Why Is The 4th Circuit Evil?

Yesterday, I penned a post which argued that Court's should extend anti-harassment protection to White employees alleging racial harassment by Black co-workers. In doing so, I supported part of a New Jersey Superior Court decision, in spite of the fact that the other part was clearly wrong, the part that was under dispute was in my words "a close call," and that the plaintiff in this case was an incredibly unsympathetic figure. But I believed that it was important for Whites to know that racial discrimination remedies were available to them as well, so as to counteract the feeling that anti-racism law and practice is "Blacks versus Whites." I even submitted it to the "erase racism" carnival, being hosted at Ally Work.

Now the 4th Circuit Court of Appeals (the most conservative in the nation) comes down with a 2-1 ruling in Jordan v. Alternative Resources Corp. (H/T: Alliance for Justice). The 4th Circuit has jurisdiction over Maryland, Delaware, Virginia, West Virginia, and the Carolinas, and I regret to say this particular case came out of my home turf of Montgomery County, Maryland.

The facts in this case are twisted. Jordan worked for IBM. As many of you know, the "DC Sniper" was operating in our area, causing much fear and tension. The two snipers (both of whom were Black) were caught while Jordan was at work. One of his fellow employees, seeing the news, proclaimed: "[t]hey should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them." Jordan consulted with several of his other coworkers, who confirmed that this particular employee had made comparable comments many times in the past. Pursuant to IBM policy, which mandated that employees report racial harassment, Jordan filed a complaint. His supervisor responded by changing his work hours to less convenient times, making a derogatory gesture and comment towards him at an office party, and within a month firing him. It does not appear that anyone is seriously arguing that these actions were not retaliatory. Incredibly, the Court found that this did not constitute a retaliatory action in violation of Title VII, because Jordan could not even have reasonably believed that his coworkers action could have created a hostile work environment. To be clear, the protection against retaliation does not only kick in if the conduct would have breached Title VII; all Jordan had to prove was that it was reasonable for him to believed it would have.

The majority placed a lot of emphasis on the supposed "isolated" nature of the remarks, almost seeming to forget that Jordan was told his coworker had made similar remarks on many other occasions. The majority dismisses this by saying that Jordan did not verify times and dates of these "vague" other remarks (which is not pertinent, as the 4th circuit has held that the complaining party has only the duty to report, not launch an independent investigation), and also by saying that these remarks were never reported to management (good thing too, apparently doing that gets you fired!). It said that for Jordan to prevail, he'd have to show that a plan to create a racially discriminatory environment was planned or in motion. The citation was to a case called EEOC v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir. 2005). In that case, there was literally an elaborate scheme to create a paper trail of negative performance reviews for a Black employee who had been making complaints regarding discrimination, so she could fired. The Court basically said because Jordan's situation had no comparable plan or plan-in-motion, his claim must be rejected. But Navy Federal is obviously an extreme situation, as the dissent noted, bigots can hardly be expected in most cases to announce their plans for discrimination in advance.

The truly perverse thing about this case is, again, that IBM requires its employees to report potentially discriminatory conduct. It does this because, by Supreme Court precedent, having these mechanisms in place means the company has an affirmative defense against any discrimination claims that do come up that went unreported through that system. Basically, if the procedures are in place and an employee does not use those procedures to complain about the alleged conduct, he can't later go to court and sue for the same breaches. But now the 4th circuit has created a catch-22--if an employee complains of discrimination, he can be fired. If he doesn't complain, then he can do nothing.

There are two points to be made off of this case. First, it appears to be wrong as a matter of law. I found the majority wholly unconvincing, and the (rather blistering) dissent to be quite compelling. But assuming for the moment that the ruling was right, that just means the law is wrong. If our anti-discrimination laws can permit this sort of egregious injustice, then our laws are wrong. Wrong in a very visceral, horrifying sense: they're providing the shield and cover by which discrimination occurs. Conservatives love to say how they're only interpreting the law, and they can't write it. Well fine. But all that means is that the legislators who wrote the law are either malicious or incompetent. I expect every conservative who apologizes for this ruling as "what the law required" to be vociferous in demanding that the law change.

