Today, in day 2 of the term, the Supreme Court heard two cases involving the US Sentencing guidelines. Both cases involve decisions by lower courts to sentence drug offenders to something less than the guidelines minimum (downward departure). There’s a whole lotta confusion about the US sentencing guidelines, much of it created by the Supreme Court in its recent jurisprudence on the issue. Ever the pithy one, Dahlia Lithwick sums it up pretty well:
So just to catch you non-Booker people up on what you’ve missed in the last few years: There used to be a lack of uniformity in sentencing. Congress created sentencing guidelines. The court decided the guidelines were merely advisory. Appeals courts said sometimes advisory guidelines are still mandatory. District courts got confused. And now the high court asks the parties to make immutable rules out of standards, and flexible standards out of rules. Kimbrough and Gall think a good rule is that the guidelines should go away. The Justice Department thinks a good rule is that the judges should go away. And the court? It may finally have to pick a side.
Why should you (non-SCOTUS followers) care, you ask? Well both cases today (and many of the cases that arise under the Guidelines) involve drug sentencing. And these cases are a potential giant leap toward chipping away at the crack-cocaine disparity. And in a case where “Scalia seems to be channeling Brennan” no less. A phrase I never thought I’d see.
On days like today, these are the sorts of grammatical transgressions that make me want to garrote a panda.
. . . oh, and what the hell is an apostrophe doing in the middle of the word “gourmet?”
Come back here, stupid panda!
Most of this lament for the polarization of the Roberts Court I addressed in a TAP article recently. The short version is that 1)Roberts will certainly fail in his attempt to create a consensual Court that papers over major substantive divisions, and 2)since I don’t think the Court is entitled to a fixed degree of legitimacy and think that legal and political politics should be open and explicit this doesn’t concern me.
However, Wittes does get at one thing I’ve never understood: how people who criticized Kennedy’s opinion in Carhart II but supported the outcome actually wanted the case to be disposed of. I can certainly understand why the anti-Roe pro-choice crowd didn’t like Kennedy letting the gender subordination and hack pseudo-science cats out of the anti-choice bag — they’d like to war against judicially protected reproductive freedom with the anti-choice movement they wish they had, not the one that actually exists — but without these reactionary assumptions about women’s rational incapacities the legislation (which the state conceded at oral argument would not protect fetal life) has no rational connection to any state interest at all. Wittes explains how he wanted the Court to rule:
Not one of the nine justices was willing to apply to the federal partial-birth abortion statute the logic the court had unanimously articulated the year before for a New Hampshire parental notification statute–in which it had refused to throw out the statute on its face but had ordered the lower courts to block applications of it that would run afoul of its case law.
The problem here is that Ayotte doesn’t actually make any sense. While it’s certainly a sound principle to construe ambiguous legislation to assume its constitutionality, to read a health exemption into a legislative enactment when the legislature specifically considered and rejected one makes no sense at all (and to describe it as “judicial restraint” is Orwellian.) The appropriate remedy is for the Court to send the issue back to the legislatures and invite them to craft legislation consistent with the Court’s precedents (or to overturn the precedent), not to distort the legislation beyond recognition. And Ayotte makes even less sense in this case. While a health exemption, at least in theory, leaves a substantial number of cases in which parental notification would be necessary, to permit doctors to perform D&X abortions when they plausibly believe them to protect maternal health would defeat the purpose of the statute entirely (why would doctors choose a method they believe to be less safe?)
And this is my central problem with this consensus-above-all-other-virtues jurisprudence. The courts owe the public transparency and some measure of internal logic. If they’re overturning precedents (pace Roberts) they should say so, and if they’re effectively nullifying legislation they should do so openly.
