War Plan Red

Want to invade Canada? We have a plan. The most interesting part of this Washington Post article is the discussion of Canada's plans for pre-emptive war with the United States:

As it turns out, Katz isn't the first Canadian to speculate on how to fight the U.S.A. In fact, Canadian military strategists developed a plan to invade the United States in 1921 -- nine years before their American counterparts created War Plan Red.

The Canadian plan was developed by the country's director of military operations and intelligence, a World War I hero named James Sutherland "Buster" Brown. Apparently Buster believed that the best defense was a good offense: His "Defence Scheme No. 1" called for Canadian soldiers to invade the United States, charging toward Albany, Minneapolis, Seattle and Great Falls, Mont., at the first signs of a possible U.S. invasion.

"His plan was to start sending people south quickly because surprise would be more important than preparation," said Floyd Rudmin, a Canadian psychology professor and author of "Bordering on Aggression: Evidence of U.S. Military Preparations Against Canada," a 1993 book about both nations' war plans. "At a certain point, he figured they'd be stopped and then retreat, blowing up bridges and tearing up railroad tracks to slow the Americans down."

Brown's idea was to buy time for the British to come to Canada's rescue. Buster even entered the United States in civilian clothing to do some reconnaissance.

It was not immediately apparent, in the wake of World War I, that the United States and the United Kingdom would remain allies. The United States, after all, had entered World War I as an associated power. The United Kingdom maintained an alliance with Japan, which the United States viewed as our most likely foe. The jockeying for power between Japan, the UK, and the US resulted in the Washington Naval Treaty, which abolished the Anglo-Japanese alliance and limited the naval procurement of all three countries.

The Naval Treaty was not Britain's only strategic option, however, and the Dominions played a role in pressing London toward the multilateral option. Tensions had run high between the US Navy and the Royal Navy during the war (some US admirals were reluctant to commit a squadron of battleships to the Grand Fleet, believing that the British would somehow manage a confrontation between the US ships and the German High Seas fleet, to the detriment of those two navies and the advantage of the UK), and relations between the IJN and the RN were quite close. In 1920 the Royal Navy enjoyed roughly the same level of advantage over the US Navy as it had over the High Seas Fleet, and a combination of Japan and the UK would have had a clear naval superiority over the US.

To the Australia and Canada, which had given virtually unconditional support to the British during the war, the idea of an Anglo-Japanese alliance against the US was unpalatable. The Australians did not wish to see Japan dominate the Pacific. The Canadians realized that, in spite of British superiority at sea, war against the US would result in the end of Canada. Even if the Royal Navy could defeat the USN, it could not hope to transport or supply an expeditionary force large enough to defeat the US Army.

There were other reasons, too; the British suspected that the US might, in the long run, be able to outpace BOTH Japan and the UK in naval construction, and very few in the UK wanted to pay the cost of an arms race with either power. Nevertheless, it's interesting that the threat of a US invasion of Canada played some part in global political dynamics as late as the 1920s.

Rock Bottom

I suppose there's something more pathetic than the fact that, on a Friday night, I currently have CSPAN-3's re-runs of the Bork confirmation hearings on. But it's certainly well beyond my ability to imagine...

Terrorism and Cancer

John Quiggin with an excellent analogy. This short poste better explains why I can't take the vast majority of the right seriously when they talk about fighting terrorism.

Why I, too, am a feminist

Lots of reasons, but Scott’s post below reminds me of a post I meant to write last month, but never quite got around to. On Thanksgiving this year, just a few weeks after his 94th birthday, my grandfather died. Deaths of close family members always have an element of tragedy, but as far as deaths go this was expected and for my grandmother, who has found taking care of him as his health deteriorated, some semblance of relief. I could certainly recount the ways patriarchal norms have limited my grandmother’s potential and actual happiness, but it’s not all that different than the sorts of things Scott discusses below (with respect to his mother, thankfully, and not his grandmother).

My grandfather was a beneficiary of a variety of the privileges of patriarchy. For many years, while he had little work available and my grandmother worked as an elementary school teacher, she did all the housework and cleaning and cooking. This was so expected that it didn’t seem to cause resentment. My grandfather didn’t marry until he was 37. His father died when he was quite young, and he spent his life until marriage being doted on and cared for by his mother and his father’s sister. My grandmother slowly took over this role in the early years of the marriage, and continued it for the next 57+ years (for the early years of the marriage, my grandfather’s mother still lived with them, which from what I understand was a pretty difficult existence for her).

This rendered my grandfather unable to take care of himself in important ways. When my grandmother retired from teaching, she wanted a vacation, which she’d never had. She booked a flight to Virginia and a senior bus tour of historic sites, which meant she would be away from home for more than a day for the first time in their marriage. Before she left, she prepared meals for the entire time she’d be away, in Tupperware labeled “breakfast,” “lunch,” and “dinner” with comically explicit microwaving instructions. These meals went untouched. While my grandfather would simply ignore any questions about what he ate during these eight days, the physical evidence left behind suggests that at first, he eight all the cookies, candy and chocolate he could find in the house. After a few days, when this resource ran out, he drove to Burger King (they live in the country, it’s a 30+ mile round trip) for each and every meal. The only explanation he gave for his behavior: “I can’t figure out how to work that contraption” (the microwave). This story has since been retold as a humorous anecdote about his stubbornness, but when I always thought he seemed a bit embarrassed when it was brought up.

Throughout his life, my grandfather had an interest in antique farm equipment, which he collected, repaired, and exhibited at antique farm equipment shows around Washington and Oregon. At his memorial service, my grandmother told me that she once asked him what he would have liked to have done had he not been a farmer, to which he replied he’d like to have been an engineer.

Most would point to my grandfather’s privileges and my grandmother’s hardships as the feminist lesson here, but there’s another one as well. File this under Ampersand’s “patriarchy hurts men, too.” His autonomy was limited in important ways by patriarchal norms as well. Feminist theory has often told us that the patriarchal version of autonomy relies on the non-autonomous labor of others, and that’s clearly correct. But this autonomy is corrupted both ways. The women in my grandfather’s early life shaped and developed him into an incomplete person. The man who could repair a 19th century steam engine he’d never seen before couldn’t—or wouldn’t—figure out how to use a microwave. It’s easy to chalk this up to stubbornness, but it’s a particular kind of stubbornness that shows the depths of which the patriarchal norms about certain tasks had been internalized. The same patriarchal norms that gave him the large farm he inherited (it was assumed that the female members of his generation would marry, so they weren’t inheritors of the farm) and placed him in charge of it at a young age also foreclosed the possibility of him becoming an engineer. He had made his peace with being a farmer--he particularly enjoyed hosting the local grange's annual threshing bee fundraiser--but the thought that he might have liked to pursue a different path stayed with him.

One thing feminism does is demand that we change society in order to create and enhance the opportunities for women to have autonomy. But the gender roles that feminism resists can also serve as a constraint on male autonomy as well. Patriarchal autonomy disguises male privilege, but it also disguises the ways in which some choices and options are foreclosed and limited. My grandfather never would have recognized any of this, and he’d probably think this is all pretty silly. Still, while I’ve suffered my share of embarrassments and I’m sure I’ve got many more coming, I’ll never be embarrassed by my lack of ability to operate a microwave. In the grand scheme of things, it’s pretty trivial, but it is one tangible way feminism can be beneficial to men as well as women.

Robert D. Herren, 1911-2005, RIP

Why I Am A Feminist

Lauren's post defies summary; it just demands to be read. Particularly since I'm in a context where I teach a lot of first generation college students, I found it particularly fascinating, but also reminds me that teaching at lower levels is a harder and more important job. I want to hit at it from a slightly different angle; her discussion about the importance of ideas within families reminds me of the answer I always give if someone asks me why I'm a feminist.

My parents both grew up poor on a Saskatchewan farm, and were both first-generation college students, and have the work ethic you would expect from people who grew up in that context. My father isn't really someone with a great interest in abstract ideas; he got a law degree, quickly found a good corporate job after a few years of private practice, and methodically rose up the latter in a big, secure company in a way which is now somewhat rare. My mother, on the other hand, has some traits of an intellectual, and in some ways she's unhappy because she would have liked to have been a researcher. She works (and still does part-time) as a dietitian, working with people with diabetes and other serious health issues. She also keeps up with the literature to a far greater extent than would be minimally required for her profession, and she would have liked to have been able to produce research itself. But it wasn't possible, because it was too late. I don't mean to say that this is the result of the patriarchy in its crudest form; my father never had objections to her working or anything like that and they have the happiest and most stable marriage imaginable, and my sister (although not a feminist) has an extremely successful career in a male-dominated profession and her education and choices were always encouraged. Rather, my mother's occasional status taught me about the subtler ways in which patriarchal norms work; it's about internalized expectations. She couldn't become a researcher because she finished with a BA in Home Ec, and would never have considered grad school because getting married and having kids and taking care of them after graduating was what a woman did. By the time she started her career, she was in her mid-30s, and has often worked only part-time. She just wasn't in a position to achieve her ambitions, and it's always been important to me that women do have these choices.

The other big reason, which is even starker, is my mother's mother, my only surviving grandparent. My grandmother's husband passed away in the early 80s, and since then her life has essentially been over, even as she keeps living. Her identity was so thoroughly bound up in being a wife and mother, in taking care of her husband, that after he passed away there was essentially nothing left for her to do. She had no interest in reading, or music, or any kind of culture, and slowly retreated from any human contact at all. When she moved from her small town home to be closer to her daughters, she would periodically complain that she didn't know anybody and didn't see her old friends, but if her old friends came to visit she would quickly get tired of them and want them to leave. She talked for a long time about taking a train ride through the Rocky Mountains, but when my mother and her sisters paid for an expensive luxury train ride from Calgary to Vancouver she just stared at the seat straight ahead, not wanting to go to the observation car and look at the scenery or go to eat the gourmet meals or anything. She basically had no independent interests, nothing that brought her any joy other than caring for her spouse, and seeing the last stages of her life has taught me that the legal dissolving of a woman into her husband when she married had very tangible human costs, even when the legal forms themselves changed. Being in a committed, caring relationship is a great thing, of course, but the damage wrought by a certain level of dependence that some people would require of women for the sake of the "family" can extract an awful toll.

Which is why--even though I was otherwise pretty conservervative as a teenager--I gave a less-than-strategically-appropriate pro-choice speech at my high school's "Speech Day," and have always strenuously opposed attempts--whether through state or cultural coercion--to restrict the autonomy of women's choices about childrearing, and was particularly hostile to reactionary idealizations of the patriarchal family. There's another lesson, of course, which is that cultural norms are stubborn and do not necessarily have easy legal remedies. Pace Maureen Dowd, feminism's victories are real but far from complete; it's a slow process, but also a necessary one. Freedom doesn't bring guarantees of happiness either, of course, but it's infinitely preferable to the alternative.

...HF has more.

Friday Cat Blogging... Snowball

Bipartisanship!!

Wow, I never thought it would happen either, but I agree entirely with a post about movies on The Corner. (Hell, I'm shocked that there was a post about movies, as opposed to using movies as a pretext to talk about politics, at The Corner.) Since we could use more conservatives who actually care about aesthetics, I figured I should give a link...

Rhythmic Admirer of the Day

Glenn Reynolds.

That Poll Does Not Mean What You Think It Means

John and Ezra are, of course, right: despite the claims of people like Jeff Goldstein, the fact that only 64% or the public answers "yes" to a question that I (and virtually everyone else) would unhesitatingly answer yes to is hardly a sign of strength for the President's position; if they ask about the President's program as opposed to the concept of using wiretaps to fight terrorism in general, then we'll have something. In addition to this, of course, we get the usual projection of intense partisanship onto others. He asks: "Will these results convince partisan Democrats who'’ve been pushing the story that they'’re not likely to gain much politically by pressing the issue?" The answer, of course, is "who gives a shit?" Let's say for the sake of argument that opposing the President's program will be unpopular--quite likely, although this particular poll is neither here nor there as far as that's concerned. I could still care less. If it's unpopular to oppose presidential illegality and pointless violations of civil liberties, so be it. There are some principles you have to stand on; if some people believe that narrow partisanship is more important than upholding the Constitution that's their privilege, but speak for yourself.

As for the claim that "case law to this point supports that authority", uh, sadly, no. We have to start with the fact that the program clearly violates the FISA statute. We need not concern ourselves with the few embarrassingly specious and outcome-oriented attempts to argue otherwise, because not even the administration itself is claiming that their wiretaps were authorized by FISA. And the claim that the taps were somehow authorized by the AUMF is, if anything, even more unserious. So, the question is: does the case law support an inherent presidential authority to engage in national security protections contrary to Congressional statutes? Let's turn this over to Daniel Farber's Lincoln's Constitution, an (excellent) attempt to defend the constitutionality of most of Lincoln's wartime measures:

With the possible exception of Midwest Oil, where the court found in a long history of prior congressional acquiescence, the Supreme Court has never upheld a presidential claim to take emergency action in violation of statute. At the very least, any such claim of presidential authority must be scrutinized with great caution...On balance, Lincoln's transfers of federal funds are probably best regarded as unconstitutional. (137)

In this case, Midwest Oil is also clearly inapplicable; not only has Congress not provided long-term tacit consent, but the Attorney General has argued that the program is necessary precisely because Congress wouldn't grant the authority. And as Glenn recently pointed out, in the Steel Seizure cases the Court refused to uphold Truman's actions even though 1)there actually was a war as traditionally understood going on, and 2)the steel seizure represented a far more plausible "emergency" context than warrantless wiretaps in December 2005. If Truman didn't have the inherent authority to override the will of Congress, Bush certainly doesn't. So, the case law on this question is indeed clear: the President plainly exceeded his constitutional authority. The program would only be constitutional if the Court were to expand traditional understandings of executive power considerably. For the good of the country, we can only hope that they won't.

...Digby gets it right.

10 Worst Americans

Far be it from me to decry any of my countrymen, but I cannot resist. In no particular order, and including both those crimes aesthetic and political...

J. Edgar Hoover: I don't think that civil liberty in the United States has ever had a more committed enemy. I don't know that he hated leftists, african-americans, and civil rights advocates per se, but he was willing to destroy anyone who threatened his power.

Aaron Burr: Had little, if anything, to contribute to the early Republic, and came close to disrupting it in the 1800 election. Killing Alexander Hamilton puts him over the top.

Jefferson Davis: Ninth circle of Hell, next to Judas, Brutus, and Cassius. That his treason was in the cause of slavery makes him much worse than, say, Benedict Arnold.

Nathan Bedford Forrest: Fought to destroy the Union, then fought to destroy the only good things that came out of the Civil War.

Bill O'Reilly: Other demagogues could be placed here, but Bill O'Reilly takes precedence for his insipid faux populism.

George Wallace: Patterson Hood puts it best.

Joseph McCarthy: Willing to burn everything that was good about America in the service of his power.

Henry Miller: America's worst novelist.

Mickey Kaus: America's worst pundit/blogger/journalist.

Joel Schumacher: America's worst director.


The last three are idiosyncratic, I know. Reading the comments is fun; if you've ever doubted whether the right has more spite, anger, hatred, and vitriol than the left, please put those concerns aside. Including Martin Luther King was not enough for one enlightened commenter; she decided to put every African-American on her list. Jimmy Carter seems to be a mainstay on the conservative lists, as does Earl Warren.

American Exceptionalism

Chris Bertram reminds us that contemporary discussions of American imperialism miss out on the fact that the United States has historically been a very successful imperial power. It's not as if we just pulled 37 new states out of our collective ass The conquest and colonization of the West was so extraordinarily successful that modern Americans simply don't think of it as a conquest in the same way that we think of Russian expansion, Chinese expansion, or European colonialism.

This reminded me of why I have an aversion to Fareed Zakaria. Zakaria is, of course, a prominent public intellectual. Like many prominent public intellectuals, he received his Ph.D. from Harvard. He turned his dissertation into From Wealth to Power, which is a study of the effect of weak executive power on colonial expansion. He concludes that weak executive power in the US in the second half of the nineteenth century precluded the United States from seeking colonies in the same manner as other great powers.

And that, my friends, is absurd. It doesn't even pass the laugh test. As long as you posit that America's expansion into the West wasn't colonialism, it sounds like a great, nuanced, interesting thesis. Similarly, if you posit that pigs are vegetables, you'll wonder why vegetarians don't eat bacon. The argument doesn't even have face validity (and Zakaria deals with the problem in the book only in passing), and yet he managed to defend it as a dissertation and get it published. I once assigned the book to a group of undergraduates, and even they were genuinely flummoxed at the gaping blind space in the center of the book's argument.

I haven't read any of Zakaria's other books, so I can't comment on them. I have found his columns well-written and occasionally insightful. And yes, there is an element of academic bitterness here; I wish I could have written and published such a crappy dissertation. Nevertheless, I will always find myself suspicious of his work.

See You In Leavenworth, Kenny Boy

Causey to testify against Lay and Skilling. Bye-bye!

Step 1: Cause the Strike. Step 2: Make Up Effects. Step 3: Blame Someone Else

Julia Speak, You Listen.

Going For Brokeback

Once it was decided that my visiting family would be seeing a movie on Christmas Day I was resigned to sitting through The Family Stone or some such, but everyone in my family wanted to see Brokeback Mountain (partly, admittedly, because it was filmed in Alberta. And, of course, Albertan conservatism is kind of a strange brew; when k.d. lang came out it didn't really seem to cause much of a ripple, but when she came out as a vegetarian...that's when the sign on her hometown was covered with graffiti.)

The most salient thing about the picture is that it represents the return to form of an immensely gifted director, although (as some have anticipated) Lee's sensibility certainly won't be to everyone's taste. Lee's rhythms and lovely photography and attention to period detail hit me where I live when he's on, and this picture works almost as well as the The Ice Storm. I don't understand claims that the movie is cliched or melodramatic, unless these terms are defined so that they encompass pretty much any movie about problematic romantic relationships. Whether a movie that uses archetypes about thwarted desire and romantic bad faith deserves these labels depends on whether the story feels organic and character-driven, and this one does. And it will also rise and fall on the acting, and while Gyllenhall and (especially) Ledger deserve their hosannas, Williams and Hathaway give the movie a surprising jolt of soul. And, as always, Lee gets consistently good performances across the board, and is especially skilled with teenage and child actors who bring so many other movies to a halt. But while the context of a major Hollywood film matters, it is certainly true that the movie is not really subversive. As Anthony Lane noted, it's neither particularly gay nor a western--McMurtry's The Last Picture Show being the obvious antecedent--and nor (may the saints be praised) is it another self-conscious attempt to "demythologize" a genre that has been alleged to have "lost its innocence" almost as frequently as America itself, but I don't really see that a problem; I don't see much point in attacking the movie for not being another movie. (And the upside is that it's not the policy brief in favor of gay marriage or whatever that its anti-aesthetic critics have evaluated it as.)

It's a very fine movie, and should be seen, but it is certainly flawed. While I can't go along with the claim that it gives off less erotic heat than a Merhcant/Ivory picture without having seen the latter (I find it hard to believe that it's even theoretically possible), it's true that some people will find it too tasteful by half (or maybe by the full one), and I don't entirely disagree. (Mickey Kaus and his constantly-under-perceived-siege heterosexuality will be happy to know that in the patriarchal tradition of Hollywood there's more female than male nudity in the film. Perhaps Kaus, who seems to think that attraction to the stars is the only reason to see a movie, can explain why this ratio is so high, and why a majority of the male nudity seems to involve Harvey Keitel.) The scene where Ennis Twist is fired is more explicit than it needs to be--it's the one lapse where the film tells you what to think instead of dramatizing--and the final twist for Jack Twist does justify the charge of melodrama. Overall, though, I think these are fairly minor quibbles; certainly, it's one of the best movies of the year.

It should be noted as well that my more politically and aesthetically conservative family liked it as well (which, of course, may hurt my argument more than it helps it, but I stand by it.) They also liked Sweeney Todd, which according to the expanding wave of anti-aesthetic criticism makes us objectively pro-cannibalism as well as pro-homosexuality. (I wonder what Stanley Kurtz thinks is worse?) I'll have more about it after I see Doubt on Thursday, but despite being a Sondheim skeptic I can't challenge the consensus about the current production; it's flat-out masterful...

Victory

Christmas is over, and we hold the field of battle.

Grow Up To Be A Debaser

Tara McKelvey had a terrific article in The Nation recently about academics left and right--some of whom have been called "libertarians"--who have engaged in casual defenses of torture. She's particularly good at identifying the idea, also so evident in the defenses of Bush's illegal surveillance, that the nation's toughness and manliness are somehow at risk if we don't violate as many rights as possible (even if it requires repudiating long-held theoretical commitments) in the name of not-terribly-well-specified advantages supposedly gained in fighting terrorism:

Dershowitz may be more willing than most academics to talk about specifics. But a number of professors on the "torture circuit"--the talks, roundtables and debates on the subject that have taken place at universities, law centers and conferences over the past four years--have echoed his points. For these professors, the message is clear: Toughen up. In a debate with Physicians for Human Rights executive director Leonard Rubenstein in Cambridge, Massachusetts, on February 28, 2003, for example, Harvard Law School professor Richard Parker balked when Rubenstein said torture should be forbidden under any circumstances. "The idea that anybody would take an absolutist position seemed kind of absurd to him," Rubenstein recalls.

Another Harvard law professor, Philip Heymann, with Juliette Kayyem, a lecturer at Harvard's Kennedy School of Government, influenced Congresswoman Jane Harman's drafting of legislation that would authorize harsh interrogation techniques under certain conditions. Harman discussed the proposal in a speech at Georgetown University on February 7 and was criticized by human rights activists. Quietly, the Harvard plan was dropped.

In some cases, the academics have crossed into government service. In The Torture Papers: The Road to Abu Ghraib, co-editor Karen Greenberg, executive director of NYU School of Law's Center on Law and Security, says many of the people on the "path to torture" have affiliations with the academy, including, most famously, John Yoo, who served as attorney in the Justice Department's Office of Legal Counsel and helped draft memos that outlined a strict definition of torture. Yoo studied at Harvard and got a law degree from Yale. He has taught at the University of Chicago Law School and is now a professor at UC Berkeley Law School, Boalt Hall.

In an essay titled "Torture, Terrorism, and Interrogation" in Torture: A Collection, edited by Sanford Levinson, Richard Posner, a judge on the US Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School, agrees with Dershowitz, writing that "if the stakes are high enough torture is permissible." Interestingly, Posner seems to think torture is more acceptable if it takes place far from home. "Torture is uncivilized, but civilized nations are able to employ uncivilized means, at least in situations of or closely resembling war, without becoming uncivilized in the process," he writes. "I suspect that this is particularly true when the torture is being administered by military personnel in a foreign country."

And, alas, even professors at CNUY are implicated:

A CUNY professor goes further. Philosophy professor Michael Levin is the author of "The Case for Torture," a 1982 essay he continues to defend. "Perhaps the most terrifying moment came when an urbane American academic [Levin] argued the case for torturing not only suspects but even their infant children, if it would induce them to talk," writes Robert Shrimsley, reviewing Channel 4's "Is Torture a Good Idea?" in the March 4 Financial Times. "With his cheery evocation of such appalling techniques, Michael Levin...was a living personification of what Hannah Arendt called the banality of evil."

Profoundly depressing, but important, stuff. In a related note, I think that the administration should issue an executive order compelling all faux libertarians to sign the Posner Waiver...

Parochial Boxing Day Bloggin'

I believe this would make this year's tally white hats 4, black hats zip. (Well, to be fair, the Neckbreakers are 0-3-1.)

In better news, the lack of stereo has been solved in a satisfying manner, with the crappy bookcase component system (and Sony home audio products in general) avoided.

“The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need...”

In addition to being funny, DeLong's anticipatory satire of Charles Krauthammer actually has a serious point: would Krauthammer, or any of the large number of conservative pundits who have endorsed the Yooian theory that the President's Article II powers trump all other legal limits on the executive's authority where "national security" is involved, have any principled way of not supporting the legality of the President's actions if he decided that the 22nd Amendment was a luxury the country can't afford during the War on Terra? After all, the Court used a similar logic to permit the President to engage in a clear violation of the 14th Amendment during WWII, and the most popular conservative blogger who writes a significant amount of original content has already written a book defending the decision. And that's the problem with this reasoning: there's no logical end to it. Even if we were to assume for the sake of argument that the President's illegal wiretaps haven't created any substantively major violations of civil liberties, the reasoning being used to pretend that they're legal is incredibly dangerous. (And, of course, since the program isn't transparent or subject to judicial oversight we have no basis for making this assumption.)

And while I don't, of course, think that Bush actually would try to stay on for a third term, we actually have recent Republican precedent for such a thing: Saint Rudy trying to stay on past the expiration of his term through a legally dubious informal arrangement with the other candidates.

...Glenn Greenwald has more.

Should Well Enough Be Left Alone?

