The fact that Republican primary voters are being presented with an unbelievably weak field is nothing that hasn't already been said. Every conservative I've talked to, outside a few moderates, is unhappy with their selection. And why wouldn't they? Giuliani is a thrice-married social liberal who dressed in drag, McCain is a party heretic, Thompson is an empty suit, and "multiple choice" Mitt--aside from being a Mormon--has twisted and turned on a few too many issues to really have gained the trust of the base.
So I got to thinking: Who's on the Republican bench that could get the party excited? Some of them might not have a prayer of running, for any number of reasons (one of which is the probability that the Republicans will get thrashed in 2008). But who are some folks who could genuinely get the party excited, in terms of both policy and electability?
Here's a list of five people I think could fit the bill, either as saviors for this cycle, or more likely, as rising stars who will jump in the next time around.
1) Sen. Richard Lugar (R-IN): This was the only name that sprung immediately to mind. He's a mid-westerner, so he can run well in Rust Belt states like Ohio. Lugar ran for President in 1996, though he didn't make much headway--still, you have to think he looks significantly better to the base now than he did back then. He's also well-respected by people on both sides of the aisle, known to be substantive on policy issues, and considered a deacon on foreign policy specifically in the Senate. The only question is whether or not he's been too wobbly on Iraq for Republican voter's tastes. However, he's probably got the highest national profile of any of the bunch, right now.
2) Gov. Charlie Crist (R-FL): Like Jeb Bush but without the "Bush"! Crist easily won the governorship of Florida in a bad Republican year. Since then, he's displayed a surprising maverick streak, but done so while maintaining his connections with the base. His surprise move to work for felon re-enfranchisement could help him gather some support in the Black community--something the GOP has been desperate for for years. And while Attorney General of Florida, he largely stayed out of the Schiavo mess, which might still raise some hackles on the far right, but at this point probably will be a net boon.
3) Sen. Saxby Chambliss (R-GA): He's a conservative hell-raiser, but that isn't necessarily a stroke against him nowadays. He knocked off then-Senator Max Cleland (D-GA) in 2002, an upset stoked by one of the nastiest campaigns in recent memory. If Republicans want to come off the ropes swinging, this could be their guy.
4) Gov. Tim Pawlenty (R-MN): For whatever reason, I still feel like the two-term governor from Minnesota requires more seasoning before he hits the national stage. Nonetheless, he was probably the most vulnerable incumbent GOP governor in 2006 to keep his seat, and he did so against a strong candidate with flying in colors in a state that is trending blue. He's been floated for a VP slot this cycle, but regardless of whether he gets it, I already feel like his hat is in the ring for 2012.
5) Sen. Lamar Alexander (R-TN): He's run for President before, twice, albeit not very successfully. Those two campaigns seemed to turn him off on politics, but he was able to be persuaded to run for Senate in 2002, and since then has steadily risen in the GOP party hierarchy. He's solid, he's loyal, and he's paid his dues. It wouldn't drive anybody wild, but he'd be someone the party could unite behind.
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Saturday, August 04, 2007
Pace Yourself
I tend to write in spurts. I'll spend long periods of time doing absolutely nothing, but if I hit a rhythm I can have tremendous bursts of productivity. However, right now I'm working on an article that I really like, and I'm having a lot of trouble getting words on the page. The problem is that whenever I have one of those flashes of inspiration, I get really excited and can't focus on actually writing it. Instead, I just pace around the house talking myself through it, and I don't actually write anything down. By the time I've calmed down enough to sit back in front of the computer, the moment is gone, and I still can't write.
Does this (or something similar) happen to anyone else?
Does this (or something similar) happen to anyone else?
Friday, August 03, 2007
Whip Feinstein
How is it that John Boehner can keep virtually his entire caucus from voting for Child's Healthcare, but Harry Reid can't keep Dianne Feinstein from moving Leslie Southwick's nomination to the Senate floor?
The Congressional Black Caucus (CBC) is furious, and it's easy to see why. Southwick, you see, joined an opinion while on the Mississippi Court of Appeals holding that calling someone a "good ole nigger" was not a racial slur, and that the offending employee could not be fired--or indeed, punished in any way whatsoever--for making it. This decision was unanimously reversed by the Mississippi Supreme Court, which held that, while the employee should not have been fired, she probably should face some form of disciplinary action (umm, duh!). Personally, I think that when the Mississippi Supreme Court tells you "Slow down, cowboy. You're not adequately respecting the rights of Black people," that's a flag that we might have a problem.
Here, I want to quickly dispatch an argument made by my friend Paul Mirengoff that Southwick's ruling here was "consistent with well-established federal law under which one instance of using a racial or sexual epithet generally does not create a hostile work environment and thus does not constitute racial or sexual harassment." That both misapplies the rule and misunderstands its purpose. The reason why isolated incidents of racial epithets or mistreatment do not create legal liability for a "hostile work environment" is to give a company or institution the opportunity to resolve these problems internally. If BigCorp employee A uses a racial slur to refer to employee B, but the company immediately responds by disciplining or firing A to show that BigCorp will not tolerate such actions, should the company be liable? I say no. I may be an anti-racism crusader, but I'm not vindictive--a company cannot control every utterance of its employees, and so long as it makes a genuine effort to insure such events do not happen (and offenders are disciplined when they do), I think they should be generally shielded from liability. However, in this case, the agency was not being sued for creating a hostile work environment--it was in court trying to take the actions that would prevent a hostile work environment from developing. In other words, it was doing precisely what the rule cited by Mr. Mirengoff anticipates they should be doing.
As such, Southwick's ruling turns the standard on its head. The liability shield Mr. Mirengoff is talking about only makes sense if the company is permitted to discipline employees who engage in the "isolated" act. If they choose not to, then they are building a record that shows they are not committed to handling these matters in-house. And in Southwick's case, he went further--his ruling stated that the agency was not permitted to discipline the employee, thus forcing them to assume the risk of creating a hostile environment. As Justice Banks noted in his concurring opinion reversing the Court of Appeals, "it is clear that DHS had an interest in terminating [the employee] because not to have taken some sort of action regarding the comment made by her, could possibly have subjected the agency to a claim of a racially hostile environment claim under federal law, and therefore retaining Bonnie Richmond could constitute negligence." This decision should be eliciting howls from the right too--aren't they the ones that want to give businesses latitude for managing these problems for themselves?
Sadly, this is not the only eyebrow-raising aspect of Southwick's tenure. The American Constitution Society has other cases of concern, perhaps the most egregious of which was the case of S.B. v. L.W.. In that case, Southwick joined a majority opinion which held that child custody could be denied to a mother simply because she was lesbian. Southwick was the only judge to join a concurring opinion which was essentially dedicated to bashing gay people, and argued that while the mother has the "choice" to engage in such "conduct," that choice comes with "consequences," one of which is "that her rights to custody of her child may be significantly impacted."