A couple of weeks ago, Slate held a dialogue about Hanna Rosin’s new book God’s Harvard. The book is about Patrick Henry College, a small evangelical college of recent vintage in northern Virginia. Patrick Henry caters to evangelical homeschoolers with an interest in conservative political activism, and is envisioned by its founder as an integral part of movement conservatism. Rosin, a religion journalist for the Washington Post, had what amounted to a privileged outsider’s view of the operation of Patrick Henry for about a year.
In the Slate dialogue, Rosin writes in response to David Kuo:
Scary is a word my lefty friends use. When I had negative thoughts, that was never the adjective that came to my mind. Maybe smug, or arrogant or naive.
Call me a lefty, but I found the book kind of scary. Patrick Henry was founded by homeschool advocate Michael Farris as the natural next step; a place where evangelicals sequestered from mainstream society through their teens could be trained a cultural and political warriors for movement conservatism. Patrick Henry (the name apparently originating in some statement by the actual Patrick Henry that American should have an established Christian character) quickly became known as the place to be for up-and-coming young conservatives, and began placing interns at high levels in the Republican Party machine, relative at least to its size, age, and academic rank.
Patrick Henry was established explicitly to counter what its founder believed was leftist bias in the mainstream university community. Patrick Henry isn’t so much a college for evangelicals as it is a college for extremely conservative evangelicals directly interested in working for the Republican party. As such, it’s founded on a profound misconception about the left and the mainstream American university. While it’s true that a large majority of faculty (especially in the liberal arts) are on the left politically, and also true that there is, as Michael Berube argues, something specifically liberal about the liberal arts, there is in my experience simply no counter-part to the Republican political machine that exists at Patrick Henry. Anyone who has spent five minutes on college campus should realize that, whatever may be going on, political action in service of the Democratic Party isn’t it. For a time at the University of Oregon, one of the most leftist campuses in the country, there was no Democratic Party organization on campus at all. The Democrats had disintegrated as a result of vicious infighting between various of their elements, for reasons so arcane that the terms “moderate” and “radical” don’t supply an accurate description. Even if, as David Horowitz would have it, lefty college professors were trying to recruit soldiers for the coming revolution, that project does not manifest itself in terms of institutional support for the Democratic Party. Patrick Henry, conversely, is directly tied in to conservative think tanks, NGOs, and Republican elected officials.
On a related point, most of the students that Rosin describes seem to believe firmly that Jesus hates the estate tax, would exclude young children from government health care, and loves the F-22. That is to say, they don’t think about Republican Party political goals as necessary compromises or means towards alliance building. Rather, they believe that the goals of the Republican Party are firmly in line with the teachings of Jesus himself. Again from the Kuo-Rosin dialogue, this time with a direct quote from a Patrick Henry graduate:
As long as your faith is an ambiguous thing that’s determined by your culture and personality and the parts of the Bible that you like best—that’s fine with most liberals. But the moment your faith becomes grounded in a God that has revealed his opinions and principles in a document (the Bible) that people rally around, study, learn, and believe despite their personalities and personal convictions (which is the sort of “elite” evangelicals you hung around with at PHC)—you’re dealing with a united force with a relatively united voice.
Right; to which the immediate rejoinder ought to be “But where did Jesus express support for supply-side economics? And where did he say that unions were evil? And where did he say that extraordinary rendition was cool?” Rosin may be giving an unfair account of how the typical Patrick Henry student thinks about these questions, but given that a large number of students have been homeschooled, and that the connection of the rest with mainstream American culture is tenuous at best, it’s a plausible account.
