The Right Republican Tactic Towards Kagan

Miguel Estrada -- the talented conservative Latino judge who Democrats famously blocked from being appointed to the DC Circuit (and thus, the Supreme Court) -- has come out and endorsed Elena Kagan's nomination. This "may have the bizarre result of fueling suspicion from some on the left who worry that Kagan is a right-winger in Dem's clothing." I don't think this is bizarre at all, and part of me thinks it might be calculated. There are plenty of liberals grumpy over the Kagan nomination (I'm relatively neutral on the matter). But Republicans can't block her -- they already know she'll be confirmed. So they have two choices.

First, they can wage a furious but futile battle against the Solicitor General, hopefully riling up their base in the process. And that would be the standard tactic. But it seems relatively superfluous -- the GOP base is plenty riled, and there are plenty of things to be done between now and November to keep them riled. Meanwhile, the standard Republican temper tantrum is the best way to pave over the fissures that are developing over the nominations. Liberals may not like Kagan, but they'll be reminded of how insane Republicans are, and for the past few cycles "Republicans are batshit crazy" has been the best mobilizing tool the Democrats have ever had.

Alternatively, they can recognize the writing on the wall, and give her a nice reception, and a healthy confirmation margin. What will happen? Well, the Republican base might pitch a fit. But, as I said, they'll get over it between now and November. And in the meantime, they'll have scored two essential victories. First, they'll be able to claim the high ground on the judicial confirmation fight. Right now, it is buried in a mishmash of "he started it". If Republicans can say, quite plausibly, "Obama nominated one of his top choices -- not a compromise -- a solid, unabashed liberal whom we could have attacked over (among other things) the Solomon Amendment, and we confirmed her with virtually no fuss", they will be in a dominant position the next time they're occupying the Oval Office (not to mention if Obama ever gets the chance to nominate a true liberal's liberal).

But second, and more importantly, Republican behavior like this would crack the left wide open. Liberals are already suspicious that Kagan is our own version of Souter. If Republicans treat her like they think she's the best gift that ever happened to them with this President and this Senate, there will be no containing the internal strife. The liberal base will be demoralized, perhaps irrevocably, and the already pro-GOP fundamentals will lead them to a rout. And the sacrifice? Justice Kagan, who, to reiterate, will be on the court anyway. Oh, and maybe a slightly less reared-up Republican base -- but if they take back the House, who cares if the base is happy or sad about it?

Keep 'em Out

Mark Krikorian tips his hand -- legal or not, immigrants or just visitors, he just doesn't want Mexicans in our country.

Bedroom Antics

Thanks in part to pressure from New York AG Andrew Cuomo, American Eagle will stop discriminating against trans employees by dropping a requirement that employees wear "gender-specific clothing". Great news, you say? Well, you're not the FRC (thank God):

"ENDA, what might be more appropriately called 'The Cross-Dresser Protection Act,' takes the bedroom into the workplace and unfairly burdens employers to know about their employee's sexual lives. This major expansion of federal power over the workplace places an unnecessary burden on small businesses and local communities.

First, as Vanessa notes, this reveals absolutely nothing about any employee's "sexual lives". Knowing that an employee is trans (or a "cross-dresser") doesn't say anything about one's sexual practices (including whether one is gay, straight, or bi). It's the FRC that is sexualizing this, not anybody else.

But even taking the FRC's misguided analysis at face value, what it boils down to is that employers will be "burdened" by the knowledge that someone that they talk to might be ... having sex? Having teh gay sex? Whatever it is, I'm not sure how this abstract knowledge rises to the level of cognizable harm.

Real Posts Mean a Real Roundup

Hey, I wrote three actual posts today, so back off! 

 

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Jon Chait blows the lid off Matt Yglesias' absurdly vague smear re: the meaning of Goldstone's past collaboration with South Africa's apartheid regime.

Feel good story about Gaza surfers.

Proponents of an anti-Israel boycott sure are attracted to conspiracy (see also). 

Margaret Atwood and Amitov Ghosh had a lovely acceptance speech for their joint receipt of the Dan David Prize.

Arizona just passed a bill targeting ethnic studies courses, on the grounds that they may promote "ethnic solidarity" (which is "just like the old South", according to the state schools chief, who perhaps is a few years short of schooling himself).

You know what happens when you allow gay marriage? Gays get married.

Once again, for many conservatives qualities associated with American Jews make one automatically an inauthentic American.

In related news, John Cole is collecting the latest additions to the constitutional qualifications for a SCOTUS justice.

Real Pain for My Sham Friends

Elena Kagan's Friends: She's Not Gay.

