Apologies and Political Footballs

Re: My Laws of Intended Consequences post, where I talked about a Texas case where a man was sentenced to life in prison for stepping on his girlfriend's stomach to induce an abortion, it appears the case isn't as cut and dry as it seems. Blogs have begun to point out that the boyfriend had a history of abuse in the relationship.

Of course, this makes the Prosecutors claim that he would have gone after the woman too, if he could, all the more despicable. However, the revelation that the abortion might not have been consensual but rather the end result of a pattern of abuse substantially and materially changes the facts surrounding the case, not to mention my analysis. Pandagon puts it best:

This entire case is disturbing on a number of levels. First of all, it's disturbing that it was so widely reported as a simple issue of two teenagers getting caught doing a homemade abortion, when it's very likely that instead it was closer to the all-too-typical scenario of domestic violence escalating due to a pregnancy. But the prosecution carries a lot of the blame in that--instead of treating this incident for what it most likely was, which is a case of domestic violence leading to a miscarriage and prosecuting the young man for hurting his girlfriend, they grandstanded on the whole abortion bullshit instead of standing up for the young woman who was victimized in all this.

If anything, this just shows how overheated the abortion debate has become. Any issue that can possibly be shoehorned into the pro-life/choice categories immediately becomes a battleground--other considerations be damned. Hence, laws which protect pregnant women from assault get hung up over whether a fetus is a "person", and what should be a common-sense measure to protect women becomes a partisan war. In this case, the prosecutor was so zealous about making this about abortion, and pro-choice bloggers were so adamant about critiquing the Texas legal schematics, that we all missed the very important issue of domestic abuse. This should be a wake up call to everyone.

This was a political football from the start. Just a different type of football. In any event, I posted too soon, and I regret that. My apologies.

Bitch, Ph.D. with the heads up (and a retraction of her own).

Enough is Enough

John Cole has just about had it with the rabid right:

If this really were about the sanctity of marriage, it would be one thing. But, it is pretty clear to me at least that it isn't, and all I see is the same old reliance on selected biblical passages, the mean-spiritedness, the anger and venom and unfounded hostility, the dire predictions of apocalypse and the absurd invocation of states right's and the future of our children. It is the same old hate wrapped up and packaged for another demographic. And, as far as I can tell, it is coming from the same crowd of people who 40 years ago would have been fighting to keep my black students and my black next-door neighbor drinking in a different fountain. Quite frankly, I have had enough of it.

This is the new right. It isn't small government. It is friend of the KKK Tony Perkins (chief of the Family Research Council). Unified by fear, hatred, and a corruption of Christianity, folks like Perkins and his allies are desperate to create a theocratic vision of American--differing from Iran only in degree, not kind. And their "secular" allies like Karl Rove are only too happy to indulge them--so long as it continues to give the GOP political muscle. This may win elections, at the moment, anyway, but it is the farthest thing from American values and the American way. And every person of conscience should speak out against it.

Perhaps the most disturbing manifestation of this puritanical urge for purification was this chilling ultimatum to homosexuals by Texas Governor Rick Perry (R) (link: John Cole). When asked what he would tell gay and lesbian war veterans who returned to the state to find the law he just signed prohibiting same sex marriage, he responded:

Texans have made a decision about marriage and if there is some other state that has a more lenient view than Texas then maybe that's a better place for them to live

Or, to rephrase in Andrew Sullivan's words: What do you call a gay man who risks his life to serve his country? A faggot. (link: Cole again).

A few months back, I wrote how in the post-election period, my focus very quickly shifted away from terrorism and toward the status of gay and lesbian Americans as the most distressing casualty of election 2004:

But after the election, undoubtedly aided by the 11 states passing anti-gay marriage referendums, I found that the issue that most arose my ire was gay rights. Part of it was due to Andrew Sullivan's coverage of the reaction in the gay community. It wasn't resignation, or disappointment, or even anger. It was fear. They were genuinely afraid of the message being sent by the rest of the country. It was loud, resounding, and universal: We don't want you. You're not welcome here. You aren't part of the American community. That message seriously disturbs me. When America starts telling its vulnerable minorities that they aren't welcome, starts passing laws that seek to relegate disliked groups to legal, moral, and political inferiority, we have a problem. And I do believe that this problem ranks right with the war on terror as one of the great moral challenges of our times.

If the baseline for continued Democratic legitimacy in the 21st century is support for the war on terror, then the baseline for Republican moral legitimacy is support for gay rights. Unfortunately, I see far fewer Republicans rising to this challenge than Democrat's rising to theirs.

Back then, that statement could have been characterized as hyperbole. But now, Governor Perry has explicitly told his gay constituents to quite literally get the hell out of Dodge. This abdication of moral duty continues on, unchecked, unhindered, and encouraged by a core group of radicals who see any affirmation of the dignity of gay citizens as an affirmation of sin. It seems that every vote which can be squeezed out of kicking homosexual Americans is a vote Republican fundamentalists are only too happy to seize. In such an environment, freedom is dead.

Magical Moments

Fafblog makes the interstate commerce clause come to life! Because if you use your imagination, everything is commerce! Yaaaaayyyy!!!

Thank you Volokh. Oh, and by the way, the happy hour sponsored by your co-conspirators was great!

Victims No Longer

Dave Kopel has put up an article on the rights of genocide victims. He believes that there should be a principle of international law that states victims of genocide have a right to resist. More specifically, he thinks that we need to make sure potential victims are armed as a deterrent to genocidal policies.

Kopel's empirical warrants are damning--I very much believe him when he says that genocide has almost exclusively happened where the targeted population has been disarmed. However, I'm not sure what the end result of Kopel's preferred worldview is. As far as I can tell, he envisions it as some sort of micro-detente--ethnic hatreds suppressed by fear of the others weapons. I, on the other hand, am much less optimistic--I see the likely outcome in many cases as full-fledged civil war. For example, Kopel cites the ICJ case Bosnia v. Yugoslavia, where Judge Lauterpacht's opinion argued that a facially neutral arms embargo violated Bosnia's rights under the Genocide Convention because it prevented potential victims from defending himself. But let's look at what happened there--even if a full-scale genocide was averted, there was still a brutal civil war with massive civilian casualties. I'm not trying to say civil war is worse than genocide or vice versa--I'm merely saying that providing armaments can't be a substitute for institutional conflict resolution.

The other problem with providing arms is that someone needs to do it--and the actors most likely to supply weapons are not interested in protecting victims but rather using their favored party as a pawn in the international political game. In the Cold War, for example, both the US and the USSR funded their preferred factions all around the world, preventing conflicts from naturally burning themselves out and removing any incentive for political resolutions. As long as parties can be assured of a limitless supply of weaponry and material support, they have no incentive to search for non-violent solutions--the only permanent way to prevent innocent deaths.

