Tribute To Senator William Proxmire

Former Senator William Proxmire (D-WI) died yesterday after a long battle with Alzheimer's. He was 90.

Senator Proxmire was emblematic of Wisconsin politicians--an independent thinker in the true sense of the term, Proxmire was unafraid to stand up for what he believed in, popular or not, and fight for what was just.

I am not abashed to say that I consider Senator Proxmire to be a true American hero. I do not use the word lightly. Though most obituaries focused on his admirable opposition to corruption, pork, and government waste, Senator Proxmire had a far more important issue he adopted as his own. For 20 years, from 1967 to 1986, William Proxmire gave one speech every single day congress was in session urging the American ratification of the Genocide Convention. When he started, it was considered a fanciful ambition. 3,211 speeches later, the America finally affirmed the absolute and categorical imperative to oppose genocide in an 83-11 vote.

The passage, signing, and ratification of the Genocide Convention was one of the high points for international law in the past century. The failure to enforce treaty was the nadir. I tremble to think of what Senator Proxmire would think of our current glib application of his favored son--where we can admit a situation constitutes genocide and still do nothing. Marisa Katz gives a hint on what Proxmire would think by reference to his intellectual comrade, Raphael Lemkin:

No doubt, when Raphael Lemkin coined and started to promote the term genocide, he hoped it would acquire enough of a moral stigma to actually restrain perpetrators and save lives. But Powell, in debunking the myth that the genocide convention legally compels signatories to action, and by invoking the word while making it explicit that no corresponding action is forthcoming, has succeeded in diluting the convention of much of its moral power. The European Union has since echoed the genocide allegation. (The EU had only recently shied away from the term, claiming that its August fact-finding mission hadn't turned up adequate evidence to warrant it. But, oh, how easy to say it once you know that doing so compels no action!)

In this context, then, I think it is important that we pay close attention to Senator Proxmire's heir as Wisconsin's maverick Senator: Russ Feingold. There is no question that, like Proxmire, Feingold is an independent with a passion for justice and an unswerving commitment to ethics. But as I also noted previously, Senator Feingold shows a disturbing lack of commitment to eradicating genocide in the world. It is telling that in his own tribute to Senator Proxmire on the Senate floor, Feingold said nary a word on Proxmire's career-long efforts in this regard. One wonders whether Feingold would have been one of the 11 nay voters, had he been in the Senate that fateful day.

For all our purported moral outrage about genocide, America goes to near super-human lengths to avoid proactively grappling with the subject. Raphael Lemkin's efforts to put genocide on the political map--literally inventing the term himself--can only be described as Herculean. No Senator in history has approached the type of commitment--to any cause--that Proxmire's one-speech-a-day effort represented. Today, we struggle to even get the world community to notice genocide even as it occurs under our own nose. We need someone who will not be silenced, will not be beaten, will not be discouraged, and who will make the world stand up, take notice, and pay heed to the victims of mass slaughter. We need another William Proxmire.

UPDATE: I'm taking some flack in comments for a perceived "cheap shot" at Senator Feingold. I stand by my comments. In a prior post (linked to above), I quoted a TNR article and Feingold as follows:

Feingold cast just one of three Democratic 'no' votes against the 1999 Kosovo bombing campaign. "It's a compelling notion that the American government has an obligation to stop brutality and genocide. I can't dispute that," he told the Milwaukee Journal-Sentinel in March of 1999. "But how can we be acting in Bosnia and Kosovo and not Rwanda, or Sudan, or East Timor, or even Tibet?"

The claim that Feingold might not have voted to ratify the Genocide Convention thus flows from three premises:
a) Feingold opposed US intervention in Kosovo despite admitting (or at least not contesting) that a genocide was being attempted there;
b) The Genocide Convention imposes affirmative obligations upon signatories to end genocide, which most international law scholars believe includes intervention when feasible;
hence
c) Feingold would not vote for a treaty that would bind him into doing something he wasn't prepared to vote for.

Feingold has explicitly questioned whether the US has an obligation to intervene and stop even admitted genocide. I think that at least raises the question of whether he would support a Convention designed to do just that. The interview in question, while perhaps a step forward, still falls short of what the Genocide Convention seems to mandate.

Snow Day

I left work early today because of a snowstorm (or at least, what DC whelps consider to be a snowstorm). I then immediately collapsed into a 5 hour long nap. Apparently, the Library of Congress, while absolutely amazing, was also more tiring than I suspected.

A few slightly-less-than-serious blog notes.

First: Can someone explain to me this ad, because I think I'm missing something. At the Bethesda Metro station, there was a billboard that said something like the following:

Need an MRI? You don't need a car! Bethesda MRI is only four blocks away!

Correct me if I'm wrong, but MRIs are for major knee injuries, correct? So how many people, exactly, would plan to walk the four blocks? Convienant for hale and hearty persons, perhaps, but isn't the type of injury that necessitates an MRI the same type that would make a 4 block walk rather difficult?

Second: I love how Michael Crowley characterizes ANWR regarding Republicans' latest efforts to resurrect the beast:

CQ also reports, by the way, that ANWR oil drilling, recently stripped from Congress's budget by House moderates, is back and stalking the countryside again like the unstoppable undead monster that it is.

Hmm...where have I heard rhetoric like this before? When life gives you Lemon...

[L]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under...Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so.
[...]
Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him. [Lamb's Chapel v. Center Moriches Sch. Dist, 508 U.S. 384, 398-99 (Scalia, J., dissenting) (1993)]

Ah...nothing like Zombie politics.

Big Government Choice

Professor Bainbridge links to two conservative authors, the former, Michael Barone, praising the state of conservatism, the latter, Chris Demuth, lamenting it. Specifically, Barone is thrilled at how in the past 50 years, society has become more competitive, with more choices, and more accountability. Demuth, by contrast, mourns the loss of a limited government and decries the "activist" Courts for their imposition on democratic order.

Umm, may I play the role of putting two and two together? Amongst the non-communist left, "choice" has always been an important value. Not just the number of choices available, of course, but also the number of people who can effectively choose. It is indeed nice to have a wide variety of luxury cars available (somehow, I think Professor Bainbridge would agree here). But it is also important from a "choice" paradigm to have more lower-price cars so that more people can choose to become car owners. Liberalism has especially focused on the latter, and--and here's where it splits radically with conservatives--it is far from confident that markets and private society acting alone will provide them. And, counter-intuitively perhaps, they also don't believe that an optimific level of choice will be achieved simply by saying "here everybody, do whatever you want as long as you don't kill each other."

Hence, liberals who like providing greater choice have pushed for programs that seek to meet this end. Unlike stifling communist collectivism ("everybody in the commune must grow wheat!"), the purpose of these programs was to allow individuals to find greater self-fulfillment, however they themselves define it. Rather than an assorted governmentally selected goodie-bag, the new liberal model has been along the lines of a toolbox, giving resources so that people can build their own communities, achieve their own dreams, define their own destiny. Sometimes, paradoxically, this means restricting certain choices (like the choice to discriminate). And of course, like any group, "choice" is not a trump value. But most liberal philosophy of the past several decades has been heavily choice-influenced--and it's reflected in the policies we propose.

Some of these programs have been successful, others, obviously, have not. But if we put Barone (overall, choice has gone up) and Demuth (government has gotten more intrusive) together, do we not conclude that liberals have hit on something? Our model is working, or at least it's working if one agrees with the top-end goal (giving more people more choices on how to live their lives). Voters have more effective choice because the Court chose to intervene in Baker v. Carr. The ability of African-Americans to effectively choose and participate in public life can be directly traced to interventionist government, be it judicial (Brown v. Board) or legislative (the 1964 Civil Rights Act). And yes, the very real and very important choice of how to conduct one's intimate affairs has been strengthen by court decisions (Griswold v. Connecticut, Lawrence v. Texas). Somewhere along the line, choices that otherwise would have been unavailable, out of reach, or flatly illegal have been created because of liberal governmental and legal theory.

This may not affect Bainbridge too much, because, as he makes clear, he's not a choice-conservative (being more within the Burkean model). But for the conservative types who see choice as a value in of itself (and there are many), this has to be addressed. Conservatives seem to admit it themselves: government has continued to play an important role in our lives, and people still have more choices. We must have something right here.

Educating the Community

Rick Garnett wonders aloud at the dynamics of the school choice debate:

I'm sure it's a failing on my part, but I've never understood the appeal of the argument that poor children should be denied opportunities to escape (via vouchers, home-schooling, etc.) failing and failure-generating public schools because the departure of some kids would make things even worse for those kids who stayed behind. The argument is particularly tough to take (for me) coming from persons who would never send (and are not forced by circumstance to send) their own children to the schools in question.

