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Defending Koh

[ 0 ] April 10, 2009 |

See IntLawGrrls and Publius. Meanwhile, Weigel has an invaluable piece explaining the origins of the smear campaign.



[ 0 ] April 10, 2009 |

This is, indeed, horrible news for an organization that has seen more than its share of same. Being in my vacation quasi-cocoon, I hadn’t even heard about it until the moment of silence in the seventh inning at Great American yesterday. RIP.

I’m available for stock tips as well

[ 0 ] April 9, 2009 |

In what surely must rank as one of the most ingenious draft-day choices since the ascent of Sam Bowie to the NBA, I actually paid several dollars for the pitching services of a guy who used to be Carl Pavano.

If only I’d been able to harness such foresight in 2002-2003 to clarify the rationale for an invasion of Iraq, I’d still be earning pleasant returns from, say, a regular column in The Washington Post, where I could talk about all sorts of other shit with an equivalent depth of comprehension.

…Supplement [SL]; Neyer: “Yes, I picked the Indians to win the Central. And yes, when I picked the Indians, I knew they were relying on Pavano to win a dozen or so games this season. No, I don’t bet real money on my predictions.”

When You Think That You’ve Lost Everything, You Find Out You Can Always Lose A Little More

[ 0 ] April 9, 2009 |

Shorter Verbatim Camille Paglia: “When I first heard “Barack the Magic Negro” I found it very daring and funny…It was timely and had the shock of the new — exactly like Lenny Bruce’s violation of conventional proprieties.” Also, The Half Hour News Hour reminds her of prime Richard Pryor.

As a bonus, she also seems to be the last person in America who thinks that there was some kind of scandal involved in Whitewater.

Problematic Conceptions of Democracy, Selectively Applied

[ 0 ] April 8, 2009 |

It’s hard to respond to Paul’s question-begging-all-the-way-down response here, and it leaves most of my prior arguments untouched. But especially since he seems to have stopped implying that there was something uniquely bad about the Iowa court’s ruling or that it was in some way comparable to the more singular lawlessness of Bush v. Gore (which is good, given the utter indefensibly of both claims) — meaning that he seems to be resting on the notion that judicial review in any form is straightforwardly “undemocratic” — we can use this to explore some of the issues djw and I have gone into at greater length elsewhere.

So why might the Iowa Supreme Court’s decision be “undemocratic”? It’s still unclear, but we can make some inferences. To Paul, “democracy” seems to mean little more than “decisions made by directly elected officials.” But the first problem here is that the Iowa Supreme Court is electorally accountable, subject to election for new terms. (In Paul’s answer — that they rarely lose elections — won’t wash, because given the extremely high re-election rates of incumbents in legislative elections by this standard legislators also lack democratic legitimacy.)

So perhaps the answer is just that the Iowa judges are less electorally accountable than legislators, although they are accountable. But this is an exceptionally strange standard to apply in the context of American democracy. I may have missed Paul’s previous columns expressing outrage that the Federal Reserve — less democratically accountable by any standard — is allowed to set interest rates, an immensely important power. And in addition, it’s utterly banal for countless important policy choices to be made by executive branch officials who, while theoretically accountable to elected officials in practice have very wide discretion to make policy, and are less directly accountable to the electorate than the Iowa Supreme Court. The fact is, nothing about American democracy is structured on the assumption that policies are legitimate only if they are announced by directly elected officials. Perhaps Paul thinks that the Federal Reserve and any delegation to the executive branch are also completely illegitimate, but again this argument isn’t very useful since they’re not going anywhere.

So what are the other reasons why judicial review might be “undemocratic”? Its decisions are final? Again, not in this case — the court’s judgment can be overturned with two simple majority votes and a simple majority referendum. (And, given that judges are either elected or appointed by political officials, and that courts depend on other branches for their jurisdiction, t enforce their judgments, etc., judicial review is never actually “final” even in contexts where there isn’t an override.) Is the problem that it’s “countermajoritarian?” Again, leaving aside that it’s a weird way of describing a decision that has earned the immediate support of the majority leader of both legislative houses, given that American legislatures are “majoritarian” in neither theory nor practice it’s hard to see how getting rid of judicial review would produce significantly more “majoritarian” outcomes, or why these other non-maoritarian outcomes should be venerated as democratically unassailable.. Some commenters have made the more sophisticated claim that judicial review, by permitting difficult choices to passed off to other to other actors and hence permit legislators to nullify accountability, which actually is a serious argument. But, again, the issue here isn’t so much with judicial review per se as with separation of powers more broadly; systems that diffuse power inherently diffuse accountability as well. How you balance these is an interesting question, but since Iowa isn’t about to be organized as a Westminster parliamentary government in this context it’s just a parlor game.