Insofar as Kopel critiques the inadequacy of non-violent and international responses to the problem of genocide, I'm onboard. And if it turns out our only choice is between the mass slaughtering of unarmed populaces and fueling civil conflicts, I will regretfully join the latter. But I think that a truly comprehensive anti-genocide scheme still requires some measure of political and legal response by the international community. A victims-first policy is not going to be enough.

Democrats Invented the Internet...

...Republicans just oppose it.

Courtesy The Daily Kos, we hear that Pete Sessions (R-TX) has drafted a bill prohibiting municipalities from creating local wi-fi zones for their citizenry. Sessions, a former employee of Bell Labs, feels that such zones are unfair competition for private wi-fi companies. This isn't really true, the city would have to buy the coverage from one of those companies anyway, but they would probaby be able to negotiate a lower price.

This is one of those funny situations where a congressman's true allegiances are revealed. Most times, a congressman can justify a vote based on both some overarching principle--say, federalism--to dodge cries from opponents that he is providing special favors for a certain group. For example, Republicans often try and devolve environmental protection responsibilities to the state, which just "happens" to work to the benefit of big business. What a funny coincidence!

However, this bill appears to have absolutely no theory justification at all. It is explicitly anti-federalist--it creates a national policy and prohibits any locality from violating it. It is, on net, probably anti-business--cities believe that wi-fi hotspots can help spur business growth, a position which seems quite reasonable to me. It is economically inefficient--government can utilize economies of scale and thus save loads of money. The only justification here is a slavish devotion to big business--the folks who load Sessions' campaign coffers with wads of cash.

The net result is that cities are prohibited from using their own money to make their own citizens' lives better. I'm reminded of an action taken by the state legislature in Virginia, which prohibited counties in Northern Virginia from raising their own taxes to provide additional funding to local schools and roads--funding the state refused to allocate. That magic mix of paternalism and idiocy--it is present here too. And it unfortunately pervades the modern day Republican party.

On the other hand, it may crimp Justice Kennedy's use of that evil tool, so perhaps it isn't all bad after all!

Radical Moderation

Say you're a centrist. If you're like me, one of your most important values is consensus. Another is on procedural checks and playing "by the rules," so to speak. Another is on basic fairness to and deliberation with your opponents--a functional democracy is only possible when all sides are willing to hear each other out and agree to incorporate the best parts of both sides. Under this paradigm, a centrist is a peacemaker--someone who brings both sides to the table while scrupulously avoiding any charges of partisanship him or herself.

My question to everybody today is, under what circumstances is it justified for a moderate to go radical? For example, I consider myself to be pretty radically opposed to the machinations of DeLay and company in Texas, because I think they are a threat to impartial democratic norms. By "radical" I mean I'm not just vaguely suggesting I oppose it--I'm signing petitions, sending letters, and essentially taking the "extreme" position that he should be thrown out of office. On a few other key issues (such as genocide) I also refuse to take the moderate-as-consensus course.

The paradox of moderation is that unless it fights for its values (procedural checks, basic fairness, etc), they will be utterly subsumed in a spate of partisan warfare. Yet the very act of fighting jeopardizes their moderate status. The GOP's treatment of folks like Voinovich during the Bolton ordeal demonstrates this: their actions--even when as restrained as Voinovich's were--to reach across the aisle and not try and seize the maximalist partisan position were seen as a betrayal to the party, not proof of moderation.

My answer is that radical moderation is justified when procedural fairness is on the line. Centrism is only possible when political institutions force extremists to compromise. The tools which create that situation are things like the filibuster, competitive elections, and other entities which give the minority power. When dominant groups try and abolish these checks, moderates have an obligation to use their non-partisan credentials and oppose the effort tooth and nail. I'd also suggest that when matters of basic human dignity are at stake, moderates cannot go for consensus. I actually think this can be subsumed under the procedural fairness standard. Where one group, whether it is by genocide in Africa or by discrimination in America, is being relegated to second-class citizenship (or worse) and is thus effectively removed from the structures of political deliberation, democracy cannot reasonably be said to exist. Moderates thus cannot compromise on laws and policies that offend the equal dignity and respect of citizens of the US and the world.

Harris Versus Nelson, 2006

Via Balloon Juice, I learn that Official Princess of Darkness Katherine Harris is going to challenge Democratic Senator Bill Nelson in 2006. Unlike Kos, who is split between being "happy" and "want[ing] to throw up," I am firmly in the latter camp. While I am relatively confident Nelson can win this race (based mostly on the abject fury of African American voters), it is still disgusting that this woman is considered politically viable in a swing state.

May she go down in slow, burning flames.

A New Meaning to "Junkie"

This report on what happens when you let English Literature graduate students loose on a blog was already funny on its own. But it didn't rise to post worthy status until it got this synopsis by Daniel Drezner:

"Mendelsohn" concludes that maybe the Internet is not the nirvana of Habermasian discourse, but the academic version of crack.

So that means, I've done three "lines" so far today, right?

"A Mere Personality Disturbance"

I harp on the US for its treatment of gay citizens relatively frequently. But it could be much, much, more ridiculous.

Link via Outside the Beltway (and hey, at least the guy won!).

Laws of Intended Consequence

Kevin Drum reports a sick case resulting from the intersection of two draconian laws passed in Texas. The first mandates that abortions after 16 weeks only be performed in hospitals or ambulatory surgery centers. Since very few Texas hospitals (and no surgery centers) actually perform abortions, this has the effect of severely limiting a woman's right to abortion. The second law is a Fetal Murder that makes anybody (except the mother or a legal abortion clinic) that kills a fetus liable for murder charges.

So what happened? 17 year old and 4 months pregnant Erica Basoria tried to induce a miscarriage when she couldn't find any place to have an abortion. When that failed, she convinced her boyfriend, Gerard Flores, to jump on her stomach to induce a miscarriage. A week later, she had a miscarriage.

And one year later, a Texas jury has sentenced Mr. Flores to life in prison.

I wish I could say that this was an unintended consequence of a badly written law. But I don't think it is. The laws against abortion are not written to protect or inform women. They are meant to provide the maximum amount of obstacles and potential for punishment allowable after Roe v. Wade. Cases like this don't cause the Christian Right to pause in reflection. They give them reason for celebration. And the more scared teenagers they can throw into prison, the happier they are. As the New York Times put it, "[The Prosecutor] Bauereiss told jurors he was focused on Flores. He couldn't help that Basoria was outside the reach of the law." In other words, if he could have, he would have gone after her too.