With regards to vouchers specifically, I too share an aversion to certain liberals who seem to oppose them reflexively because they'll "weaken" public schools. Even the church/state argument I don't find compelling, and I consider myself pretty zealous on the issue. I think vouchers should be evaluated along the very simple paradigm of "will they fix the problem"? And I'm not sure they will. Awhile back, US News ran a feature article on school vouchers, and they raised a number of significant points that I think have been under-represented in the debate. First, even with voucher money, many poor families still wouldn't be able to afford many private schools. Second, and more importantly though, private schools are under no obligation to accept kids in the voucher program. Where are all the slots coming from to accommodate all these children? I don't think that increased demand would necessarily create more private schools, since the market price is effectively capped at the voucher level plus some (presumably small) amount of discretionary income the poor can spend on education. So the solution, to me, lacks cohesiveness.

But on to the meta-point of Garnett's question--which I think really is an attack on those who would prevent individuals from escaping poor schools because the overall community would suffer. Basically, an individualist critique. I think that an excellent engagement with that line of thinking is done by Charles Lawrence III in his article Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy), 114 Yale L.J. 1353 (2005) [PDF]. Like Garnett, I am uncomfortable when wealthy upper-class whites say that minority families should stay in inner-city schools, so it's worth noting that Lawrence is black and his children attend D.C. public schools (as he reveals in the article). I think that he raises many points which would be of interest to Garnett. Based on my vague recollections of the article (I don't have time to re-read it now--so some of this may just be my own musings), he thinks that we should view schools as a community issue, rather than just a collection of individuals acting as education consumers. In a school choice model, a community that has (say) 10 school age children might see them all attend different schools (or be home-schooled). This may be somewhat appealing because we like a breadth of choice. But I think we also lose something in such a situation. Education isn't just textbooks and word problems. I do believe it is some way intricately connected in a community of learning, an environment conducive to intellectual and personal development, both inside and outside school walls. When what was a cohesive community splinters of into dozens of fragmented individuals, those bonds are lost, and I think that students will suffer for it.

Lawrence says that instead of individualist solutions, we should look toward collective proposals that will both strengthen the community and rebuild the schools themselves. For example, he proposes that we extend affirmative action benefits to students of any race who attend integrated schools, to discourage white flight (one of the primary causes of inner-city school attrition). Presumably, he would also support endeavors like local tutoring organizations, daycare, and community-based academic resources, to cultivate a healthy academic community rather than focusing on particular persons. I am not hostile to individualism by any stretch, but I think schools are a perfect example of where its better to build bridges rather than break bonds. I highly recommend Lawrence's article, and think that it raises some interesting positions for our education debate.

UPDATE: Shavar Jefferies also takes up the issue in favor of "school choice" and more explicitly within a racial perspective. My answer remains the same. At the end of the day, even when they work as planned vouchers do little to aid community-building endeavors and more often actively harm them. That our system has not been integrated, that Brown's promise has been breached, is indeed an overlooked and severe problem. However, is not the answer a proactive effort to incorporate these communal values into the schools, rather than engaging in the fracturing and atomizing extreme individualism that only drives people further apart? We can't fix this problem alone, and I fear that a "school choice" paradigm erodes the bonds of trust that are our only hope of overcoming our segregated system.

Atheist Politics

I am Jewish. And, after a brief period in my teens where I wrestled with the question, I do (passively, at least), believe in God. Nevertheless, I bear no malice or ill-will or feeling of superiority toward my atheist friends. They have their beliefs, I have mine, and unlike issues of political substance, their private faith (or lack thereof) has no impact on my life. As such, I support wholeheartedly atheists' rights as American citizens under the First Amendment, and oppose their stigmatization and the constant barrage of attacks that rain down against them from the public sphere. It's wrong, anti-democratic, and reminiscent of our nation's worst prejudicial instincts. I condemn it whole-heartedly.

So I was sickened to read this account of a man Eugene Volokh calls a "leading atheist legal activist" and, as it happens, a man running for the Democratic nomination in the Alabama gubernatorial race. Larry Darby has expressed sympathy for David Duke, organized speeches for Holocaust deniers, says we live under a "Zionist-Occupied Government," and in general has a long history of anti-Jewish, anti-Zionist, and anti-Semitic comments. Volokh's words, I believe, ring true:

It seems to me very important that irreligious people participate in public debate, to defend the legitimacy of their views, and to protect themselves against religious discrimination and hostility. I don't agree with everything that all atheist activists urge; for instance, I don't think that the Establishment Clause is properly interpreted as banning religious speech by the government. Nonetheless, there are indeed some egregious forms of discrimination against the irreligious (or the less religious), for instance in child custody cases - these should be assiduously fought.
[...]
I therefore have nothing at all against atheist political movements in general, nor do I have any reason to believe that atheists generally have any hostility towards Jews, or affection for David Duke. Yet this makes it all the more important, it seems to me, for atheists who are deciding whom to ally themselves with - or for that matter, for members of other groups, such as Scouting for All or any marijuana decriminalization groups - to know Mr. Darby's views that I describe above, views with which I hope most atheists much disagree. Likewise, Alabama Democrats should know who's running in their primary, and should keep in mind the views I note above, even if some of them are tempted to agree with him on marijuana decriminalization, juvenile justice, or even religion in public life. (I doubt there are that many Alabama Democrats who do agree with him on those latter issues, but I imagine there are some.)

And it's also important for Jews - even in America, the place in the world in which it is probably safest to be a Jew - to be reminded that these sorts of views do exist in America, and in what might to many seem like quite unlikely circles.

He's dead on. But what really impresses me is how, responding some of the comments to his post, Professor Volokh immediately began an impassioned defense of atheists as a class, arguing that they do face significant prejudice in America today and that we have, as moral human beings, an obligation to oppose that prejudice. A recent poll indicates that fully 50% of people hold an unfavorable opinion of Atheists--compared to 25% for Muslims, 19% for Evangelicals, 14% for Catholics, and 7% for Jews. Worse, a 1999 poll by Fox reported that a stunning 69% of Americans would refuse to vote for an Atheist presidential candidate (again, this dwarfs the number for other religions). Remember, 1999 predates such negative PR events like the "under God" case and the absurd "war on Christmas." As (again) Volokh notes, if Jews had these numbers in X country, nobody would be defending them. There is no reason why atheists should--as a class--be afforded any less respect.

It is often quite difficult, in the heat of political passion, to distinguish between a representative of a group and the group itself. Lord knows many partisans have fallen into this trap, quoting some random Democrat or Republican and showcasing it as proof positive that the whole movement is an evil plague. This is one of the reasons why Professor Volokh is one of my favorite bloggers. I may not agree with everything he writes, but he is always fair, and always respectful.

Strategizing Roe v. Wade

There is a quiet but interesting debate amongst pro-choice liberals regarding whether or not they should continue to support Roe v. Wade. Those who argue we should abandon Roe claim that the decision has only galvanized conservative activists, who have managed to severely limit abortion access (especially for the poor) even under Roe's reign. At the same time, active support for abortion laws has drained, as sympathetic persons believe that Roe has "solved the problem," and turn their attention elsewhere. The net effect is that, with the exception of upper-class white women, abortion remains extremely difficult to get while other issues critical to woman's health (education on/access to contraceptives, childcare support, maternity issues, pre-natal care, etc.) are off the table. There are other arguments as well (Roe was simply a bad decision; Roe solidifies the GOP coalition and places out of reach voters Democrats should be winning) but the "it's pro-choice to oppose Roe" claim strikes me as the most interesting.

I've been known to express sympathy with this view. Indeed, my very first column for the on-campus journal I write for forwarded this very idea (though more to spark debate--I wouldn't call myself invested in it). In this light, I'd like to point you to a spectacular debate on the topic "Should Liberals Stop Defending Roe?" The participants are Texas Law Professor Sanford Levinson (yes) and Yale Law Professor Jack Balkin (no). And while both make excellent points and are clearly extraordinarily intelligent, I've been nearly completely swayed by Professor Balkin.

There are, I think, at least four reasons why this is a bad idea.

First, one doesn't "give up" on constitutional rights unless one is already convinced that they aren't very important or don't actually exist. Should liberals have given up on Brown v. Board of Education in 1962 when the going got rough if they genuinely believed that racial equality was a fundamental right of human beings? Or to take an example near and dear to your heart, Sandy, should we have given up on constitutional limits on presidential power and constitutional prohibitions on torture because most Americans thought our repeated carping on these issues unpatriotic, and that was bad for Democrats? If we don't stand up for the constitutional rights we believe in when they are politically inconvenient, what is the point of having such rights? Thus, to convince me that we should give up on Roe you'll first have to convince me (and many other people, too) that the right to abortion isn't all that important to women's liberty and equality; or that despite its importance, Bork and Scalia were right and that there is no such right in the Constitution.

Second, we must consider the consequences. Although overruling Roe will not change the law of abortion in liberal states like New York, it will produce significant restrictions on abortion in a very large number of other states, and outright prohibitions in a handful of still other states. In a post-Roe world, abortion will probably still be available somewhere in the United States. Even so, we will probably return to a world (indeed, a world we are already approaching under current doctrine) in which abortions are freely available to the rich but not the poor. Obtaining an abortion in another state requires time to travel, making excuses (i.e., lying) to employers and to family members about one's whereabouts, and considerable expense. Many states currently have waiting periods, and no doubt more states will adopt them—with more draconian requirements-if Roe is overruled. Current waiting period requirements increase the costs of abortion considerably because they often require two separate trips. That expense-and the deterrent effect on the poor-can only increase in a post-Roe world. Lack of access to safe and affordable abortion for poor women increases health risks for those women, and condemns them to lives of increasing economic hardship and dependency, not to mention the costs to society as a whole. The Democratic party has long claimed to stand for sex equality and for economic justice. Capitulating on Roe is inconsistent with both commitments.

