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Judicial Term Limits and Rare Calls For Lochnerism

[ 0 ] February 24, 2009 |

Readers of this blog will know that I approve of the primary objective of this group of scholars and litigators, which is calling for the kind of judicial term limits that pretty much every other constitutional democracy has (and that the United States would probably have had if the initial unattractiveness of jobs in the federal judiciary didn’t make them superfluous.) Rather than reiterate my arguments, I thought I would have some fun with TigerHawk’s outraged response:

  • I would respond to TigerHawk’s arguments on the merits, except that he doesn’t actually have any arguments on the merits. Rather, he simply dislikes the proposal because of what he considers the short-term political consequences to be. And the thing is, because sitting justices could only be given incentives to retire, it likely wouldn’t even have these effects; Obama’s justices would be term-limited while Scalia, Thomas et al. would stay on the Court until they resigned.
  • He fumes that “It is not hard to imagine why these “legal experts” did not make this proposal last year.” This projection of opportunistic partisanship is quite a serious charge, and one would think that he would make at least a cursory attempt to look into the charge of hyporcisy before he made it. I can’t find a list of all the signatories, so maybe someone has changed position on the issue in the last few months. However, the organizer of the letter wrote a book favoring judicial term limits…that came out in 2006. Another scholar quoted in the article, Eric Posner, is a conservative who recently wrote a book defending Bush’s expansive conception of executive power during wartime. As far as I can tell, the only person here viewing tern limits exclusively through the lens of short-term partisan politics is TigerHawk.
  • I do have to admire the candor of his, ah, eccentric call for the Supreme Court to return to its thoroughly-discredited Lochner-era doctrines: “The sainted FDR intimidated the Court into abandoning “substantive due process” — the only real protection that rights in property and contract had against legislative power run amok.” Leaving aside the facts 1)that most historians don’t buy the intimidation narrative (Owen Roberts had already decided to cast the fifth vote to sustain major New Deal programs before the Court-packing plan was even announced, although the decisions came out later) and 2)most of the disputes were delegation and commerce clause cases rather than “liberty of contract” cases, the scare quotes around “substantive due process” seems to concede that the Four Horesmen had no particular constitutional warrant for arbitrarily deciding that economic policies they disagreed with were unconstitutional. Somehow, I’m guessing that TigerHawk’s attempt to claim that we should kind of pretend that the Fourteenth Amendment does enact Mr. Herbert Spencer’s Social Statics is not going to find a wide audience, particularly during the Bush Depression.
  • To summarize his historical argument, FDR proposed something that was unquestionably authorized by the text of the Constitution, in order to prevent national policy from being obstructed by constitutional arguments so dubious that no Supreme Court justice of any stripe has advanced them by many decades. This proves that FDR was insufficiently fastidious about the Constitution. And also provides an argument against judicial term limits because…well, I don’t really see the connection.

Frankly, the quality of arguments against judicial term limits has to be considered one of the best points in their favor.

…given TigerHawk’s graciousness in response, I’ll withdraw the “fuming” charge…


The endless whine of Sarah Palin

[ 0 ] February 24, 2009 |

Please make it stop.

Looking back on her interview with ABC News’ Charles Gibson, in which Palin seemed unsure of how to define the Bush doctrine, the Alaska governor said she was disrespected in a way that another candidate would not have been.

“I’d have to say there would be much more respect shown to the subject, yes,” she said.

I don’t want to interfere with Sarah Palin’s apparent need to develop an alternate history of the 2008 campaign, but Charlie Gibson interview was predictably — and appropriately, I suppose, given the responses he received — lightweight. This is why the McCain campaign agreed to grant him the interview. There were any number of difficult questions that a journalist might have posed to the vice presidential nominee, but Gibson — because he’s not a useful journalist — didn’t bother to ask them. Instead, he served up two species of questions during their sessions together: (1) those anyone with a basic literacy in current events should have been capable of answering; and (2) those allowing Sarah Palin the chance to elaborate on her general suitability for office.

