They Know Not What They Do

It's pretty rare you're hear this blogger quoting Jesus on any subject. But I'd imagine the man would have some pretty choice words on the issue of torture specifically, and being railroaded to "justice" without cause generally. And while I am optimistic that the courts will enjoin at least some of the more appalling provisions, it is every person's duty stand up and oppose this hideous blot on our nation's character and conscience.

The bill itself is, to put it gently, indefensible. The Washington Post sums up just a few of its naked violations against the civil rights we've expected since the era of the Magna Carta:

The Senate joined the House in embracing President Bush's view that the battle against terrorism justifies the imposition of extraordinary limits on defendants' traditional rights in the courtroom. They include restrictions on a suspect's ability to challenge his detention, examine all evidence against him, and bar testimony allegedly acquired through coercion of witnesses.

It's important to note that the most horrifying portions of this bill are how they eviscerate protections at the procedural level. One can believe that we should treat illegal combatants differently than POWs--I agree. But as was pointed out by Stanford Law Professor and detainee expert Jenny Martinez, it is an inversion of basic principles of justice to apply said punishment as part of the procedure for determining who deserves the punishment itself. Or to use her rhetoric:

Holding military commission trials that do not afford basic due process is...like saying that the best way to deter street crime is by subjecting street criminals to kangaroo courts. The necessary deterrence ought to be provided by the ultimate punishment imposed, not by the process itself. [emphasis added]

Or in otherwords, "you're a terrorist, so you can't challenge whether you're a terrorist, because that would give terrorists rights." It's unreal.

It seems there are two minds among commenters opposed to this radical abuse of power. The basic question is whether or not the Senators and Representatives really recognized the gravity of what they've done. Two of the most respected legal scholars in America today could barely contain their shock over the bill's provisions:

University of Texas constitutional law professor Sanford V. Levinson described the bill in an Internet posting as the mark of a "banana republic." Yale Law School Dean Harold Koh said that "the image of Congress rushing to strip jurisdiction from the courts in response to a politically created emergency is really quite shocking, and it's not clear that most of the members understand what they've done."

On the one hand, it seems impossible that anyone could dispassionately look at these provisions, realize they are essentially disregarding the basic panoply of rights that have been protected since the 13th century, and still vote in favor of the bill. I can't believe that there are over 60 senators that really have that little respect for basic legal protections. On the other hand, this debate was public, open, and it seems equally impossible to believe that our elected representatives wholly ignored the huge cry of alarm that arose from those who recognized this bill for what it was. What exactly have they been doing over these past few weeks?

My own belief is that the people who voted for this bill deluded themselves. They are vaguely aware of how awful it is. But they have managed to convince themselves (by any number of intellectual gymnastics that I can't even fathom) that the bill is necessary, or not so bad, or that these are terrorists and we can do whatever we want to them, or soemthing. And thus they vote "yea", because they don't want to look weak (or they want to make Democrats look weak). After all, for all the desperate attempts for our constitutional guardians to sound the alarms, this bill went off with a whimper, not a bang. Whatever the reason, these people are not living in reality.

And as far as I can tell, I'm not living in America.

Marginalize Lott. Vote Dem

Trent Lott on Iraq:

President Bush barely mentioned the war in Iraq when he met with Republican senators behind closed doors in the Capitol Thursday morning and was not asked about the course of the war, Sen. Trent Lott, R-Mississippi, said.

"No, none of that," Lott told reporters after the session when asked if the Iraq war was discussed. "You're the only ones who obsess on that. We don't and the real people out in the real world don't for the most part."

Lott went on to say he has difficulty understanding the motivations behind the violence in Iraq.

"It's hard for Americans, all of us, including me, to understand what's wrong with these people," he said. "Why do they kill people of other religions because of religion? Why do they hate the Israeli's and despise their right to exist? Why do they hate each other? Why do Sunnis kill Shiites? How do they tell the difference? They all look the same to me."