Elena Kagan's real friends: It doesn't matter if she's gay or not, and whether she is is her business, not yours.*

* Not an attack on the friends in the Politico piece, but a general comment on how this whole issue is beginning to infuriate me.

Mayweather versus Kenny

This is Sportscenter:

The Universal Tantrum

Jon Chait thinks that the political calculus that went into the Kagan nomination may have been miscalculated:

Substantively, I'm pretty happy with the Elena Kagan nomination. Politically, though, I suspect the White House has made a mistake. The calculation seems to be that Kagan is their most confirmable pick. Why? Well, Senators like Orrin Hatch have said nice things about her in the past. Conservatives at Harvard like Charles Fried like her.

On the other hand, there are entry points to rile up the conservative base against her. There's Kagan's opposition to ROTC based on the military's discrimination against gays. She wrote a college paper that seemed vaguely sympathetic to historical socialism. Tea Party Nation has emailed its supporters calling her a "radical leftist."

Now, maybe these concerns will remain marginal in the face of a selection that enjoys the support of Republican elites. But the last 15 months have shown that, in the face of conservative outrage or organized Republican opposition, the support of a smattering of Republican elites tends to melt away very quickly. What Republicans are going to want to invite a Tea Party-backed primary challenge by voting to confirm Kagan? In the end, I think no more than a couple GOP Senators will be left standing. If the White House predicts a 70+ vote cakewalk, I suspect it's mistaken.

I think it's obviously true that Republicans would throw a temper tantrum regardless of whether the nominee was Kagan, Wood, or even Garland. Throwing a fit is kind of all Republicans do, nowadays. However, I think there might be a difference in terms of how the tantrum is portrayed. Diane Wood, fairly or not, was presented as the liberal end of the nomination spectrum. Hence, media coverage of the inevitable Republican freak out would have cast it as justified, or at least politically expected even under normal circumstances. The goal with Kagan, I take it, is for Republicans to flip out and for it to look unreasonable -- proof of the degree to which the party is hostage to its most extreme elements.

Of course, the problem with this strategy is that the media doesn't have a spine, and thus takes the very fact of a Republican hissy fit as per se proof that the fit is reasonable. But the analysis does, I think, go one level deeper than Chait takes it.

It's a Pirates Life for Me, Maybe? Roundup

Yes, yes -- these roundups are the epitome of lazy blogging. Sorry. I'll snap out of it eventually.

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Big Labor pushes through majoritarian democracy.

I was waiting for the first person to argue that two straight female SCOTUS nominations (making for three of nine female justices total) equals a de facto exclusion of men. Thanks, K-Lo!

A mild surprise in West Virginia, as centrist Dem Alan Mollahan (D) goes down in the primary to an even more conservative candidate.

Seattle police officer taped beating a Latino robbery suspect (who turned out to be entirely innocent, not that it matters).

Ta-Nehisi Coates on why Obama's anti-X-box-ism is genuine.

Andrew Sullivan's haywire gaydar re: Elena Kagan is really starting to piss me off.

Recently defeated (at the GOP nominated convention) Utah Senator Bob Bennett (R) is in no rush to decide his next move.

If you're a Republican in Alabama, believing in science is a smear.

Quote of the Day

Richard Goldstone at Yale University's MacMillan Center: "Israel isn't the only nation that's being treated disproportionately, and in my view, unfairly. It's a question of politics, not morality."

I actually have no idea what that means. What are the other nations being treated "disproportionately [and] unfairly"? What does it mean for the question to be one of "politics, not morality"? I'm genuinely curious.

The Futile Symposium Roundup

Tomorrow is going to be a hilarious meeting.

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The tea-baggers have taken Maine.

Ta-Nehisi Coates on what other people can supposedly say.

The emergent attack on Elena Kagan is that she's too tough on slavery.

...Well, that, and that she's fat.

Something different: A radio debate where the liberal opposes Kagan and the conservative supports her.

Medical marijuana stores firebombed in Montana.

Friendly fire costs a Democratic seat in Hawaii: The DCCC is pulling out since the two Democratic candidates are going to split the vote and let a GOPer slip through the middle.

