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Bork Myth Addendum

[ 6 ] August 28, 2008 |

A commenter spotted this howler from Rosen’s article:

In every presidential election from 1988 to 2004, the court had a six-justice majority in favor of upholding Roe v. Wade.

Is this why Rosen thinks that Kennedy was “distorting” the effects of confirming Bork? At any rate, this is wrong. In the 1992 election, there were 4 unambiguous anti-Roe votes: Scalia, Rehnquist, White, and Thomas. Indeed, pro-choice litigators pressed Casey in 1992 in part because they wanted any overruling to come before an election, and Kennedy’s position was unclear. Had Bork been confirmed, of course, Roe would have been overruled. And it is unlikely that Roe would have survived a GOP win in 1992. Hopefully the Times will print a correction…

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[ 5 ] August 28, 2008 |

The ticker appears to have drifted past 5000000 this morning. It’s fair to say that’s more than we ever expected, and that we do appreciate your business.

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We Had a Dream

[ 12 ] August 28, 2008 |

It’s s a beautiful morning in Boulder, and later today I’m going to take a bus the 25 miles down the turnpike to Denver and Invesco Field, to hear Barack Obama accept his party’s nomination for president, on the 45th anniversary of Martin Luther King’s I Have a Dream speech.

First I’m going to teach a Legislation class that will be focused on the story of the 1964 Civil Rights Act, which was enacted in the face of the longest filibuster in American history, and which certainly would never have become law if not for the march on Washington, and King’s speech, and the assassination of John F. Kennedy, and Lyndon Johnson’s brilliant exploitation of those events, and of course many other things as well.

Any sustained engagement with politics makes almost anyone quite cynical, at least at times, and I’m well aware that Barack Obama is far from a dream candidate for those of a progressive political persuasion, let alone some sort of national savior.

But at this moment I’m feeling neither cynical, nor in the mood to hedge the moment with endless academic caveats about the messy complexity of the world.

It’s a great day for America.

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Ethiopia Cutting and Running?!!?

[ 8 ] August 28, 2008 |


Ethiopia is prepared to withdraw troops from Somalia even if the interim government is not stable, Ethiopian Prime Minister Meles Zenawi has said.

Ethiopia invaded its neighbour in 2006 to oust an Islamist militia and re-install the transitional government. He told the UK’s Financial Times paper that financial pressures had to be taken into account and said the commitment was not open ended.

Indeed. While the United States is a wealthy enough country to carry on its foreign policy mistakes indefinitely, Ethiopia is not. Given that piracy has skyrocketed since the displacement of the ICU (including a spread to the Gulf of Aden), and that Ethiopian and Somali “government” forces still control only a bare patchwork of the countryside, I’d say that this has been a pretty big disaster…

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The Politics of Personal Destruction Accurate Characterization

[ 19 ] August 28, 2008 |

I have some minor quibbles with Jeffrey Rosen’s defense of Joe Biden’s handling of the Bork and Thomas confirmation hearings. While I agree with Rosen, for example, that the looking into Bork’s video records was outrageous, it’s also not reasonable to conflate that with Anita Hill. But since there seems to be a rule that it has to be mentioned in any Broderite complaint about the confirmation process, I was really dreading the inevitable blubbering about mean Ted Kennedy’s treatment of poor defenseless Robert Bork, and sure enough we got it — but with a twist. Nothing in Kennedy’s famous statement was inaccurate, although I grant that some of it was tendentious. (I know, shocking behavior from a politician.) When he said that “Robert Bork’s America is a land in which…blacks would sit at segregated lunch counters,” he was right that Bork had both claimed that the Civil Rights Act was unconstitutional and bad policy, but Bork had at least repudiated his position once his position had been repudiated by history. But what does Rosen quote?

When President Ronald Reagan nominated Robert Bork to the court in 1987, some liberal senators and interest groups were eager to distort his record. Hours after the nomination was announced, for example, Senator Edward Kennedy charged that “Robert Bork’s America is a land in which women would be forced into back-alley abortions.”

