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Thoughts on Darth Cheney

[ 0 ] June 29, 2007 |

I’m still not sure how I’m supposed to react to the excellent Washington Post series on Dick Cheney’s tenure as Vice President. On one level, I’m impressed; Richard Cheney is an extraordinarily competent bureaucratic infighter. He has a masterful understanding of the linkage between patronage politics and ideological politics, an understanding that has enabled him to create a group of extremely capable and rigidly loyal underlings. Although the Bush administration in general is without shame, Cheney goes a step beyond; criticism from those who don’t share his ideological preconceptions or his single-minded purpose has no meaning. He’s a bastard, but within the narrow confines of negotiating and navigating government bureaucracy, he’s a magnificent bastard.

Perhaps inevitably, it occurs to me to wonder “what if he were our bastard?” Would I respect and appreciate Cheney if the ideological tables were turned, and if he were using his skills in support of causes I find worthwhile? I would like to think not, and I believe I’m on solid ground with that view. Cheney is a masterfully effective operator within government, but his mode of operation is antithetical to good governance. A bureaucracy should be capable of delivering a service reliably and repeatedly. When the personal influence of a particularly powerful actor is needed to make the system move, government has failed. Indeed, the influence of such an actor is disruptive to the normal course of operations. Also, I think that a commitment to open, well-conceived policymaking is critical to the progressive-liberal conception of government. Cheney’s method of operation is poisonous to the idea that policy should result from open, transparent discussion and debate. It’s not terribly surprising that the very policies that Cheney has most vigorously fought for have been “successful” only in the most temporary bureaucratic sense; a clear line can be drawn between Cheney’s contempt for good policymaking and the disasters that are Iraq and the federal budget.

The things that make Cheney appalling to me should also make him appalling to conservatives. A “principled” conservative (to the extent that the phrase has meaning) should place a high value on accountability and transparency in government. No single individual, especially through unofficial channels and personal influence, should be able to bend the machinery of governance in a particular ideological direction. No single individual should be able to so transform the architecture of government that even the most basic elements of the social contract (freedom from torture, freedom from arbitrary arrest, freedom from surveillance) become endangered. Indeed, Dick Cheney should be utterly terrifying to an anti-statist or even quasi-anti-statist conservative. He is precisely the kind of figure that conservatives warn against when they speak of the dangers of “big government”.

While some conservatives do view Cheney as a threat, most do not. In part this is because of the good things that Cheney brings; he does, after all, put red meat on the table, whether it’s through shattering international law while torturing America’s enemies or killing thousands of fish while supporting a few economically unviable Western ranchers. It’s more, though, because the anti-statism in the modern Republican Party is less about a fear of the state than an utter contempt for government. Cheney’s depredations don’t bother conservatives because they don’t think that fair play in government is possible. A good conservative should be waging a guerilla war against government, because the system itself is corrupt. If good governance and a competent bureaucracy have no (or even negative) value, then ruining them by ignoring law, precedent, and common sense is a positive good. Sure, Dick Cheney may break government by subverting the machinery for partisan ideological purposes, but since government itself is just a partisan ideological racket, who cares? We should get ours while the getting’s good.

I would also hazard that Cheney himself appeals in another, almost cinematic way. Cheney isn’t Jack Bauer; he’s never going to save the girl, never going to land on an aircraft carrier in a flightsuit. George W. Bush is (or was) the action hero/sex symbol for conservatives. Cheney is the behind-the-scenes-enabler, from a long line of cinematic enablers. He’s Richard Crenna to Bush’s Rambo, Archangel to Bush’s Stringfellow Hawk, Devon Miles to Bush’s Michael Knight. Cheney slides easily into a narrative that conservatives find appealing, in which the extralegal violence that we need is enabled and conducted by people that we trust. Cheney’s ability to fit so comfortably into that narrative (and all of us, not just conservatives, tend to understand politics through familiar narrative), more comfortably, indeed, than the action hero himself, may explain in no small part his enduring appeal to so many conservatives.

Publius also has some detailed thoughts.

