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The Non-radicalism of Daine Wood’s Abortion Jurisprudence, Part II

[ 13 ] April 14, 2010 |

In comments, Ed Whelan urges us to consider his response to the Emily Bazelon article I linked earlier.      If there’s supposed to be some sort of devastating response to Bazelon there, though, I must confess that I can’t find it.   Most of his response concerns Wood’s rulings in N.O.W v. Scheidler, but he seems to do little but reiterate his normative disagreement with Bazelon and Wood (as opposed to identifying any empirical errors.)   It is true that Wood’s initial ruling was reversed by the Supreme Court, but (particularly in light if of the Supreme Court’s previous holding that RICO prosecutions do not require an economic motive) Bazelon’s argument that Wood’s interpretation of the relevant RICO statutes was perfectly plausible remains true.    Similarly, Whelan doesn’t address the key point of Bazelon’s defense of Wood’s opinion applying the Court’s 1996 ruling — that Wood’s opinion remanding the case to a lower court was a narrow and cautious one that was unlikely to result in a successful prosecution.   The Supreme Court then removed any ambiguity and the prosecutions did not proceed.   I don’t see any abuse of power on Wood’s part here.

Aside from this, the rest of Whelan’s argument basically amounts to “so’s your old man”:

Bazelon also attempts to defend Wood’s votes, in dissent, to strike down state laws banning partial-birth abortion and to strike down an informed-consent law that was in all material respects identical to the law upheld by the Supreme Court in Planned Parenthood v. Casey…*I’m certainly not going to defend the coherence or clarity of the “undue burden” standard that the Court concocted in Planned Parenthood v. Casey. But it’s precisely because Wood consistently deployed that standard, in dissent, to pro-abortion ends (and because of her NOW v. Scheidler hijinx) that I’m entirely justified in stating that I’m aware of no judge in the country who is more extreme than Wood on abortion. Nothing Bazelon says bears on that judgment, much less refutes it.

If we re-state the last point in a less tendentious manner — “Diane Wood is likely to resolve legal ambiguities in favor of reproductive rights” — Whelan’s argument is true but trivial, since the same can be said of any potential Democratic nominee. The argument has bite only if Whelan shows that Wood in some way distorted the law in order to achieve a pro-choice end, and he fails to do so. For obvious reasons, he doesn’t even attempt to defend the proposition that her position (shared by Richard Posner and later by a majority of the Supreme Court) that bans on D&X abortions were unconstitutional under Casey is an “extreme” position. With respect to her vote to strike down an informed consent law, while it’s true that Casey struck down a materially similar provision, as Bazelon points out it did so on the basis that such laws could not be “considered a substantial obstacle to obtaining an abortion.” In light of new evidence suggesting that such laws did present a substantial obstacle, it is not necessarily unfaithful to Casey to evaluate a similar legislative provision differently. As Wood argued in her dissent, the Court in Casey expressly limited its holding to to current facts, implying that evidence that waiting period requirements could constitute an undue burden if they obstructed women from obtaining abortions. I invite you to read her dissent in full — you won’t find anything there that is unreasonable or ignores a direct directive of the Supreme Court.

In other words, what we have here is a simple normative disagreement — Bazelon (like me) thinks that Wood’s (mainstream liberal) belief that a woman’s constitutional right to reproductive freedom should be taken seriously is salutary; Whelan disagrees. And from his own perspective he’s correct to oppose Wood’s nomination, but he completely fails to establish that any of Wood’s abortion jurisprudence is radical or indefensible.