Should Southwick's nomination have been bottled up? No. It should have been rejected outright, in committee, then never seen again. There is absolutely no justification--none--for Feinstein to vote in favor of such a radical conservative activist to a lifetime appointment to the federal bench. Now, Harry Reid needs to get his caucus in line, give Southwick the "up-or-down vote" the right is bleating about, and reject him--50-49 if necessary. The message must be sent that these radical right, out of the mainstream judges will not make it onto the bench so long as there is a Democratic Congress. That takes a scalp, and there is no nominee that deserves to go down in heavier flames than Leslie Southwick.
The Congressional Black Caucus (CBC) is furious, and it's easy to see why. Southwick, you see, joined an opinion while on the Mississippi Court of Appeals holding that calling someone a "good ole nigger" was not a racial slur, and that the offending employee could not be fired--or indeed, punished in any way whatsoever--for making it. This decision was unanimously reversed by the Mississippi Supreme Court, which held that, while the employee should not have been fired, she probably should face some form of disciplinary action (umm, duh!). Personally, I think that when the Mississippi Supreme Court tells you "Slow down, cowboy. You're not adequately respecting the rights of Black people," that's a flag that we might have a problem.
Here, I want to quickly dispatch an argument made by my friend Paul Mirengoff that Southwick's ruling here was "consistent with well-established federal law under which one instance of using a racial or sexual epithet generally does not create a hostile work environment and thus does not constitute racial or sexual harassment." That both misapplies the rule and misunderstands its purpose. The reason why isolated incidents of racial epithets or mistreatment do not create legal liability for a "hostile work environment" is to give a company or institution the opportunity to resolve these problems internally. If BigCorp employee A uses a racial slur to refer to employee B, but the company immediately responds by disciplining or firing A to show that BigCorp will not tolerate such actions, should the company be liable? I say no. I may be an anti-racism crusader, but I'm not vindictive--a company cannot control every utterance of its employees, and so long as it makes a genuine effort to insure such events do not happen (and offenders are disciplined when they do), I think they should be generally shielded from liability. However, in this case, the agency was not being sued for creating a hostile work environment--it was in court trying to take the actions that would prevent a hostile work environment from developing. In other words, it was doing precisely what the rule cited by Mr. Mirengoff anticipates they should be doing.
As such, Southwick's ruling turns the standard on its head. The liability shield Mr. Mirengoff is talking about only makes sense if the company is permitted to discipline employees who engage in the "isolated" act. If they choose not to, then they are building a record that shows they are not committed to handling these matters in-house. And in Southwick's case, he went further--his ruling stated that the agency was not permitted to discipline the employee, thus forcing them to assume the risk of creating a hostile environment. As Justice Banks noted in his concurring opinion reversing the Court of Appeals, "it is clear that DHS had an interest in terminating [the employee] because not to have taken some sort of action regarding the comment made by her, could possibly have subjected the agency to a claim of a racially hostile environment claim under federal law, and therefore retaining Bonnie Richmond could constitute negligence." This decision should be eliciting howls from the right too--aren't they the ones that want to give businesses latitude for managing these problems for themselves?
Sadly, this is not the only eyebrow-raising aspect of Southwick's tenure. The American Constitution Society has other cases of concern, perhaps the most egregious of which was the case of S.B. v. L.W.. In that case, Southwick joined a majority opinion which held that child custody could be denied to a mother simply because she was lesbian. Southwick was the only judge to join a concurring opinion which was essentially dedicated to bashing gay people, and argued that while the mother has the "choice" to engage in such "conduct," that choice comes with "consequences," one of which is "that her rights to custody of her child may be significantly impacted."
Should Southwick's nomination have been bottled up? No. It should have been rejected outright, in committee, then never seen again. There is absolutely no justification--none--for Feinstein to vote in favor of such a radical conservative activist to a lifetime appointment to the federal bench. Now, Harry Reid needs to get his caucus in line, give Southwick the "up-or-down vote" the right is bleating about, and reject him--50-49 if necessary. The message must be sent that these radical right, out of the mainstream judges will not make it onto the bench so long as there is a Democratic Congress. That takes a scalp, and there is no nominee that deserves to go down in heavier flames than Leslie Southwick.
Cracking the Party
Today, Steve Benen noted that House Minority Leader John Boehner (R-OH) has done a surprisingly good job keeping his caucus in line. In three relatively popular bills that recently came to a vote on the House floor (Pay Equity, Child Healthcare, and Troop Readiness), Boehner managed to keep Republican defections to 2, 5, and 6, respectively. Democrats can't get that level of uniformity even when they're in the majority, and when they were in the minority half the time the party broke more often than Humpty-Dumpty. So it's an impressive display by Boehner (though whether it is wise to have his whole party on record against these issues is something else entirely).
But on the presidential side, things are looking less sanguine. Mike Huckabee strongly hinted today that he would consider an independent, third party run if the GOP nominated a pro-choice or pro-gay rights candidate. It's clearly a reference to Giuliani (and Romney?), who are now the front-runners for the nomination. The Christianist wing of the Republican Party is not happy with either of those two folk, does not trust the institutional branch of its party, and I can see a serious flight to a third party candidate if they nominate someone who is even perceived to be moderate on social issues.
And if the GOP doesn't nominate a moderate? Well, I don't think that Michael Bloomberg is running, but if he does, it will because the Republican Party nominated a winger. And once again, if that happens, you'll see a GOP split that can only help Democrats.
There are a few candidates I think might be able to thread the needle (McCain, Thompson). And it's far from clear that Huckabee's threat is genuine. But it did raise my eyebrows. A GOP crackup is something I've been predicting for years. The day of reckoning may be close.
But on the presidential side, things are looking less sanguine. Mike Huckabee strongly hinted today that he would consider an independent, third party run if the GOP nominated a pro-choice or pro-gay rights candidate. It's clearly a reference to Giuliani (and Romney?), who are now the front-runners for the nomination. The Christianist wing of the Republican Party is not happy with either of those two folk, does not trust the institutional branch of its party, and I can see a serious flight to a third party candidate if they nominate someone who is even perceived to be moderate on social issues.
And if the GOP doesn't nominate a moderate? Well, I don't think that Michael Bloomberg is running, but if he does, it will because the Republican Party nominated a winger. And once again, if that happens, you'll see a GOP split that can only help Democrats.
There are a few candidates I think might be able to thread the needle (McCain, Thompson). And it's far from clear that Huckabee's threat is genuine. But it did raise my eyebrows. A GOP crackup is something I've been predicting for years. The day of reckoning may be close.
The Legions of Hell Storm Detroit
Yet another victory for the forces of Darkness: Cerberus Takes Control of Chrysler.
It's especially good because reading out loud, it almost sounds like "Cerberus takes control of Christ."
Satan, 1, Holy Spirit, 0. Game on!
It's especially good because reading out loud, it almost sounds like "Cerberus takes control of Christ."
Satan, 1, Holy Spirit, 0. Game on!
Thursday, August 02, 2007
The Blue Devil You Know....