Now, aside from the weird implication that the only form of violence Lott understands is against people who don't "look the same" (which is a lovely sentiment coming out of Mississippi), I think we can agree that there are plenty of "real people" who care about what is happening in Iraq. Lott apparently isn't one of them. Since I want people who do care about what's going on in Iraq to be setting Iraq policy, I want to marginalize Lott as much as possible. How do I do that? By voting Democrat and relegating him to the back bench.

It's about priorities. And Lott and the GOP don't share mine.

What a Quaint Speech

In a must-read post, Publius puts the words of the President side-by-side against relevant portions of the detainee treatment act. I'd say it's pure gold, if it wasn't so bitter to read.

But read you must. The fate of America's soul lies in the passage or failure of this bill.

Pro-Life Principles

Amy Uelman offers three principles that she thinks should bring together all "pro-life" persons, regardless of party affiliation:

1) Both agree that abortion is moral tragedy for all of the people directly involved and for society as a whole.

2) Many (perhaps not all, but the bulk) agree (either explicitly or tacitly) that the criminal law is too blunt to be the principal instrument for regulation of this complex social problem.

3) When considering various regulatory paths, many (again, perhaps not all, but the bulk) agree that practical solutions should weigh very heavily the host of public health problems that would arise if abortion is driven underground.

I won't say that I wholeheartedly endorse these principles, but they do have some appeal to me, and strike me as a point where persons of all persuasions on the issue of abortion can try and unite over common ground.

See also the Democrats' 95-10 plan on abortion. The plan seeks to reduce the abortion rate in the U.S. by 95% over the next 10 years through a variety of mechanisms, like increased access to contraception, increased healthcare options for young women, better sex ed programs, tax credits for adoptions, and child-care services for mothers in college. It has support from both pro-life and pro-choice Democrats, because it demonstrates a just and humane solution to a difficult social problems.

Even pro-choice Democrats don't cheer the act of abortion. We cheer access to the procedure, to be sure. We think that the availability of abortion is important to granting women a equal position in the American polity. But no women gets excited and flush-faced at the prospect of abortion. Nobody throws a party for an intrusive medical procedure. Reducing the number of abortions doesn't stand in opposition to a pro-choice sentiment, as long as the methodologies we use in the effort fundamentally respect a woman's equal status and are cognizant of her health, welfare, security, and freedom. The more the Democrats can push that message, the better off they'll be.

Pony Up

Kevin Drum on "debating" Iraq policy:

Various luminaries in the liberal foreign policy community have been proposing Iraq policies right and left for over three years now. First, that perhaps we should have kept our focus on Afghanistan and stayed out of Iraq altogether. Then, once we were there, liberal thinkers suggested more troops, dialogue with Iran, a multilateral council to accelerate regional investment in Iraq's progress, a variety of counterinsurgency strategies, a variety of partition plans, more serious engagement in Israeli-Palestinian talks (Tony Blair practically begged for this), and on and on. Every single one of these suggestions was ignored.

Would they have made any difference? Who knows. But to blame Democrats now for not being aggressive enough in trying to trisect this angle is like blaming Gerald Ford for losing Vietnam. George Bush fought this war precisely the way he wanted, with precisely the troops he wanted, and with every single penny he asked for. He has kept Don Rumsfeld in charge despite abundant evidence that he doesn't know how to win a war like this. He has mocked liberals and the media at every turn when they suggested we might need a different approach. The result has been a disaster with no evident solution left.

It's one thing to ask for "debate," but it's quite another to ask for a pony that doesn't exist anymore and to blame Democrats when they're unable to produce yet another one after three years of trying. That makes no sense.

As if "sense" is the goal of these sort of charges. Still, point well taken (for what it's worth).

I Love My State

Via Steve Benen, two excellent ads in the Maryland Senate race. The first, by Republican Michael Steele, is a pre-emptive strike against negative advertising, warning voters of "grainy images" and scary voices telling them that he hates puppies or other such non-sense. It's very well executed and hits very good notes with me. This is very much akin to the type of ad that I'd like to see politicians run more often. At the end, Steele also informs that in reality, he loves puppies. I, of course, actually do hate puppies, but I wasn't voting for Steele anyway.

