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The Corporate Court

[ 0 ] June 23, 2007 |

Kia Franklin has a post on two new cases that make successful securities litigation more difficult. A few additional notes about the Tellabs case, which came down this week:

  • The case created a standard for surviving a motion to dismiss — that in inference of illegal action should “at least as likely as any plausible opposing inference” — that is unusually difficult. Despite this, Alito concurred to claim that the standard was still too lenient. The corporate donors certainly got what they paid for.
  • Having said that, the problem here is not just about Alito and Roberts. This decision, after all, was 8-1. As I mentioned last week, what we think of as “liberals” on the Court are really more Rockefeller Republicans and DLC Democrats. They seem like liberals compared to Thomas and Alito — especially on the kinds of cultural issues that dominate coverage of the Court — but business cases make it clear that there’s no Douglas or Marshall on the current Court. (If if you’re response is that Ruth Bader Ginsburg is a crazeee liberal, you don’t know what you’re talking about.)
  • And in this particular case, the primary blame (or, if you own a business engaged in potentially shady securities activities, credit) belongs to the Republican Congress. The most interesting part of the case to me is this from Stevens’s dissent: “[Congress] implicitly delegated significant lawmaking authority to the Judiciary in determining how that standard should operate in practice.” Congress does, in fact, do this all the time, but it’s rare for this to be acknowledged openly. And as Stevens points out (and unlike Ledbetter), none of the standards advanced in this case are illogical readings of the statute. Congress wanted to create a tougher standard, and it didn’t specify how much tougher, so any of the three broad standards advanced in this case could plausibly fit the statute. That the Court would fill in a moderately conservative standard isn’t terribly surprising.

Knock Me Over With a Goddamn Feather

[ 0 ] June 22, 2007 |

Huh. I guess, maybe, insurgents run away from superior firepower:

The operational commander of troops battling to drive fighters with Al Qaeda from Baquba said Friday that 80 percent of the top Qaeda leaders in the city fled before the American-led offensive began earlier this week. He compared their flight with the escape of Qaeda leaders from Falluja ahead of an American offensive that recaptured that city in 2004.

In an otherwise upbeat assessment, Lt. Gen. Raymond T. Odierno, the second-ranking American commander in Iraq, told reporters that leaders of Al Qaeda in Mesopotamia had been alerted to the Baquba offensive by widespread public discussion of the American plan to clear the city before the attack began. He portrayed the Qaeda leaders’ escape as cowardice, saying that “when the fight comes, they leave,” abandoning “midlevel” Qaeda leaders and fighters to face the might of American troops — just, he said, as they did in Falluja.

Wow. Who could have predicted that? And while the challenge to Al-Qaeda’s manhood is charming in a fourteenth century kind of way, I seriously doubt that the insurgent leadership is as stupid as, say, Right Blogistan or the braintrust of the Bush administration. Indeed, the idea that fleeing superior numbers, firepower, and technology is somehow “unmanly” is rather quaint; I suspect that insurgents would be happy enough if we threw down our tanks, cruise missiles, fighter jets, and armored personal carriers and settled this dispute by Marquess of Queensbury rules.

Also, it seems that somebody is irritated at the current Golden Child:

Some American officers in Baquba have placed blame for the Qaeda leaders’ flight on public remarks about the offensive in the days before it began by top American commanders, including Gen. David H. Petraeus, the overall commander in Iraq.

But don’t those officers understand that the only real front is the home front, and the only serious battle the PR fight? Compared to the MSM and the Democrats, Al Qaeda poses only a trivial threat to our precious bodily fluids…

On Street Harassment

[ 0 ] June 22, 2007 |

See Ann Friedman, Catherine Andrews, and Unrequited Narcissism. This really is an under-discussed aspect of gender subordination.

Hopefully My Last Nader Post Ever

[ 0 ] June 22, 2007 |

This is intended just to bring together some thoughts from these two threads, and not to add more fuel to the fire. I agree with LP and gmack that these arguments no longer have much of a point; I’m not going to become any less angry, and anyone who hasn’t been convinced thus far of Nader’s perfidy isn’t going to change his or her mind now. Thus, barring some surprising development, I hope that this will be the last time that I ever blog about St. Ralph.