Dan Filler predicts that the 4th Circuit rehears en banc and reverses, primarily because he does not believe the two White judges who made this ruling, and the other judges on the circuit, will be able to look their two Black colleagues in the eye and say that Jordan was not just wrong, but unreasonable in thinking that his coworker's comments could have constituted a Title VII violation. I hope he's right, but I do wonder. In his "Space Traders" story, Derrick Bell has a Black character who is fiercely protective of his position of power so that, when its really necessary, he can save his people from egregious acts of racism. But when the day of reckoning comes, he finds that his position is worthless, his White colleagues simply brush him aside (all the while telling him that the event in consideration has nothing to do with race at all!). This will be an excellent opportunity to test Bell's hypothesis. As is so often with the case, I hope Bell is wrong. But I wouldn't count on it.

Further commentary: Feminist Law Profs, Belle Lettre, Workplace Prof Blog.

Legislation and Nullification

One of the favorite epithets conservatives love to hurl at the American court system is that they "legislate from the bench." It's a term related to that amorphous blob of a protest, "Judicial Activism." While at least "judicial activism" is so void as to be substantively meaningless (and thus might theoretically encompass whatever it is conservatives are complaining about), "legislating from the bench" seems to be misapplied almost on its own terms. Jonathan Rowe elucidates, responding to Thomas Sowell. Sowell argues that one of the primary harms of "legislating from the bench" is that one does not know in advance if one has broken a law--presumably because the Court is announcing the law in the context of deciding whether you violated it.

The problem with Sowell's analysis is that much of what is called "judicial activism" looks nothing like what he's just described. In particular his assertion that "[w]hen legislators change a law, that change is announced, so that everyone knows what is and is not illegal from now on." This is one of the most laughable statements I think I've seen in a long time....

Much of what is termed "judicial activism" is simply the Court exercising its judicial review power to nullify a piece of legislation, usually a piece of legislation which impinges on liberty. Is that really "legislating"? In my eyes, judicial review is the very opposite of legislating. Legislatures, by their very nature, pass laws. Nullification is negating, or taking away, legislation. It's reverse legislating.
[...]
Finally, regarding the "nobody knows that they have violated the law until after the fact" assertion, Sowell's argument doesn't fit well to circumstances where courts exercise their judicial nullification power. Again, legislating, in my mind, is passing a command and control like rule which binds the people like "you can't drive over 55 mph." If, for instance, you were driving 60 in a 65mph zone and some court, after the fact, found you guilty of breaking the 55mph speed limit, then Sowell's argument would make sense.

Let's actually see what goes on with judicial nullification, using Lawrence as an example. A court says, perhaps after the fact, "sorry government, you can't do that." Government may respond, "well that's unfair, we were relying on our ability to make laws which forbid the sexual conduct of consenting adults behind closed doors, and now, after the fact you say we can't do this?" To which I respond with a big "BOO HOO." That's not the kind of reliance -- the reliance of majoritarian mob-rule to use the legislative process to tyrannize other segments of the population -- about which we should be concerned. Certainly not in a nation where liberty in its broad and general sense is an unalienable right that individuals possess prior to majority rule. This is why our Founders refused to enumerate the rights of man; because the rights of man are so numerous that they are unenumerable.

The principle of reliance is important, but for citizens obeying the laws, not governments enforcing them (or at least, not as much).

