Against Executive Illegality

A fine compilation from the Left Coaster.

Alito: Still Bad For Reproductive Rights

A very instructive report on the language used by Coathanger Sammy to justify an Illinois anti-abortion and anti-birth control statute that had been held unconstitutional. First, he defended the part of the statute that required doctors to describe ordinary birth control as being “abortifacients.” Secondly, Alito defended the statute’s “informed consent” requirement as reflecting “the consensus of scientific opinion” and being “non-inflammatory,” despite the fact that the state forced doctors to say–irrespective of the stage of the pregnancy–that “The State if Illinois wants you to know that in its view the child you are carrying is a living human being whose live should be preserved. Illinois strongly encourages you not to have an abortion but to go through to childbirth.” (And, again, it’s important to remember that it’s doctors being forced to say this, not a politician–it implies to the patient that these highly contestable ethical claims reflect a consensus in the medical community.) If that passes the test, it’s impossible to imagine what wouldn’t pass the test–which, of course, is Alito’s approach to abortion regulation generally. There’s no question that he would vote to uphold any regulation short of a complete ban, and there’s no reason to believe he wouldn’t vote–like the somewhat more libertarian Scalia and Thomas have–to uphold a complete ban either.

Meanwhile, Ann Althouse–who at least seems to have given up her argument that Alito is considerably more moderate than Thomas or Scalia, which is a good thing since in umpteen posts she didn’t produce the slightest scrap of evidence for that claim–argues that since the ABA has given a thoroughly unsurprising “well qualified” rating to Alito, “Alito’s opponents shouldn’t think so much about defeating him.” But of course there’s no reason for this, since nobody could dispute that Alito has the most basic qualifications for the job; the rating doesn’t provide any new information. But since that’s not the only criterion used by the President to select nominees, there’s no reason that’s the only criterion that should be considered by the Senate. What’s particularly ludicrous is that the man who appointed Alito argued ABA ratings should not be given a “preferential role” in judicial appointments. If the President himself doesn’t think that ABA ratings should carry a large amount of weight–let alone dispositive weight–why on earth should anyone else? (Unless you’re trying to uncritically defend Alito while maintaining your nominal pro-choice and feminist credentials, I mean.)

Wow

Carroll will get roasted if Southern Cal loses. The thing is, though, I’m inclined to think that it’s the right call. You get the first down, the game is pretty much over; it seems to me that the chances of Texas getting the TD if they get the ball back are greater than the chances of USC not getting the first down, although it’s really unknowable.

What I don’t get, though, is why he didn’t put Bush in there. Is whatever blocking advantage you get greater than allowing Texas to key on White?

…Wasting your last timeout before the conversion, on the other hand, is quite remarkably idiotic…

…what can I say: when you’re right 30% of the time, you’re wrong 70% of the time…

Ruck Falph

I see that the legal arm of reactionary vanity candidate Ralph Nader, not satisfied with installing the most reactionary President since McKinley for, uh, no possible benefits whatsoever, has now succeeded in getting an effective treatment for narcolepsy taken entirely off the market. As Michael Berube noted some time ago, that’s Nader–his direct support for the modern Republican Party is perfectly logical, as he represents the worst authoritarian strands of contemporary leftism:

As his open letter reminds us, Nader is a terrible candidate. Yes, he’’s ““on the left,”” but he belongs to a nasty, authoritarian, crypto-conservative left that wants people to stop playing those violent video games and stop looking at sexually explicit images. He’s not too concerned about women’’s reproductive rights, as we all know, but he is very worried about the decline of parental authority in Today’’s Modern World. Hence his “appeal”” to conservatives. (And look again at his praise for the Texas GOP– that’’s right, the same Texas GOP that gave you that outrageous mid-term redistricting!)

Which, in this case, manifests itself in going over the line between the immensely valuable and necessary goal of ensuring that consumers are fully informed about the potential risks of taking certain kinds of medication, and simply denying consumers the ability to make tradeoffs even if they are fully informed, which except for much more dangerous drugs is not desirable. Julia has more.

Texas Sucks

USC draws first blood.

Let this serve as an open game thread.

UPDATE: Texas rules. Congrats to the Longhorns.

Wal Mart or the Mines?

Redbeard has a nice take.

Stand in your neighborhood Wal-Mart, on its linoleum floors, under its fluorescent light. Imagine wearing the blue vest day in and day out for 29 hours a week at $8 an hour. And the think of the men who travel two miles under a mountain, two miles away from sunlight and fresh air, where a single spark spells doom. For them, that dark shift was better than a slow death at a Wal-Mart job.

A 3-Pack of Trojans

In response to Matt’s analysis, allow me to note that going into last year’s bowl game, USC had scored 441 points and allowed 150, while Oklahoma scored 433 and allowed 164. You may also recall that the game was not quite as evenly matched as this would suggest. The kind of quick -and-dirty analysis Matt is doing can tell you something in the pros, but in college–where a majority of games played by an elite team are utterly non-competitive–margin-of-victory stats are basically meaningless. Exactly how much you beat up on teams that don’t belong on the same field of you is basically a matter of coach’s discretion, and yields little useful information about the quality of the teams. (And the strength-of-schedule is far more important in college, and I maintain that the PAC-10 is the better conference.)