I'm not saying this was the ideal decision by the two teenagers. In an ideal world, a pregnant teenager would be able to have a baby without it being an economic death sentence, secure in the knowledge that society would band together and make sure that she and her child would have a real future. That, to me, is the true definition of pro-life. As was so eloquently put by Alas, a Blog:

I really wish they had been willing or able to go to a doctor and have an abortion done. But abortion - whether it's done by a competent medical professional, or by two stupid and scared teens - is not the same thing as murder, and life in prison for this is disgusting.

Even those less sympathetic than I am still agree.

Meanwhile, U235 raises the interesting question about the family of the girl. In the NYT story, it says that while Ms. Basoria stood by her boyfriend the entire time, her family testified against him and was thrilled to see him in jail. It strikes me that this very well could be precisely the type of family that is most harmed when these sorts of laws are passed--families where the parents actively oppose their daughter's decisions and work at cross-purposes with her in defiance of her mental health.

aTypical Joe thinks this proves we need to go back the legislature. I've sounded that tune before, but cases like this make me even more worried about it. I am not confident we can win battles like this in the Texas legislature. At the same time, by ratifying that they are the proper forum for this debate (as opposed to the courts), we make it less likely that the judicial system will intervene to rectify blatant abuses like this. In that respect, abortion rights could possibly take a giant step backwards, and when the stakes are teenagers facing life sentences in jail, I'm not sure I'm willing to take that gamble.

Where Did All the Federalists Go?

The Medical Marijuana case, Ashcroft v. Raich, has come down in favor of the government. The Court ruled that the federal government could ban non-commercial use of medical marijuana as part of its general statutory scheme against drug use. For the executive summary, check out Obsidian Wings. For the deep and in depth version, Larry Solum is your man. Or, if you want to read the actual opinions yourself, here are the words of Justice Stevens (majority), Scalia (concurring), O'Connor (primary dissent), and Thomas (dissent). The case was 6-3, with Stevens, Scalia, Breyer, Ginsburg, Souter and Kennedy prevailing over Rehnquist, Thomas, and O'Connor.

I gave my hopelessly outdated analysis of the legal issues back here. The Volokh Conspiracy has tons of excellent posts up, all of which rise to their usual insightful brilliance. The most thought provoking, however, was this one by Orin Kerr on which cases are likely candidates for the court to exercise strong federalist impulses.

More broadly, it seems to me that the theme of the Rehnquist Court's federalism jurisprudence is Symbolic Federalism. If there is a federalism issue that doesn't have a lot of practical importance, there's a decent chance five votes exist for the pro-federalism side. Lopez is a good example. Lopez resulted in very little change in substantive law. Yes, the decision struck down a federal statute, but it indicated that Congress could quickly reenact the statute with a very slight change. Congress did exactly that: It re-passed the statute with the added interstate commerce element shortly after the Lopez decision. Lower courts have upheld the amended statute, and the Supreme Court has shown no interest in reviewing their rulings. Because nearly every gun has traveled in or affected interstate commerce, the federal law of possessing guns in school zones is essentially the same today as it was pre-Lopez.

As soon as the issue takes on practical importance, however, the votes generally aren't there. If anything, the surprise today was that there were three votes for the pro-federalism side.

In other words, conservative judges are enamored with federalism in theory, but when in practice it will lead to significant policy changes, they chicken out (isn't that activist judging?). This case, as many other people have pointed out, presented an interesting test case, a conservative theory (federalism) would mandate a liberal policy outcome (legalizing medical marijuana) To their credit, few of the judges involved took the bait. The liberal justices in the majority have never been huge fans of aggressive federalism, and refused to apply it even when it may have been in congruence with their policy agenda. Same for the dissenters--I doubt that Rehnquist, O'Connor, or Thomas wishes to see marijuana decriminalized, but they went where their principles led them.

The cross-over, then, was Justice Scalia, and this is a very interesting development. David Bernstein has emerged from his hiatus to speak on the case, and he specifically argues that:

Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude (which I share) for freedom of expression) "hit list."

I'm not sure if that's exactly right (how does it explain his opinion in Hamdi v. Rumsfeld, for example?), but it is certainly thought provoking. I've always considered Scalia to be the epitome of principled conservatism, thanks to cases like Hamdi and Texas v. Johnson (anti-flag burning laws are unconstitutional). However, in retrospect, many (not all, but many) of the "liberal" Scalia opinions have been on free speech or search and seizure cases. On many others, Scalia has seemed to ignore his own expressed standards and upheld politically conservative positions (Oregon v. Smith comes to mind). If this theme is picked up by more centrist and liberal commentators (and it just might), then we might be able to make some headway in the battle against the idiotic labeling of only liberals as "judicial activists." Taking the really cynical view of it, Ethan Leib of Prawfsblawg thinks that the liberal justices on the court acquiesced to this result simply because "[e]very judge has to vote against his/her policy preferences sometimes to show that his/her jurisprudential principles are driven by honest and policy-preference-proof foundations." Ugh, but I fear he might be right.

Guest-posting at SCOTUS Blog (which also is doing great analysis of this case), Ann Althouse defends Scalia from this line of criticism (link: De Novo, who concurs). She writes:

I'm sure many people will accuse Scalia of faltering in his support for federalism. But I have always thought the best way to understand Lopez is not by the commercial/noncommercial distinction, but by whether the regulated intrastate activity is part of a connected web of interstate activity. We can picture individual states making diverse, decentralized decisions about how to deal with violence in schools -- the interstate activity in Lopez -- without the policy in one state interfering with the approach chosen by another. One state's experiment with gun-exchange programs and parental responsibility laws doesn't undercut a tough imprisonment policy used in the next state. You don't need a uniform national law to deal with the problem. In fact, the different state policies work as experiments, generating information about which policy works best. But if it is to be possible to ban marijuana, a uniform national law is important. One state's lenient approach would undercut the next state's hardcore approach. That's the Lopez-based argument for congressional power in Raich.

That's compelling in the abstract, but I'm not convinced that medical marijuana alone is part of the "connected web of interstate activity." As I wrote in my previous analysis:

What seems to be key here is that, since the marijuana is NOT part of the marketplace and is entirely contained within one state, any impact on commerce is incidental and is de minimis. This is especially true since the amount of users of medical marijuana amounts to a tiny fraction of the overall market demand for marijuana. As such, one of the governments primary arguments, that allowing for medical marijuana would lower market prices and thus undermine the governments regulatory scheme--which consists of creating a black market that keeps marijuana prices high--seems specious at best.

In the specific situation we are presented with here, I find it unpersuasive that California's policy will "undercut" anything, so long as there is still aggressive enforcement of folks who try and obtain the drug via illegal prescriptions (which is the same situation we are faced with virtually any prescription drug).