Nullifying legislation that improperly criminalizes protected activity is not a problem. Where there would be a problem is if the Courts made something into a crime that had not been legislated one (i.e., Lawrence v. Texas in reverse: holding that Sodomy must be illegal even in states where it is currently permissible because it violates God's law or whatever). That never happens though. The closest thing is a Court broadly interpreting an ambiguous criminal statute to encompass an act that seems to border between legal and illegal (for example, a law which punishes ex-felons for possessing ammunition being applied when the police found a single bullet in a man's house, which he claimed to not know was there). That's obviously troublesome, but a) that type of judgment call is unavoidable in statutory interpretation (which everyone agrees is the court's job--"interpret the law, don't make it") and b) the same people who attack courts for being too "activist" also blast them for being "too soft on crime" and letting criminals off on technicalities. So in the one case where judges might arguably be "legislating from the bench," it tends to be conservatives who would support them.

Unfortunately, Rowe starts to make some very odd claims as he progresses. Like this one:

Judicial supremacy is when the court exercises a command and control power, ordering other branches to government, or the people, to affirmative enact a particular policy or otherwise behave in a particular way. Cass Sunstein, as I understand, desires courts to behave in this manner by constitutionalizing the New Deal.

And this one:

There may be some kind of relation between the principle of equality and Judicial Supremacy (whereas there clearly is a relation between judicial nullification and liberty). Although I find Equality to be a laudable and foundational ideal (along with Liberty, a twin pillar of classical liberalism), keep in mind that egalitarianism or "leveling" can result (because it has resulted) in tyranny. Therefore, Liberty must come before Equality and Property rights must also be part of the liberal ideal.

To the first, Rowe is a libertarian, so I understand that he dislikes the New Deal. But I fail to see how the court exercised "command and control power" in its new deal decisions. It did not "order" any other branch of government to do anything. It certainly permitted the legislative and executive branches to take certain actions--improperly, in Rowe's view. But permitting a government agency to act according to the laws it freely chose to pass is the precise opposite of "commanding" them to do something. In fact, the cases that had to be overturned to validate the New Deal, such as Lochner and Adkins, that traditionally have been seen as the first instances of "judicial activism" ("Judicial restraint," now a conservative buzzword, came into the vogue due to the efforts of liberals like Felix Frankfurter who wanted to sanction FDR's new deal). There have been "command and control" decisions by the federal court system (the school busing decisions would be the obvious ones), but the New Deal was promulgated by the legislative and executive branches, with which the Supreme Court only went reluctantly along.

As for the second statement, that has to be the most bizarre syllogism I've seen in a long time. Going after egalitarianism has (at times) caused tyranny, so liberty must be prioritized over egalitarianism. First of all, if "liberty" is presumed to be the antonym of "tyranny," then the statement borders on being tautological. Second, it's an abysmal argument--virtually every principle (including liberty) has been used to justify bad things. I could just as easily argue "liberty has (at times) caused grinding economic inequality and despair, therefore egalitarianism must be privileged over liberty." Or "liberty has justified economic discrimination against racial minorities, so we must privilege egalitarianism over liberty." And that would be stupid too. The proper lesson to draw from communism (extreme privileging of egalitarianism) and the gilded age or Southern private segregation (extreme privileging of liberty) is not that another ultimate value is better. It's that every value taken to an extreme and not subject to countervailing pressures will result in bad things happening. What's needed isn't a better ultimate principle, what's needed is a thick web of values that can all support and counterbalance each other. So at times a liberty interest will outweigh an equality interest, and at times an equality interest will outweigh a liberty interest.

Heads up: Randy Barnett

History Repeats Itself

For a nation whose leader believes the Holocaust is a "myth," Iran sure seems eager to learn from its lessons. The National Post of Canada (via Volokh) reports:

Human rights groups are raising alarms over a new law passed by the Iranian parliament that would require the country's Jews and Christians to wear coloured badges to identify them and other religious minorities as non-Muslims.

"This is reminiscent of the Holocaust," said Rabbi Marvin Hier, the dean of the Simon Wiesenthal Center in Los Angeles. "Iran is moving closer and closer to the ideology of the Nazis."