I welcome Dave, the fan who introduced me to the show (and put the cool poster in our office) to append comments, but I must admit viewing this project with some measure of apprehension. It's hard to replicate the spirit of a series this long afterward, I would think. Its life was its own. (Although admittedly one must be more optimistic about this than the film project, assuming that Simon West is still at the helm...)

Happy Festivus!

Light blogging as I ferry the visiting family around NYC (and, really, who's reading now anyway?), so happy Christ/ukah tomorrow to all of LGM's readers and critics!

Stability

Fred Kaplan has a good column on Pentagon budget priorities:

Earlier this month, Deputy Secretary of Defense Gordon England signed a directive declaring, "Stability operations are a core U.S. military mission. … They should be given priority comparable to combat operations" in all Defense Department activities, "including doctrine, organizations, training, education, exercises, materiel, leadership, personnel, facilities, and planning."

At the very least, this directive—which amounts to an official acknowledgement of the Iraq war's mistakes—will require more military manpower if it's to be a statement of policy and not just a smattering of nice words.

And yet, according to a story by Tom Bowman in the Dec. 21 Baltimore Sun, Secretary of Defense Donald Rumsfeld is planning to cut the Army's forces by 34,000 troops. That would entail eliminating one active-duty brigade and six National Guard brigades. (The latter aren't trivial; nearly half the U.S. combat units in Iraq come from the National Guard.)

Budget pressures are forcing Rumsfeld to cut Pentagon spending by $32 billion over the next five years. But why is he taking his biggest whacks against the tokens of combat power—boots on the ground—that are, by his own admission, most vital? The Sun reports:

The manpower cuts stem from a decision by top Army leaders to sacrifice troop strength in order to provide money for new weapons systems and other new equipment, said defense officials, who requested anonymity.

So, not much has changed after all. We've been fighting a war that's costing hundreds of billions of dollars. The Pentagon's upper management at least says it realizes that "stabilization operations" (read: low-tech, high-manpower ops) are extremely important. The Army chief of staff, Gen. Peter Schoomaker, leans toward this sentiment as well, having risen through the ranks in the Special Forces command. And yet, when it comes to setting priorities on how to spend money, the procurement chiefs—with their eyes on big-ticket weapons systems—still rule.

At this point, changing the shares that each service gets of the Pentagon budget is pretty much a non-starter. While it's true that cutting a few F-22s and the DD(X) could help pay for additional Army personnel, to do so would break the back-scratching arrangement that the three services have constructed since the 1960s. The degree of political will necessary to make that happen exceeds what most administrations can bring, and, frankly, if the Bush administration couldn't dent it, I doubt that anyone can.

That said, the position of the Army itself seems indefensible to me. Yes, I know that they really, really want FCS, and for some reason seem to think that it will help them in low-intensity operations. I can't see how, but they seem to believe it. In the service of achieving this dubious goal, they're willing to cut our capabilities for fighting a low-intensity conflict now, when we are, after all, in the middle of a low-intensity conflict.

Rumsfeld isn't the only one to blame in this fiasco. The Army brass will also be responsible for the problems that these decisions create.

What We Already Know

In one of the least surprising developments is history, an Alito memo in which he argued that Roe v. Wade should be overturned has been released:

Supreme Court nominee Samuel Alito wrote in a June 1985 memo that the landmark Roe v. Wade ruling legalizing abortion should be overturned, a finding certain to enliven January's confirmation hearings.

In a recommendation to the solicitor general on filing a friend-of-court brief, Alito said that the government ''should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled.''

The June 3, 1985 document was one of 45 released by the National Archives on Friday. A total of 744 pages were made public.

[...]

Consistent with his previous writings, Alito said these arguments would be preferable to a ''frontal assault on Roe v. Wade.''

''It has most of the advantage of a brief devoted to the overruling of Roe v. Wade; it makes our position clear, does not even tacitly concede Roe's legitimacy, and signals that we regard the question as live and open,'' Alito wrote.

To address one of the spin-points we'll be hearing as part of the Alito Kabuki, this is his personal before-the-fact analysis, not a brief where he was just putting the government's position forward.

But it should be noted, of course, that this isn't telling us anything we don't already know. Alito's personal hostility to legal abortion rights is well-known and unambiguous. As an appeals court judge, in the only abortion case not decided on technical grounds or in which he was not bound by a clear upper-court precedent he ruled in a way that would maximize state power, and used a legal rationale that would not only increase the regulatory power of the state but would make challenging the regulations in court far more ornerous. His hostility to abortion rights couldn't be clearer; it's only people who want to maintain their bullshit-libertarian credentials or need to ram Alito through the Senate despite his unpopular views who are trying to pretend that there's any serious doubt about his stance. This is one more piece of evidence added to a case that was already utterly clear-cut. If you support Alito, you either oppose or don't care about reproductive rights, period.

Yet More!

One of the things about writing for one of the 10,000 most popular blogs on the intarweb is that--in addition to the predictable crates of panties, requests for autographs, marriage proposals, and the like--is that one is burdened with requests to write about topics sadly neglected by the author but of intense interest to the audience. If I've gotten this email once, I've gotten it a million times: "Why can't you blog more about hockey? You do it so rarely, and the comments threads get so long I feel lost! And would it hurt you to fire off the occasional post about abortion or unprincipled faux-libertarians?"

Well, who am I to ignore my readers? So you can see me lowbrowing Michael Berube's place up, discussing the New NHL. I'm afraid my need to fill the space that would otherwise be consumed by doing something useful has trumped my labor solidarity.

As an addendum to my point about attendance, I'm not sure what the averages are; versus the previous year, the median attendance is down, but the median capacity filled is up. (Considering that there was a labor stoppage that killed a whole season, that's pretty amazing.) The really interesting comparison is with the NBA: the NHL has a median attendance of 16, 820 and 94.5% capacity, compared with 16,925 and 87.5% for the NBA [whoops--edited!]. And this has generally been true: the NHL more or less has the attendance figures of the NBA--which I think would surprise most people--but can't get Americans to watch on TV at all.

Hitchens

Around these parts you'll see very little positive press given to Christopher Hitchens, and for damn good reason. He can still write when he wants to, and can occasionally amuse. Granted, MSNBC/Scarborough mockery is like shooting fish in a barrel, but that doesn't mean mean we can't appreciate standouts of the genre such as this.

Disgrace

For a hockey fan, the Olympics can actually provide something useful: an equivalent to soccer's World Cup. The level of hockey in Salt Lake in 2002 was incredible, showing what a game that had grown logy could be, and culminated in a terrific final game, with the good guys winning. (It was also beneficial for my parochial interests, as the final game demonstrated Jarome Iginla having made the transition from very good player to player good enough to drag the Flames within a goal of the Stanley Cup.) I've been looking forward to the 2006 tournament for a long time.

Unfortunately, the experience--particularly for a fan of Team Canada--will be sullied by the inclusion of Vancouver Horsefuckers Canucks thug Todd Bertuzzi, who at the culmination of a series of brawling initiated by the Canucks in response to a (perfectly legal) hit in a previous game, grabbed onto the jersey of Avs forward Steve Moore and then sucker punched-him in the back of the head, and tried to continue to pummel Moore as he laid on the ice with a broken neck. (Had players intervened a second later, Moore might not be alive right now.) Inexcusably, Gary Bettman allowed him to return this year, although he missed only the tail end of the '04 season and the Canucks' glorious 7-game upset playoff defeat. His inclusion in the Olympic Team is even worse. What's particularly bad is that the selection is borderline at best on the merits; in the high-tempo, large ice surface Olympic game younger, better, faster and more disciplined young players like Spezza, Staal and Crosby would be far more useful. And there's also some serious nepotism going on here with Canada's 3-man management team: Hockey Canada's Steve Tambellini is a longtime Canucks executive, and the other marginal picks (Ryan Smyth, Shane Doan, and Kris Draper) have some connection to Gretzky, Lowe, or both. But to have Bertuzzi represent Team Canada would be indefensible even if he actually deserved to be selected.

Hopefully they will be overruled by the Olympic Committee. If not, there's always the women's team to cheer for unequivocally...

NR--Fifteenth Amendment: Views Differ

Brad DeLong notes that the National Review now has an online archive, which is going to do some serious damage to the "conservatives have always been liberals" narrative favored by the National Review as well as the Sean Hannitys of the world. (After all, some liberal Republicans thoroughly despised by movement conservatives voted for the Civil Rights Act, so really, it's liberals that opposed civil rights!) I think I may have to shell out 5 bucks for a 4-pack myself--1964 and 1965 should be amusing. Anything else I should be looking up?

Kong

I share Matt's impression of King Kong. I enjoyed the film, but it was clearly a mess. Easily 45 minutes should have found its way onto the cutting room floor. People too often seem to think that directors have a perfect vision for their films, one that is somehow more genuine or authentic than that of producers or studio execs. To some extent this is true, but a producer can and should force a director to exercise some discipline.

That said, the story remains compelling, and there are some interesting elements. Jack Black's performance has been treated as an Orson Welles impression, but I felt that Black was playing Peter Jackson. He seemed, to me, to embody Jackson's quest to put Kong back on the big screen, from the clearly laudable elements to the very troubling. The least necessary addition to the story was the inclusion of a friendship between two members of the crew. The relationship took up a lot of time, but was not well fleshed out, and its meaning was unclear. Perhaps most awkward was the discussion of Conrad's Heart of Darkness, which fell completely flat.

This last is somewhat interesting, because I think that a comparison of Kong and Conrad could prove productive. The represent very different interpretations of the collision of the West with the colonial other, both of which are subversive in their own way. However, it's painfully obvious that the flick was not the place to play this conversation out.

Stark Raving Terror

A tale of horror and redemption from the Washington Post:

When Linda Cerniglia went back to school, it took her almost seven years to get through all the prerequisites, the labs, the research. And it took a thief just moments to grab her purse, with the only copy of her master's thesis stored on a tiny jump drive inside.

Hold the snide remarks about not backing up your thesis, and consider the true horror of this. Your thesis is gone. Gone. Gone. All that work, gone. I might have just had a heart attack at that point. Read on...

She designed an experiment, analyzed CT scans, ran statistics, studied research and -- slowly -- began to write her thesis.

"It was so painful," she said. "I would rather go outside and dig a hole all day long than write."

She tried to trick herself into working on it, by going to a coffee shop or finding a sunny picnic table in the park. She could use a computer anywhere, because she had all the research on a jump drive, a tiny, portable memory-storage device about the size of a cigarette lighter.

Heh. How true. I wonder if it would be easier re-writing the thesis, given that you've already broken down the mental barriers necessary to put something into words. My guess is no; from my experience of losing posts on Blogger or long e-mails, I can report that I usually just get bitter and angry, sometimes returning to an idea, sometimes not. For a whole thesis, I don't know. It's hard for me to say that I'd bag the whole thing after losing a hundred pages or so, but it would be really, really difficult for me to go on. Anyway...

That night she couldn't sleep, tortured by visions of her lost jump drive. The next morning, Cerniglia began to think about what she would do if she were the thief. Get out of there fast, speed out on the Beltway, then dump the purse.

There was a chance, just a chance.

She was going to retrace his steps, go to every store he hit. She would talk to security guards, check lost-and-found, scour the parking lots.

So that day, she drove to Greenbelt, and as soon as she parked she saw a big trash bin behind a Wendy's, like a beacon. It was perfect. "It was open. It was hidden. I thought, 'That's it -- if it's going to be anywhere, it's going to be there.' "

She started pulling out broken-down boxes. She didn't care about the trash, even if it was greasy slop from a fast-food place. "No cockroach, no rat, no creature from the dark was going to keep me from my jump drive," she said. "Nothing is as bad as the thought of rewriting that thesis."

She saw a flash of aqua cloth. Her heart pounded -- it looked like her workout pants. "Then I see my gym bag. I jumped into the dumpster. I'm throwing things out of the way. I see my driver's license."

And there, at the bottom, was her black leather purse. She unzipped it, reached in, and felt her fingers close around -- her jump drive.

People driving by stared: A 5-foot-4 43-year-old woman jumping up and down in a trash bin, screaming.

The obvious lesson is to back up early and often. All of my relevant files are on my home desktop, my laptop, my work desktop, and in cyberspace. The second lesson is that the proper response to having the only copy of your thesis stolen is not a two week bender, which would have been my solution, but rather a carefully thought out and efficiently executed recovery plan.

Strike Advance

According to the press conference being held now by the mediator, if I understand it correctly, the union leadership in the NYC transit strike will recommend a return to work for later today. This doesn't guarantee an end to the strike, but the affirmative recommendation from leadership makes it likely. Hopefully there will be a fair deal, and Mayor Rich will stop his disgraceful rhetoric.

One more point I think should be made. One of the key conservative talking points about this strike is that it hurts working people the most. This is, of course, correct. A transit strike does indeed hurt poor people the most (although in NYC the pain is far more broadly felt than in any other American city; I work in a middle-class profession, and not a single one of my colleagues commutes by car.) But it's also neither here not there; to blame the union for these effects is just begging the question. The predictable effects of the strike are the responsibility of those who are responsible for the strike, and given their last-minute sabotage of the negotiations I believe the bulk of the responsibility of the MTA. Moreover, the class effects of a transit strike are true of pretty much every strike; if you can only strike in contexts where there are completely neutral effects, strikes will be rare indeed. If grocery workers go on strike, wealthy people can better afford to order groceries by delivery, to eat out, to drive to the Whole Foods that isn't on strike. etc. etc. etc. Having money makes life more convenient; it's pretty straightforward. But the class effects of a strike are not an argument against a strike unless you're opposed to it in the first place.

...Greenhouse has the story.

...this is a great point by Atrios:

There's a really weird class resentment going on. White collar workers "know" they deserve more money than blue collar workers. Some blue collar workers, ones in unions and skilled workers, can make decent money. Since a lot of white collar workers actually don't get paid very well, they resent the hell out of the fact that some uneducated lout gets to buy a nicer house than they do. And, thus, we get the out of touch media coverage of the NYC transit strike.

Yep. And in addition, a lot of people seem to ignore the fact that there are other important things about a job aside from the pay. It's true that many journalists (and academics) don't get paid exceptionally well. But it's also true that these jobs are considerably more pleasant than, say, picking dead rats off of subway tracks. People in physically demanding blue collar jobs should be paid well. When you have a job that you actually enjoy doing, that's both a rare privelege and a significant utility beyond your salary. Quit sneering at blue collar workers who have the middle class incomes they deserve.

Fake Conservertarianism Ends In Camps

I think it's worth noting the implications of believing that the President has the inherent authority to trump legal requirements during wartime, and then applying this claim to the unendable "war on terror," whether this manifests itself in indifference to or active support for effectively superconstitutional presidential powers. If this argument is correct, then it's not just the Fourth Amendment that's affected; presumably the president's authority to work within the "war paradigm" transcends other constitutional limits as well. And as we know from WWII, the Supreme Court argued that this included the Fourteenth Amendment as well:

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

[...]

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers -- and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies -- we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this.

You can recognize in Black's reasoning here every element of the arguments used by apologists for the illegal wiretaps. The executive should be accorded great deference; Congressional delegations of authority should be interpreted as broadly as possible; and even explicit constitutional provisions don't really apply to presidential actions in wartime because the war changes the nature of the actions in a fundamental way. Except that there's one difference: the legal arguments in favor of the internment are stronger. The internment at least took place during a clear-cut military conflict of immense scale between nation-states, rather than an operation of inherently indeterminate length against an ever-changing array of stateless organizations that contains elements of both armed conflict and ordinary police action. And Congress actually did grant the relevant authority in the internment case (although, of course, irrelevant to me, since Congress cannot confer on the President the power to violate the Constitution, although a grant of authority can legitimately compel greater deference to the executive on more ambiguous questions.) If you accept the view of Posner, Goldstein et al., then Korematsu was right. And, therefore, the president has the right to strip a class of people of their property and force them to relocate to camps based solely on their race with no individualized suspicion and scant evidence of a genuine military threat, as long as there's a war on. And, as Rob and Katherine point out, since unlike WWII a war on a method has no formal endpoint, this would mark a radical and permanent change in our constitutional structure on extraordinarily shaky grounds.

And, of course, my claim that this chain of reasoning ends logically in justifying Korematsu isn't merely hypothetical, starting of course with Malkin, whose extraordinarily shoddy book was enough to cause Glenn Reynolds to reconsider his purported opposition to the internment. And this logic has--in a sense, to his credit, at least as far as intellectual inetgrity is concerned--been embraced by Posner himself:

This commenter takes issues with a statement that I once made to the effect that I thought the Supreme Court had made the correct decision in the Korematsu case, when it refused to invalidate an army order, approved by President Roosevelt (and by Earl Warren, who at the time was the governor of California), removing persons of Japanese extraction from the west coast in 1942, shortly after Pearl Harbor. In hindsight, it is apparent that the order was erroneous--that the Japanese-Americans did not pose a threat to the nation and that the order was influenced by racism. But the wisdom of hindsight is treacherous. In March of 1942 when the order was issued, just three months after Pearl Harbor, there was not only fear that Japan would attack the continental United States, but also a need to demonstrate resoluteness in a war for which the nation was not prepared.

So let's be clear about what the logic of this Schmittian position is: in wartime, the President can trump the 14th Amendment rights of American citizens, despite extensive evidence of racism and little evidence of military necessity, merely to "demonstrate resoluteness." And we're in a war now, and there's no conceivable way of ending the war. This is where Bush's apologists want to take us. I don't know about you, but I'm not coming along. I prefer to fight to protect constitutional governance from the terrorists rather than capitulating pre-emptively.

Damon to the Yanks

Bleh.

It's too much money, not that it matters to the Yankees. Damon has been a plus defender in centerfield, although there are some signs of decline. Offensively, he was worse in 2005 than 2004, but he's been kind of up and down over the course of his career, and I wouldn't be stunned to see him pull together some good years at the plate with the Yankees. There's no question that Damon is significantly better than the mess that was Bernie Williams and Bubba Crosby.

My thinking is that it makes the Yankees better for two years, then becomes a problem. Given that the Yankees have a LOT of aging players, it's not too bad of an idea to try to win right now.

Erasing History

Eric Muller has an interesting finding with respect to Concerned Alumni for Princeton, the group whose concern was that women and minorities would ruin campus life and make it harder for unqualified legacies to be admitted. Ultra-reactionary judge Sam Alito, as most of you know, was still expressing pride in his membership in this racist and sexist organization in 1985. Muller was interested to see a 1984 article in KKKCAP's newsletter, which drew national attention by revealing a Princeton freshman woman's name and discussing her sexual history. I suppose what happened isn't surprising:

I thought it'd be interesting to see what the offending article actually said, so I asked someone at Princeton to track down the magazine in the campus library and send me a copy. It turned out there was a long wait for this obscure publication; not only was it already checked out, but another patron was in the request line ahead of my researcher.

My researcher finally got his hands on the issue yesterday.

The article in question has been cut out.

(Also razored out, incidentally, is an article entitled "Sexuality at Old Nassau" in the March 1975 issue of CAP's magazine.)

Seems like the right punchline for a story involving Strip Search Sammy and our Royal President.

Endless War

The warrantless wiretap issue has grown too complex for me to comment substantively on, but a few points in this Jeff Goldstein post leapt out at me.

The first is Goldstein's advice to the Democratic Party. Channeling Bull Moose, he asserts that questioning executive power is a bad strategic move

The Dems are putting themselves in a position just now to argue that what will no doubt be seen as legal technicalities—and those points are in dispute, even!—should have prevented him from taking steps necessary to protect the homeland, steps that DID in fact protect us. And by extension, they will be arguing that as a group they would have worried more about a contentious legal battle over a now unworkable statute (getting warrants on automated phone chains—which it is not clear were even legally necessary, provided the AG gave notice—would have been impossible) than they would have about taking bold actions to protect the country, knowing that we are indeed at war.

I’ve said it before, but it bears repeating here: just because some Dem elites don’t believe we are actually “at war”—preferring instead to think of terrorism as essentially a law enforcement problem that can be well-handled within the purview of the criminal justice system—that doesn’t mean we are not, in fact, at war.² Otherwise, their authorization of the use of force against al Qaeda could be seen as cynical at best and disengenuous at worst.

First, even if such criticism were unpopular, it would be necessary; the role of an opposition party in a democracy IS to question the activities of the executive, especially when that executive seems to be pressing against (let alone leaping over), its legal boundaries. Second, and more important, I get the sense that Goldstein is whistling past the graveyard. A fair number of conservatives, all with more integrity than he, seem to have been very troubled by the creeping power of the executive. Goldstein (and Wittman's) response to genuine concern on the part of the opposition seems to be a squeaky "You'll be sorry!" without resort to any analysis of (and, really, having little interest in) the actual political situation. The long and short of it is that Goldstein can save his advice for someone who cares. The Democratic Party would be ill-served to take advice from those who would be delighted by its destruction.

Second, I hope that Goldstein and others understand that when they derive extended executive power from the authorization of force against Al Qaeda (and I cannot comment substantively on whether that is a legitimate interpretation), they quite literally (and I mean this in the intended sense) are endorsing increased executive power forever. The war against Al Qaeda cannot be won, such that there will be a surrender signed on the deck of a battleship (or a UAV) at its completion, bringing hostilities to an end. To launch a war against Al Qaeda and terror more genuinely, then treat it as an actual war rather than as a military/police action, is to create a permanent set of hostilities. To then go so far as saying that this state of hostilities justifies additional executive power is a two-step; Goldstein ought to just go ahead and endorse the expansion of the purview of the executive, because what Congress, the courts, and the people give up to it now ain't never coming back.

Third, and given that I come to this as an observer with no legal experience, this would concern me if I wanted to agree with Goldstein:

On several fronts, then, the legal question is murky (and the paradigm you choose will affect the degree of murkiness you see)—but there should be no doubt that, wherever you come down on that front, simply that there is a compelling legal argument to be made on the President’s behalf

Citing the fact that there is an argument to be made, rather than making and endorsing the argument, seems to me to be a sign of weakness. In his post, Goldstein does much more of the former than the latter. I would prefer to hear, were I a Bush administration supporter, that the argument was actually more compelling than the arguments on the other side. That Goldstein liberally dribbles his post with suggestions that the activities would be cool even if they weren't legal would make me even more uncomfortable if I wanted to believe my President wasn't breaking the law.

The Strike

Like Roy, I had an uneventful day today, but I will be venturing into Manhattan tomorrow, and will also have to go in Friday because my parents are in town. I'm putting the over/under on walking to the Upper East Side from Astoria at 70 minutes...

On the political issue, the latest revelations about the strike make it clear that the union is right. Just as they were about to reach a deal, the MTA decided to ask for a huge increase in pension contributions from new workers:

On the final day of intense negotiations, the Metropolitan Transportation Authority, it turns out, greatly altered what it had called its final offer, to address many of the objections of the transit workers' union. The authority improved its earlier wage proposals, dropped its demand for concessions on health benefits and stopped calling for an increase in the retirement age, to 62 from 55.

But then, just hours before the strike deadline, the authority's chairman, Peter S. Kalikow, put forward a surprise demand that stunned the union. Seeking to rein in the authority's soaring pension costs, he asked that all new transit workers contribute 6 percent of their wages toward their pensions, up from the 2 percent that current workers pay. The union balked, and then shut down the nation's largest transit system for the first time in a quarter-century.

Yet for all the rage and bluster that followed, this war was declared over a pension proposal that would have saved the transit authority less than $20 million over the next three years.
[...]

Robert Linn, a former New York City labor commissioner, questioned the transportation authority's decision - with the backing of the mayor and governor - to go to the mat over pensions with a union that can exact huge pain on the city in a year when the authority was enjoying a $1 billion surplus.

"They might have picked a union that was more willing to consider the subject," Mr. Linn said. "It not just the considerable economic power of this union, it's also the timing," just before Christmas. "It's tremendously problematic."

Appalling--the union had no choice, and it's just unconscionable that the government would force this strike at this time. Julia also makes the very important point that Bloomberg and Pataki wanted the MTA--which is now willing to force a strike over $120 million--to sell a billion-dollar plus piece of property for a fraction of the market value to build a stadium New Yorkers didn't want. I would add as well that the MTA has been forced to take on debt because the state government has forced the MTA to borrow rather than receiving the subsidies that suburban road-building seems always to be able to get, and the MTA (stuffed with Pataki's lickspittles) hasn't done anything about it.

And, of course none of this is surprising. Pataki is serving upstate and wealthy interests--that's what he was elected to do--and Bloomberg is his poodle. Here's an idea: maybe the New York Times should stop endorsing Republicans for state and local offices. They don't represent the city's interests. (Not, of course, that they've learned anything. There seems to be a WSJ-sized disconnect between the editorial and news pages, as the paper is continuing to back its anti-urban, anti-mass transit Republican buddies.)

More from Lindsay and Steve.

