Friday, May 16, 2008
Von Spakovsky Withdraws
"Controversial" nominee for a seat on the Federal Elections Commission Hans von Spakovsky has withdrawn his name from consideration for the position after a 6-month stand-off between President Bush and Congressional Democrats. It was a battle worth fighting -- von Spakovsky is a GOP partisan and committed to the project of voter suppression -- but one I wasn't convinced we could win. Kudos to the Senate leadership for not blinking and winning a round for the light.
Domain of Losses
As exciting as the California Supreme Court's decision on gay marriage is, I have to admit I'm worried. Not about the backlash problem, which I don't think is that big a deal. Rather, the fact that the decision likely will be challenged by a citizen initiative. And most folks seem to think that bigotry will squeak out a victory.
This will be crushing -- far more so than losing a vote to constitutionalize gay marriage bans in states which already bar them statutorily will be. It'll snatch away a victory that gays enjoyed, even if for only a short while, in a very high-profile fashion, and will undoubtedly give equality opponents momentum in an era where the tide had seemed to be turning against them.
This will be crushing -- far more so than losing a vote to constitutionalize gay marriage bans in states which already bar them statutorily will be. It'll snatch away a victory that gays enjoyed, even if for only a short while, in a very high-profile fashion, and will undoubtedly give equality opponents momentum in an era where the tide had seemed to be turning against them.
Holy Flip-Flop, Batman!
In the wake of the on-going Bush/Obama/McCain three-way fist-fight over the President's comparison of Barack Obama to "appeasers" in WWII because of his willingness to talk to Iran, we saw an interesting CNN headline: " McCain denies 'flip-flop' on Hamas, blasts Obama". Apparently, some State Department officials have alleged that two years ago, McCain was quite in favor of diplomatic engagement with Hamas -- the precise position he's now attacking Obama for putatively holding.
I say the headline is interesting because it may be one of the first times I've seen the mainstream media even hint that straighty-McStraighttalk could possibly have flip-flopped about anything. It's a veritable milestone in media reporting about John McCain! Could we finally be seeing the end of his eight-year long honeymoon with the media? We -- by which I mean American democracy -- can only hope.
I say the headline is interesting because it may be one of the first times I've seen the mainstream media even hint that straighty-McStraighttalk could possibly have flip-flopped about anything. It's a veritable milestone in media reporting about John McCain! Could we finally be seeing the end of his eight-year long honeymoon with the media? We -- by which I mean American democracy -- can only hope.
Thursday, May 15, 2008
Sticky Slopes
Blogging on California's ruling striking down bans on same-sex marriage, Eugene Volokh argues that the case proves true the fears by gay marriage opponents that the extension of legislative protections for gay couples acts as a "slippery slope" towards eventually legalizing the unions. The ultimate effect of enacting policy reforms to equalize the status of minority groups is, I suspect, complex. They can encourage further reforms via the bandwagon effect, increasing morale amongst activists, or showing that the sky isn't falling. But they also can smother political action by convincing the majority that they've "addressed the problem" and that further demands are pushiness or requests for "special rights." But Volokh's argument is that, as a a legal matter, these policies often end up appearing in later court opinions which push us to the bottom of the slope. He notes that in both California and Massachusetts, the high courts used these policies as evidence of liberalizing attitudes with regards to gay couples -- crucial components to their decision.
I don't disagree with Professor Volokh's documentation of this phenomenon per se. But oddly enough, it seems to cut both ways. When Maryland's high court upheld our state's prohibition of gay marriage, it also relied on the increasing legislative protection for gay couples -- but to the opposite effect. It claimed that these policies proved that homosexuals did not need additional protections by the courts -- that they were now fully capable of participating equally in the democratic arena (Conaway v. Deane, 401 Md. 219, 286-90 (Md. Ct. App. 2007)). The enactment of policy protections for gay couples, in this case, served as a barrier to further reform. It made the slope "stickier." Justice Scalia has made similar (albeit unsuccessful) arguments in his own dissents in gay rights cases, using the legislative accomplishments of the gay rights lobby to undermine the case for legal intervention.
The problem seems to be adequately encapsulated by Jack Balkin in his wonderful article, "What Brown Teaches us about Constitutional Theory":
As Massachusetts and California appear to demonstrate, some demonstration of political power -- showing that attitudes towards homosexuals have "liberalized", in this case -- appears to be necessary in order to "grease the slope" towards gay marriage. But, as Maryland demonstrates, this is a move fraught with peril: courts can just as easily use legislative gains as an excuse to hamper or delay pleas for judicial reform -- to make the slope "stickier."
There is irony to this, of course: disempowered groups shouldn't have to demonstrate political power in order to see their rights vindicated (though, it should be said, this is precisely what Critical Legal Theorists predict we should see in such cases). If limiting marriage to heterosexual couples is a violation of gay rights, it is just as much so when they are a totally marginalized class as it is when they are only somewhat reviled. But if we are going to demand political clout as a precondition for rights, it's perverse to turn around and use their new-found (limited) influence in legislatures as an excuse to deny them those same rights. Once again, either the marriage equality is a right or it isn't. If it is, then the fact that they can't secure it legislatively is proof that -- regardless of how successful they are on other priorities -- they hold insufficient political power to vindicate all of their rights in that arena. If it isn't, then courts should say so and explain why.
But what we're seeing right now is absurd. At best, it appears that there is a very narrow "band" of relative political inclusion upon which minority groups can launch claims for judicial protection: too little inclusion and the courts won't pay attention, too much and they'll claim their intervention is unnecessary. At worse, it appears that the rules of the game change so as to permanently preclude meaningful judicial protection for minority groups -- any amount of political power (lots, some, none) can be used as a reason to reject their claims.
Ultimately, as in most cases where the facts lead to indeterminate legal outcomes, my suspicion is that the amount of power possessed by a given minority group will likely be interpreted in a way that is most amenable to judicial policy preferences. Judges who want to increase protections of gays and lesbians will use their increased influence as proof that discrimination against them is archaic, while judges who oppose such reform will use that same evidence as an argument against viewing gays and lesbians as marginalized at all.