So, essentially, the arguments that would make judicial review illegitimate would also cause us to see the American political process in general as illegitimate, which renders them not very valuable — evaluations of the legitimacy of judicial review (which is certainly not necessary to democracy, any more than bicameralism is) are only meaningful in context. And this is all without getting to the perhaps more serious problem of why we should assume that democracy should have no more content than “policies announced by elected officials (except judges, who even if elected don’t count as elected).” Very, very, few people would see democracy as nothing more than legislative majoritarianism, for the obvious reason that this isn’t very attractive. Almost everybody’s conception of democracy (including, I assume, Paul’s) entails some protection of individual rights from majorities, but once we assume this claims that judicial review is presumptively undemocratic become almost impossible to sustain, at least in this form. What we should consider the normative ends of democracy is beyond the scope of a single blog post, but certainly it seems to me that if you arrive at a place where arbitrary exclusions of fundamental benefits require less justification than removing such exclusions you’re doing something wrong.

MLB Preview the Second: The Junior Circuit

[ 0 ] April 8, 2009 |

West: 1. LAAOA 2. OAK 3. SEA 4. TEX I would really, really like to think that the gig is finally up for the Angels, whose record last year is highly misleading. And, certainly, with the injuries in their excellent-if-healthy pitching staff the division (remember that less than 10 years ago this was a powerhouse?) is ripe for the plucking. But I don’t see who else is going to do the picking, and think the below-market Abreu signing may save them. I can’t pick the A’s with the kind of rotation they’re throwing out there, although their offense has improved. The Mariners at least have an idea of what they want to do, and until the Angels get healthy probably have the best rotation in the division supported by an incredible OF defense, although the back end remains pretty dire. But the offense lacks both power and on-base ability and the bullpen is to shaky for a team that will need to win close games. The Rangers are an interesting team looking ahead, but it’s hard for teams in bandboxes to develop pitching staffs, so I think they’re a year away.

Central: 1. CLE 2. CHI 3. DET 4. MIN 5. KC And remember when this division looked like it would be really powerful? I don’t especially like any of these teams. Cleveland, though, is a pretty obvious pick despite the ongoing lack of power in the OF corners: the offense is very solid, although the rotation is just OK assuming Lee comes back to earth, and singing Wood will help. After that, it’s desperate work to pick. Most statheads seem to see a White Sox collapse, and certainly Williams doing stuff like starting the year with nothing remotely resembling a major league CF doesn’t inspire confidence. Still, I think their rotation is underrated, and the Ramirez/Quentin/Thome/Dye core should score enough runs to compete in this division, especially if Fields takes a step forward or Konerko a step back. The Tigers still have a pretty good offense with a high upside, but with their pitching they’re probably a better candidate to finish 5th than 1st. I don’t think the Twins can afford to miss two months of Mauer, leaving them with basically a one-man offense (especially since that one remaining man is overrated), and their pitching isn’t any better and probably worse than Cleveland’s, even if they have the division’s best closer. The Royals are beginning to put their world together, but the back end of their rotation is unnecessarily atrocious and they also distinctly lack championship-quality hitters.