[ 0 ] June 29, 2007 |

Friday Cat Blogging… Starbuck and Nelson

Getcher Hot Links! Parents Involved Edition

[ 0 ] June 29, 2007 |

Some further reading about today’s Supreme Court decision striking down school desegregation programs in Seattle and Louisville:

  • Echidne finds some applause for the decision and offers a critique.
  • Mary Dudziak on the decision’s misreading of history.
  • Lots of interesting stuff at the LDF’s blog.
  • Adam B reminds us that the decision overturned an opinion by libertarian hero Alex Kozinski.
  • Jack Balkin offers an optimistic reading of the Kennedy concurrence.
  • Professor B. ponders the diversity issue.
  • Christy puts the case in broader perspective.
  • And, for the final word, Mark Graber on the “conscientious objectors” from the civil rights moverment opposing desegregation under the mantle of Brown v. Board: “Today’s opinions in the Seattle school case feature the too usual lectures from conservative justices on the meaning of the “good” civil rights movement, the one which asserted that “the constitution is color-blind.” Of course, neither Chief Justice Roberts nor any other member of the majority were actually members of that “good” civil rights movement. To paraphrase Dick Cheney, they had other priorities at a time when police dogs were being set upon African-American children who dared insist on the right to drink at the same water-fountains as white children. Indeed, Roberts, Alito, and Scalia were proud to be in the vanguard of the movement that pried from the Democratic Party those who set the dogs upon the children (and those who applauded that behavior). They could do so in good conscience because somewhere in the late 1960s, the “good” civil rights movement was replaced by the “bad” civil rights movement, a movement which insists that persons of color be actual as well as pro forma, legal equals. Curiously, this transition took place even though the vast majority of participants in the “good” civil rights movement remained in the “bad” civil rights movement, included almost the entire leadership. By comparison, on this history, George Wallace became the person who best understood that the central principle of BROWN v. BOARD OF EDUCATION was that no “innocent” white person could ever be harmed in the effort to secure racial equality and any person of color who claimed covert race discrimination would have to produce a smoking gun the equivalent of the smoking guns which convinced the Burger Court that the Alabama Constitutional Convention of 1900ish was committed to race supremacy. Recognizing that George Wallace and Strom Thurmond are the true heirs to Martin Luther King, Justice Roberts and his allies feel the need to direct lectures on BROWN to the “bad” civil rights movement in the hope that we may be converted.”

More Judicial Restraint

[ 0 ] June 29, 2007 |

I should say off the top that I don’t know enough about antitrust to know about the economic wisdom of the latest 5-4 pro-business decision by the Roberts Court. I’ll even say that some Chicago School doctrine might have had a salutary effect at the margins of antitrust law; it certainly seems bizarre to me, for example, that the government would break up a merger between the third and eighth biggest shoe companies in the country (although whether the Court should override such an executive decision is another question.) Intuitively, it doesn’t seem right that price floors could be good for the consumers, but who knows; I haven’t seen the data.

Still, this decision is obviously very problematic whether or not the economic theory underlying it is correct. Breyer explains it well, but there is a very strong presumption of stare decisis in statutory cases, and this case is an excellent illustration of why. The Court created a bright-line, easily applied rule in 1911. If Congress thought that the Court had distorted its intent it’s had roughly 100 years to modify the statute and correct the Court. Moreover, the affected interests here are not (to put it mildly) the kind of disempowered minorities who might lack fair access to the political process. It doesn’t make the rule clearer — which might justify a departure from stare decisis — but in fact makes it less clear and harder to apply.

So whether or not one agrees with the Court on the economics, it has no business imposing its theory in the face of a long-enduring statutory precedent.

The Twisted Logic of Judicial Bypass Laws

[ 0 ] June 28, 2007 |

Via RH Reality Check: For the first time, a minor woman in Colorado has been denied judicial approval for an abortion. Colorado law, like that of many other states, require that a minor get parental consent to procure an abortion. If she cannot or will not get parental consent, she can seek a judicial bypass. The Colorado Court of Appeals today upheld a lower court’s determination (PDF) denying a young woman permission to get an abortion. The reasoning is astounding.