The Smell Of Burning Straw

Predictably, Glenn Reynolds jumps on the silly and utterly beside-the-point "but Bill Clinton did it!" bandwagon with both feet, while equally predictably being dishonest enough to conflate the crucial difference between Clinton's rhetoric and Bush's policies. He's as constant as the tides; you have to give him that.

The other notable thing about the post, however, is that he uses the word "Bushitler" twice, arguing that "this is the line that's being pushed" while not offering, of course, a link to a single Bush critic using the term. This is another classic wingnut strategy, which I'm sure you've noticed before. For example, if you see the word "womyn" being used in an argument and the Reagan administration has ended, it's safe to say that you're dealing with a reactionary anti-feminist. Similarly, if you see the words "Bushitler" or "Chimpy McHitlerburton" 9 times out of 10 it's being used by a reactionary administration hack, and the phrase is inserted where a substantive argument would more usefully belong. You're most likely to see the term, of course, whenever someone like Reynolds might otherwise have to confront a conflict between his nominal commitment to civil liberties and his very real commitment to the big-government conservatism of the modern Republican Party. Yes, yes, we get it--Bush is, in fact, much better than the worst dictators in history. Not all forms of government illegality are equally odious, and genocide is indeed orders of magnitude worse than illegal wiretaps. Can't argue with that. If that's the standard you have to use, it makes your support of him despite your alleged non-partisan libertarianism even more pathetic than it already is.

...although, admittedly, he's not afraid to make substantive arguments if it's about expressing sneering contempt for working people and people who live in cities, or his fondness for union-busting.

Campaign costs

Here's a question: at what level of popularity does a Governor or Senator not need to bother to run for reelection? Alex Oveis mentions the story of William Proxmire's 1982 campaign, on which he purportedly spent $145.10. An icon by this point, he won with 64% of the vote. In the same post, Alex notes CT Governor Jodi Rell's top aide is under investigation for some possible illegal campaign solicitations. Elsewhere in the blogosphere today I learned that Rell is the nation's most popular governor, with a staggering 77/16 approval/disapproval rating. A scandal seems like the easiest way to bring those numbers closer together. But with those kind of numbers, unless there's a very well known and popular Democrat being groomed for the race, it's hard to see why Rell is bothering much at all with fundraising, let alone legally questionable fundraising, especially fundraising that might appear to conflict with her earlier pledge about not taking money from the Republican Party. I'm not suggesting many incumbents could get away with a non-campaign, but those with the political icon-status and/or approval ratings above 70% seem like they certainly might be able to. Have political campaigns changed so much since 1982 that Proxmire's approach is untenable in all statewide races? Wouldn't it be more beneficial for Rell to have that campaign money go to state house races?

Tu Quoque: The Inevitable Clenis Edition

The latest straw being grasped at by those who seek to defend the legality of the illegal will be one of the most pathetic moves in the wingnut playbook: "Bill Clinton did it too!" This seems barely worth taking the time to refute, but two quick points:

• Any non-hack will note, first of all, that whatever Clinton said he didn't actually enact a wiretapping policy that conflicted with FISA. The distinction between action and words is rather crucial.
  
• More importantly, who the hell cares? If Clinton actually said that he had the inherent authority to order warrantless searches, then he was wrong. Again, Bush's actions aren't any more legal just because some other President said so. It won't be surprising to see this argument trotted out by unprincipled conservatives and fake libertarians, because they're projecting: since they care more about partisan politics than civil liberties, they assume that Bush's critics do too. Well, speak for yourself.

More on Gloseclose and Milyo

I had no idea this study has had such a long life in the blogosphere. The Continental Op, after following up on my post yesterday, read the paper (Prof. Groseclose has posted it on his website, so we can all do that if we're so inclined). He gets to the heart of why NAACP and Heritage mentions are counted and compared as if they are comparable:

To come up with their measure of bias, the authors "count the times that a media outlet cites various think tanks and other policy groups." They note that their "sample includes policy groups that are not usually called think tanks, such as the NAACP, NRA, and Sierra Club." Their universe consists of the 200 groups identified as "Major Think Tanks and Policy Groups" at the web site www.wheretodoresearch.com. However, that web site does not provide any information about the criteria for inclusion in its database. The posted resume of Saguee Saraf, who runs www.wheretodoresearch, notes that he authored an "internal Cato Institute policy paper" entitled "Tearing Down Big Government Brick by Brick", served as a research assistant to Renewing the Dream, a sequel to Newt Gingrich's Contract with America, and was selected 1992 "Man of the Year" by the Cheshire (CT) Republican Town Committee--credentials that hardly mark him as an unbiased resource.

To my surprise, a similar criticism, amongst others, was noted by Geoff Numberg at the Language Log over a year ago. Given that this paper has been been through several permutations and seen many readers up to this point, it strikes me as odd that the current version contains no explanation or justification for the use of this list. Groseclose and Milyo offered a defensive response to Numberg (they take him to task for his unprofessional tone, and then call him a liar a few lines down). The bulk of their response revolves around methodological issues I cheerfully admit are well over my head, and to the extent that it's not over my head, their response seems correct. However, their defense of the list of 200 misses the point--and the problem--by a wide margin:

Nunberg finds fault with our list of think tanks and advocacy groups used to rate media outlets. But even if our sample of think tanks is skewed left or right, this will not bias our results.
.....
When we began our study, Milyo, while searching the internet, found a list of think tanks that seemed to be a good place to start to look for data. This is the list created by Saraf. We have never met Saraf, nor do we know anything about him except what he lists on his web site. Further, when we first downloaded the list, we had not even read any other parts of his web site. In short, we knew nothing about Saraf or how his list was created. We chose the list simply because (i) it listed many think tanks, (ii) it seemed to include all the major ones, and (iii) it seemed to include a healthy balance of far-right, right-leaning moderate, moderate, left-leaning moderate, and far-left think tanks.

I'll accept the claim that the methodology they use neutralizes any problems with right-wing shift in the list. I'm not entirely comfortable with this, but I don't have the methodological chops to engage on this point. I'll further stipulate that it doesn't matter whether Saraf is a right-winger or not. The problem is that Saraf composed this list for entirely different purposes than Groseclose and Milyo use it. The problem is one of comparing apples and oranges. Think tanks and issue advocacy groups are cited for very different reasons in the media. Think tanks, in mainstream media stories, are almost always cited as authorities, whereas advocacy groups are cited at times as authorities, at times as objects of criticism, and at other times as neither, but news in itself. Think tank cites plausibly tell us something about bias in a way that a majority of advocacy group cites wouldn't. Furthermore, if you accept the basic ADA left-right quantitative ranking system (I'm far from certain I do, given radically shifting nature of the political center and the increasingly radicalized and non-convservative nature of the modern Republican party, but I'll assume it has some analytical value for the sake of argument), it makes a certain amount of sense to give think-tanks a number, in a way that it doesn't make sense for groups that advocate for a particular cause. There have been a number of Republican politicians who've been strong allies of the environmental movement over the years, but it doesn't make the Sierra club and more right-wing when they praise them, nor does it make NARAL right-wing to ally with a pro-choice Republican, or the NRA with a strong 2nd amendment Democrat. This is not to say that these groups aren't ideological, but if those ADA numbers are capturing anything, they're capturing a ideological location based on a host of issues, rather than one particular issue.

Of course, simply comparing think tank cites would hardly solve all problems. As everyone who's paying attention knows, some think tanks have a pretty good reputation for honest, serious work, whereas others are notorious propaganda mills. There's no good reason for moderately intelligient journalists to not know this. It might be plausibly argued that stories that cite serious think tanks (left, right or center) are trying to get the story right, while those who cite propaganda mill think tanks as authorities are at best playing the faux objectivity game Jon Stewart has skewered so effectively, and at worst are outright hacks. Treating all think tanks the same isn't going to pick that up.

I haven't finished reading the paper (I will, soon) But I've read enough to have grave concerns about the way they formulate the issue of bias/slant. From page 16-17:

Instead, for every sin of commission, such as those by Glass or Blair, we believe that there are hundreds, and maybe thousands, of sins of omission—cases where a journalist chose facts or stories that only one side of the political spectrum is likely to mention. For instance, in a story printed on March 1, 2002, the New York Times reported that (i) the IRS increased its audit rate on the “working poor” (a phrase that the article defines as any taxpayer who claimed an earned income tax credit); while (ii) the agency decreased its audit rate on taxpayers who earn more than $100,000; and (iii) more than half of all IRS audits involve the working poor. The article also notes that (iv) “The roughly 5 percent of taxpayers who make more than $100,000 … have the greatest opportunities to shortchange the government because they receive most of the nonwage income.”

Most would agree that the article contains only true and accurate statements; however, most would also agree that the statements are more likely to be made by a liberal than a conservative. Indeed, the centrist and right-leaning news outlets by our measure (the Washington Times, Fox News’ Special Report, the Newshour with Jim Lehrer, ABC’s Good Morning America, and CNN’s Newsnight with Aaron Brown) failed to mention any of these facts. Meanwhile, three of the outlets on the left side of our spectrum (CBS Evening News, USA Today, and the [news pages of the] Wall Street Journal) did mention at least one of the facts.

It's accurate and true (and, one might add, rather important) but because conservatives aren't likely to mention it we should consider it bias. There isn't even an effort to show that the reported facts about IRS policy changes omit something important, but they don't.

Obviously, there is a version of what Groseclose and Milyo are suggesting here that's correct--the world is full of facts, and which ones are reported matter a great deal, independent of the accuracy of the reporting. The extensive coverage of the dissapearance of Natalee Holloway says something rather unfortunate about CNN and Fox News, regardless of the accuracy of that coverage. But what we've got here is a shift in the behavior of a major federal agency. The conception of bias here has grown to such an extent that it's hard to imagine what a news outlet could do to avoid it, other than wait and see if the other major news outlets cover it as well. The definition of bias at this point is becoming so broad as to be not particularly helpful. But at any rate, since the authors have posted their paper online, you don't have to trust me, Continental Op, jedmunds, or Jeff Goldstein, which is a good thing because I'm sure our ADA scores would indicate that none of us our trustworthy sources.

Concur in Part, Dissent in Part

A commenter asked me what I thought about Orin Kerr's analysis of the legality of Bush's wiretaps. Kerr is a serious scholar, and I think his argument deserves a fair hearing; I also believe it is wrong, or more accurately wrong insofar as it implies that Bush's actions should be upheld under the Fourth Amendment. To dispense with the easy half first, I of course think Kerr is correct that the warrantless wiretaps are not authorized by FISA. I think he's too generous to this hackish, unserious argument, but since I've written a lot about it and we've ended up in the same place, there's no reason to elaborate. I also agree that the arguments based on the Congressional authorization of force and the President's Article II powers are even more transparently wrong. This brings is to to the final question: is Bush's policy consistent with the Fourth Amendment?

It should be noted that Kerr does not exactly say that the searches should be upheld under the Fourth Amendment, but merely that there are "some pretty decent arguments" that the policy is not unconstitutional. I am not, however, persuaded. Kerr's analysis rests on two precedents. The US v. US District Court--I've already discussed. Again, as Glenn Greenwald has discussed at length, the substantive arguments made by the case repudiate Bush's position. It is true, as Kerr says, that Powell said that the case did not consider cases "involving a foreign power," but 1)I don't think that stateless terrorist groups fall into this exemption, and 2)even if they do, the opinion is merely noncommittal. It doesn't say that such searches are constitutional, merely that the cases may be distinguishable. At best, the exception cited by Kerr means that the precedent can't be cited against Bush; it's not a precedent in favor of his policy.

The second case cited by Kerr is U.S. v. Ramsey. This case upheld a search of mail crossing the border based on "reasonable cause to suspect" rather than the "probable cause" required by the Fourth Amendment. Kerr argued that this case should be directly applied to wireless communications. This is highly problematic, however. As iocaste points out, the fact that the case involved physical objects was crucial to limiting the potential of the policy to violate First and Fourth Amendment rights. As Justice Rehnquist explained the facts:

Two days after this arrest of Bailey and Ward, Inspector George Kallnischkies, a United States customs officer in New York City, without any knowledge of the foregoing events, inspecting a sack of incoming international mail from Thailand, spotted eight envelopes that were bulky and which he believed might contain merchandise. The envelopes, all of which appeared to him to have been typed on the same typewriter, were addressed to four different locations in the Washington, D.C., area. Inspector Kallnischkies, based on the fact that the letters were from Thailand, a known source of narcotics, and were "rather bulky," suspected that the envelopes might contain merchandise or contraband rather than correspondence. He took the letters to an examining area in the post office, and felt one of the letters: It "felt like there was something in there, in the envelope. It was not just plain paper that the envelope is supposed to contain." He weighed one of the envelopes, and found it weighed 42 grams, some three to six times the normal weight of an airmail letter

The fact that snail mail has physical characteristics allows government officials to make distinctions between ordinary correspondence and mail that is likely to contain contraband. T his is not true of phone communications, and as such the precedent isn't directly applicable; the effects of Bush's policy are far broader. There's an additional point to be made here as well. In Ramsey, the executive branch was applying a standard created by Congress. In the current case--as Kerr acknowledges--the executive branch is acting against a policy created by Congress. I'll have a follow-up post about this for people who aren't familiar with it, but when it comes to the question of the deference that should be accorded to the executive in cases of national emergency the President is generally assumed to have the greatest power when acting with Congress, and the least when acting against it. The fact that Congress has not given the President the power to conduct the searches he has conducted should also be part of the consideration when weighing the President's powers against the prohibitions of the Fourth Amendment.

So, with respect to the constitutional argument, we have a policy that contravenes the literal language of the Fourth Amendment, and there isn't a precedent that directly supports the policy. At best, one can argue that the precedents allow an exception to be made in certain national security cases. And this is true enough: no right is absolute, and if there was a truly compelling national security reason, we could choose to create one in this case. Which brings us back to the question: how compelling is the national security justification? And I return to my original answer: it's not remotely compelling enough to justify creating a new exception to the Fourth Amendment. Consider the hypothetical developed by Bill Kristol in attempt to justify the policy:

A U.S. president has just received word that American counterterrorist operatives have captured a senior al Qaeda operative in Pakistan. Among his possessions are a couple of cell phones -- phones that contain several American phone numbers. In the wake of Sept. 11, 2001, what's a president to do?

If the president were taking the advice offered by some politicians and pundits in recent days, he would order the attorney general to go to the Foreign Intelligence Surveillance Court. The attorney general would ask that panel of federal judges for a warrant under the Foreign Intelligence Surveillance Act (FISA) to begin eavesdropping on those telephone numbers, to determine whether any individual associated with those numbers was involved in terrorist activities.

This is, of course, dishonest. What in fact the current law in fact permits him to do is to go ahead with the warrant, and then submit an application within 72 hours. And, again, given the low standards used by the FISA court Kristol's claim that there's a significant likelihood that the calls of numbers discovered on the cell of a known terrorist couldn't be monitored is risible. I am far more concerned that the standards of the FISA courts are too perfunctory; to argue that they're too stringent is an exceptionally implausible assertion with no evidence.

So, I remain where I started. I don't believe in a de minimis standard for interpreting the Fourth Amendment, even when the President claims "national security" justifications. Congress has set up a viable alternate procedure, and has determined that there needs to be safeguards in place, further suggests that the President should not be given unchecked power in this area. And I don't think the government and its supporters have come remotely close to justifying an exception. But I also think that the Fourth Amendment argument is moot, because the President lacks any authority to conduct these searches in the first place.

Establishment Clause Holds

The attempt by the Dover School Board to force their biology teachers to teach religion rather than science has been ruled unconstitutional. It's always nice to see that there are Republican conservatives for whom the law still matters.

...more from PZ.

But If We Define Stateless Terrorists As Foreign Armies, And Wiretaps As Free Cherry Pie Instead Of Searches....

Don't believe me about whether FISA authorizes warrantless wiretaps? Well, you may want to ask our famously libertarian attorney general what he thinks:

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress."

I will concede that questions of what constitutes a civil libertarian have a certain Potter Stewart quality to them. But there are some easy cases. And once you've gotten to the point of being so desperate to cook up whatever half-assed results-oriented interpretation you can get your hands on in order to justify warrantless searches that you're putting forward arguments that Al Gonzales finds too transparently wrong to endorse, you're either not a civil libertarian, or you're a hack. There is no third category, although there may be considerable overlap between the two categories.

Getcher Hot Links!

• Kieran offers a taxonomy of bullshit-libertarian justifications for arbitrary executive power. The take on InstaCrocodileTears is particularly priceless: "Oh, puh-leeze. This is nothing new. It's been going on for years--Americans have no idea how little legal protection they have from arbitrary government surveillance. That's why I became a libertarian. I still fully support the Government'’s right to monitor, lock up, 'render' and torture anyone they declare is an enemy combatant, though. I absolutely still don'’t trust them to run a Social Security Program or redistribute taxes to the poor, obviously."
• Really good post by The Happy Feminist on getting canned. The one good thing about the fact this is the first decent job outside of grad school that I've ever had means that I've never had to go through being fired from a job I wanted to keep. Indeed, my only firing was from a dry cleaning job that I hated (and was probably not ideal for someone with allergies to cat hair in any case.)
• Teresa on The Da Vinci Code.
• MMF finds Rick Santorum adopting the Gregg Easterbrook definiton of "postmodern."
  
• I have to admit I've never been a fan of The West Wing. Lance is, or at least was, and he offers his take on the show in tribute to the late John Spencer.
• Julian Sanchez on Abu Gonzales' innovations in statutory interpretation.
• BMM on Bai. I'm sure that Garance is right he's a good reporter and a nice guy etc., but he's just out of his depth on policy issues. Like Maureen Dowd, except that Dowd at least makes no pretense about caring about policy.

Google Earth vs. New Dehli

I had been wondering about this. In particular, I wanted to get a look at the aircraft carriers currently in the Naval Inactive Ship Maintenance Facility in Bremerton. Sadly, the pictures of NISMF are at extremely low resolution, which is mildly odd given that I doubt Al Qaeda, China, Iran, or Russia could learn all that much from observing rusting supercarriers.

It hadn't occured to me that, while the US government probably could lean on Google in order to protect certain areas, other countries could not. The Indian government is very concerned:

India, whose laws sharply restrict satellite and aerial photography, has been particularly outspoken. "It could severely compromise a country's security," V. S. Ramamurthy, secretary in India's federal Department of Science and Technology, said of Google Earth. And India's surveyor general, Maj. Gen. M. Gopal Rao, said, "They ought to have asked us."

My guess is that Google will agree to depict certain facilities in low res, but not enough to make the Indians happy. Even more problematic, from India's point of view, is that satellite photos are available in lots of other places, often at a higher resolution than Google Earth.

And you know what? The Indians are probably right. Google Earth and similar services may actually make the job of a terrorist or military planner easier. Anything that makes the landscape of an urban area more intelligible also makes it more vulnerable. But I really don't see anything that could be done about it, so it's probably not worth worrying too much.

Liberal Bias

jedmunds at Pandagon comments on some of the apparent oddities in the UCLA study on Media Bias that has been embraced by, amongst others, our friend Jeff Goldstein. This deserves a longer post and a more thorough investigation, which I may or may not get around to at some point. I confess I'm rather skeptical about the basic methodology--inferring ideological positions based on think-tank citation patterns of politicians and media outlets. But even if we go along with that methodological orientation, I want to point to one particular item in the UCLA press release that makes me wonder:

Groseclose and Milyo then directed 21 research assistants — most of them college students — to scour U.S. media coverage of the past 10 years. They tallied the number of times each media outlet referred to think tanks and policy groups, such as the left-leaning NAACP or the right-leaning Heritage Foundation.

To state the obvious, NAACP and Heritage are apples and oranges. The differences between a standard position-paper publishing, fellowship-granting think tank like Heritage, Brookings, etc and an organization like the NAACP can't really be stressed enough. Comparative counts of limited, actual think-tank citations generally show a pronounced tilt toward the right, even if we generously grant Brookings "left" status. Including NAACP would obviously change these findings, but at this point I'm left wondering who else is included. The NRA? AARP? Needless to say, all these groups are focused on a particular set of issues. That generally allies them with one party mor often than another, but it's hardly comparable to think tank citations. Furthermore, what standards are being used to count "referred to"? A negative story about the NAACP could certainly refer to a comment made by an NAACP spokesperson. Actual think-tank citations are generally authoritative or quasi-athoritative in nature, the same simply can't be said for interest groups. Barring a better explanation, this seems like a pretty serious problem. Of course, I'm not a peer reviewer for the Quarterly Journal of Economics.

More on Illegal Wiretaps and Fake Libertarians

Two more excellent posts by Glenn Greenwald on the Bush's Administration's illegal searches. First, he finds Hugh Hewitt citing United States v. United States District Court (1972) on behalf of Bush's position, although the case found that the Fourth Amendment requires judicial approval for domestic wiretapping. Indeed, the Court makes an argument against Bush and his defenders quite powerfully:

These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. [cite omitted] But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.

So, this case is clearly an argument against Bush and the conservertarians. The only way around it is to carry on the fiction that Al Qaeda is the agent of a foreign country--which runs into the obvious problem that it isn't--and even with respect to those cases the opinion is merely noncommittal. So to the extent that this case has relevant content, it cuts against the position of the adminsitration (and Hewitt, although of course this is a distinction without a difference.)

Secondly, he points out that the administration itself isn't claiming that FISA authorizes the wiretap:

For that reason, Condoleezza Rice went on Meet the Press yesterday (h/t Firedoglake) and did not even attempt to argue that the Administration complied with FISA. To the contrary, Rice said that FISA was now obsolete (even though it is still sort of the law) and, based on that view, justified the Administration's violations of FISA. Rice claimed that this warrantless eavesdropping on America citizens was authorized not by FISA, but by so-called unspecified "additional authorities that [the President] has under the Constitution and under other statutes.

So the administration is a less hackish defender of itself than Jeff Goldstein, who continues to defend the government's actions as being authorized under FISA, approvingly quoting an argument that admits that it's going beyond a "literal" reading of the statute and tries to claim that Al Qaeda is the agent of a foreign power, despite the fact that 1)it's clearly not--for what foreign country is Al Qaeda an agent?--and 2)it is impossible to understand why the statute would make the distinction between foreign powers and terrorist groups if it defined foreign powers that broadly. So, amazingly, in a post in which Goldstein is upset about the fact that I questioned his civil libertarian credentials, he continues to put forward a hyper-statist statutory interpretation so implausible that not even the administration itself is trying to sell it! He also addresses the Fourth Amendment argument with a long quote from Hewitt, while ignoring the fact that the case actually repudiates his position.

So needless to say, I stand by my characterization of Goldstein's arguments. His claims to be strongly committed to civil liberties are simply not credible, given that the plain reading of the law would clearly hold Bush's actions illegal under both the Fourth Amendment and FISA, and to hold otherwise requires gymnast-like contortions of the law made by such well-known dispassionate supporters of civil liberties as Hugh "Harriet Miers is a solid B+" Hewitt and Mark "Who are you gonna believe about the government's torture reports, me or someone who's read them?" Levin. He criticizes me for not considering a comment in one of the two long threads, but it's clear that both of the posts in question place considerable weight on the administration's claims of legality, which is why he can't come up from anything from the posts themselves that contradicts my reading. And he continues to think that the Administration's assertions of legality mean something. To be clear, I have no idea whether the administration is acting in "good faith." They may have convinced themselves that their actions are constitutional; I can't know, and I don't care. What matters in a democracy is whether their public legal justifications are convincing. And they certainly aren't.

And, again, it's worth noting here that perhaps you can make an argument that the program is legal if you want to both give FISA an exceptionally implausible (indeed, considering the statute as a whole, nonsensical) reading and to give the Fourth Amendment an extremely narrow reading. But if--like Goldstein--you're doing this, it becomes ludicrous to claim that you're committed to civil liberties. We not dealing with something as ambiguous as, say, the cruel and unusual punishment clause here; in this case, the civil libertarian position is compelled by a straightforward textual reading of the relevant statute and constitutional provision, while Goldstein's hyper-statist position requires leaps and bounds that even the defenders of the arguments admit go well beyond a literal reading. And these readings would obviously greatly expand the arbitrary power of the executive. So whatever you've subjectively convinced yourself, when you try to make these kinds of arguments and then claim that you're a civil libertarian, you're not going to be taken seriously. As Jim Henley noted about another alleged libertarian who can always find a way to justify even the most legally dubious state power when it's George Bush's power in question, Goldstein's succession of posts here consists of "bog-standard Republican authoritarianism, Kaye Grogan but in well-turned prose."

If people who advance such arguments on the basis of the laughably tendentious arguments of utterly in-the-tank Bush hacks like Hugh Hewitt don't take me seriously, I wear it as a badge of honor. Or, to put it another way, Goldstein is advancing a conception of "civil libertarian" that can encompass Michelle "In Defense of Internment" Malkin, Richard Nixon, and John Yoo. The utility of such a definition I leave to the reader.