I don't disagree with Professor Volokh's documentation of this phenomenon per se. But oddly enough, it seems to cut both ways. When Maryland's high court upheld our state's prohibition of gay marriage, it also relied on the increasing legislative protection for gay couples -- but to the opposite effect. It claimed that these policies proved that homosexuals did not need additional protections by the courts -- that they were now fully capable of participating equally in the democratic arena (Conaway v. Deane, 401 Md. 219, 286-90 (Md. Ct. App. 2007)). The enactment of policy protections for gay couples, in this case, served as a barrier to further reform. It made the slope "stickier." Justice Scalia has made similar (albeit unsuccessful) arguments in his own dissents in gay rights cases, using the legislative accomplishments of the gay rights lobby to undermine the case for legal intervention.
The problem seems to be adequately encapsulated by Jack Balkin in his wonderful article, "What Brown Teaches us about Constitutional Theory":
In general, courts will protect minorities only after minorities have shown a fair degree of clout in the political process. If they are truly politically powerless, courts may not even recognize their grievances; and if they have just enough influence to get on the political radar screen, courts will usually dismiss their claims with a wave of the hand. Conversely, as a reform movement for minority rights gains prominence through political protest and legislative lobbying, courts will increasingly pay attention to minority rights and take their claims more seriously." [Jack Balkin, What Brown Teaches us about Constitutional Theory, 90 Va. L. Rev. 1531, 1552 (2004)]
As Massachusetts and California appear to demonstrate, some demonstration of political power -- showing that attitudes towards homosexuals have "liberalized", in this case -- appears to be necessary in order to "grease the slope" towards gay marriage. But, as Maryland demonstrates, this is a move fraught with peril: courts can just as easily use legislative gains as an excuse to hamper or delay pleas for judicial reform -- to make the slope "stickier."
There is irony to this, of course: disempowered groups shouldn't have to demonstrate political power in order to see their rights vindicated (though, it should be said, this is precisely what Critical Legal Theorists predict we should see in such cases). If limiting marriage to heterosexual couples is a violation of gay rights, it is just as much so when they are a totally marginalized class as it is when they are only somewhat reviled. But if we are going to demand political clout as a precondition for rights, it's perverse to turn around and use their new-found (limited) influence in legislatures as an excuse to deny them those same rights. Once again, either the marriage equality is a right or it isn't. If it is, then the fact that they can't secure it legislatively is proof that -- regardless of how successful they are on other priorities -- they hold insufficient political power to vindicate all of their rights in that arena. If it isn't, then courts should say so and explain why.
But what we're seeing right now is absurd. At best, it appears that there is a very narrow "band" of relative political inclusion upon which minority groups can launch claims for judicial protection: too little inclusion and the courts won't pay attention, too much and they'll claim their intervention is unnecessary. At worse, it appears that the rules of the game change so as to permanently preclude meaningful judicial protection for minority groups -- any amount of political power (lots, some, none) can be used as a reason to reject their claims.
Ultimately, as in most cases where the facts lead to indeterminate legal outcomes, my suspicion is that the amount of power possessed by a given minority group will likely be interpreted in a way that is most amenable to judicial policy preferences. Judges who want to increase protections of gays and lesbians will use their increased influence as proof that discrimination against them is archaic, while judges who oppose such reform will use that same evidence as an argument against viewing gays and lesbians as marginalized at all.
The Peril of the Tempting Target
In the wake of California's recent ruling legalizing gay marriage, Rick Hasen wonders if the state supreme court might have done John McCain a favor (via Volokh). The ruling almost definitely will place an initiative on the ballot seeking to overturn the decision. Hasen argues that
And I admit, this was my first thought too.
But thinking about it more, this might actually prove dangerous for McCain and his cash-strapped campaign. California is, as was mentioned, a very expensive state to campaign in. Under normal circumstances, it wouldn't surprise me to see McCain write it off entirely as a waste of resources. The gay marriage ruling might mobilize conservatives enough so as to convince McCain to make a play there. But if he does, he'll have to devote resources too -- and he has far less to spare than the Democrats do.
I'm reminded of Republicans investing in the 2006 New Jersey Senate race in a year where they also had their backs against the wall. Like California, New Jersey is pretty blue and very expensive to campaign in. Republicans were convinced that Robert Menendez was a beatable Democratic candidate though, so they decided to contest it. They ended up losing (just as they still likely will in California), and the resources they put into the Garden State would have been invaluable in states that were objectively much closer fights: Virginia, Missouri, and South Dakota. Had they not been tempted by New Jersey, they might well still have control of the Senate today. Similarly, if the gay marriage ruling tempts McCain to make a play for California, he might regret if it draws desperately needed campaign resources away from true battleground states. Democrats can afford to play the 50-state field -- Republicans this year can't.
This helps John McCain because those conservative voters may not have come out in great numbers for him, but they will come out now to vote for this amendment, and they are more likely to vote for McCain than for the Democrat once they are already voting. That's not to say that California will go red, but it is to say that the Democratic nominee will have to devote more resources to this very expensive to campaign in state.
And I admit, this was my first thought too.
But thinking about it more, this might actually prove dangerous for McCain and his cash-strapped campaign. California is, as was mentioned, a very expensive state to campaign in. Under normal circumstances, it wouldn't surprise me to see McCain write it off entirely as a waste of resources. The gay marriage ruling might mobilize conservatives enough so as to convince McCain to make a play there. But if he does, he'll have to devote resources too -- and he has far less to spare than the Democrats do.
I'm reminded of Republicans investing in the 2006 New Jersey Senate race in a year where they also had their backs against the wall. Like California, New Jersey is pretty blue and very expensive to campaign in. Republicans were convinced that Robert Menendez was a beatable Democratic candidate though, so they decided to contest it. They ended up losing (just as they still likely will in California), and the resources they put into the Garden State would have been invaluable in states that were objectively much closer fights: Virginia, Missouri, and South Dakota. Had they not been tempted by New Jersey, they might well still have control of the Senate today. Similarly, if the gay marriage ruling tempts McCain to make a play for California, he might regret if it draws desperately needed campaign resources away from true battleground states. Democrats can afford to play the 50-state field -- Republicans this year can't.
Wednesday, May 14, 2008
Forgetfulness and Denial
In a long post a few weeks ago, I explored the problems with denial -- specifically, denying one's role in the commission of mass atrocity (such as American support for Central American "death squads"). A similar topic has arisen thanks to some of the more unsavory associations of John McCain's chief adviser, Charlie Beck. Today, Hilzoy of Obsidian Wings explores Beck's (and the conservative movement writ large) relationship to Jonas Savimbi and the UNITA rebel movement in Angola, which for awhile was the darling child of the Reagan administration and their intellectual cohorts. Beck was one of Savimbi's chief lobbyists in Washington, and was instrumental in America re-establishing our support for his forces.