As the Duke rape case receded into the background, I wrote a post noting that most people wrongly accused of crimes fare much worse than the Duke defendants. Indeed, in at least some sense, the justice system behaved exactly as it should have in this sort of situation. Certainly, we all agree that the Duke players should have never been charged. But ideally, the justice system has fail-safes to account for that situation, and they kicked in beautifully. At the end of the day, the case never went to trial, the innocent men were exonerated in the public eye, and the prosecutor whose ethical breaches were what caused the problem in the first place was harshly disciplined.
Sadly, this is very atypical. While men and women are wrongfully accused of crimes every day, few end up with even the modestly "happy" ending the Duke players received. Most cases at least go to trial, often times they are convicted, and even once they are exonerated, only in the rarest of cases is the prosecutor even admonished, let alone disciplined, for any ethical violations they may have committed in the course of pursuing the all-important conviction. By and large, the conduct that provoked the calls for Mike Nifong's head is conduct that we are all too willing to condone. In other words, for all the gross injustices Nifong perpetuated in his prosecution of the Duke case, his real mistake, as CUNY Law Professor Victor Goode argues, was "treating three middle class white defendants as if they were poor and Black."
Richard Moran, a Sociology Professor at Mt. Holyoke College, found that two-thirds of wrongful death penalty convictions are the result, not of "innocent" mistakes or errors, of "intentional, willful, malicious prosecutions by criminal justice personnel." Moran continues:
Alexandra Lahav comments:
For a long time now, my impression of the mentality many prosecutors seem to hold is that their job is to pursue convictions, not justice. There are a variety of reasons this might have developed, from a natural outgrowth of having an adversarial system to a political desire to seem "tough on crime." Nonetheless, too often the lust to put someone, anyone, behind bars leads to illegal activity that needs to be punished. The integrity of our entire criminal justice system is jeopardizes when its agents can freely get away with illegal and unethical conduct that comprise everyone's right to a fair trial. If we are to do justice to what happened to the Duke players, we need to state a firm commitment to never tolerating this sort of behavior--even where the defendants don't have the resources to make it onto our TV screens.
Sadly, this is very atypical. While men and women are wrongfully accused of crimes every day, few end up with even the modestly "happy" ending the Duke players received. Most cases at least go to trial, often times they are convicted, and even once they are exonerated, only in the rarest of cases is the prosecutor even admonished, let alone disciplined, for any ethical violations they may have committed in the course of pursuing the all-important conviction. By and large, the conduct that provoked the calls for Mike Nifong's head is conduct that we are all too willing to condone. In other words, for all the gross injustices Nifong perpetuated in his prosecution of the Duke case, his real mistake, as CUNY Law Professor Victor Goode argues, was "treating three middle class white defendants as if they were poor and Black."
Richard Moran, a Sociology Professor at Mt. Holyoke College, found that two-thirds of wrongful death penalty convictions are the result, not of "innocent" mistakes or errors, of "intentional, willful, malicious prosecutions by criminal justice personnel." Moran continues:
Yet too often this behavior is not singled out and identified for what it is. When a prosecutor puts a witness on the stand whom he knows to be lying, or fails to turn over evidence favorable to the defense, or when a police officer manufactures or destroys evidence to further the likelihood of a conviction, then it is deceptive to term these conscious violations of the law — all of which I found in my research — as merely mistakes or errors.
[...]
Strangely, our misunderstanding of the real cause underlying most wrongful convictions is compounded by the very people who work to uncover them. Although the term “wrongfully convicted” is technically correct, it also has the potential to be misleading. It leads to the false impression that most inmates ended up on death row because of good-faith mistakes or errors committed by an imperfect criminal justice system — not by malicious or unlawful behavior.
For this reason, we need to re-frame the argument and shift our language. If a death sentence is overturned because of malicious behavior, we should call it for what it is: an unlawful conviction, not a wrongful one.
Alexandra Lahav comments:
Moran suggests that we change our rhetoric (calling these “unlawful” instead of “wrongful convictions”) and establish more specific standards for overturning convictions. These suggestions are too weak. The real problem, as he points out, is “the hearts and souls of those whose job it is to uphold the law.” I am not sure whether law or ethics rules can change hearts and minds, but setting that philosophical debate aside the law surely can put fear into the hearts and minds of prosecutors by actually punishing them for misconduct. All prosecutors who engage in such conduct should be fired and disbarred.
For a long time now, my impression of the mentality many prosecutors seem to hold is that their job is to pursue convictions, not justice. There are a variety of reasons this might have developed, from a natural outgrowth of having an adversarial system to a political desire to seem "tough on crime." Nonetheless, too often the lust to put someone, anyone, behind bars leads to illegal activity that needs to be punished. The integrity of our entire criminal justice system is jeopardizes when its agents can freely get away with illegal and unethical conduct that comprise everyone's right to a fair trial. If we are to do justice to what happened to the Duke players, we need to state a firm commitment to never tolerating this sort of behavior--even where the defendants don't have the resources to make it onto our TV screens.
Wednesday, August 01, 2007
The Chronicle of Madison's Tomb: Why "Roe Rage" Has Nothing To Do With Legal Theory
Matt Yglesias points me to a new article by Yale Law Professors Reva Siegel and Robert Post, entitled "Roe Rage: Democratic Constitutionalism and Popular Backlash." It makes a lot of points, but one of them is that the significance of the anti-Roe backlash has been wildly over-stated.
Law professors like to feel important. We spend a lot of time mulling over legal issues, whether an argument or case is legally sound, what is the "right" answer to legal questions. And so, on the rare occasion that a legal case animates a good chunk of the American people, as Roe has, we like to delude ourselves into thinking that the broader population is thinking about the case the same way we are--as law, not policy. We talk about whether kicking the issue to legislatures will or will not accord their decision greater popular legitimacy. Fans of strict constructionism or originalism deploy those legal arguments as to why the decision was wrong, and argue that the opinion's lack of grounding in these concrete principles of law explain and justify the popular resistance to it. Above all else, we frame the debate as not being "results-oriented" (indeed, one of the critiques levied at Roe is that it was "results-oriented"). The entire discourse helps persuade ourselves that the legal theory debates that normally stay internal to the academy have real world significance.
To put it bluntly: this wildly overestimates the background the average person has in legal theory. People simply aren't that wedded to particular models of judicial interpretation. People are results oriented. The people who want to see abortion legal will support Roe because it insures that legality. The people who want abortion outlawed oppose Roe because it prevents that outcome. Some people might enlist these theoretical battles as support for their preferred side, but any honest observer knows that the tail is wagging the dog. Outside a select few, the questions of whether or not Roe fits a certain legal theory or principle is simply not the controlling issue. Ultimately, Roe is controversial solely because abortion is controversial, and the legal particulars of the ruling have very little to do with it.
To illustrate this point, I give you, for the first time, the Chronicle of Madison's Tomb:
*****
It was a stunning find. Buried away in a Richmond museum's storage warehouse, a curator stumbled across a box containing hitherto unknown letters, essays, correspondences, and other personal effects of James Madison. It was a veritable treasure trove of information. Much of the material was useful only to flesh out the details of Madison's personal life and that of his contemporaries. But far and away the most exciting item was documentation of a previously unknown series of debates held by the framers over the drafting of the Ninth Amendment.