...Berube has much more:

People who support a clandestine program of warrantless domestic spying are not “conservatives” or “libertarians.” Neither are people who support the creation of a worldwide archipelago of secret torture sites. Neither are people who support the usurpation of the functions of government by the executive branch; who espouse the theory that the executive branch is the final arbiter of the legality of the actions of the executive branch; and who call for the investigation or prosecution of a free press that dares to report on the executive branch’s secret programs of domestic spying and outsourced torture

Those people, my friends, are called the radical right.

Heh-indeedy.

...as Sam notes, the White House has embraced Carl Schmitt's Goldstein's "we took an oath, so how can what we're doing be illegal?" theory.

Tasteful

I'm a big fan of the newly controversial Ang Lee. Although I don't think it's terribly well-regarded, I think The Ice Storm is a great movie. (I actually think I underrated it here; having screened them again recently, I would rank it ahead of Short Cuts and maybe Fargo.) Crouching Tiger you know about--and getting me to tout a martial arts movie is like getting Michael Medved to praise Brokeback Mountain---and The Wedding Banquet is entertaining enough. I even found the civil war thing with Jewel tolerable. (I did avoid The Hulk, though.) Anyway, all of this was true before I opened my Times today and note that he was wearing the gear of the noblest franchise in professional sports:



So clearly, no matter how Brokeback turns out to be, he's the world's greatest living director...

(BTW, a question for my midwestern readers: the Flames' new farm team is the Omaha Ak-Sar-Ben Knights. What's the deal with the "Ak-Sar-Ben"? Is that a suburb of Omaha?)

A Wanker Every Sunday

Matt Bai.

The problem with bad analogies and meaningless catchphrases is that they can conceal the fact--apparently even from the author--that the underlying arguments are just utterly illogical on their face. To the extent that the workforce is becoming more insecure and workers have fewer benefits from their jobs--as the economy makes a transition from the General Motors model to the Wal-Mart model--obviously this makes having secure entitlements more, not less, necessary. To reject this isn't to adapt Democratic principles for the new century; it's simply to disagree with them. This is childishly obvious, which is why (as Josh notes) he doesn't even try to explain the logic of his argument. It's remarkable that the country's most prestigious newspaper has a lead political reporter incapable of grasping the most self-evident political concepts.

And That Goes Double For Lieberman

Shakes notes the latest emerging talking point, which will be to say that the Democrats approved of Bush's illegal searches, so nobody can complain. Like Shakes, I'm pretty dubious about the candor with which the Democratic caucus was briefed. And nor do I think that it would have mattered if they had expressed reservations. The policy was not not a collaboration between the legislative and executive branch's; it's Bush's responsibility, and Bush who is accountable for it.

But having said this, let's be clear about one thing. Would I be shocked to know that some Dems knew about this and didn't have any major problem with? I wouldn't. The Dems' record in standing up for civil liberties is less than stellar. But here's the thing: it doesn't matter. The searches are illegal, full stop. They don't become any more legal if Jay Rockefeller and Joe Lieberman knew about them and thought they were OK. If any Dems didn't have a problem with it, then shame on them, but it's not an argument in favor of the legality of Bush's actions.

In related news, Russ Feingold's presidential bid is looking better and better to me all the time.

"Just A Goddamned Piece of Paper"

Billmon on why the "Trust him! He's the President!" approach to evaluating the constitutionality of government actions now favored by conservertarians may be suboptimal.

The Schmittian Libertarians

It is, of course, not surprising to see the bullshit-libertarian blogosphere taking a dive for Bush's illegal searches (although some principled conservatives and actual libertarians are clear about what's going on.) The ultimate example has to be Jeff Goldstein, who argues that the warrantless searches must not have violated the law because...Condi Rice and George Bush said so. Well, I'm convinced! (This is a unique theory of legal interpretation: if Republican political officials say that their actions are constitutional, the inquiry is over.) Particularly remarkable is his outrage over the fact that the President's warrantless searches continue to be criticized "even as the President stands firm and defends the practice." Yes, what is this country coming to where people will disagree with the President even when he asserts that he's right? You'd think we lived in a liberal democracy or something. (The word "lickspittle" seems grossly inadequate.) But, anyway, the fact that alleged libertarians who are enthusiastic supporters of Sam Alito despite their (less than nominal) support of abortion rights and civil liberties are rolling over again isn't exactly news, but a couple points should be emphasized.

The first is that the legal question here is unambiguous. Several conservative hacks have tried to use a distortion of FISA to argue otherwise, but the statute clearly forbids what Bush has openly admitted to having done. And then, of course, there's the Fourth Amendment, which is also clearly violated by these warrantless searches. King of the fake libertarians Glenn Reynolds tries to dance around the latter question, with distinctly unpersuasive results:

The wiretapping is not so clear: Most people fail to appreciate how limited their protection against government surveillance is, both under statutes and under constitutional law. And that's doubly so where international communications are concerned. (And, except for the small possibility of a constitutional-tort action, the main remedy for unconstitutional surveillance can be found in the exclusionary rule, which only comes into play if someone is prosecuted and the government tries to introduce the surveillance into evidence -- meaning that, as with the exclusionary rule in general, the remedy is worthless if you're never charged with anything, say because you're innocent.)

Indeed, our Fourth Amendment protections are less than they should be (partly because people like the Reynolds-approved Alito keep getting appointed to the federal courts by the Republican Presidents and Senators he supports), but they certainly aren't so limited as to permit a systematic policy of warrantless searches ordered by the executive, and Reynolds carefully avoids saying that they are. Instead, he goes into a whole bunch of diversionary rambling about the exclusionary rule, all of which is beside the point. Again, yes, as everyone knows one problem with the exclusionary rule is that it provides a much more effective remedy to the guilty than to the innocent, and most people won't bother to file a civil claim when their Fourth Amendment rights are violated. But the question of whether there is an effective remedy is separate from the question of whether there was a constitutional violation. The violation doesn't suddenly vanish just because the innocent people whose rights were violated (most of whom, in this case, would seem to have no way of knowing that their rights were violated) don't sue. So Reynolds' only specific argument here is a non-sequitur. And unless one endorses John Yoo's Schmittian tautologies, there's simply no question that this policy violated the Fourth Amendment as well as FISA. And this is why, rather than explaining how , specifically, these warrantless searches could be constitutional in the face of the clear commands of the Fourth Amendment, Goldstein just babbles about his well-worn "Chimpy McHaliburton" strawman rather than making an argument.

The second point that's worth making here is that there is also no remotely credible national security justification for these plainly illegal searches. Is there reason to believe that the communications of terrorists couldn't be effectively monitored via the existing legal framework? Of course not. It's worth highlighting this passage from the original NYT article:

The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant; intelligence officials only have to show probable cause that someone may be "an agent of a foreign power," which includes international terrorist groups, and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say. Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.'s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.

As Josh Marshall points out, "in a quarter century, the FISA Court has rejected four government applications for warrants." And, moreover, the government is permitted to seek retrospective warrants in emergencies. It's obvious that if there is any reason to believe that terrorist communications (as opposed to, say, domestic political opponents) are being monitored obtaining a warrant is about as hard as finding wineries in the Napa Valley. Other than to simply assert his arbitrary wartime power, there's no good reason for this illegal policy.

And this is what's so chilling about Bush's defenders, which is a common feature of wartime violations of civil liberties: their fundamentally authoritarian mindset. Essentially, defending this policy depends on the assumption of a zero-sum game between civil liberties and national security. Defenders of the policy simply assume, without any independent logic, that because this policy violated civil liberties it must, somehow, contribute to protecting national security. But there's simply no reason to believe that it does. Even if you believe that formally illegal measures may be defensible in emergency situations, the national security justifications in this case don't come remotely close to meeting the necessary burden. This policy is simply transparent illegality in the service of nothing but the power aggrandizement of the Bush Administration.

Sunday Battleship Blogging: ARA Rivadavia

The South American dreadnought race of the 1910s began with the Brazilian order of Minas Gerais and Sao Paulo from British yards. Not to be outdone, Argentina and Chile soon ordered battleships of their own. Chile ordered two battleships from British yards, while Argentina decided to go with and American supplier. This turned out to be an excellent choice. At the beginning of World War I, Great Britain seized both Chilean battleships and two Turkish battleships for incorporation into the Royal Navy. A Greek dreadnought, Salamis, under construction in Germany was never completed as the Germans decided to work on their own ships. It is unclear why the Germans did not follow British practice and simply seize the half-complete Salamis, although I suspect that they may have been motivated by a fear of offending Greece. An accident of timing allowed the British to escape what would have been a more troubling dilemma. The battlecruiser Kongo, built in a British yard to Japanese specifications, had been turned over to the Imperial Japanese Navy in late 1913. Kongo was, at the time of her construction, the largest and most powerful capital ship in the world. Although Japan was a British ally, and would eventually join the war against Germany, I suspect it would have been VERY difficult for the British to give her up.

Rivadavia was completed in late 1914, making she and her sister rough contemporaries of the US New York class. The design of Rivadavia was, in some ways, more advanced than that of the New Yorks. Rivadavia had a similar displacement (27000 tons), was powered by steam turbines, and could make almost 23 knots, 2 knots faster than the US ships. However, Rivadavia carried 12 12" guns to New York's 10 14", and had somewhat lighter armor. Rivadavia's armament was arranged in two superfiring turrets each fore and aft and two wing turrets, making she and Moreno the only battleships built in the United States to carry wing turrets. Rivadavia carried a single cage mast forward, making the ARA the only navy besides the USN to operate dreadnoughts with cage masts.

Upon their delivery to the ARA, Rivadavia and Moreno became the most powerful ships in South America. Battleship technology advanced rapidly in the first twenty years of the twentieth century. Whereas Sao Paulo and Minas Gerais had been among the most poweful ships in the world upon their completion in 1910, they were completely outclassed by the Argentine ships in 1915. Rivadavio probably was not the equal of Almirante Latorre, finally delivered to Chile after World War I, but the two Argentine ships made up the most powerful squadron in the area. Rivadavio also seems to have been better taken care of than the Brazilian ships. She received oil fired boilers during a major refit in the 1920s, and remained fairly active in the 1920s and 1930s.

World War II brought some mild tensions to South America. Brazil leaned very heavily toward the Allies, eventually joining the war (and making a significant contribution both on land and at sea) in 1942. Chile and Argentina were less forthcoming, both having significant Axis sympathies. Both Argentina and Chile would eventually declare war on Germany and Japan, but neither lent any meaningful contribution to the Allied cause. Rivadavia embarked on her last long cruise in 1946, visiting a number of South American ports before being placed in reserve. By 1952 Rivadavia was disarmed, and was struck from the ARA List in 1957. Had the ARA maintained Rivadavia for just another 25 years, she would have had the opportunity to be sunk by the Royal Navy in the Falklands War...

Trivia (Last week's winner was Jackdaw):

What was the last battleship to be destroyed in combat against other battleships?

The Mariners Take an Insurmountable Lead

Ugh.

I like Washburn a little bit more than most stat-heads; three of his last five years have been genuinely good, two have been mediocre. There are reasons to be concerned about his performance last year, regardless of his 3.20 ERA. He's just really, really not the kind of pitcher you want to on the hook for 4 years and $36 million. I mean, when you've gone and spent that, how much more could Millwood cost? Or Clement, who the Red Sox are dying to get rid of?

This is a bad offseason. It will be hard for the Reds to match this; they're already pretty far behind on the Womack/Everett comparison, the Casey trade was actually a GOOD move, and there aren't that many free agents left out there to waste money on.

The Tyranny of Mrs. Clinton

This really gets to the rub:

There's only one way to scare the craven apologists in Category II: remind them of the very real possibility of a Hillary Clinton presidency in 2008 with unlimited powers against perceived terrorists, foreign and domestic. You mean you believed that all of those executive orders magically expire when your anointed security sock-puppet exits the White House as the worst executive ever?

The paranoia that conservatives regularly display regarding the Clinton presidency and the potential second Clinton presidency is astounding. Recall that Bill O'Reilly, for example, believed that the IRS was auditing him at the behest of the Clintons. And who could forget the Clinton murder list? How many of those who have leapt to the defense of the Bush administration on this one would be among the first to assail Hillary Clinton as a tyrant if she tried the same thing?

It's not even that hard to construct a scenario through which these state tools might be used against conservatives. Imagine that an Oklahoma City style attack happens on a larger scale, or that several Oklahoma City style attacks occur in a short period. Then imagine that the President of the NRA says something as stupid as he said the last time a Federal Building was bombed. If I were a paranoid right-winger and a member of several legitimate (and maybe not so legitimate) right wing organizations, I would be very concerned about the ability of the executive to do just about anything it wanted with me.

Clearly, Bush supporters do not lack the imagination to come up with such a scenario. What they lack is the intellectual honesty to accept the consequences of their arguments.

In other news, Glenn Reynolds is a hack. Shorter Glenn:

The fact that elements of GWB's legislative agenda have been defeated demonstrates that he is not a tyrant. Power would be within his grasp, were it not for those weak-minded fools in the Senate. They should be crushed without mercy...

FCS

AG does some nice work on the Army's commitment to FCS, or Future Combat Systems. I remain ambivalent about FCS, much in the same way that I'm ambivalent about DD(X) and the LCS.

FCS promises a lot; dominance anywhere on the combat spectrum is a lot. Whether it can deliver is in more question. There are two things that I find very problematic about it. First, FCS is being sold as a system; all of its constituent elements need to be delivered as a brigade unit. This doesn't suggest a lot of continuity within a unit or a lot of inter-operability between units. If things don't work quite right, or if some of the technologies don't come through, there are problems. Now, this represents to some extent a marketing decision on the part of the Army, as it wants everything. It is likely that many or most of the technologies associated with FCS would find their way into the Army regardless of whether the system as a whole is pursued.

My second issue regards dominance across the combat spectrum. In short, I just don't buy it. I think there are lots of good reasons to think that some of the technologies that increase our capabilities at the high level of the spectrum (extra firepower, centralized command based on information dominance, tight air-ground cooperation) actually REDUCE our capabilities at lower levels on the combat spectrum. In other words, the tactics and the technologies that work really well at killing a lot of people in a short amount of time don't work so well when the task is to make friends and find insurgents.

Now, most worrying about the above report is that the Army is willing to sacrifice (at least) six National Guard brigades in order to save part of the money needed for FCS. For obvious reasons, this sounds like a terrible idea to me. It's a bad idea with legs; bad now, bad for the future. While there are a lot of indications that the Army specifically and the Pentagon more generally are getting serious about counter-insurgency and stability operations, this suggests that they are willing to sacrifice counter-insurgent capability now and in the future for the FCS system. That's a real problem.

Dittosfan is indispensible regarding FCS issues.

Down with Louisville!!!

I am pleased.

The Alito Files

Note the collected Alito posts in the right sidebar, below the ads.

The Fabled Modern Republican Commitment to Civil Rights

So the state of Georgia passed an unconstitutional law forcing people to show an ID card purchased from the state in order to vote. Lest there be any question about the intention of this legislation, the bill's sponsor "told the Justice Department that if black people in her district 'are not paid to vote, they don't go to the polls,' and that if fewer blacks vote as a result of the new law, it is only because it would end such voting fraud." This law was accepted as being consistent with the Voting Rights Act by Bush's hack appointments over the objections of career lawyers at the DOJ.

So what's the next move? Easy: 1)stop even allowing professional, expert lawyers to offer recommendations, and 2)appoint the only one of five lawyers who--unlike the two levels of courts who have reviewed it--thought the Georgia poll tax was legal to (I swear I'm not making this up) the Federal Elections Commission! And the lawyer in question was also a strong advocate of the practice, famous from Florida 2000, of "regular purges" of felons, people who have the same name as felons, people who have vaguely similar names to felons, black people who once received a ticket for jaywalking, etc., from the rolls.

But in 1920, it was conservative Southern Democrats who wanted to disenfranchise African-Americans, which is far more relevant!

Legitimacy!!!

We done went and got us some notice from the Gray Lady. I have a warm fuzzy feeling all over.

I wonder if they noticed that the review in question is not actually about the book in question... In fairness, it does touch on many of the same themes.

Hollywood's Revenue "Problem"

There is the bad "Hollywood's revenue is declining because..." argument, perfected by Michael Medved. The argument is that Hollywood is going broke because actors were too active in the 2004 elections and the movies are too liberal. In addition to being a classic post hoc ergo propter hoc fallacy, it faces an additional problem when you wrote a book in 1993 claiming that Hollywood's box office revenues would collapse because actors are too politically active and the movies are too liberal, and yet before 2005 revenues went up every single year. (This reminds me; this weekend may see the debut of my long-unawaited "Medved v. Bork: can you tell the difference?" quiz.)

Then there's the good argument, which you can see at Shakes' Sis. Her post has a lot of interesting things to say, doesn't try to claim that "Middle America" uniformly shares her politics, and also has a link to her excellent post about the degradation of the filmgoing experience. (I identify with a lot of that, and much of my moviegoing consists of matinees at arthouses; I virtually never see big new releases on Friday or Saturday nights anymore.) Still, I think she errs in simply assuming that Hollywood is suffering financially. As this NYT article points out, Hollywood isn't losing money; the one-year decline in domestic box office revenues is being more than made up for from other sources. As James Surowiecki recently pointed out, it doesn't make any difference to Hollywood whether a couple pays 20 bucks to see a movie in the theater or pays 20 bucks to buy the DVD. So the Medved/Apuzzo/Reynolds thesis lacks correlation, let alone causation. (And, of course, the tendency of such people to project their own political agenda onto the film audience faces additional problems, such as the dismal box office performance of such NRO cause celebres as Cinderella Man (#38 on the box office list as of this writing) and The Great Raid (#125.) And Brokeback Mountain, playing for a week and a half in 3 cities, has already tripled the take of America's Heart and Soul.)

Not that I think, of course, the fact that Hollywood is making more money suggests anything about the political content of films. Since I don't own shares in a Hollywood studio and rarely watch expensive Hollywood product, I could care less whether studios are making money, and trying to derive political points from fluctuations in Hollywood revenue is a game for hacks and idiots. But as far as the alleged crisis in Hollywood's finances, it simply doesn't exist.

Friday Cat Blogging... Flounder and Squeak

In My Universe, Earl Warren was a Democrat...

Check out this fine post from Confederate Yankee on how the Republican Party is now and always has been a friend to the black man. Read especially the comments; they've achieved a level of false-consciousness usually only associated with Derek Jeter fans...

You know with a name like Confederate Yankee it has to be entertaining. I assume that those Confederate battle flags up on his site are all about the heritage...

Hacktacular!

Shorter Assrocket, Michelle Malkin, and Confederate Yankee: The real scandal about the President conducting warrantless searches of American citizens is that someone found out about it.

To state the obvious, this policy should be indefensible to anybody but the most egregious Bush fluffers. The national security justifications are absurd--how hard do you think it is to get a warrant if you have any reason to believe that you're monitoring terrorist activity? Atrios is right, of course, that this represents a classic test for coservertarians; I concede the point of commenter Pithlord that how you define libertarianism is up for debate, but I'm going to say that "boundless, arbitrary executive power" is not compatible with any version. (Nor, of course, is it compatible with any kind of liberal democracy.) But, for me, the consevertarians who enthusiastically support Sam "4th Amendment? What's that?" Alito, or Al "the Magna Carta is a dangerous piece of judicial activism" Gonzales have already failed the test. There's nothing the Bush Administration--who is, after all, getting its advice from John "seems to be actively seeking the Carl Schmitt Memorial "Anything Goes" award" Yoo-- is doing here it hasn't asserted the authority to do, and that many of its appointments to crucial legal positions have always been willing to go along with. This is the nature of the Bush Administration, and this has been apparent to anyone but the most clueless hack for years; this is just one more data point.

...must-read post from Hilzoy.

The Sublime and the Ridiculous

Being both a pretentious wanker and a Montreal chauvinist, I loves me some of the Arcade Fire, although I have occasionally expressed reservations about lyrics that can be pretentious even by my standards. After hearing them mashed up with "My Humps," however, such complaints shall not be expressed again...

...the link is broken because the post seems to have vanished; fellow Typepaders Rox and Lindsay have lost their last 5 days of posts too, so I assume this is a universal problem. So apparently our decision to go with Blogger because 1)it didn't charge anything, and 2)it didn't charge anything has been retrospectively vindicated!

The Virgin-Creep Complex

Amanda and iocaste save me the trouble of pestering people to excerpt yet another WSJ article, as they discuss today's cover story about hymen reconstruction, starting with an especially creepy account of obtaining one as an anniversary gift. One of these days I expect to read the paper and find accounts of women getting circumcisions to prove that they will remain faithful.

This reminds me of a depressing but at least funny teaching anecdote. I was putting together a comparative law syllabus, and a professor told be about a book about female genital mutilation that he had used. The book was good, but during one of the lectures a student raised his hand and asked, "what's a clitoris?" I decided not to use the book--one reason I decided not to teach high school was to obviate any chance that I would have to teach sex ed...

Medvedism With Bad Math

It was only a matter of time before Jason Apuzzo, the Lenny Kravitz of right-wing Stalinist aesthetics, weighed in on Brokeback Mountain. And he doesn't disappoint; as TBogg notes, he innovatively combines the "I'm sure this movie is overpraised because the cowboys are gay, although it's a movie by a major director with good actors and a good screenwriter adapting a first-rate short story and I haven't seen it" theme with the always risible "damned blue-state parasites leeching off hard-working Middle Americans, if only California and New York could be as self-reliant as Alaska or Alabama" bullshit. So while I don't like Apuzzo's chances of getting to direct another movie, he should get a nice golden parachute from Regnery any day now...

Nominate Early, Nominate Often

Nominations for the 2005 Koufax Awards are up--make sure to send in your favorites. Pretty much every blog on the left (as well as, of course, many that aren't) should be nominated in a category or 4, so it won't be hard!

More please!

That's more like it.

Tech Central Journal of Medicine

There was a terrific article by Anna Wilde Mathews in Monday's Wall Street Journal about how an increasing number of medical journal articles are ghostwritten by drug company PR flacks. Of course, the article wasn't online, and WSJ isn't even on the academic L/N we get here, but thanks to an insanely overworked but generous lawyer, I can give you a taste of what the article found:

In 2001, the American Journal of Kidney Diseases published an article that touted the use of synthetic vitamin D. Its author was listed as Alex J. Brown, an associate professor at Washington University in St. Louis.

But recently, that same article was featured as a work sample by a different person: Michael Anello, a free-lance medical writer, who posted a summary of it on his Web site. Mr. Anello says he was hired to write the article by a communications firm working for Abbott Laboratories, which makes a version of the vitamin D product. Dr. Brown agrees he got help in writing but says he redid part of the draft.
It's an example of an open secret in medicine: Many of the articles that appear in scientific journals under the by-lines of prominent academics are actually written by ghostwriters in the pay of drug companies. These seemingly objec-tive articles, which doctors around the world use to guide their care of patients, are often part of a marketing campaign by companies to promote a product or play up the condition it treats.

Now questions about the practice are mounting as medical journals face unprecedented scrutiny of their role as gatekeeper for scientific information. Last week, the New England Journal of Medicine admitted that a 2000 article it published highlighting the advantages of Merck & Co.'s Vioxx painkiller omitted information about heart attacks among patients taking the drug. The journal has said the deletions were made by someone working from a Merck computer. Merck says the heart attacks happened after the study's cutoff date and it did nothing wrong.

[...]

When articles are ghostwritten by someone paid by a company, the big question is whether the article gets slanted. That's what one former free-lance medical writer alleges she was told to do by a company hired by Johnson & Johnson.

Susanna Dodgson, who holds a doctorate in physiology, says she was hired in 2002 by Excerpta Medica, the El-sevier medical-communications firm, to write an article about J&J;'s anemia drug Eprex. A J&J unit had sponsored a study measuring whether Eprex patients could do well taking the drug only once a week. The company was facing competition from a rival drug sold by Amgen Inc. that could be given once a week or less.

Dr. Dodgson says she was given an instruction sheet directing her to emphasize the "main message of the study" -- that 79.3% of people with anemia had done well on a once-a-week Eprex dose. In fact, only 63.2% of patients re-sponded well as defined by the original study protocol, according to a report she was provided. That report said the study's goal "could not be reached." Both the instruction sheet and the report were viewed by The Wall Street Journal. The higher figure Dr. Dodgson was asked to highlight used a broader definition of success and excluded patients who dropped out of the trial or didn't adhere to all its rules.

The instructions noted that some patients on large doses didn't seem to do well with the once-weekly administration but warned that this point "has not been discussed with marketing and is not definitive!"

The Eprex study appeared last year in the journal Clinical Nephrology, highlighting the 79.3% figure without men-tioning the lower one. The article didn't acknowledge Dr. Dodgson or Excerpta Medica. Dr. Dodgson, who now teaches medical writing at the University of the Sciences in Philadelphia, says she didn't like the Eprex assignment "but I had to earn a living."