Part of the anger that Scott, myself, and so many others feel has to do with Nader specifically, rather than with what happened in 2000. I think that I would have more sympathy for the pro-Nader position, even in its apologetic form, if he had been a genuine leftist running for progressive purposes in 2000. To take an alternative scenario, consider if a Green Party candidate who had been interested in the environment, who had taken the third party-building aspect of the run seriously, who had been solid on gender politics, and who had demonstrated a personal preference for authoritarianism had run a campaign that had concentrated on safe blue states instead of battleground states, yet the outcome had been the same. In this scenario, our Nader stand-in takes, say, 10000 votes in Florida instead of 90000, after making clear to his/her constituents in the Sunshine State that they should have been voting for Gore. I’d still be angry, because such a candidacy would have remained utterly at odds with the structure of American elections and still would have been casually dismissive of the danger of George W. Bush. Yet, I suspect that my animus towards candidate X and his/her supporters would be less; at least they would have been pushing a progressive/left position, someone who might plausibly be mistaken for Eugene Debs, instead of the faux-populist, faux-progressive Nader. It’s the transparency of Nader’s schtick that gets me riled, almost as much as the consequences of his candidacy.

I also think there’s a difference between 1996 and 2000. Although in retrospect I think it was wrong to vote for Nader in 1996 (it ended up simply feeding his vanity, and setting the stage for 2000), it wasn’t evident at the time that a symbolic third candidate vote would be destructive. Clinton was coasting to an easy win, and indeed the polls showed a larger gap even than the considerable victory that Clinton won. In that context, an “ok, but” vote was entirely reasonable. In 2000 it wasn’t, even in Massachusetts or California. The effort to build to 5% and make the Green Party nationally viable (as unserious as Ralph was about that project), would have been devastating for progressive, leftist politics in the United States, wholly apart from the direct and immediate consequence of bringing an incompetent reactionary to power.

Finally, I don’t understand why anyone takes the “but maybe Gore would have gone to war, too” argument seriously. Yeah, Lieberman is an uber-hawk and all, but he would have been replacing Dick Cheney, and it’s impossible for a sensible person to argue that Lieberman would have had more influence over Gore than Cheney had over Bush. The rest of the administration, from Secretary of Defense on down, would have been filled with people less hawkish that those that made up the Bush administration. Wolfowitz, Rumsfeld, Feith, et al would have been on the outside looking in, and in every case their replacement would have been less enamored of the war. Those voices on the outside might still have lobbied hard for invading Iraq, but without an administration that was committed to the invasion and also committed to trumping up intelligence in order to build support for the invasion, such a campaign would have had considerably less force. It’s also important to remember that the Bush team bears, through negligence, some considerable responsibility for allowing September 11. Without a changeover between parties, without a shift from an administration that took terrorism seriously to won that couldn’t care less about it, and without the replacement of committed professionals by inept boobs, September 11 might not have happened. No 9/11, no Iraq War. Most importantly, Gore’s personal opposition to the war should weigh very, very heavily against the argument that he would, nevertheless, have taken the country into Iraq. Gore opposed the war before it was cool, and in contravention of all the established norms for how defeated presidential candidates should behave. I know that Naderites seem to have a problem with this concept, but the personal political preferences of the President of the United States really do have an impact on policy. So, given that the Gore administration would have been less hawkish in composition and would have been led by a man strongly in opposition to the invasion, I’d say that the “but Gore would have invaded Iraq, too” argument has some impressively high hurdles to leap before it should be taken seriously.

That is all.

Rhythmic Admirer of the Month

[ 0 ] June 22, 2007 |

Melinda Henneberger. Her accomplishment should not be understated; within op-ed pages that regularly publish Tom Friedman and Maureen Dowd, and that gave a month-long guest slot to the Simpsons’ crazy cat lady, I would be shocked if this isn’t the worst thing the Times publishes this year.