The Non-radicalism Of Diane Wood’s Abortion Jurisprudence

[ 21 ] April 14, 2010 |

Emily Bazelon’s article on Diane Wood and abortion  is essential reading.   The idea that there is something radical in her giving a particular and plausible interpretation of the notoriously vague RICO statute or the notoriously vague “undue burden” standard of Casey is silly.    To add, I’d like to focus on Ed Whelan’s assertion that Wood is “extreme” because she “voted to strike down state laws banning partial-birth abortion.”    It should be noted that she was joined in this dissent by…that well-known Trotskyite Richard Posner.     Conveniently, the nation’s preeminent conservative federal circuit court judge has explained in exhaustive detail why Wood was right:

Whipped up by activists who wanted to dramatize the ugliness of abortions and deter physicians from performing them, the public support for the laws was also based–as is implicit in Judge Manion’s defense of the laws– on sheer ignorance of the medical realities of late-term abortion. The uninformed thought the D & X procedure gratuitously cruel, akin to infanticide; they didn’t realize that the only difference between it and the methods of late-term abortion that are conceded all round to be constitutionally privileged is which way the fetus’s feet are pointing. Opposition to the bills that became these laws was at first muted not only by ignorance of the character of a late-term abortion but also by the fact that few women are likely to be affected by the laws. Circumstances conspired, as it were, to produce a set of laws that can fairly be described as irrational.


…if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue. The statutes before us endanger pregnant women– and not only pregnant women who want to have an abortion.

As I’ve said before, the most obvious problem inherent in claiming that statutes banning D&X abortions are constitutional is that they bear no connection to any potentially legitimate state interest. Even the U.S. government, in defending its federal statute, conceded that such laws do not protect fetal life, and the direct impact on women’s health is negative. Kennedy had to defend these statutes with raw irrational sexism because there’s no other justification available. The idea that Diane Wood is a “radical” because she — along with what less than 10 years ago was a majority of the Supreme Court — voted to strike down such laws is absurd.

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The Nature of the Court’s (Rare) Liberals

[ 3 ] April 14, 2010 |

Matt has an interesting response to my article about Obama’s next judicial nominee, and I respond here.   To elaborate a bit, I’m somewhat puzzled by Matt’s argument that a concern with Elana Kagan’s civil liberties record is “a quite different thing than the concern that Kagan isn’t a “real liberal” in the Marshall tradition.”   Brennan, Marshall and Douglas were much more civil libertarian than any of the Court’s current liberals, and there’s a real danger Kagan that Kagan would be more statist than any of them with the possible exception of Breyer.    And, of course, issues of social justice and criminal procedure are hardly unrelated.    Take U.S. v. Armstrong, in which the Court made it nearly impossible to prove that drug laws were applied in a discriminatory manner despite overwhelming systematic evidence.   I’m pretty confident that if Marshall was still on the Court Stevens would not have been the only dissenter, and at a minimum we should want justices who we can be confident would have voted with Stevens and not Ginsburg or Breyer in that case.

Questions of “welfare liberalism” are, at any rate, almost certain to be irrelevant to the Court for the foreseeable future — they’re unlikely to come up and there’s certainly no chance for success no matter who Obama appoints.   But on the issues the Court is likely to deal with — civil liberties, civil rights cases involving the interpretation and application of existing law, etc. — there are very big differences between a Masrshall/Brennan/Douglas-type liberal and a Breyer-type one, and Obama should take advantage of a relatively positive political context to get a justice as close to the former as possible.

Why I can’t take the construction “libertarian freedom” seriously, part 43,542

[ 61 ] April 13, 2010 |

David Boaz of the CATO institute published an article last week about the relationship of the libertarian vision of freedom with the (American) past. I presume he meant it to serve as a corrective to the good deal of libertarian-flavored rhetoric embracing the American jeremiad about the lost ‘golden age’ in our discourse at the moment. As far as it goes, and if suspend your skepticism about the value and coherence of the libertarian conception of freedom, it seems like a sensible and rather obviously correct piece.

While some libertarians (usual suspects: Levy, Wilkinson) have endorsed this position, it has inspired some bizarre and creative innovations in the field of being hopelessly wrong in others. Jacob Hornberger and his co-blogger Arnold Kling, for example, takes the point about slavery being not entirely consistent with libertarian freedom, and sets about constructing an argument in which the year 1880 serves as the pinnacle of freedom in America. When it is gently pointed out that such an argument could only possibly be made if we ignore the freedom of those other than propertied white males, Kling responds by freaking out and, for reasons that remain quite unclear, typing the words “Stop dehumanizing me!” into the comment box.