The Democratic Senate Committee released a response ad, and it's quite good as well. It's theme is that Steele may like puppies, but he loves George W. Bush. It's also got a very light, mocking tone to it that I very much prefer to scary voices and grainy images. Steele is running away from the Republican label (it's never mentioned in his ad) because, well, he's running in Maryland. But Democrats are going to hang his support for George W. Bush over him like a weight.

Only in the Old Line State.

Holy Smokes!

Andrew Sullivan gives a Malkin Award to Rep. Marilyn Musgrave (R-CO), for this sentence in a debate:

As we face the issues that we are facing today, I don't think there's anything more important out there than the marriage issue

Me, I just blanche at the horrible lack of rhetorical skill. "As we face the issues we are facing today"?

Upon hearing this revealing description of Musgrave's legislative priorities, her Democratic opponent responded:

Holy smokes, we're at war, we've lost nearly 3,000 people and thousands more are maimed. We have over 46 million Americans without health insurance.

I'm not sure that's the most effective response, but it certainly captures my goggly-eyed amazement upon hearing that maintaining anti-gay discrimination is a more pressing issue to America than anything else on our plate.

Movers and Shakers

My dorm room at Carleton College is quite excellent. It is a massive quint at the top (4th) floor of the nicest dorm on campus. The 4th floor has only two rooms on it (our, and a quad), and the dorm itself is one of the more (psychologically if not spaitially) isolated on the campus.

Among my roommates, our room includes the head of the Sci-Fi Alliance at Carleton, the Guildmaster of the Assassins' Guild on campus (which is huge here), and myself, the President of the Debate Team. In other words, we are geek kingpins, and there is alot of nerd power concentrated in our litte tower.

I am the only Jew of my roommates, and despite leading the debate team I am the only Jew who is a member of the program there is well. All of this is to segue into a devastating review of a book that appears to be quite interested in resurrecting the myth of the Jewish conspiracy. It tells the tale of Sidney Korshak, a fixer for the mob and general shady behind-the-scenes powerbroker. Who, I guess it bears mentioning, is Jewish. It's worth mentioning because the author uses Mr. Korshak's story as a jump-off for discussing how the Jewish community writ large has a propensity for being part of these shadowy organizations--the hand behind the scenes that got things done for the public face.

How much of this is fact and how much legend is for the reader to decide. There is a lot of gossip here, guilt by association, innuendo - Russo quotes an actress named Selene Walters who says she was raped by Reagan in 1952, two weeks before he married Nancy Davis - but Korshak was clearly an influential figure. The system needed him, so he appeared. The problem is with the broader context Russo paints, in which Korshak and a handful of men with Jewish-sounding names are seen less as freely acting individuals than as cogs in a secret machine. Again and again, Russo strikes the sort of taboo-breaking pose that makes me nervous, the way any sentence that follows the phrase "Let's be honest" makes me nervous. Whenever I started to get caught up in the story, I ran into sentences like this: "Throughout history, the Jews were never the public leaders; they were always the kingmakers and the power brokers. ... They worked surreptitiously, choosing to focus on the substrata of a business or event." Or: "The Jews' historical Diaspora (dispersion) and relative lack of national roots helped them to identify and exploit more quickly the most lucrative emerging markets."
[...]
I'm not saying Korshak was not powerful, was not connected, did not know how to get a project moving or shut down. He was and did all these things, and that's what makes his story so interesting. It just seems to me - sensitive Ashkenazi that I am - that in making his case Russo deploys some very old notions of Jewish double-dealing and conspiracy, without which his larger ideas about Korshak and the world would fall apart. The fact is, every immigrant community in this country has spawned an underworld and every underworld has needed guys like Korshak. This does not make him a typically Jewish figure. It makes him a typically American figure. Or as Bellow's Augie March proclaims, "I am an American, Chicago born."