Senator Biden, who had built a national reputation by attacking the excesses of liberal interest groups, made clear that he would not tolerate these ad hominem attacks.

First of all, Kennedy’s statement wasn’t an ad hominem attack; it was an attack on Bork’s substantive views. That it was harsh doesn’t it render it ad hominem. But more to the point, the passage quoted by Rosen, far from a “distortion,” is indisputably accurate. Bork would have provided the fifth vote to overturn Roe v. Wade; this was not in serious dispute at the time, and surely Bork claiming in a book written immediately after the hearings that Roe was as bad or worse than Dred Scott settles the question. So what could Rosen’s objection possibly be? Is he claiming that no state would have banned abortion if Roe had been overruled? Is he saying that this new round of laws, unlike every other criminalization in history, would not have produced a black market? Obviously, neither argument would be tenable. Kennedy’s statement was wholly correct. If one wants to argue that Bork merited confirmation anyway, fine, but I don’t see why on earth senators shouldn’t be permitted to candidly discuss the inevitable implications of his confirmation, especially since said implications played a crucial role in the president’s decision to nominate him.

If I understand correctly, “Borking” means “describing the views of arch-reactionary judicial nominees in ways that are accurate but make centrist pundits uncomfortable.”

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"That Place Is Scranton…With Clams."

[ 8 ] August 28, 2008 |

So I’m here about to conference in Boston, so I’m just seeing excerpts of the speeches. I’ve seen nothing that would contradict the positive-to-ecstatic reviews I’ve seen; all the major speeches look great. Clinton did his job beautifully, as one would expect, and while much less gifted Biden did exactly what he was hired to do.

[And, no, I don’t share Philly Parisi’s views; I just like the line. I especially can’t be down on Boston given that their team finally delivered the de facto knockout blow tonight.]

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Please proceed to the exits in an orderly fashion

[ 10 ] August 27, 2008 |

2 PM Monday is when the GOP convention is scheduled to be kicking off, so this might possibly be taken as evidence that Mother Nature has a mordant sense of humor.

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The politics of energy policy

[ 0 ] August 27, 2008 |

Some explanation for my off the cuff remark about energy policy. Here’s why I’m not sold on focusing on energy policy as a centerpiece of the electoral strategy. I think it’ll penetrate the minds of voters in roughly this manner:

Obama/Democratic message: renewables, efficiency, multiple sources, green collar jobs, blah blah blah

McCain/Republican message: renewables, efficiency, multiple sources, green collar jobs, blah blah blah, and DRILL NOW

The drill now position seems to play reasonably well. When the Granholm-lead “roundtable” started getting into detail about the awesomeness of Obama’s plan, my eyes started to glaze over and I’m actually interested in energy policy. McCain has been very good at mimicking the details of the Obama message, and I think hope of achieving any meaningful differentiation (aside from the drill now element) is probably misplaced.

It seems to me the best way to neutralize the advantage added by the “drill now” component is to focus on the attack portion of energy policy discussions: attack McCain for policies that enrich oil companies at our expense. This is believable, but I think it’s better done in the context of attacking McCain on his general propensity to support policies that enrich the already very rich. (I’d really love to see this and this getting more play). Energy policy isn’t the capacity to give this particular line of attack it’s larger context.

Also, just in general, it seems wiser to me to try and shift public attention to the many issues in which Obama and Democrats have a natural advantage, rather than try to neutralize the one issue that currently helps McCain, unless you have evidence (which, I suppose, they might, but I’m not aware of it) that this issue is likely to be decisive for a large number of voters.

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Opening Day

[ 0 ] August 27, 2008 |

Ah, the first day of class…. nothing like coming into the office, pouring yourself a cup of coffee, then noticing that you didn’t quite finish the cup of coffee that you poured for yourself on the last day of class in April. Anyway, here are the webpage and syllabus for my National Security course.

