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Institutional Reform Note

[ 0 ] February 7, 2009 |

The comments here focusing (correctly) on the age of potential judicial appointments — a problem given that current norms favor appellate judges and there hasn’t been a Democratic president for 8 years (and moreover that president mostly had a Republican Senate and didn’t make judges a high priority) — reminds me that it would be much better for justices to be appointed to fixed, non-renewable terms. This would (largely) fix the problem of some presidents randomly getting more appointments than others and age being given an inappropriate priority in nominating decisions.

Make It Stop

[ 0 ] February 7, 2009 |

Oh, God, coverage of the now nearly-at-hand beginning of the baseball season will once again be dominated by the thoroughly uninteresting news that completely unenforced nominal rules against drug use were systematically violated, as they have been throughout baseball history except that it was cute when most of the players were white players like Mickey Mantle may have routinely taken performance-enhancing amphetamines cute pills but were upstanding citizens who payed for the love of the game. I just regret that it wasn’t Jeter who was caught, not because I would care but because it would cause sportswriters to claim that it doesn’t actually matter and spare us the empty moralizing.

And just since it’s been a few days since the last flame war on the topic, I thought I’d throw in this from Bill James at his subscription site, which gets at the issue nearly perfectly:

Who was it exactly that said that Jeter was overrated? I don’t think it’s an issue of his being overrated exactly; it is more an issue of his being fawned over. Maybe I’m missing something, but I think most people acknowledge that he’s a great player. Bobby Abreu is a great player, too, but nobody feels compelled to tell you once an hour or so that he is not only a great player but a great team leader, a clutch hitter, a role model for children, a hero to firemen, the greatest baserunner since DiMaggio, has the work ethic of Bear Bryant, the courage of a Braveheart, the modesty of Ghandi, the footwork of Nijinski, the charisma of a movie star and the baseball instincts of John McGraw. But no Yankee broadcast is complete without at least three or four paeans to Jeter’s virtues. It’s unnecessary, it’s childish, and it’s embarrassing.

The one caveat is that he has been overrated as a defensive player, although not necessarily as a player over all (or, if he has been, it’s only because Babe Ruth wasn’t as good as Michael Kay makes Jeter out to be.) But Jeter certainly is a great player, and the way he’s treated by the media and broadcasters (and not just local ones) is utterly embarrassing (and may well have cost him 2 MVP awards he arguably deserved.) And incidentally, it’s weird that Abreu — similar to but somewhat better than Jeter as an offensive player, somewhat less valuable as a defensive player (below-average corner OF vs. really bad SS — how many runs is that?) can’t get a contract.

Friday Cat Blogging: Beau

[ 0 ] February 7, 2009 |

Beau’s relationship with this stuffed animal is of a far more wholesome and family-friendly nature than some of deranged sex fiends you see around here. Mostly he just carries it around by the neck, and launches the occasional surprise attack.

For the love of…

[ 0 ] February 7, 2009 |

Oh, please. The country has vaporized a million jobs in two months. For the past several weeks, critics of the stimulus bill have been provided with disproportionate airtime to make demonstrably stupid arguments about the economy while everything swirls in a tight spiral toward the bottom. Meanwhile network executives are pissing their pants because they might have to yank an episode of “House” if the President decides to explain why a global depression would be, you know, bad. Perhaps my memory is slipping, but I don’t recall this sort of hand-wringing when Bush gave that Monday-night speech in Cincinnati.

Justice Picks

[ 0 ] February 6, 2009 |


A couple of commenters in the previous thread have asked about who I’d like to see chosen if (God forbid) Ginsburg is forced to leave the Court. I addressed this in a post a while back. I still like Kagan, but I assume Obama would want her to get more seasoning as Solicitor General, and that’s OK with me. Of the other candidates being mentioned, based on what I know, I find Diane Wood an especially attractive possibility. Jennifer Granholm is interesting. Myself, I think someone with her background would be a useful addition to the Court, but Obama may be reluctant to go against recent norms that emphasize judicial experience and I don’t feel strongly enough about Granholm to object very strongly. Kathleen Sullivan would also be a good pick; she has a lot of expertise in the LBGT issues likely to be more important in the federal courts in coming years and has a solid record.