Defenitely read the whole thing if you have access. Obviously, since scientists have to sign off, the articles may be titled toward drug companies but are less likely to contain actual errors (at least of commission.) On the other hand, the fact that scientists maintain their bylines (often, if I understand correctly, without crediting the ghostwriters) makes it harder to trust any of a journal's articles; at least you know when you see that James Glassman has written something and know how much stock to put in it. I hope the article will help bring some serious scrutiny to the practice...

...UPDATE: more shilling at the Cato Institute (although, to their credit, they at least fired the party involved, while John Lott is still an AEI fellow the last time I checked.) And, surprisingly enough, at Tech Central Station.

Certainty About the Uncertain

Speaking of torture, Jim Henley has a quite brilliant post noting that the most common justifications for the Iraq war collapse for the same reason that the"ticking time bomb" argument justifying torture is abjectly useless:

The features of the dorm bull session ethics symposium are perfect knowledge of the present and the default future and perfect certainty of the results of your actions. If you know A, and B will cause C, then musn't you B?

This is the "ticking bomb" case for torture (as opposed to the esoteric case: payback). It is also, on a moment's reflection, the case for launching the Iraq War - cases, really:

* If you know Iraq plans to use banned weapons against the United States and that toppling Saddam Hussein will prevent that, musn't the United States topple Saddam Hussein?

* If you know that Muslims commit terrorism against the United States because they live in unfree societies and democratizing Iraq by force will lead to Ummah-wide freedom and end terrorism, musn't the United States democratize Iraq by force?

* If you know that Saddam Hussein is a tyrant and that overthrowing his regime will lead to freedom and internal peace, musn't you overthrow his regime?

Spot the assumed certainties in the trains of logic and you can see the bad institutional furniture and soiled carpets on which they were conceived.

The problem both arguments is that if you use the right assumptions about not only the underlying stakes but about the lengths to which one is willing goal to achieve the cited ends, you can justify anything. (And this was the second iteration of the salami-slicing in the pro-war argument: the threat wasn't imminent, but we had to stop Saddam before it became imminent. Once you go there, there's no war that can't be justified.) But the second part is just as problematic as the first, because once the alleged ends are compelling enough, the careful restraints on the means are going to fade, particularly since in practice you don't have control over the people acting:

As Kinsley hints, the real problem is just who gets to do the slicing. If you're Charles Krauthammer presuming to posit official guidelines on torture or Andrew Sullivan hedging on the means to be employed in speculative war, you are gravely misunderstanding the central problem: you won't be deciding. The ones with actual power to put your general principles into practice will be people who have gotten where they are by achieving a certain level of success in a ruthless business: politics. The fine grain of your own conscience is less likely to show in them - itÂ’s not impossible, but circumstance tells against it.

The same hubris that says we can know the outcome of a large application of speculative force (prophylactic, humanitarian war) says we can know the outcome of a much smaller application (torture). Comfort with one will tend toward comfort with the other. If you are pro-war and anti-torture, it has not in your case, and that speaks well of you.

That's right. There's no necessary connection between the pro-war and pro-torture arguments, but it's not surprising that they go together so often. Anyway, terrific, provocative stuff; make sure to click through.

Bad and Worse

Last week, my new NL team traded for Tony Womack. They didn't give up anything of consequence, and the Yankees picked up part of Womack's salary. The downside is that they now have Tony Womack.

This week, my AL team signed Carl Everett. There is no upside.

It's going to be a long year.

UPDATE: Giving it some more thought, I think that the Everett signing is actually worse than the Womack trade. The Mariners have managed to acquire a DH who, next year, is likely to hit like a league average shortstop. Worse, they've pushed their previous DH back into left field, where he's likely to be the worst defensive outfielder in the league. One year, three million would be a bad deal if Everett were paying to play. Add to that the fact that Carl Everett is a thug, and you've got a genuine disaster on your hands. Great work, Bill. At least it looks as if the Reds are only going to use Womack as a utility player.

Last Kaus this Week

I apologize in advance...

Mickey is trying to correct the impression that he just doesn't like homosexuals:

If a gay man, say, goes to see "Wuthering Heights," there is at least one romantic lead of the sex he's interested in! In "Brokeback Mountain," neither of the two romantic leads is of a sex I'm interested in. ... My wild hypothesis is that more people will go see a movie if it features an actor or actress they find attractive! If heterosexual men in heartland America don't flock to see Brokeback Mountain it's not because they're bigoted. It's because they're heterosexual. "Heterosexuals Attracted to Members of the Opposite Sex"--for those cultural critics wondering what a commerical disappointment for this much-heralded movie will Tell Us About America Today, there's your headline. ...

Fascinating.

If I'm reading this right, Mickey thinks that the box office of a film depends on the attractiveness of its stars to the opposite sex. The reason Mickey (and his hypothetical American movie going audience) doesn't want to see Brokeback Mountain isn't because gay sex makes him uncomfortable, but rather because there are no women involved. Mickey, you see, watches movies because he likes to think about having sex with attractive actresses. This explains why he was just as skeptical about the box office chances of, say, Master and Commander (no female characters) as he is about those of Brokeback Mountain. No women, and guys won't want to see it. Or so I assume; I haven't actually checked back into his archives to find out. Also, I invite you to examine the 2005 box office list, and tell me how much the success of these films depended on the attractiveness of their stars to the opposite sex, as opposed to story, setting, acting, writing, directing, and so forth.

I can see why Mickey feels resentful about all this. Damn dirty liberals like Frank Rich are trying to make him feel bad about not wanting to see Brokeback Mountain. Well, they're not actually trying, but Mickey suspects that they might. Sexual preference, you see, is genetic, and Mickey is a confirmed, genetically determined heterosexual, meaning that he can't enjoy a movie in which men have sex with one another. Worse, if Mickey did find the sex scenes...interesting... then he would be forced to ask awkward, uncomfortable questions about himself. Since we are all genetically determined to like either men or women, Mickey might be forced to wonder about which way his genes actually pointed. I can see how that would be difficult for him.

Have no sympathy for Mickey. If he had written that he was reluctant to see Brokeback Mountain because Ang Lee is a hit or miss director, I wouldn't be harassing him. If he were reluctant to see it because films on such topics often take on an Afterschool Special quality, I wouldn't harass him. If he were reluctant to see it because he doesn't care for cowboy romance films, I wouldn't harass him. Mickey has been quite specific, though; he doesn't want to see it because it's a gay film, and thinks it will fail commercially for the same reason. That he may be right about the second doesn't excuse the first.

UPDATE (from Scott): Roger Ailes finds the only film of the last half-century that Kaus could like.

The Johnson Impeachment

There's an interesting discussion taking place about the impeachment of Andrew Johnson on the lawcourts listerv. Sanford Levinson brings up an interesting argument, which is that the general sense that the impeachment was unjustified was heavily influenced by "JFK"'s Profiles in Courage, which basically put forward the standard anti-Reconstruction account of apartheid's apologists. (Another reason why LBJ should be far higher in the progressive pantheon than JFK.)

The close relationship of defenses of Johnson with anti-Reconstruction revisionism further convinces me that Congress was right to impeach him. It was certainly justifiable (if not required) by the Constitution, and the pragmatic considerations could hardly be more compelling, given that he was going beyond the understood role of the Presidency and nullifying the will of Congress in order to gut Reconstruction and protect the interests of the old Confederacy. Some people have argued that the non-conviction was defensible in that Johnson had begun to change after his impeachment, but I'm inclined to say that he should have been convicted. (And there can certainly be no question that this would have been far, far better for the country.) I'm by no means an expert on the subject, though, so I open the floor.

On the Futility of Arguing With Hacks

The Plank has an amusing account of Andrew Sullivan embarrassing Men in Black clown Mark Levin as the latter demands evidence and then goes on to describe the proffered evidence as "looney," which seems to mean "contradicts the unsubstantiated claims of Mark Levin." Having been thoroughly humiliated, Levin calls in the blogosphere's most prominent Bush lickspittle, who repeats an old smear:

In the interest of some clarity, Andrew Sullivan invokes a legal definition of torture, which is progress. But does he think it includes things like fake menstrual blood, and being wrapped in the Israeli flag?

Because he's made much of those things. If he thinks they fall within the legal definition, then he's not very serious. If he doesn't think they fall within the legal definition, then -- given his repeated treatment of those subjects as "torture" -- he's not very serious.

Reynolds backs up his claim that Sullivan has "repeatedly" described being wrapped in the Israeli flag as torture by linking to a particularly odious past piece of Instahackery, which lied about Sullivan's position while engaging in some vicious gay-baiting on the side. To get a reminder about Reynolds' intellectual honesty, let's consider what Sullivan actually wrote:

...after U.S. interrogators have tortured over two dozen detainees to death, after they have wrapped one in an Israeli flag, after they have smeared naked detainees with fake menstrual blood, after they have told one detainee to "Fuck Allah," after they have ordered detainees to pray to Allah in order to kick them from behind in the head, is it completely beyond credibility that they would also have desecrated the Koran?

You'll note that he discussed the menstrual blood and Israeli flag incidents separately from torture, and nowhere describes these incidents as torture. (As for the argument that this is a "repeated" claim, Reynolds provides his usual amount of evidence: none.) The lengths of dishonesty that people like Reynolds and Levin will go to in order to uncritically defend the Bush administration while pretending not to support torture are pathetic, and instructive.

...more on Reynolds' torture apologia at Sadly, No!

Action

As a follow-up to my post about Maye and the blogosphere, Angelica suggests some courses of action. And according to Radley Balko the blog divisions of CBS and the National Journal have picked up the story, which is encouraging.

Counterinsurgency is Hard

Fine post on counter-insurgency from Kingdaddy.

Via AG.

Rhythmic Admirer of the Day

Joe Klein.

Which reminds me, Klein's incomprehensible ramblings about how the fact people were becoming less secure in there jobs made it particularly important to make people even less secure by privatizing social security should have been once of the first nominees for the Lubriderm Awards. I regret the omission.

America Meets America

Duss has a nice post.

Impotent When Independent

Mark Kleiman makes an important, if depressing, point about the appalling case of Corey Maye: despite the widespread, cross-ideological outrage that the case has elicited throughout the blogosphere, he's probably not any closer to being spared than he was a few weeks ago. I don't mean to gainsay the truly terrific work that many bloggers, particularly Radley Balko, have done. But unless some major "mainstream" journalists or political figures pick the case up, I'm not sure what we can do. Dennis the Peasant had related thoughts about the founders of XFL (TM) media and Dan Rather recently:

And that, folks, is the reality of the dismissal of Dan Rather: It wasn'’t about The Power of the Blogosphere (TM). Nor was it about liberal bias in the nation's newsrooms, sloppy reporting by a geriatric hack or a lack of fact checking by an obsessed and deranged producer. It was about corporate profits and corporate politics. It was about how corporate executives go about their business.

I think that's right, and you can say the same thing about Trent Lott. Again, I think Atrios and Josh Marshall deserved all of the plaudits they got. But, on the other hand, it's not as if Lott's ongoing relations with white supremacy only came to light with his retrospective endorsement of the Dixiecrat ticket; anybody who didn't know about them didn't want to know. If Bush wanted Lott as majority leader, he'd still be there. What blogs did is to provide the necessary pretext, and they still needed other media outlets to pick up the story.

And that's what scares me. We're dealing here with perhaps the most reactionary state in the country; even if the case is picked up by some broadcast journalists, I'm not sure what leverage can be exercised over Barbour. Remember too that we're in a country in which the President of the United States just nominated someone who believes that the Fourth Amendment presents no restrictions on the ability of policeman to shoot unarmed pretty thievery suspects in the back of the head (and to the enthusiastic plaudits of most of the conservertarian blogosphere.) It's hard to see the Mississippi electorate rising up in outrage about an African-American shooting a police officer, even in a case this evidently unjust. But I certainly hope that this can get national attention; bloggers need to to whatever they can.

Unclear on the Concept

The battle never ends.

Here's a test. Can you distinguish between these two events?

1. A prominent Congressman shuts down the government because the President makes him use the back door of Air Force One.

2. A prominent Congressman decries the President's handling of the war in part because that President has failed to communicate even with the hawkish elements in the opposing party.

If you think that these are qualitatively different, congratulations. You're smarter than Mickey Kaus. I would advise sending an e-mail to Jacob Weisberg and asking for prominent blog space on the homepage of Slate.com. God knows, we can only be the better for it.

Frivolous

It should be noted that my partial defense of governors who don't grant clemency in cases like Tookie Williams' doesn't seem to apply to Schwarzenegger, who based the decision on a claim that Williams hadn't really reformed. (Via Julia.) I can respect a governor who says "our state has decided that the death penalty will be used in some cases, and a sane adult who senselessly kills four people in cold blood should receive it even if they've changed in prison." I can't respect a governor who claims to see into a condemned prisoner's soul and bases his decisions on that. I've you're going to base your decision on such inherently arbitrary factors, then you really should err on the side of clemency. And I wonder if Williams had been a white accountant if his transformation might have been more convincing to the Predator.

Wolcott wrote yesterday that "No former movie action hero--or Yale cheerleader with enough psychological baggage to sink the African Queen--should be entrusted with the power of life and death over his fellow citizens. These are essentially frivolous, uninformed men playacting blue-suited roles of grave responsibility." He has a point. I don't feel as strongly about the death penalty in the abstract as some opponents do. The state is, after all, organized violence, and even the decision to have people with guns protect citizens and coerce people into jail will inevitably result some people being killed without due process, some of them innocent. The state makes all kinds of decisions that results in the loss of life. If you're talking about the comparative flaws of the American and European legal systems, I think the long sentences for nonviolent drug offenses is a far greater indictment of the American system than maintaining the death penalty. But nothing gets my dudgeon up, and makes my abolitionism more steadfast, than people who don't really take the death penalty seriously. Most applications of the death penalty in this country make it clear how pointless it really is, how arbitrary, how it accomplishes nothing.

See also the Mahablog and TalkLeft.

Williams, Clemency, and the Respect of Persons

John Cole, an anti-death penalty ("I dislike the death penalty because it is irreversible, it is arbitrary, it is seemingly enforced in a haphazard manner, it seems to be more about race and class than guilt, it does not seem to prevent crime, and because I see no need to have a system that could kill one innocent man when we could keep them all imprisoned and avoid that risk") conservative, isn't particularly troubled by the failure of Tookie Williams to be spared the needle. As a liberal death penalty opponent, I am similarly ambivalent, although for slightly different reasons. I think selective clemency is a problematic means of opposing the death penalty.

In my comparative law class this semester, I taught James Whitman's book Harsh Justice, which tries to explain why criminal justice has developed in such a different manner in the U.S. and Europe. He finds the key difference in Blackstone's claim about what he saw as a central accomplishment of English common law:

And it is moreover one of the glories of our English law, that the nature, though not always the quantity or degree, of punishment is ascertained for every offence; and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained, for every subject alike, without respect of persons.

Of course, the phrase "without respect of persons" has a double meaning, one which is arguably a central component of the rule of law and one of which is critical. The irony Whitman notes is that continental systems have "respect of persons" in both respects, treating prisoners with much more dignity, but also sentencing prisoners in a much more individualized and arbitrary fashion than the U.S.. Whitman argues that this is largely the result of Europe's feudal roots; essentially, Europe has tried to "level up" by giving most prisoners the high status treatment that was once the privilege of the ruling class, while the U.S. hasn't had the same impulse; while the U.S. has some high status prisons, it's never been compelled to extend that treatment to all. I don't agree with all aspects of his argument, and of course the differences are relativistic and not absolute, but I think it's a useful way of looking at the difference.

To the extent that Whitman is right, I hope there's not a causal connection, because my own preference would be to marry the Anglo-American style rule of law with the contienental treatment of prisoners and relative disinclination to criminalize non-violent offenses. While of course some discretion is inevitable, and eliminating judicial discretion isn't often a good idea because it just passes the discretion to less accountable prosecutors, I think that for the most part people who commit similar offenses should get similar punishments, and individualized treatment tends to exacerbate racial and class inequities.

Which brings us to the death penalty. One of the things that marks the attempt to rationalize sentencing in the United States is that executive clemency for condemned prisoners has declined drastically, even as executions have become much less common. Generally, governors in the post-1976 era have used clemency only in rare cases where there's some doubt about the justice of the sentence. And, frankly, I think that this is right. While I despise George Bush's unserious attitude about the death penalty, on the narrow issue of whether he should have granted clemency to Karla Faye Tucker, frankly his position is (even if it would have never occurred to him) more defensible than that of conservative death penalty advocates who wanted to pardon her. If we're going to have the death penalty, then we should be willing to execute attractive Christian white women too. I strongly support clemency in cases, like Cory Maye, where the death penalty is clearly unjust even under a state law that authorizes it. But, honestly, I don't find Williams' case, or any case for clemency based on changes a person has made after committing the relevant crime(s), very compelling. These factors are meaningful for parole, but when it comes to the ultimate penalty, it's just too arbitrary. It's good that Williams has changed so much in prison, but I can't justify sparing him while people who committed less brutal crimes will be executed just because they're less articulate.

None of this is to say, of course, that I'm not strongly opposed to the execution of Tookie Williams, for the reasons that Randy (and Thurgood Marshall) state. But if we're uncomfortable about executing him, the lesson should be to oppose the death penalty for everyone, rather than arbitrarily saving a few people based on factors that ultimately have little or nothing to do with fundamental justice. If I were a governor, I would grant Williams clemency, but only as part of a blanket refusal to sign off on any execution.

Which Historic General Are You

Julius Caesar You scored 46 Wisdom, 69 Tactics, 53 Guts, and 50 Ruthlessness!

My test tracked 4 variables How you compared to other people your age and gender: You scored higher than 6% on Unorthodox You scored higher than 45% on Tactics You scored higher than 44% on Guts You scored higher than 56% on Ruthlessness

Link: The Which Historic General Are You Test written by dasnyds on Ok Cupid.

The Best of LGM

Gentle Reader,

If you would take a look below the ads and Donation Box (clickety click!) on our right sidebar, you'll notice a new feature, Best of LGM. Thus far, I have only collected posts relating to Our War Against Mickey Kaus, Sunday Battleship Blogging, and the Goeben. We hope to add some more topics in the next couple weeks, including Roe vs. Wade, China, Friday Cat Blogging, and others. Enjoy!

Tomorrow

Good one today.

Let's Define Our Terms, Gentlemen: Are We Talking About Unconstitutional Gerrymandering, Or...

I'm not sure quite what to make of the Supreme Court granting cert appeal in the Texas gerrymandering case. To provide the background, the Supreme Court in 2004 issued Vieth v. Jubelirer, a fractured opinion about political gerrymandering, and ordered a re-hearing of the Texas case based on the opinion. The Court upheld, by a 5-4 margin, a Pennsylvania gerrymander. Only 4 justices, however, joined Scalia's opinion that constitutional claims based on political gerrymanders were non-justiciable because there was no principled way of determining when a gerrymander went beyond constitutional bounds. While Kennedy agreed that the complaint should be dismissed he filed a concurrence arguing that there may be unusual cases in which gerrymanders were unconstitutional. What's curious is that the Court will generally grant an appeal only if there's a conflict with a lower court or there is the possibility of the law changing, and the lower courts upheld the gerrymander (which would be consistent with the outcome in Vieth.) So what's up? Here are a couple possibilities:

• The optimistic scenario is that the Texas redistricting was so egregious that it's the case that will shock Kennedy's conscience enough to rule a gerrymander unconstitutional. (Indeed, if an unusual mid-decade gerrymander done in collaboration with the national Republican leadership is held to be constitutional, then Kennedy might as well just join Scalia and rule that political gerrymander claims are beyond the jurisdiction of the courts; I'm not sure what could possibly qualify as an unconstitutional gerrymander.) Or, perhaps more plausibly, the 4 dissenters in Vieth may have voted to grant cert hoping that Kennedy could be convinced.

• The pessimistic scenario would be that Kennedy has come to agree with Scalia that it's hopeless, and will finally rule that the claims are non-justiciable (or that the four members of the Vieth plurality believe that they can convince Kennedy.) But it doesn't seem likely that Kennedy has changed his mind that quickly.

So while I don't really have it in me to be optimistic, I have to think there's a non-trivial chance the DeLay gerrymander will be overturned; it's hard to see why the Court would have taken the case just to uphold it, although it could be that the Vieth dissenters have miscalculated or the Court wants to further clarify its position. The final thing to note is that, while Atrios is almost certainly right that Alito would vote to uphold the gerrymander, since O'Connor joined Scalia's opinion in Vieth (as did Rehnquist) it wouldn't affect the current balance of the Court.

...more detailed analysis about the complex bundle of cases SCOTUSblog.

...Althouse suggests that we may be seeing what's behind door #2.

...ReddHedd discusses the civil rights angle.

Sometimes He Just Defies Description

But "wanktastic hackmeister" is a good start:

Guilt-Trip, Incoming! I'm highly skeptical that a movie about gay cowhands, however good, will find a large mainstream audience. I'll go see it, but I don't want to go see it. (Why? Sexual orientation really is in the genes. Sorry.) When the film's national box office fails to live up to its hype and to the record attendance at a few early screenings, prepare to be subjected to a tedious round of guilt-tripping and chin-scratching by Frank Rich and every metropolitan daily entertainment writer who yearns to write about What the Movies Say About America Today. (Wild guess: They say we're still homophobic!) That will be harder to ignore than the movie. ... Maybe if we all go see it, Rich won't write about it! [He'll write about it-ed Good point.] 9:15 P.M.

Mickey may be right about Brokeback Mountain failing to find a large audience, although it's really hard to say. It's the second sentence that really confounds me; how could one's attitude towards the genetic determinacy of homosexuality possibly affect one's desire to see Brokeback Mountain, either positively or negatively? Setting aside the fact that discussion about genetics and homosexuality is hardly finished, I'm just very flummoxed as to how your position on that questions affects your inclination to see Brokeback Mountain any more than it affects, say, your preference for mustard over catsup or your desire to see King Kong.

Honestly, I prefer genuine Medveditism to Kaus' cynical, too clever by half wankery. "Oh, I'll see it in order to prove that I'm not homophobic, but don't forget that it really is a plot by liberal Hollywood to demonstrate that we're all homophobic. By the way, I'm a liberal, so you should take seriously my critiques of all these other dirty liberals." Will I see Brokeback Mountain? I don't know, depends on the reviews. I wasn't really planning on it, but the preview I saw looked pretty solid, and you can do a lot worse than Proulx and McMurtry.

News from the Northern Front

Be sure to read Dave Noon's update on our progress in the War Against Christmas.

Courage.

The Bevilacqua Hit

It looks as if the Bevilacqua kid ("Cause that sugarless motherfucker, it's the last fucking drink you're ever gonna have.") has some actual legal problems:

An actor who once played an aspiring mobster on ''The Sopranos'' faces murder charges along with another man in the death of an off-duty police officer, authorities said Sunday.

Lillo Brancato Jr., 29, was hospitalized in critical condition with gunshot wounds suffered when the officer shot him after catching two men breaking into a home. Brancato's friend Steven Armento, 48, was also shot and in critical condition.

Prosecutors were in the process Sunday of charging Armento with first- and second-degree murder and Brancato with second-degree murder in the death Saturday of Officer Daniel Enchautegui, 28, said Steven Reed, a spokesman for the district attorney's office.

Ah. Life imitating art...

The Susan problem

I read the Narnia Chronicles immediately before I first read The Lord of the Rings. (My mother, who is wise in such matters, suggested that if I liked those books, I really should take a look at these). I loved both at the time, and I don't know if I would have pegged LOTR as a favorite. A few years later, of course, Tolkien's world was still in my mind, and the books were getting a reread; the world of Narnia, on the other hand, was fading fast and was never picked up again. I was rather surprised, when I first heard about the movie and turned my thoughts to Narnia, how little I remembered anything about the books--I'd actually forgotten all about the character of the White Witch.

One particular detail of the Narnia chronicles has always stuck in my head and my craw. Lewis did more to convince me I couldn't be a Christian--at least not his kind of Christian. His treatment of Susan, the older daughter, in the final book, struck me as outrageous and egregiously unfair. I stand by that judgement, and as Timothy Burke points out it's got the unhealthy stench of misogyny to it as well. It's described in a NYT piece today, which contains a delightful tidbit about a Neil Gaiman story:

Then there's the unfortunate business with Susan, the second-oldest of the Pevensies, who near the end of the last volume is denied salvation merely because of her fondness for nylons and lipstick - because she has reached puberty, in other words, and has become sexualized. This passage in particular has set off Pullman and other critics (and has caused the fantasy writer Neil Gaiman to publish a kind of payback scenario, in which Susan has grown up to be a distinguished professor, not unlike Lewis, and in which for good measure Aslan performs earth-shaking oral sex on the witch).