Iranian expatriates living in Canada yesterday confirmed reports that the Iranian parliament, called the Islamic Majlis, passed a law this week setting a dress code for all Iranians, requiring them to wear almost identical "standard Islamic garments."

The law, which must still be approved by Iran's "Supreme Guide" Ali Khamenehi before being put into effect, also establishes special insignia to be worn by non-Muslims.

Iran's roughly 25,000 Jews would have to sew a yellow strip of cloth on the front of their clothes, while Christians would wear red badges and Zoroastrians would be forced to wear blue cloth.
[...]
The new law was drafted two years ago, but was stuck in the Iranian parliament until recently when it was revived at the behest of President Mahmoud Ahmadinejad.

Jews being forced to wear yellow identifying badges? Where do I remember that from?

The Iranian embassy in Canada refused comment:

A spokesman for the Iranian Embassy in Ottawa refused to comment on the measures. "This is nothing to do with anything here," said a press secretary who identified himself as Mr. Gharmani.

Oh I beg to differ. This has a whole lot to do with people here, in Canada, and around the world. And I pray that you'll be hearing from them in the near future, if this abomination becomes law.

UPDATE: There is dispute over whether or not this account is true. I don't like being suckered by bad sources, but I much rather prefer that this was the Post making a mistake, and Iran is not actually contemplating this proposal.

UPDATE 2x: Via Volokh, I feel comfortable saying that this story likely is not true. Also, who knew that there was a Jewish legislator in Tehran? Talk about life peculiarities.

Inversion and Reversion

Eugene Volokh points to a rather odd harassment claim currently working its way through the New Jersey Courts. At first glance, it doesn't seem out of sort. A woman quits her job and sues, claiming that coworker A with the tacit consent of Supervisor B made racially disparaging remarks, expressed personal hostility towards her, and generally created a hostile environment for someone of her race. The catch? The plaintiff, Candy Bredt, is White, and "Coworker A" is Black. Ms. Bredt made three claims:

1) "[Regina] Johnson[, a coworker,] told plaintiff that she had a 'black butt' and subsequently smacked her on the buttocks on at least three occasions. Johnson threatened to 'kick her white ass.'"

2) Johnson also made some much more political statements. "Johnson routinely spoke about how white state troopers always harassed her and her husband. In her deposition plaintiff testified that because the office was small and crowded, she was forced to listen to Johnson's contentious discussions with others, including her supervisor defendant Will[ia]ms, about how white people got all of the jobs and that there were not enough black doctors and nurses at CINJ. Plaintiff testified that she recalled on one occasion that defendant Williams distributed a flier that depicted photographs of newly graduated doctors. Johnson and Williams looked at the photos to see 'how many black doctors graduated because it's all white people and Indians.' They then said, 'Look at that. Disgusting.'"

3) This was listed on par with the first category, under the rubric of "[P]laintiff contends Johnson's speech and conduct were clearly indicative of her racial animosity towards white people and created a work environment of 'black vs. white' and 'us vs. them.'"

"In addition to the racially charged comments, plaintiff testified that Johnson told her that she hated her, called plaintiff stupid, also called her 'asshole' once a week, and on one occasion took her finger and pushed it against plaintiff's breast."

The New Jersey Court reversed a summary judgment in favor of the employer, holding that the aforementioned acts could be construed by the jury as being legally liable.

I disagree with those who would categorically deny Whites the right to sue under anti-discrimination laws. As Frank H. Wu has written, "an approach that categorically denies the possibility that in some instances a white male plaintiff may have a valid claim is rightly repudiated as unfair," and "It is unclear that anything would be gained, or that the result would be especially principled, if white ethnic minority individuals were denied the ability to sue for straightforward discrimination by an institutional actor (i.e., the case was not a collateral challenge to affirmative action.)." The question is, do the acts depicted in numbers one and three meet that criteria (two is a whole separate animal, I'll get to that later)?