The Ninth Amendment reads as follows: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It was introduced to allay the concerns that listing a specified set of rights would imply that any right not listed would be left at the mercy of the government. But which rights are so protected? For generations, it has been perhaps the most cryptic and mysterious element of the bill of rights. Robert Bork once referred to it as an “inkblot.” Though few have been quite so disparaging, it has never been entirely clear what activity, if any, was covered by the amendment.
The new documents shed shocking new light on the original intent of the Ninth Amendment. At the urging of Abigail Adams, Rufus King of Massachusetts had questioned whether or not the use of herbal or physical abortifacients would be included among the liberties protected by the amendment. Madison recalled that the question was entirely unexpected by the chamber, but provoked a surprisingly vigorous debate. Caught unawares, Madison assured King that the amendment was meant to be read more narrowly than that, and would not include abortion. But he had miscalculated. The anti-federalist delegates to the convention, for whom the broad protections of the Bill of Rights were critical to guaranteeing their support, immediately expressed their opposition to any “narrow” reading of the amendments. John Dickinson of Delaware protested “if the private, personal decisions of fathers as to whether to bear children is within the province of the state, then the liberties Mr. Madison assures us will be protected [by the amendment] are meaningless.” Several other delegates argued that controlling family size was important to their landed constituents, who did not want their large estates to be broken up among many heirs. Surprisingly, several southern representatives also weighed in support of protecting abortion. “Our economy,” Charles Pinckney argued, “is dependent on being able to predict and utilize the labor of our slaves. We need to be able to control when our women give birth, lest a significant portion of our workforce be render incapacitated at inconvenient times.” Several abolitionist delegates responded with their discontent at any further perpetuation of the slave system, and the ailing Ben Franklin archly replied “or perhaps, Mr. Pinckney, you need to bury proof of some of your fellows’ ‘indiscretions’?” Pinckney began to respond furiously, but Madison, seeing the consensus on the slave issue that had so painstakingly been crafted over the course of the negotiations wavering, interjected.
“Gentleman, the slave issue has already been addressed in the most careful and meticulous fashion in the convention, and we would be wise not to resurrect it now, lest we threaten all the progress we have made thus far. Mr. Franklin, the constitution we have all agreed to here has already conceded that slavery will remain for the foreseeable future. Hopefully, it will begin to abolish itself soon enough. But in the meantime, it has been established that it is up to the slave owners how to treat their property. This, however, is a point wholly separate from the scope of the amendment under consideration.”
“That may be, Mr. Madison,” Alexander Hamilton intervened, “but the remarks by Mr. Dickinson and his esteemed colleagues are not without warrant. How would the government go about barring abortions? Would we seize our pregnant wives and keep them under lock and key until birth? Or would we quarter soldiers in our bedchambers, to insure that nothing untoward occurred?” The reference to the recently approved Third Amendment caused a stir in the chamber, and Madison recounted that between the southern delegation, the considerable number of wealthy representatives who worried about what uncontrolled birthrates would mean for their estates, and the sizable contingent of delegates who were opposed to any significant reduction in the protections of the Ninth Amendment, “nearly every one of my fellows signaled their approval in one way or another.”
“I was honored and privileged to serve in the medical division of the Continental Army,” North Carolina’s Hugh Williamson commented, “but I did not intend for the army to remain on my medical practice’s doorstep for all the nation’s history.”
Trying to prevent the meeting from getting entirely derailed, Madison spoke again “it seems we are all in agreement that the Amendment would protect the choice to abort. But this very discussion, friends, shows the vigor of the proposal. By careful deliberation and discussion amongst our learned fellows, we were able to ascertain the status of this issue and insure its protection. We should be so confident that our successors will be as wise as ourselves, able to make similar determinations so as to protect and defend the rights of the people, enumerated and not.”
* * *
The discovery sent shockwaves through the political establishment. Several conservative politicians immediately labeled it a hoax, but after a dozen historical experts were taken to examine the documents, they unanimously vouched for their authenticity. Pro-choice advocates immediately pounced, using Madison’s notes as proof that the original intent of the bill of rights included protecting the right to abortion. They launched a new wave of litigation to clarify and expand the right, and demanded that their conservative peers, who for so long had insisted that constitutional clauses be interpreted by the original meaning, apply their commitments by publicly affirming Roe v. Wade.
A few conservative law professors, who had staked their professional reputations on promulgating the doctrine of originalism, did just that. But most right-wing politicians and academics balked. Their opposition to abortion, after all, was premised primarily on their belief that it was murder—an absolute moral wrong. Signing on to a constitutional abortion right was simply unconscionable. Several said as much, arguing that any government which allows the murder of unborn children is complicit in monstrous human rights atrocities, and no longer commands the allegiance of its people.
Most anti-abortion activists, however, did not publicly take such an extreme stance. But after a proposed amendment “granting the states the exclusive power to enact any regulation or law governing abortion,” failed to pass Congress, they realized the needed to create new constitutional arguments that would legitimize their preferred policy positions.
Some repudiated originalism entirely. Louisiana’s Republican Senator derided the new-found liberal commitment to originalism, observing that “for decades we were lectured about ‘evolving standards of decency,’ and the ‘living constitution.’ Now we dig up one artifact that affirms the liberal position, and suddenly they’re all about original intent? It’s simply disingenuous, and we should not accept this slight of hand.” A prominent Black Republican seized on the slavery link, arguing that “this acceptance of abortion was done on the backs of my fathers and mothers, designed to control them for master. Who knew the Democratic Party would so enthusiastically embrace the fruits of the slave system?” A few self-described “pro-life feminists” made similar arguments, noting that the prevailing motivation for the delegates was so that husband’s could further control their wives.
Others sought to modify but preserve the originalist doctrine, while still arguing for why it would permit abortion restrictions. Defending its “spousal consent” law against a constitutional challenge, Missouri seized on Dickinson’s reference to a “father’s” choice as to whether to have children as proof that, as originally understood, it was not the women who had the right to choose an abortion, but the father. More abstractly, one professor remarked that “Congress passed the Alien & Sedition Act in the immediate wake of the First Amendment, and today we recognize that as the paradigmatic example of what the First Amendment forbids. Similarly, just because the founders didn’t recognize the way in which they were sacrificing their ideals at the time, doesn’t mean that we are bound to repeat their fallacy.”
Ultimately, very little changed. Liberals won a few victories increasing abortion rights at the margin. But by and large, anti-abortion forces simply re-entrenched elsewhere, finding new legal theories and arguments to justify their old positions. Now, it was liberals pronouncing that the original intent was controlling, and conservatives arguing just as vociferously that a more holistic, evolved outlook was necessary.