The pregnant minor’s burden of proof was to either show by clear and convincing evidence that she was mature enough to make the decision, or by a preponderance of the evidence that notification was not in her best interests.

After the hearing the judge found that “she lacked the maturity to decide whether to have an abortion.” The court emphasized her “unwillingness to communicate with her mother or consult with other adults, her focus on her own needs, and her failure to discuss the matter with a doctor.” The trial court also felt that she had “only minimal understanding of the risks of the abortion procedure” and that she was “unemployed and being supported by her mother.”

So let me get this straight: a woman whom the court feels is not mature enough to make her own choices about her reproductive life is mature enough to have and raise a child?

[scratches head}

This is why we don’t do Bloggingheads…

[ 0 ] June 28, 2007 |

Well, one reason, anyway.

captured the following during the “Thirsty Thursday” ($3 for 32oz of Red Hook!) at the single-A Daytona Cubs-Clearwater Threshers tilt. The subject of discussion was one Brian Dopirak, a 2002 2nd round Chicago Cubs draft pick. Mr. Dopirak, a 24 year old first baseman/DH, is currently hitting .238/.266/.462 (and he’s really picked it up in the last couple of weeks). I contend that Mr. Dopirak is wasting his life, and that he should either go to college or get a real job; DJW disagrees.

Notes On The School Integration Cases

[ 1 ] June 28, 2007 |

Some initial observations based on a first reading of the Court’s opinion striking down voluntary school integration programs in Louisville and Seattle:

  • Nothing in the text of the Constitution compels these programs to be struck down. Essentially, Roberts’s plurality opinion rests on the assertion that racial classifications intended to perpetuate a caste system should be considered the precise legal equivalent of racial classifications intended to remedy segregation. This is exceptionally unpersuasive, and also makes it almost impossible to actually remedy the ongoing de facto segregation of American school systems, much of which has roots in various forms of state discrimination (not just formal apartheid in the South, but the drawing of arbitrary school district lines to create segregated systems, local ordinances encouraging residential segregation, etc.) As Breyer says, “This context is not a context that involves the use of race to decide who will receive goods or services that are normally distributed on the basis of merit and which are in short supply. It is not one in which race-conscious limits stigmatize or exclude; the limits at issue do not pit the races against each other or otherwise significantly exacerbate racial tensions. They do not impose burdens unfairly upon members of one race alone but instead seek benefits for members of all races alike. The context here is one of racial limits that seek, not to keep the races apart, but to bring them together.” To compare what these cities are doing to states that maintained apartheid is historically blinkered and morally untenable.
  • Given the modesty of the Seattle program — which used race only as a tiebreaker, making the potential injustices of the classification particularly dubious — it is clear that no affirmative action program is going to survive an encounter with the Roberts Court in its current configuration. This is another area where replacing O’Connor with Alito makes a major difference.
  • The opinion was predictably narrowed by Kennedy, who provided the swing vote but (exactly as Dahlia Lithwick predicted) holding out the dim possibility that a future program may theoretically take race into account. This probably won’t be terribly meaningful in practice (particularly since the federal courts are rapidly abandoning the desegregation orders necessary for Kennedy’s distinction to be relevant.)
  • I strongly urge you to read Breyer’s dissent, which among many virtues contains a detailed history of segregation in both cities, pointing out that federal court orders were necessary to compel desegregation in both cities and (contrary to the plurality) even Seattle had significant elements of de jure segregation. It also does a good job of pointing out the opinion’s obvious inconsistency with past precedents the Court claims to be applying (I’ll have more on that later.)
  • I’ll have an article about this coming out tomorrow, but you will be shocked to hear that Thomas’s concurrence does not contain the long-awaited historical evidence that the Fourteenth Amendment was originally understood as prohibiting even remedial racial classifications. Strange; I’m sure he must have it somewhere and just hasn’t gotten around to it! Obviously, in the wake of Bush v. Gore accusations by conservatives about liberals favoring “judicial activism” or “outcome-oriented” jurisprudence are risibly hypocritical, but here’s another data point.
  • I’ll give the last word for to Breyer: “Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.

    The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.”


[ 0 ] June 28, 2007 |

Stevens, dissenting in the Seattle integration case:

There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education, The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.