I think the answer is a close-call yes, at least with regards to having it heard before a jury (at trial, both sides will get a chance to share their perspectives, which could change the way the case looks dramatically. But an evaluation of a summary judgment ruling is made by interpreting contested facts in the manner most favorable to the responding party, which is how I'm analyzing here). It doesn't happen very often, but if a coworker or group of employees creates a pervasively hostile environment for a White employee as a result of her race, it seems unfair to the extreme to place that beyond legal remedies.

The obvious wrinkle is the labeling of a White person by a Black person as having a "Black butt". Obviously, this flips both the normal speaker (White to Black) and recipient (Black to White). How should the court interpret that? On the one hand, it's important not to revert back into old patterns of thinking, in which calling a White person Black (or something associated with Blackness) was a legal wrong in of itself. On the other hand, it seems though the context surrounding this remark was designed to disparage Ms. Bredt, due to hostility toward her race. That should be legally actionable.

But the second part of the complaint is where things get ridiculous. Professor Volokh makes a strong argument that such speech (which, effectively, is criticizing racial inequalities in America) is constitutionally protected and thus cannot be considered in a harassment case. But this speech is not just protected, it's essential. Bredt is essentially complaining here because she did want to here the uncomfortable truths of a Black colleagues life. If a Black person is being pervasively harassed by the police, then the person we should be protesting against is the perpetrator, not the victim. Similarly, the pervasive underrepresentation of Black men and women in the ranks of new doctors is appalling. Mentioning that fact should be seen as a valuable social service. Ms. Bredt is an utterly unsympathetic plaintiff to me, because she seems to believe that being made aware of continued racial hierarchy is akin to racial harassment. If there ever was a stereotype of how Whites want to bury race dialogue and silence protests of racism, this is it.

Ms. Bredt is a bad plaintiff, and the second part of the complaint should be thrown out. But in principle, Whites with legitimate claims of race harassment should be able to count on the full support from the anti-racist community. Aside from the fact that it's the right thing to do, there are at least two reasons why this is tactically wise:

1) Supporting remedy in the few rare cases where Whites are being discriminated against shows that ending racism is not a "White versus Black" issue, but rather an issue of justice for all races. Having these cases is a powerful rejoinder to those who'd argue that anti-racist discourse is all about hating whitey.

2) If courts are more prone to be sympathetic to the claims of White plaintiffs, then they will likely construct broader rules and less-stringent standards to accommodate their claims. These precedents can then be countermanded by other aggrieved parties (most of whom will be Black), and used for their struggle as well.

In all, one of the most valuable things the anti-racism movement can do is recast its image in the public eye away from a "war against Whites" and towards a "struggle for justice." While for the vast majority of anti-racism activists this already is the primary motivator, they should look carefully for opportunities to present this face forward to the public.

UPDATE: Of course, with the 4th Circuit making awful decisions like this, it's important to qualify that anti-discrimination law is barely working for Blacks either.

Up or Down Votes

Scott Moss penned a letter to a NY Times movie reviewer, which included the following observation:

OK, I get it: you don't like any movies other than indie and foreign flicks like the one about The Girl Who Was Sad Because Her Village Burned Down In A Brush Fire, which won second prize at the Snooty-Toot-Toot Film Festival hosted by Robert DeNiro and Sean Penn. Of course, at times it's hard to tell if you like a movie, given that you don't use the bourgeois "four-star" or "two-thumb" system -- or any other system, come to think of it -- to say if the movie actually was good or not. I can't tell you how many reviews of yours I've read that focus on the star's "rangy" performance (whatever that means), or pontificate about the cinematography (whatever that means), but leave me, at the end, thinking, "wait a minute -- is he saying this is a good movie or not?" And I did pretty well on the "reading comp" section of the LSAT.

At some point, A.O. Snottypants, when you have such disdain for 99% of the movies that your readers actually go see, shouldn't you just stop being a movie reviewer?