It reminds me of the routine in which Dave Chappelle talks about first learning of the stereotype about blacks and fried chicken. "All these years, I thought I liked chicken because it was delicious," Chappelle says. "Turns out I am genetically predisposed to liking chicken. I got no say in the matter." Well, I felt the same way when I finished "Supermob": I thought Sidney Korshak became a powerful figure because he was crooked and ambitious and smart. Turns out he was just Jewish.

I feel the same way. I have amassed my fair share of power here at Carleton (and before I go on, I want to stress that I feel very comfortable as a Jew on this campus for the most part, and do not feel like people think of me as the power-hungry Jew), most of it without being the explicit front-figure. For example, though I'm not technically a member of the college Democrats, I know virtually everyone who is, and I write for the flagship liberal paper on campus. Even in debate, my treasurer is the public face of debate for most of the dealings with the college. Shady Jew? Fits the framework, maybe. But I'm honestly not interested in taking over any worlds. More importantly, the same relational structure could apply to many of my roommates (who also have power in a variety of indirect ways), but since they're not Jewish, they'd never get tagged with the model.

There are good Jews and there are bad Jews. There is not an over-arching Jewish conspiracy or psyche that channels these Jews into positions of power and influence. The myth has gone on long enough.

Glimmer of Hope

Pass this. For the love of God, pass this. The compromise is no compromise. Bush won the right to continue to torture. This amendment can mitigate at least some of the damage.

Get it done, and damn the political expense.

Sunstein Tops

I don't feel at all guilty saying that Cass Sunstein's defense of the Obama hype makes mine look positively weak. Sunstein worked with Obama at the University of Chicago (where he was a part-time lecturer in Constitutional Law), and is absolutely effusive in his praise. But he also notes the facile nature of the "if he weren't Black" line of inquiry:

I have no idea how Obama would be regarded if he were white. (He might be regarded as this generation's Jack Kennedy; the two have a similar quickness, youth, charisma, and capacity for humor.) But for any successful politician, there are many necessary conditions for their success. Would George W. Bush be president if his last name were not Bush? Would Al Gore have become vice-president if his last name had not been Gore? Would Senator McCain be a serious candidate for the presidency if he had not been held prisoner in Vietnam? Would Bush, Gore, or McCain be where they are today if they were African-American or Hispanic? (What kinds of questions are these?)

Well spoken, Professor.

Today in Jew

A couple issues of importance to the Jewish community.

Eugene Volokh reports that the NAACP is suing a Jewish-run dental and health clinc because it closes on Saturday. This, apparently, amounts to the imposition of Jewish religion on the clinic's patrons (most of whom are poor minorities). If ever there was a case of Christian normativity screaming for recognition, this was it. And of course, this certainly does not help revive the faltering Jewish/Black relationship.

***

Also over at the VC, David Bernstein reports on the mechanics of Columbia University's speech invitation to Mahmoud Ahmadinejad. It fell through, but it is ironic that the prestigious university invited an on-the-record Holocaust denier to speak on Rosh Hashanah.

***

Via my colleagues at The Moderate Voice, another thinker (Ed Lasky) proposes that it is time for Jews to join the GOP. It follows the usual pattern--cite the Democratic anti-Israel far left for anecdotal evidence, and show that Republicans are generally more reflexively pro-Israel than Democrats are. The problems are multiple. As TDL readers know, I keep a wary eye on said left fringe, and would just as soon see them take their illiberal views to another party. But it is facile to say it is controlling. In a caucus that contains over 200 members, Lasky never cites an anti-Israel vote that broke even 50 Democrats. Democratic foreign policy elites--with a few exceptions--continue to be strong on Israel issues. And the poll data Lasky cites still shows a strong plurality of Democratic voters who support Israel over its enemies. Moreover, Lasky skates over (to say the least) the fact that many of the worst offenders on the Israel issue were defeated in Democratic primaries when Jewish voters raised their ire (Earl Hillard and Cynthia McKinney--twice). More fundamentally, while Jews trend strongly pro-Israel, that does not mean we request blind loyalty or single-minded trumpeting of "do-whatever-it-takes" tactics. Because Jews have a personal stake in this conflict, we are more likely to want to see a stable, lasting, just peace. This does not mean that we are any less pro-Israel, but it does mean that most of us would not object to a provision (called for by minority leader Nancy Pelosi and criticized by Lasky) asking that Israel do its best to limit civilian casualties. In addition to simply being the moral thing to do, every innocent who dies in this conflict adds fuel to the fire and makes it less likely that a moderate consensus will coalesce in the Arab world that respects Israel's sovereignity and security concerns. In other words, being "pro-Israel" doesn't necessarily mean what