But Hornberger and Kling hardly prepare us for Bryan Caplan. The details are still sketchy, but as far as I can tell, the facts are as follows: On the morning of April 12th, 2010, Bryan Caplan, an Associate Professor of Economics and George Mason University and adjunct scholar at the Cato institute, got out of bed, ate breakfast, kissed his wife goodbye, drove to work, sat down at his computer, and wrote a blog post that purported to demonstrate that and I quote, “Women of the Gilded Age were very poor compared to women today.  But from a libertarian standpoint, they were freer than they are on Sex and the City.” This post has required no less than four follow-up posts attempting to further demonstrate the obviously correct nature of this position and reply to various critics. Trying to excerpt a particular passage or point in pretty much pointless, as the whole thing simply has to be seen to be believed. (It’s just peppered with gems like “I’ll admit that coverture doesn’t sound like a very libertarian doctrine.”) That said, I was particularly struck by his response to a commenter who brought up the marital rape, which was oddly not mentioned in the original post. His reply:

To be blunt, this issue is almost entirely symbolic.  While it’s a heinous crime, I seriously doubt that more than a small fraction American women in 1880 worried about being raped by their husbands.

If Caplan bases his ‘serious doubt’ on any actual factual knowledge about the social and gender history of the late 19th century, he’s keeping very quiet about it. A main thread of his reasoning throughout is that a wife’s power within a marriage is pretty much unrelated to both the law and social norms, because…oh, hell I can’t paraphrase this

This is a good example of the difference between the law and social reality.  [so far so good….] If a women in 1880 wanted to write a contract, I think she did the same thing a woman in 2010 would do – talk about it with her husband.  If he refused, she did the same thing she’d do today: complain, argue, bargain, etc.  A man in 1880 was legally allowed to make a contract without his wife’s approval, but in practical terms, his problem was the same as it is today: If your wife puts her foot down, it’s almost impossible to move forward.

It’s one thing to swallow whole the cultural stereotypes of the domineering wife and her henpecked husband, but it’s quite another to transport it back in time 130 years. I can’t help but be reminded of John Stuart Mill: for all the blindingly obvious reasons, but also for the following observation from On The Subjection of Women:  “[O]ne can, to an almost laughable degree, infer what a man’s wife is like, from his opinions about women in general.” Apparently Bryan Caplan is applying the same technique (but across time) to understand the power dynamics of domestic life in 1880’s marriages. At least, I assume that’s what he’s doing, because I’m at a loss to see any other method at work here.

(For more commentary on this exciting new trend in libertarian historiography, take a look at a number of recent posts at Crooked Timber one two three four five)

UPDATE: I mistakenly referred to Kling as Hornberger’s co-blogger, he is in fact Caplan’s co-blogger. I apologize for the error. Kling also feels as though Will Wilkinson misrepresented and distorted his position. I’m not sure exactly how or where Wilkinson distorted his views, but in fairness to Kling, I’ll reproduce here his post on the issue without comment; whether he deserves to be lumped in with the weird wrongness of Hornberger and Caplan is an exercise I shall leave to the reader.

I would rather live with the group-status configurations that we have today than with those that prevailed in 1880. For that matter, I would rather live with the plumbing and dentistry that we have today than that which prevailed in 1880. But it’s a swindle to suggest that if we had a libertarian polity we would be back in the days of Jim Crow or women’s subservience. Just as it is a swindle to suggest that if we had a libertarian polity we would be back to using outhouses and having our teeth pulled without anesthetic.

If what you really, really care about are group-status issues, and you really, really think that those battles should be fought politically rather than culturally, and if you are really, really scared of where you think some older Americans stand on those group-status issues, then you can end up where Will Wilkinson is–deeply frightened of the Tea Party movement in spite of its libertarian focus. In that case, your plan is to slip something into the ruling intellectuals’ drink to make them amenable to your free-market seductions.

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Joint UK-France SSBN Fleet?