I'll leave to Hilzoy to document the atrocities that we knew we were supporting (and in a real sense intentionally supporting) when we assisted Savimbi. Suffice to say, they are appalling. But our current relationship with regards to Beck seems less one of denial and more of forgetfulness. Beck's role in assisting a hideous thug should, by all rights, exile him from public service. But we don't. And we don't not because we've consciously decided that it is alright to drum up support for torturers.* We don't do it not because we've consciously decided that what Savimba did was okay. We don't do it not because we've forced Beck to reckon for his actions and undergo some sort repentance or reintegration into the public space. We allow Beck to maintain his public position because we essentially have no consciousness that Angola ever happened.
We forget that which was never important enough to deny. If Angola suddenly became a political issue, Beck would undoubtedly switch from forgetfulness to denial -- not that he supported UNITA, but denying that UNITA was all that bad, or denying that he knew of whatever bad things they did. Denial and forgetfulness serve essentially the same purpose, because both allow for the people and projects which crafted the original injustice to proceed forth without punishment or remorse. Nothing checks their saga. Often times, injustice occurs precisely because the perpetrators assume that their victims aren't important enough to warrant consideration -- ultimately, to be remembered. When we invite Beck back into a critical part of America's democratic operation, without forcing him to confront this element of his past, we ratify that belief, and ultimately, ratify oppression.
***
* While I was writing this, I had a thought: what's the difference between being a private criminal defense attorney (representing people who likely committed murder), and being a lobbyist for murderers like Savimbi? We don't say that criminal defense attorneys should be barred from public service (although, I suspect that if one ran for office it would be used against them), because we believe that everyone has the right to have representation in legal proceedings. But in a democracy, shouldn't everyone also have the right to have representation and have their voice heard in the democratic arena? Isn't that the essence of public deliberation?
There are a few differences, of course. One is that while there is no deficit of lawyers, and the poor are guaranteed representation if they can't afford it, political representation is highly stratified -- perhaps choosing to increase the voice of thugs, while there are so many good people who are marginalized in the system, is not a legitimate moral move. Likewise, even though a criminal defense attorney might defend a murderer, he does not defend the act of murder -- his defense is usually either that the defendant didn't do it, or that the killing was not murder (was in some way justified). Aside from securing the release of his client, nothing the lawyer does promotes more killing. By contrast, while lobbyists too rarely concede that their clients are murderers (or also claim that their acts are justified), the lobbyist project is specifically to direct resources to enable his clients acts (in this case, murdering) to continue. Maybe in this way, the lobbyist is akin to a lawyer on retainer by an organized crime family (a person who I think is in a considerably more morally ambigious situation than the average defense attorney)?
It's a tough question. I'd appreciate help.
I'll leave to Hilzoy to document the atrocities that we knew we were supporting (and in a real sense intentionally supporting) when we assisted Savimbi. Suffice to say, they are appalling. But our current relationship with regards to Beck seems less one of denial and more of forgetfulness. Beck's role in assisting a hideous thug should, by all rights, exile him from public service. But we don't. And we don't not because we've consciously decided that it is alright to drum up support for torturers.* We don't do it not because we've consciously decided that what Savimba did was okay. We don't do it not because we've forced Beck to reckon for his actions and undergo some sort repentance or reintegration into the public space. We allow Beck to maintain his public position because we essentially have no consciousness that Angola ever happened.
We forget that which was never important enough to deny. If Angola suddenly became a political issue, Beck would undoubtedly switch from forgetfulness to denial -- not that he supported UNITA, but denying that UNITA was all that bad, or denying that he knew of whatever bad things they did. Denial and forgetfulness serve essentially the same purpose, because both allow for the people and projects which crafted the original injustice to proceed forth without punishment or remorse. Nothing checks their saga. Often times, injustice occurs precisely because the perpetrators assume that their victims aren't important enough to warrant consideration -- ultimately, to be remembered. When we invite Beck back into a critical part of America's democratic operation, without forcing him to confront this element of his past, we ratify that belief, and ultimately, ratify oppression.
***
* While I was writing this, I had a thought: what's the difference between being a private criminal defense attorney (representing people who likely committed murder), and being a lobbyist for murderers like Savimbi? We don't say that criminal defense attorneys should be barred from public service (although, I suspect that if one ran for office it would be used against them), because we believe that everyone has the right to have representation in legal proceedings. But in a democracy, shouldn't everyone also have the right to have representation and have their voice heard in the democratic arena? Isn't that the essence of public deliberation?
There are a few differences, of course. One is that while there is no deficit of lawyers, and the poor are guaranteed representation if they can't afford it, political representation is highly stratified -- perhaps choosing to increase the voice of thugs, while there are so many good people who are marginalized in the system, is not a legitimate moral move. Likewise, even though a criminal defense attorney might defend a murderer, he does not defend the act of murder -- his defense is usually either that the defendant didn't do it, or that the killing was not murder (was in some way justified). Aside from securing the release of his client, nothing the lawyer does promotes more killing. By contrast, while lobbyists too rarely concede that their clients are murderers (or also claim that their acts are justified), the lobbyist project is specifically to direct resources to enable his clients acts (in this case, murdering) to continue. Maybe in this way, the lobbyist is akin to a lawyer on retainer by an organized crime family (a person who I think is in a considerably more morally ambigious situation than the average defense attorney)?
It's a tough question. I'd appreciate help.
Tuesday, May 13, 2008
But Why?
A recently released poll indicates that most Americans oppose lowering the drinking age to 18, and likewise believe that we should tighten restrictions on underage alcohol consumptions.
This, to my mind, is ridiculous. Like with drugs, virtually everyone knows folks who drank prior to turning 21 (perhaps -- or perhaps not! -- like drugs, most people themselves drank prior to turning 21). We do not feel like they got away with something they shouldn't have. We do not believe they are bad people. All of which gets tacked onto the fact that our prohibitionist stance on 19 year olds drinking alcohol is futile to the point of absurdism, as anyone who's ever been on a college campus knows. So I really don't know what motivates irrationality to this robust of a degree.