But far and away the biggest flaw in Lasky's analysis is that he inexplicably thinks of Jews as single-issue voters. But of course, there are many issues of importance to Jews, of which Israel is but one. The Jewish community has and continues to have a broadly liberal consensus on a variety of issues, which also keeps us firmly Democratic camp. Israel isn't even the only issue that affects Jews qua Jews in America. At least as important to us is issues of Church/State separation, the abandonment of which would rapidly make us second-class citizens in our own country. The Republican record on this issue is, to say the least, abysmal. Indeed, numerical fringes not withstanding (and recall, you can find them among Republicans too--Pat Buchanan rises to mind), Jews right now have the best of both worlds--both parties reflect a broadly pro-Israel consensus, so Jews can comfortably vote on the basis of other issues of concern--like economic justice, church/state separation, civil rights, etc.. On those issues, Democrats remain clearly in command from a Jewish perspective. Republicans will never get our votes unless and until they realize we aren't single-issue Israel zombies.

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Phoebe Maltz has a great post on Jewish neo-conservatives (and "neo-conservatives").

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Happy Rosh Hashanah!

The Great Hope

For a while, it had been so long since there has been a White heavyweight champion in boxing, that any potential challenger (no matter how fringe) was invariably labeled "The Great White Hope." It was an odd mix of patronizing and racist, and I didn't like it (with the rise in dominance of Russian bloc heavyweights, it has become less common). On the flip side, the dearth of truly national Black political figures means that often the punditry will nominate certain Black political figures as the "Great Black Hope," at even the slightest inkling of a national following. This, too, is bad, but for very much opposite reasons--it pigeon-holes even spectacularly talented Black politicians as being there "just because they're Black," thus convienantly bracketing them off and assuring the general population that, no matter what the hype is, they aren't really all that great.

John McWhorter makes precisely this argument with respect to Barack Obama--explicitly labeling him as an example of a "Great Black Hope," who is being overpromoted and for the hype is completely unjustified. He says that if Obama was White, we still wouldn't have heard of him no matter his rhetorical brilliance or crinkly smile. To which Noam Scheiber has a devastating two word rebuttal: John Edwards. Edwards got promoted to the national stage almost as quickly as Obama--VP shortlist after two years in the Senate, Presidential material after three. And, as Scheiber notes, not only does Obama have more political experience than Edwards did going in (State Senator, community organizer, constitutional lawyer), his skills (and I agree, this is not a slap at Edwards) simply dwarfs those of the North Carolinian. Edwards is a good speaker. Obama is breath-taking. Edwards is quite sharp. Obama is jaw-droppingly brilliant. They simply aren't on the same level. When it comes to Barack Obama, the hype is for real. It isn't just because he's Black (although I think that it is an excellent sign when so many White Americans are genuinely excited about having a Black President). It's McWhorter who is being patronizing--he can't even fathom that it might be the man's skills and talents that are exciting us. It has to be his race. McWhorter needs to listen more carefully to the Junior Senator. The hype is there because he's the real deal--the type of face we haven't seen in the halls of congress in a long while.