I'm not the world's biggest Gaiman fan, and I'm not sure that sounds like the greatest premise I've ever heard for a short story, but I must say I want to read it, if only as an act of solidarity with Susan. The nature of Susan's exclusion--senseless, trivial, petty and random, punished for her humanity--told me all I needed to know about Lewis' brand of Christianity. A part of the human experience was arbitrarily repackaged as worldliness and condemned for this invented sin, for no discernable reason other than resentment toward her change and growth. Using the fetishization of childhood to excuse a childish cruelty. Perhaps Lewis did me a favor, making it all so clear to this ten year old. Having never bothered to think much more about this, let alone read any commentary on the series, I wasn't aware this was a common criticism. Today, I'm happy to learn I'm not alone in my outrage.

As for the movie? I'm not intentionally avoiding it, and I wouldn't mind seeing it, but there's about a dozen current and upcoming releases that'll have priority in the next month or two. Not likely.

See also The Rage Diaries.

A Pox on Bai

As always, I was intensely irritated by Matt Bai's review of Pierson and Hacker's fine new book. While such events as the failure of Bush's social security initiative do indeed raise serious questions about the limitations of the thesis, and there are certainly other things one can quibble with, Bai for the most part takes the "shape of the world: views differ" approach he virtually always does. Rather than rebutting their voluminous data about shifts in the Republican caucus that do not reflect shifts in public opinion, he basically declares that since it doesn't blame both parties equally it must ipso facto be wrong. I see that the authors themselves have critiqued Bai, which saves me the trouble of detailing the obvious problems with this lazy approach. And some of my disagreements with Bai, such as his argument-from-tradition that the Senate's gross malapportionment must be preferable to a more majoritarian legislature, are just normative. But there is one additional part of the review which should be pointed out:

For all the hype about the so-called religious right, most rural and exurban voters display little ideological zealotry; rather, they seem inclined toward mild conservatism on economics and foreign policy, along with a reverence for individual liberty - a combination which places them firmly in the historical mainstream of American politics.

On foreign policy, I'll buy it, but he doesn't let us in on what the evidence is for the alleged economic conservatism and cultural libertarianism of swing voters; I certainly don't get it out of Hacker and Pierson's data. Rather, this seems to be the ur-pundit's fallacy: the idea that swing voters are conservative economically but socially liberal. This is, of course, as Matt recently noted a better description of media elites like Bai than of swing voters. The latter, from the data I've seen tend to prefer Democratic positions on economic issues but--with the exception of criminalizing abortion--tend to prefer Republican positions on cultural issues. (This is particularly ironic from someone who applauds the equal representation of California and Wyoming in the Senate because it will frustrate "urban elites.") Whatever "reverence for individual liberty" rural voters may express in the abstract, they tend to be (for better or worse) more statist in their economic and cultural positions than both political and media elites.

Creepier than the Derb

Jewelry symbolizing the beautiful moment when a father hands his obsessive control of his daughter's sexuality over to her husband! Which you can get by giving ten grand to Randall Terry! [Shudder. Long, long shower.]

Maye

Let me echo Redbeard and Angelica (among many others) on the Cory Maye case; it seems that this guy is getting railroaded. You don't have to be a Second Amendment purist to believe that someone who shoots an unannounced intruder in the middle of the night in his own home doesn't deserve to die.

Yarr...

Blarg.

"My Humps" has made me a fatter man. I think it's fair to attribute 3-4 pounds to the fact that I can't figure out how to change the radio station in the gym at my apartment complex. If "My Humps" starts playing at the beginning of a workout I can ignore it, but if it starts playing when I'm 23 minutes in on the elliptical, I just can't muster up the gumption to finish. I think I need an Ipod.

Matt Yglesias: Wrong about "My Humps", wrong for America.

The Dream of a 313 Ship Navy

Interesting report from the New York Times on how the Navy is thinking about its procurement future.

I think that Matthew Yglesias evaluation of the DD(X) as a ship that is "cool but useless" is a little bit unfair. The DD(X) has actual mission capabilities beyond combat at sea. The Advanced Gun System is capable of delivering a lot of ordinance to points deep inland in a very short amount of time. As such, it represents a real increase in current naval capabilities. This doesn't mean that we should buy it; the DD(X) is very expensive, and it doesn't look as if the Navy will be able to afford more than a small number (although it's unclear whether the seven destroyers mentioned in the article are the initial buy or the entire production run). But to call it useless is putting the case a little bit too strongly. I'm inclined to think that the Arleigh Burke destroyers have a long, useful life in front of them, but at some point we will have to come up with a replacement. The DD(X) might not be it, but I like the idea of the Navy procuring ships that keep Joint operations in mind, and that you can actually imagine being engaged in the kinds of conflicts that might happen in the next twenty years.

The LCS is the other new ship that the Navy is working on. Whereas the DD(X) is really expensive ($3 billion a ship), the Littoral Combat Ship is relatively inexpensive (about $200 million). LCS is a roughly frigate sized ship that is designed to operate in shallow waters and fulfill a variety of different missions, from amphibious operation support to anti-piracy. Like the DD(X), the LCS design shows that the Navy is at least beginning to think of its missions in a less Mahanian fashion; that is, directed toward ends other than the destruction of an enemy fleet at sea.

Whether the procurement of either the DD(X) or the LCS in any kind of numbers will happen is in serious question. The Navy has been declining in size for quite a while, and Congress is unlikely to be very receptive to calls for a funding increase. See Brad Plumer for a bit more on this. Personally, I am very doubtful that the Navy will ever get a DD(X), but I think the LCS has a much brighter future, if only because the Navy can sell it as a multi-purpose vehicle.

For a very bad analysis of naval procurement, see Ed Morrissey. His post on this topic is a clinic on inept half-thinking on the issue of naval power. For Ed, one "existential threat" is just as good as another; if we needed a huge Navy to prepare to fight the Soviet Union, then we certainly need one for the War on Terrorism. And if we don't, then we need one to prepare to fight China. That the procurement proposed by the Navy doesn't seem particularly geared towards the Chinese threat apparently escaped his notice. His most laughable assertion is this:

In a decade, the Chinese fleet may surpass our Pacific fleet in firepower, a dangerous imbalance not only for us but for our Pacific Rim allies such as Japan and South Korea. That shift in power will signal not just Beijing but other regimes and terrorist bands that the US has lost its primacy on the seas -- and that will exponentially expand our problems.

Quite. The first part is true; if China goes on a crash naval buidling spree, and the US Navy loses six aircraft carriers in a mysterious boating accident, then the PLAN might approach equality with the USN in a decade. Of course, the JMSDF would still be larger than the PLAN, but in the mind of Ed things like that don't matter; despite all actual evidence, Japan will bandwagon with Chinese power rather than balance against it. As for South Korea, it has perhaps escaped Ed's notice that China doesn't need a single fishing boat to threaten Seoul. To his credit, I will allow that it's possible that Al Qaeda pays close attention to the relative naval procurement strategies of the US and China, much in the same way that it's possible flesh eating zombies could crawl from the sea tomorrow and begin attacking US naval assets around the world. This is what happens when a blogger can't bring himself to analytically distinguish between naval power and his own masculinity...

Sunday Battleship Blogging: USS Guam

USS Guam (CB-2) came about through a curious set of circumstances. Early in World War II, the United States received intelligence suggesting that Japan was building a class of 18000 ton heavy cruisers designed to raid deep into the Eastern Pacific. In order to counter this threat, the United States Navy developed plans for a class of ships in between heavy cruisers (ships of roughly 10-12000 tons, carrying 8" guns), and battleships (of which the most recent were 35000 tons, carrying 16" guns). Guam and her sister Alaska ended up with 9 12" guns, a displacement of 27000 tons, and a speed of 32 knots. Oddly enough, the Japanese were neither building nor planning to build any such ships, although they considered the possibility after learning of Alaska and Guam.

The Navy insisted (and still insists) that Alaska and Guam were not battleships, or even battlecruisers, but instead something called a "large cruiser". The naming protocal for Large Cruisers was unclear. Cruisers were named after cities, and battleships after states. The battlecruisers planned in the early 1920s were named after famous battles, such as Lexington and Saratoga. It was decided that these not-quite-battleships-but-more-than-cruisers should be named after US territories. The four members of the class never completed were listed as Hawaii, Samoa, Philippines, and Puerto Rico. The USN may have been reluctant to call Guam a battlecruiser because of the high casualty rate among battlecruisers in World War II.

The contention that Alaska and Guam were not battlecruisers is indefensible. Guam was more than twice the size of the heaviest heavy cruiser ever built, and carried an armament superior to the contemporary Scharnhorst class. Moreover, they were designed for specifically the mission that the first battlecruisers were created for, which was the pursuit and destruction of enemy heavy cruisers. In action, Guam fulfilled precisely the same missions as the other battleships in the fleet, which primarily meant fleet air defense. Had Guam encountered Yamato or another modern battleship, her characterization as a "Large Cruiser" wouldn't have made a damn bit of difference.

The US Navy placed Guam and her sister Alaska in reserve shortly after World War II, along with most of the rest of the battleship fleet. A large number of ships were disposed of in the immediate postwar period, leaving only the Big Five (California, Tennessee, Maryland, West Virginia, and Colorado), the two ships of the North Carolina class, the four of the South Dakota class, the four of the Iowa class, and the two Alaskas. The Navy purged itself of all but the Iowas in 1960. I believe that not retaining Alaska and Guam was a mistake. Their armor and armament were superior to any ships afloat other than the Iowas (and the French Jean Bart). They could perform shore bombardment duties nearly as well as the Iowas, and could be operated at a lower cost and with a smaller crew. They might well have proved an option more palatable than retaining Wisconsin and Iowa on the Navy List until the first DD(X) comes into service.

Trivia: What are the only two dreadnought battleships built in the United States to carry wing turrets?

I'd Suggest Trying Warren Moon Instead

I decided to turn on the 1 o'clock game while I was doing some writing, only to discover that the only game showing was the monumental Jets/Raiders thriller. With my stereo broken, however, the other options are slim so I left it on, and every once in a while glanced over to see the Raiders QB throwing up one feeble wounded duck after another. "Wow, Kerry Collins' arm is really shot!" thinks I. But a more careful listening revealed that the Raiders QB was ex-UW not-really-a-star Marques Tuiasosopo, something that has to make one of my co-bloggers doubly unhappy. (And nor can Jets fans be happy, as this decision may remove them from the Reggie Bush sweepstakes.) The scary thing is, though, that Tuiasosopo isn't even the worst recent Huskie QB to start a game this year; the 49ers had enough contempt for their fans to try to pass off Cody Pickett as an NFL quarterback. I mean, I guess it's always nice to see alumni get nice paydays, but...

Anyway, I think this is a sign that it's time to go out for brunch.

R. I. P.

I think it's easy for people of my generation to underrate him because of his generally dreary feature film career, but Richard Pryor was a genius comedian, one of the very greatest. I've been listening to his collection of comedy recordings--mostly from his peak in the mid-70s--and it's just brilliant stuff, a must-own if you're interested in the genre at all.

The NYT has an extensive obit here.

...nice roundup and tribute from Joe Gandelman. Good stuff from Digby too.

Lawless

Apparently sick of having to have politicial appointees overrule professional lawyers, the Bush administration has decided to just skip the middleman:

The Justice Department has barred staff attorneys from offering recommendations in major Voting Rights Act cases, marking a significant change in the procedures meant to insulate such decisions from politics, congressional aides and current and former employees familiar with the issue said.

Disclosure of the change comes amid growing public criticism of Justice Department decisions to approve Republican-engineered plans in Texas and Georgia that were found to hurt minority voters by career staff attorneys who analyzed the plans. Political appointees overruled staff findings in both cases.

The policy was implemented in the Georgia case, said a Justice employee who, like others interviewed, spoke on condition of anonymity because of fears of retaliation. A staff memo urged rejecting the state's plan to require photo identification at the polls because it would harm black voters.

But under the new policy, the recommendation was stripped out of that document and was not forwarded to higher officials in the Civil Rights Division, several sources familiar with the incident said.

Fortunately, in this case the courts have provided the function the Bush DOJ won't perform: the 11th circuit has unanimously sustained the lower court decision striking down the Georgia poll tax that the Bush DOJ (for obvious reasons) refused to evaluate legally. But every year of Bush appointments make having federal judges who will perform such oversight of the executive branch less likely. Having an executive branch that isn't strongly committed to gutting voting rights starting in 2008 is critical.

Second-Class Civil Rights

Peter Schuck's NYT op-ed starts with a defensible premise, but reaches a conclusion I couldn't disagree with more strongly. It should be said at the outset that I'm inclined to agree that the Solomon Amendment does not violate the First Amendment. Some of the arguments he uses to defend this proposition, however, aren't very convincing. First, as I said before, his description of the SA as "a federal law barring federal funds to universities that deny the military the same access that civilian employers enjoy to recruit students" is problematic, because contrary to the implication that most of the universities in question have some sort of double standard it is the military that wants a special exemption from neutral rules. And his attempt to discern a contradiction between universities' argument in thus case and their arguments in the recent affirmative action cases is pretty feeble question-begging; that case turns on the question of whether the policy is in fact discriminatory, and while one can disagree with their assessment it's not an internal contradiction. Still, I do think he identifies one legitimate internal contradiction, and it's one that for me is decisive:

The universities' position on government threats to cut off financing to enforce public policies is also inconsistent. A quarter century ago, many universities argued that Bob Jones University's tax exempt status and access to federal loans should be revoked because its racial policies violated civil rights law. Now the universities argue that their own funding should not be revoked for violating another federal policy.

I think that's right. But having made that particular case, he goes on to suggest that even of the university's non-discrimination policy is unconstitutional, universities should abandon them. And on that count, I think he's wrong:

Let us assume, which I seriously doubt, that the universities are right that Solomon violates their free speech rights in that it somehow "compels" them to associate themselves with "don't ask, don't tell" - even though they loudly oppose the policy and everyone knows this. A key moral question remains: Should universities like Yale, where I teach, place extra obstacles to military recruitment on campus?

In shielding students from military recruiters, universities disserve both their students and the military whose policies they hope to liberalize. They fail to treat students as mature adults who can weigh the evidence and make their own choices among employers without the universities' thumb on the scales. They supposedly cherish diversity, but then reduce students' exposure to a world view - opposition to gays in the military - that is the law of the land and is preached by some of the great religions to which many of the students subscribe.

Everything he says here about "diversity," of course, is equally applicable to all of the non-discrimination requirements. Presumably Yale's law students are mature enough to make judgments about whether they want to work for an employer that won't hire women or black people, but I somehow doubt that Schuck would take to the pages of the Times to urge law schools to drop those requirements. Schuck's argument here is premised on the assumption that bigotry against gay people is more acceptable than other forms of bigotry, and that's where I get off the bus.

Law schools certainly should do what they can to rid law firms of these irrational prejudices, and to argue that by allowing forms that practice rank discrimination to recruit on campus is to promote "diversity" is simply Orwellian. The federal government is, I think, within its powers to use its spending powers to promote its own values. But on the substantive (as opposed to constitutional) merits, the universities are clearly right, and the federal government clearly wrong.

Friday Cat Blogging. . . Dewey

Reproductive Freedom Roundup

• Like Shakes' Sis and Lindsay, I think this Nancy Goldtsein article is excellent. I definitely agree that abortion politics need to be seen as a part of a broader project of reproductive autonomy, with particular attention made to the needs of women who often lack access to contraception (and good information about it.) Amanda emphasizes the important point Goldstein makes about the origins of the hearings, which represent the classic pro-life argument that women are not really rational moral agents--if they choose to get abortions they must somehow have been coerced or duped, maybe by greedy doctors, because if you want to get rich your surest route is to start up a Planned Parenthood clinic!
  

• See also Shakes on the hapless Dalton Conley. Between its ev-pysch wankery and woe-is-men posturing his apologia is so catastrophically bad it's almost impossible to choose, but my favorite line is his argument that a fetus isn't really part of a woman's body: "This gets us back to the notion that a fetus is part of her body -- an argument that was more sustainable, I would say, before the advent of ultrasound and other technologies that let us 'see' into the womb." Indeed. Similarly, the argument that a woman's bones were part of her body was more sustainable before X-Ray technology allowed us to "see" beneath the skin. And for that matter, you can see a woman's nose and breasts without even an ultrasound, so they must really not be part of a woman's body! I think men should be able to go to court and order women to get nose jobs and silicone implants, because while it would be nice if partners could work things out it's tragically unfair that women alone are allowed to make choices about a woman's body, which is really collective property.

• Rebecca Tushnet points out that her father's contribution to Jack Balkin's new book What Roe Should Have Said is an edited version of William Douglas' excellent concurrence in the companion case Doe v. Bolton. Although I don't think it would have made any difference to the public reception to the case, I've always wished that it had been the lead opinion in Roe. (Via FL.)
  

• In an extremely unsurprising development, alleged "moderate" Arlen Specter is making it clear that he will roll over and play dead for Alito. Good boy!

UPDATE: Jill dissects Conley's illogic and null analogies with considerably more patience than I could manage.

Specious arguments from people who should know better

Henry at CT with an appropos post on the evolving disaster at NYU. The comments thread is illustrative of the quality of argument in defense of the administration (from people--namely David Velleman--from whom I've come to expect a much higher quality of argument from). I wanted to highlight a couple of them, in part because the poverty of the collective defense of the administration ought to be highlighted, and in part because they afford me an opportunity to reflect on why we ought to be pro-labor.

First, one of the laziest, most annoying anti-grad student union tropes is trotted out:

The Houston janitors: now, there are people who are treated as “cheap labor”. They need a union, and—thank goodness—it looks like they’re going to get one. In my view, it is an insult to the Houston janitors, and others like them, for graduate students such as Jacob to fashion themselves as exploited laborers.

I can't imagine Velleman would actually put together a defense of the logic behind this. I'll cheerfully concede that the Houston janitors (mentioned in a previous comment) are more exploited, and have a higher need for a union than NYU TAs. So what? It's not like there is some zero-sum game at work here. If unions were to only unionize the worst off non-union workers around, the labor movement would be thoroughly stunted.

But this comment also reveals a way of thinking about unions, and their role in the workplace, that can't be squared, I don't think, with a pro-labor position. For Velleman, it seems, unions are a last resort self-defense mechanism against the worst kind of workplace exploitation. To my thinking, unions are, or at their best can be, a positive good regardless of the wage level or degree of exploitation of the workers.

I'd also suggest that even if Velleman is right that NYU TAs get a pretty good deal (by the standards of adjuncts or TAs at other universities), there's another reason to support the union. It's not day to day exploitation through low wages or bad working conditions, it's the ability to have a defense mechanism against such things happening. TAs are on the short end of a highly asymetrical power relationship. That's not going to change, but unions are a way of making the power that graduate students exist under less arbitrary. (As I write this, it occurs to me my point here dovetails nicely with the conception of freedom as non-domination and the absense of potential arbitrary power articulated in the recent work of Philip Pettit--that's probably another post).

A smart professor at UW, in the service of expressing his frustration with the administration for not recognizing and dealing with the TA union, made his point this way: "I take undergraduate teaching very seriously, and I work very hard at it, and consequently I work my TAs pretty hard too. But it's also my responsibility to not exploit them, and given the power dynamic involved, I can't rely on them to tell me directly if they're being overworked. With a union, and agreed upon rules that we shaped together rather than a contract we create and make them sign and a formal procedure for them to use, this relationship could really be improved." What this professor recognized--from the strong side of the asymmetric power relationship--is that that such relationships can be enhanced by mutually constructed formal rules and boundaries.

But, of course, Velleman et al don't grant that academia bears a resemblance to any other workplace (apparently, strangely enough, public universities). What relevant facts about academic life at NYU make it sui generis are not stated (either we get the ancient order or academia or we don't, apparently). Why Velleman clings to this is made pretty clear a bit further down, when he actually gets around to discussing the administration's response, which he had been avoiding specific queries about for some time:

I think that the University was right to take away strikers’ eligibility to teach next semester. Undergraduates have already enrolled for next semester’s courses. I assume that they have already been asked, or will soon be asked, to pay at least a first installment on tuition for those courses. The University owes them an assurance that it is not planning to staff those courses—and has made arrangements not to staff them—with instructors who are currently refusing to perform their duties. That’s why cancelling the strikers’ teaching eligiblity for next semester is an appropriate response.

This looks, unsurprisingly, like the way management would might typically defend this sort of union-busting, were the NLRB reactionary enough to actually let them do it (hey, three more years!). Of course, they'd talk about shareholders or consumers rather than students. Remember, the strike is taking place in the wake of a refusal to bargain and an attempt to decertify the union--an attempt to circumvent a mutually agreed upon mechanism to resolve desputes and replacing it with arbitrary power exercises. The logical consequence of this attempt to exercise arbitrary power is the lack of ability to run smoothly. The uncertainty for undergraduates is, of course, the logical consequence of the administration's actions, but it'll be the now-unemployed TAs who suffer for it. This, Professor Velleman, is why they need a union--they are subject to arbitrary power without recourse for contestation.

The Johnnie Walker Wisdom Running Low

Shorter Chris "Guilt-By-Overlapping-Opinion-About-the-Merits-of-the-War" Snitchens: the fact that Ramsey Clark is a crackpot proves that "the antiwar faction has subordinated everything to its hatred of Bush." (An auspicious debut for his "stop the taunting and have a real debate" program...)

Via Busy^3.

Rights Vindicated in Ohio

Many people pointed out that Ohio's gay-bashing constitutional amendment would raise potentially serious constitutional problems because it was so overbroad. In breaking news the Ohio courts have struck down the odious second sentence of the initiative as violating the equal protection clause of the 14th Amendment. The sentence in question reads:

This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

As the court pointed out, this sentence was in clear conflict with Ohio's Domestic Violence Act, which created a separate court that were able to issue protection orders against abusive partners even if the partner was not a spouse. The court found--quite correctly--that this discrimination against unmarried couples failed even the "rational basis" equal protection test, and hence violated the Constitution. So get ready for calls of "judicial activism" against the court, and remember that people making these calls apparently believe that a state can fail to provide unmarried people with fundamental legal protections against private violence it provides to married people as part of a campaign of irrational discrimination against an unpopular minority. And then ask yourself what, exactly, the equal protection clause does prohibit if it allows states to do that. It should be noted, as well, that the opinion is narrowly drawn, saying at the outset that "the court finds that this Judgment Entry should not be construed to express any opinion whatsoever regarding the issue of whether same-sex marriages should be legally recognized in the State of Ohio."

More when I get more info.

Modes of Philistinism

It's nice that my gym's renovations are finally done, but the downside of the snazzy new TV sets is no CD players, so I was stuck watching MSNBC in the noonhour. Five minutes of Michael Medved going on about how John Lennon encouraged someone to smoke pot and he was therefore much worse than McCartney, though, and it was over to the Weather Channel. Roy, however, points us to this, which takes what one might call the "Althouse approach": continuing to evaluate artists politically, but projecting your politics on artists that you like so you can still like them. I dunno, I think I prefer my philistinism in the straight-up Medved variety, which is at least honest.

But, hey, maybe the latter school is onto something. Let's imagine the Althouse-approved "Right-Wing Bob" model applied to the left. Anybody want to start "Feminist Phillip Roth?" "Philo-Semitic T.S. Eliot?" "Agnostic Van Morrison?" "Progressive Humanist Dostoyevsky"? "Liberal Democratic Eisenstein?" "Labourite Evelyn Waugh?" God forbid that art be evaluated in aesthetic terms, or present ideas that challenge your worldview in any way...Sweet Fancy Moses, this kind of argument drives me crazy.

Ex Post Facto Justification

Lest you get the idea that people who were born in Calgary, subsequently moved to Montreal, moved to the States, and blog about hockey are aesthetically dubious male academics, Yglesias notes the new blog from Elisa Cuthbert. (And she's not alone among up-and-coming starlets; apparently Kristen "Veronica Mars" Bell is a diehard Red Wings fan...)

"So bad as to veer toward evil"

Oh, yes.

This is what makes "My Humps" such an inscrutable pop moment. It's not Awesomely Bad; it's Horrifically Bad. The Peas receive no bonus points for a noble missing-of-the-mark or misguided ambition (some of the offended have responded with parody videos and snickering anecdotes about how the group uses Hitler-approved microphones). "My Humps" is a moment that reminds us that categories such as "good" and "bad" still matter. Relativism be damned! There are bad songs that offend our sensibilities but can still be enjoyed, and then there are the songs that are just really bad—transcendentally bad, objectively bad.

Malpractice Myths

Admittedly, I'm partial toward Tom Baker, who led a great seminar I attended at the Law & Society Association grad student workshop, but for reasons Kevin Drum cites I'm very excited to read his new book. Note, too, the solution--the point if these studies is not generally that the tort system is a perfect of even a very good way to deal with the underlying problems, but that the perpetuation of myths by people who have a financial interest in demonizing trial lawyers prevent us from considering alternatives.