Some of the questions were delivered in a condescending tone of voice, but the claim that Palin received no “respect” is transparently silly. If anything, the interview revealed for the first time the McCain campaign’s open contempt for its potential supporters, whom they evidently believed were prepared to fall for someone with a substantively weak appreciation for the issues that had been dominating the campaign (and would continue to do so for another week or so, before the necrotic economy took over). Most telling was Palin’s inability to coherently discuss — or, for that matter, even recognize — the foreign policy that was responsible for her son’s deployment to Iraq, which took place the very day the Gibson interview first aired.

The problem was not, as Palin defenders like to argue, that she was depicted by the press as a moron — as if Not A Moron were an adequate starting point for this sort of thing. Rather, the problem was that she revealed herself to be a profoundly incurious person with terrible baseline notions about how to approach an array of policy problems. These traits aren’t guaranteed to interfere a candidate’s ascent to office — see “Bush, George W., the elections of 2000 and 2004” — so it’s a testimony to Palin’s unique deficits that she came out so badly in all of this.

The Lockean Proviso

[ 0 ] February 24, 2009 |

As someone who observed much of Locke’s governorship first-hand, I would say that just as he looks better on paper than in practice as a national candidate, so he wasn’t nearly as good a governor as he should have been. He was sort of a Naderite parody of a cautious Democrat — when it came to political capital, his accumulation-to-spending ratio was roughly 100-0, and in particular he was notably ineffectual in responding to the tax reform nitwits trying to emulate California’s wonderfully effective fiscal straitjacket.

Having said that, commerce secretary seems like a good job for him; he was a competent enough administrator, this job doesn’t require bold agenda-setting, and he certainly won’t rock any boats.

We, on the Other Hand, Reimburse Promptly

[ 0 ] February 24, 2009 |

Little known fact: John Bolton was, like, a HUGE fan of the UN until the UN stuck him with the tab for lunch back in 1978. After that, it was all downhill…

Notes from the fringe

[ 0 ] February 23, 2009 |

Scott noted a couple of days ago that something doesn’t become a “simmering controversy” because professional lunatic Alan Keyes thinks it’s a controversy. That’s true — Keyes after all is the kind of GOP crazy person who “doesn’t count” as a serious figure among The Very Serious People who determine these things (even though he was the party’s senate candidate against Obama — imagine how it would play if the Dems ran the equivalent, say a 9/11 Truther, in a senate race).

But how about an actual U.S. senator? Of course the real “controversy” should be why so little attention is given to the fact that the very top of the Republican Party saying features crazy people saying (and doing) crazy things.

As long as we’re in Imaginationland, it’s mildly amusing to consider what would happen if it were discovered that Obama actually had been born in Kenya, and that his mother’s U.S. citizenship wouldn’t serve to qualify him as a natural born citizen, constitutionally speaking.

Just to make it interesting, suppose the Obama himself wasn’t aware of this “fact” while he was running for president, since the definitive evidence wasn’t dug upby indefatigable bloggers until later (work with me here). Under these circumstances, would he resign? Would the federal courts entertain a lawsuit to . . . um, do what exactly? Issue a declaratory judgment that he wasn’t president? Would he be impeached? I think the answer to these questions is pretty clearly no. It’s an idiotic constitutional provision and ought to be ignored.

Tautology Is Not A Plan

[ 0 ] February 23, 2009 |

I’m not really sure about why there seems to be an endless market for op-eds in which Will Saletan informs us that the answer to political conflict just happens to coincide with Will Saletan’s normative positions on all the issues. Although, to be fair, his position is not entirely unchanged. For example, now that the Democrats control all three branches of government federal elections are apparently no longer referenda on abortion — instead, it’s crucial that Democrats above all expect that abortion is profoundly icky because the nation’s Moral Sage Will Saletan says it is. Amazing.

Death in the Afternoon

[ 0 ] February 23, 2009 |

I’ve just read (actually re-read — first time was about 20 years ago) Hemingway’s Death in the Afternoon, his 1932 study of the Spanish bullfight. There’s a lot of interesting stuff in the book, even if you have no interest in bullfighting per se, and the man certainly writes beautifully when he’s in the mood and not toppling into self-parody.

One thing that struck me in particular this time was — on the evidence of this book anyway — Hemingway’s tremendous anxiety about male same-sex attraction. There are three or four passages that engage in egregious bashing of male homosexuality, and they are all the more striking because they appear more or less apropos of nothing — all of a sudden Hemingway is for no apparent reason freaking out about some French novelist or Yale graduate or El Greco being a maricon.