Several of the students that Rosin interviewed described an interest in intelligence work. On the surface this isn’t that surprising; intelligence services tend to draw from those who are particularly inclined towards nationalism, and Patrick Henry draws from upper and upper-middle class families that don’t often opt for military service. Still, intelligence work is the kind of field that invariably involves ethical and moral compromise. It is the job of case officers at the CIA to steal things, to work with corrupt foreigners, and indeed to produce as many corrupt foreigners as possible. In the abstract, I can’t think of a profession less likely to attract committed, principled Christians. Nevertheless, as I mentioned in my review of James Olson’s Fair Play, intel work seems to hold a bizarre attraction for evangelicals. I’m also forcibly reminded of Breach, in which Robert Hanssen is notable both for his strong attachment to the Catholic Church and for his fondness for trading secrets for Soviet money. As best as I can tell, the answer seems to be that the evangelicals who really like intelligence work also tend to believe that the United States is uniquely blessed by God. I suppose that this belief could even make the compromises associated with intelligence work slightly easier, since they don’t involve grubby national interest so much as the greater glory of the country selected by God to lead the world.
Patrick Henry’s focus on political power is in some tension with its gender program. The female students at Patrick Henry seem content to say that they’ll be happy in the “traditional Christian” roles of wife, mother, and support system to go-getter husbands, but in practice they’re often as ambitious as the men are. Rosin details some incidents in which these smart, ambitious young women begin to figure out that yes, the men really are serious about the idea that the place of the woman is in the home, and no, they won’t vote for a women for student body president, or marry a woman who they suspect of being too ambitious. For a while this tension can be finessed, but the strains it creates are obvious and unavoidable. Eventually, the young women run smack into not simply the patriarchy, but rather a force that believes the patriarchy is insufficiently patriarchal. We don’t get to see all of this, because Rosin only follows the students for about a year, but we get to see a lot of it.
New St. Andrews College, profiled in last Sunday’s NYT magazine, makes a lot more sense to me than Patrick Henry. I don’t support its project or agree with its political stance, but its easier for me to wrap my head around its conservative Christian rejectionist view than Patrick Henry’s tight association with movement conservatism. Indeed, Pastor Doug Wilson of New St. Andrews joked “They [Idaho conservatives] voted for Bush; I’d vote for Jefferson Davis,” a statement which should eliminate any doubt as to whether the school’s project is admirable or not. Nevertheless, it at least reveals an understanding of how far outside the mainstream the ideas are, and implies that there are some fundamental contradictions between evangelical Christianity and the contemporary political agenda of the Republican Party. Moreover, NSA actually seems to value intellectual inquiry, while Patrick Henry recently fired several faculty over a dispute that had its origins in the teaching of material necessary to any basic political theory course. Indeed, Michael Farris apparently refers to the reading of Plato in roughly the same terms that one might treat a reading of Mein Kampf; know your enemy.
In any case, it’s quite an interesting book. Scary, but interesting.
Putin’s move on the prime minister’s office seems fairly simple. I don’t really disagree with anything Stratfor writes about it:
In our opinion, Putin had both the authority and the informal levers to dominate Russian politics without holding any formal office, simply working in the background. However, this maneuver makes things simple. Whoever replaces Putin as president will be head of state; Putin will be head of government. Putin moves his desk, or he might not even bother, keeping it right where it is.
We would say this is the end of democracy in Russia, except for the fac t that it is going to be a very popular move and it doesn’t clearly violate the constitution in any way. What it does do is promise Russia long-term continuity in leadership by a popular leader. It also means that there will not be an extended period of uncertainty in Russia about the political future, and it will cut off speculation outside of Russia about whether a post-Putin Russia would be less assertive, or at least whether a transition would provide some breathing room.
The answer is now in, although it is not surprising. There will be no post-Putin Russia, at least for the foreseeable future. There will be no transitional period. There will be no breathing space. Russia will continue to assert itself without interruption.
Not much more to say, although Russia experts are welcome to weigh in.
It gets worse and worse:
Zimbabwe’s bakeries have shut and supermarkets have warned there will be no bread for the foreseeable future as the government admitted that wheat production had collapsed following the seizure of white-owned farms.
The agricultural ministry announcement that the wheat harvest is only about a third of what is required, and that imports are held up by lack of hard currency, came as a deadline passed today for the last white farmers to leave their land or face prosecution for trespass.