Third, the conventional wisdom that overruling Roe will simply return abortion to the states underestimates the strategy, the devotion, and the ambitions of the pro-life movement. If abortion is murder in Alabama, it is equally murder in New York. The pro-life movement will almost certainly push for a national solution to the abortion problem, which means that we may get more restrictive federal abortion legislation that will preempt liberal laws like those in New York. No doubt a nationwide ban on abortion is not politically feasible in the short run; what is feasible, however, even with the changed political climate that we both imagine, are significant restrictions on abortion at the federal level, especially if the Republicans maintain control over at least one branch of Congress. Moreover, if Republicans control the White House, they can do enormous mischief to abortion rights nationwide through administrative regulations that have the force of law and preempt more liberal state laws to the contrary.

Fourth, giving up on Roe in practice will take down more than Roe itself. It will put enormous pressure on other Supreme Court precedents that protect people from state interference in matters of family life, contraception, and sexual autonomy. The pressure is not logical but ideological. It is easy enough for a lawyer to distinguish Roe from earlier cases protecting the right to use contraceptives (Griswold, Eisenstadt, Carey) and later cases protecting the right to same-sex intimacies (Lawrence v. Texas). After all, neither contraception nor same sex sodomy involves the destruction of an embryo or fetus.

Nevertheless, this fails to account for how Roe would be overruled in practice. Imagine how one would "give up." You can't send secret signals to the liberal justices saying "psst, hey Ruth Bader Ginsburg, take a fall on the next abortion case." Rather, giving up on Roe means not opposing new Republican judicial nominees who are committed to overturning Roe (as opposed to merely limiting it). But those sorts of judges will likely oppose much of the other existing jurisprudence on sexual autonomy. The opinions they write will likely emphasize that it is wholly illegitimate for courts to discover and enforce rights not specifically enumerated in the Constitution (unless, of course, it's unenumerated rights that conservatives happen to like! See the federalism decisions). Whether or not cases like Lawrence are technically distinguishable by well-trained lawyers, they may not be distinguishable in the view of the new Supreme Court majority.

Balkin goes on to show off-topic impacts (two actually: the type of judge who will overturn Roe will also vote against liberals on non-sexual privacy cases, and abandoning Roe would make it part of the "anti-canon" of cases such as Plessy and Dred Scott--which will provide a foothold by which conservatives can push for massive changes in prevailing constitutional theory) and provide solvency (push for a Freedom of Choice Act to put Republicans on the record and legitimize Roe democratically). Would that my debaters could write like this!

Sleepless in Mississippi

Balloon Juice tips me off to the case of Cory Maye--a black man on death row in Mississippi who's been subject to one of the grossest failings of justice I've ever seen.

Radley Balko has been doing the major reporting on the case. Here's the quick summary:

Let's summarize: Cops mistakenly break down the door of a sleeping man, late at night, as part of drug raid. Turns out, the man wasn't named in the warrant, and wasn't a suspect. The man, frightened for himself and his 18-month old daughter, fires at an intruder who jumps into his bedroom after the door's been kicked in. Turns out that the man, who is black, has killed the white son of the town's police chief. He's later convicted and sentenced to death by a white jury. The man has no criminal record, and police rather tellingly changed their story about drugs (rather, traces of drugs) in his possession at the time of the raid.

Read the whole post--that's barely the half of it.

Fortunately, now that the story is out there seems to be bipartisan outrage (at least in the blogosphere). Instapundit writes that the case constitutes a "total miscarriage of justice" and draws an interesting parallel to the recent scare in Miami:

In a way, this is the flipside of the Miami airport shooting. And I regard the shooting of a cop in this situation similarly: It's a tragedy, but the risk is, and should be, borne by the person who's acting unreasonably. Here, it's the cop's. When you break down people's doors and charge in unannounced, you do so at your own risk, cop or not.

"Bitter" of Bitch Girls, who characterizes herself as "normally a fan of the death penalty," says that the case is "so clearly wrong that it makes me sick to my stomach."

Publicola has a good rundown of the relevant laws. He also links to local coverage of the case, which barely glosses on the self-defense claim and doesn't feel worth mentioning at all the fact that the police were raiding the wrong house. Here's the relevant clip:

The trial for 23-year-old Cory Maye was moved from Jefferson Davis County to Columbia, Mississippi in Marion County. Maye was charged with capital murder the day after Christmas two years ago. Maye said he shot Prentiss police officer, 29-year-old Ron Jones in self defense when he burst into this [sic?] home to serve a search warrant for drug possession. Maye's girlfriend and family members said he had never been in trouble with the law and the drug charges were ridiculous. They maintained he was only defending himself.

As written here, it makes it sound like the police had a valid warrant for Maye's house, which they didn't. That obviously is a major issue that changes the tenor of the case dramatically.

I think it is indisputable that Mr. Maye's actions constitute justifiable or excusable homicide. It appears that the police did not announce their presence to Mr. Maye, and even if they did, I think that an innocent black man has legitimate reason to fear a police officer busting in his door unannounced in Mississippi. There is no way that this case should have gone to trial, at trial, there is no way he should have been convicted, and once convicted, I can only hope that he will be immediately released on appeal. But it just shows once more how easily a broken system can put an innocent man on death row.

River on the Originalists

Apologies for the lack of posts. The past few days have been exhausting--and I haven't been getting the sleep I need. It's too bad too, because there were some things I wanted to blog about in the news yesterday. But, alas.

Anyway, I give you this quickie to tide you over.

All the time, we hear conservative judges and judicial nominees, trying to rationalize decisions harmful to civil rights, women, or minorities, by saying its what the law required. Of course, that isn't technically accurate--if it were that clear, there wouldn't be a controversial case in front of them, and no angry liberals blasting them from dissent (or majority, whichever). So the more precise argument would be that it's what their interpretive philosophy of the law requires, and they believe that philosophy (generally originalism or strict textualism) is binding to them.

Whenever I hear an argument on those lines, I'm reminded of the following passage from (yes, I'm a geek) the final episode of "Firefly" ("Objects in Space"):

River: You hurt people.

Early: Only when the job requires it.

River: Wrong. You're a bad liar. [...] You like to hurt folk.

Early: It's part of the job.

River: It's why you took the job.

It seems so blindingly obvious that the conservative tail is wagging the interpretive dog when it comes to these rulings. Originalism doesn't just "happen" to lead to bad results for the politically disenfranchised, and judges who become originalists don't make that choice ignorant or even saddened by that fact. It's not just "part of the philosophy," it's why they chose the philosophy. Alito doesn't hold fast to his Casey opinion because it's what his legal philosophy dictates. He holds his philosophy because it allows him to justify outcomes like Casey.

While judges do occasionally express remorse at an outcome they claim they were "forced" to reach (see Justice Thomas in Lawrence v. Texas, Justice Stevens on Kelo), these cases are few and far between. In Derrick Bell's words, they are "contradiction closing cases," the ones where judges prove how impartial and unbiased they are--the cases everyone can point to as a response to charges of the courts playing politics. However, CCCs rarely have a major impact on law as we know it--they are by definition anomalies and will stay that way absent a major political shift of consciousness. It is the rarest of the rare when a judge will break from a position s/he is deeply invested in because s/he thinks that's what the law requires. Justice Thomas may have been willing to allow legal sodomy, but I doubt he would have lost much sleep over it's continued prohibition. But in cases where "the law," or even "the interpretive philosophy" clearly cuts one way, but the judges politics another, it is extraordinarily uncommon for a judge to stay consistent. Consider Justice Scalia on Affirmative Action or the Religion Clause--in both cases, he's been roundly criticized for taking positions wholly at odds with what his normal originalism requires.

I'm not going to say liberals are different--liberals select interpretive theories because they believe they will produce a judiciary more in line with their values. What I'm saying is that conservatives need to stop playing this shell game where they pretend like they are making decisions based on the clear mandate of "law" and that all the awful consequences are unforeseen but tragic necessities. It just isn't true.

How To Aid An Enemy

Mark Olsen of Pseudo-Polymath writes what in my mind is just a peculiar post about how liberal commentators who criticize the war often are "aiding the enemy." Not that the accusation is, in itself peculiar, because unfortunately its become rather routine from the right half of the blogosphere. But it is odd to hear it from a normally sober and reasonable voice like Mark's.