So it is back to congress we go (link: Balloon Juice). Who knows--given the nearly universal outcry against this decision, maybe we will get somewhere.

UPDATE: As always, your Moderate Voice roundup.

Clinton Redux

Andrew Sullivan thinks Hillary Clinton has positioned herself perfectly. I have to say, by almost any indicator Clinton has done a spectacular job as New York Senator. And she has managed to reach out to up-state voters who were not her natural constituency. Her moderate positions on defense, foreign policy, abortion and Iraq all severely blunt the typical right wing attacks against her as a quasi-lesbian femninazi. I have to say, I've gone from being pessimistic to persuadable when it comes to her candidacy.

Basically, what I think it will come down to is one of two things. If voters are engaged on the issues in 2008, then I think she will do very well, as her issues are inline with much of center America. Of course, I am endlessly cynical about the odds of voters being engaged. Voters have already constructed a narrative of Hillary Clinton as an anti-family socialist leftist, and it will be tough to undo that.

So the other possibility has to do with how voters react to the campaign. Clinton is so despised by the rightwing that whoever their candidate is won't be able to stop the virulent attack ads even if he wanted to. Sullivan notes that

[Hillary can] still evoke almost pathological fury on the right. But that fury was most effective when it seemed to come from an excluded group, the beleaguered 'angry white men' of the last decade. Now that Republicans control every branch of government, too brutal an assault on Hillary might backfire.

If voters associate the assault on Hillary with the megalomaniac tendencies of the contemporary GOP, then the leftwing stereotype the right has worked so hard to construct will collapse and she may even become a sympathetic character. If that happens, I think she could put up quite a challenge.

A New Opportunity

I've never really had it in me to read the Huffington Post. Too many names, too many of which are folks you couldn't pay me to hear from. But when The VC links to a post over there, I'm willing to give it a shot.

The post in question is by U. Chicago law professor Geoffrey Stone (so already it's a bit beyond normal HP fare), and it is on the current status of liberalism. Stone makes a common claim: Liberalism has no overarching vision by which it can attract voters any more. We have policies, sure, many of which are quite popular. But there is no theory behind it--voters don't know the parameters of what it means to be liberal.

Todd Zywicki picks up on this theme and argue that liberalism is in even greater trouble because the ideas that it has are mutually exclusive.

Looking at liberalism today, I honestly don't see how liberalism can replenish itself. Assuming that liberalism can articulate an overarching vision, I am at a loss to see what this vision possibly could look like, especially in light of the failure of liberalism in the 1970s. Most fundamentally, I don't see how liberalism it can simultaneously stand for its traditional focus on individualism as well as the rise of modern "identity politics," which is focused on group rights. Stone says, for instance, "In truth, it is much easier to see the injustice in racial segregation than it is to justify affirmative action." Of course it is--the two positions are inherently contradictory. Either one's rights flow from their status as individuals, or as members of particular racial or other groups--it can't be both. This isn't a question that can be compromised or finessed. And even this dichotomy leaves aside other movements within liberalism such things as radical environmentalism, with its deep pessimism, elitism, casual attitude toward coercion, and dismissal of economic prosperity.

In contrast to Zywicki, I think that these values are indeed in congruence, and that liberalism can bring them all together in one word: opportunity. Liberals should frame their politics on equality of opportunity for all citizens, and phrase their proposals as ways to eliminate illegitimate barriers to success that exist in society.

Let's start at the beginning. Classical liberalism (John Stuart Mill) begins from the premise that individuals all have a right to pursue their own diverse life paths. The coercive structures of the feudal period, for example, are illegitimate because they serve to suppress the desires of individuals. Hence, a proper political body would seek to enable as much choice as it can. And, according to Mill and modern day libertarians, the way it does that is by leaving as much to the private sector (the "marketplace") as possible, letting people bargain and negotiate over what's most important to them.

The nice thing about this theory is that it justifies inequality. If everybody is given a "fair shot" by society, then it is perfectly reasonable that the best get to become winners and certain underperformers become losers. This belief has morphed into the mantra of personal responsibility; since the coercive power of government is officially neutral to one's class or status, one's life position is entirely of one's own making and is the success or failure of nobody but oneself.

On the most abstract level, I don't think even contemporary liberals disagree with this. What they do disagree with, however, is the policy premise that government non-intervention maximizes the equal opportunity of individuals. Man is a social animal, and society imposes certain meanings and constructions upon people without their consent, without coercion, and without any single individual doing anything at all to precipitate it. Specifically, they claim (correctly, in my opinion), that social constructions which prevent certain groups of persons from reaching their full potential need to be addressed by the government if we are to be serious about equality of opportunity.

The most obvious place where this comes into play is class. Simply put, someone who is born rich and someone who is born poor are not playing on a level field. Differences in schools, contacts, resources, programs--all of these have real effects on real children in the real world that are entirely unrelated to the merits of the actors. What is important to note here is that this inequality grows out of non-intervention but acts to the detriment of merit--a bright but economically poor student with a crumbling building and no extra-curriculars is likely to underperform a richer student who is not as "smart" in an objective sense but has access to more academic resources. Furthermore, even if the disadvantaged student does perform at an equal or higher level, he or she still has other obstacles to overcome. Maybe he doesn't have enough money to go to college (and loans aren't enough). Maybe he has younger siblings to take care of, and needs to stay at home. And even if he manages to get to the elite school that he "deserves," he'll still have to do work more jobs than other students, will have to make friends with Polo wearing preps when he only has hand-me-downs, will have to find internships without the contacts of his wealthier peers, the list goes on.

On race, there is a similar nexus of problems. Certainly, opportunities that one can simply buy are open to minorities (at least those of means). But that hardly means the playing field is equal. They still need role models--absent, as long as minorities are disproportionately underrepresented in business and professional jobs. They need contacts to find jobs--same problem. They need to be able to interact with their peers on an equal basis--often difficult, where stereotyping and discrimination still exists (and it does). None of these can be remedied where government simply sits out and allows private contracts and private interactions to occur entirely unmolested. And more importantly, to end at least some inequalities (the dearth of black role models, for example), government needs to pay attention to race. We can argue until we're blue in the face about whether that is the ideal role for government or not, but it doesn't change the fact that it is a social reality that needs to be dealt with.