See Bean, if you haven’t already. Then Paul and Ezra. And then Digby Tristero and Barbara. (She’s the political editor of the Huffington Post? Jeebus.) And the thing is so bad I’m sure there’s something we all missed.

Friday Cat Blogging/Counterproductive Fisticuffs Blogging

[ 0 ] June 22, 2007 |

Dr. Zaius. I took care of The Doctor — one of my best friends’ cats — for about a year while dedicating my life to a project otherwise known as Not Writing the Goddamned Dissertation. Dr. Zaius, at the time, weighed in at around 18 pounds of glorious feline flesh, and I spent the better part of the next year gradually working him down (through a combination of reduced diet, increased exercise, and subtle, persistent ridicule) to a much healthier 15 pounds. MeMe Roth would have approved, and I must say I’m as proud of that accomplishment as I am to have received the Ph.D. 17 months after Dr. Zaius moved out.

In any case, I had the good fortune to hang with Dr. Z and relive the good old days while I was in Chicago last weekend. I also got the chance to see the second near-no-hitter of my life (the first being a Danny Darwin one-hitter at Fenway in 1993), and the first bench-clearing brawl in 20 years of attending major league baseball games.

For the record, the last fight I tried to instigate — sometime in early 1983 — looked pretty much like this one (e.g., two empty punches and a swarm of idiots.) I did intentionally plunk an opposing hitter in the summer of 2000, but that was during a slow-pitch softball game, and the provocation didn’t work out quite as I had hoped.


[ 0 ] June 22, 2007 |

Depressingly, the “because having a bare majority in one house of Congress was not enough to entirely strip the executive branch of its powers, the Democrats are equally responsible” routine being trotted out by Nader-exculpating voters here. I guess we need to return to Jon Chait on this:

Before the election, a New York Times editorial rebutted Nader’s Tweedledee-and-Tweedledum analysis by citing the two candidates’ starkly different approaches to using the budget surplus — with Bush favoring a massive tax cut for the rich and Gore preferring other governing priorities. In his memoir, incredibly, Nader throws this back in the Times editors’ faces. “So what happens in June 2001, with the Democrats taking over the Senate?” he asks. “The Democrats call a $1.3 trillion Bush tax cut a victory for their side, as indeed numerous Democrats voted with the Republicans.” While repellent, the collaboration of a minority of Democrats with the Bush tax cut hardly vindicates Nader; quite the opposite. The tax cut fiasco, like Supreme Court nominations, demonstrates the difficulty of stopping a president’s agenda from moving through the legislative branch. But it was Nader who argued (at least implicitly) that controlling Congress mattered more than controlling the White House. He claimed all along that his candidacy would help the Democrats win Congress; indeed, he asserted that the extra turnout he spurred gave Sen. Maria Cantwell (D-Wash.) her winning margin and that this would offset any advantage Republicans gained by controlling the presidency. The tax cut showed that Nader was wrong and that the Times was right: What really matters in setting governing priorities is which party has the White House. Nothing resembling the Bush tax cut could have passed with Al Gore in the Oval Office.

To listen to Nader explain himself on these questions, then, is to stumble into a funhouse world of illogic and trickery. His systematic dissembling was necessary to hide something he could not, for political reasons, admit: Helping elect George W. Bush was not an unintended consequence but the primary goal of his presidential campaign.

Then there’s the claim that the possibility of Clinton running means that the Dems are just as bad because she’s just responsible. Now, I won’t be supporting Clinton in the primaries, and please criticize her awful vote on the war as heartily as you like. But as for apportioning responsibility, I think this is pretty straightforward:

  • If Clinton votes against the war, we would have had the Iraq war.
  • If Nader doesn’t run in 2000, no war.

This is pretty straightforward–their relative responsibilities are not remotely comparable.

[ 0 ] June 22, 2007 |

Friday Cat Blogging… Bartleby

Why It’s A Mistake to Pin the Dems’ Problems on Abortion

[ 0 ] June 22, 2007 |

I tried to go into today’s NY Times op-ed column “Why Pro-Choice is a Bad Choice for Democrats” with an open mind. I really did. But it’s going to take a better column than this one to convince me that Democrats should soften their stance on abortion rights (more than they already have).