The post is short, so I quote it essentially in full:

Is the "everything was done wrong" an unpatriotic claim? Constructive criticism in time of war is not unpatriotic. But so much of the criticism is not constructive but intended for partisan aims. While helping in its primary (partisan) objective it also serves to aid the enemy. It is a calculated (or not!) strategy that hopes the aid to the enemy will be less damaging than the "hoped for" restorative that getting the opposition party back on top would effect. How fair are criticisms of actions done 2 years past, when 2 years ago the opposition did not propose better (or any) alternatives? Is aiding the enemy for partisan reasons patriotic? Certainly there are those on the way out radical left wing are strongly anti-American (while living here and reaping the benefits of its position in the world), but how about the more reasonable? Do the left wing bloggers review their posts and act themselves if they are aiding the enemy and reconsider? Do the MMSM journalists do the same? How about the knuckleheads in the opposition party in Congress?

Looking at some past wars those who complain, so many of their criticisms seem well unfounded. "Mistakes were made" is a completely disingenuous and ahistorical claim. Please, I'd ask those who complain that the Iraqi campaign was not managed well, to point out one war that was!

I'm afraid I haven't seen a "mistakes were made" claim being made that was either supportable or constructive. Have you?

As a member of the "it was done wrong" bloc (and I know that Mark knows I identify as such), I'm shocked at the imputation of partisan motives for what I consider to be an almost boneheadedly obvious criticism. I'd like Mark to imagine my writing the following:

Is "stay the course" an unpatriotic claim? Supporting the status quo in time of war is not unpatriotic. But so much of the support is not based on a genuine faith in current policies, but intended for partisan aims. While helping in its primary (partisan) objective it also serves to aid the enemy [by refusing to change policies that have inflamed the insurgency and weakened our position in Iraq and the world community]. It is a calculated (or not!) strategy that hopes the aid to the enemy will be less damaging than keeping the current party in control (or keeping the opposition out). How fair are criticisms of liberal complaints or alternative strategies, when our current plans are failing now? Is aiding the enemy for partisan reasons patriotic? Certainly there are those on the way out radical right wing are strongly anti-American (while living here and reaping the benefits of its position in the world--see Bill "let San Francisco die" O'Reilly and every member of the Christian Right who said Katrina victims were punished for New Orleans' sins), but how about the more reasonable? Do the right wing bloggers review their posts and act themselves if they are aiding the enemy and reconsider? Do the MMSM journalists do the same? How about the knuckleheads in the congressional leadership?

I'd imagine Mark would be outraged, justifiably so. This is true despite the fact that there are indeed die-hard partisans who wouldn't dream of supporting the current policy were it not Bush leading them. It's true even though the administration clearly has prosecuted this war and the entire war on terror with an eye for political gain. And it's true despite the fact that the enemy gets far more tangible aid from incompetent war planning/prosecution than it does from whatever Atrios posted today. That last part is what the dark voice in my head always whispers whenever I hear the "Democratic faint-heartedness emboldens our enemies" line. "You know how to really aid an enemy? Refuse to plan for the war and then stick with policies proven to fail!" If I were an insurgent I'd be overjoyed if someone told me we were going to stick to the same policies that have let my movement flourish over the past 24 months. I'd be considerably less concerned hearing that Dennis Kucinich wants to withdraw, and I'd be downright worried if someone said America was going to overhaul its tactics an fix those "mistakes [that] were made."

It's probably too much to say that there are no partisan motives floating around for any critics/supporters of the Iraq war. Undoubtedly, Republicans are more inclined to support the President's policies because it's this specific President, and Democrats are more likely to oppose them for the same reason. Need proof? Look at what Republicans said about our far more justifiable (and I say this as a war supporter) intervention in the Balkans during the Clinton years--it reads like dKos on steroids. However, I think that by and large average people discussing Iraq do so with the best interests of their country, not party, at heart. It's demeaning and wholly unwarranted to suggest otherwise.

Mark also mischaracterizes what the critique I and my cohorts make actually says. It's not merely that "mistakes were made." As Mark notes, mistakes will be made in every war. Rather, it's that this war managed to screw up in virtually every category on virtually every issue--and that isn't something one found in WWII or any modern American war this side of Vietnam. And again contra Mark, it isn't like people didn't point these issues out. People asked for pre-war planning; the Bushies didn't do it. They asked for more troops in the early stages of the campaign(doesn't anybody remember Eric Shinsiki?); the Bushies ignored them (and fired the advocate!). We asked for more efforts to build international support; our diplomatic strategy for the first year or two was essentially "f*** off." We asked that the US work quickly to build democratic institutions in Iraq; instead they dilly-dallied with a bogus "caucus" system designed to install American flacks (which, as few recall, was the original spark that gave the insurgency national currency). We requested that the US move quickly to restore order in post-liberation Iraq; we saw Donald Rumsfeld acting as if mass looting and chaos was no big deal. We asked that American troops above all present themselves as models of what a free, stable, and democratic Iraq could look like; we got an administration that is now trying to redefine "torture", detains (and, oh, also tortures) people they know are innocent, and tried to cover-up and minimize Abu Gharib. Wesley Clark just wrote an excellent outline for succeeding in Iraq where Bush has failed. Is it perfect? Probably not, but it's a far cry better than what we have now. The New Republic has been prolific in providing sensible, necessary plans for long-term solvency in Iraq--one's that don't involve cutting and running but don't involve wishful idiocy either. When it comes to "what we'd rather do," I think we've more than fulfilled our burden Mark.

Ultimately, I think it's important to discuss these issues fully and rationally. We both know of persons on both sides who clearly are looking at this just as political strategists. They should be ignored with extreme prejudice. But we do discourse no favors by painting the entire opposing side with these broad strokes. It's unfair, inaccurate, immoral, and in this case, quite personal.

Telling Other Stories

I'll admit this CNN article on Katrina's victims leaves me troubled. The piece is about the testimony of Katrina victims in front of congress, where they explicitly placed racism amongst the factors causing the slow federal response.

On the one hand, I think that there is something to the claim. Most importantly, I think that victims should have a presumption of expertise when talking about their own experiences. So when a bunch of congressional Republicans responded to their story by basically saying "no, it couldn't have happened," my immediate response is "how the hell would they know?"

On the other hand, I am very distressed by the victim's analogy to the Holocaust and concentration camps. I think that Rep. Jeff Miller (R-FL) was absolutely right to tag that comparison as "inappropriate."

Black survivors of Hurricane Katrina said Tuesday that racism contributed to the slow disaster response, at times likening themselves in emotional congressional testimony to victims of genocide and the Holocaust.

The comparison is inappropriate, according to Rep. Jeff Miller, R-Florida.

"Not a single person was marched into a gas chamber and killed," Miller told the survivors.

"They died from abject neglect," retorted community activist Leah Hodges. "We left body bags behind."
[...]
The five white and two black lawmakers who attended the hearing mostly sat quietly during two and a half hours of testimony. But tempers flared when evacuees were asked by Rep. Jeff Miller, R-Florida, to not compare shelter conditions to a concentration camp.

"I'm going to call it what it is," said Hodges. "That is the only thing I could compare what we went through to."

Concentration camps weren't places of "abject neglect." They were places where human beings were congregated in brutal conditions with the express purpose of extermination. Far from neglect, concentration camps were purposeful in the most terrible of ways. I really don't think one recognizes just how brutal the conditions were in the camps, even with the type of Holocaust memorial literature most students study nowadays. Read Terrence Des Pres, "Excremental Assault" or watch "The Grey Zone"--and even those, I imagine, can only showcase a sliver of the reality.

I think there are problems when one group appropriates another's story for their own ends. I don't know what grounds Ms. Hodges has to say with such certainty that the refugee camps were like concentration camps. I'll defer to her in describing her own tale--if she tells me that conditions were awful and degrading, then I'll assume absent compelling evidence that they were. But the comparison strikes me as treading on dangerous territory. I don't think it was justified here, and I don't think that, in general, Katrina victims (or any other group not directly impacted by the Holocaust) has the requisite standing to provide modern day analogues to the horrors of the Holocaust. Let the deeds (or misdeeds) stand on their own.

Wait...No

I don't particularly mind Bruce Bartlett. Sure, he's a conservative, but the honest sort. And when I was a debater, I found his articles valuable, both for the arguments and being well-sourced. But this is just innane.

A few weeks ago, the Internal Revenue Service released data on tax year 2003. They show that the top 1 percent of taxpayers, ranked by adjusted gross income, paid 34.3 percent of all federal income taxes that year. The top 5 percent paid 54.4 percent, the top 10 percent paid 65.8 percent, and the top quarter of taxpayers paid 83.9 percent.

Not only are these data interesting on their own, but looking at them over time shows that the share of total income taxes paid by the wealthy has risen even as statutory tax rates have fallen sharply. A growing body of international data shows the same trend.
[...]
At some point, those on the left must decide what really matters to them -- the appearance of soaking the rich by imposing high statutory tax rates that may cause actual tax payments by the wealthy to fall, or lower rates that may bring in more revenue that can pay for government programs to aid the poor? Sadly, the left nearly always votes for appearances over reality, favoring high rates that bring in little revenue even when lower rates would bring in more.