[ 7 ] April 13, 2010 |

This is an interesting notion that is unlikely to happen in anything but a very limited sense:

France has offered to create a joint UK-French nuclear deterrent by sharing submarine patrols, the Guardian has learned. Officials from both countries have discussed how a deterrence-sharing scheme might work but Britain has so far opposed the idea on the grounds that such pooling of sovereignty would be politically unacceptable.

In a speech this morning in London, Gordon Brown said he had agreed to further nuclear co-operation with France last week after talks with Nicolas Sarkozy. The prime minister did not comment explicitly about submarines, saying only that the UK and France would both retain “our independent nuclear deterrent”.

“We have talked about the idea of sharing continuity at sea as part of a larger discussion about sharing defence burdens,” a French official said.

A British official confirmed that the French government had raised the idea of shared “continuous at-sea deterrence”, but added that any such scheme would cause “outrage” in the midst of an election campaign.

Today, Brown said of his talks with the French president: “We have agreed a degree of co-operation that is, I think, greater than we have had previously but we will retain, as will France, our independent nuclear deterrent….

Sarkozy hinted at the potential for shared deterrence in a speech at Cherbourg. “Together with the United Kingdom, we have taken a major decision: it is our assessment that there can be no situation in which the vital interests of either of our two nations could be threatened without the vital interests of the other also being threatened,” he said.

Britain and France could synchronise nuclear deterrent patrols and co-operate in the deployment of surface fleet task forces, sources say. However, British officials played down the possibility of formal agreements on the nuclear deterrent – or on sharing each other’s aircraft carriers.

The idea of a shared deterrent is certainly interesting; during the Cold War, the NATO alliance essentially “shared” the nuclear umbrellas provided by the US, the UK, and France. Italy and West Germany did not need to invest in their own nuclear weapon programs because it was impossible to imagine an attack that would not also involve one of the three nuclear states. The current situation for France and the United Kingdom is very similar. While it’s obviously possible to imagine France or the UK going to war independent of one another, it’s difficult to envision scenarios where the nuclear deterrent of either country would become militarily relevant in an independent conflict. If anyone flings a nuke at either London or Paris, the expectation would be that the other would become involved (not to mention the United States). Thus, the idea of a shared deterrent has some appeal, especially given the high cost that both countries face in replacing their SSBN fleets.

That said, nuclear weapons play other roles besides deterrence. Nukes remain a prestige weapon, and in some sense guarantee a seat at the big power table. Without nukes, it would be much harder to distinguish France or the UK from the bevy of second tier powers (Germany, Italy, Japan, Poland, Spain, Canada) that lack nuclear weapons but have otherwise similar defense profiles. Indeed, it becomes very hard to justify the two security council seats for France and the UK if they’re sharing one of the key elements of their national power. Again, the idea of folding the two European permanent seats together (and replacing with, say, India or Japan or Brazil) makes some intuitive sense, but would be procedurally very difficult.

The command and control details of a shared deterrent would also be difficult to work out. There are a variety of different schemes, running from a CoG to CoG link (Brown calls Sarkozy from the ruins of London and asks him to shoot back at aggressor country X) to high level military contacts to the direct presence of French and British naval officers on each others submarines. Working out firing bureaucracy would be extremely complex, especially given that both countries seem to have somewhat idiosyncratic nuclear command procedures. Future procurement would also be a bit twitchy, as the RN SSBNs are scheduled for replacement prior to the French. However, the procurement issue might also be the firmest ground for collaboration; 4-5 boats to one design makes much more financial sense than 6-8 boats of two designs.

Hackery, Thy Name Is Michael Barone

[ 24 ] April 13, 2010 |

Michael Barone essays some constitutional “analysis,” which is touted by various wingers* who also don’t know anything about constitutional law, except that the framers intended the Constitution to enact the 2008 platform of the Texas Republican Party.     And it’s even worse than this setup suggests:

I would expect an Obama nominee to decline to answer. But Republicans may not take such a response as meekly as they did when Ginsberg [sic] declined to answer dozens of questions back in 1993. They might press harder, as they did in 2009 when they prompted Sotomayor to declare, to the dismay of some liberal law professors, that she would only interpret the Constitution and the law, not make new law. Just raising the health care mandate issue helps Republicans given the great and apparently growing unpopularity of the Democrats’ legislation.

