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Still Waiting For An Originalist Defense of Affirmative Action

[ 0 ] October 12, 2007 |

Atypically for something written by John Yoo, I actually agree with much of the first part of his Clarence Thomas apologia. Thomas is the most principled conservative on the Court, his contribution (whether or not one agrees with the conclusions) , and claims that Thomas was Scalia’s sock puppet are both plainly wrong and may even in some cases by motivated by racist condescension.

The second half of the editorial, though, predictably runs off the rails. Yoo — who himself has produced some of the most farcical arguments put forward under the “originalist” banner — spends considerable time on Thomas’s belief that affirmative action is almost always unconstitutional. Unfortunately for Yoo’s claims about Thomas’s jurisprudence, this argument is plainly inconsistent with the theories of constitutional interpretation that Thomas claims to apply. I thought that Yoo might, unlike Thomas and Scalia, would actually try to offer an originalist defense of this position, but he doesn’t. Rather, he ignores the text (let alone the history) of the 14th Amendment entirely, and simply recites Thomas’s policy arguments against affirmative action. Whether or not one finds these persuasive, they are not arguments that the equal protection clause was originally understood as prohibiting all racial classifications. Similarly, Yoo’s defense of Thomas’s position on the constitutionality of school vouchers ignores the First Amendment and instead recites the banal proposition that education “means emancipation.” Indeed it does, but this claim is neither here nor there in terms of whether a program that by design will direct taxpayer funds almost exclusively to religious schools is consistent with the First Amendment. (And, even from a pragmatic perspective, the emancipatory potential of a program that allows less than 5% of students to switch schools is pretty negligible.)

In addition, the Thomas case presents a deeper irony. For obvious reasons, Yoo fails to mention that Thomas probably would not have gotten into Yale Law School and unquestionably would not been nominated to the Supreme Court had he not been an African-American. And yet — admittedly with results that are less than ideologically congenial from my perspective — affirmative action worked; taking Thomas’s background into account in fact identified a perfectly able law student and Supreme Court justice. Should a discussion of Thomas’s opposition to affirmative action deal with this?

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And Here We Thought it Wasn’t Possible to Love Dahlia More

[ 0 ] October 12, 2007 |

But then, via publius, she gives us animation:

There’s so much wrong with Slate (see: Saletan). But sometimes they just get it right.

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A Reminder To Send Money To Obama

[ 0 ] October 12, 2007 |

America’s Worst Columnist With the Possible Exception of Maureen Dowd endorses Hillary Clinton in the Democratic primary. We already knew she was the least progressive major candidate, but…[via MY]

Bonus Krauthammer hackery:

And look what Clinton unveiled this week: a modestly government-subsidized, personal retirement account. True, it is yet another big-government middle-class entitlement. Yes, she ignores the looming Social Security crisis. On the other hand, establishing a universal, portable, personal retirement account (though without the government subsidy) is something conservatives have long and devoutly sought. It establishes a parallel to the Social Security system — the perfect vehicle for a future conservative administration to use for shifting from the current, unsustainable government-controlled program to a privatized system such as the one in Chile.

The first problem here, of course, is that there is no Social Security “crisis” and the program is perfectly sustainable. But even more remarkable is citing the Chilean system as a model:

For all the program’s success in economic terms, the government continues to direct billions of dollars to a safety net for those whose contributions were not large enough to ensure even a minimum pension approaching $140 a month. Many others – because they earned much of their income in the underground economy, are self-employed, or work only seasonally – remain outside the system altogether. Combined, those groups constitute roughly half the Chilean labor force. Only half of workers are captured by the system.

Even many middle-class workers who contributed regularly are finding that their private accounts – burdened with hidden fees that may have soaked up as much as a third of their original investment – are failing to deliver as much in benefits as they would have received if they had stayed in the old system.