So when liberals are defending, say, universal health care, they might note that one can only work to the best of their ability when healthy. A competition between a sick man and a healthy man is not equal--and especially not so when one party can afford to stay well and one has no resources to prevent himself from getting sick. As Benjamin Healy notes:

The situation is...most dire...for the unemployed, who can find themselves in a vicious cycle...a 'death spiral'--in which the loss of a job...deprives a worker of [health] insurance, leading his health to decline, thereby weakening his prospects of finding another job, and leaving him in danger of becoming chronically unemployable because he is ill and chronically ill because he is unemployable. As the effects radiate to his dependents, and as related catalysts or byproducts like depression, obesity, and drug abuse take their toll, entire families are drawn into the spiral.

...rising premiums, the changing nature of work, and the successful repackaging of personal misfortune as individual pathology have over the past few decades shunted the chronically ill and unemployable into...a separate 'caste.' As workers descend into the 'death spiral,' they lose the outward markers of middle-class respectability, and in the process, their infirmities take on a whiff of moral opprobrium as well.

Hence, liberals would say, if we want to legitimately say that X deserves his wealthy status and Y deserves his poor status, then a baseline access to healthcare (both preventative and emergency room) must be provided. If this is not so, then the parties are not being provided an equal opportunity.

The evolution might be described as such: first, disadvantaged classes weren't allowed to play the game (old-school feudalism and classism), then they were allowed to play with a biased referee (old-school conservatism), then they could play with a fair referee on a slanted playing field (classical liberalism, modern conservatism), and what liberals want today is a fair game on a level playing field--something that only occur between comparable players, not between giants and dwarves (with apologies to Monwarul Islam). Society is not naturally meritocratic. It has interest groups, stereotypes, monopolies, trusts, and biases all its own. A society truly committed to opportunity for all cannot ignore these realities. It has to face them head on. And that is the principle I envision for the liberalism of tomorrow.

That Which Does Not Kill Me...

Well this is nice. Apparently Ashkenazi Jews are indeed smarter than the rest of y'all--because we had to self-select for intelligence to keep from being killed off throughout the last 500 years (tip: Andrew Sullivan).

Talk about your historical ironies.

Today's a travel day for me--finally going home! So, I'll see everybody on the flipside when I get into Maryland--at 12:23 AM. It would be faster, but I have to go through Atlanta. Because Minneapolis to Atlanta to DC isn't a huge triangle or anything.

UPDATE: I should have hoped it clear that breezily linking to an NYT article on my way home from college does not constitute an endorsement of biological determinism with respect to IQ. I thought the article was amusing in that it literally was making a "That which does not kill me makes me stronger" claim (particularly with regard to some nasty genetic diseases Ashkenazi Jews are prone towards), and it's funny when historical tragedies are asserted to have this sort of rebound effect. I actually would not be surprised if there is a cultural basis for Ashkenazi Jews having a sharp academic bent that was related to Jewish social position in Europe at this time, but even for groups that are relatively small and had been relatively reproductively isolated for some period of time (which may or may not describe Jews in Europe prior to their immigration to America, but certainly doesn't describe American racial groups), the claim that IQ is inheritable strikes me as pretty dubious on a variety of grounds.

Is it McConnell?

So it seems like the latest line is that Rehnquist is about to step down and McConnell is going to replace him (but Law, Life, and Libido thinks the Chief's got another year in him). I've already registered my support for McConnell, and certainly hope the news is accurate.

Uncorrelated calls McConnell "compelling" and thinks he should get through with ease. I'd qualify that to say he should get through with ease, but the Democrats might try and pick a fight just for the sake of having one. However, this Denver Post column, linked to by TalkLeft, gives me some cautious optimism. Senator Chuck Schumer (D-NY), praised him as having "broke from the mold," and frankly I don't think the Democrats can mount a filibuster without Schumer's support.

I am particularly distressed by the brief in opposition to McConnell (this was back when he was nominated for the 10th Circuit) filed by People for the American Way. While admitting "great respect for his intellect and legal skills," PFAW then proceeds to distort McConnell's positions on several areas of importance. For example, they criticize his support for U.S. v. Morrison, a 5-4 decision striking down the Violence Against Woman Act as unconstitutional, saying it showed a "disregard for women's rights." Yet as the brief admits, McConnell's position has nothing to do with woman's rights at all, it is a statement that beating women has nothing to do with Interstate Commerce, the clause used by congress to justify the bill. Nowhere does the brief even challenge this argument while it darkly suggests McConnell is some sort of caveman who wants to protect abusive husbands. Presumably, similar laws passed on a state level would pass constitutional muster easily.

PFAW also attacks what they say is McConnell's critique of "one person, one vote." However, they admit that McConnell would have achieved the exact same result as PFAW desires, except he would use the Guarentee Clause of the constitution and PFAW is content with the (status quo) Equal Protection Justification. Since I personally would like to see a reinvigorated Guarentee Clause, McConnell's position does not strike me as particularly troublesome.

The overarching problem is that even where PFAW seems to score some points, I don't know if I can trust them because on the issues where I actually do know some of the background, I can see they are clearly distorting the record. This is simply shameful. So, while the PFAW brief (might) give me some reason to disagree with particular legal positions held by McConnell, I cannot say that it shakes my faith in his fundamental fairness or legal acumen.

Meanwhile, My Election Analysis thinks John Roberts would make a better choice, and says that McConnell hasn't been as "solid" as he would have hoped starting on the 10th Circuit. It is implied from the context, although I can't say for certain, that MEA means this to say that McConnell hasn't been as conservative as he would have hoped--bad news for him, maybe, but good news for me. The Asylum is making much the same point--they think McConnell might be too "activist" (what the hell?) for their tastes, and they have the gall to say he isn't an "originalist" (there probably is not a more prominent (and honest) originalist thinker in America today than McConnell). Hey, if both the left and right hate him, how bad can he be?

In the Agora (Cross-Posted here) sums up my feelings well:

McConnell is solidly conservative, but not in a partisan manner. He's an intellectual conservative, not a political conservative and that carries much weight with me. He has a long track record of scholarship that will provide plenty of fodder for the various liberal advocacy groups, particularly PAW and Americans United, to oppose him. But ultimately, he is confirmable. He has broad support from legal scholars, including many prominent liberals, and he has proven to be a consistent conservative rather than a partisan one (for example, he publicly opposed the impeachment of Bill Clinton and spoke out strongly against the Bush v. Gore Supreme Court decision). Given the other potential choices, McConnell is about as good as liberals or libertarians could expect to get as a nominee given the current configuration.