******
The point of this parable is not to argue that such a debate ever happened, or that this would be its result if it did. The point is to show just how unimportant the "legal" part of the argument is to the anti-Roe crowd. It’s almost purely a handmaiden for policy preferences. Roe could be the most tightly reasoned opinion ever written, a masterful example of every conservative maxim of jurisprudence, and it'd be every bit as controversial as it is today. People don’t pick their legal positions to match their legal theory, they pick their legal theory to match their positions. Certainly, we’re willing to sometimes follow a theory to undesirable outcomes in order to stay consistent. But that moral flexibility has limits, and for most people, those limits aren’t very far out. If adhering to legal principle will lead to genuinely unacceptable outcomes, the principle is what’s going to give. And the underlying factor that sparks most serious public debates about law isn't disputes over legal theory, but disagreements about morality and policy.
Law professors like to feel important. We spend a lot of time mulling over legal issues, whether an argument or case is legally sound, what is the "right" answer to legal questions. And so, on the rare occasion that a legal case animates a good chunk of the American people, as Roe has, we like to delude ourselves into thinking that the broader population is thinking about the case the same way we are--as law, not policy. We talk about whether kicking the issue to legislatures will or will not accord their decision greater popular legitimacy. Fans of strict constructionism or originalism deploy those legal arguments as to why the decision was wrong, and argue that the opinion's lack of grounding in these concrete principles of law explain and justify the popular resistance to it. Above all else, we frame the debate as not being "results-oriented" (indeed, one of the critiques levied at Roe is that it was "results-oriented"). The entire discourse helps persuade ourselves that the legal theory debates that normally stay internal to the academy have real world significance.
To put it bluntly: this wildly overestimates the background the average person has in legal theory. People simply aren't that wedded to particular models of judicial interpretation. People are results oriented. The people who want to see abortion legal will support Roe because it insures that legality. The people who want abortion outlawed oppose Roe because it prevents that outcome. Some people might enlist these theoretical battles as support for their preferred side, but any honest observer knows that the tail is wagging the dog. Outside a select few, the questions of whether or not Roe fits a certain legal theory or principle is simply not the controlling issue. Ultimately, Roe is controversial solely because abortion is controversial, and the legal particulars of the ruling have very little to do with it.
To illustrate this point, I give you, for the first time, the Chronicle of Madison's Tomb:
*****
It was a stunning find. Buried away in a Richmond museum's storage warehouse, a curator stumbled across a box containing hitherto unknown letters, essays, correspondences, and other personal effects of James Madison. It was a veritable treasure trove of information. Much of the material was useful only to flesh out the details of Madison's personal life and that of his contemporaries. But far and away the most exciting item was documentation of a previously unknown series of debates held by the framers over the drafting of the Ninth Amendment.
The Ninth Amendment reads as follows: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It was introduced to allay the concerns that listing a specified set of rights would imply that any right not listed would be left at the mercy of the government. But which rights are so protected? For generations, it has been perhaps the most cryptic and mysterious element of the bill of rights. Robert Bork once referred to it as an “inkblot.” Though few have been quite so disparaging, it has never been entirely clear what activity, if any, was covered by the amendment.
The new documents shed shocking new light on the original intent of the Ninth Amendment. At the urging of Abigail Adams, Rufus King of Massachusetts had questioned whether or not the use of herbal or physical abortifacients would be included among the liberties protected by the amendment. Madison recalled that the question was entirely unexpected by the chamber, but provoked a surprisingly vigorous debate. Caught unawares, Madison assured King that the amendment was meant to be read more narrowly than that, and would not include abortion. But he had miscalculated. The anti-federalist delegates to the convention, for whom the broad protections of the Bill of Rights were critical to guaranteeing their support, immediately expressed their opposition to any “narrow” reading of the amendments. John Dickinson of Delaware protested “if the private, personal decisions of fathers as to whether to bear children is within the province of the state, then the liberties Mr. Madison assures us will be protected [by the amendment] are meaningless.” Several other delegates argued that controlling family size was important to their landed constituents, who did not want their large estates to be broken up among many heirs. Surprisingly, several southern representatives also weighed in support of protecting abortion. “Our economy,” Charles Pinckney argued, “is dependent on being able to predict and utilize the labor of our slaves. We need to be able to control when our women give birth, lest a significant portion of our workforce be render incapacitated at inconvenient times.” Several abolitionist delegates responded with their discontent at any further perpetuation of the slave system, and the ailing Ben Franklin archly replied “or perhaps, Mr. Pinckney, you need to bury proof of some of your fellows’ ‘indiscretions’?” Pinckney began to respond furiously, but Madison, seeing the consensus on the slave issue that had so painstakingly been crafted over the course of the negotiations wavering, interjected.
“Gentleman, the slave issue has already been addressed in the most careful and meticulous fashion in the convention, and we would be wise not to resurrect it now, lest we threaten all the progress we have made thus far. Mr. Franklin, the constitution we have all agreed to here has already conceded that slavery will remain for the foreseeable future. Hopefully, it will begin to abolish itself soon enough. But in the meantime, it has been established that it is up to the slave owners how to treat their property. This, however, is a point wholly separate from the scope of the amendment under consideration.”
“That may be, Mr. Madison,” Alexander Hamilton intervened, “but the remarks by Mr. Dickinson and his esteemed colleagues are not without warrant. How would the government go about barring abortions? Would we seize our pregnant wives and keep them under lock and key until birth? Or would we quarter soldiers in our bedchambers, to insure that nothing untoward occurred?” The reference to the recently approved Third Amendment caused a stir in the chamber, and Madison recounted that between the southern delegation, the considerable number of wealthy representatives who worried about what uncontrolled birthrates would mean for their estates, and the sizable contingent of delegates who were opposed to any significant reduction in the protections of the Ninth Amendment, “nearly every one of my fellows signaled their approval in one way or another.”
“I was honored and privileged to serve in the medical division of the Continental Army,” North Carolina’s Hugh Williamson commented, “but I did not intend for the army to remain on my medical practice’s doorstep for all the nation’s history.”
Trying to prevent the meeting from getting entirely derailed, Madison spoke again “it seems we are all in agreement that the Amendment would protect the choice to abort. But this very discussion, friends, shows the vigor of the proposal. By careful deliberation and discussion amongst our learned fellows, we were able to ascertain the status of this issue and insure its protection. We should be so confident that our successors will be as wise as ourselves, able to make similar determinations so as to protect and defend the rights of the people, enumerated and not.”
* * *
The discovery sent shockwaves through the political establishment. Several conservative politicians immediately labeled it a hoax, but after a dozen historical experts were taken to examine the documents, they unanimously vouched for their authenticity. Pro-choice advocates immediately pounced, using Madison’s notes as proof that the original intent of the bill of rights included protecting the right to abortion. They launched a new wave of litigation to clarify and expand the right, and demanded that their conservative peers, who for so long had insisted that constitutional clauses be interpreted by the original meaning, apply their commitments by publicly affirming Roe v. Wade.