The agriculture minister, Rugare Gumbo, has blamed the food shortages on black farmers who have taken over formerly white-owned land.
“I am painfully aware of the widespread theft of stock, farm produce, irrigation equipment and the general vandalism of infrastructure by our new farmers,” he said.
“I am disappointed that our new farmers have proved to be failures since the start of the land reform programme in 2000. In spite of all the support government has been pouring into the agricultural sector, productivity and under-utilisation of land remain issues of concern.”
The ministry of agriculture has also blamed electricity shortages for the wheat shortfall, saying that power cuts have affected irrigation and halved crop yields per acre.
I trust beyond the obvious (“wage and price controls don’t work!” “Having no rule of law is bad for economic development!”) that the lesson in the need to temper claims of abstract justice with wisdom here is clear. Even if every farmer whose land was expropriated owed their property ownership quite directly to colonialism and apartheid, and some state policy to broaden ownership was desirable, you also have to ask what a particular policy will accomplish. Having productive land turned over to cronies of the state with no ability or willingness to farm had predictably catastrophic results.
Wow. Condolences to TBogg — and congratulations to Jeebus. I was pulling for the Padres, but that was an amazing game. With the Phils and now Colorado having closed out the regular season with improbable runs to the playoffs, I can’t think of another pennant race quite like it. It genuinely makes me wish I paid more attention to the National League.
…UPDATE [By SL]: I thought TBogg was out arranging a contract on Tim McClelland? It seemed to me that they also blew the call on the possible homer that would have made it 7-5 (God knows the soporific TBS broadcast — Gad, this is going to be painful — couldn’t seem to be bothered to even find out the relevant ground rule, so it’s tough to be sure), so it evens out. Anyway, Jesus, did Trevor Hoffman choke it up this year.
But what a great game. When was the last time a play-in went to extra innings? Is it unprecedented?
…or, “Is there anything that Bill Kristol says that won’t eventually find its way into Christopher Hitchens Mouth?“
China also maintains territorial claims against India and Vietnam (and, of course, Taiwan) and is building a vast army, as well as a huge oceangoing navy, to back up these ambitions. It seems an eon ago, because it was before Sept. 11, 2001, but we should not forget what happened when an American aircraft was involved in a midair collision over Hainan island in the early days of this administration. The Chinese acted as if the accident was deliberate, impounded the plane and the crew for several days, and mounted mass demonstrations of hysterical chauvinism. Events in the Middle East have since obscured this menacing picture, but actually it is in that region that China’s cynical statecraft is most obviously on display. If Beijing had had its way, Saddam Hussein would still be in power. Iran is being supplied with Chinese Silkworm missiles. Most horribly of all, China buys most of the oil of Sudan and in return provides the weaponry—and the diplomatic cover at the United Nations—for the cleansing of Darfur.
To take these one at a time….
- China does not have meaningful territorial claims against India. China won the Sino-Indian War, then drew back to the territory it claimed as its own. India has (perhaps justifiably, perhaps not) been calling for revision of the current territorial arrangement.
- Hitchens claim seems to be that the Hainan Island incident reveals China to be an aggressive revisionist state. Given that the incident happened over six years ago, it would seem that some, well, any other evidence would have emerged regarding China’s aggressive intent since that time. As Hitch is referring to that incident rather than one more recent, I can only that either no relevant recent incident exists, or that the Hainan Incident happened the last time Hitch was sober. Given that the last is implausible on its face (does anyone believe that Hitch has had a moment of sobriety in the last 20 years?), I’m going to have to go with the former.
- Hitchens claim that China has a huge army and a huge navy are best interpreted as “dude read it on the back of a cereal box, or maybe in the Weekly Standard”. China’s navy is, almost all analysts agree, smaller and weaker than that of Japan. It is trivial compared to the USN. China’s army is very large, but only capable of action in select circumstances.
- It’s very hard for me to understand how one person can both a) be a supporter of the Bush administration, and b)have a problem with displays of hysterical chauvinism.