Folks commenting over there have raised questions about McConnell's Church/State jurisprudence. I personally am not too troubled by it. McConnell is an accomodationist, which is a position I have alot of sympathy for. He has scathingly denounced the Oregon v. Smith decision, a case (majority by Scalia) that essentially demolished free exercise protections for religious minorities. However, he has refrained from taking the hardline conservative "prayer in school is a-ok" position, which is what counts for me. As this article by two liberal law professors, among the 300 who have written in support of Judge McConnell says (note: the article was written when McConnell was a candidate for the 10th Circuit Court of Appeals three years ago), "McConnell has also located himself directly opposite Scalia on key establishment clause issues. For example, Scalia (in dissent) voted to uphold government-sponsored public prayer services at public school commencement exercises. McConnell views such events as unconstitutional." If this is the case I think it is (Lee v. Weisman), then McConnell has spoken out in favor of perhaps the most important establishment clause decision in the past two decades. Lee has come under almost as much fire from the conservative legal sphere as Roe, but unlike Roe it is a superbly reasoned opinion consistent with common-sense jurisprudential positions, and also unlike Roe it is not the type of case that should be left to political actors. Democrats should give McConnell some credit here, he is offering his endorsement to one of the biggest feathers (and biggest targets) in the liberal first amendment hat.

Indeed, it is the work of McConnell, among others, that has caused me to reassess my formerly strict-separationist stance as dangerous for religious dissidents. Here's his argument:

...what it means to be free and equal was a contested question....There is [a] possibility that...all legal distinctions based on religion would be abolished. Disabilities would be lifted...Under this vision, the state itself is secular, and knows not the creed of its citizens; religious practice is purely private, and receives neither the encouragement nor even the acknowledgement of the state...

Such a vision was adopted in France at this time as a result of the French Revolution:

Jews, according to the terms of emancipation, were expected to divest themselves entirely of their national character—they were to give up the civil aspects of Talmudic law; disavow the political implications of Jewish messianism; abandon the use of Yiddish; and, most importantly, relinquish their semi-autonomous communal institutions. They were to become like Frenchman in every respect, save religion.

[cite omitted] One prominent French legislator explained that no one could be his fellow citizen 'who does not wish to drink or eat with me, who cannot give me his daughter in marriage, whose son cannot become my son-in-law, and who, by the religion he professes is separated from all other men. Only when Jews do what other men do,' he said, 'what the constitution and law requires of us all, will we welcome them as citizens.' [cite omitted]

The problem, though, was that this vision of secular equality would force Jews to abandon aspects of their Jewishness. To be sure, it would protect them from laws that explicitly singled out Jews for disabilities, and it would maintain a secular public order in which all citizens could participate on the basis of their shared characteristics. It might well spare persons...who do not share the religious sensibilities of their countrymen the burden and embarrassment of public recognition of religion. But it would not protect the ability of religious minorities to maintain their differences from secular society. It would provide no protection for religious practices at odds with the secular interests of the majority. To put it another way, forcing [a Jew]...to testify on Saturday would formally treat him equally with other citizens, but its impact on him and other Jews would be quite unequal compared with the Protestant majority. You might consider an analogy to the issue of disabilities: In order to ensure that individuals with disabilities have an equal opportunity to participate, it is sometimes necessary to make special accommodations (wheelchair ramps, sign language interpretation, and so forth)[Michael W. McConnell, John H. Garvey, Thomas C. Berg. Religion and the Constitution. (New York: Aspen Law & Business, 2002): 11-12]

Essentially, this is the same argument liberals use to justify "race-consciousness," in order to protect racial minorities, the state cannot be blind to race, because then it will never be able to recognize racism except in the most extreme circumstances. Along the same lines, the government has to be able to accomodate religious minorities whose religious beliefs might require that they differ slightly from the social norm.

Even if you don't agree with it, it's still a compelling and well thought out argument. And everything that I've read by McConnell falls in that category, and suggests that he is an intelligent, thoughtful, and insightful thinker and judge. I would be honored to have him on the Supreme Court.

In a prior post, I wrote the following:

This brings me to something I've wanted to say for a long time. I've read Judge McConnell's works, and have been incredibly impressed. The man is frankly brilliant. I support the Democrats on the filibuster option, and am willing to say it should have been used on nominees like Judge Rogers. If the Democrats decide to filibuster a McConnell nomination, I will be outraged, and guarantee you will hear about it on this blog.

I am begging the Democrats--do not go down that road.

UPDATE: Tony Mauro has an excellent article on Judge McConnell. Althouse loves the description of him as a "perplexing blend" of liberal and conservative, and I do too.

Enemy of the State

My good pal Luci Hague asked me in comments to write on the revelation of Deep Throat's identity. I'm not exactly sure what to say--is there anything new (beyond his name) that has come out because of the story?

So instead of writing my own post, I'll instead kick over to The Moderate Voice, whose thoughts on the subject are must-read material. He goes through the reaction of some of Nixon's old allies to the story. They are not pleased with Mr. Felt. Now that his name is out there, they say he "violated the ethics of the law enforcement profession" (G. Gordon Liddy, and pretty rich coming from the source), "undermine[d] the administration" (Chuck Colson), is a "traitor" (Pat Buchanan), and "made the conditions necessary for the Cambodian genocide" (Ben Stein). All of these are simply absurd (especially the last).

Where were these people in the last 30 years? If they thought that Nixon was the epitome of a great president, they should have been making that argument all throughout the last three decades. That they waited until hearing the name of the source suggests they don't actually believe their arguments, they just want to cause the maximum amount of hurt and pain to someone who they feel brought down one of their heroes. For shame. I thought the rule of law still meant something.

Just One More Time

I swear, this will be my last post on the Amnesty Report story. I mean really, I'm already on number five.

The latest player in our little tragedy is Defense Secretary Donald Rumsfeld, perhaps the least credible person of all to be addressing the issue. He says:

"To compare the United States and Guantanamo Bay to such atrocities cannot be excused," he said. "Free societies depend on oversight, and they welcome informed criticism, particularly on human rights issues. But those who make such outlandish charges lose any claim to objectivity or seriousness.
[...]
"Precious little has been written by [newspaper] editorial boards about the beheading of innocent civilians by terrorists, the thousands of bodies found in mass graves in Iraq, the allegations of rape of women and girls by U.N. workers in the Congo," he said. [emphasis added]

Hmmm. Now, I'm a pretty staunch critic of the UN, and the sex abuse allegations in the Congo are absolutely horrific. At the same time, the dynamic between that situation and the one here is quite interesting. On the one hand, if the UN wanted to pull a Rumsfeld(/Bush/Cheney), they could say something to the affect of:

"It's inappropriate for the United States to group the UN, an organization dedicated to peacekeeping and human rights, with some of the worst human rights violators in the world. The events in the Congo are indeed intolerable, and are being investigated. But the UN hardly compares to the level of brutality of the Hussein regime, and it's wrong to suggest we do."