A few conservative law professors, who had staked their professional reputations on promulgating the doctrine of originalism, did just that. But most right-wing politicians and academics balked. Their opposition to abortion, after all, was premised primarily on their belief that it was murder—an absolute moral wrong. Signing on to a constitutional abortion right was simply unconscionable. Several said as much, arguing that any government which allows the murder of unborn children is complicit in monstrous human rights atrocities, and no longer commands the allegiance of its people.
Most anti-abortion activists, however, did not publicly take such an extreme stance. But after a proposed amendment “granting the states the exclusive power to enact any regulation or law governing abortion,” failed to pass Congress, they realized the needed to create new constitutional arguments that would legitimize their preferred policy positions.
Some repudiated originalism entirely. Louisiana’s Republican Senator derided the new-found liberal commitment to originalism, observing that “for decades we were lectured about ‘evolving standards of decency,’ and the ‘living constitution.’ Now we dig up one artifact that affirms the liberal position, and suddenly they’re all about original intent? It’s simply disingenuous, and we should not accept this slight of hand.” A prominent Black Republican seized on the slavery link, arguing that “this acceptance of abortion was done on the backs of my fathers and mothers, designed to control them for master. Who knew the Democratic Party would so enthusiastically embrace the fruits of the slave system?” A few self-described “pro-life feminists” made similar arguments, noting that the prevailing motivation for the delegates was so that husband’s could further control their wives.
Others sought to modify but preserve the originalist doctrine, while still arguing for why it would permit abortion restrictions. Defending its “spousal consent” law against a constitutional challenge, Missouri seized on Dickinson’s reference to a “father’s” choice as to whether to have children as proof that, as originally understood, it was not the women who had the right to choose an abortion, but the father. More abstractly, one professor remarked that “Congress passed the Alien & Sedition Act in the immediate wake of the First Amendment, and today we recognize that as the paradigmatic example of what the First Amendment forbids. Similarly, just because the founders didn’t recognize the way in which they were sacrificing their ideals at the time, doesn’t mean that we are bound to repeat their fallacy.”
Ultimately, very little changed. Liberals won a few victories increasing abortion rights at the margin. But by and large, anti-abortion forces simply re-entrenched elsewhere, finding new legal theories and arguments to justify their old positions. Now, it was liberals pronouncing that the original intent was controlling, and conservatives arguing just as vociferously that a more holistic, evolved outlook was necessary.
******
The point of this parable is not to argue that such a debate ever happened, or that this would be its result if it did. The point is to show just how unimportant the "legal" part of the argument is to the anti-Roe crowd. It’s almost purely a handmaiden for policy preferences. Roe could be the most tightly reasoned opinion ever written, a masterful example of every conservative maxim of jurisprudence, and it'd be every bit as controversial as it is today. People don’t pick their legal positions to match their legal theory, they pick their legal theory to match their positions. Certainly, we’re willing to sometimes follow a theory to undesirable outcomes in order to stay consistent. But that moral flexibility has limits, and for most people, those limits aren’t very far out. If adhering to legal principle will lead to genuinely unacceptable outcomes, the principle is what’s going to give. And the underlying factor that sparks most serious public debates about law isn't disputes over legal theory, but disagreements about morality and policy.
It Comes Back To Bite You
The reaction of some on the Christian Right to Hindu Chaplain Rajan Zed's groundbreaking prayer before the US Senate was a textbook case of religious bigotry--one of the worst examples to mar the American political scene in some time. Zed's response has been quite graceful, and while I am saddened that a significant portion of America's "Christian" community has reacted so poorly, I am heartened that so many Americans of all creeds have stood up to defend the chaplain. Hindu groups are urging 2008 Presidential candidates to condemn the ugly anti-Hindu sentiments that were present in the protest, and I hope every last one does so.
For once the door is open to religious bigotry of this sort, none of us are safe. In Iowa, supporters of Republican Presidential candidate Mike Huckabee (former governor of Arkansas) attacked fellow Republican candidate Senator Sam Brownback (KS) on religious grounds. A letter by the Rev. Tim Rude urges that evangelicals support Huckabee because "he's one of us," rather than Brownback, who is Catholic. Rude writes that "as a recovering Catholic myself,(!) that is all I need to know about his discernment when compared to the Governor's."
This is a slimy broadside that insults the faith of millions of Americans. I hope and expect that Huckabee will disavow it, of course. But this is the path of religiously divisive politics in America. Those of us who see religion as something holy and sacred in our lives must be ever-vigilant to insure that our faith is not degraded into becoming just another political football.
For once the door is open to religious bigotry of this sort, none of us are safe. In Iowa, supporters of Republican Presidential candidate Mike Huckabee (former governor of Arkansas) attacked fellow Republican candidate Senator Sam Brownback (KS) on religious grounds. A letter by the Rev. Tim Rude urges that evangelicals support Huckabee because "he's one of us," rather than Brownback, who is Catholic. Rude writes that "as a recovering Catholic myself,(!) that is all I need to know about his discernment when compared to the Governor's."
This is a slimy broadside that insults the faith of millions of Americans. I hope and expect that Huckabee will disavow it, of course. But this is the path of religiously divisive politics in America. Those of us who see religion as something holy and sacred in our lives must be ever-vigilant to insure that our faith is not degraded into becoming just another political football.
Gee, Thanks Mom
Freshman Representative Brad Ellsworth (D-IN) recently was selected as The Hill's number one most beautiful person in Congress. His mother's reaction: "As his mom, I never really thought he was good-looking."
Ouch.
Via The Plank
Ouch.
Via The Plank
Salvation is Here
The WaPo reports that the UN has approved a large, 26,000 person peacekeeping force to be deployed to Darfur. As Kevin Drum notes, there are still barriers to getting the troops where they need to go: member nations may be reluctant to supply forces, and Sudan might not let them into the country (I, personally, could care less what they think, but the UN tends to be "sensitive" to such objections). But I have to admit, I thought that there would never be any progress on this issue that didn't come in the form of unilateral US or EU intervention. Now I know that, given time and patient diplomacy, we can form an international response team that will arrive only two years too late to actually have a meaningful impact on the genocide. Truly, this is a shining moment in the history of international governance.
Tuesday, July 31, 2007
Ted Stevens Has Gonads The Size of Bowling Balls
I know that if the FBI and IRS raided my house, I wouldn't threaten to put a hold on the Ethics Reform bill that just passed the House. Or perhaps I would, depending on your point of view. But, still, it takes huevos grandes, and just like the word "internet," Ted Stevens doesn't know the meaning of Chutzpah.
Culture of Corruption, what?
****
Going political for a moment, what does this say about Stevens' Senate seat? Ted Stevens is the kingpin of Alaska's political establishment, and I have to think that if he runs, nothing short of an illegal immigrant under-age gay prostitute ring scandal will bring him down. But he may not run (he may be in prison). In which case, can Democrats poach his seat? Maybe, but don't get too excited. In 2006, a Democratic wave year, we couldn't win the Alaska governorship despite a) it being an open seat where b) the incumbent was removed because he lost his own primary (in other words, the GOP was weak in Alaska specifically) and c) we had our ideal candidate (former Governor Tony Knowles). I have to think that if we can't win in a perfect storm like that, we can't win at all. But this set of circumstances might be even more GOP-unfriendly. 2008 still looks to be an overall strong year for Dems. The corruption scandal that is tearing through the Alaskan political establishment is taking down top GOP figures left and right, and if Stevens' goes down, the Alaska GOP could reach Ohio-levels of dysfunction. All that would be needed is a strong candidate. Anyone know what our bench looks like in the Arctic?