I don’t know much about Hemingway’s life and have only read four or five of his books and a few short stories, but obviously you don’t have to be an expert to figure out that the guy was obsessed with, and wracked with anxiety about, what it means to be a real man. If he had been born 60 years later he would have made one hell of a war blogger (to be fair I believe he was actually wounded in WWI, so I guess that automatically disqualifies him).

Preserve Fantasy Raptor Jobs

[ 0 ] February 23, 2009 |

Would shutting down the Raptor really put 95000 people out of work? No. David Axe has the data:

Problem is, that 95,000 number counts indirect employment at firms for whom the F-22 program is just one of many clients. And it also counts Lockheed assembly workers who are in high demand for other aviation projects. In fact, ending Raptor production today might not result in a single unemployed aerospace worker.

Not to belabor the point, but this is one of the things that Mark Bowden might have bothered to research when writing his Atlantic article about the F-22. Unfortunately, he did not; rather, he uncritically repeated claims made by pilots and manufacturers (neither groups are noted for supplying informed, unbiased economic data) as to the aircraft’s merits and economic impact. I would say that Bowden’s article is singularly terrible (see James Fallows on this point), but for the fact that the article is a near repeat of Robert Kaplan’s…. affectionate take on the B-2.

In any case, the F-22 topic of the day is that the Air Force has requested another 60 Raptors, which is a substantial reduction from what the Air Force wanted (380 fighters), but a substantial increase over what some defense analysts are willing to give. It’s fair to say that my own thinking on this issue has evolved. While the United States is unlikely to face a crisis of air superiority in the short or medium term, it’s true enough that foreign designs have become competitive with the best US air superiority aircraft, short of the F-22. Better training still gives the US a substantial edge, but it is nice to have the best aircraft available. I have also become steadily more disillusioned with the progress of the F-35 Lightning II; it’s becoming apparent that the capabilities gap between the F-22 and the F-35 will be huge, but the price tag gap won’t be very large at all.

Thus, while the entire F-22 project may have been a serious misallocation of resources, I don’t think it naturally follows that buying an additional sixty aircraft, at this point, is a terrible idea. From an initial position it probably would have made more sense to continue production of advanced F-15s and F-16s. From where we are now, though, there seems to be little point in taking a step back. I doubt very much that there will ever be a manned air superiority aircraft better than the F-22; it will probably be the last of its kind.

Cross-posted to TAPPED.

Zombie Talking Points

[ 0 ] February 23, 2009 |

Social Security is, as we all know, a very popular and very successful program. For a variety of reasons, centrist pundits in general and the Washington Post in particular have a huge fetish about undermining it in various ways. Recently, CeCi Connolly — yes, the same one whose gruesomely bad campaign reporting helped to put George W. Bush in the White House — got into the act, asserting that a “handful of changes that would prevent the retirement fund from going bankrupt.” Of course, Social Security and its large dedicated funding stream are not going to “run out of money” or “go bankrupt” ever; there’s a (far from certain) possibility that the trust fund generated by Social Security tax surpluses will run out of money. This is a different issue, but of course if you state the issue honestly it’s hard to generate support for gutting Social Security decades before a not-terribly-difficult-to-resolve problem may or may not need solving.

So, of course, it makes perfect stance for the Washington Post to stand by their man George Will. After all, they’re willing to let Connolly tell bald-faced whoppers about Social Security just like she invented statements and attributed them to Al Gore. And if you can do it on their news pages, I suppose their op-ed pundits deserve no less consideration.

[X-Posted to TAPPED.]

Jim Bunning Explained

[ 0 ] February 23, 2009 |

With apologies to Marmaduke, it seems worth noting that Jim Bunning is an asshole.