Dagoberto Sáez, for example, is a 66-year-old laboratory technician here who plans, because of a recent heart attack, to retire in March. He earns just under $950 a month; his pension fund has told him that his nearly 24 years of contributions will finance a 20-year annuity paying only $315 a month.

“Colleagues and friends with the same pay grade who stayed in the old system, people who work right alongside me,” he said, “are retiring with pensions of almost $700 a month – good until they die. I have a salary that allows me to live with dignity, and all of a sudden I am going to be plunged into poverty, all because I made the mistake of believing the promises they made to us back in 1981.”

Now that, at least if you’re marginally more civilized than Krauthammer, is unsustainable.

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[ 0 ] October 12, 2007 |

Friday Cat Blogging… Nelson

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Just Pathetic…

[ 0 ] October 12, 2007 |

We haven’t sufficiently badgered Mickey Kaus lately, in no small part because I find his immigration blogging interminably boring. His “John Edwards affair scandal” blogging is just pathetic, though:

Smith also has a too-broad denial from Edwards: “The story is false.” (As every press secretary knows, that could logically mean there’s nothing to the story; it could mean an affair didn’t start “18 months ago” but rather 8 months ago).

Indeed, Mickey. Indeed. When Edwards follows up with an even flatter denial, Kaus’ focus is on who Edwards is attacking, rather than on how the story he’s been pushing is going nowhere. Really, Mickey, when Drudge won’t touch a potential Democratic sex scandal, it really is reason to doubt that anything is going on…

…Instaputz takes us down memory lane

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Could Have Been a Contender…

[ 0 ] October 12, 2007 |

Congrats to Al Gore on winning the Nobel Peace Prize.

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Idle Thoughts on Modern Travel

[ 0 ] October 12, 2007 |

I understand that niche airlines are dicey ventures. I’m not sure how the airline for smokers is doing, for example, though it appears already to have survived longer than the airline for sad, corporate shitheads.

That said, after listening to a just-barely-too-loud-for-earplugs, several-hour soliloquy yesterday from a passenger sitting behind me — about how she’s a vet student at LSU, and how boring Baton Rouge is, and how excellent LSU football is, and how she was on her way to interview for a job, and how she tends to stay out later at the bars when her boyfriend isn’t in town — I would be really keen on an airline for introverts. “STFU Air” might not be the most limber of names, but if anyone wants to develop a business plan for this sort of sure-to-fail scheme, let me know.

Not being a devout follower of college football these day, I will nevertheless be making additional burnt offerings this weekend on behalf of the Kentucky Wildcats, who will — if justice is not the cruelest of illusions — tear LSU limb from limb.

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A Waste of Time and Money

[ 0 ] October 11, 2007 |

Last month, Jack Hitt had a fabulous article on missile defense in Rolling Stone. The article pretty much reaffirmed what I already believed; missile defense probably won’t work, and if it does work (in a technical sense) it won’t accomplish any strategic or political objective. Hitt:

Having abandoned its superpower mission, the shield has morphed under Donald Rumsfeld into an all-purpose defense for the Age of Terrorism. For the last few years, the Bush administration has promoted the shield as protection against rogue states like North Korea and Iran. But the State Department recently reached a diplomatic agreement with North Korea that would eliminate its nuclear weapons program, and Iran is years away from developing nuclear capabilities. So whose warheads will the shield protect us from? In August, during a lecture at a missile defense convention, one proponent of the system suggested the possibility of a new ballistic threat from a country that currently possesses no missiles: Venezuela.

Hitt has a lot of detail on the technical difficulties associated with the system, and of the absurdity of claiming that the defense is “up and running” when the bulk of the systems have never been tested in anything approaching real world combat conditions. Still, I’m inclined to think that if enough time and money are devoted to the technical problems, a certain kind of success can be achieved. It’s likely that, eventually, we’ll have a system that is reliable capable of shooting down most ballistic missiles fired at the United States. Even that’s not a sure thing; countries interested in having a capability for firing missiles at the United States are already working on methods for defeating, bypassing, or overwhelming the system. But even if we allow that a missile fired by an aggressor at the United States would be shot down most of the time, it’s worth considering just how little that means.