Okay, number one--this data is absolutely meaningless without some indication of what percentage of the total income the wealthiest 1%, 5%, 10% et al bring in each year. Even in a flat tax society, the wealthiest 1% would still pay a fair percentage of the total income tax because they make a fair percentage of the total income. If they make 10% of the income, they'd pay approximately 10% of the total taxes. Since we have a progressive tax system, they pay somewhat higher than that--but the disparity isn't as crazy as Bartlett plays it up to be. The only way for the wealthiest 1% of Americans to pay exactly 1% of the income taxes would be either a) for us to live in a communist society where everybody made the same amount of money or b) for us to have some extraordinarily low flat non-percentage tax which would crush the poor. Conservative economists always use these numbers and they always use them wrong.

This observation also leads us to problem number two: if the wealthy's share of tax dollars is rising, isn't that equally explainable by a rising income gap between the rich and the poor? Indeed, wasn't that the major critique of Reaganomics--they put more wealth in the hands of the rich while the poor stagnated? That seems to be the most plausible interpretation of Bartlett's data--the rich paid a greater portion of the tax load because the rich were getting, well, dirty rich(er). This is especially true because it isn't like the wealthy got a tax cut while the middle and lower class tax rates stayed constant or rose. Everybody's taxes fell, which will counter-act the proportionality argument Bartlett tries to make.

Third, economies move for complex reasons--it's foolish to associate them particularly with one policy or another (especially, and I know Bartlett knows this, fiscal as opposed to monetary policy). For Bartlett to say that the information he provides indicates that lower tax rates for the rich will give the government more money to spend on the poor is a gross oversimplification. And his statistics don't even prove that--they say nothing about whether governmental revenues rose or fell in this time period (in real dollars), just that the rich's share rose.

Fourth, the folks who want to lower taxes don't want to do it to see increased revenues--and they definitely wouldn't want to increase said revenues. They want to shrink government further and they want to cut programs--especially those for such no-good worthless constituencies like poor people. So to characterize the "choice" by the left as between keeping up appearances and joining the noble conservative crusade for greater financing on the safety net is just absurd.

So if Justin Jones really "couldn't say it better" himself, well, then I think liberal economic theory is in pretty good shape.

Diversity Versus Specialization

Henry Manne (H/T: Todd Zywicki) also weighs in on the conservatives-in-academia issue, commenting on the same Peter Schuck article that prompted my latest post on the issue.

Like everyone else it seems, Manne starts by dismissing "any kind of government-enforced viewpoint affirmative action."

Everyone seems to recognize the morass of abuses, bureaucratic meddling and the sheer impossibility of enforcement that such an approach implies. A private solution - almost any private solution - is to be preferred to that.

Well, sure, when you put it that way. Yes, I too would not like the government busting into to our universities and mandating that they hire a quota of Republicans. But I define AA more narrowly as just a specific and institutional effort by a university to diversify their faculty or student body--in this case, politically by adding more conservatives. How they go about it is up to them. In any event, I think that Manne gets to the real core of opposition later in the piece, saying:

Certainly no one wants the government to intervene (the usual interventionists because they would lose in the short run and the anti-interventionists because they are just that).

That's closer to the heart, I'd say.

Unlike most folks speaking on the issue, however, Manne questions whether a plurality of viewpoints is even all that desirable. Instead, the upshot of his argument is that we should favor specialization in law schools. Manne is affiliated with George Mason University, which is basically a specialty shop for Law & Economics folks, and Manne would like to import that model to other institutions. So you'd have schools that specialize in liberal legal thought and conservative thought, perhaps a Crit school or a feminist school, etc etc..

Specialization has its advantages, I suppose, but I really don't think that it's the proper model for a school. One of the key aspects of an education is exposure to competing viewpoints. Schools should, as institutions, try and challenge their students, not keep them in intellectually insulated cocoons. Students don't actively seek out opposing viewpoints, but their presence is critical to creating well-rounded citizens, a key value that I believe academia must impart. Manne writes that:

Schuck's second proposal...is the idea that every professor should present impartially and thoroughly all sides of any controversial issue. After all, he could argue, we are trying to train lawyers who may have to assume any side of a given proposition, and therefore it is the responsibility of any law professor to teach all sides.

I suppose at one time, when almost all of legal teaching was done via the rote quoting of 'rules of law,' this may have been a feasible albeit irrelevant approach. But today the fine analysis required of various legal rules - and not merely in constitutional law but equally in almost every field - requires teachers who not only understand the finer points of, say, the market theory of antitrust, but who would be embarrassed not to scoff at the opposite view. Should an antitrust professor 'fairly' present a near-totally discredited idea like monopolization being inherent in resale price maintenance? Frankly I believe that Peter is simply wrong in this. I think the best teaching, and therefore the best preparation for lawyering, is done by professors who are intellectually committed to the views they propound and who present their case as strongly as they can.

I think this is a weak argument. The whole "present a near-totally discredited idea" objection is a strawman, the idea is to teach legitimate academic controversies, not to concoct controversies for their own sake. I don't think I'm being inconsistent when I say we should teach a breadth of political philosophies, but should exclude Nazism from the canon. Also, one can agree that a Professor should strongly advocate her particular position without rejecting that colleges should be pluralist institutionally. Even if students learn best from hearing just one side presented strongly (as opposed to all sides "fairly"), there is no reason why a school shouldn't has a whole be balanced. That is, the liberal professor is unabashedly liberal, and the conservative professor is unabashedly conservative, and therefore the campus as a whole benefits from the availability of diverse views while at the same time maintaining the "committed" professor in the classroom. Indeed, a monolithic campus environment may make it less likely that a professor will be as aggressive on her pet issues in class. I think most professors feel at least a nominal obligation to insure their students are fully exposed to the their given topic. If there are a professors representing a variety of political persuasions, then they'll feel fine focusing on their strengths, knowing that interested students can find other faculty members if they wish to pursue other avenues. But if their view is the only game in town, then professors might feel obligated to be as balanced as possible to make up for the shortfall.

Of course this isn't a problem if the school explicitly labels itself "conservative" and markets itself that way. But again, I think such a school is eliminating a very important part of its mission. I don't want liberals to be so be default, and I don't want conservatives to be so because they've never heard or read a liberal. We need to encourage folks to broaden their horizons. Individuals perhaps should be specialists, but institutions should be generalists.

Montreal Massacre

A friend who attends McGill University asked me to blog about The Montreal Massacre, which happened on this date in 1989.

I had never heard of the event until he told me about it, but basically a man who felt that "the feminists" were responsible for him not getting into engineering school went to a local university and systematically gunned down all the female students he could find. In all, 14 women died before he took his own life.

There is obviously little to say about events such as this, except to remind ourselves of the risks we take when we cavalierly deny the humanity of other people. The same mentalities of hatred and extremism motivate these sort of mass killings, whether on relatively small-scales (like here) or large (like in Darfur, Rwanda, or Germany). It is almost trite to say that we must "oppose" these acts or opinions--who doesn't oppose atrocities? Except, of course, the perpetrators. Trite as it may be, a constant and omnipresent aura opposed to senseless violence, to mutilation and murder in all its forms, is the best way we can honor the memories of the victims.

DeLay Remains Under Indictment

A Texas Judge has upheld the more serious charge facing Tom DeLay while tossing out a second indictment. John Cole hits the right note, I think: this doesn't mean DeLay is innocent, nor does it mean he's guilty. It does, however, mean that he is finished as Majority Leader.

And that's something we can all celebrate.

Some Conservative bloggers are complaining that the majority of news sources are phrasing this as "some charges upheld" rather than "some charges dismissed." Glass half-full, glass half-empty. Outside the Beltway, which in itself (unlike the above links) is not making the complaint as a pure partisan point, argues that:

This isn't pedantry or partisanship on my part. Delay is in serious trouble and, even if he is ultimately acquitted on these charges, there is plenty of evidence that he played as close to the limits of legality as possible, almost certainly crossing the line of proper ethical conduct. Regardless, however, the news here is Delay's the conspiracy charges being dropped, not other charges remaining.

News, as the name implies, is about things that are different. An hour ago, Delay faced two serious charges; he now faces one. Considering that he faced the remaining charge when the day began, the new thing is the charge he no longer faces.

That seems a bit forced to me. Specifically, the "new" is that DeLay has one less charge. Broadly though, the "new" is that Judge Priest has made the first rulings on DeLay's dismissal motions. This is the first test of how Earle's much-maligned (by the right anyway) indictment will stand up. So it's news that part got dismissed, and news that part didn't--and unfortunately, incorporating both would probably be too unwieldy for an internet headline. Also, as noted above, with leadership elections in January, the decision to uphold any indictment spells the end of DeLay's leadership tenure--and that is news.

War on Terminology

Brian Leiter's guest-bloggers, with a concurrence by Carey Cuprisin, argue that the concept of a "war on terror" is absurd and should be abandoned. I'm confused. They make the following two warrants:

One really can't repeat this often enough: there is no "war on terror," not only because you can't wage war on a technique, but because there is no single agent of terrorism motivated by a unitary set of concerns.