This, to my mind, is ridiculous. Like with drugs, virtually everyone knows folks who drank prior to turning 21 (perhaps -- or perhaps not! -- like drugs, most people themselves drank prior to turning 21). We do not feel like they got away with something they shouldn't have. We do not believe they are bad people. All of which gets tacked onto the fact that our prohibitionist stance on 19 year olds drinking alcohol is futile to the point of absurdism, as anyone who's ever been on a college campus knows. So I really don't know what motivates irrationality to this robust of a degree.
Barbara M Rocks the House
My senior senator, on whether or not she'd take the Vice Presidency:
Madam, my respect for you has soared.
“Absolutely,” said Sen. Barbara Mikulski (D-Md.). “I think I would be great. First of all, I know how to behave at weddings and funerals. And I know how to be commander in chief. I’d bring a lot of fun to the job. We would rock the Naval Observatory.”
Madam, my respect for you has soared.
Monday, May 12, 2008
Po-Mo Bernstein
David Bernstein is complaining about how liberal bloggers are protesting Phyllis Schlafly's honorary degree from Washington University (St. Louis). Specifically, he objects to an excerpt of this post:
Bernstein dryly notes that this hostility towards conservatism may be one of the reasons right-ward individuals stay out of academia.
I agree and I disagree, but I think that Bernstein's statement is very revealing. After all, his argument boils down to a very left-identified post-modern claim about how normative statements about "morality" and "right and wrong" are often masks providing justification for relations of power. After all, one could presumably justify not giving someone like Schlafly an honorary degree on the fact that her views are evil, poisonous, bile -- that's his interlocutors argument. But Bernstein does not appear to accept this as a valid justification. Liberals who engage in this sort of strong moral critique of a Schlafly, or a Dubya or a Jesse Helms, are really just perpetuating particular norms of power -- norms which act to (and perhaps are intended to) marginalize and exclude alternative voices (in this case, conservatives). Only by deconstructing the mechanics of this putatively "moral" critique can we recognize how it is a function of power, and seek to remedy the underlying inequality.
And to some extent, I agree. I've registered my support for limited political affirmative action in academia, and acknowledged the potential that a "hostile environment" towards conservatives may push them away from the profession even in absence of overt discrimination.
The problem, though, is that I doubt there is any other context where Bernstein would make (indeed, refrain from mocking) this form of argument. And to turn the stock conservative response back onto him: why should we refrain from calling evil by name? Why shouldn't we avoid honoring those who traffic in immorality? Jesse Helms was a flagrant racist. George W. Bush and Dick Cheney have enacted a regime of torture. Phyllis Schlafly has dedicated a career to undermining the principle of equal human rights and dignity. Is Bernstein now in the relativist camp, saying that we must pretend to ignore these inconvenient facts as blurring the focus on the "power structure"? I see no other explanation.
And as for me? There is, in my view, no way to avoid making value judgments -- and even if that's not true, giving an honorary degree is a rather explicit example of making a value judgment anyway. Universities, like all other institutions, have to decide what values they stand for. Open exchange of diverse ideas is one -- which is why I promote the inclusion of smart, qualified conservative thinkers into the academic structure (my support for race-based affirmative action is on precisely the same grounds). But just as our desire to remedy inequalities in race doesn't mean we should admit any Black person who strays across our path, likewise our desire for intellectual equity does not mean that any prominent conservative thinker deserves our honors. Phyllis Schlafly is an unambiguous force for wrong in the world -- wrong in ways that really are no longer controversial from within any reasonable intellectual standpoint, wrong in ways that I doubt Bernstein would disagree with. It is reducing our standards to non-existence to give her an honorary degree. So while I welcome Bernstein to the post-modern camp, and look forward to his support on all other issues which demand that we undermine entrenched hierarchies of domination, he still has some practicing to do.
Nor do I believe that conservatives should never receive honorary degrees. There are conservative scholars who do work that is respected within academia—many economists, for example—and they would not be inappropriate candidates for such an honor. Nor would I have a problem with conservative pundits, so long as they’re sane and genuinely distinguished (which these days admittedly narrows the field to practically zero), such as the late William F. Buckley. I’ll even grudgingly accept the reality that conservative Republican elder statesmen are regularly awarded these things. Though even here there are limits—while personally I wouldn’t protest the awarding of a degree to George H.W. Bush, even though I find him pretty hateful, far-right lunatics like Cheney, Dubya, and Jesse Helms should be entirely out of bounds..... Because, as much as conservatives may whine and scream to the contrary, liberalism and conservatism are not moral equivalents. Because, on the one side you have the thinkers and activists who have advanced freedom, social justice, and human rights, and on the other, you have those who have attempted to thwart all those things
Bernstein dryly notes that this hostility towards conservatism may be one of the reasons right-ward individuals stay out of academia.
I agree and I disagree, but I think that Bernstein's statement is very revealing. After all, his argument boils down to a very left-identified post-modern claim about how normative statements about "morality" and "right and wrong" are often masks providing justification for relations of power. After all, one could presumably justify not giving someone like Schlafly an honorary degree on the fact that her views are evil, poisonous, bile -- that's his interlocutors argument. But Bernstein does not appear to accept this as a valid justification. Liberals who engage in this sort of strong moral critique of a Schlafly, or a Dubya or a Jesse Helms, are really just perpetuating particular norms of power -- norms which act to (and perhaps are intended to) marginalize and exclude alternative voices (in this case, conservatives). Only by deconstructing the mechanics of this putatively "moral" critique can we recognize how it is a function of power, and seek to remedy the underlying inequality.
And to some extent, I agree. I've registered my support for limited political affirmative action in academia, and acknowledged the potential that a "hostile environment" towards conservatives may push them away from the profession even in absence of overt discrimination.
The problem, though, is that I doubt there is any other context where Bernstein would make (indeed, refrain from mocking) this form of argument. And to turn the stock conservative response back onto him: why should we refrain from calling evil by name? Why shouldn't we avoid honoring those who traffic in immorality? Jesse Helms was a flagrant racist. George W. Bush and Dick Cheney have enacted a regime of torture. Phyllis Schlafly has dedicated a career to undermining the principle of equal human rights and dignity. Is Bernstein now in the relativist camp, saying that we must pretend to ignore these inconvenient facts as blurring the focus on the "power structure"? I see no other explanation.