Then and Now

Compare:

With no hope of establishing the analogy on which his thesis about public discourse rests, Nyhan resorts to attacking Power Line. We stand accused of being over-the-top partisans who worship President Bush as a visionary. Even if this were true, it would do nothing for the argument Nyhan wanted to make unless he could show (and he can't) that we viciously attack conservatives who think less of the president than we do.

--Powerline, yesterday

Christine Whitman has written a book titled It's My Party, Too, which...has the temerity to impugn the President's re-election victory...When a Democrat [sic] like Richard Clarke betrays President Bush, that's one thing; when it's done by a Republican, it's unforgivable.

--Powerline, 1/3/05

Does ranting about Whitman's "temerity" to "impugn" Bush's re-election victory and accusing her of a "betray[al]" that's "unforgivable" count as a "vicious[] attack"? I think it just might qualify.

"Voted For Torture!"

U.S. Rep. Lynn Westmoreland (R-GA) said it. About himself. Proudly. A few days later, he backed off, saying that he "voted against the anti-torture bill." As The Plank notes, if you're anti-anti-torture, then you are....?

When queried on specific, Westmoreland had the following to say:

Pressed on whether that means he supports torture, he said, "What's torture? Torture is many things to many people ... people have different breaking points."

Asked whether he would support using electric shocks, he said, "Electric shocks are given to people during initiations to different clubs ... Is that torture? I don't know."

Asked about beatings, he said, "Are you talking about tying his hands behind his back and beating him in the head? No, I'm not for that."

Excuse me while I bash my head against a concrete wall.

Revelation: Jews Hate Genocide

Once again, the President of Sudan is blaming the Jews for all the nasty attention being given to his genocide in Darfur. And once again, my response is: AND PROUD. The speech was at the UN (where else?), and this time the President made the rather peculiar claim that Jews were focusing attention on Darfur to raise money for Israel. I'm sure somewhere in his twisted mind, that makes sense, but I can't decipher how it works, and have no interest in trying.

In the next issue of The New Republic (firewall), an ex-Israeli official argues that the UN is actually Israel's best friend, because by being such a parody of itself when it comes to the Jewish state, it ends up giving Israel a lot more leeway to act against terror than it would sober-minded people actually had to take the UN seriously. I actually disagree--I don't think it does Israel or anyone else favors when such an important geopolitical issue can't be discussed without immediately sounding like a revision of the Protocols. But alas, that seems to be the world we live in. And certainly, with enemies like Sudan, I'm not sure Jews really need friends.

Neighbors Unite Against Prussian Blue

Eugene Volokh reports that the new neighbors of the White supremacist pop group "Prussian Blue" (14-year old twins and their family) have posted flyers around their community notifying members of the group's radical racist agenda and declaring themselves to be in opposition to "hate."

The family is claiming harrassment. The neighbors disagree:

"This letter is not written as a means to harass the family or to begin a witch hunt," the flier said. "We wish the family no harm. Our goal is to peacefully communicate that this kind of hate and ignorance will not be accepted here in our neighborhood where we live and raise our families."

As Professor Volokh noted, since PB specifically decided to move to this town because the old one "wasn't White enough", it is perfectly fair for the neighbors to push back against being identified with that sort of racist sentiment.

What would really be great is if the neighborhood began to actively work to end the racial monotony that attracted PB to the area in the first place. But that might be too much to ask.

Neighbors Unite Against Prussian Blue

Eugene Volokh reports that the new neighbors of the White supremacist pop group "Prussian Blue" (14-year old twins and their family) have posted flyers around their community notifying members of the group's radical racist agenda and declaring themselves to be in opposition to "hate."

The family is claiming harrassment. The neighbors disagree:

"This letter is not written as a means to harass the family or to begin a witch hunt," the flier said. "We wish the family no harm. Our goal is to peacefully communicate that this kind of hate and ignorance will not be accepted here in our neighborhood where we live and raise our families."

As Professor Volokh noted, since PB specifically decided to move to this town because the old one "wasn't White enough", it is perfectly fair for the neighbors to push back against being identified with that sort of racist sentiment.