Neither of these objections seems particularly convincing to me. I say that disclaiming the separable issue of whether or not the current administration has effectively or honestly fought such a war (it has done neither). I'm only concerned with whether such a war is conceivably possible.

To the first, I think that one could declare war on a technique, at least within the common usage of the word "war." If Major League Baseball declared a "war on cheating," I think most of us would be untroubled by the terminology itself (potentially by the hyperbole, I'll grant). To declare a war on a process is to declare that process absolutely forbidden, beyond the pale of permissible conduct. They'd be attempting to purge the tactic of "cheating" from existence, just as we might wish to purge the tactic of "terror[ism]" from the world. If one defines "terror[ism]" as the targeted killing of innocent civilians to advance a political agenda, then I think opposing it is a noble goal indeed--and one well worth fighting for. Obviously it represents a major shift in objectives from a "normal" war against Germany (a nation) or Poverty (a state of being). But I don't think our language is insufficiently flexible to adapt to it.

The latter objection is similarly too narrow. First of all, if we are declaring on a deontological level that "terror" (as defined above) is never a justified tactic, then we could fight a war against it regardless of whether the utilizers share motivations or ideologies. Again, to analogize toward cheating--regardless of whether the particular cheater is acting to win a game, or a bet, or just to prove "he can," if we're battling cheating as such then the distinctions are immaterial. Similarly, if Palestinians are terrorizing to throw the Jews out of the Holy Land, while Iraqis are terrorizing to end the occupation and the IRA is terrorizing to gain a Catholic-ruled Northern Ireland, we could still oppose the tactic as such without regard to the differing motivations. Again, this isn't to say that we are doing this (or even necessarily that we should--though I do think that), only that the term itself isn't objectionable.

In fact, I'd actually prefer that we phrase more military actions as battles against concepts rather than peoples. If we were to intervene in Darfur, I'd like it to be a "war against genocide," not a war against Sudan. The reason why is simple--the goal of such an intervention shouldn't be to exact retribution against the Sudanese people. Rather, it should be to send a message to the world that genocide--anywhere, anytime--is intolerable and will be met with the full force of the international community. Likewise, the war on terror should not be fought against the terrorists themselves or their sympathizers specifically, but rather as a broader struggle against military tactics that specifically target civilians for death and destruction. A conceptually-justified war is more likely to have the long term deterrence impacts that are missing in the status quo--Sudan would have been far less likely to engage in the slaughter in Darfur had our Kosovo intervention been framed as the response genocideers receive, as opposed to "just another" war that happened to be against Serbia.

I should also note that I think Leiter's guestbloggers (both surnamed "Stanley", so I'm going to refer to them as "the Stanley brothers") are too glib in their dismissal of the terror threat. Admittedly, bin Laden and his cohorts do not possess armies capable of massive world domination. But that isn't where the threat comes from. It may be trite, but the face of the world is changing. The "insight" of terrorism is that one can cause significant impacts in global affairs without the major expenditure of resources that conventional warfare requires. Hell, you don't even need a state. And the way that the world is evolving makes us more vulnerable to such an attack, not less. Consider the argument by leftist scholars Antonio Negri and Michael Hardt (as summarized and applied by Legal Fiction):

First, they whine about the collapse of non-capitalist alternatives and the rise of globalization. But second, and here's the key, they argue that the trends of globalization are making it easier to strike down the global capitalist economy dragon. And to make their point, they rely on the concepts of networks and interconnectedness (or for you Clinton fans out there, interdependence). The idea is that the global economy is becoming one big, connected entity. In this sense, they seem to be agreeing with Thomas Friedman that the world is flattening.

But here's the catch. Because everything is so interconnected, the entire network itself is more susceptible to attack because destroying one important node can - Abramoff-style - bring the whole thing crashing down. It's sort of like creating a black hole that would suck down everything around it, which is pretty much what Abramoff is at the present.

Most disgustingly, though most presciently perhaps, the authors heap a lot of praise on radical Islam, largely because they view it as most clearly rejecting modernity and as the most willing to act against it. They wrote all this before 9/11, but you can see where I'm going with this. And when you do, you should hopefully develop a greater sense of urgency about the magnitude of the threat posed by nuclear terror. Under this view, 9/11 was not merely an attack on the country or the West, but an attack upon an important node of the global economy. Thus, what's most frightening about terrorism in the age of globalization is its ability to potentially bring the whole damn thing crashing down. And a well-placed nuclear bomb could do just that.

It's amazing in retrospect that destroying the center of the financial universe did not trigger a more destructive chain reaction across the markets. Maybe that's because we're not as connected as we think we are - yet. But we're getting there.

When you think of the world economy as a network, it's easy to see how a terrorist attack - or the collapse of stability in the oil-rich Middle East - could really suck our entire world economy into chaos. A nuclear strike on New York, or a collapse of Saudi Arabia, or any number of scenarios could trigger a financial panic spreading at the speed of broadband. And as the world's financial centers grow more connected, and capital grows more fluid, there's a greater chance that the world could experience on a much larger scale what Argentina recently experienced.

This is what makes terror such a threat--it's the ultimate geo-political jujitsu. Nearly any aggrieved party can access the tools necessary to cause massive international chaos. Such a threat should not and cannot be easily dismissed. I agree that a long-term strategy to address this requires that the US move away from it's aggravating realpolitik and start practicing what it preaches in foreign affairs. As long as the US supports dictatorships, we'll be prone to attack. But eliminating our direct support is only half the battle. In any world that has massive amounts of political injustice and an American hegemony, terror will still be a risk. As such, ultimate solvency can only come when all the aggravating factors--imperialism, racism, totalitarianism, autocracy, ethic strife, etc., are, if not eliminated, then at least subject to severe and immediate international sanction.

In the end then, I do not find that the use of the term war on terror should, as the Stanley brothers so diplomatically put it, cause the speaker to "be laughed out of serious society." And I am shocked to hear them say that this rhetoric is as "appallingly and transparently ridiculous as...old films of Stalinist or Nazi propaganda." I'd say that this would be the example of rhetoric that should get someone "laughed out of serious society," except that a serious society would remember just how serious the crimes of Hitler and Stalin were and wouldn't degrade them in the endless quest for political points.

Campus Pluralism For Conservatives And Others: A Plea For Affirmative Action

Rick Garnett examines a topic near and dear to my heart: conservative presence in academia. He links to an essay by Yale Law Professor Peter Schuck:

What can be done," Schuck asks, "to make professors practice what they preach on diversity? Alas, no easy remedy exists. The tenure system and the lack of mandatory retirement will project existing faculty bias far into the future. Moreover, the elite schools recruit new law teachers mainly from the top ranks of their recent graduates, whose own predominantly left-liberal views are fortified by their professors. And adopting affirmative action for conservative viewpoints would be odious and, for public law schools, almost certainly a First Amendment violation.

In my campus political journals I have specifically advocated for political affirmative action, at least at Carleton. We are an overwhelmingly liberal college, and I think that's bad for open debate and pluralism. But I offered it explicitly as a trade--conservatives who are agitating against liberal bias at schools (but rarely able to point to explicit practices with intent to discriminate, the threshold for litigating discrimination in racial contexts) would have to admit an equal standard for minority applicants as well. Some conservatives (like, apparently, Schuck) wouldn't take the trade because they find AA morally wrong in any case. But I'd like to think that this may be an opening toward a broader acceptance of the principles of affirmative action--especially a culture pluralist defense.

From the start I drew a comparison to racial affirmative action--saying that both could be justified on the grounds of including hitherto excluded voices in the academic environment. As always with a critical position, the key is context. Nobody can seriously argue that conservative Christians are an "excluded voice," historical or otherwise, in American society writ large. But there is a compelling case that they are very much outsiders in the academy. A well-known study by Northwestern Law Professor James Lingdren (cited by Schuck) notes that the most excluded sub-group in academia, proportionally, is white Christian women. They are even less likely to be present on tenure ladder posts than groups who have faced overt societal discrimination, such as Blacks or Hispanics. This should alert us to the fact that, just as individualist indicators of racism can mask the way that structures can oppress, too rigid a focus on solely the super-structure can cause us to ignore how "mid-range" institutions (universities, or perhaps cities) can have power dynamics that both work within but are also independent of the broader social trend. This is how a conservative can feel isolated at, say, Oberlin, even though she lives in a country with a Republican President, Senate, and House, two Republican Senators, and a spot in the GOP column in the 2004 Presidential race.

I've discussed this position with my (mostly liberal) friends at school, and they've generally come down against. This isn't surprising--it's a novel argument and it's facially harmful to liberal interests. However, the objections they made were not too compelling. I'll address them (and other potential pitfalls) here.