And as for me? There is, in my view, no way to avoid making value judgments -- and even if that's not true, giving an honorary degree is a rather explicit example of making a value judgment anyway. Universities, like all other institutions, have to decide what values they stand for. Open exchange of diverse ideas is one -- which is why I promote the inclusion of smart, qualified conservative thinkers into the academic structure (my support for race-based affirmative action is on precisely the same grounds). But just as our desire to remedy inequalities in race doesn't mean we should admit any Black person who strays across our path, likewise our desire for intellectual equity does not mean that any prominent conservative thinker deserves our honors. Phyllis Schlafly is an unambiguous force for wrong in the world -- wrong in ways that really are no longer controversial from within any reasonable intellectual standpoint, wrong in ways that I doubt Bernstein would disagree with. It is reducing our standards to non-existence to give her an honorary degree. So while I welcome Bernstein to the post-modern camp, and look forward to his support on all other issues which demand that we undermine entrenched hierarchies of domination, he still has some practicing to do.
Faith
I've read quite a few stories revealing the horror of America's prison system (and our detention centers for immigrants). The legal immigrant -- detained on a charge of buying stolen jewelry a decade ago -- who can't get a test to see if her cancer has come back. The nine-year old Canadian child begging the Canadian Prime Minister to intervene and get him and his family out of detention while their asylum claim is being processed. Reports of officially sanctioned rape. Flagrant abuse. Innocent men tortured in extra-legal black sites, then, when we concluded that "oops, he is innocent", dumped blindfolded on a hillside in a random country (it turned out to be Albania). I could go on -- and that doesn't even go into broken process by which we decide who goes to jail in the first place.
These stories, read in themselves, do not distinguish themselves from a typical autocratic thugocracy. Maybe not the worst of these regimes -- there are no reports of mass killing, for example. But certainly well within the bounds of the average brutal dictatorship.
But I read them, and for some reason, I have faith. I have faith that they're aberrations. I have faith that the system as a whole "really isn't like that." That these are exceptions. That we are not what these stories deeply imply that we are.
Why do I believe that? It's a belief that really has no grounding. There are certainly a great many people who are quite outspoken that my faith is wrong -- that the prison-industrial complex really is "that bad", all the way down, and consequently our justice system is essentially a reproduction of cruelty, degradation, and inhumanity that we -- as citizens in a democratic polity (and one that has taken "tough on crime" to be an article of faith) -- are all complicit in. And ultimately, there is very little argument in favor of my faith. The fact that these stories are printed, to (sometimes) public outrage? Please. Scandal is a fickle thing, as Mark Kelman once wrote. Abuse of certain people may be a scandal -- but the abuse of others is routinely ignored, which is not considered to be a scandal, nor is the fact that even the original scandal will quickly be forgotten even as the abuse continues considered to be a scandal. The fact that occasionally prison abuse burbles to the surface is no proof that it is exceptional.
Admittedly, the fact that there are reports of prison abuse does not mean that the problem is epidemic. I'm just in no position to know either way. That I believe that we are not ultimately an abusive state is ultimately an article of faith. But the more I read, the more I'm terrified that my faith might be wrong.
These stories, read in themselves, do not distinguish themselves from a typical autocratic thugocracy. Maybe not the worst of these regimes -- there are no reports of mass killing, for example. But certainly well within the bounds of the average brutal dictatorship.
But I read them, and for some reason, I have faith. I have faith that they're aberrations. I have faith that the system as a whole "really isn't like that." That these are exceptions. That we are not what these stories deeply imply that we are.
Why do I believe that? It's a belief that really has no grounding. There are certainly a great many people who are quite outspoken that my faith is wrong -- that the prison-industrial complex really is "that bad", all the way down, and consequently our justice system is essentially a reproduction of cruelty, degradation, and inhumanity that we -- as citizens in a democratic polity (and one that has taken "tough on crime" to be an article of faith) -- are all complicit in. And ultimately, there is very little argument in favor of my faith. The fact that these stories are printed, to (sometimes) public outrage? Please. Scandal is a fickle thing, as Mark Kelman once wrote. Abuse of certain people may be a scandal -- but the abuse of others is routinely ignored, which is not considered to be a scandal, nor is the fact that even the original scandal will quickly be forgotten even as the abuse continues considered to be a scandal. The fact that occasionally prison abuse burbles to the surface is no proof that it is exceptional.
Admittedly, the fact that there are reports of prison abuse does not mean that the problem is epidemic. I'm just in no position to know either way. That I believe that we are not ultimately an abusive state is ultimately an article of faith. But the more I read, the more I'm terrified that my faith might be wrong.
Sunday, May 11, 2008
Hate
John Cole blogs the Pens/Flyers game:
In undergrad, I had a bunch of Canadian roommates and I remember watching VHS tapes of great hockey games that were broadcast in Canada with, of course, Canadian announcers. During the breaks between periods, they would have in depth analysis on the finer points of line changes, etc. Tonight in between the 2nd and 3rd period, we are being treated to ‘The advent of the curved hockey stick.”
I think they hate us for more than our freedom.
No Talking
David Bernstein, Michael Totten, and Noah Pollack do not like Obama's statement on the Lebanon Crisis, which focuses on diplomatic engagement to reform Lebanon's electoral structure, fight corruption, decrease economic inequality, and combat impositions on Lebanese sovereignty (particularly by Syria).
Pollack snarks: "Since his prescription for the Middle East is diplomatic engagement, every disease gets re-diagnosed as something curable through talking."
As opposed to the conservative options, which appear to be restricted to "bomb" or "ignore"?
Pollack snarks: "Since his prescription for the Middle East is diplomatic engagement, every disease gets re-diagnosed as something curable through talking."
As opposed to the conservative options, which appear to be restricted to "bomb" or "ignore"?
My Transition to Law Geek-dom is Complete
I got the answer to PrawfsBlawg's weekend law school trivia question. I was almost a brat at said law school -- when I was two, my dad apparently looked at leaving private practice to teach there, but decided against it. I have to say, I'm glad I grew up in Bethesda. But being a prof-ling would have been cool too.
Friday, May 09, 2008
Voting Politically
Some folks have been giving Barack Obama a hard time for his claim that the court's should serve as a refuge and defender of the oppressed in America. This, the argue, is politics substituting itself for law. They gleefully point to John McCain's statement on what he's looking for in a judge -- a position that is supposedly non-ideological and apolitical. Conservative judges go where the law takes them. Liberal judges go where they want to go, law be damned.
