you can focus on some Radical Republicans, place less emphasis on other legislators, and ignore the state ratifiers altogether.) If that doesn’t work, you can always climb Originalism’s Ladder and define broad constitutional principles at whatever level of specificity happens to support your desired outcome. This can justify a wide range of outcomes, but a potentially inconvenient side effect is that once you permit principles to be defined at a sufficiently high level of abstraction William Brennan’s jurisprudence can be just as plausibly be called “originalist” as Robert Bork’s.

But sometimes — as with, for example, federal affirmative action statutes, or Bush v. Gore — even this won’t fly. So then you can declare that originalism can be constrained by stare decisis, and even if you’re not hackish enough to claim that Bush v. Gore is supported by compelling precedents a pretty wide range of additional outcomes can now be justified, and Supreme Court justices have wide discretion about when to apply precedent and when not to. And to borrow a point from Jeffrey Rosen, in Scalia’s specific case you can also cite “textualism” and “traditionalism,” which gives you even more discretion. The text of the Constitution says nothing about equal protection not applying to gender? No problem; you become a traditionalist, and without paying virtually any attention to the text of the Constitution simply note that the country has a long history of gender discrimination that you decide is therefore self-justifying. But the country also had a long tradition of banning interracial marriage? Look, it’s Halley’s Comet!

This is not to say that these principles have absolutely no content, especially in the case of Thomas. And as I’ve said before, even the sporadic commitment of Scalia and Thomas to “originalism” is preferable to Alito, who is similarly reactionary without much of an overaching grand theory. But the idea that “originalists” are engaged in entirely non-political or non-”outcome-oriented” judging is obviously untenable.

Seems About Right

[ 0 ] June 27, 2007 |

From a chat at the Washington Post, responding to the Fred Hiatt’s bizarre decision to hire Slate‘s scientifically and mathematically illiterate advice columnist to share some inane thoughts about climate science and how Al Gore is very, very scarrrrrryyyyyyy [/Count Floyd]:

Silver Spring, Md.: I think Copernicus, Galileo and the modern astronomy community are all wrong about the sun-centered solar system. I don’t have any data, or any particular expertise in the field. All I know is that it bothers me to have people saying we orbit the sun, when I can clearly see it moving across the sky. Plus it is scaring the children to hear people talk about it. Could you tell me how to get an op-ed piece published at The Post? I hear they have no standards for this anymore. Thank you!

Eugene Robinson: I think there must be a Bush administration science panel that has a spot for you!”

Good one. And, of course, if there’s no science panel currently hiring there’s always the Supreme Court of the United States


[ 0 ] June 26, 2007 |

Make sure to pass condolences on to Lindsay.

Fraud Caucus

[ 0 ] June 26, 2007 |

It is definitely true, of course, that talking about how the war is awful while you continue to give the Bush administration everything it wants is much, much worse than just uncritically supporting the war. The effect is precisely the same, but the latter at least could theoretically be idiocy undertaken in good faith while the former position wants to add some unjustified self-congratulatory moral preening on top of their de facto support of the war. Lugar deserves less than no credit.

Who’s Winning in Anbar?

[ 0 ] June 26, 2007 |

One can rarely peruse a right wing blog these days without reading about how “we’re winning” in Anbar. The talking point stems from the decision, in September of last year, of a number of tribal elites in Anbar to focus on operations against Al Qaeda, instead of against the United States military. As Jim Henley notes, crafting an alliance with tribal elites is hardly without risk, and does not constitute “victory” in any meaningful sense for the United States. The US is currently enrolling in Iraqi police and military units tribesmen who were, ten months ago, part of the insurgency. The loyalty of such individuals can hardly be taken for granted; the tribal elite may decide, six months from now, that they are no longer pleased with the US and shift against us.

Even if the tribal elites remain loyal, the alliance poses a larger problem for basic US war aims. The alliance with these tribes serves, necessarily, to strengthen them as political units. Strengthening the tribes invariably weakens the central government. As the tribes are also among the least progressive and least interested in democracy of any Iraqi political constituencies, strengthening them also helps undercut efforts towards democratization. So, to the extent that the US goal remains the creation of a strong, democratic central government, the deal with the Sunni tribal leaders is almost completely at odds with the end that we’d like to see.