The Time to Appoint Liberals is Now

[ 0 ] February 6, 2009 |

Dahlia Lithwick makes the case for a liberal of the Brennan/Marshall variety (although I suppose the best analogy to Scalia would be William O. Douglas.) Unfortunately, I think she’s also convincing when she says that “[m]y own guess is that moderate, centrist Barack Obama is unlikely to name any such creature to the high court.” I think this point from the Adam Liptak piece she cites deserves emphasis:

Justice John Paul Stevens, the leader of the Supreme Court’s liberal wing, likes to say that he has not moved to the left since he was appointed to the court by President Gerald R. Ford in 1975. It is the court, Justice Stevens says, that has moved to the right.

“Every judge who’s been appointed to the court since Lewis Powell” in 1971 “has been more conservative than his or her predecessor,” Justice Stevens said in a 2007 interview. He added that Justice Ruth Bader Ginsburg might have been the sole exception but included himself as one of those 11 ratchets to the right.

[..]

According to a study last year by William M. Landes, who teaches law and economics at the University of Chicago, and Judge Richard A. Posner of the federal appeals court there, four of the five most conservative justices to serve on the court since 1937, of a total of 43, are on the court right now: Chief Justice John G. Roberts Jr. and Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. The fifth was Chief Justice William H. Rehnquist, whom Chief Justice Roberts replaced in 2005.

The study took into account the votes in divided cases on ideologically charged issues like criminal procedure, civil rights and the First Amendment. Justice Thomas, the most conservative justice in the study, voted for the conservative position in those cases 82 percent of the time. Justice Marshall, the only other African-American to serve on the court, was by this measure the most liberal, voting for the conservative side 21 percent of the time.

The study also reinforced Justice Stevens’s caveat, counting Justice Ginsburg as more liberal than the justice she replaced, Justice Byron R. White. But Justice Ginsburg, whom the study identifies as the most liberal current justice, barely makes the Top 10 in the full tally.

There’s a tendency to think of what can be loosely called the “liberal” and “conservative” wings of the Court as being roughly symmetrical. But that just isn’t the case; a liberal wing whose anchors are a Gerald Ford Republican and a someone whose most common voting partner as a Court of Appeals judge was Ken Starr are the liberal equivalents of Scalia and Alito and Thomas, but they just aren’t. This represents what may be the best opportunity to start to balance the scales for a long time, and Obama should take it.

Meanwhile, for your Friday comedy fix, Ann Althouse says that “I can’t help thinking Lithwick is running interference for some very liberal nominee to come. She has a strategy to portray that person as actually a moderate, someone to whom fair-minded conservatives should not object.” Given that Lithwick is being completely explicit about the distinction between more and less moderate liberals, this makes no sense. But you may remember Althouse’s (necessarily evidence-free) op-ed arguing that Sam Alito was a moderate to whom fair-minded liberals could not object. I believe this is called “projection.”

[X-Posted to TAPPED.]

Speaking of Which…

[ 0 ] February 6, 2009 |

Rebecca Traister notes the importance of Ruth Bader Ginsburg’s dissent from Dr. Anthony Kennedy’s appalling “despite the fact that there’s ‘no reliable data’ on the subject, we can safely assume that women will get all hysterical if the state doesn’t threaten their health in some cases by making a wholly arbitrary distinction between abortion procedures” opinion in Carhart II. And although apparently the original article was written before it came down, it’s also gratifying that Congress has restored the law to be consistent with her dissent in Ledbetter.

Boys Club

[ 0 ] February 6, 2009 |

Ruth Bader Ginsburg’s health issues raise the possibility that the SCOTUS may soon not have any women on it. If Ginsburg retires, the pressure on Obama to nominate a woman to replace her will be intense. Question: what percentage of the public and of political and legal elites, respectively, would object on principle to such pressure?

I have no real sense of this, other than to note that the percentage would surely be much lower than it was 25 years ago, when Sandra Day O’Connor’s nomination was treated by many people as a kind of novelty choice, as opposed to the amelioration of an unacceptable situation. In other words, how many people would now see an all-male SCOTUS as essentially wrong?

If Ginsburg is the next justice to retire, we’ll no doubt hear a lot of nonsense about how her replacement should be the “best-qualified person” for the job, as if that concept were meaningful. It isn’t, because there are thousands of people who would be fine SCOTUS justices, and whether any one of them in particular ought to be chosen depends on a myriad of factors, including the (in my view correct) judgment that it’s not acceptable to have an all-male SCOTUS, any more than it would be acceptable to have an all-female one.