Texas is a better team than Oklahoma last year–they beat arguably the third-best team in the country on the road, after all. They certainly could win. But I’m sticking with USC until somebody beats ‘em. I don’t see the Longhorns stopping the Cal offense, and I don’t see them winning a shootout either.

Neglect and Death

While the cruelty of the media coverage that gave the families of the victims false hope is by no means a trivial story, it seems to be that the fact that the deaths of the miners may well have been caused by a company that was violating federal regulations is rather more important:

Time and again over the past four years, federal mining inspectors documented the same litany of problems at central West Virginia’s Sago Mine: mine roofs that tended to collapse without warning. Faulty or inadequate tunnel supports. A dangerous buildup of flammable coal dust.

Yesterday, the mine’s safety record came into sharp focus as officials searched for explanations for Monday’s underground explosion. That record, as reflected in dozens of federal inspection reports, shows a succession of operators struggling to overcome serious, long-standing safety problems, some of which could be part of the investigation into the cause of the explosion that trapped 13 miners.

In the past two years, the mine was cited 273 times for safety violations, of which about a third were classified as “significant and substantial,” according to documents compiled by the Labor Department’s Mine Safety and Health Administration (MSHA). Many were for problems that could contribute to accidental explosions or the collapse of mine tunnels, records show.

In addition, 16 violations logged in the past eight months were listed as “unwarrantable failures,” a designation reserved for serious safety infractions for which the operator had either already been warned, or which showed “indifference or extreme lack of care,” said Tony Oppegard, a former MSHA senior adviser.

“That is a very high number, and it is usually indicative of a very poor safety record,” Oppegard said.

We do not know at this point whether these violations caused this particular accident, but it is clear that the company was putting its workers in unacceptably risky situations, and this kind of tragedy was likely sooner or later.

Mahablog has much more.

Judicial Supremacy and the Supremacy Clause

Will Baude offers a defense (via Fantasy Life) of a remarkable pro-nullification op-ed written by a justice of the Alabama Supreme Court. I think Baude’s defense is ultimately wrong and dangerous, although for somewhat different reasons than Steve Vladeck.

As long-time readers of this blog will know, I’m actually quite skeptical about judicial supremacy, and I think that Baude is right that Marbury did not assert judicial supremacy. The problem with Baude’s argument is that Marbury was about co-ordinate and equal branches, but where interpretation of the federal Constitution is concerned, the United States Supreme Court and the Alabama Supreme Court are not equal. Article VI makes the laws of the United States as well as the Constitution binding, and decisions of the United States Supreme Court–which are certainly law–are no more and no less binding on the state of Alabama than statutes passed by Congress. The problem with Cooper v. Aaron, in my view, is that it went further than it needed to. Upholding Brown did not require an assertion of judicial supremacy, but rather merely required noting the far more banal fact that states are bound by federal law, and the state of Arkansas cannot nullify United States Supreme Court decisions any more than they can nullify acts of Congress.

It should be noted as well that Baude’s Calhounite analysis would be completely unworkable in practice. This logic, if applied seriously, would allow states to nullify all federal law–just as Parker can claim that he’s not bound by Roper because it is an erroneous interpretation of the Constitution, the state of Alabama could say it’s not bound by a federal statute because it is beyond the legitimate enumerated powers of Congress and hence does not represent a valid “law” under the Supremacy Clause. (Congress’ constitutional interpretations, under this theory, certainly cannot be more binding than judicial interpretations.) Allowing states to selectively nullify federal law has been generally abandoned for good reason, and Baude’s legal theory was thankfully and permanently buried by the Civil War. Oliver Wendell Holmes once wrote that “I do not think the United States would come to an end if we lost our power to declare an act of Congress void. I do think the union would be imperiled if we could not make that declaration as to the laws of the several states.” He was right. Somebody has to be able to provide authoritative resolutions to conflicts arising from competing legal interpretations between different levels of government, and the Constitution logically locates the resolution of disputes about federal law in federal institutions.

The Ballad of the Whiny "Nice Guy"

Speaking of Randy Newman, as an addendum to Amanda’s lyric inhabiting the lament of the guy who resents the fact that attractive women, I note that Newman’s “Lover’s Prayer” did the job effectively:

Don’t send me no young girl to love me
With their eyes shinin’ bright
All the young girls are afraid of me
Send me a woman tonight

Don’t send me no hand-holdin’ baby
‘Cause I been with babies before
Don’t send me nobody that’s crazy
Don’t send me no young girls no more

I was entertaining a little girl in my rooms, Lord
With California wines and French perfumes, Lord
She started to talk to me about the War, Lord
I said, “I don’t want to talk about the War.”

Don’t send me nobody with glasses
Don’t want no one above me
Don’t send nobody takin’ night-classes
Send me somebody to love me

Please answer my prayer
Please answer my prayer
Please answer my prayer

It captures “nice guy” ressentiment so well that it follows a song about a stalker and the character is only marginally less creepy…

…also note Hugo’s haiku in comments:

My cold winter bed:
Lovely women surround me
Yet none dumb enough