A re-writing, of course, which is crucial if you want to maintain that remedial racial classifications are precisely equivalent to racial classifications intended to subordinate a particular racial group.

And then There’s This

[ 0 ] June 28, 2007 |

An anonymous couple has a website up through which they are trying to raise $50,000 to allow them to have a child. If they dont’ raise the money they don’t feel that they will be able to raise the child in the manner they desire, so they will seek an abortion. Via Gawker:, here’s the couple’s statement:

Please don’t mis-understand, it’s not that we _want_ to abort the baby. Although neither of us is particularly pro-life, we don’t want to have to have an abortion. We think we’d be pretty good parents, and we both would enjoy raising a kid. We’re both from pretty good stock, well educated and intelligent. We’d be able to raise the child in a good environment, teach it right, keep it out of trouble, and introduce a new productive member of humanity to the world. Our kid won’t grow up and rob you.Right now, we just can’t afford it, which is why we’re here, on this site. We’ve crunched some numbers, and we believe that, to really set ourselves up in a good environemnt [sic] for the baby, we need $50,000.

If they decide not to carry the pregnancy to term, they’ll donate whatever money they have raised to a nonprofit. In their words, “probably a pro-life organization.”

I am flabbergasted. Raising a kid is expensive, sure, and it’s a serious problem that it’s so hard to make enough money in this country to send a child to college without accruing huge debt. But is this the solution? I’m gonna go with no.

update: Yes, people, I know this could be a joke. Still interested what you think.

Lines that We Shouldn’t Be Drawing

[ 0 ] June 28, 2007 |

Another big day at the Supreme Court today. In addition to striking down a school racial integration plan (maybe Scott will say more on this. I’m disgusted but not surprised), the Court also struck down the death penalty in the case of a man whose attorneys claim he is mentally ill (PDF). From today’s LA Times:

The Supreme Court today blocked the execution of a Texas killer whose lawyers argued that he should not be put to death because he is mentally ill.

Scott Louis Panetti shot his in-laws to death 15 years ago in front of his wife and young daughter.

Panetti knows what he did, but believes that he is on death row because he preaches the word of God, his lawyers say.

Panetti’s lawyers wanted the court to determine that people who cannot understand the connection between their crime and punishment because of mental illness may not be executed.

So the Supreme Court — in an opinion by Kennedy (somewhat surprisingly) — said that the Texas court that sentenced Panetti applied too restrictive a test for incompetency, and sent the case back down to be reviewed (not quite a lifting of the death sentence, but close). Thomas wrote a dissent, joined by Roberts, Alito and Scalia. No surprise there.

The case is good news. But what strikes me is not that the Roberts court actually made a good decision, but rather that we are splitting these hairs at all. Even the “good” capital decision cases for me provide further evidence that we shouldn’t have capital punishment at all.

Panetti, who thinks that God speaks to him, is probably sane by some standards (and some community mores). People can be medicated into sanity. Should we execute them then? What if someone understands what they did, but little else? Should we execute them then? Determining competency is difficult enough when capital punishment is not on the line. Many states have so narrowly defined incompetency that people are exceedingly rarely found to satisfy the criteria. Allowing executions of anyone — but especially of people who squeak into sanity by a hair — doesn’t make us a safer society. Just a less humane one.

UPDATE BY SL: Non-pdf link here.


[ 0 ] June 28, 2007 |

A judicial panel in Scotland has held that the only person convicted in the bombing of Pan Am Flight 103 may have been wrongly convicted and that potentially exculpatory evidence not available at trial has surfaced. I obviously have no way of judging the reliability of the evidence, but a detailed recent article in the LRB argues that there’s considerable evidence implicating a radical Palestinian group, that the crucial state witness was unreliable, and that there’s some reason to believe that Libya accepted responsibility as the price of re-integration.

School Integration Plans Struck Down

[ 0 ] June 28, 2007 |

And the Alito Court marches on; this was, alas, all too predictable. More when the opinions are released.

…opinions in pdf form here. Will post links to a format compatible with ongoing computer operation when they’re up.

…Christy has a good take here.

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