The Meadowlands

So, since I hadn't seen a live game in a year and a half, I had a friend in from Philly who said she was up for it and my boys were in town, I decided to head out to bucolic New Joisey and take in the game. As per reputation, it was a very different experience than seeing a game in Calgary or Montreal, starting with the fact that we were able to but tickets in the 14th row on the blueline at the door, and the crowd was thin (maybe 11,000) and pretty quiet. One of the hooks to the game was seeing the top two most recent finalists for the Vezina Trophy (for best goaltender)--Marty Brodeur, the Devil's first-ballot Hall of Famer, and Mikka Kiprusoff, the Flames' young star. Alas, this didn't really come off, as Kipper was rested after an overtime game in Philly the previous night and Brodeur--who had looked to my eye to be slipping a bit despite the award--was terrible. In fairness to the crowd, it was a bit of a strange game; the Devils controlled the first period territorially but got only one goal and not a lot of chances, and the best player in the game, Jarome Iginla, tied it up late, allowing the Flames to escape with an ill-deserved tie. Then, early in the second the Flames quickly scored two more, and then midway through the period after a great pinch by Warriner Iginla got a real clinker past Brodeur, and that was that. The Flames used their first-rate, physcial defense and speedy forwards to put on a defense-through-forechecking clinic, beautiful to watch if you're a student-of-the-game Flames partisan, but I guess it would be rather less so if you're a casual Devils fan. The pockets of Flaming-C jerseys were making more noise by the end of the game. So, anyway, I certainly enjoyed it.

Logistically, 1)New Jersey is, fact, much colder than the city, and 2)despite claims that it's nearly impossible to get there through transit, it was actually easy as pie; 15-minute bus ride to the Port Authority subway.

You've Already Brought Horror into My World

Mr. O'Reilly:

I am not going to let oppressive, totalitarian, anti-Christian forces in this country diminish and denigrate the holiday and the celebration. I am not going to let it happen. I'm gonna use all the power that I have on radio and television to bring horror into the world of people who are trying to do that.

Remember, there are no demagogues on the right.

Can't Union-Busters At Least Make Plausible Claims?

Asad Raza's post about the NYU grad student strike notes that Sexton is using two of the very silliest arguments that come up when "progressive" university administrators and professors make unions-for-thee-but-not-for-me arguments:

But the sticks are many. By email, Sexton threatened students who choose not to scab tomorrow with the removal of both their 'stipends' (pay) and their spring 'teaching eligibility' (jobs)--the disaggregation of the two things being a rhetorical strategy meant to preserve the fiction that the stipends do not represent payment for teaching labor, despite the fact that they are disbursed to graduate teachers in the form of paychecks with taxes and social security withheld. Of course, despite the fictive bureaucratese, firing workers for striking is illegal and generally considered a vile form of strike-breaking. In practice it puts NYU's graduate students in the position of almost all strikers - i.e. without pay.

This one always gets me. Evidently, the idea that the grad students who universities rely on for large percentages of their teaching aren't workers is so transparently idiotic that there's not much you can do to defend it, but you have to like the aribtrary division between "stipends" and "teaching eligibility," as if NYU is really doing students a favor by permitting them to teach. As I've said before, if that's the case, there's an easy solution: keep the "stipends" and end the "teaching eligibility." Since grad students aren't really performing "labor," I'm sure you won't notice the difference!

And then there's this, which some NYU faculty members are latching onto:

But let me offer a counterexample to the view that graduate students are not workers: the fact is, they already are classed as workers at many universities, including all the SUNY schools as well as Rutgers. The only difference is that these universities are public. Is there, then, any significance to the distinction between public and private-university graduate students? I don't believe that a distinction germane to this issue can be made. Certainly the argument that unions erode collegiality and interfere with internal academic affairs can be dispelled by a glance at Rutgers, where graduate students have been unionized since 1972 without incident. It is also very difficult to deny that working conditions at NYU have improved since unionization. In 2000, students in the English department were paid 12,000 dollars for teaching four classes or discussion sections, with no health benefits. Today, compensation for the same workload is 19,000 dollars plus health coverage. Better working conditions make for better teaching; thus the undergraduates are better served by the union as well. Either we should have a union, or Rutgers shouldn't. You make the call.

This is right, of course; the idea that there should be less right to organize at private universities makes absolutely no sense whatsoever. Grad students instructors don't suddenly have different jobs because they work at private schools. And when it's made by professors at private schools, it's even worse for being so self-serving as well as being illogical. It's a companion of the argument noted by Dave, where allegedly pro-labor professors say that they're all in favor of unions...as long as they don't restrict the discretion of employers in any way whatsoever. Needless to say, the distinction between this position and just being anti-labor is one without a difference, unless one is prepared to defend the claim that negotiated restrictions on management discretion are acceptable only when the management isn't you.

In Defense of the First Amendment

In case there was any question, state-funded "faith-based" programs are a terrible idea.

The Lubriderm Awards

My own nominees for this prestigious competition:

• Glenn Reynolds for "Ward Churchill is the 'face of the left!'"
  
• "Ivan Tribble" for "people with lives, different aesthetic preferences, or tattoos need not apply, and I'll just move the goalposts so that we can forget I said that stuff and make some spurious arguments about free speech instead."
• K-Lo, Nat Hentoff, and everyone else who made long-distance diagnoses of Terri Schiavo for truly sick exploitation
  
• Michael Totten for having an imperialist crush on Christopher Hitchens
• Christopher Hitchens for lamenting the lack of civil discourse surrounding the Iraq War, after claiming that there are "people close to the leadership of today's Democratic Party who do not at all hope that the battle goes well in Afghanistan and Iraq."
• Eugene Volokh for "if you use conversion in a sense nobody else uses it, then Teh Gays really are trying to "convert" your kids, which is a major public health concern. But there's no political significance to these posts; I just find my novel insight that people will sometimes try to have sex with people who are attracted to them endlessly fascinating."
• Roger L. Simon for 1)XFL Media (TM) and 2)claiming that as long as you don't actually violate a written contract there's nothing at all problematic about lying and betrayal.
  
• Josh "Tacitus" Trevino for hoping that mentioning where I teach several times embedded in his trademark vacuous pomposity might cause people not to notice that he didn't have a substantive argument. (Bonus: Trevino claiming that Tacitus is a "liberal blog.")
• Jonah Goldberg for "desperately poor people losing their homes is funny!"

Ah, and I fear this only scratches the surface...

...indeed, Rox reminds us about Volokh's celebration of torture, while in the linked comments Digby reminds us of Assorcket's classic "Ghandi and his rabble" post.

Medvedite Music Collecting

It's as bad as you could imagine. See Axis.

My suggestions:

Drive By Truckers, Never Gonna Change
AC/DC, Dirty Deeds Done Dirt Cheap
Derek and the Dominoes, I Looked Away

Exploitation

Matt is, of course, right: the fact that college sports have become a commercial machine from which athletes, and athletes alone, are not permitted to profit, is a scandal. In many ways, I think it's a similar bait-and-switch that's going on with grad student unionization; the university administration is willing to commercialize many aspects of college life, but when it comes to grad students working for the university all of a sudden no trace of economic discourse may penetrate the hallowed groves of academe. (As someone who was part of a grad student union, I can say without equivocation that the difference it makes in terms of advisor-student relationships is absolutely nothing, and arguments to the contrary are embarrassingly specious nonsense.)

But whatever you do, don't mess with the newspapers

In Hitch's world, these things are cool:

Shooting Iraqis.
Torturing Iraqis.
Bombing Iraqis.
Invading Iraqi homes.
Destroying Iraqi property.
Lying about Iraqi weapons.
Incarcerating random Iraqis.
Destroying Iraqis' historical heritage.
Spurring a violent insurgency on Iraqis' soil.

But he is shocked, shocked to find that the US military might pay for stories in Iraqi newspapers. That's really beyond the pale. "This time, someone really does have to be fired." Not for the torture. Not for the bad planning. Not for Abu Ghraib. Not for the WMD fiasco. But for this, he thinks someone needs to be fired.

Fuck off, Hitch. You're not wanted here. Enjoy playing with your new buddies at the Corner.

The Future of the Battleship

Armchair Generalist points us toward this Bob Novak editorial on the future of the Iowa and the Wisconsin, the last two battleships on the Navy list. Although plans are in motion to permanently decommission the last two battleships in the fleet, the Marine Corps still hopes that they will be retained in light of their unique ability to supply indirect artillery fire in hostile littoral areas.

The Navy high command is determined to get rid of the battleships, relying for support on an expensive new destroyer at least 10 years in the future. This is how Washington works. Defense contractors, Pentagon bureaucrats, Congressional staffers and career-minded officers make this decision that may ultimately be paid for by Marine and Army infantrymen.

Marine desire to reactivate the Iowa and Wisconsin runs counter to the DD(X) destroyer of the future. It will not be ready before 2015, costing between $4.7 billion and $7 billion. Keeping the battleships in reserve costs only $250,000 a year, with reactivation estimated at $500 million (taking six months to a year) and full modernization more than $1.5 billion (less than two years).

On the modernized battleships, 18 big (16-inch) guns could fire 460 projectiles in nine minutes and take out hardened targets in North Korea. In contrast, the DD(X) will fire only 70 long-range attack projectiles at $1 million a minute. The new destroyer will rely on conventional 155-millimeter rounds that Marines say cannot reach the shore. Former longtime National Security Council staffer William L. Stearman, now executive director of the U.S. Naval Fire Support Association, told me, "In short, this enormously expensive ship cannot fulfill its primary mission: provide naval surface fire support for the Marine Corps."

As you well know, I'm quite the fan of the battleship, but I'm skeptical of this argument. First, I'm unconvinced that mothballing the ships is an effective solution. Re-activating the ships (and, in the case of Iowa, repairing the damaged B-turret) would take at least six months. It's hard for me to imagine a situation in which we could definitively predict the necessity of shore bombardment more than six months in advance. Thus, while there might be an argument for keeping the ships in active service, I'm unconvinced that they could ever be effectively mobilized in the current strategic setting.

Moreover, the battleships are extremely expensive mechanisms for the delivery of ordinance. I'm not so concerned about their vulnerability to air attack; most modern anti-ship missiles would have little effect on a ship as large and as well protected as the Wisconsin. However, they are quite vulnerable to submarine attack, and given that they need to be within 20 miles of a coastline in order to carry out their mission, they would be easy to find and would make a tempting target.

Finally, I am unconvinced by Novak's argument that the Navy is inherently anti-battleship, and just wants to decommission these ships so that it can purchase the DD(X). The two ships in question are in excess of sixty years old, which is very, very old for a warship. They underwent modernization in the 1980s, but most of their components (including, notably, their gun turrets) remain 1940s era technology. They are impressive platforms, and can carry out missions not originally envisioned, such as the delivery of cruise missiles, but it makes more sense to me to develop newer, cheaper platforms intended to accomplish these missions, rather than to rebuild these ancient ships. For example, it would cost two Littoral Combat Ships apiece simply to reactivate the battleships, and more to modernize and keep them in operation.

So, like AG, I'm inclined to think that the day of the battleship has passed. Nevertheless, I would not consider myself too disappointed if the Marine Corps lobbying was successful, and the two ships were retained. Indeed, if the Navy had demonstrated a bit more foresight in the 1960s, it might have kept the battlecruisers Alaska and Guam, which could have carried out the envisioned operations at a lower cost than the Iowa class battleships.

Outage

That was rather disconcerting; roughly three hours with no blogspot. I feel like I have my left arm back...

Both Ways

Lovely post from Wolcott on intelligent design and the neocon right. Long and utterly unsurprising story short, there's plenty of evidence, usually from their own mouths, that many of the intellectual poobahs of conservative world don't give a rat's ass for God apart from His ability to keep the unwashed masses in line. The story has been told before, but Wolcott and the pieces he links to retell it well. Derb may be one creepy as hell guy, but he does occasionally manage to display a shadow of genuine intellectual integrity. Not often, but he's good when he's good.

However, it seems to me that this misses out on part of the story. There are many genuine evangelicals who are bright people, and who can certainly appreciate the transparent, winking duplicity of Irving Kristol, Robert Bork, and their ilk. Certainly there are strategic reasons for an alliance between the two groups, but you would expect some tension to emerge from the poorly disguised contempt that guys like Kristol hold for actual believers. In short, nobody likes to be a tool. The more I think about it, though, it seems clear that modern conservatism is based on a double betrayal. The intellectuals think that religion is useful for keeping the saps in line, especially as they continue to vote Republican. The evangelicals understand this, but aren't too worried about it. They know, after all, that when the day comes the faithless intellectuals will be headed straight to Hell.

In other words, the Republican party works because everyone can be comfortable with the knowledge that the guy next to him is getting screwed.

This Is "Pro-Life" America

In response to recent attempts to pretend that the Republican Party is like a European Christian Democratic Party, providing care to new mothers to go along with cultural conservatism, Sharon Lerner had a great piece:

With the third-highest teen pregnancy rate in the country, Mississippi's low number of abortions is not an illustration of the "safe, legal and rare" ideal that many talk about, in which a decline in unwanted pregnancies creates a corresponding drop in abortions. Rather, it is the direct consequence of concerted opposition to abortion from the grassroots to all levels of government.

Such concern for the rights of fetuses does not appear to translate into a commitment to promoting the well-being of the children they may become. The uncomfortable irony for an opposition movement purportedly concerned with saving "innocent babies" is that restrictions on abortion are associated with worse outcomes for actual babies. Indeed, children fare terribly in Mississippi. The state with arguably the least access to abortion also has the second-highest rate of child poverty in the country, according to the Children's Defense Fund. Mississippi's infant mortality rate--a good indication of the health of both women and children--is the highest in the country. For every 1,000 live births, 10.5 infants under age 1 die in Mississippi. In parts of the impoverished Delta region, that number ranges up to 18. (The national infant mortality rate, by comparison, is 6.8.) Interestingly, a postelection comparison found that "red" states had higher infant mortality rates than "blue" ones. In general, states that restrict abortion spend far less money per child than prochoice states on services such as foster care, education, welfare and the adoption of children who have physical and mental disabilities, according to a 2000 book by political scientist Jean Reith Schroedel.

Schroedel also found that women in antiabortion states are worse off than their counterparts in prochoice states. They suffer from lower levels of education, higher levels of poverty, and a larger gender gap in earnings. They are also less likely to enjoy mandated insurance coverage for minimum hospital stays after childbirth. Together, the conditions make for an abysmal reality for women in Mississippi, which came in fifty-first in a 2004 ranking of the status of women in the fifty states and Washington, DC, published by the Institute for Women's Policy Research.

But, of course, improving funding for mothers might mean a modest increase in taxes for the upper class, so we can't have that! Wouldn't be "pro-life."

Footnote 10

More evidence about Alito's obvious desire to overturn or gut Roe, and more importantly further evidence (granting that this shouldn't be necessary) that vague, banal claims about stare decisis at his confirmation hearings will mean less than nothing.

NYU

Shorter John Sexton: We don't want graduate student teaching at NYU to exploitative like it is at those public universities. In order to make sure this state of affairs comes to fruition, we'll use reactionary decisions by NLRB Bush appointees to ruin the careers of a generation of young scholars in retaliation for union activities.

Sexton's message to graduate students (reprinted by Jesse Lemisch here, following a nice rejoinder) is deserving of a more thorough fisking than I have time to give it. The jist is quite simple--come back to work without a union today, or lose your job (and, in most cases, the ability to continue with your education) for the next five months. The features of his "amnesty offer" are familiar to those of us who've seen graduate student unionization efforts before. One of my favorites: The creation of a "working group" on graduate student employee issues to replace the union. No instituionalized power, of course, but the administration promises to listen!

Sexton's missive is light actual specific reasons for his decision to use such extraordinary and reactionary measures to bust GSOC. For some further enlightenment, the comments thread in this Jason Stanley post at the Leiter Reports are quite helpful. It seems a few members of the NYU philosophy faculty have chosen (unlike none of their English and History colleagues) to stand behind their administration's reactionary policies. David Velleman:

During the life of the union contract, the union had lodged grievances challenging the alloocation of teaching assignments, which were clearly within the academic purview of the departments involved. It was the union's refusal to limit itself to negotiating compensation and benefits, and its insistence on a closed shop, that precipitated the current strike. Given that the union is determined to interfere in academic decisionmaking, the administration is clearly right to stand its ground.

This sounds like a potentially legitimate concern, but the presentation of the issue here is highly misleading. What Velleman is objecting to is a greivence procedure with an independent arbitor making the final decision. A department might decide to not continue to offer teaching to a student for a host of reasons, some primarily academic and some primarily job performance related; some perfectly legitimate and some deeply illegitimate. How can the union protect it's employees without giving them a change to defend themselves? It's perfectly reasonable and to be expected that employees and the administration might disagree about what constitutes a workplace greivance and what constitutes an academic issue; that's the beauty of an independent arbitrator.

Still, if this process is being abused, that might help explain the administration position. Fellow pro-administration philosopher Paul Bohgossian, later in the thread, provides the horrific details of a greivance procedure run amok:

One of the areas in which our department is weak is in Aesthetics. We certainly have no graduate students who work in that area. So when one of our new hires offered to give a course in that area, we had no qualified graduate student to assign to that course, so we went out, at some expense, to hire a highly qualified young PhD from outside the University to serve as a teaching assistant for that course. The UAW filed a grienvance on the grounds that we were required by the contract to offer it to one of our graduate students. They weren't interested in the fact that we had no student who was actually qualified to assist in the course. The arbitrator threw out the grievance, but not before a number of faculty had wasted hours preparing documents and so forth. The experience also made us realize that it could easily happen that we would one day encounter an arbitrator who understood universities less well than this one did, and that that would permanently affect the University's right to decide who was and who was not qualified to teach or assist in a particular course.

This really is breathtaking logic. On the one hand, we have a greivance procedure that might require someone in the philosophy department to occasionally explain their decisions to someone. And, while the arbitrator offered an administration-friendly decision this time, there's no guarantee they always will in the future!.


There's much, much more to this appalling story. That thread is full of a host of anti-TA union classics, including "Graduate student teaching is part of your professional development, therefore it just can't be a job" and "if you count the tuition waiver as part of your salary, TAs are extraordinarily well paid" and so on.

I'm far from convinced the greivence procedure is the driving issue for the administration (especially given that their attempt to bust the union went hand in hand with a significant benefits reduction. Still, I'll grant that it is the reason Velleman and Boghossian support the administration. Still, it's hard to take Boghossian seriously when he assures us of his "pro-labor" credentials. When on the one hand you're weighing the loss of benefits, unethical and career threatening union-busting tactics, and the democratic right to organize and form a union, and on the other hand, a greivance procedure that's a bit more expansive than you think it should be (which the administration didn't even bother to try to renegotiate), and you come to the conclusion the latter is a greater concern, it's awfully hard to take your "pro-labor" protestations seriously.

Sign the petition.

More from Jessica and Benj.

In PhilitstineLand, The Public Always Agrees With You

Shorter InstaWife: Movies like Fahrenheit 9/11 are just simple, boring propaganda nobody wants to see, which is why the releasing studio took such a bath, earning only $222 million on a $21 million budget. When will those idiots learn that the American public, whose tastes are exactly the same politically reductionist ones as the InstaWife's, want to see conservative-approved stuff like The Great Raid and Cinderella Man? Now that's box office gold!

(Via Roy.)

...FMGuru reminds me of my favorite example, America's Heart and Soul. Touted by NRO and Michael Medved as the anti-F 9/11 that would really represent American values, it pulled in a robust $314 K at the box office...

Low Turnout

Good and bad news for Hugo Chavez:

Venezuela (Reuters) - Parties allied to Venezuela's President Hugo Chavez won 89 percent of votes counted in a preliminary tally of nearly 80 percent of the ballots for the National Assembly, electoral authorities said on Sunday.

The National Electoral Council said turnout was of 25 percent of registered voters. Main opposition parties boycotted the poll, accusing electoral authorities of favoring the populist leader and manipulating electronic voting machines.

25% turnout is not good, especially as it would seem to indicate support for the boycott and, further, concern about the legitimacy of the election.

Yes, I know that Chavez is trying to build "participatory democracy". I just wish that he and his allies would demonstrate more concern for old fashioned constitutional electoral democracy. The two are not necessarily in conflict, and disregard for the latter suggests that the former doesn't hold great promise.

Via Fruits and Votes.

New Republic-Itis

Elton Beard says a lot of what I was going to say about Garance Franke-Ruta's recent article about women who get multiple abortions. But there's a particular type of argument here that crops up a lot, and I think it's worth pointing out why it's wrong. Both The New Republic and the abortion debate produce to a lot of contrarian arguments that don't hold up, and I'm afraid that the combination has also been deadly in this case to Franke-Ruta, whose work is generally terrific. What's frustrating is that many of the points she brings up--the class effects of Roe, the lack of access to and education about contraception among many poor women--desperately need to be made. The key problem is the "pox on both their houses" frame into which Franke-Ruta--in classic TNR fashion--tries to wedge her potentially valuable argument:

Studies suggest that women having repeat abortions as compared with those having first-time abortions are more likely to be minorities, poor, and victims of sexual abuse--in short, among society's most vulnerable. Liberals have always sought to aid the neediest, but their fear of undermining abortion rights has paralyzed them when it comes to helping women at risk of repeat abortion. The sad fact is that, three decades after legalization, abortion is no longer mainly a tool women use to shape their own destinies, but rather a symptom of larger social problems that ought to be addressed by policymakers. Realizing this may just mean accepting that there's some credibility to conservative views on abortion.

Conservatives and liberals alike, she suggests, don't care about the underlying problems that lead to some women getting multiple abortions. One will search the article in vain, however, for a single advocate of reproductive freedom who doesn't support providing education, contraception, and post-operative care to women who get abortions. Indeed, she identifies some who do:

There are some post-abortion services available already in the United States, though the efforts are mostly piecemeal. Atlanta's Feminist Women's Health Center, one of the oldest abortion providers in the country, offers a shot of the long-acting hormonal contraceptive Depo-Provera and post-abortion counseling to all women who obtain procedures there. Planned Parenthood also has begun to offer post-abortion counseling services at some of its clinics, and it has long made sure that all women who leave their standard post-abortion follow-up visit are provided with a form of birth control.

Ah, so in fact some reproductive clinics do provide these services. In an article not trying to make a specious contrarian point, one might perhaps contrast this with the abjectly useless "pregnancy crisis centers" favored by pro-lifers, which provide pro-life propaganda but no contraception, useful education, or pre- or post-natal care. And perhaps we might ask: is it supporters of abortion rights who want to fund the latter rather than the former? Is it liberals who opposed scientifically accurate information about contraception and subsidized education for the poor? Is it a liberal administration that puts scientifically inaccurate information about contraception on government websites, and far from funding Planned Parenthood clinics won't give a dime of government money to clinics that even discuss abortion? Of course not.

And that brings us to the bigger problem--without this unjustifiable (and unsubtantiated) attempt to blame advocates of reproductive freedom for the effects of the policies supported by their opponents, the implausiblity of her central causal argument is immediately manifest. The crucial question is this: would discussing women who get multiple abortion make the worthy policy goals she favors more likely to happen? And the answer, I think, is obviously not; indeed, quite the opposite. I agree it would be really nice if in the contemporary United States such a discussion would lead to a desire to make sure that women who have abortions get good post-surgical care and not to the stigmitization of women who get abortions as sluts whose choices need to be limited by "reasonable" regulations of their rights, but alas this simply isn't the case. Franke-Ruta's arguments--whatever one thinks of them normatively--might be strategically effective in, say, Germany, but in this country they would be highly counterproductive. And this--and not some opposition to better funding for Planned Parenthood clinics--is why advocates for reproductive rights aren't anxious to discuss the issue. They understand the nature of abortion politics in this country.

The argument, in other words, seems to be a classic pundit's fallacy--Franke-Ruta seems uncomfortable with women who get multiple abortions. That's her privilege, although I personally am not going to moralize about the difficult choices made by women in situations I can't imagine being in. But her attempt to claim that her normative position is good politics is, I think, pretty clearly erroneous.

Lindsay has more. Franke-Ruta responds to criticism here.

If You're Going To Be Pretentious, At Least Be Right

I suppose pointing this out at this late date is as futile as complaining when people misuse "begging the question," but apparently Roger Simon's deployment of concepts he doesn't understand doesn't stop with politics:

Are we in the Age of the Actor? For several decades the auteur theory ruled the cinema with the writer-director (Fellini, Truffaut, Scorsese) king.