First, they argue that while race is immutable, politics is a matter of free choice, thus, colleges should feel no qualms about prioritizing some over others. I'd respond that a choice may be technically "free" but still not something that should be institutionally sanctioned--consider my choice of religion. I'm not immutably Jewish, but I don't really consider it a "choice" either. People may feel similar about their political opinions--I don't view opposition to genocide like a melon that I prefer at the grocery store. I view it as a core facet of my ethical personhood; a position that, if I abandoned, would make "me" unrecognizable to myself. Furthermore, at some level the benefit of political views is in their pluralism and contestability. A college can qualitatively say that a "belief" that 2+2=4 is objectively better than the belief that said equation equals 5. There is no benefit to hosting that debate on campus. But a vibrant political atmosphere on campus requires not unity but division and pluralism--it requires a variety of political positions beyond those that might be gotten naturally. If Carleton "on its own" gets a mostly liberal student body and faculty, then it should reach out for more. Clearly there are outward limits--we don't need a debate that the Nazis were justified on campus either. But ultimately, in terms of benefit I see political position as the type of identity that is valuable in its diversity, not singularity, and it should be treated as such.

A pragmatic objection was also made: it's far easier to falsify political beliefs than, say race. In otherwords, if I said I was black and show up for my interview with glow-in-the-dark-pale skin, the admissions staff is likely to notice. But the odds they'd catch a political slight-of-hand is slim--and even if something did come up, I could always claim I've changed my mind (who knows, I may even really change my mind). I'll concede these raise some pragmatic difficulties (though this doesn't dilute the moral force of my argument). However, I think it can be overcome. For one, the people who we're really concerned with--politically active students, are unlikely to sacrifice their souls on an admissions applicant. Think about your average Kossack. Do you really think they'll be able to bring themselves to write "conservative" on an application, even at the prospect of a marginal benefit? I'm skeptical. Furthermore, we can buttress the applicant's credibility by looking out other activities. If someone writes "Young Republicans Club President" and worked in Tom DeLay's office, we can assume they're being truthful. Since these qualities are indicators of the type of political activism we're looking for anyway (a politically passive conservative, or liberal, does little to add to the intra-campus debate), we can minimize system gaming.

Some people conceded that such a program might be useful for faculty recruitment, but not for student admissions. The justification for this was that while it's somewhat easy to divine a professor's political leanings based on her scholarship, there are relatively few opportunities for a college to find out what party their applicants adhere to prior to them entering the college. Because of this, bias is most likely not present for student admissions and thus requires no remedy. This I think looks at the problem to narrowly. Even without knowing the political affiliation of a prospective student, there are still subtle ways a college can send out signals to the effect of "Republicans Not Wanted." Any decent research on Carleton will inform a would-be student of our extreme liberalism. A visiting student may hear derogatory remarks that all Republicans are racist or evil or warmongers. There may be small or non-existent conservative programs and organizations on campus. These together can lead to a hostile environment that will drive off conservative prospies before they even apply. And given the existence of (and liberal response to) parallel problems with regards to race and gender that also exist in the pre-application stage, I believe that these harms rise to the level of discriminatory conduct that should be combated.

I'll admit that the constitutional objection (in public schools) that Schuck made is not one I had thought of, and could be problematic. I'd have to see the precedents on the matter, but acting on a blank slate I think that a political AA plan is constitutionally defensible, again, on much the same grounds racial AA is--if racial AA can be constitutionally justified on pluralism grounds as opposed to merely reparative ones. Ultimately, I think a political AA program can live or die on the same issues that racial ones face. The goal isn't to discriminate in favor of particular viewpoints, but to improve institutional vitality, a clearly legitimate interest that isn't being met by "neutral" criteria. It also is vulnerable to the same particular challenges AA has faced. For example, a program by an already conservative campus to recruit more conservatives would be suspect for the same reasons the Court outline in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (holding unconstitutional a racial affirmative action program enacted by a black-majority city council in a black majority-city). The one area where a political AA program would be vulnerable where racial AA is strong is the existence of significant past discrimination, which is not present. But I don't think that's the only way to justify AA, so I don't think that should be dispositive.

I can't speak for conservatives as to whether or not they can, on a philosophical level, accept an affirmative action program for themselves (though I am curious what they would like university deans to do about the bias problem if that solution is off the table). But as liberals, I think we should support efforts to create a more diverse and pluralistic campus environment on all fronts--racial, sexual, religious, and political.

A Brief Word About The Word

First of all, I want to thank Creek Running North for hosting this "blog against racism" day. I am a firm believer in discussing racial issues, and judging by the responses, CRN has managed to bring a wide swath of the blogosphere together on this topic. So kudos.

It may seem rather churlish, then, for me to take issue with the post that started it all. But in order to "blog against racism," we have to define what "racism" means. And that's a difficult proposition.

Racism is a nebulous concept. In the modern era, everyone agrees that to be "racist" is a very bad thing. But that's about as far as we get. "Racism" has been defined as deviating from the color-blind principle, intentionally discriminating against a minority group, prejudice against someone on account of race, stigmatization on account of race, and acting to preserve racial hierarchy, to name just a few. Significant cleavages have formed those who measure racism by intent and those who measure it by effects, those who see it as individualist and those who see it as structural, those who see it as theoretically neutral and those who see it solely as part of an exercise of power. One could quite easily be racist under one definition but not racist under another, indeed, at times the definitions are mutually exclusive (consider Affirmative Action, necessary to dismantle racial hierarchy, but a clear violation of color-blindness).

There are costs to this confusion. First, obviously, it makes it difficult for anti-racism activists to train their fire when we're not sure what the target is. Second, though, I believe this ambiguity plays a deep role in the reticence of many people to enter racial conversations in the first place. As long as the term "racism/t" possesses the two qualities of being a) absolutely evil and b) definitionally contested, a discussion on race becomes akin to walking into a minefield. Given the scant hope that any individual conversation will be the racial breakthrough we've all been looking, a rational actor easily could conclude that the risk is too high. And indeed, that is a relatively accurate description, in my opinion, of how many Whites view the topic of Race today.

In this context, then, it is very tempting to try and distill "racism" down to some core essence--a particular definition that can become the center of the debate and clear the air. And that's what Chris Clark attempts to do with his "effects" definition. He makes his argument thus:

But it increasingly clear to me --and probably has been for some time to people smarter than me--that many folks think of the word "racist" as meaning something akin to the word "evil." Thus the defenses of the cartoon that focused on the artist's intent. If his intentions were benign, then he is not evil and thus not racist.

Anyone who's studied the history of racism can trot out numerous examples of racist behavior committed with allegedly good intentions, from Moynihan's "benign neglect" to the myriad acts of condescension by white liberals toward their black acquaintances. I assume, people being more or less the same now as they were two hundred years ago, that there were a number of slaveowners who told themselves they took wonderful care of their chattel property.

Ask a Klan member whether he or she has good intentions. I guarantee you the answer will be in the affirmative, even as the cross is lit.

Intentions are all well and good, but more important are the assumptions from which those intentions spring. Garbage in, garbage out: bad information times good intentions equals bad results. And those results are the most important thing of all. A cartoon depicts stereotypical dark-skinned tribes as cannibals? That's racism. The poor people who could not flee a flooding city because they had no access to transportation or a lifetime of mistrust of authority were almost all Black? That's racism. People advocate locking up enemy nationals, defined by ancestry? That's racism.

I agree that this represents a serious problem. Many scholars have documented the shortcomings of "intent" as a measure of racial discrimination. The past few decades have showcased amply that neutral actors making good faith decisions can still preserve a racially stratified society. Some measure of effects is clearly necessary if we are to change the status quo.

At the same time, problems with a pure effects test are readily apparent as well. For one, it labels nearly every human being (of any race) as a racist. Studies have shown that both Blacks and Whites subscribe, at the subconscious level, to negative stereotypes about African-Americans. The famous "doll experiment" cited in Brown v. Board is perhaps the most prominent of these studies, but other more recent and more chilling findings have been made--for example, both Blacks and Whites are more likely to interpret an ambiguous action by a Black male as aggressive or hostile; a finding that raises serious questions about racial profiling and police violence. Clearly, Blacks don't "intend" to subscribe to stereotyping that keeps their race under the heel of brutal criminal sanction (and, I'd argue, neither do most Whites). But the effect is still present. These mindsets cannot be excised easily or quickly, which means that for the short to mid-term we have to basically conclude that the entire United States--Black, White, Asian, Jewish, whomever--is racist.

This is problematic on two levels. Pragmatically, saying "everybody's a racist" will prove a major barrier to engaging the country (especially Whites) in a serious racial dialogue. Either they'll ignore the message as hyperbolic, or worse, they'll take the message and use it to dilute the moral valence of racism. Either way, the net effect is negative. We have to remember that the goal of these projects is not to develop some fuzzy theory that makes us feel morally righteous. It's to bring about real change in the real world, and that's going to require compromises. Second, on a moral level the effects test places a ethical burden on individuals that is impossible to fulfill. In his essay "Saints and Heroes," James Urmson notes:

If we are to exact basic duties like debts, and censure failures, such duties must be, in ordinary circumstances, within the capacity of the ordinary man....So, if we were to represent the heroic act of sacrificing one's life for one's comrades as a basic duty, the effect would be to lower the degree of urgency and stringency that the notion of duty does in fact posses. The basic moral code must not be in part too far beyond the capacity of the ordinary men or ordinary occasions, or a general breakdown of compliance with the moral code would be an inevitable consequence; duty would seem to be something high and unattainable, and not for 'the likes of us.'