Of course, we’ve pretty much given up the idea that Iraq will have either a strong or a democratic central government. Having accepted defeat in the main aim of the war, collaboration with Sunni tribal elites is probably the next best option. The victory isn’t ours, though; it’s theirs. Al Qaeda wasn’t in Anbar before the war, and it may be gone from Anbar someday, but the Sunni tribal leaders have maintained and perhaps even increased their autonomy. They’ve also made themselves targets, but that comes with the territory. Rather than create a shining example for the Middle East, US policy is now directed towards enabling the most conservative elements of Iraqi society. The truly sad thing is that this does, compared with the execution of the first three years of the war, represent something of a victory.

Cross-posted to Tapped.

More on What’s Common and What Makes Sense

[ 0 ] June 26, 2007 |

Yesterday’s post sparked quite the kerfuffle in comments. Here’s a follow up: National Advocates for Pregnant Women staff attorney Tiloma Jayasinghe has an article up at RH Reality Check describing a recent victory in New Mexico. Last month, the NM Supreme Court held that the state’s child abuse statutes do not apply in the context of pregnancy. In doing so, the state overturned the convictions of two women who had been convicted – by plea or by trial – of child abuse because they were unable to beat their drug addictions during pregnancy. New Mexico is among 49 states (South Carolina being the only exception) that have refused to criminalize drug use during pregnancy.

Here’s an excerpt.

Together, we informed the Court that the state’s prosecution of Ms. Martinez lacked foundation in law and medical science, interfered with the provider-patient relationship, undermined both maternal and fetal health, and ignored the fact that pregnant women, mothers and families lack access to family drug treatment in New Mexico.

The New Mexico Supreme Court listened.

During oral argument, the Justices referenced our public health amicus brief and expressed grave concerns about the deterrent effect such prosecutions would have on women seeking prenatal care. Their decision adds New Mexico to the list of 20 other state appellate courts that have determined that state child abuse statutes do not apply to the context of pregnancy and the fetus.

Treatment and education—not punitive measures that will drive women who need help underground—present the real solution to issues of drug use and pregnancy. It’s time to press our legislators to pass legislation that positively impacts women’s health. Increase funding to rural prenatal clinics. Increase funding to residential, family-based treatment centers that allow families to recover together. Increase the number of treatment centers and ensure that pregnant women are not left stagnating on waiting lists.

Read more at RH Reality check.

When Common Sense Isn’t So Common

[ 0 ] June 25, 2007 |

Sometimes I think the term “common sense” is an oxymoron. Or a paradox, at the very least. Because the things that make the most sense are often in opposition to the common view.

A good example is the punishment of pregnant women. My common sense indicates that prosecuting pregnant women for anything and everything they do during pregnancy that might — or might not — affect fetal development is a bad idea. Take, by way of example, the case of Theresa Hernandez. Ms. Hernandez, who lives in Oklahoma, is being tried for first degree murder for suffering a stillbirth at 32 weeks of pregnancy. The prosecution is based on a “highly questionable” (according to NAPW) claim that Ms. Hernandez’s use of illicit drugs during her pregnancy caused the pregnancy loss.

My “common sense” tells me that prosecutions like these — which have taken place in the majority of states and have affected the lives of almost 1000 women — are bad for public health. As Dr. Dana Stone, the Oklahoma head of American College of Obstetricians and Gynecologists explains it in a National Advocates for Pregnant Women press release out today:

“Stillbirths and miscarriages are unfortunately a risk of pregnancy for all women. Prosecuting women for pregnancy loss based on what they allegedly did or didn’t do will only deter women from seeking prenatal care and drug treatment, and that’s ultimately bad for babies.”

over 150 other medical professionals back her up and oppose criminal justice responses to drug addiction during pregnancy.

In addition to the doctors’ concern that prosecutions drive the women most in need of prenatal care away from it, is the simple fact that any prosecutor interested in protecting fetal health would try to keep a woman as far away as possible from a jail cell. Not only are drugs as widely available in prisons as outside (if not more widely so), but jails are also notorious for providing appallingly bad prenatal and delivery care, including the shackling of women during labor and delivery.

Yet the misguided “common sense” that women who cannot beat their drug addictions while they are pregnant — a feat that is hard enough for a rich and powerful white man, never mind for a poor and pregnant woman — should be thrown in jail persists. And women’s and children’s health continues to suffer.

(NB: There’s a lot more to be said on this issue, including what to do instead of incarceration. That’ll come in many (many) more posts about this, I’m sure.)

