The Statements. They Mean Nothing.

He basically said . . . that Roe was precedent on which people — a lot of people — relied, and been precedent now for decades and therefore deserved great respect,” Sen. Joseph I. Lieberman (D (sic)-Conn.) told reporters after meeting with Alito yesterday.” (via FL)

The Court’s opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent.” Rehnquist, J., Roe v. Wade (dissenting)

To repeat, these kinds statements by Alito mean absolutely nothing. Talking about “respected precedents” is a good way of evading the issue, and that’s it. It takes someone as hard-wired to roll over and play dead as Lieberman to infer something from them. It should be noted as well that talking about how much you respect precedents before you overturn them is quite common; considerably more common, I would bet, than the “it was not correct when it was decided, and it is not correct today” rhetoric that was used in Lawrence. Particularly given that Alito knows that advocating the overturn of Roe (whether explicit or sub silento) would be the end of his nomination, these statements mean less than zero.

…AFJ notes that even Clarence Thomas touted the value of stare decisis at his hearings.

…Shakes Sis writes letters.

Derb on Science

Derb is feeling persecuted:

In very brief: Yes, I think science is under attack from both Left and Right. I also believe that the attack from the Left is a MUCH bigger threat–better armed, more ferocious, and international. One of the things that annoys me about the Intelligent Design people, in fact, is that they are distracting conservative scientists from the real fight, obliging them to squander their energy, while intellectual Left-fascists like the editorial writer of Science Week hold the high ground.

Here’s a scientific question: Just what kind of drugs do you have to be on to think that the left poses more of a threat to scientific method, practice, and discourse in the United States than the Right?

I suppose if you think that Charles Murray and Steve Sailer represent the epitome of good scientific research, then you would have cause to complain about the left. Still, it’s hard to imagine the mental gymnastics required to believe that lefty post-modernist attacks on science have anything close to the funding, backing, and popular appeal of the right wing assault on evolution, stem cells, and anything else that sticks in its craw this particular morning. Derb’s citation of this editorial by Science Week is particularly bizarre, since Derb apparently cannot tell the difference between “intellectual left fascists” and a critique of the appallingly bad science that Derb is trying to push.

Ha-Ha

You have to like to see this. I hope someone remembered to take the laces out of Mickey Kaus’ shoes. (Speaking of Kaus, he argues that “you might say it’s time to take the fight to the courts–and there are valid constitutional arguments to be made, along Baker v. Carr lines, against partisan or pro-incumbent gerrymanders.” Yes, I can’t believe nobody has ever thought to do that before!)

By the way, I noted that the allegedly socially liberal, anti-”special interests” Republican engaged in a familiar bargain (which also explains his veto of gay marriage legislation):

Also on the ballot were four other initiatives. Voters were narrowly defeating Proposition 73, which would bar abortions for minors without parental notification. The state Republican Party promoted Schwarzenegger’s endorsement of the measure among evangelicals and other religious conservatives in a bid to boost turnout of voters who would back the rest of his agenda.

At this point, I guess we’re just haggling over the price. But now I can see why he’s such a darling of the bullshit-libertarian movement!

…Digby:

…may I just say how pleased I am that California voted down every single initiative yesterday, thereby shoving Schwarzenegger’s useless 70 million dollar special election down his throat. Even the parental notification for minors seeking abortion went down.

Schwarzenegger is toast. After watching Bush and him in action maybe people are finally beginning to move beyond the “dumbshit guy I’d like to hang out with” and “movie stars are, like, awesome” methods of choosing our leaders.

Interesting Guy Watch: Major General Gerald Grosvenor

Unfortunately also behind the Defense News subscription wall is an excellent interview with Major General Gerald Grosvenor, leader of the United Kingdom’s Reserve Forces. General Grosvenor makes the case that the British Army and the US Army approach the use of force, especially in a counter-insurgency setting, in fundamentally different manners. His main argument is that British soldiers are trained to be more flexible in situations that call for the moderation of force.