Tragically, this position is false -- and it's a conservative judge who is pointing it out. Judge Richard Posner, one of the leading conservative jurists in America today (and possibly one of my professors at the U of Chicago) has a new book out, "How Judges Think" which pops the myth that liberal justices are more likely to vote their policy preferences than conservatives. Actually, conservative judges are statistically far more likely to do so, and not only that, the trend line for conservative judges is towards increased politically-based voting, while liberal judges actually have shown a slight decrease in their (already smaller) propensity to vote in accordance with their policy preferences.
Posner thinks the reasoning for this is that, since the Reagan administration, Republicans have relied significantly more on ideological considerations when appointing judges. Liberals, he suggests, are not as organized in demanding that their nominees be ideologically pure and committed. But Brian Tamanaha (with just a hint of snark?) suggests that maybe its just that "Democratic judicial appointees are more committed to respecting and abiding by the law (to restraining the influence of their political views)."
I don't have any problem with the presumption that courts should be defenders of the marginalized. The rights of majorities are less likely to be threatened in democracies, because they're, well, the majority, and as John Hart Ely pointed out so many years ago, majorities aren't likely to discriminate against themselves. It should be expected that the primary function of the courts will be to defend those whose interests are not likely to be defended in the democratic arena. We have for decades held to the principle that these minorities deserve special consideration by the judiciary if their equal status is society is to be maintained. Insofar as conservatives substitute their policy preferences that often counsel against protecting minorities against majorities, they are engaging in an unabashedly political project. And as for their judicial "philosophies" which "force" them into that position, as River Tam would put it, it's not part the philosophy, it's why you chose the philosophy.
Tragically, this position is false -- and it's a conservative judge who is pointing it out. Judge Richard Posner, one of the leading conservative jurists in America today (and possibly one of my professors at the U of Chicago) has a new book out, "How Judges Think" which pops the myth that liberal justices are more likely to vote their policy preferences than conservatives. Actually, conservative judges are statistically far more likely to do so, and not only that, the trend line for conservative judges is towards increased politically-based voting, while liberal judges actually have shown a slight decrease in their (already smaller) propensity to vote in accordance with their policy preferences.
Posner thinks the reasoning for this is that, since the Reagan administration, Republicans have relied significantly more on ideological considerations when appointing judges. Liberals, he suggests, are not as organized in demanding that their nominees be ideologically pure and committed. But Brian Tamanaha (with just a hint of snark?) suggests that maybe its just that "Democratic judicial appointees are more committed to respecting and abiding by the law (to restraining the influence of their political views)."
I don't have any problem with the presumption that courts should be defenders of the marginalized. The rights of majorities are less likely to be threatened in democracies, because they're, well, the majority, and as John Hart Ely pointed out so many years ago, majorities aren't likely to discriminate against themselves. It should be expected that the primary function of the courts will be to defend those whose interests are not likely to be defended in the democratic arena. We have for decades held to the principle that these minorities deserve special consideration by the judiciary if their equal status is society is to be maintained. Insofar as conservatives substitute their policy preferences that often counsel against protecting minorities against majorities, they are engaging in an unabashedly political project. And as for their judicial "philosophies" which "force" them into that position, as River Tam would put it, it's not part the philosophy, it's why you chose the philosophy.
Thursday, May 08, 2008
Round Four
Amazingly, the Indiana 9th District is looking at the fourth consecutive battle between the same opponents, with Democratic Rep. Baron Hill defending his seat against former Rep. Mike Sodrel. Sodrel challenged Hill in 2002 but lost, but then won the re-match in 2004. Hill got his seat back in 2006 and now the race is on again 2008. It's expected to be negative -- 6 years of running against each other has created some bad blood.
I'm curious: what's the record for most consecutive cycles where the same two major party candidates faced off?
I'm curious: what's the record for most consecutive cycles where the same two major party candidates faced off?
Coin Op and Cona Op
One of my friends at Carleton wrote her senior thesis on the tension between America's counter-insurgency tactics in Afghanistan, and our counter-narcotics tactics there. It was a good argument that I think deserves greater attention (I say that while I'm sure I'm not doing it full justice).
The link between the drug war and the war on terror is no mystery. Terrorists like drug money because its already an underground economy, so the transfer paths are already present in ways designed not to alert the authorities. But fighting the drug war makes allies of the terrorists and the drug producers -- the cartels, yes, but also the peasant population which grow the crops as their primary source of income.
This creates a problem. Basically, America's standard counter-insurgency operations revolve around the "winning hearts and minds" cliche. We try and stabilize regions, build institutions, increase the well-being of the locals, and help them get their goods to the market. If they like us, or even if they just are content with the status quo, the support for the insurgency withers away. Win for Team America.
Our counter-narcotics operations, by contrast, are based on eradication. We go in, and destroy the poppy crops. This means that our first exposure to many Afghan families is decimating their livelihoods, which is a problem on the whole hearts-and-minds metric. More specifically, rather than seeing Americans as a source for enhanced stability or a brighter future, locals instead rationally conclude that the only way to keep their crops safe is to insure that America or the central Afghan government doesn't get near them. That makes support for the insurgents skyrocket. And the insurgents reciprocate by protecting and promoting poppy cultivation. This dynamic has made it nearly impossible for anti-Taliban forces to crack the Taliban's hold on Southern Afghanistan, which, in addition to being their original base of support, is also a prime poppy region. The insistence on fighting the drug war in this way is making it impossible for the army -- and the Afghanistan government -- to do its job: unite the country, and stifle the insurgency.
The link between the drug war and the war on terror is no mystery. Terrorists like drug money because its already an underground economy, so the transfer paths are already present in ways designed not to alert the authorities. But fighting the drug war makes allies of the terrorists and the drug producers -- the cartels, yes, but also the peasant population which grow the crops as their primary source of income.
This creates a problem. Basically, America's standard counter-insurgency operations revolve around the "winning hearts and minds" cliche. We try and stabilize regions, build institutions, increase the well-being of the locals, and help them get their goods to the market. If they like us, or even if they just are content with the status quo, the support for the insurgency withers away. Win for Team America.