Republican Senators were able to force Sonia Sotomayor to mouth some of the same vacuous tautologies as Samuel Alito and John Roberts. Victory! Uncited: the “liberal law professors” who were allegedly dismayed because Sotomayor said she would “interpret the Constitution.”

But we’re getting to the really dumb stuff:

Another set of questions could prove embarrassing for Democrats who have lauded Griswold v. Connecticut and Roe v. Wade for creating a right to privacy that includes contraception and abortion. “How can the freedom to make such choices with your doctor be protected and not freedom to choose a hip replacement or a Caesarean section?” asks former New York Lt. Gov. Betsy McCaughey in The Wall Street Journal. “Either your body is protected from government interference or it’s not.”

Generally, it’s a bad idea to rely on the unfounded assertions of one of the most relentless liars in American public life, and this is no exception. First of all, nothing in Griswold and Roe suggests an absolutely unlimited right to do anything involving one’s body. But this is beside the point, of course, because nothing in the health care bill prevents anyone from getting a hip replacement or Caserean section if they choose to obtain one and can find a willing provider. But yes, asking the next Supreme Court nominee about the contradiction between a non-existent constitutional right first adduced in the landmark opinion My Fevered Imagination v. Strawman and a non-existent legislative provision sure will make the nominee look stupid and uncomfortable. I hope Jeff Sessions takes the bait.

McCaughey also notes that in 2006 the Supreme Court in Gonzales v. Oregon ruled that the federal government couldn’t set standards for doctors to administer lethal drugs to terminally ill patients under Oregon’s death with dignity act. So does the Constitution empower the feds to regulate non-lethal drugs in contravention of other state laws?

McCaughey seems never to tell the truth, even by accident. If (unlike, one suspects, Barone) you actually read the Court’s holding, you’ll see that it’s a statutory interpretation case, not a constitutional case: the Court didn’t say that the federal government couldn’t preempt state laws concerning lethal drugs, it said that it didn’t give the Attorney General that authority.   Absolutely nothing in the Court’s opinion suggests that Congress couldn’t give the Attorney General that power if it chose to do so, and it is clear from a ruling issued the year before case that such a law would be upheld.

That’s an impressive day’s hackery!

*As a commenter notes, the “winger” label does not seem fair as applied to Zandar — he seems to be more of a centrist type .   My apologies.


[ 7 ] April 12, 2010 |

Seems like progress, if sanctions on Iran are your thing:

President Obama secured a promise from President Hu Jintao of China on Monday to join negotiations on a new package of sanctions against Iran, administration officials said, but Mr. Hu made no specific commitment to backing measures that the United States considers severe enough to force a change in direction in Iran’s nuclear program.

In a 90-minute conversation here before the opening of a summit meeting on nuclear security, Mr. Obama sought to win more cooperation from China by directly addressing one of the main issues behind Beijing’s reluctance to confront Iran: its concern that Iran could retaliate by cutting off oil shipments to China. The Chinese import nearly 12 percent of their oil from Iran.

Mr. Obama assured Mr. Hu that he was “sensitive to China’s energy needs” and would work to make sure that Beijing had a steady supply of oil if Iran cut China off in retaliation for joining in severe sanctions.

I’m skeptical of sanctions working, if by “working” you mean to effect a direct change in Iranian behavior. However, I do think that sanctions can have a substantial atmospheric effect, to the extent that they convey the disapproval of international society, and consequently help to build international norms. In that context, getting Russia and China on board is a meaningful achievement for the liberal internationalist project.

For A Change…

[ 17 ] April 12, 2010 |

Over at the Prospect I make the case for nominating an actual liberal for the Supreme Court.  In particular, there’s no political reason for not doing so:

It might be objected at this point that a nominee like Karlan or Koh might compel a Republican filibuster. The proper answer to this is, so what? First of all, in the (probably unlikely) possibility that a filibuster of a nominee holds, the result would be the eventual confirmation of a more moderate nominee. If Obama preemptively nominates a moderate nominee, the result would be … exactly the same. In the worst-case scenario, progressives are no worse off.