Where the British soldier has an edge, if one is to put it that way, is that our servicemen have a very well rounded training in terms of the being able to understand the nuances and complications of peace-keeping operations. The British soldier also has more experience entering into and understanding different cultural environments. Understanding and working with different cultures is embedded in our military history and in our experience since World War II throughout the world.

. . .

Somehow, it’s terribly natural for the British soldier to transition from a fighter to playing football with the locals while Basra is going up in flames. Whether that’s traning or our culture, I’m not sure- probably a combination.

In terms of training, I refer to the ability of the British soldier to be able to change like a chameleon, from one role to another- from one day having a beret on his head, walking the beat as a policeman, and the next day the threat increasing, and having a helment on his head. And recognizing the moment when to take the helment and body armor off and project yourself in a more caring role.

Reasonable enough.

General Grosvenor is an interesting guy, however, because in addition to being the leader of the UK’s Reserve Force, he is also the Sixth Duke of Westminster, a multi-billionaire, and the third wealthiest person in the United Kingdom. I leave you to draw any applicable conclusions from his story.

Quality or Speed?

The Defense News article appears to have gone behind the subscription wall, but it’s worth excerpting this bit:

The conventional assumption that speed and precision weapons allowed U.S. forces to rapidly defeat the Iraqi Army in early 2003 demands reassessment in light of the large numbers of close combat battles fought by invading U.S. forces against unbroken Iraqi defenders, a U.S. Army War College expert said.

During a Nov. 2 Army War College conference, “U.S. Military Operations in Iraq: Planning, Combat and Occupation,” Stephen Biddle said all of the Iraqi cities were defended along the U.S. Army’s line of advance, which forced commitment of the American reserve, the 101st and 82nd Airborne divisions, to clear the cities and secure the transportation routes.

Biddle said the Iraqis’ poor fighting skills and inadequate defenses, particularly in the cities, allowed U.S. forces to exploit their armored protection and precision firepower. He believes the same tactics employed by American ground forces, armored raids inside Baghdad, likely would have resulted in much higher casualties against a more determined and better prepared foe.

Take into account that I have an enormous amount of respect for Biddle, but I think that this analysis is probably right on. Arab military organizations have a long history of staggering ineptitude, and the Iraqi Army was never considered good even by Arab standards. Throw in twelve years of sanctions, and you have a recipe for disaster. Also, Biddle’s analysis should sound a cautionary note about suggestions that the 2003 war indicates that the Revolution in Military Affairs has taken hold and that warfare has been fundamentally transformed by precision guided weapons and new communications technologies.

What are the implications of this? Well, it matters for any plan to attack Iran or Syria. Before you say “what a ridiculous question, we can’t possibly attack anyone else in our current state” let me remind you of the nature of the current occupant of the White House. We can expect that Syrian forces will be more competent than Iraqi. They performed better than Iraqi forces in the various conflicts against Israel, and they haven’t suffered to the same extent as the Iraqi forces over the past ten years. This doesn’t mean that Syria could successfully resist a US attack, but it does make significant US casualties more likely.

Iran poses a much more interesting question. Iranian forces are larger than Iraqi and better equipped (although probably not in relation to 1991 Iraqi forces). The competence level of Iranian forces is simply unknown. It’s probably too much to expect that Iranian forces will defect or desert at anywhere near the rate that Iraqi forces did in 2003. However, the Iranian Army did not distinguish itself between 1980 and 1988, and there aren’t a lot of reasons to believe that it’s performance will have significantly improved. Of course, it might have; Iran is no longer in a revolutionary situation, it’s supply situation is much better than in 1988, and there’s been a lot more time to consolidate and revise modern doctrine.

All of this is secondary to the central problem of occupying either Iran or Syria, which is the post-conflict environment. Long story short, I would expect Syria to be a bit less troublesome than Iraq on this score, and Iran to be much, much, much more difficult than Iraq. With luck, we’ll never find out.

Riots

I don’t have anything enlightening to say about the ongoing riots in France, so I won’t bother to try. Dsquared, a smarter man than I, has an important intervention into ongoing discussions on the matter here.