Damn Kids

[ 0 ] June 25, 2007 |

Victor Davis Hanson is seriously bumming (via TBogg):

Watching those film clips and pictures of the Taliban kidnapping Afghans who were de-mining the countryside, and Iranian thuggish police in black hoods hanging a sort of slop bucket around the necks of free-speech dissidents, and the various semi-official and popular Iranian, Pakistani, and Middle Eastern new threats to Sir Rushdie — while a silent West worries instead that the meals for Guantanamo inmates cost only 2-3 times more than the soldiers who guard them — and wondering on a Saturday morning how a post-civilized West can marshal the will to win a war of ideas against pre-civilized Islamists.

Now, it’s hard to say what might have gotten poor Vic into such a snit — aside from the fact that illegal immigrants are listening to iPods and wearing Bluetooth headpieces (I’m not kidding here — he’s really upset about this) — but I’m suspecting a little bit of family tension might be partly to blame. Here’s VDH, just the other day:

We oldsters have forgotten just how different are the young. I fished not long ago with my son up in the Sierra. Hadn’t done so in years. He was skilled at it, I not.

In about an hour he pulled in nine rainbows, 12-14 inches, I four. But here was the difference. In the 1960s my father sent us down to the lake or stream for “lunch” or “dinner”—that is, to bring back fish for all to eat. So I kept my four and had them for both lunch and dinner.

My 24-year-old son? Appalled at the idea.

With consummate skill and humanity, he carefully took the hooks out of all nine fish he caught, sometimes from deep down the throat and requiring some surgical skill. And he was worried when one floated on its side for about 5 minutes before swimming off—and was nearly sick that he had killed it. I was wondering whether his humanity was predicated on the notion of not hurting animal kind, or the fact that food was now so cheap and accessible that fishing had become a sport not a mechanism to ensure a meal. In any case, I felt a little greedy or worse, keeping the trout, and he seemed embarrassed, if not angry at my possessiveness. It’s a different world—reminded of that also by his sister (20) when I forgot to recycle a single Pepsi can, and put it with the regular trash. For my daughter that was worse than a mortal sin.

Is it any coincidence that the surge isn’t working?

Oh, sure, he sounds a patient father who indulges the ideological errors of his children. But maybe if Hanson’s kids weren’t such squirmy, weak-kneed hippies, we’d have destroyed the barbarians by now.

Free Speech and Selective Originalism

[ 0 ] June 25, 2007 |

Today’s “Bong Hits 4 Jesus” case actually turns on relatively narrow grounds. The problem with Roberts’ opinion is that it turns on a claim that punishing the student was justified because the banner was seriously advocating drug use. As Stevens points out, though, this isn’t very plausible:

I would hold, however, that the school’s interest in protecting its students from exposure to speech “reasonably regarded as promoting illegal drug use,” cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more.

… I take the Court’s point that the message on Frederick’s banner is not necessarily protected speech, even though it unquestionably would have been had the banner been unfurled elsewhere. As to the second, I am willing to assume that the Court is correct that the pressing need to deter drug use supports JDHS’s rule prohibiting willful conduct that expressly “advocates the use of substances that are illegal to minors.” But it is a gross non sequitur to draw from these two unremarkable propositions the remarkable conclusion that the school may suppress student speech that was never meant to persuade anyone to do anything.

In this case, however, I am happy about Alito and Kennedy concurring to narrow the scope of the opinion, emphasizing that Tinker is being upheld and that “it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.” I still find the application to be puzzling–couldn’t a principal, under this standard, “reasonably” conclude that a “legalaize drugs now!” poster “promotes” drug use?–but in this case better it be a misapplication of an acceptable principle.

Thomas, meanwhile (and, interestingly, without a join from Scalia) wrote a concurrence arguing that the landmark student speech case Tinker v. Des Moines should be overturned and schools be given the essentially unlimited power to censor student speech on (plausible, it must be said) originalist grounds. Oddly, however, in joining Scalia’s concurrence in another case today arguing that virtually all campaign finance laws are unconstitutional, neither of the Court’s two “originalists” managed as far as I can tell to muster a shred of evidence that the First Amendment was understood in 1791 as creating an absolute prohibition on the regulation of campaign spending and donation. Nor did Thomas’s dissent in McConnell contain a historical analysis of the original understanding of the First Amendment, although it does cite any number of libertarian 20th century precedents that would seem erroneous under a strictly originalist standard. Hmm, and the ability of wealthy people and corporations to give and spend money for political purposes is enormously important to the modern Republican Party and protecting the free speech of students who if you squint really hard can be vaguely construed as encouraging drug use is not. What an amazing coinky-dink!

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