This might be a problem if this would increase Republican obstruction in other areas, but with the centerpiece of Obama’s first-term domestic agenda already passed, the prospect of further major legislation near zero, and Republican obstructionism in the Senate virtually maxed out, there’s no reason to believe that a Republican filibuster would incur any net political cost. If anything, it would provide ammunition for a narrative painting the Republicans as the “Party of No” while providing a venue for defending liberal constitutional values. And finally, the filibustering of a Supreme Court nominee for the first time since 1968 (and second total) would escalate the cycle that is likely to lead to the elimination or substantial modification of the filibuster rule — something that would be a massive victory for democracy.

To paraphrase Joey La Motta, if Obama puts forward a strong progressive nominee and we win, we win. If we lose, we still win.

Of course, Obama is likely to lean towards a more moderate candidate on substantive grounds. Of the actually viable candidates, as I imply Diane Wood seems easily the best to me.

Are the Venezuelans Marching Through El Paso Yet?

[ 5 ] April 12, 2010 |

In general, I feel the same way as Yglesias and Attackerman about the Venezuelan Embassy’s aggressive spamming tactics. In this case, however, the Venezuelan ambassador’s letter to the editor of Armed Forces Journal is a useful corrective to Peter Brookes’ hysterical nonsense about the threat that Hugo Chavez poses to motherhood, apple pie, etc. While Brookes raises some legitimate concerns about possible Venezuelan efforts to help Iran evade international banking and finance restrictions, most of his argument is simply garbage. For example, he hoists the trusty “why would an oil exporting state ever need nuclear power” canard, when the answer is quite obvious; nuclear power used for domestic needs means that more oil can be exported on the international market. The other terrifying oil exporting, nuclear power generating state in the Western hemisphere is called “Canada,” and is well known to exert a destabilizing influence on all of its neighbors. As for the military buildup that Venezuela is allegedly using to intimidate its neighbors, I’ll simply let the ambassador tell the story:

About 1.1 percent of Venezuela’s gross national product goes to military spending, below the South American regional average of 1.7 percent and significantly less than Colombia (5.7 percent), Chile (2.9 percent) and Brazil (1.5 percent). Despite having the region’s second-largest GDP, Venezuela is fourth in total defense spending, behind Brazil, Colombia and Chile.

As to specific concerns Brookes raised, the following is important to consider: The purchase of Russian fighter jets corresponds exactly to the number of F-16s sold to Venezuela by the U.S. in 1980. Since the U.S. has refused to supply key parts necessary for these planes, Venezuela has been forced to look elsewhere to rebuild its air force. Therefore, the new planes come as a replacement, and not as an expansion, of its existing fleet..

With regard to Brookes’ complaints as to who is selling Venezuela these goods, it bears recognizing that in 2006, the Bush administration imposed a set of politically motivated sanctions on Venezuela limiting the sale of arms, military goods and dual-use equipment. That Venezuela is purchasing needed equipment from countries other than the U.S. is not a surprise — it’s a basic necessity.

The inability of the right wing foreign policy machine to distinguish between a leftish leader with autocratic tendencies and mild aspirations to regional influence and TEH GREATEST THREAT TO AMERICAN SECURITY SINCE THE LAST GREATEST THREAT TO AMERICA remains troubling.

Who Do We Need to Torture to Get to the Bottom of This?

[ 3 ] April 12, 2010 |

Thiessen explains why the Smolensk crash sucks for Poland, but REALLY sucks for America:

This weekend, in that same forest, much of Poland’s 21st century intelligentsia was wiped out as well—particularly, its pro-American, conservative intelligentsia, those who stood up to Russia, reached out to Ukraine and Georgia, and looked to the United States and NATO before the European Union. The effect of their loss will be felt long after the tears dry—in Poland and in the United States as well.

Don’t worry, Marc; I guarantee that if you torture enough people, pretty soon you’ll “find out” that Obama and Putin planned the whole thing…

H/t Duss.