Rhythmic Admirer of The Day

Paul “I encourage free speech in the blogosphere by filing risible nuisance suits” Deignan. What Deignan doesn’t understand is that if you say something stupid to another person, that person might actually tell someone else about it; that’s how free speech works. When you’re on the job market, your advisors may talk to other people who have met you, and some people may even contact her! (What “Wally” did in this case strikes me as inappropriate and excessive, but it’s not a violation of free speech or any other rights. As I believe John Stuart Mill once said, if free speech means anything, it’s that you’re allowed to tell person A that person D is a jagoff based on person D’s behavior.) That you write up your puerile rants on other people’s blogs doesn’t provide you insulation from the consequences of social interactions, no matter what your profession. Suck it up.

…More at unfogged. In comments, alameida summarizes Mr. Deignan’s game theoretic innovations: “it’s as if there were a poor man’s steven den beste, and then there was the poor man’s poor man’s steven den beste. and then we had to turn to this guy, later, after the poor man x2 den beste suffered a fatal brain haemmorage brought on by being a fucking eeeedjeet. and we found this guy’s writing rolled up with some used BART transfers in that other guy’s pockets after he passed out.”

Remakes and Reissues

I see here that there will be a remake of the greatest of all heist movies, Rififi [Mmm, probably not a great idea] starring Al Pacino [This whole casting system is out of order!!!!!!!!!] and directed by Mercury Rising auteur Harold Becker [No, really, see the original. I mean, I love Pacino too, when he's good. But trust me; really, really bad fit.] What’s worse is the likelihood that I’ll end up seeing the thing.

On the other hand, I didn’t really trust my fond memories for The Passenger, which I retained from a grainy VHS copies I watched as an undergrad many moons ago. My subsequent viewing of his previous movie, Zabriskie Point, didn’t increase my trust; it’s worth seeing only to see how bad a film by a major director not doing actual hackwork can get. But I saw the reissue last weekend and I think it holds up very well; unlike Manohla Dargis I still prefer L’Avventura and L’Eclisse, but it still often produces a haunting beauty, and the final sequence deserves its classic status.

Streamlined Procedures Act Hearing

I wrote recently about the Streamlined Procedures Act, which has generated signifcant concerns but apparently remains in active consideration. There will be a hearing on Thursday; more information about what you can do is here.

Non-Sequitur of the Month

Shorter Ann Althouse: People who oppose Samuel Alito’s nomination because of his remarkably consistent hostility to reproductive rights, rights against unreasonable search and seizure, worker’s rights, and civil rights must be doing so because they believe people don’t have rights.

On the Filibuster

As many people have argued, I would advocate that Alito be filibustered in the Senate. About the nature of his conservatism, there’s simply no serious debate, as I have argued here and here and here and here; any systematic look at his decisions indicates that he’s overwhelmingly likely to be a Scalia/Thomas/Rehnquist kind of conservative, and until Monday morning this wasn’t particularly controversial. (On any individual case you can construct an argument that it’s a purely legal disagreement, but if that was all that was going on there would be a significant number cases where he used ambigiuous legal materials to produce a more liberal result, but there aren’t. There’s nothing wrong with this per se; it’s just evidence that he’s very conservative. It’s the body of work, not any one case.) Obviously, this is very bad from a progressive standpoint, especially since he will be replacing a moderate conservative swing vote. Most liberals agree that Democrats should certainly vote “no.” But should there be a filibuster?