Our counter-narcotics operations, by contrast, are based on eradication. We go in, and destroy the poppy crops. This means that our first exposure to many Afghan families is decimating their livelihoods, which is a problem on the whole hearts-and-minds metric. More specifically, rather than seeing Americans as a source for enhanced stability or a brighter future, locals instead rationally conclude that the only way to keep their crops safe is to insure that America or the central Afghan government doesn't get near them. That makes support for the insurgents skyrocket. And the insurgents reciprocate by protecting and promoting poppy cultivation. This dynamic has made it nearly impossible for anti-Taliban forces to crack the Taliban's hold on Southern Afghanistan, which, in addition to being their original base of support, is also a prime poppy region. The insistence on fighting the drug war in this way is making it impossible for the army -- and the Afghanistan government -- to do its job: unite the country, and stifle the insurgency.
Wednesday, May 07, 2008
How Much Time?
A new ad out tries to force McCain into that question pro-lifers never want to answer: if abortion should be a crime, how much time should women who have them serve? (Via)
I've yet to hear a coherent justification (at least, one that isn't nakedly paternalistic -- e.g., women are irrational creatures controlled by their emotions, so they can't be punished) for why abortion can be outlawed (as murder), but the murderers should get off scot-free. I suppose if someone doesn't think abortion is murder, but still can come up with a reason for it to barred, they could dodge out of this, but the few arguments I've heard on those lines are also pretty paternalistic (it's a serious decision, and we can't know if you're taking it seriously enough unless you're willing to prove it somehow to the state).
In any event, it's a question that McCain and his allies shouldn't be allowed to dodge. But I agree with Bean: it's a pretty new tactic (at least in mainstream argumentation), and nobody knows how new tactics will play out.
I've yet to hear a coherent justification (at least, one that isn't nakedly paternalistic -- e.g., women are irrational creatures controlled by their emotions, so they can't be punished) for why abortion can be outlawed (as murder), but the murderers should get off scot-free. I suppose if someone doesn't think abortion is murder, but still can come up with a reason for it to barred, they could dodge out of this, but the few arguments I've heard on those lines are also pretty paternalistic (it's a serious decision, and we can't know if you're taking it seriously enough unless you're willing to prove it somehow to the state).
In any event, it's a question that McCain and his allies shouldn't be allowed to dodge. But I agree with Bean: it's a pretty new tactic (at least in mainstream argumentation), and nobody knows how new tactics will play out.
Tuesday, May 06, 2008
A Jewish BLT
Not Bacon-Lettuce-Tomato (that'd be impossible to make Jewish -- unless you're Reform), but Black Liberation Theology!
This NYT article on the subject (H/T: PG) brought to the fore a thought I've been having for some time. Black Liberation Theology strikes me as a significantly more "Jewish", if you will, theology than it does Christian.
Now, I'll admit only a moderate knowledge of the parameters of Christian theology. But plenty of Christians I've talked to have confessed genuine trouble with identifying BLT as a "Christian" entity. They object to its particularism, that it "takes sides" (as opposed to Christ's message of universal salvation and infinite love). They think it's too political, and this-worldly, as opposed to concentrating on faith and the world-to-come.
Both of these concerns fit far more comfortable within Judaism, which is also particularistic, and also is more concerned with the state of the human world as opposed to abstract notions of faith and the afterlife. Admittedly, Orthodox Judaism often only concerns itself with "this world" on a ritualistic level, and less so with regards to universal concerns of justice. But Judaism as a whole (including Orthodox Judaism) has developed a strong social identity around the notion of Tikkun Olam (repairing the world). Even if, as my Judaic Studies professor at Carleton argues, Tikkun Olam historically has been only a minor element of Jewish religious practice, it's certainly risen to a dominant position today.
Moreover, the Liberation Theology mantra, "God is on the side of the oppressed", also seems to my ears to ring more Jewish than Christian. In part, this is simply historical: Jews have spent more time oppressed than (White) Christians, so obviously we're going to develop theological accounts that provide sustenance in such situations. But also, as the article notes, the God of BLT tends to be that of the Hebrew Bible, the Old Testament: God standing in judgment over wrongdoers, and prophets preaching Jeremiads against evil societies. I don't believe this theme is absent in the New Testament, but my understanding is that it takes on reduced significance.
In part, this affinity (brother-sufferers) has been used to explain the disproportionate presence of Jews (religious and not) in the Civil Rights movement. But BLT came to the fore with the Black Power movement -- an event which, at the very least, stressed the Black/Jewish bond. Perhaps one way to repair the rift would be for Black Liberation Theorists and their Jewish counterparts to explore connections and commonalities regarding how they view the world. Orthodox Christianity has not exactly been the most welcoming home for liberation theology. Maybe Judaism can be (and learn something about ourselves in the process).
This NYT article on the subject (H/T: PG) brought to the fore a thought I've been having for some time. Black Liberation Theology strikes me as a significantly more "Jewish", if you will, theology than it does Christian.
Now, I'll admit only a moderate knowledge of the parameters of Christian theology. But plenty of Christians I've talked to have confessed genuine trouble with identifying BLT as a "Christian" entity. They object to its particularism, that it "takes sides" (as opposed to Christ's message of universal salvation and infinite love). They think it's too political, and this-worldly, as opposed to concentrating on faith and the world-to-come.
Both of these concerns fit far more comfortable within Judaism, which is also particularistic, and also is more concerned with the state of the human world as opposed to abstract notions of faith and the afterlife. Admittedly, Orthodox Judaism often only concerns itself with "this world" on a ritualistic level, and less so with regards to universal concerns of justice. But Judaism as a whole (including Orthodox Judaism) has developed a strong social identity around the notion of Tikkun Olam (repairing the world). Even if, as my Judaic Studies professor at Carleton argues, Tikkun Olam historically has been only a minor element of Jewish religious practice, it's certainly risen to a dominant position today.
Moreover, the Liberation Theology mantra, "God is on the side of the oppressed", also seems to my ears to ring more Jewish than Christian. In part, this is simply historical: Jews have spent more time oppressed than (White) Christians, so obviously we're going to develop theological accounts that provide sustenance in such situations. But also, as the article notes, the God of BLT tends to be that of the Hebrew Bible, the Old Testament: God standing in judgment over wrongdoers, and prophets preaching Jeremiads against evil societies. I don't believe this theme is absent in the New Testament, but my understanding is that it takes on reduced significance.