Is Putin the Right Man to Head Smolensk Crash Investigation?

[ 10 ] April 11, 2010 |

Vladminir Putin has personally taken charge of the investigation of the plane crash that killed Polish President Lech Kaczynski and much of his upper government and top brass this weekend.

Certainly, this move is meant as a signal of solidarity with and support for the Polish people and government. But how likely is it to be perceived as such? Conspiracy theories about Russia’s possible involvement in the crash began swirling about shortly after news broke and seem to have been exacerbated by this announcement.* Such suggestions are likely unfounded: though one can argue Russia may well gain from a destabilized Poland, all evidence points toward human error and aggravating weather.

But from a PR perspective, that’s hardly the point. Symbolically, the tragedy could not have occurred at a worse time or place in terms of exacerbating tensions between Russia and Poland. For that reason, Polish officials themselves should be involved in heading the official investigation, rather than simply running one in parallel, to allay suspicions and fears and turn this terrible tragedy into an opportunity for mutual cooperation, rather than a return to decades-old recriminations and mistrust.

*As of today, members of Hubdub are staking virtual dollars on whether or not the Polish government will formally lodge an accusation within the next couple of weeks. So far, most predict no – a healthy sign that calmer heads will prevail.

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Belated 2010 NL Preview

[ 6 ] April 11, 2010 |

East:  1. Phi 2. Atl 3. Fla 4. NYM 5. Was I suppose  on some level the Phillies are more vulnerable than they might seem; they feel like a great team and have the core of one, but this core has yet to win more than 93 games in the weak lead.   But you have to think that with Halladay this could be the strongest version yet, and the bullpen has to get better.    There’s been something naggingly unfinished about the Braves since Ted Turner left, this year reflected in the ridiculous Vazquez trade (part of the “let’s play Kansas City As!” game that started with Gillick donating Abreu to the Yankee cause.)   But the team is better than its record the last two years reflect, and if Glaus is healthy except for Melky the lineup is decent, and they have the best pitching depth in the division.    If the Phils have bad luck with injuries, the Braves could push them, and should compete for the wild card.    Speaking of unfinished, the Marlins aren’t going to patch their holes and won’t win the division, but have enough talent to be vaguely competitive.       One can see a superficial case for Mets optimism; there’s some impressive core talent, and the team went to the wire in ’07 and ’08.   The first obvious problem, though, is that except Bay every one of the Mets’ front-line players is coming off an off year, an injury, or both; as a group they’ll be better than last year but not better enough.  The second problem that there’s nothing behind it on offense — the 2B has no power, the RF can’t get on base, the C is a poor-man’s version of the RF, and the 1B is a joke.    And then there’s the pitching — beyond Santana not only was the rotation lousy, but although they’re mostly young they had the peripherals of a 37 year-old junkballer on his last legs (and Perez, the pitcher with the highest upside, was especially gruesome.)    A declining K-Rod won’t get much more support, either.   That’s not a contending team.     The Nationals continue to be a tribute to the aftereffects of syndicate ownership.

1. STL 2.  MIL 3. CIN 4. CHI 5. HOU 6. PIT There’s no way around it — having the best player in baseball is a major edge in a thin division, and having a manager and pitching coach who can get ace performance out of journeyman starters ditto.    Outside the 3-4 slots the offense isn’t very good, but they should win the division anyway.    I figure one of the not untalented but highly flawed Brewers, Reds, and Cubs will make things interesting, but my suggestion that it will be Milwaukee is a pure guess.   The Pirates are terrible but at least are heading in the right direction, while the Astros may be a little better now but it’s not obvious when their next decent team is going to emerge.

1. COL 2. LA (*) 3. SF 4. ARI 5. SD The staff that the Rockies have put together in that park is pretty remarkable; I see this as the year when they’re finally good wire-to-wire, although one really good power hitter in the corners would make that more certain.   The next three teams are all potential contenders if things break right; my preference for the OK-both-ways Dodgers over the all-defense Giants is marginal, although I remain less impressed with the DBacks than most sabermetric types.   The Padres are the Nationals with one really good 1B added.