EAST: 1. BOS 2. NYY(*) 3. TB 4. TOR 5.BAL I admit this against my instinct; I initially thought that letting Teixera go to the Yankees, while perhaps the right long-term decision, handed the division to a team that otherwise just wouldn’t have had the offense. And if the Yankees’ potentially superb rotation stays healthy it very well might. The Red Sox also have some flaws in their lineup — not much punch in the OF (where the best hitter can’t stay healthy), no SS, a very leaderly and clutchy offensive black hole at catcher, and I don’t believe in Lowell. Wait, why am I picking them again? Well, I like the depth in their rotation more, and between their age, inury risks and realities, and dubious bottom-end the Yankees have their own offensive issues. And Rivera probably doesn’t have more than 15 years left in him as the best closer in the game. (Seriously, 77/6 K/W ratio? 0.665 WHIP? It’s like every year is the postseason now.) Anyway, I think they’re both going to the playoffs. The Braves are the only miracle team to emerge as a good team. The Rays actually have a decent chance to be the second — they would certainly be clear favorites in any other division in baseball — but in this competitive context I worry about the youth of their starting pitching and a bullpen that likely overachieved last year. Still, they’re very good; if the Yankees’ injuries or Red Sox willing to carry offensive dead spots catches up to them, they could win the division again. The Blue Jays have become the new Gabe Paul Indians, with more pitching and less offense; they don’t really have bad players but they don’t have any good players (at least in the sense of anyone who should be leading off or hitting 3-4-5 in a major league lineup), although maybe Lind or Snyder will emerge as one. Riccardi is sort of the same — not as obviously incompetent as a Littlefield or Bonifay, but certainly not good enough to compete in this division. And with Ryan pretty obviously hurt…it’s sad to see Halladay wasting his career on a team like this. I like the Orioles long term a lot more, but this year will still be bleak; they’ll outscore Toronto but the hideous rotation will keep them in last place another year.

More on judicial review and democracy

[ 0 ] April 8, 2009 |

The court’s decision can be defended, in theory, on various grounds.

(1) The state’s constitution actually required the court to rule as it did.

I’m not going to debate this claim any more than I’m going to debate a Scientologist about whether we’re all really Thetans.

(2) The ruling is a “plausible” interpretation of the state’s equal protection clause and associated precedent. This is true. To say it’s plausible is to say it’s the kind of argument you can make in court, and judges might buy it. Note the claim upheld by the court would have been utterly implausible just a few (10? 20?) years ago, even though in the interim there’s been no change in the relevant formal legal materials. So what has changed? Obviously, the beliefs of judges. Just as obviously, this change in judicial opinion is a product of the change in the political landscape in regard to gay marriage.

All of which is to say that judges are now more likely to find a constitutional right to gay marriage than they were a generation ago (when the odds of them “finding” such a right could be calculated as zero) for exactly the same reason that legislators are now more likely to vote for civil union and gay marriage laws than they were a generation ago — because an idea that was politically unpopular has become more popular.

(3) It hasn’t become popular enough in Iowa., however, to be enacted through legislation. The defense of judicial review of this sort by people who aren’t sufficiently clueless to believe that what’s going on is the deduction of formally entailed legal conclusions from authoritative texts comes down to some combination of “it’s not really that anti-democratic for courts to do stuff like this because they need support from the political branches,” and/or “this is too important to be left to the normal political process.” I just want to note that these arguments tend to become somewhere between deeply implausible and utterly outrageous to those who make them whenever courts employ this type of judicial review to invalidate laws they like.

Now it’s certainly possible to defend aggressive judicial review under the guise of interpreting very general constitutional language. But two arguments that seem quite wrong to me are that such a practice is “legal interpretation” in any useful sense of that phrase, and that such a practice isn’t significantly less democratic than the typical legislative process (which of course itself is only very imperfectly democratic).

Great moments in ACORN hysteria

[ 0 ] April 7, 2009 |

This is really funny:

ACORN is “gate busting” Tea Parties nationwide. These far-left goons are attending them and mispresenting their allegiance. They are getting petitions signed, misrepresenting them as opposition to the Obama agenda. They explain something different than that written on the petition. More fraud, and lies from Obama Acorn people. Please be careful when signing your name to anything at these Tea Parties. We are still not sure what these whackjobs are using the names for, these people are known for violent criminal acts,bullying tactics, fraud and harrassment (just to name a few). Groups like ACORN and CODEPINK are nothing but Anti-American criminal organizations. BEWARE.
I just stocked up on Pepper spray at JUST IN CASE

That post, gurgled through the wingnut alimentary canal (i.e., esophagus, stomach, small/large intestine) will now come to rest in the great porcelain bowl from which the right feeds itself each election cycle.

Come 2010, in addition to the usual laughables — ACORN committed vote fraud! ACORN brought down the global economy! ACORN is making the ghost of John Locke cry! — Glenn Reynolds and Michelle Malkin will be able to remind their readers of the time that Barack Obama supplied homeless people with cartons of cigarettes as rewards for disrupting the most awesomest grassroots rebellion since the Third Servile War.