In part, this affinity (brother-sufferers) has been used to explain the disproportionate presence of Jews (religious and not) in the Civil Rights movement. But BLT came to the fore with the Black Power movement -- an event which, at the very least, stressed the Black/Jewish bond. Perhaps one way to repair the rift would be for Black Liberation Theorists and their Jewish counterparts to explore connections and commonalities regarding how they view the world. Orthodox Christianity has not exactly been the most welcoming home for liberation theology. Maybe Judaism can be (and learn something about ourselves in the process).
Next Stop: Michelle
Michelle Obama enjoyed a long grace period from the national media. A smart, engaged women who has formidable accomplishments of her own wholly aside from those of her husband -- what's not to like? Well, being an outspoken Black women is always a position fraught with peril, and Michelle does not have her husband's naturally conciliatory personality. We saw her previously sterling image take a hit with the infamous comments about how her husband's candidacy represented the first time she'd been proud of America. And with a pair of articles out trying to paint her with a tar brush, I think we safely say that conservatives think Michelle Obama may be a point of vulnerability for the Obama campaign.
That doesn't mean that the attacks are just, though. The first is a projection piece by Yulal Levin at the National Review complaining that Michelle Obama articulates a sense of "bitterness" (the ultimate insult!). The warrant is that Michelle's speeches often hit on themes regarding how people no longer feel like they're in control of their destiny, that they can't make change in the world (obviously, the fulcrum to Obama's message that "yes, we can" make change). It's a pretty silly argument, that boils down to "there's no anxiety in America, because many of the people Michelle Obama is talking to are middle class or wealthy, and if there is, it's because we rock that much the harder," which I feel misreads the current sentiment of the American people by reducing the only possible source of anxiousness to money concerns. In any event, as in all arguments that flow from a perception that something is wrong with America, Michelle is being critiqued for daring to mention that all Americans might not exist in a state of ecstatic joy, all the time (how can we not? This is the greatest nation in the history of the world!).
The second is an article by equal-opportunity religion-hater Christopher Hitchens, who tries to blame Michelle for Barack's membership in Rev. Wright's church -- a membership which can only be explained by sympathy to radical Black separatist ideology. Since Barack clearly doesn't believe in separatism (nor, I'd wager, does Rev. Wright, but no matter), it must be Michelle. He spends literally one half of a paragraph providing evidence for this -- and (I'm not making this is up), that one piece of evidence consists of Michelle Obama's 1985 senior thesis (my senior thesis is online for all to see -- am I doomed?). That's it, and it's in the last paragraph. Contrast that to the two opening paragraphs, dedicated to wholly gratuitous references to Louis Farrakhan. This the best you've got? [Note: I strongly recall my argument here being made in a post at The Plank, but I can't find it. Apologies for the appropriation -- particularly if the post wasn't at The Plank and I'm effectively stealing from somewhere else. There it is! Publius from Obsidian Wings. Sorry 'bout that.].
While I'm on that last point, the discussion by PG and myself on the prospect of a Bobby Jindal VP position reminds of something. In addition to the latest go around of "is Obama a closet Muslim or a radical Christian Black separatist? Or both!?", there's been a persistent rumor fest that Obama only converted to Christianity and joined his church as a furtherance of his political ambition. Would Jindal, who converted from Hinduism to Christianity, face the same scrutiny of political motive? I mean, good luck getting elected as a Hindu Republican in Louisiana. Still, my guess is no, both because the pre-existing narrative of a 5th column (radical Hindus are trying to subvert America and Jesus!) isn't there (oddly enough, since Hinduism, as a non-monotheistic [or at least not traditionally monotheistic] religion would seem to be more theologically dangerous to Christianity), and because the arbiters of who is sufficiently close to Jesus to be allowed to participate in American democracy (i.e., the Christian right) seem to have given him the a-okay. Still, fascinating contrast.
That doesn't mean that the attacks are just, though. The first is a projection piece by Yulal Levin at the National Review complaining that Michelle Obama articulates a sense of "bitterness" (the ultimate insult!). The warrant is that Michelle's speeches often hit on themes regarding how people no longer feel like they're in control of their destiny, that they can't make change in the world (obviously, the fulcrum to Obama's message that "yes, we can" make change). It's a pretty silly argument, that boils down to "there's no anxiety in America, because many of the people Michelle Obama is talking to are middle class or wealthy, and if there is, it's because we rock that much the harder," which I feel misreads the current sentiment of the American people by reducing the only possible source of anxiousness to money concerns. In any event, as in all arguments that flow from a perception that something is wrong with America, Michelle is being critiqued for daring to mention that all Americans might not exist in a state of ecstatic joy, all the time (how can we not? This is the greatest nation in the history of the world!).
The second is an article by equal-opportunity religion-hater Christopher Hitchens, who tries to blame Michelle for Barack's membership in Rev. Wright's church -- a membership which can only be explained by sympathy to radical Black separatist ideology. Since Barack clearly doesn't believe in separatism (nor, I'd wager, does Rev. Wright, but no matter), it must be Michelle. He spends literally one half of a paragraph providing evidence for this -- and (I'm not making this is up), that one piece of evidence consists of Michelle Obama's 1985 senior thesis (my senior thesis is online for all to see -- am I doomed?). That's it, and it's in the last paragraph. Contrast that to the two opening paragraphs, dedicated to wholly gratuitous references to Louis Farrakhan. This the best you've got? [
While I'm on that last point, the discussion by PG and myself on the prospect of a Bobby Jindal VP position reminds of something. In addition to the latest go around of "is Obama a closet Muslim or a radical Christian Black separatist? Or both!?", there's been a persistent rumor fest that Obama only converted to Christianity and joined his church as a furtherance of his political ambition. Would Jindal, who converted from Hinduism to Christianity, face the same scrutiny of political motive? I mean, good luck getting elected as a Hindu Republican in Louisiana. Still, my guess is no, both because the pre-existing narrative of a 5th column (radical Hindus are trying to subvert America and Jesus!) isn't there (oddly enough, since Hinduism, as a non-monotheistic [or at least not traditionally monotheistic] religion would seem to be more theologically dangerous to Christianity), and because the arbiters of who is sufficiently close to Jesus to be allowed to participate in American democracy (i.e., the Christian right) seem to have given him the a-okay. Still, fascinating contrast.
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