Ack--this always annoys me. Leaving aside the oddity of calling Scorsese a "writer-director"--his major films have generally been written by other people--this gets "auteur theory" exactly wrong. Auteur theory had no idea how to deal with the Fellini/Bergman-style writer director, because the theory was about rehabilitating the artistic reputation of Hollywood directors who worked for studios and filmed whatever script they were handed. The point of the theory was to focus on the tensions between a director's personality and the material he was working with, in order to demonstrate that even directors generally considered hacks lent a coherent artistic personality to the material. You may think this is of somewhat limited value, and being suspicious of grand theory in all fields, I certainly do. (As Pauline Kael said about one application: "Sarris has noted that in High Sierra (not a very good movie) Raoul Walsh repeated an uninteresting and obvious device that he had earlier used in a worse movie. And for some inexplicable reason, Sarris concludes that he would have not have had this job of discovery without the auteur theory.") But if Simon is right that this is an "age of actors," this would lead to the renewed relevance of the auteur theory, not a move beyond it.

But thank god we have XFL Media (TM); how often can you find third-rate film critics handicapping the Oscar races in the "MSM"? Advantage: Blogosphere!

Chri$tma$

Adam Cohen makes short work of Faux News' campaign for Christmas.

This year's Christmas "defenders" are not just tolerating commercialization - they're insisting on it. They are also rewriting Christmas history on another key point: non-Christians' objection to having the holiday forced on them.

The campaign's leaders insist this is a new phenomenon - a "liberal plot," in Mr. Gibson's words. But as early as 1906, the Committee on Elementary Schools in New York City urged that Christmas hymns be banned from the classroom, after a boycott by more than 20,000 Jewish students. In 1946, the Rabbinical Assembly of America declared that calling on Jewish children to sing Christmas carols was "an infringement on their rights as Americans."

The Christmas that Mr. O'Reilly and his allies are promoting - one closely aligned with retailers, with a smack-down attitude toward nonobservers - fits with their campaign to make America more like a theocracy, with Christian displays on public property and Christian prayer in public schools.

Quite. I tack between thinking that the Gibson and O'Reilly-led campaign for Christmas is the end of conservatism's moment, the lie so absurd that not even the most virulent liberal haters could buy into, and worrying that even this might not be too far, and that too many people are willing to believe that there is some over-arching secular humanist conspiracy to destroy Christmas. The answer is probably somewhere in between. In any case, the Gibson/O'Reilly crusade demonstrates beyond doubt how little the doctrines and debates of Christianity actually animate the "Christian" Right. In the end, it's really all about the persecution complex. That, and the cash.

Conservative Abortion Policies Don't Work

I finally remembered to take the much-discussed Garance Franke-Ruta article about repeat abortions to the gym yesterday, so I'll have more about that later today. But as a preview, interested to know what would happen if there are enough Scalias and Alitos on the Court to allow Republicans to embed their ideas about abortion and sexuality into law? We need only to look to the south to see the effects of the proposed Republican brew of abortion bans, patriarchal gender relations, and lack of rational sex education:

Latin America holds some of the world's most stringent abortion laws, yet it still has the developing world's highest rate of abortions - a rate that is far higher even than in Western Europe, where abortion is widely and legally available.

[...]

Regional health officials increasingly argue that tough laws have done little to slow abortions. The rate of abortions in Latin America is 37 per 1,000 women of childbearing age, the highest outside Eastern Europe, according to United Nations figures. Four million abortions, most of them illegal, take place in Latin America annually, the United Nations reports, and up to 5,000 women are believed to die each year from complications from abortions.

In an interview, a doctor in Medell­n, Colombia, said that while he offered safe, if secret, abortions, many abortionists did not.

"In this profession, we see all kinds of things, like people using witchcraft, to whatever pills they can get their hands on," said the doctor, who charges about $45 to carry out abortions in women's homes. He spoke on condition that his name not be used, because performing an abortion in Colombia can lead to a prison term of more than four years.

"They open themselves up to incredible risks, from losing their reproductive systems or, through complications, their lives," the doctor said.

The thing about criminalization is that it's an extremely bad way of stopping abortions; even in countries more serious about enforcing abortion bans than the United States is likely ever to be, large numbers of abortions will be performed, and whatever modest decreases in aboriton rates they achieve are purchased at the price of negative effects on the health of women and gross inequities in access to safe abortions. Conversely, policies like making birth control and rational sex education widely available and providing child care actually do significantly reduce abortion rates. Even on their own terms, in other words, the set of policies favored by most conservative Republicans don't work in practice. And if you actually think that women should have the autonomy to control their own bodies and that compelling adherence to traditional sexual mores isn't a legitimate use of state power, these policies are really, really, really bad.

Sunday Battleship Blogging: HMS New Zealand

Recall that in the early 1910s Canada considered contributing three Queen Elizabeth class battleships that would be owned and crewed by Canadians but serve in the Royal Navy. Winston Churchill's response to this entreaty was "Well, we'll take your money, but you can't have any ships." The Canadians sensibly declined this gracious offer. The Kiwi reply was "Hey, that sounds like a great idea! Can we also purchase the optional all weather primer? And do you offer any kind of extended warranty or service plan?" Three years and 1.7 million pounds later the battlecruiser New Zealand joined the Royal Navy.

New Zealand displaced 19000 tons and carried 8 12" guns, disposed of in two centerline and two wing turrets. Like all battlecruisers, New Zealand could make a decent speed (26 knots), but lacked the heavy armor of dreadnought battleships. New Zealand and other battlecruisers were designed to hunt and kill armored cruisers and to act as forceful scouts for the main battlefleet. New Zealand's two sisters were named Indefatigable and Australia. The Australians, presumably having more refined negotiating skills, managed not only to purchase the Australia but also to own it, and HMAS Australia served both in the Royal Navy and as the flagship of the Royal Australian Navy. The Royal Navy kindly allowed the HMS New Zealand to visit New Zealand in 1913, at which point roughly a third of the entire population of the country toured the ship.

New Zealand fought in most of the major battlecruiser engagements of the Grand Fleet in the First World War, including the Battle of Dogger Bank and the Battle of Jutland. At Dogger Bank Admiral David Beatty moved his flag from the battered Lion to New Zealand during the battle. David Beatty, much like Douglas MacArthur, had more of a gift for public relations than for military command. At Dogger Bank the disorder produced by sloppy signalling allowed some German ships to escape. At the 1916 Battle of Jutland the problem was more severe, and was exacerbated by the poor marksmanship of the vessels under Beatty's command.

In April 1916, HMS New Zealand rammed HMAS Australia, severely damaging the latter. It is not known whether this was caused by residual Kiwi bitterness. However, the damage did keep HMAS Australia out of the Battle of Jutland. The German purpose at Jutland was to lure a portion of the Royal Navy into the teeth of the High Seas Fleet, and thus destroy part of the Grand Fleet without having to fight the whole. The German battlecruiser squadron under Admiral Hipper sortied into the North Sea in order to draw out the British battlecruisers. This operation was a partial success. The British did take the bait, and committed David Beatty's six battlecruisers to interception of the German ships. The British also, however, committed four Queen Elizabeth class battleships (Malaya, Barham, Valiant, and Warspite) to the intial interception, and backed these two squadrons with the entirety of the Grand Fleet, including twenty four additional dreadnoughts and 3 more battlecruisers. In a sense the German plan worked too well; the British took the bait, but with too much force.

The fighting began on May 31 when the respective battlecruiser squadrons engaged each other. The Germans had five battlecruisers and the British six, including New Zealand. The Germans also had much better fire control than the British, and quickly scored hits on three of the British ships, including Beatty's flagship Lion. The effectiveness of the German fire was enhanced by the fact that damage control aboard the British battlecruisers was wholly inadequate. Indefatigable, following New Zealand in line, was the first to explode and sink. A short time later Queen Mary, ahead of New Zealand in line, also exploded in sank, causing Admiral Beatty to remark "There seems to be something wrong with our bloody ships today". New Zealand, remarkably, took almost no damage. Poor signaling by Beatty had delayed the arrival of the four Queen Elizabeth class battleships, but when they arrived the pressure on the battlecruisers was reduced considerably. Eventually, the entire High Seas Fleet would find itself committed against the entire Grand Fleet. New Zealand fired more shells than any other British dreadnought in the battle, and scored hits on several German ships.

The rest of the war was uneventful for New Zealand, although she did participate in the Second Battle of Helgioland Bight. In 1919, after the war, Admiral Jellicoe chose New Zealand as his flagship for a tour of the Dominions, and she once again visited her namesake country. Jellicoe would later serve as Governor-General of New Zealand. In 1922 New Zealand was decommissioned, and in 1924 she was scrapped in accordance with the Washington Naval Treaty.

Quiz for next week:

1. Which two US battleships or battlecruisers were not named after US states?
2. Which two US states have not given their names to US battleships?

More on Summary Execution Sammy...

...from Emily Bazelon:

What should matter more to the senators who will soon decide whether Alito will sit on the Supreme Court is that his record as an appeals court judge shows that his views have not changed since Garner. In case after case, Alito has taken the side of police and prosecutors. Can the police stop—and hold at gunpoint—members of a family who happened to be standing on the doorstep of an apartment that the cops had come to raid? Can the police frisk a 10-year-old girl who is nowhere mentioned in their warrant? Yes and yes. In one opinion after the next, Alito looks at search-and-seizure cases like a former prosecutor, which he is.

Does it matter that in many of these cases, the people getting the back of the hand from the cops are poor and black? Garner's father argued that the Memphis Police Department's policy toward fleeing felons violated the Fourteenth Amendment's guarantee of equal protection. Between 1969 and 1976, the Memphis police shot and killed eight white suspects and 16 black ones. Only one of the white suspects was neither armed nor assaulting a police officer. Thirteen of the black suspects were. The statistics were part of the evidence presented by Garner's father. Alito may well not have read that brief. And if he had, it probably wouldn't have mattered. His concern isn't the world of Edward Garner.

One word: filibuster.

...from a commenter at Digby's, shorter Republican Party: "Black children are constitutionally protected until birth. After that they're fair game."

Linguine With Scallops Fra El Diavolo

Particularly given that I bought the really good scallops at Whole Paycheck it's rather more expensive than my budget can really justify for home cookin', but that is some tasty shit.

In other Dreary Saturday Night news flipping over after HNIC (seeing Crosby, who justifies the hype, with the still-lively Lemieux was pretty cool, and the result was better) I note that I have no idea who either the guest host or musical guest on Saturday Night Live are. Or why I would even check in on a show that apparently is keeping its multi-year streak without even a funny sketch intact...

False Statement?

Shakes Sis and Media Girl have excellent posts about a very disturbing case. I don't know enough about the evidence to speak definitively about the decision of the prosecution not to go forward with her charges. But a false statement charge? Particularly given the inconsistencies in the stories of the alleged attackers, there doesn't seem to be anything like the evidence necessary to justify the charge, let alone to prove her guilt beyond a reasonable doubt. And the chilling effects of charging her go without saying--if you press forward with a rape charge, you may be charged yourself simply because the prosecution feels they can't convict? Talk about a profound disincentive to doing something that is already enormously difficult. (Amanda has more.) And, of course, for reasons I discussed last week I'm particularly disinclined to trust judges and prosecutors who think that a woman's having consented to sex before with the accused party is relevant evidence.

One thing that should come out of this: Oregon needs a rape shield law.

Scattered Ruins of the Lost Empire

Good article on the escape from an Afghani prison of four members of Al-Qaeda. Addicted to secrecy, the Bush administration has of course not been as forthcoming as a reasonable person might expect. This is what fascinated me, though:

At the time, several officials said, construction crews had been working to expand and reinforce the prison, a cavernous aircraft machine-shop built by the Soviet military during its occupation of Afghanistan and converted by the American military into its primary screening center for terror suspects captured overseas. The breakout took place only days before a series of tougher security measures, including surveillance cameras and brighter lighting, were to be put in place.

Why does it seem that so much of the infrastructure of the War on Terror is built on the ruins of the Soviet empire? Air bases in Central Asia, secret prisons in Eastern Europe, Soviet financed prisons in Iraq, Soviet trained torturers in countries around the world, and old Soviet bases in Afghanistan. There's certainly no intentionality to it, and I don't doubt that each decision to use an old Soviet facility can be justified on its own merits. Nevertheless, it is fascinating and disturbing that the United States seems so ready and able to pick up and dust off the rusty tools of Soviet imperialism.

Unreasonable

Is shooting a unarmed teenager who stole 10 bucks in the back of the head a reasonable "seizure" under the Fourth Amendment? I think you know how Strip Search Sammy is going to answer this one:

Supreme Court nominee Samuel A. Alito Jr.'s views on abortion caused a stir this week, but another memo that surfaced from his years as a Reagan administration lawyer was notable for its strong support of the police.

Alito wrote that he saw no constitutional problem with a police officer shooting and killing an unarmed teenager who was fleeing after a $10 home burglary.

"I think the shooting [in this case] can be justified as reasonable," Alito wrote in a 1984 memo to Justice Department officials.

Because the officer could not know for sure why a suspect was fleeing, the courts should not set a rule forbidding the use of deadly force, he said.

"I do not think the Constitution provides an answer to the officer's dilemma," Alito advised.

It's not easy to get to the right of Byron White--who dissented in Miranda--on civil liberties issues, but Alito was:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

The one thing you can say is that on this issue Alito may not be more reactionary than his replacement, who wrote the dissent, although whether O'Connor circa 2005 would have voted the same way is highly questionable. Anyway, if you like gutting the Fourth Amendment, you'll love Sam Alito.

At least now we know why Ann Althouse likes him so much...

Blue Moon of Kentucky, Keep on Shining

Given the staggering success of the "Red State" bureau established in Lexington, Kentucky by the Central Committee of Lawyers, Guns and Money last April, it has been decided by unanimous vote to continue the project indefinitely.

In related news news I have been offered and have accepted a tenure track assistant professor position at the Patterson School of Diplomacy and International Commerce at the University of Kentucky. I have been very happy with my time here thus far, and I'm looking forward to continuing my work here over the next several years, at least. In particular, I have found the faculty and students to be exceptionally supportive.

UPDATE: Thank you all very much. I just hope that I'm not held responsible for this.

Big Media Scott

A follow-up article to my previous one about Alito and Casey is up at TAP online. Since I don't think the class aspects of the plan of conservatives to incrementally dismantle Roe while--to use Rehnquist's metaphor for the forces of good--leaving its hallow facade as a Potemkin Village of moderation has received enough attention, I'd like to highlight this passage:

What is particularly objectionable is the effect this method of regulating abortion would have on poor women and women in rural areas. American abortion law has always entailed hypocrisy and inequity; before Roe, even in states where abortion was formally banned, doctors performed a significant number of safe abortions in hospitals. Women from affluent families could get access to safe abortions, while less advantaged women were consigned to back-alley butchers. Most of the regulations currently permitted by Casey have the same effects. Regulations such as waiting periods and parental involvement requirements have far more restrictive effects on poor women and women in abusive families than on middle-class women in stable families. Perversely, adopting the Salerno standard would make these inequitable effects an argument in favor of the constitutionality of such regulations.

The best thing to come from Roe--although it was somewhat inadvertent--was the fact that it extended the de facto standards of law that obtained for affluent women and extended them to all women. The state could no longer wink at grey market abortions while keeping formal bans as an omnipresent threat against doctors who performed abortions on the wrong kind of women or promoted their services to actively. Casey has watered this down, but as long as statutes can be facially challenged and the undue burden standard has at least some teeth, it's a tolerable compromise. The road that the Bush Administration is trying with Ayotte--to take the teeth out of the "undue burden" standard and make doctors vulnerable to prosecution while simultaneously making it far more difficult and expensive and time-consuming to challenge regulations in court--would essentially see a return the pre-Roe status quo ante, making safe abortions the province of women in affluent, well-connected families. This would be a completely indefensible outcome achieved through a dishonest and dishonorable process, and there 's no serious question that Alito would go along with it.

The other thing to mention is that having heard oral arguments--the article was essentially written before--I'm more optimistic about the possibility that Ayotte will be disposed of before Alito gets a chance to vote in a re-hearing. The most likely outcome--reading a health exemtpion into the statute--can be reconciled with Casey, and while it would plant the seeds of a move toward making facial challenges, it doesn't seem likely that Roberts has 5 votes for anything concrete. But the planted seed is bad enough, and remember that O'Connor is gone, Ginsburg is a 72-year old cancer survivor, Souter is 66, and Stevens is 85. Even if disaster is avoided this time, it ain't over, and the project to slowly destroy Roe isn't going away.

...More on the incrementalist strategy from Liza Sabater.

The Case Against the Case Against Grad School

Brian Weatherson has a terrific response to this crude description of grad school and the academic job market, which is a pretty common line of argument. So good, in fact, that my points are more reiterations than additions. It should first be noted that the academic job market is indeed simply not as dire as "Dean Dad" suggests, and it's not just elite schools. I, and my co-bloggers, went (or are currently in) a program which is well-regarded but not elite (in terms of reputation); it generally ranks around 25th in departmental rankings for political science. And yet are placement record is, in fact, very good: most of the people who finish the program end up in tenure track jobs. And good jobs, too; in the last 5 years our relatively small program has placed people in tenure-track jobs at good institutions like Cornell, the University of Wisconsin, U of Illinois, U Conn, the University of Oregon the University of Delaware, Concordia University in Montreal, etc. Even the most dubious students in our program can end up with excellent tenure-track jobs at Hunter College and The University of Kentucky. Now, admittedly, I think our program is much better than its ranking suggests (but doesn't everybody, and on the job market reputation matters a lot whether it's accurate or not), and there are certain subfields--like comparative politics and public law--in which our program probably has a stronger reputation than the overall ranking (but many of our best placements come outside of these fields.) But that, of course, is what Brian is saying; the question about grad school is not whether to "go to grad school" per se, but whether a particular offer is good, so you need to look into a department to see if it's a good fit for you. But, anyway, it's simply not true that tenure-track jobs are nearly impossible to get in every field, or even that the good prospects are limited to elite universities; that's just a hoary canard. Look into the placement records of the departments and programs you're interested in; don't just assume that it's hopeless.

I also agree with Brian that grad school was, for me, a very good experience. Yeah, the pay is awful, but to state the obvious if money is a big priority--which is a perfectly legitimate consideration!--then academia really isn't for you. And, of course, it's not for many (or most) people. But I like seminars, I like writing, and I liked teaching; I thought grad school in and of itself was rewarding and engaging, and I've never had the slightest regret. Aside from the crude utilitarianism, Dean Dad is frankly crazy to compare high school teaching with academia; they're very, very different jobs. The nature of the teaching is different, some people like to write and do research, etc. You should think very carefully about it, do a lot of research, and be honest about your own values and aspirations and be aware of what you're sacrificing before you go to grad school, without question. The risk for ending up in an awful cycle of adjunct jobs is all-too-present, even if the chances are exaggerated and vary wildly across programs and fields, and you need to consider that too. But totalizing critiques like Dean Dad's are useless, and I would strongly advise you to ignore them if you're considering grad school.

...in the comments at CT, John Emerson does remind me of one crucial caveat: "Don’t go to grad school if you aren’t fully funded." That's absoultely true. You shouldn't pay a dime in tuition money to attend grad school in the humanities and social sciences, and while you shouldn't expect an income much above subsistence you shouldn't be borrowing money for food and rent. The payoff at the end just isn't worth taking on significant debt the way it is for law school or med school.

Friday Cat Blogging... Bud

Blog Against Racism Day: The Great Dissenter

When it comes to discussing the worst cases in Supreme Court history, I've always thought the Civil Rights Cases haven't gotten a bad enough rap. (I should mention here that I'm talking in terms of consequences more than legal doctrine; many of the most infamously racist cases, because of the racism that has infected American constitutionalism, have been perfectly plausible applications of precedent and original intent.) Dred Scott was an atrociously immoral opinion, but its denial of African-American citizenship was the culmination of Jacksonian ideology, not a cause of it; the citizenship rights of African-American had been eroding for decades before the decision has handed down. The same is true of Plessy; it's appalling, but by the time the case was handed down, Jim Crow had already left the station for good, and even if the case had been decided correctly it's doubtful that it would have stood up for long. We can never know what effects the Civil Rights Cases would have had, but I think it's very possible that it was far more consequential. In addition, it produced a great dissent from the first Justice Harlan, greater in my view than his much more famous dissent in Plessy, and for Blog Against Racism Day I thought I would provide some excerpts for readers unfamilar with this case.

The Civil Rights Cases effectively struck down the Civil Rights Act of 1875, which (similar to the 1964 CRA) created a federal right against racial discrimination in public accommodations. The Supreme Court held that Section V of the 14th Amendment, which gives Congress the ability to enforce the rights (including equal protection, due process, and the privileges or immunities of citizenship), should be narrowly construed as to give Congress only the power to respond directly to state action, rather than to legislate against private inequities that states help to uphold rather than eradicate. While I agree with Harlan that the majority opinion proceeded "upon grounds entirely too narrow and artificial" and that the result was that "the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism," Bradley's opinion was a plausible enough reading of the text; when I say it's a candidate for the worst decision in history, I don't mean that it's a ludicrously implausible or unprincipled opinion in the manner of Bush v. Gore. Still, in the context of past Supreme Court precedents, the decision is quite disturbing. As Harlan notes, it is instructive to compare how the Court interpreted Congressional power when it came to the Fugitive Slave Act (which it upheld although it was not a directly enumerated power of Congress and had very dubious connections to any enumerated powers) with how it construed federal power in this case. Although the Civil War amendments expanded federal power, and although the Civil Rights Act was much more closely related to an enumerated power of Congress, when it came to protecting African Americans rather than using violence to hold them in bondage the Court suddenly became much less deferential to Congress. The effects of this type of reasoning were extremely important. In addition to striking down the Civil Rights Act, the Court also prevented Congress from intervening against terrorist violence that was used to intimidate black voters. The effect of the Court preventing Congress from intervening against private discrimination and violence against African-Americans in creating and maintaining the apartheid system that emerged can scarcely be overstated. Even in its most conservative era, the Court never permitted formal racial discrimination in granting the vote; the ability of whites, with the collaboration of state governments, to threaten blacks with the loss of their livliehoods, credit, property and lives was crucial to sustaining Jim Crow. As Harlan pointed out, the effect of the court's gutting of both the privileges and immunities clause and Congress' ability to protect African-Americans represented the return of slavery in a slightly different form. Indeed, Harlan argued that Congress' enforcement powers under the 13th Amendment were sufficient:

Congress has not, in these matters, entered the domain of state control and supervision. It does not assume to prescribe the general conditions and limitations under which inns, public conveyances, and places of public amusement shall be conducted or managed. It simply declares in effect that since the nation has established universal freedom in this country for all time, there shall be no discrimination, based merely upon race or color, in respect of the legal rights in the accommodations and advantages of public conveyances, inns, and places of public amusement.
I am of opinion that such discrimination is a badge of servitude, the imposition of which congress may prevent under its power, through appropriate legislation, to enforce the thirteenth amendment; and consequently, without reference to its enlarged power under the fourteenth amendment, the act of March 1, 1875, is not, in my judgment, repugnant to the constitution.

Harlan's dissent has many remarkable passages, but I think it's particularly worth singling out this one. We're often told that, civil rights legislation represents some kind of "special rights." Bradley made that argument in this case, making the claim that African-Americans had to cease becoming the "special favorite of the laws," which he claimed was the case under the Civil Rights Act. Harlan demolished this argument in a way that is still relevant in our time:

My brethren say that when a man has emerged from slavery, and by the aid of beneficient legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. What the nation, through Congress, has sought to accomplish in reference to that race is, what had already been done in every state in the Union for the white race, to secure and protect rights belonging to them as freemen and citizens; nothing more.

It was right then, and it's right now.

As a historical coda, the Civil Rights Cases remain good law to this day, and their narrow construction of the 14th Amendment has played a role in "New Federalism" cases such as the Court's striking down an important provision of the Violence Against Women Act. The 1964 Civil Rights Act was upheld under the Commerce Clause, rather than the 14th Amendment, although Congress cited both in passing the legislation. I agree with Justice Douglas that the Court should have taken the opportunity to overturn the Civil Rights Cases, to remove this stain from American jurisprudence and to put Congress' ability to pass human rights legislation on a more secure and logical footing.

John Derbyshire: One Hell of a Creepy Guy

Derb.

Conservatives, as I recall, are the ones who believe that "human nature has no history." It follows that we are at ease with the fact that the human female is visually attractive to the human male at, or shortly after, puberty, and for only a few brief years thereafter.

And elsewhere:

It is, in fact, a sad truth about human life that beyond our salad days, very few of us are interesting to look at in the buff. Added to that sadness is the very unfair truth that a woman's salad days are shorter than a man's — really, in this precise context, only from about 15 to 20.

Um.

There's really nothing I can say that could add to this. I suppose that I am leading a vile and unnatural lifestyle, as I have found myself rather attracted to numerous women above the age of twenty. I wonder, is that more or less unnatural than being attracted to men? Is there some kind of support group I can attend?

Via Tapped.

LGM Style

Interesting.

I think that we are predominantly #3 (niche blogging) with some elements of #1 (meme du jour) and #2 (caterer) styles.