The Jew-Counter of Virginia

The Republican Party continues to demonstrate why it will never get the Jewish vote:

When former President Richard Nixon became paranoid that the Bureau of Labor Statistics had come under the control of Democrats and a “Jewish cabal,” he ordered adviser Fred Malek to create a list of “important Jewish officials” within the bureau, several of whom were later demoted or transferred. “It was the last recorded act of official anti-Semitism by the United States government,” Slate’s Timothy Noah noted. Malek has since apologized for serving as Nixon’s “Jew counter,” and has gone on to be a perennial Republican operative, serving as national finance co-chair for Sen. John McCain’s (R-AZ) presidential campaign, and as deputy chairman of the Republican National Committee under President George H. W. Bush. Now, right-wing Virginia Gov. Bob McDonnell (R) has hired Malek to chair a 31-member commission charged with making recommendations on how to reform government.

Look, it's great that Malek apologized, but there is something unseemly about a person whose claim to fame is creating lists of bad Jews still being a member-in-good-standing of the political class. Yet, here we are, with Malek apparently well-entrenched in the national GOP. And now he's charged with reforming Virginia's government.

I can't wait.

Still Perfect

It's Kagan, which means I'm two for two. Bow to my superior prognostication skills.

Back in the Swing Roundup

Go to school, read a book, be a lawyer/
Hell yeah, man, I'm all for the cause.

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New study reveals parents believe all teens but their own to be hyper-sexual (their own teens are entirely asexual).

Fox News is annoyed that President Obama didn't gratuitously insult American Jews (the Jewish community appreciated the gesture). I know exactly how committed the conservative Christian movement is to fully including Jews in the fabric of America.

Statements of Avrom Krengel (chair of the South African Zionist Federation) and Richard Goldstone after their recent meeting.

Lebanon delays asking Hezbollah to disarm.

The Judeosphere predicts a fall into obscurity for Walt & Mearsheimer (the latter's work on neo-realism will not soon be forgotten, but hopefully his ill-considered forays into the study of domestic lobbying and Mideast politics will be).

More evidence of the Catholic Church shuffling around predator priests.

Phoebe Maltz on literature and anti-Semitism.

Senator Bennett Out in Utah

Senator Bob Bennett (R-UT), a reliable conservative who raised far-right hackles because he refused to publicly act like a psychopath, has lost a Republican Primary convention and is effectively out as the Senator from Utah.

Bennett's defeat marks the first time a sitting Senator has lost in an intraparty fight since 2006 when Sen. Joe Lieberman was ousted by wealthy businessman Ned Lamont in the Democratic primary. Lieberman went on to run and win as an independent; under state law Bennett cannot pursue that course.

It also marks the first major victory for the conservative wing of the Republican party, which has organized itself under the banner of the Tea Party movement to protest what they believe to be a government run amok.

Bennett, a reliable conservative on most issues, had repeatedly expressed exasperation at his predicament -- insisting that the ideological right's issues with him were less about his record and more about the tone he struck during the partisan warfare in Washington.

Actually, this is the second time in recent years something like this has happened in Utah -- Jason Chaffetz's primary defeat of arch-conservative six-term Rep. Chris Cannon (R) on grounds of insufficient conservatism had a very similar ring.

You Know It's Bad

Rep. John Boehner (R-OH), of all people, talking sense about Senator Joe Lieberman's (I-CT) proposal to strip alleged terrorists of their citizenship:

"If they're a U.S. citizen, until they're convicted of some crime, I don't know how you would attempt to take their citizenship away," House Republican Leader John A. Boehner (Ohio) told reporters Thursday, according to Bloomberg News. "It would be pretty difficult under the U.S. Constitution."

Sentence first, verdict later, as the Queen says.

The Jordan Move Was Pretty Sweet Too

In my defense, "I'm not sure that's 100% safe" was only my second thought -- after "that's adorable" but before "wow, that's really awesome".



Via.

What Goldstone's Past Actually Teaches Us

An article in an Israeli newspaper digs into Richard Goldstone's past as a judge during South Africa's apartheid era. The story focuses on Judge Goldstone's role in sentencing several Black defendants to death, as well as other actions which seemed rather sketchy given the way they reified South Africa's racist structure:

Goldstone claimed that he never discriminated against black defendants and acted to the best of his abilities to act fairly, though he was sometimes morally opposed to the laws he was upholding. He noted that he was equally committed to maintain equality and to uphold the law, two principles that often clashed.

I think this is very important. Matt Yglesias dismisses the entire article because "an awful lot of people were in morally compromising situations" during the apartheid era.* And this is undoubtedly true. The ANC seems to think of Judge Goldstone as a good jurist and a friend, and that's enough for me to accept his anti-racist credentials.

But the importance of this article isn't really about somehow showing Goldstone to be a dreaded racist. Nor am I convinced that Goldstone's participation in the Gaza inquiry was meant to sanitize this unsavory past. Jon Chait gets it closest when he writes that "Goldstone seems to be disinclined to make a brave, lonely stand against the prevailing currents."