Here’s why: the points that the author, Melinda Henneberger, makes in the article are riddled with holes.

For example, Henneberger states that one of the reasons Democrats lost so-called security moms in 2004 was the party’s rigidity on abortion:

Again and again, these voters said Democrats are too unwilling to tolerate dissent on abortion. It is a point of orthodoxy no more open to debate within the party than the ordination of women is in Rome.

That might have been true in 2004 — maybe (I concede nothing). But it’s not now. The Democrats have shown that they are willing to tolerate dissent — look at the candidacies of Bob Casey Jr. and Heath Shuler. Henneberger is right that Dems were slow to broaden the tent when it comes to abortion rights, but it seems as if they have been recently. To pin Democrats’ chances in 2008 on this is a false excuse.

Henneberger also hitches her wagon to the star of Gonzales v. Carhart. She calls the Democratic candidates’ condemnation of the decision as wrongheaded and contrary to public opinion.

Today, in a similarly oblivious way, the leading Democratic presidential contenders are condemning the Supreme Court’s recent decision to uphold a ban on the procedure known as partial-birth abortion. An overwhelming majority of Americans, polls show, support a ban. Legal scholars have underscored the narrowness of the ruling in the partial-birth case, Gonzales v. Carhart, which does not even outlaw all late-term abortions. Yet the leading Democratic candidates, all of whom are lawyers, choose to overstate its impact.

To me, the phrasing here seems either disingenuous or honestly confused. Either way, it’s utterly without nuance. Yes, the Dem candidates — lawyers all — are making a big deal out of the case. It is a big deal. Because despite what may appear to be a narrow ruling, the case will have a huge ripple effect. The case essentially declared that a health exception is unnecessary and that the federal government can stick its head not only into the doctor’s office but between a woman’s legs. And what’s more, women — regardless of their stance on abortion rights — should be appalled by the sexist language in the Carhart decision.

The Democrats had a lot of problems in 2004. Perhaps the party’s somewhat staunch support of abortion rights was one of them. But it wasn’t the only one. And given the softening in 2006, that’s not an excuse anymore. I’m also not convinced that being the party that supports reproductive justice is a bad thing. The democrats just need to focus on reframing not retreating. They need to start talking about real reproductive justice: about child care, health care, paid parental leave, and, yes, about abortion access and medicaid coverage and real sex-ed. The problem is not abortion. But abortion is everyone’s favorite scapegoat. Including, it seems, Melinda Henneberger’s.

Brian Fuentes Will Have His Revenge on Seattle

[ 0 ] June 22, 2007 |

Photo Sharing and Video Hosting at Photobucket

Ah, yes, nice to see the Rockies accomplish what the BoSox couldn’t. Even a bug turned into a feature, as the fact that TV audio wasn’t working at the gym meant that I got to hear Sterling go ballistic about St. Derek of Pastadiving’s baserunning blunder for two innings. Sweet! (I guess it would have been even funnier if it was a Fox broadcast and McCarver explained that Jeter had no choice but to light out for third on a grounder to short with one out because the moons of Neptune were in his eyes, but that option wasn’t on the table.)

Meanwhile, watching Brian Fuentes reminds me that while Peter Bavasi’s reputation as a gold-plated numbnuts is fully justified, Pat Gillick didn’t exactly depart in a blaze of glory in his own right…

Um, What?

[ 0 ] June 22, 2007 |

Shorter Dick Cheney: I belong to the branch of government that, being not something that can be created by any “Constitution,” is beyond any standard of law or morality.

…a valuable civics lesson!

The Man Who Gave Us Iraq and Alito Mounts His High Horse

[ 0 ] June 21, 2007 |

Saint Ralph:

Ralph Nader says he is seriously considering running for president in 2008 because he foresees another Tweedledum-Tweedledee election that offers little real choice to voters.

And the problem is, given his asceticism he’ll never sidle up to the bar, flag the bartender, and order the double shut the fuck up on the rocks that he needs to drink until they’re picking him off the floor.

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