This Is Excellent News For the Republican Party

[ 1 ] February 23, 2009 |

In comments, America’s most dangerous professor directs us to this Jacob Weisberg classic, which puts his comments about Hillary’s excessively ambitious and calculated iPod and how it spells doom for the Democrat Party in the relevant context. Even if you haven’t read it, you know the argument: unnamed and uncited war opponents “appear not to take the wider, global battle against Islamic fanaticism seriously,” which we can tell because for some mysterious reason they don’t see the invasion of a country that posed no security threat to the United States and had no substantial relationship with anti-American terrorism as a logical part of a response to 9/11. And, most importantly, the acceptable boundaries of foreign policy discourse are established by Jacob Weisberg (and such boundaries can never involve opposing even the most misguided war when it matters, and also always seem to mean that nobody else is opposing the war in the right way even if it’s gone so badly that nobody can defend it.) All of which leads to this highly convincing argument about why Ned Lamont’s victory means that the Democrat party is doomed, doomed, especially if they nominate an anti-war candidate like Barack Obama:

In a similar way, the 2006 Connecticut primary points to the growing influence within the party of leftists unmoved by the fight against global jihad. Nixon had the gift of hippie demonstrators and fellow-traveling bluebloods like Ned’s great uncle Corliss Lamont as antagonists. Today’s Republicans face an anti-war movement with a different tone and style, including an electronic counterculture of enraged bloggers and callow entrepreneurs like Ned himself. Yet the underlying political dynamic is not altogether different.

Whether Democrats can avoid playing their Vietnam video to the end depends on their ability to project military and diplomatic toughness in place of the elitism and anti-war purity represented in 2004 by Howard Dean and now by Ned Lamont. Hillary Clinton, the Democratic front-runner for 2008, is trying to walk this difficult line, continuing to express support for the war in principle while becoming increasingly strident in her criticism of its execution. As the congressional elections approach, many Republican candidates are fleeing Bush’s embrace because of his Iraq-induced unpopularity. But Lamont’s victory points to a way in which Bush’s disastrous war could turn into an even bigger liability for the Democrats.

I think we can all agree that the disastrous failure of the Bush presidency was excellent news for Republicans. After all, I created a playlist for Howard Dean on Pandora and a Jewel cover of “The Bewlay Brothers” came up, and…well, must I paint you a picture? It’s all deeply connected with the demise of the Democrat Party in ways you hippies could never understand.

Saving Me A Review

[ 0 ] February 22, 2009 |

I definitely agree with the “backlash” position on Slumdog Millionaire. It’s not just how embarrassingly cliched the last third or so of the movie is — not so much a Bollywood tribute as a tribute to Hollywood triumph-of-the-underdog-who-gets-the-girl-too-in-an-even-more-dreary-subplot movies — but that these cliches undermine the best parts of the movie, making the whole less than the sum of the parts. Although I would vote for Van Sant among the five nominees I don’t necessarily begrudge Boyle his inevitable best director award; it’s a tribute to his style and craft that the movie is as entertaining as it is despite its considerable flaws. But if the screenplay wins it’s a joke.

In addition, I should also say that The Wrestler isn’t just a movie with two great performances, it’s a tremendous movie, period, easily the best American movie of the year. For a full account, I’ll outsource to Stevens and Scott. One thing I do want to address, though, is the idiotic argument (sometimes made by defenders of the film) in some quarters that it’s just a Rocky clone with better acting/direction. I can’t imagine missing the point more. Pro wrestling makes such a great subject for a movie — and avoids the sports movie cliches that mar this year’s Best Picture winner — precisely because there can be no heroic triumph (or near-triumph) when there’s nothing to win. Neither the pre-destined winner nor the loser in wrestling are permitted the dignity of competition that made Rocky seem like a winner even when he lost, and the implications of this are explored with great effect. And there are lots of other nice touches — for example, the amazing scenes of the washed-up wrestlers hawking VHS tapes at the American Legion hall, the parallels between pro wrestling and sex work that are never belabored or (so rarely in the age in which Aaron Sorkin is considered a genius) theorized about by the characters. There are some minor flaws: in particular, the movie needed either more or less of the daughter, and ultimately the attempt to create a substantial arc with little screen time created a last scene between them that was glaringly implausible and sitcommy. But overall it’s a superb piece of work, and in addition to Rourke being a great story it’s gratifying to see a director of considerable promise and less accomplishment really pull it together.

I guess this should be an Oscar open thread.

…nice to see the shutout to the Maysles.

…I suspect a lot of pools just died on the best foreign film award.

…he is a great actor, and it’s certainly not surprising — you had to bet on him — but I’m still pretty disappointed that Penn won and Rourke’s historic performance was overlooked.