- If Canada had its way, Saddam Hussein would still be in power. The same could be said of France, Germany, Russia, Al Gore, and myself. Hitch probably can’t tell the difference, but Western democracies resisted the invasion of Iraq much more mightily than China did. I don’t recall anybody in the Weekly Standard complaining that the Chinese were going to veto the force authorization resolution back in 2003.
- “The United States buys much of the oil of Saudi Arabia and in return provides the weaponry- and international diplomatic legitimacy- for the maintenance of the brutally repressive Saud dynasty.”
Like I said last week, he’s barely even trying anymore. Having gone down the dark path, it’s too much work to turn back, and the Weekly Standard will always have a new position for him to ape. Next week he’ll probably write a column advocating school vouchers and states’ rights.
Radiohead has a new album coming out on 10/10. It’s their first non-big studio album in quite some time. They’ve produced it and are marketing it themselves. But even without the cut to the record label, it’ll be the smallest profit they’ve made from a record in years. Or maybe it won’t be.
The confusion arises because Radiohead is selling the record only through its website…and is letting people who download it pay what they want. Seriously.
The idea (brilliant, I might add) is reminiscent of Berlin’s weinerei restaurants, about which I (or guest bloggers) have written before, at which you are served delicious food (3 courses) for an indeterminate price. At the end of the meal, you pay what you want, slipping the money into a jar by the bar. Seriously.
One would think that this would be an unsustainable business model, but the weinereis are thriving in Berlin (you need a reservation). They must be doing well because people like me feel so good about the place and the food that we overpay. Wonder if the same will happen with Radiohead’s album…or if people will take the music and run. And anyway, what is the fair price for the genius of Thom Yorke et al?
(via brother of bean)
To thearistokatz, manager of the Lonesome Tadahitos, and winner of the 2007 LGM Baseball Challenge. As soon as I’m favored with an e-mail address, thearistokatz will receive a much-coveted LGM Certificate of Championship-ness.
1 Lonesome Tadahitos, thearistokatz 8411
2 12-6 Shooters, FoxBarnes 8100
3 Albuquerque Turquoise, eloomis121 7522
4 Shangri-La Coelacanths, jackdawbl2 7249
5 titleixbaby, titleixbaby 7246
6 Bolts from the Blue, rapayn01 7229
7 Axis of Evel Knievel, davidnoon 6993
8 E.Robertson, UKEvan 6899
9 Metsies, metsies, metsies, bpetti32 6863
10 kodos423, kodos423 6820
11 The 14th Century, The 14th Century 6661
12 Wowee Zowee, voodoodoodoo 6562
13 Incertus, Incertus 6438
14 Lexington Bearded Ducks, farls0 6348
15 Theibault Moor Orioles, john theibault 6289
16 The Old 300, patrickmcleod 6248
17 Brian DePalma Again!, klhoughton 5540
The Supreme Court refused to hear an appeal seeking to nullify a New York law, upheld by state courts, that requires Catholic Charities to provide contraception to women as part of health coverage requirements. I think this point is especially important, and often distorted when debates on the subject come up (the question of whether Catholic hospitals should provide EC to rape victims being another example):
The New York law contains an exemption for churches, seminaries and other institutions with a mainly religious mission that primarily serve followers of that religion. Catholic Charities and the other groups sought the exemption, but they hire and serve people of different faiths.
New York’s highest court ruled last year that the groups had to comply with the law. The 6-0 decision by the state Court of Appeals hinged on the determination that the groups are essentially social service agencies, not churches.
This distinction gets things exactly right. It is appropriate to exempt churches qua churches from some neutral laws and civil rights protections. Nominally religious organizations that hire people of different faiths, serve people of different faiths, and perform secular services with taxpayer subsidies and/or tax breaks should comply with generally applicable statutes except in rare cases when they are specifically targeted at religious groups.