How would I respond to a statement like this? Well, much the same way as I would to the responses the Bush administration has been giving to the Amnesty report. I'd say that the UN should not be immune from criticism simply because of its other good deeds, and that in any event it has far too high an opinion of itself. On the other hand, it is unproductive, biased, and wrong to imply that the UN rises to the same level of evil as Saddam Hussein. Replace "UN" with "US," and the argument still holds, in my opinion.

That's the similarity. The difference, of course, is that the UN isn't denying it's problem and is promising a full investigation. Contrast that to the Bush administration's stonewalling, and suddenly the comparison seems inapt indeed.

Meanwhile, Obsidian Wings has two more posts on the subject. Edward calls out the Bushies for their sudden...distrust...of Amnesty when in the run up to Iraq, they were the most credible people in the world (Pissed-Off Liberal) also runs with this theme). Hilzoy is confused about what the particular manner of how Amnesty made its allegations has to do with their veracity--IE, if the allegations are true, then shouldn't we concentrate on fixing them? Amen to that.

As usual, Andrew Sullivan gives a great sum-up:

Some of the rhetoric in Amnesty International's report on U.S. detainment policies is indeed excessive. It is simply wrong on every level to equate the United States' policy of detention, abuse, torture and rendition of terror suspects with the Soviet Union's vast domestic prison system, designed to perpetuate an evil totalitarianism. But equally, it is now indisputable that a network of secret prisons exists to detain and interrogate terror suspects, that some of those imprisoned are "ghost detainees" with no proper records or accounting, that abuse and torture have occurred in hundreds of cases, that this president signed a memo defining torture into near-non-existence, that there is no secure method for determining the guilt or innocence of the prisoners, and that all of this has decimated America's international reputation. It is equally indisputable that investigations into these incidents are simply not "fully investigated in a transparent way." Even the most egregious cases of murder, as in Bagram, are sometimes dismissed at first for lack of evidence. Incidents of Koran abuse were deemed "not credible" for a week, until five incidents were confirmed. Many, many other accusations are deemed baseless because the only willing testimony comes from prisoners and no investigation takes place. Further, military critics of administration policy are often fired; and the message from the top is unmistakable. These are simply facts. To describe criticisms of this policy and record as "absurd" is itself absurd. It bespeaks either stunning cynicism, or equally stunning denial. And it suggests to me that there will be no resolution to this profound problem coming from the administration itself. They're relying on the general public not to care, or to believe that the ends of preventing terror justify almost any means, including an end to America's proud history of decency toward prisoners in wartime. That makes it all the more incumbent on the Congress, the media and the part of the public that does love this country's reputation and humaneness to speak out and demand accountability. The odds are long, but we have no choice but to try.

One other thought that just occurred to me. This is one of the few times that the Bush administration has really let a negative story about itself spin out of its control. I mean, you have Bush, Cheney, and Rumsfeld dragged into this, and I have to think their comments have given the story a renewed life it would not otherwise have. Furthermore, I don't think they are coming out the better in these exchanges--they sound bitter and in denial. This comes as a capstone to a whole period where the Bushies have been getting nailed--Social Security Privatization looks dead in the water, the filibuster compromise came as a huge disappointment, Bolton has been huge embarrassment, and now this. Are they, perchance, getting rattled? The first murmurings of dreaded "lame-duck" status are being heard, even amongst conservatives (link: The Moderate Voice).

We'll see how this plays out (hopefully on issues other than Amnesty).

UPDATE: (Updates don't count as new posts, alright!?!) Frustrated as he is about the apathetic administration response to abuse allegation, Publius concedes that "Gulag" was at least as inappropriate as when Santorum compared filibustering Democrats to Nazis.

The Hits Keep Coming

Frankly, the Amnesty International story has a lot more legs than I had expected. I'm on my fourth post on the subject (in reverse chronological order, here, here, and here for my prior thoughts). President Bush himself has jumped into the fray, saying:

"It's absurd. It's an absurd allegation. The United States is a country that promotes freedom around the world"

This, of course, is entirely besides the point. The US is a country that promotes freedom around the world--a fact that has absolutely nothing to do with whether or not right-thinking human beings should be appalled by our actions in Guantanamo and elsewhere.

Meanwhile, the blogosphere is splitting badly on the issue. The Moderate Voice has come down hard on the US for Gitmo et al, but seems to be buying the Adnesik line that Amnesty has just bought into America-hatred, which is blinding it to the true human rights monsters out there.

Obsidian Wings, by contrast, is having a mini-war of its co-bloggers. Edward started off by saying that the US was an example to the rest of the world and thus needed to be held to tighter scrutiny (a sentiment I've echoed). Charles thinks the bias is lethal to Amnesty's case and that it the US should not be held to a higher standard than other countries:

There's no cherry-picking here, and there's no singling out a particular nation because that nation happens to be really, really powerful. The vision of Amnesty International is one standard applied to every person. To the extent that the leadership of Amnesty International has focused its ire on a country that has done more than any other on earth to advance freedom and human rights, it is an organization that has lost its bearings. To put it more forthrightly, the perspective of the leadership of Amnesty International is so whacked and so skewed that it's credibility as a human rights organization is in mortal peril.

Most recently, Edward responded that as long as the allegations are true (which I think they are), then we should respond not by crying about Amnesty's "bias" but by fixing the problem.

Andrew Sullivan is claiming victory, and has a prestigious feather in his cap now that Glenn Reynolds is starting to take the deal seriously.

As for me, I stand by my original position. The US has been and remains one of the greatest beacons of human rights the world has ever known--and its wrong to suggest otherwise. But while recognizing our triumphs, we cannot be afraid to deal with our failings. A US that even appears to be backsliding on its protection for basic legal and moral protections will cause more damage to global stability and human decency than anyone could possibly imagine.

Hurting the Cause

Regular readers of this blog know that I've written a fair amount on the liberal slant of academia, both on its roots and on what might solve the problem. So I was quite interested to see what Law Professor Scott Gerber had to say in an article entitled: "The Radicalization of American Legal Education: Why the Left's Dominance Is Bad for Law Schools and the Law" (link: How Appealing)

It was absolutely awful. Speaking as someone sympathetic to the position, I can honestly say this was perhaps the most compelling argument for keeping conservatives (or at least Professor Gerber) out of academia entirely. In addition to the constant Limbaugh/O'Reilly-esque statements of "that's right" and "you read that right" ("I am not making this up! I could not make this up!), the entire piece is a collage of shoddy argumentation and barely veiled partisanship in the well-known "if it's bad, it must be liberal" vein of discourse.