One of his commenters responded:

So when are law professors going to start rating cases on a five point or two thumbs scale? I am tired of reading casebook after casebook, and attending class after class, in which the professor refuses simply to say whether a case is good or not. And to listen to these professors snort at the perfectly sound questions offered by the Senate Judiciary Committee ("Roe v. Wade: thumbs up or thumbs down?"), one cannot help but wonder why professors persist in commenting on the law when they obviously have such disdain for how 99% of Americans who use the law actually view the law.

Touche.

Individualism as Racism?

Eugene Volokh links to the Seattle Public School's definition of racism, which includes the following:

Cultural Racism:
Those aspects of society that overtly and covertly attribute value and normality to white people and Whiteness, and devalue, stereotype, and label people of color as "other", different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard, and identifying only Whites as great writers or composers.

I understand why Volokh would be upset: being a libertarian, he probably would identify as an individualist, and does not like that being equated to "racist." As for Critical-Race-Theory-Hack me, I think this definition oversteps itself.

The last stop on my intellectual voyage prior to landing on Critical Race Theory was non-interventionist liberalism that was slowly spiraling into libertarianism. I didn't actually like libertarianism that much, and was glad to be rescued from what had seemed logically infallible but morally intolerable. However, this doesn't mean I condemn individualism. On the contrary, enough John Stuart Mill runs in my veins that I'd be very hard pressed to express hostility toward individualism on the whole. What Critical Race Theory taught me was that an individualist paradigm cannot "see" all forms of racism. So remaining excessively committed to individualism means consenting to the preservation of racial hierarchy.

But one can concede that and still "emphasize" (Seattle's words) individualism over collective ideologies. Collectivist mentalities, after all, can miss racism too--an "all for the corporation" mentality might explain the firing of a Black worker on the grounds that his productivity was sub-par, not noticing that he had a racist manager who was constantly harassing him (even while putting in great work of his own). Or a viewpoint that examines racism solely through groups can overlook individual acts of prejudice that fall outside "normal" structures, institutions, or cultural memes, but still exert significant negative impacts on their targets.

Within this paradigm, people will disagree about where the line should be drawn between collective and individualist ideologies. But merely deciding to "emphasize" individualism is not so clearly beyond the bounds as to be unquestionably deserving of the tag "racism."

Volokh also registers at least a theoretical opposition to Seattle's claim that listing only Whites as the greatest composers or writers is racist. This seems a bit tougher to defend. There is no objective way of determining who the "best" writer is. And I have a lot of trouble conceptualizing a criteria choice that a) excludes all minorities, b) has no racial component at least implicit, and c) falls within a sensible definition of the term "greatest." For example, saying "the greatest writers are those with the greatest impact on the world," and including only Whites, seems difficult to justify without denying the historical, political, and cultural importance of the non-Western world. I suppose stretching to the limits of abstractness, I can imagine a list that includes only Whites that has no racial element to it whatsoever. But pragmatically, I'd ascribe only a minimal probability to that being the case for any given list that excluded all minorities, and my default assumption would be that any such list is tainted by some manifestation of racial hierarchy..

Missing In Action

With the Iraq war still slogging along, and President Bush calling for National Guard troops to patrol the US/Mexico border (remember: his administration was against it before they were for it), I think it's worth mentioning how many troops could be helping secure our borders and stabilize Iraq, were it not for the abomination known as "Don't Ask, Don't Tell."

Via Scott Moss, the number of troops discharged is nearly 10,000, at a cost of over $350 million.

Money well spent.

We Did It Once

Via Misty at Shakespeare's Sister, one of the creepiest articles I've seen yet on immigration:

[Bush] will be lying, again, just as he lied when he said: "Massive deportation of the people here is unrealistic -- it's just not going to work."