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Is it hard to make arrangements with yourself

[ 32 ] August 27, 2008 |

. . . when you’re old enough to repay, but young enough to sell?
I gather Alex Rodriguez was booed mercilessly last night for single-handedly destroying the Yanqui season. NYY seems headed towards a dodgy transitional year or three (ARod will be 34 next summer and he’s still almost the youngest guy on the team who can play), and I have a feeling that the $300 million man is going to be the target for the frustrations of many an overpriced ticket buyer in the team’s palatial new digs.
I wonder if he’s having second thoughts . . .
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Honesty And Ambiguity

[ 16 ] August 27, 2008 |

Ann Althouse watched Lily Ledbetter and claims “what she should say, to be honest, is: ‘Our Court declined to rewrite the statute to be fair to me.'” To be honest, this is utter nonsense. It might be fair to say that Ledbetter wanted to “re-write” the statute if she simply claimed that the statute of limitations should just be ignored because it led to an unjust outcome, but of course she argued no such thing. Rather, she argued that since she was still being paid less due to gender discrimination, the discrimination was ongoing and hence her filing was within the 180-day window. Whether one agrees with this or not, it’s at a minimum a reasonable interpretation of the statute. Which is why this interpretation was shared by a federal district court, four justices of the Supreme Court, and — this is important — the EEOC itself. (As Ginsburg noted, “Similarly in line with the real-world characteristics of pay discrimination, the EEOC—the federal agency responsible for enforcing Title VII—has interpreted the Act to permit employees to challenge disparate pay each time it is received.” This remained its official position until well into the Bush administration.) If Althouse wants to claim that all of these people were advancing an indisputably erroneous interpretation of the statute, she really needs more than bare assertion.

Althouse’s sneering about Ledbetter doesn’t get any more coherent:

She goes on to blame the Senate for voting down the amendment that would make it possible to sue if you don’t know about the discrimination when it first takes place, but then she says that Barack Obama as President will solve the problem: “As President, he has promised to appoint Justices who will enforce laws that protect everyday people.” That doesn’t really add up. But she’s doing a good job of making us feel that the Democrats will protect the rights of working people.

Of course, what Ledbetter is saying makes perfect sense. Evidently, there are many institutional veto points that were responsible for allowing businesses to evade Title VII protections. A minority in the Senate was able to filibuster an attempt to override the court’s interpretation of the statute, and President Bush vetoed another attempt. Ledbetter is therefore right that more politicians who (unlike John McCain) actually support gender equality are needed. But it’s also true that this corrective action wouldn’t be necessary had a bare majority comprising the court’s most conservative members not interpreted an ambiguous statutory provision against Ledbetter. And in the modern regulatory state, these kinds of disputes matter; statutory provisions are often open to multiple reasonable interpretations, so who is responsible for applying them matters. The reactionary judges Althouse enthusiastically supports (just like John McCain) will tend to resolve such cases in favor of business interests; the kind of judges appointed by Obama are more likely to resolve ambiguities in favor of women’s rights. Hence, who appoints judges matters (and who controls the executive branch matters even more), and what Ledbetter is saying is right on all counts.

…I think what Yglesias says here is relevant to Althouse’s unique brand of feminism (as far as I can tell, it can be distilled into the following principles: 1. Hating Bill Clinton 2. There is no #2):

But at some point politics is about policy. If your opposition to pay discrimination doesn’t extend to favoring measures to halt pay discrimination, then what’s it worth? To people suffering from illegal discrimination, it’s worth nothing. To people who want to engage in illegal discrimination, it’s worth quite a lot.

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Russian TV in the Internet Age

[ 27 ] August 27, 2008 |

A correspondent keeps sending me groovy Russian TV clips; this one takes something of an alarmist view of the ability of a Tomahawk missile to strike targets in Russia.

Of course, nothing that I’d be surprised to find on Fox News. Here’s a clip of Moskva visiting Abkhazia.

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