Culture of Corruption, what?
****
Going political for a moment, what does this say about Stevens' Senate seat? Ted Stevens is the kingpin of Alaska's political establishment, and I have to think that if he runs, nothing short of an illegal immigrant under-age gay prostitute ring scandal will bring him down. But he may not run (he may be in prison). In which case, can Democrats poach his seat? Maybe, but don't get too excited. In 2006, a Democratic wave year, we couldn't win the Alaska governorship despite a) it being an open seat where b) the incumbent was removed because he lost his own primary (in other words, the GOP was weak in Alaska specifically) and c) we had our ideal candidate (former Governor Tony Knowles). I have to think that if we can't win in a perfect storm like that, we can't win at all. But this set of circumstances might be even more GOP-unfriendly. 2008 still looks to be an overall strong year for Dems. The corruption scandal that is tearing through the Alaskan political establishment is taking down top GOP figures left and right, and if Stevens' goes down, the Alaska GOP could reach Ohio-levels of dysfunction. All that would be needed is a strong candidate. Anyone know what our bench looks like in the Arctic?
House Passes Ledbetter Act
The US House of Representatives has taken the first step in reversing the disgraceful Ledbetter decision, which held that only the initial act to offer discriminatory pay checks, but not the disparate checks themselves, constituted illegitimate discrimination under Title VII. As a result, the 180-300 day deadline for filing suit would apply to the original decision to discriminate, but not the actual discrimination itself. The net effect was to make it nearly impossible for these suits to be filed, because the evidence of pay disparity would only manifest itself as years passed and the pay inequality grew more acute--but this would be after the statute of limitations expired. Even the arch-conservative Captain Ed admitted that this created an unreasonable policy burden on women, who would need to find out what their male co-workers were being paid, ascertain a discriminatory motive, gather enough evidence to make the case ripe, all in less than a year after the first decision was made.
The vote was 225-199, along mostly party lines. Democrats picked up Chris Shays of Connecticut and Don Young (!) of Alaska. We lost Reps. Dan Boren of Oklahoma, Allen Boyd of Florida, Nancy Boyda of Kansas, Bud Cramer of Alabama, Nick Lampson of Texas and Tim Mahoney of Florida.
Unfortunately, this was the easy part. Most people expect the Senate to pose a tougher test, and President Bush has threatened a veto.
The National Association of Manufacturers has been throwing a fit over at its blog, but me thinks they doth spin too much. Here's their press release:
The last point is at least vaguely tenable--it may be difficult to find witnesses and original documents on why the original pay discrimination decision was made. It's unclear to me, however, if that will hurt the defendants or the complainant more, as the woman suing will be just as unable to find documentation supporting her claim of discrimination as the company will be in finding defenses. But this argument is hardly controlling, and in any event its buried underneath a mountain of foolishness The law would make it "more difficult for employers to rectify cases of discrimination"? What? How? It doesn't say, and that's a counter-intuitive claim, to say the least. They sort of argue that filing claims later would prevent companies from taking action against the problem, but a) it's entirely unclear why and b) it rests on the rather sad assumption that companies will only react to problems of discrimination while under threat of litigation. Here's a flash--maybe the companies the NAM represents could make efforts to end discrimination independent of their legal liability? After all, they have a "genuine concern" about the issue.
But more importantly, the NAM argument dodges the key assertion being made in favor of the bill: that every time someone receives a pay check that is smaller than her co-workers due to her gender, that's a unique instance of sex discrimination. I'm boggled that this is even controversial, and once that very simple argument is accepted, then all those crocodile tears Straczewski sheds over how the incidents are occurring "years in the past" moot. The incidents are occurring now, the discrimination is happening now, and the victims have the right to sue now.
I could take potshots at the NAM all day, but their an industry lobbying group, so I guess it's understandable (but still disappointing) that they'll go the hack route, rather than work progressively to make discrimination in their ranks a thing of the past. I'd rather do things with their cooperation, but in two years when we have the House, Senate, and Presidency, I'm perfectly happy to steamroller them if we have to.
The vote was 225-199, along mostly party lines. Democrats picked up Chris Shays of Connecticut and Don Young (!) of Alaska. We lost Reps. Dan Boren of Oklahoma, Allen Boyd of Florida, Nancy Boyda of Kansas, Bud Cramer of Alabama, Nick Lampson of Texas and Tim Mahoney of Florida.
Unfortunately, this was the easy part. Most people expect the Senate to pose a tougher test, and President Bush has threatened a veto.
The National Association of Manufacturers has been throwing a fit over at its blog, but me thinks they doth spin too much. Here's their press release:
he National Association of Manufacturers (NAM) expressed deep concern today about U.S. House – passed legislation that would make it more difficult for employers to rectify cases of discrimination and pave the way to endless litigation against businesses.
The Ledbetter Fair Pay Act of 2007 (H.R. 2831) is intended to reverse a recent U.S. Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber Company, which upheld statutory language that lawsuits alleging discrimination must be filed within a reasonable time frame (currently 180-300 days).
“Our members are committed to preventing discrimination of any kind in the workplace, but allowing people to file claims for things that happened years in the past won’t resolve or prevent further discrimination,” said Jason Straczewski, NAM director of employment and labor policy. “If discrimination is occurring, then employers have a genuine concern for rectifying the situation. Filing a complaint years after an incident works against this process, making it harder for a company to take action to prevent future problems.”
Straczewski also stressed that reasonable time constraints on filing ensures that witnesses and information regarding a case is still available. “Essentially, this legislation would open the door to lawsuits that employers cannot defend – where witnesses are unavailable and data is not obtainable. In a case like that, no one wins,” Straczewski added.
The last point is at least vaguely tenable--it may be difficult to find witnesses and original documents on why the original pay discrimination decision was made. It's unclear to me, however, if that will hurt the defendants or the complainant more, as the woman suing will be just as unable to find documentation supporting her claim of discrimination as the company will be in finding defenses. But this argument is hardly controlling, and in any event its buried underneath a mountain of foolishness The law would make it "more difficult for employers to rectify cases of discrimination"? What? How? It doesn't say, and that's a counter-intuitive claim, to say the least. They sort of argue that filing claims later would prevent companies from taking action against the problem, but a) it's entirely unclear why and b) it rests on the rather sad assumption that companies will only react to problems of discrimination while under threat of litigation. Here's a flash--maybe the companies the NAM represents could make efforts to end discrimination independent of their legal liability? After all, they have a "genuine concern" about the issue.