What would really be great is if the neighborhood began to actively work to end the racial monotony that attracted PB to the area in the first place. But that might be too much to ask.

The Kennedy Indication

Law.com has its preview of the upcoming term. Surprising approximately nobody, Justice Kennedy will play a crucial role in the proceedings.

However, there is some interest to be had in the eternal swing-vote watch. Specifically, there are two clusters of cases which challenge recently settled precedents in which Kennedy was on the dissent. I've predicted that Kennedy will tact to the center to fill O'Connor's role, acting as a balancer to prevent the Court from moving too far to the left or the right--even if that means staking out more liberal positions than he did when O'Connor was the chief moderator. These cases, which pit Kennedy's previously stated ideological commitments against the stability and continuity of precedent, put that theory to the test. The first set deals with school desegregation/affirmative action:

The replacement of O'Connor with Alito may also be determinative in the Court's two key affirmative action cases: Parents Involved in Community Schools v. Seattle School District #1, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915.

Parents in both cases are challenging school integration guidelines that prevented their children from attending their school of choice because of their race or ethnicity. The Bush administration has intervened in the cases on the side of the parents, arguing that the guidelines involve "outright racial balancing" which is "patently unconstitutional."

The high court last visited the issue of affirmative action in 2003 when it upheld the affirmative-action admissions policy at the University of Michigan Law School, but struck down a differently constituted admissions policy at the undergraduate school. Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003). O'Connor was the key vote and voice in the law school ruling; Kennedy was in dissent. If the school districts here lose, "It would really, in the context it is before the Court, signal the end of the Brown v. Board of Education desegregation era," said Temple's Rahdert. "What's left of school desegregation are these voluntary plans that try, at the margins, to combat the tendency of having patterns of one-race schools."

This one is less interesting, because I think it is likely that Grutter can be distinguished (not that it should be, or even that it is particularly coherent too, only that it is different enough so it seems a fairly plassible dodge) and the overarching question of affirmative action will be deferred for yet another day.

But the real intriguing one is the upcoming partial birth abortion ban case:

In Gonzales v. Carhart, No. 05-380, and Gonzales v. Planned Parenthood, No. 05-1382, the Bush administration seeks to overturn rulings by the 8th and 9th circuits that struck down the federal Partial Birth Abortion Ban Act of 2003.

Every court to review the law has found it invalid, generally because it is overbroad and because it lacks an exception to protect the health of the woman -- a requirement established by a 5-4 high court decision in 2000 in Stenberg v. Carhart, 530 U.S. 914, which held that Nebraska's partial-birth abortion law was unconstitutional. O'Connor was the critical fifth vote to invalidate the law. Kennedy wrote a bitter dissent.

In enacting the federal ban, Congress explicitly found that a health exception was not necessary for this type of medical procedure.

There is no getting around the past precedent here. Kennedy was firmly on the dissent in Carhart. But it's still the law (for now), and Congress' response was basically to stick a middle finger in the eye of the court. It didn't even try to write a law consistent with the opinion. This type of challenge to the Court's supremacy is precisely the type of case where I can see Kennedy biting the bullet and voting for continuity even when his personal (and tabula rasa legal) beliefs dictate otherwise. While Lawrence might be an exception, in general, Justice Kennedy does not like to play fast and loose with precedent--and he definitely doesn't like it when Congress takes it upon itself to overturn precedents it finds disagreeable. Ultimately, I think Carhart II will be the biggest indicator of where Justice Kennedy's jurisprudence will point to for the years to come.

Paul Butler for Coolest

Paul Horwitz wants to know who is the "coolest" law professor in the academy. He nominates Alex Long of Oklahoma City University, but opens the floor for contestation.

My nominee is GW Law Professor Paul Butler. There are a few reasons to support this. For one, he is a blogger at BlackProf. This shows that he is hip and edgy and connected to the trends of us youthful folk. Remember, while old people can be "cool," what is cool is unquestionably defined by the young.