The utility of a missile defense system has to be evaluated based on its value added over a basic deterrent posture. At least one reason (and not the only reason) that nobody launches missiles at us now is that we would respond by destroying the offending state. The missile defense assumes that deterrence will fail, but its advocates offer no compelling reason for why it would fail; apart from indefensible claims about the suicidal tendencies of the North Korean or Iranian leadership, or very tendentious arguments about terrorists acquiring ICBMs (seriously, if Al Qaeda had a nuke, why would they bother to put it on an ICBM?), there’s just not much there. The most sensible case is the “hostage” argument; North Korea might invade the South, then attempt to deter US intervention by aiming a nuke at the West Coast. It’s the best argument they have, but it doesn’t amount to much; it still requires the North Korean (or Iranian, or whomever) leadership to be suicidal. But even if the argument were compelling, the missile defense would have to be 100% effective; what President would act if she seriously believed that there was a 10% chance an American city would be destroyed?

Why doesn’t this seem to matter to missile defense proponents? One reason is that the argument is kind of dense; it’s easy to tell people that they’re being protected and leave it at that. Another is that (as Hitt describes) a massive industrial infrastructure has developed around missile defense, employing workers and pouring money into states and districts all across the country. A third is ideological; Ronald Reagan favored missile defense, and it has become an article of faith among conservatives that one is needed, even if no other sensible argument can be martialed in its favor. The consequence is that much time and money will be wasted in an effort that’s likely to lead to an earlier expansion and modernization of the Chinese and Russian nuclear arsenals.

Cross-posted to TAPPED.

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That’s Rather the Point….

[ 0 ] October 11, 2007 |

Drezner on the Turkish-Armenian question:

3) So when will we get to read The Armenian Lobby and U.S. Foreign Policy?

If Dan’s point is that the influence of lobbies acting on behalf of small minorities of American citizens can have a substantially negative effect on American foreign policy, I’d say that he’s in almost complete agreement with Walt and Mearsheimer. If he’s saying that a lobby other than the Israel lobby can have a consequential impact on US foreign policy, then I’d say he’s on solid ground, but that the comparative impact of, say, the Armenian lobby and the Israeli lobby is pretty much an empirical question, and one that’s likely to weigh heavily towards the Israeli side. That said, it’s a useful corrective to the most far reaching claims that Walt and Mearsheimer make regarding the influence of the Israeli lobby.

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Wolcott Responds

[ 0 ] October 11, 2007 |

Probably not meaning to, James Wolcott pens the ideal response to commenter MILS:

Rush Limbaugh and his fellow talk-radio troll dolls didn’t “pervert” conservatism–he didn’t lay siege to some maiden fair and debauch her virtue. Rush Limbaugh didn’t inject an “ideology of hate” into conservatism, he extracted the contemptuous, divisive animosity inherent in the Gingrich doctrine and sugared it up with comedy and his own personal saga for popular consumption. He, like Clarence Thomas, was just what the Republican overseers ordered. Rush Limbaugh is modern mainstream conservatism in all its bullying bluster, hypocrisy, jolly ignorance (global warming etc), slavish submission to military, corporate, and executive power, and slimeballing of political opponents. To believe otherwise is like putting your faith in those few remaining Republican moderates who always manage not to come through in the clutch, who put up a brief show of conscience or faint dissent before the inevitable capitulation. It’s a little late to suddenly look around and realize what sleazebags you’ve got on your team, especially since those sleazebags were there before you arrived. The only difference between Limbaugh and the orc pit of the right blogosphere is one of degree, or perhaps I should say radius.