But more importantly, the NAM argument dodges the key assertion being made in favor of the bill: that every time someone receives a pay check that is smaller than her co-workers due to her gender, that's a unique instance of sex discrimination. I'm boggled that this is even controversial, and once that very simple argument is accepted, then all those crocodile tears Straczewski sheds over how the incidents are occurring "years in the past" moot. The incidents are occurring now, the discrimination is happening now, and the victims have the right to sue now.
I could take potshots at the NAM all day, but their an industry lobbying group, so I guess it's understandable (but still disappointing) that they'll go the hack route, rather than work progressively to make discrimination in their ranks a thing of the past. I'd rather do things with their cooperation, but in two years when we have the House, Senate, and Presidency, I'm perfectly happy to steamroller them if we have to.
Subtitle
Salty Femme has a great tag on the subtitle of her blog. It displays a spilled bag of salt, along with the following line: I'm sure Lot's wife had her reasons. I'm also sure she had a name.
I love her already.
I love her already.
Say Please for Paul
Incredibly, this is supposed to make me more inclined to support a Ron Paul presidency:
Via Kevin Drum, who remarks: "Have I mentioned lately that these guys are barking mad?" "These guys," in this case, referring to the folks over at The National Review who experience physical pleasure from seeing the US pulled out of NATO.
Personally, I think Paul will be more successful with this line of ads.
Look at those policy positions! Abolish the IRS and Federal Reserve; balance the budget; go back to the gold standard; pull out of the U.N. and NATO;....fence the borders; deport illegals; stop lecturing foreign governments about human rights; let the Middle East go hang. What's not to like?
Via Kevin Drum, who remarks: "Have I mentioned lately that these guys are barking mad?" "These guys," in this case, referring to the folks over at The National Review who experience physical pleasure from seeing the US pulled out of NATO.
Personally, I think Paul will be more successful with this line of ads.
Disappointing
This headline could have been so much of a better story than it was: "2nd-graders take on lunch lady -- and win."
I feel bad that the only blogging I'm doing is headline watching, but oh well.
I feel bad that the only blogging I'm doing is headline watching, but oh well.
Karl Marx Stirs
CNN.com headline: "Police: Workers asked for pay bump, got bumped off."
Two workers at an Atlanta car dealership were shot by their boss for asking for a raise.
Two workers at an Atlanta car dealership were shot by their boss for asking for a raise.
Monday, July 30, 2007
Denying Tenure
Over at The Corner, Stanley Kurtz wants to get rid of tenure. He predicts paroxysms of rage from the academy, which (as an aspiring academic) I would be happy to dish out, if only he were to provide a serious argument in his own favor. Instead, he just makes a weird, unwarranted assertion that tenure is responsible for the "siege" on conservatives.
He doesn't spend any time showing why this might be so (that would take up valuable space better used to rail about the unstoppable left-wing stranglehold on American colleges and universities), but I presume the argument is that tenure is granted selectively to perpetuate institutional biases. There's really no proof this is happening, and while there are anecdotal instances where a department has operated as an ideological gatekeeper, they cut both ways. By and large, my impression of conservative complaints about the prevailing liberal orthodoxy of the academy is that a) they're upset that an influential segment of American society hasn't bought into their ideology hook, line, and sinker, and b) they'd rather use the "liberal" bogey-man and pull out a few fringe figures than engage in the substance of the arguments coming out of contemporary mainstream academia. I'm someone who's been sympathetic to the claim that there is a structural bias in favor of liberalism in academia, but this is ridiculous.
Anyway, Kurtz recommends starting with a conservative state legislature "reforming" the state university system. Matt Yglesias asks, why not Texas? UT-Austin certainly is a stronghold of liberalism in otherwise the blood-red Lone Star State. And Texas is currently one of the most highly regarded public universities in the country (highly regarded, of course, by the very left-wing pinkos we're trying to undermine). If UT got rid of tenure, what would happen? Yglesias predicts an exodus of top faculty, along with extreme difficulty recruiting top-level talent to take their place. The school would most likely plummet in reputation and academic output, compared to its peers that preserved tenure (who would poach the up-and-comers who might otherwise have considered Texas). And the state will suffer for it.
But it will strike a blow against the phantasmal liberal demon. So it must be done.
He doesn't spend any time showing why this might be so (that would take up valuable space better used to rail about the unstoppable left-wing stranglehold on American colleges and universities), but I presume the argument is that tenure is granted selectively to perpetuate institutional biases. There's really no proof this is happening, and while there are anecdotal instances where a department has operated as an ideological gatekeeper, they cut both ways. By and large, my impression of conservative complaints about the prevailing liberal orthodoxy of the academy is that a) they're upset that an influential segment of American society hasn't bought into their ideology hook, line, and sinker, and b) they'd rather use the "liberal" bogey-man and pull out a few fringe figures than engage in the substance of the arguments coming out of contemporary mainstream academia. I'm someone who's been sympathetic to the claim that there is a structural bias in favor of liberalism in academia, but this is ridiculous.
Anyway, Kurtz recommends starting with a conservative state legislature "reforming" the state university system. Matt Yglesias asks, why not Texas? UT-Austin certainly is a stronghold of liberalism in otherwise the blood-red Lone Star State. And Texas is currently one of the most highly regarded public universities in the country (highly regarded, of course, by the very left-wing pinkos we're trying to undermine). If UT got rid of tenure, what would happen? Yglesias predicts an exodus of top faculty, along with extreme difficulty recruiting top-level talent to take their place. The school would most likely plummet in reputation and academic output, compared to its peers that preserved tenure (who would poach the up-and-comers who might otherwise have considered Texas). And the state will suffer for it.
But it will strike a blow against the phantasmal liberal demon. So it must be done.
Foreshadow Cabinet
Democratic Presidential candidate Bill Richardson told a group of SEIU workers that, if nominated, he'd announce his cabinet prior to the election. For some reason, I was under the impression that was illegal, though I don't know why (election tampering of some sort, maybe?). I could be hallucinating, and in any event I actually would prefer it if voters knew who was going to be on their prospective President's "team" (as Richardson put it) prior to voting.
This reminds me to resurrect the old shadow cabinet idea. It's a bit too late for Democrats now, but in theory I still think it was a good idea.
This reminds me to resurrect the old shadow cabinet idea. It's a bit too late for Democrats now, but in theory I still think it was a good idea.
The End of the Road for PG?
Frequent Debate Link commenter PG has announced she's hanging up the spokes. I'm a bit skeptical--less than 12 hours after she wrote her farewell, she posted again, and she's planning on taking a long goodbye on De Novo. Certainly, I've seen plenty of bloggers say they're quitting, but have trouble going cold turkey. But if this is goodbye, it's been a good run, and hope to continue seeing you around the comments section here.
The End of the Road for PG?
Frequent Debate Link commenter PG has announced she's hanging up the spokes. I'm a bit skeptical--less than 12 hours after she wrote her farewell, she posted again, and she's planning on taking a long goodbye on De Novo. Certainly, I've seen plenty of bloggers say they're quitting, but have trouble going cold turkey. But if this is goodbye, it's been a good run, and hope to continue seeing you around the comments section here.c