The reasons for this should be too obvious to have to elaborate, but unfortunately that isn’t the case. Still, the world has changed a lot in the last generation, and my sense is the idea that, in regard to these sorts of decisions, gender diversity matters in a fundamental way is far more widely accepted that it was even a fairly short time ago.

Oh Yeah, That Will Be Worth 15 Bucks A Month

[ 0 ] February 6, 2009 |

I think that PJTV might be the dumbest business venture since some idiot greenlighted Scenes From A Mall.

See also. Of course, as soon as they bring the Blogway Boys back the whole thing will take off. (The Half-Hour News Hour comparison is appropriate; it’s not so much failed comedy as not-comedy.)

Supreme Illness

[ 0 ] February 5, 2009 |


Ruth Bader Ginsburg has had surgery for pancreatic cancer. As noted, “[s]he was treated for colon cancer in 1999 and did not miss a day on the bench,” so her departure from the Court is not necessarily imminent, but obviously our thoughts should go out to her.

The Case for Stimulus Transit Spending in a Nutshell

[ 0 ] February 5, 2009 |

The fact that public transit is being cut as demand is increasing is not only bad and countercyclical in itself, but has additional bad side effects:

One stop scheduled to be cut is in the western suburb of Chesterfield, Mo., just up the road from a bright, cheerful nursing home called the Garden View Care Center. Without those buses, roughly half of the center’s kitchen staff and half of its housekeeping staff — people like Laura Buxton, a cook known for her fried chicken who comes in from Illinois, and Danette Nacoste, who commutes two hours each way from her home in South St. Louis to her job in the laundry — will not have any other way to get to work.

“They’re going to be stranding a whole lot of people,” said Val Butler, a nurses’ assistant at Garden View, who said that she feared looking for work elsewhere in a tightening economy. “A lot of people are going to lose their jobs. A lot of people.”

The fact that transit funding has been cut for the package while a yet another subsidy for home purchasers is being included is depressing.

Dick Cheney is Insane

[ 0 ] February 4, 2009 |

In a truly just world, Dick Cheney would be stuffing envelopes at home for a living, or perhaps sorting plastic at a recycling center somewhere. And yet here he is, “in a non-descript suburban office building in McLean, Va., in a suite that could just as easily house a dental clinic,” making his O Face for Politico. It nearly goes without saying that Dick Cheney proved to be one of the nation’s greatest natural catastrophes — a Dust Bowl in human form, the Spanish Flu incarnate — and as such, he merits our enduring scrutiny. Still, it bears remembering that much of what he has to say from now on will be completely insane:

Of one alternative — moving prisoners to the U.S. prisons — Cheney said he has heard from few members of Congress eager for Guantanamo transfers to their home-state prisons, and asked: “Is that really a good idea to take hardened Al Qaeda terrorists who’ve already killed thousands of Americans and put ’em in San Quentin or some other prison facility where they can spread their venom even more widely than it already is?”

Cheney’s mendacity is on full display throughout the piece — citing, for instance, fabricated and debunked figures to the effect that some five dozen “terrorists” have resumed their business of writing editorials and appearing in documentaries. Setting aside for a moment the question of what should be done with the people whom the US purchased from the Northern Alliance or the Pakistani ISI and whom we have since held without charge or trial for seven years, does Cheney actually believe that the Obama administration has the first notion of tossing detainees into the general population at a place like San Quentin?

I suppose he assumes Politico readers will find this plausible, but I’m thinking there’s something more going on here. By mentioning San Quentin, Cheney is subtly reminding Americans of the famous Black Panther George Jackson, who was shot to death in 1970 during one of the most notorious failed prison breaks in US history. (He could be trying to evoke B.B. King or perhaps the memory of Johnny Cash, but since Dick Cheney’s musical enthusiasms are limited to the recorded bleats of calves in a veal pen, I’m doubtful.) If McCain and Palin had adopted the San Quentin — and George Jackson — allusions during the campaign, they might have added a meaningful layer of depth to the charge that Obama was consorting with ’60’s-era radicals like William Ayers. Rather than simply claiming that Obama was friends with someone who endorsed the work of the Black Panthers, or that the Obama logo was an ode to Weatherman, the glue-huffers in the garden-level stairwell could have argued that Obama wanted to bring “two, three many George Jacksons” from Guantanamo to the shores of the homeland.