Quite right. Rush and Ann Coulter and Michelle Malkin aren’t aberrations that the Right can explain away; they are, to borrow Glenn Reynolds phrase, the authentic face of the American Right. They determine the terms of debate, decide on the points of emphasis, and unleash the bloodthirsty mobs. They are the literal manifestation of American reactionary ressentiment. As such, it makes a certain kind of sense that Rush and Malkin and Coulter can never do or say anything that will get them excluded from the mainstream media platform; they, and not Mitt Romney and his ilk, represent the core of American conservatism. Unlike the “Hollywood liberal”, bugbear of the movement conservatism, Rush and Malkin and Coulter owe their fame and position only to the political vitriol that they spew. Any decent political movement would have discarded them long ago, but in the same sense that conservatism can’t shed itself of the absurdity of supply-side economics, it can’t do without the Malkins; they’re part of the DNA of the movement.

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Huh? Various Office "Spoilers"

[ 0 ] October 11, 2007 |

So let me get this straight; some fans of the Office found the idea of Michael burning his foot on a George Foreman Grill, then trying to stick the foot into Dwight’s MRI machine plausible, but couldn’t believe that he’d drive into a lake after misinterpreting the instructions on a GPS system? Really? And while I’m on the subject, has it really not been obvious that the “hour long” episodes of the Office are actually just two half-hour episodes stuck together?

And yes, the phrase “jump the shark” really has “jumped the shark”.

… and yes, noting that the phrase “jump the shark” has “jumped the shark” has itself “jumped the shark.”

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Belated Liptak Love

[ 0 ] October 11, 2007 |

I’m a few days behind on my weekly rundown of Adam Liptak’s Sidebar column. I blame law school (I know what you’re going to say. I know I’m a third year. Apparently my professors just don’t know that). Anyway, here we go.

This week, Liptak takes on one of the many perversities in the way the Supreme Court handles the death penalty. Perversity #1: it takes four votes for the Supreme Court to grant cert on a case (to decide to hear it). But it takes 5 votes to stay an execution.

Consider the case of Luther J. Williams, who was put to death on Aug. 23 in Alabama. Four justices had voted to stay the execution.

Mr. Williams’s appeal included a challenge to the constitutionality of the chemicals used in lethal injections, which have the potential to cause excruciating torture if administered improperly. A month after his execution, the court agreed to hear that question in another case.

There are differences between the case the Supreme Court accepted and Williams’, but Liptak’s point remains: why is it that it takes only 4 votes to get the Supreme Court to hear your case, but 5 to get them to keep you alive while they consider whether to hear it or not? [The Supreme Court last week denied Williams' now posthumous petition for certiorari, noting that the case is now moot. Because he was executed.]

Even Chief Justice John Roberts has acknowledged the strangeness of the practice:

At his Supreme Court confirmation hearing two years ago, Judge John G. Roberts Jr. was asked what he would do “if you had four other justices now voting for a stay of execution?”

“Do you feel, as chief, you should do the courtesy,” Senator Patrick J. Leahy, Democrat of Vermont, asked, “and kick in the fifth one?”

“I don’t want to commit to pursue a particular practice,” Judge Roberts said. “But it obviously makes great sense.”

“You don’t want to moot the case by not staying the sentence,” he added.

But of course he said that when he was angling for 51 senate votes to confirm him, around the same time as he was saying judges should be umpires. Things are different now.

It’s Justice Stevens, the man who refuses to think of himself as a liberal, who has articulated a more rational approach:

Justice Stevens drew a lesson from the experience. Both justice and efficiency would be served, he wrote, by routinely staying all executions until the court can hear a condemned inmate’s first petition for a writ of habeas corpus. That would “accord death row inmates the same, rather than lesser, procedural safeguards as ordinary litigants.”

It makes perfect sense; it’s both just and efficient (two things that don’t go together very often. See AEDPA’s effect on the death penalty). But only Justice Ginsburg has endorsed it. Where’s Chief Justice’s quest for unanimity now?

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