We want to think that an "effects" test of racism will alert the general populace that they are complicit in a racist society and encourage them to change their behavior. More likely, though, they'll just conclude that not being racist is an impossible goal and abandon the quest all together. That would be a death knell for the movement.

So if I don't like "effects" as a definition of racism, and I don't like "intent" as a definition of racism, then what's my response? I'd argue that the problem isn't with any particular definition. Rather, the problem is that "racism" is a term being asked to do far too much work. There is no way that a single word can encompass all the meanings that "racism" needs to juggle. To borrow from Lawrence Blum (whose spectacular book, "I'm Not a Racist, But...", heavily influenced this post), we need a more complex vocabulary to talk about race. We need words to condemn the shocking acts of intentional discrimination, stereotyping, prejudice, and violence that still occurs today. At the same time, we need vocabulary that can both alert unenlightened Whites about the current racial status without immediately placing them on the defensive. As I wrote in a paper I am in the midst of preparing:

Whites tend to define racism as consisting of "only the most extreme example[s]...rabid[] hate [or]...violence." This obscures the myriad of ways in which racial prejudice and inequality acts as a barrier to minority success even amongst people who abhor violence and profess equality of opportunity. At the same time, others define racism as any type of racially-charged action or mentality which causes ill effects. Such an expansive definition "will not help bring whites to the reconciliation table and may only foster resentment." Operating between these two poles is a position which uses a variety of terminology beyond the simplistic "racist/not-racist" dualism to deal with racial questions. Lawrence Blum argues that "'[r]acism' and 'racist' should be reserved for certain especially serious moral failings and violations in the area of race. They should not be permitted to include everything [racially related] that someone might justifiably disapprove of.

For better or for worse, "racism" is a term that is value-laden, it simply can't be used to describe more mundane acts of racial import. This isn't to trivialize them--only focusing on the most extreme cases won't bring about substantial cases when the majority of racial disparities come about via actions not deemed "extreme" but normal. However, as a tactical matter, anti-racism advocates need to diversify their arsenal. We should preserve "racist" for the worst of the lot, and condemn the rest, not necessarily as "racist" acts but as acts that preserve racial hierarchy. That should be seen as a moral wrong that exists independent of racism, but does not come with the personalized condemnation that is concurrent with the term "racist." To talk of racial reconciliation requires that we expand our horizons beyond just one word. Rather than blogging against "racism", we might blog against racial hierarchy--a status propped up by many pillars. Racism is indeed one of the more invidious among them, but it is not the whole edifice.

Being a devoted fan of Critical Race Theory, I've blogged on the topic of race and racism quite often. Here are a few posts from my archives:

Race LASIK

Race, Education, and Society

The Internal Critic and Intersectionality: Who's Looking Out For The Minority Right?

Standpoint Theory, The "Voice of Color", and "Uncle Toms": Positioning Conservative Minorities

Dissections of Power: Can Blacks Be Racist to Whites?

Side By Side

Back in June, I wrote a post entitled "The General and the Tactician" which noted the differences in how each approaches a state of war. The tactician (by which I mean a political tactician) sees war as a political object, and thus will view it through political lenses. He isn't wholly unconcerned with actually winning the war, but he will freely utilize spin, PR offenses, insinuations, and other such devices in order to maintain a lead in the polls--even if it comes at a disadvantage to the troops on the ground. The general, by contrast, is much more reticent to do so, because at the end of the day it is his men who are out there bleeding and dying. This isn't to say generals always give the straight and narrow, but they are less likely to hew to a partisan line when it is to obvious military detriment.

It is in that context that I found this article in the Washington Post very interesting. It reported on a joint meeting with the press by Joint Chief of Staff Chairman Peter Pace (the General) and Defense Secretary Donald Rumsfeld (the Tactician). When put up side by side, it was incredible to see just how unwilling Gen. Pace was to toe the line Rumsfeld laid out. At first it was on issues of little consequence: Rumsfeld wanted to change the moniker "insurgent" to "enemies of the legitimate Iraqi government"; Pace just couldn't bring himself to say it. But soon it moved to a major dispute over an issue of critical importance:

When UPI's Pam Hess asked about torture by Iraqi authorities, Rumsfeld replied that "obviously, the United States does not have a responsibility" other than to voice disapproval.

But Pace had a different view. "It is the absolute responsibility of every U.S. service member, if they see inhumane treatment being conducted, to intervene, to stop it," the general said.

Rumsfeld interjected: "I don't think you mean they have an obligation to physically stop it; it's to report it."

But Pace meant what he said. "If they are physically present when inhumane treatment is taking place, sir, they have an obligation to try to stop it," he said, firmly.

Pace, of course, is absolutely right. And the reason he's adamant is because the more torture becomes mainstream, the more risk our soldiers face when they fall into the hands of the enemy. Certainly, al-Qaeda will continue to be brutal regardless of what the US does. But the precedent will be laid down for future wars and conflicts, ones in which the enemy, perhaps, is more morally ambiguous. It's good to see Pace recognizes that. It's better to see he's willing to take Rumsfeld to task when he doesn't.

Others commenting:
QandO:

A big "Semper Fi!" to General Pace for standing up to the SecDef in public, and laying down a clear, ambiguous bright-line rule on how US forces are supposed to respond, even if they see Iraqi government forces treating prisoners inhumanely.

Andrew Sullivan:

Thank God for decent soldiers like General Pace and Ian Fishback. I have to say I do not recognize the Don Rumsfeld I once knew in the callous, reckless, immoral stances he has taken these past three years. It is a matter of urgency that he be replaced, if this war is to regain its moral standing and military effectiveness.

Carpetbagger:

I give Gen. Pace credit for sticking to his guns, but the fact that this mini-debate took place — at the podium during a Pentagon press briefing — is not reassuring. These two are supposed to be conveying Defense Department information to the nation and they can't even agree on how the U.S. military responds to torture by Iraqi officials? What kind of message does that convey?

Kevin Drum, CIP.

Is He Kidding?

I'm really confused about Ethan Leib's description of the relationship between Jews and the Christian Right. On second thought, I think he's confused. Basically, he claims that:

We all know that the Evangelicals and the Jews are in bed together, facilitating the U.S.'s Israel-friendly policy...the Zionist agenda is possible, in large measure, owing to Christian Zionism on the Religious Right. That may be a controversial idea, but a kernel of it must be true.

Leib uses this to frame the recent attacks by prominent Jewish leaders against the Religious Right's anti-Jewish calls to demolish the separation of Church and State (I blogged about those events myself here). He may be being sarcastic, but if so I'm missing it.

I won't deny that Christian Right support for Israel is not an important factor for maintaining support for Israel (not the least because America certainly doesn't care about Jews qua Jews). But I think it is, far from something "we all know," wildly inaccurate to say that Jews and Evangelicals are "in bed together." Certainly, Evangelicals have used their strong support for Israel to attempt to crack the normally solidly Democratic Jewish constituency. And I am aware of otherwise liberal Jews for whom those efforts have currency, especially contrasted with some Democrats' luke-warm (at best) support for the Jewish state. But by and large, these efforts at penetration have failed dramatically. 78% of Jews voted for Clinton in 1996, 79% for Gore in 2000, and 76% for Kerry in 2004. In fact, the last time a Republican candidate got even a plurality of the Jewish vote was Warren Harding with 43%--and that's only because Socialist candidate Eugene V. Debs took 38% of the Jewish vote (the Democratic candidate took another 19%). And though the Jewish GOP vote is slowly starting to rise, it still remains in abysmal territory--George W. Bush did 11 percentage points worse in 2004 than his father did in his 1988 trouncing of Dukakis.

On issues aside from supporting Israel (which I still refuse to characterize as a "conservative" viewpoint), Jews overwhelmingly identify with liberal positions. As of September, 2004, two-thirds of Jews opposed the Iraq war. Michael Lerner has pointed out that Jews were the only white ethnic group to oppose California Proposition 209 (barring Affirmative Action), and that Jews and Blacks together constitute the most solidly liberal voting blocs in America today. Jews tend to be pro-choice, support gay marriage (at 64%, they are more likely than any other group [PDF] to be pro-equality here) and stem cell research, and favor liberal fiscal policies. And their views on the Christian Right? Well, in Newsweek's run-up to the 2004 election, they wrote that:

[M]any Jews are uncomfortable with Bush's embrace of the Christian right, whose solidarity on the issue of Israel strikes some as a cynical, self-interested ploy.

I'm not going to say that it is or is not a "self-interested ploy" for conservative Christians to support Israel. I will say that if it is, it's failing miserably. I obviously welcome support for Israel from any quarter--it is nice to see the Christian Right be on our side for once. But Jews continue to be their own separate force in politics, and claims that they are "in bed" with the religious right (just like claims that they are trending conservative) lie somewhere between alarmist and mythical.