Gerber starts with the now well-known statistics on the predominance of liberal voices on academic campuses. Alright, fair enough. Then he gives us this gem:

And if those numbers aren't proof enough of the current state of legal academe, here's a fact that's largely unknown outside of the corridors of America's law schools: the Association of American Law Schools--the legal academy's learned society--was recently led by a self-proclaimed "radical" Marxist. (A nice guy, but a Marxist nonetheless.)

I'm not a Marxist, of course. But what does being one have to do with leading a society? It's not like the AALS is the Supreme Court--it doesn't have a bearing on what professors teach, how they teach it, or really anything all that political at all. As far as I can tell, the AALS is mostly an umbrella organization within which Law Schools can network and communicate. Being a Marxist has absolutely nothing to do with ones capabilities in leading that sort of thing (it should also be noted that the types of Marxists one finds in legal academia are of a very different breed than the ones you'd find in Stalinist Russia).

Then Gerber makes my favorite conservative argument of them all, when it comes to academia. Can you guess what it is? I'll give you a hint: It's a two parter, part one dealing with race and gender, part two dealing with political affiliation.

If you guessed "affirmative action and discrimination," you win a prize! In the same section, Gerber simultaneously argues that a) seeking to hire under-represented racial and sexual minorities for law school positions is unjust and wrong and b) seeking to hire under-represented political minorities for law school positions is necessary and morally required. Honey, you got to pick a position and stick to it: Either law schools have the obligation to hire more underrepresented voices, or they don't. But trying to manipulate the rules so it only benefits your own group--that's just not on.

Gerber next moves into his examples of how legal education has been "radicalized." The first one (and who couldn't see this one coming) was the Clinton impeachment:

The first was when a flood of law professors reported to Congress during the Clinton impeachment imbroglio that lying under oath (as President Clinton had done in the Paula Jones litigation) and obstructing the judicial process were not impeachable offenses. Certainly, the Framers would have characterized that sort of behavior as an "offense against the state": their definition of a "high crime or misdemeanor." Succinctly put, lying in federal court is, and ought to be, an impeachable offense.

An "offense against the state"? Any criminal act is, by definition, an "offense against the state" (including jaywalking, which, if Monica had never surfaced, we'd probably have seen an impeachment proceeding begun on that basis instead). The whole structure of our criminal law system is premised off removing crimes from the realm of torts between persons and making them crimes against the state. That's why they're all labeled "State v. Smith" or "People v. Smith" or something along that vein. Making that your definition of "High Crimes and Misdeamenors" would make "high" superfluous. Succinctly refuted, lying under oath in a civil suit about an action in which congress had no authority to inquire into is not, and ought not be, an impeachable offense.

But here is where Gerber tops himself. Contradictory, hypocritical, and hyperbolic as he may have been, at least so far the good Professor had managed to confine himself to ills that could reasonably be tagged on liberals alone. All that ends in example number two:

The second example of how the radicalization of American legal education has impacted legal scholarship is the recent stream of books by influential law professors calling for a reduced role for the judiciary in constitutional interpretation. You read that right: These professors think courts should get out of the business of interpreting the Constitution. One professor even calls for a constitutional amendment overruling Marbury v. Madison, the landmark 1803 decision by Chief Justice John Marshall that is widely credited with establishing the Court's power of judicial review. You read that right, too: This particular professor thinks the hallowed case that has long been regarded as the source of the strength of the third branch of American government was a bad idea--one that, two hundred years later, should be revisited.

Gerber is correct that there is a movement amongst liberal legal scholars that is beginning to question whether or not liberal policies should be pursued in the court's. However, to argue that it is predominantly liberals who have been critical of judicial review and aggressive constitutional interpretation is simply delusional. Across history (and still today), it has always been conservatives who have been most vociferous in their attacks on Marbury. Indeed, did we not just emerge for a 24/7 news cycle where we heard daily from the right about how evil those "activist" judges are and how they should defer more to the popular branches of government (sample quote, via Rep. DeLay "The reason we had judicial review is because Congress didn't stop [the judiciary].")? How quickly we forget.

Gerber's article is simply a spiteful, vitriolic attack against the left--damn the truth, full to starboard. It's disgraceful, and does more to damage his cause than a million Marxist chiefs of the AALS could ever do.

UPDATE: Daniel Solove wonders if

As the judiciary grows more conservative...whether liberal and conservative scholars will retool their positions on judicial review or the role of the courts. Inspired by the Warren Court, liberals sought to justify robust judicial review. Conservatives pushed for judicial restraint and attacked the legitimacy of judicial review. (These are broad generalizations of course.) But the courts have a very different complexion today, and I wonder whether liberal and conservative positions on judicial review will start to shift soon.

This realignment may indeed, start happening. Conservatives have not been too vocal in decrying activist conservative decisions, and as Professor Gerber notes, there are some liberal groups who want a more restrained judiciary. But it is important to recognize where the liberal groups are coming from. It isn't from some abstract position of judicial restraint (which would imply that they are merely flipping positions with the right as it becomes politically expedient to do so). Rather, the change is motivated by a wholesale critique of how judicial victories translate into "real world" changes. Richard Delgado and Jean Stefancic note that:

[L]ower courts have found it easy to narrow or distinguish the broad ring landmark decisions like Brown v. Board of Education. The group whom they supposedly benefit always greets cases like Brown with great celebration. But after the celebration dies down, the great victory is quietly cut back by narrow interpretations, administrative obstruction, or delay. In the end, the minority group is left little better than it was before, if not worse. Its friends, the liberals, believing the problem has been solved, go on to something else, such as saving the whales, while its adversaries, the conservatives, furious that the Supreme Court has given way once again to undeserving minorities, step up their resistance. [Critical Race Theory: An Introduction. (New York: New York University Press, 2001), 24]

Liberals have discovered that by going through the court system, they win the big battles but lose the overall war. This is because the victories in the court system make it hard for interest groups to mobilize grassroots supporters to protect against rollback attempts--who needs to fight for choice when you've got Roe--while at the same time providing infinite manpower for infuriated conservatives livid that there interests have been excluded from the political playing field. The "liberal restraint" movement, for lack of a better name, grows out of these pragamatic concerns, not out of a generic distrust of the judiciary as such. Is there a bit of "oh, wow, with conservatives dominating the judiciary now maybe we shouldn't support infinite judicial power!"? Probably. But that is not the overall motivating factor here.

Parry, Riposte

The war continues between the Bush administration and Amnesty International.

Cheney: "For Amnesty International to suggest that somehow the United States is a violator of human rights, I frankly just don't take them seriously."

Amnesty: "He doesn't take torture seriously; he doesn't take the Geneva Convention seriously; he doesn't take due process rights seriously; and he doesn't take international law seriously" either.

Oh, it's ON now!

Previous posts on the subject here and here.