I should start by saying that I am actually against filibusters, if I could set the rules (which, ironically, is an argument in favor of its use, as I will argue later.) But as I have said before, unilateral disarmament is not a plan. The rules are in place; it’s legitimate to use them until they’re changed. There are, however, some good arguments for abjuring the filibuster, and I’ll discuss the two big ones using a framework suggested to me by Publius. The first is what might be called the “Bush won the election” argument, that since Bush won Democrats can only filibuster someone who’s completely unqualified or an utter crackpot, and Alito obviously is neither. I don’t think, however, that this means that the Dems can’t filibuster Alito. First of all, Democratic (and moderate Republican) senators won their elections too, and they’re entitled to use the Senate’s rules to exercise its advise and consent powers, just as the President has the right to nominate (and will obviously not–and should not– nominate someone progressives will like.) I do agree that the Dems should not be able to double-cross Bush if he appointed someone suggested as part of discussions; Hatch let Ginsburg and Breyer through based on a tacit agreement, and that’s fair. But it’s obviously inoperative in this case; not only did Reid not say he was acceptable, he specifically said that his nomination would provoke a major fight. I also don’t think that a filibuster would be justified if Alito were replacing another staunch conservative, but he’s not. I don’t think that Bush’s “victory” in 2000 and historically narrow win for a wartime incumbent provide some kind of normative mandate to effect a major ideological change on the Supreme Court (and judging by the way they’re selling him as a moderate, the White House doesn’t think it has one either.) Both the President and the Senate have their institutional prerogatives, and the nomination’s outcome can and should be fought on that basis; I don’t think there’s any reason to defer to the President here.

The other important objection is a more pragmatic one: the turnaround-is-fair-play argument. The problem, this argument goes, is that if we filibuster then so will they, with nobody better off in the long run. In a context in which the norms of judicial nomination were stable, I think this would be quite compelling. But, of course, that’s not the case. As their rule changes like doing away with the blue slip rules indicates, there’s no reason to believe that Senate Republicans will respect past arrangements, and nor is their any reason to believe that they will defer to the Supreme Court nominees of a Democratic President no matter what happens to Alito. (We don’t know what would have happened had Clinton ignored Hatch and appointed someone like Babbit, but it almost certainly would have been a very hard-fought struggle at best.) Of course, the most likely outcome of filibustering Alito would be getting rid of the filibuster rule altogether–which, of course, as Yglesias says is the best reason to filibuster of all. To paraphrase Joey LaMotta, if we win, we win. If we lose–we still win:

The filibuster is bad. In the long run, the aspects of the U.S. Constitution that make it hard to enact legislation favor conservatism. On any given day, of course, either side may be helped. At the moment, the Democrats are in the minority so filibusters let them do useful things. But over the long haul, a more parliamentary system would advantage liberals.

Breaking the rules is also bad. This, at the end of the day, is what the nuclear option comes down to: not changing the filibuster rule, but violating some other procedural rules in order to change the filibuster rule. The seven Republican members of the gang are engaging in shameful acts of political blackmail. If they think the Senate rules shouldn’t be violated, they should stand against efforts to violate them, not go around striking compromises.

Last, Judge Alito is bad. Since filibusters are, under the current rules, permitted, Democrats may as well use them to stop bad things from happening.

All that being said, the worst possible outcome here is one in which moderate Democrats allow Alito on to the bench in order to preserve the filibuster — a re-run, in other words, of the original “Gang of 14″ deal. If Alito winds up on the Supreme Court, the best possible way for that to happen would be a way that also eliminates the filibuster rule. If the filibuster rule is to be maintained, then the best possible way for that to happen would be one that keeps bad judges off the bench.

Yes. If the Senate were planning to enact a legitimate change in the rules to exclusively eliminate the judicial filibuster, then this would be a neutral outcome at best. But since they simply plan to pretend that the Senate’s procedures don’t apply to judicial nominations with no justification at all, this would be the beginning of the end of the filibuster; once this precedent is set, whenever you want to break one you just have the Vice President announce that it doesn’t apply to the given case. And, in the long term, although a lot of short-sighted Republicans don’t see it this will be a clear advantage for progressives over the long run. So if a filibuster leads to detonating the nuclear option, this is a good thing.

None of this is to say that I think it’s likely. Alito was a very smart pick, as conservative as you can get without a paper trail that would make him unconfirmable, and it will be tough to sustain a filibuster. But if you’re asking me what Democrats should do, I think it’s a no-brainer.

