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"Controversial" nominee for a seat on the Federal Elections Commission Hans von Spakovsky has withdrawn his name from consideration for the position after a 6-month stand-off between President Bush and Congressional Democrats.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.

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.

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":
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
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.

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.

Barbara M Rocks the House

My senior senator, on whether or not she'd take the Vice Presidency:
“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:
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.


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.

Sunday, May 11, 2008


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"?

Click Click Boom

I think I just received a spam message advertising a rocket launcher.

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.