Ed Morrissey: Missile Defense is Too Complicated for Me to Understand

[ 0 ] April 7, 2009 |

Ed Morrissey:

There has always been an air of absurdity about the opposition to missile-defense systems. No one argues that missiles aren’t a threat, but somehow defending ourselves against it is illegitimate unless one stumbles on a complete, perfect defense immediately. That we have never found a perfect defense against any weapon on the first throw doesn’t appear to faze people at all….Is it cheap? Of course not — but it’s a lot less expensive than the alternative of having missiles hit cities in Europe or the US. If Minneapolis suddenly disappeared in a North Korean mushroom cloud, I’d bet that the costs, even outside of the human costs, would be exponentially larger than everything we’ve spent on missile defense for the last 25 years put together.

Ed, let me explain something to you, slowly and carefully. Missile defense, at least when conceived as a response to the threat of nuclear attack on the United States, needs to be “complete and perfect.” Otherwise it’s useless. There are virtually no foreign policy goals that a President will consider worthwhile if there’s a 5% risk that the destruction of American cities will result. 80% doesn’t cut it; 95% doesn’t, and probably not even 99%. This is not a new objection to missile defense; analysts have understood that defense against nuclear armed ballistic missiles needs to be 100% for quite some time, which is why so many intelligent people have rejected the possibility that a missile defense shield could provide useful protection for the United States. Now, it’s fair to say that the same logic does not apply to conventional ballistic missile attacks on either cities or military targets; in those cases, an 85% effective missile shield is useful. But for preventing Minneapolis from disappearing under a nuclear mushroom cloud, not so much.

Ed has two potential objections to this. The first is that North Korea or some other rogue state might send a flight of missiles at the United States just for the hell of it, and not in reaction to some US policy. This is too silly for words; North Korea can commit national suicide right now if it wants. The second is to emphasize the “immediate” portion; this is to say that missile defense may not be perfect now, but it will become so in the future. This is plausible only if you believe that potential enemies of the United States never innovate, and never react to developments in the US. If they do, then “perfection” is transitory, and we can never really be sure that our defense is 100%, which gets us back to square one.

In other words, it’s nonsense all the way down.

The Majoritarian Difficulty

[ 0 ] April 7, 2009 |

Neither house of Iowa’s legislature has the slightest interest in a constitutional amendment overriding the state Supreme Court’s perfectly plausible holding that denying same-sex couples marriage rights violates the state’s constitutional admonition that “the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.” Why, it’s almost enough to make me wonder in what sense the Court’s decision was a “usurpation” of the will of Iowa’s current legislators in the first place.

Meanwhile, the massive backlash is also evident in Vermont. I mean, the Vermont House could only barely scrape up a 2/3rds majority to override the governor’s veto! I hereby arbitrarily declare that to be really democratic they would need at least 90% of the vote in both legislatures and a referendum.

Raptor Jobs Not Preserved

[ 0 ] April 7, 2009 |

General Schwartz, Air Force Chief of Staff:

All right, all right — some people have to play little games. You play yours. So let’s just say that you’ll give me 60 more F-22s because it is in your interest to give them to me. But I want your answer and the planes by noon tomorrow. And one more thing: don’t you contact me again — ever. From now on you deal with Lockheed.

SecDef Gates:

Uh, General — you can have my answer now if you like. My offer is this — nothing. Not even the reimbursement for the public relations campaign, which I would appreciate if you would put up personally.

In other news, James Inhofe has gone plainly apoplectic. It’s worth noting that the cuts announced thus far have to make their way through Congress, and that Democrats normally in sympathy with the Obama administration may find the prospect of defense cuts in their own states and districts too much to bear. However, Noah makes the argument that the prospect of Congressional opposition may have encouraged Gates to go for broke:

But this parochial opposition may have actually encouraged the Pentagon and the White House to be more sweeping in its plans, one key Congressional staffer suggests. Previous administrations have tried to cut bloated, poor-performing defense projects onesy-twosy — only to be rejected by the Hill. Going after a whole range of weak programs at once makes it more likely that at least some of the Pentagon’s sickliest weapons projects will be amputated.

Finally, I think the question of whether or not keeping Robert Gates on as Secretary of Defense was a good idea has been decisively answered.

That Was Just Pathetic

[ 0 ] April 7, 2009 |

J. Swiderski of “bail this out” has won the LGM Tourney Challenge. Mr./Ms. Swiderski’s victory was clinched by North Carolina’s crushing victory over what purported to be the Michigan State Spartans last night. The owner of “bail this out” should contact me (e-mail is available through profile on the right) for prize collection.