It’s the Votes

Preparing links for a new Alito link dump, I notice that this excellent New Republic cover story is behind the subscription wall, and I wanted to get some excerpts online. It’s particularly relevant given this awful Newsweek article, co-written by the hacktacular Stuart Taylor, which argues that Alito is a moderate–but bases this mostly on his personality and tone, which are irrelevant to the question of ideology. The two cases they discuss to make the case in any detail are used to burn down strawmen rather than evaluate them for evidence. Yes, of course, his Casey dissent was not a lawless application of precedent, but it is surely relevant that he (unlike the other two judges on the panel) interpreted an ambiguous precedent in the most conservative way possible (and, needless to say, they ignore the crucial facial challenge issue entirely.) Even worse, they note his willingess to strike down a “partial birth abortion” statute without noting that he filed a concurrence, which many have (correctly) interpreted as sending a signal that he was reluctantly applying a precedent he disliked. And, yes, his Rybar dissent doesn’t mean he was “fronting for the gun lobby,” but it does demonstrate that he will be a strong supporter of the “new federalism,” which unlike Taylor and Thomas’ conclusion is actually relevant to something.

Andrew Seigel, on the other hand, is actually engaged in serious analysis, focusing on votes rather than who’s a friendlier fellow, and draws the right conclusions:

The implication of this conclusion was that liberals should breathe a sigh of relief, since Alito is no Scalia 2.0. The reality, however, is much more complicated. While Scalia’s bellicose tone and general lack of civility have long been fodder for his left-wing critics, they have also served to hold back his judicial agenda, both by alienating potential allies within the Court and by marking his ideas as extreme in the court of public opinion. But Alito, who marries Scalia’s conservative jurisprudence with tact, politeness, and a deferential writing style, is infinitely more dangerous to liberals. In Alito, they may have met their worst nightmare.

In 15 years on the bench, Alito has had opportunities to weigh in on almost all of the controversial constitutional issues facing the Supreme Court today–from abortion and the death penalty to the scope of federal power and the role of religion in the public square. The opinions that he has written in these cases share two essential characteristics. First, each is calm, rational, and well-written. Second, on virtually every significant issue where his conclusion is not mandated by direct Supreme Court precedent, the result is conservative.

[...]

Two lessons can be drawn from the substance and tone of Alito’s appellate opinions. First, contrary to what many commentators want you to believe, the individual predilections and judgments of jurists have a substantial effect on the direction of U.S. constitutional law. While many legal questions can be resolved through a relatively straightforward application of reason to the relevant legal texts, most of the controversial constitutional questions that reach the Court are not susceptible to such simple resolution. When confronting such cases, judges are forced back–almost inexorably–to their own, often inchoate, ideas about human behavior, social policy, and the judicial role. For most Supreme Court nominees, we need to guess how these “priors” will shape their jurisprudence, but, for Alito, we have a long and consistent answer: He will tack hard to the right.

The second lesson is really a caveat about the first. With the opinions of most justices–particularly the savvy–it’s hard for a reader to separate the application of legal sources and precedents from individual will. The norms of the legal profession push judges to ground their opinions directly in the legal sources, whatever the wellspring of their decisions. Those who are accomplished at this task have the ability to make even the most controversial result sound inevitable. In a substantial percentage of their cases, Scalia and Luttig eschew these professional conventions and lay bare their motivation. Alito never does. In many ways, the scrupulous fidelity of Alito’s opinions makes him a more powerful advocate for his conclusions and a bigger danger to those who sport opposing legal or constitutional visions.

This is exactly right. Thomas and Taylor, like Althouse, provide literally no evidence–nothing–that Alito’s votes will be more liberal than those of Scalia. (You couldn’t have produced a more conservative outcome than he did in Casey, and Rybar went further than Scalia has been willing to go so far. And, of course, they also skip Groody, which suggests that on search and seizure Alito is likely to be if anything more reactionary than Scalia.) The fact that Alito is less acerbic and more careful than Scalia makes him worse, not better, if you disagree with him philosophically.

Again, evaluating circuit court opinions is inherently uncertain, relying on probabilistic judgments, and we can’t be sure how Alito would vote. But his tendency to push the law in a conservative direction suggests the very strong possibility he’ll be as conservative as anyone on the Court, and whether he’s a nice guy has absolutely nothing to do with how he’ll vote. Thomas and Taylor’s tripe will be the administration line–don’t buy it.