Not only will it work, but one can easily estimate how long it would take. If it took the Germans less than four years to rid themselves of 6 million Jews, many of whom spoke German and were fully integrated into German society, it couldn't possibly take more than eight years to deport 12 million illegal aliens, many of whom don't speak English and are not integrated into American society.

Umm...Germans? "Rid themselves"?

Normally, when one makes a rhetorical maneuver like this, it is immediately followed by some sort of qualifier (a qualifier which, in my view, rarely excuses the tactic) in which the author disclaims that he's advocating genocide or violence. But that's the real scary part--no such qualifier is present. He just happily drops in a reference to how well the Holocaust worked at solving its problem, and moves on to blast the notion that absolute zero-tolerance immigration policy would be impractical. Which, to be sure, is a fair critique...if one is willing to endorse such measures like branding illegals (hey, wasn't there some sort of tattoo thing in the concentration camps too?). It is ridiculous, however, if we are to preserve some notion of an American soul, part of which means not drawing on the Gestapo for policy inspiration.

Incidentally, Vox later tries to give the qualifier at his own site, but Errant Knight dispatches of it relatively easily. Yes, the Holocaust "proves" mass deportations are possible--if one doesn't care about the body count.

Digby, Martini Republic, and BoML have more.

Truly appalling.

Writing History in Advance

The New York Times is reporting that the Christian Right might withhold its support for Republicans in the 2006 election unless the GOP leadership starts getting its major priorities through congress.

Noam Schieber thinks its a bluff. But I think its shrewd politics, and not because I think it will work. There is simply no way that the Federal Marriage Amendment, a bar on stem cell research, further restrictions on contraceptive use, or any other such policies are going to pass by the time we get to midterms. But that is not what I think the Religious Right's leadership is going for here. I think they've already decided that the GOP is going to take a considerable hit in the 2006 elections, and is acting to make that outcome seem resultant of insufficient social conservatism.

Here's how the game works. The operating assumption is that the GOP is going to lose seats in 2006. If Dobson and his pals do their normal dirty work for the party, the best case scenario is that their role will be ignore in the stories documenting the Republican collapse. The worst case scenario is that reporters will write that the 2006 elections prove that the evangelical bloc is weaker than it used to be and unable to wield the same sort of clout we saw in the mid-90s and early part of this millennium. At the bottom of the article Grover Norquist argues that this will be the likely upshot: "If the Republicans do poorly in 2006, the establishment will explain that it was because Bush was too conservative, specifically on social and cultural issues." Either outcome is bad for them, because it removes them from their pedestal as perhaps the central interest group operating in Washington today. And thus the GOP won't pay them proper heed when trying to rebuild their fortunes.

However, if the Christian right publicly withholds their support for the GOP, then the story changes entirely. The outcome is still roughly the same--Republicans lose seats (probably more than they otherwise would have, but even still). But now reporters will, when writing about the GOP failure, incorporate a narrative about how their religious base abandoned them due to seeming disinterest. The organizations themselves will try and spin this narrative into the primary reason for the GOP disaster--had they properly courted Christian groups, they wouldn't be in the fix they're in. The upshot of this whole dynamic is that the "conventional wisdom" will pretty much mandate that the GOP repair its ties with Falwell and his buddies if they are to regain dominance. In other words, Norquist has it exactly backwards: the Religious Right will be blamed for 2006 only if it does participate at full strength.

The only way this could possibly backfire is if the GOP loses control of congress due to Christian "disenchantment" by a narrow enough margin such that they'd have probably kept control had the Christian GOTV organization been in full swing. But I'd wager that this is a price Christian leaders are willing to pay. A few years in the political wilderness is well worth being at the steering wheel of the GOP when it makes its comeback.

Good Thing He Stayed at a Holiday Inn Express Last Night!

The BBC accidently plucks a random cab driver out of its waiting room and interviews him, thinking he was a expert on internet music business. He gamely tried to play the part, but the horrified expression on his face when they announced who "he" was is priceless.

Video here.

H/T: Volokh