Drawing off that is the second and ultimately controlling reason for Butler's dominance in the field. Horwitz pitches Long on his use and analysis of musicians in law review articles. To that end, I submit that he is easily trumped by Professor Butler's article Much Respect: Toward a Hip-Hop Theory of Punishment, 56 Stan. L. Rev. 983 (2004). To open, let's start with the opening footnote:

Professor of Law, The George Washington University Law School. This Article was presented as a work-in-progress at Washington University School of Law and at a Stanford Law Review Symposium. I thank the participants in those events. Special shout out to Daniel Solove. Mad props to Christopher Bracey, Kimberly Jade Norwood, and Dorothy Roberts. Big up to my research assistants Jeremy Medovoy, Michael Robinett, and Eduardo Rodriguez.

Next, let's look at the article itself. The artists it references are ones that actual have "street cred": Nas, NWA, Jay-Z. In addition, it cites to suitably obscure people--one's who the truly connected and plugged in might know, but people "on the outside" will be left scratching their head saying "what?" Here we have people like Erykah Badu and Immortal Technique. These names, in terms of coolness, clearly beat out "GBV, Lester Bangs, the Specials, Manilow, Paul Westerberg, Mike Watt, Robbie Fulks, Waylon, Hank, and Uncle Tupelo," who are cited by Long and whom even Horwitz admits are getting a bit long in the tooth. Furthermore, the article manages to be an actual important contribution to the literature on punishment. I do believe utility is cool (think iPods). And by being published in the Stanford Law Review, it has the advantage of cross-over appeal--"ghetto made good," so to speak.

Put simply, rap trumps whatever it is Mike Watt does. Professor Butler is clearly the coolest law professor, and Much Respect to anyone who can prove me wrong.

Paul Butler for Coolest

Paul Horwitz wants to know who is the "coolest" law professor in the academy. He nominates Alex Long of Oklahoma City University, but opens the floor for contestation.

My nominee is GW Law Professor Paul Butler. There are a few reasons to support this. For one, he is a blogger at BlackProf. This shows that he is hip and edgy and connected to the trends of us youthful folk. Remember, while old people can be "cool," what is cool is unquestionably defined by the young.

Drawing off that is the second and ultimately controlling reason for Butler's dominance in the field. Horwitz pitches Long on his use and analysis of musicians in law review articles. To that end, I submit that he is easily trumped by Professor Butler's article Much Respect: Toward a Hip-Hop Theory of Punishment, 56 Stan. L. Rev. 983 (2004). To open, let's start with the opening footnote:

Professor of Law, The George Washington University Law School. This Article was presented as a work-in-progress at Washington University School of Law and at a Stanford Law Review Symposium. I thank the participants in those events. Special shout out to Daniel Solove. Mad props to Christopher Bracey, Kimberly Jade Norwood, and Dorothy Roberts. Big up to my research assistants Jeremy Medovoy, Michael Robinett, and Eduardo Rodriguez.

Next, let's look at the article itself. The artists it references are ones that actual have "street cred": Nas, NWA, Jay-Z. In addition, it cites to suitably obscure people--one's who the truly connected and plugged in might know, but people "on the outside" will be left scratching their head saying "what?" Here we have people like Erykah Badu and Immortal Technique. These names, in terms of coolness, clearly beat out "GBV, Lester Bangs, the Specials, Manilow, Paul Westerberg, Mike Watt, Robbie Fulks, Waylon, Hank, and Uncle Tupelo," who are cited by Long and whom even Horwitz admits are getting a bit long in the tooth. Furthermore, the article manages to be an actual important contribution to the literature on punishment. I do believe utility is cool (think iPods). And by being published in the Stanford Law Review, it has the advantage of cross-over appeal--"ghetto made good," so to speak.

Put simply, rap trumps whatever it is Mike Watt does. Professor Butler is clearly the coolest law professor, and Much Respect to anyone who can prove me wrong.