But what I was most reminded of was my own intuition on Goldstone's self-image of the role of law:

Judge Goldstone, I've often thought, is like a very judicious, public-spirited, personally fair-minded person who volunteers to be the judge at the Scottsboro trial. The instinct is equal parts admirable, naive, and egomaniacal. Admirable, because of the belief (which I think Judge Goldstone had) that what the situation really needed was for someone who wasn't infected by the endemic prejudice to step in and be a fair arbiter. Naive, because it drastically underestimates the degree to which the prejudice infects the entire system, and thus is perfectly complimentary with formal legal categories -- Jim Crow ate up and spat out formal constitutional doctrine with a near-careless ease (it took rather dramatic changes in how we viewed American law for institutional racism to be rooted out). Egomaniacal, because of the belief that one messianic person could effectively counter an entire system simply by playing by its own rules. Formalism, no matter how judiciously applied, only works when the surrounding system is just. When that quality isn't present, following the rules will do virtually nothing, because they mean virtually nothing.

The above block-quoted section fits this to a T. Goldstone, I think, rationalized his service as an apartheid-era judge because, in contrast to his explicitly racist fellows, he knew he was fair and judicious, and would follow the rules and dot every "i" and cross every "t". The overwhelming faith in formalism remains the blindspot. When the system is unjust, following the rules does surprisingly little. Judge Goldstone may be (or may not be) a meticulous technician within the system, but he has no view of the big picture. He can't fathom that simply playing by the rules isn't enough.

* The rest of Matt's piece is a rather half-hearted effort to swat aside the possibility that Israel is the victim of unfair treatment because -- well, he doesn't explain why, except to say that the folks who support Goldstone don't all hate Black people. Well, that's great, but it is entirely possible to hold egalitarian views towards one marginalized group and be prejudiced against another. I would never impeach Desmond Tutu's anti-apartheid credentials, but I sure as hell will impeach whatever credibility he has speaking about Jews and Jewish experience.

The question is whether the system we're working in -- international law as mediated through UN institutions -- is one that treats Jews and Jewish claims fairly, and it's not like this argument hasn't been made with considerable sophistication and evidence. Matt wants to force us into this binary where either we have to oppose the entire facial ideology of international law, or accept that the system as currently administered is meted out fairly. This doesn't so much answer the critique as sidestep it entirely, secure in the confidence that the ultimate response to claims of discriminatory activity is to mock the complainant.

Prom Night!

...at the law school (well, for the law school. Thankfully, it's being hosted downtown).

To tide you over, the AJC's 2010 annual survey of American Jewish Opinion is chock full of interesting results.

Bleed American

Some California high schoolers decided to wear American flags all over their body during Cinco de Mayo. Eugene Volokh defends them from charges of discourteousness:

Even if the students wore American flag garb only on Cinco de Mayo, I take it that the message was “you want to stress your Mexican heritage, and we want to stress our American heritage” or at most “we don’t entirely approve of your stressing your ethnic heritage, since we should all think of ourselves as Americans.” This might convey some disagreement, but it hardly strikes me as discourteous; and to the extent that it’s a “rebuke,” it’s the sort of message that people are entitled — not just as a matter of law, but also of good manners — to send. Courtesy doesn’t require absence of disagreement. It requires that the disagreement not be framed in a rude way, and I don’t think there’s anything rude in the messages that I infer the clothes were trying to send.

I think Volokh is missing the most obvious potential message here, though, and it's one that is clearly discourteous: That unlike the Cinco de Mayo celebrators, the wearers here are real Americans. Volokh's claim that the message is that we should all view ourselves as Americans is, under this view, precisely the opposite message. The students may have been intending to send (or the recipients may have received, regardless of intent) the message that "people with your cultural heritage and background are something alien and external to 'American', which is what we represent."

Or maybe not. But it's a very plausible reading of the t-shirts, and one Volokh doesn't address. And needless to say, that message would be quite morally pernicious.

Rent-a-Roundup

Anybody interested in subletting an amazing townhouse in Hyde Park?

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DougJ looks at the polling regarding Arizona's anti-immigrant law, declares that "if it were up to white voters, we would be living under a Franco-style military dictatorship."

Incidentally, that same poll reveals that Blacks are even less likely to support the Arizona law than Latinos (whose own support can safely be characterized as minuscule).

Republicans discover one right for terrorists they can support.

South African human rights activist Rhoda Kadalie discusses her recent fact-finding trip to Israel.

Tzipi Livni calls for a Kadima/Likud alliance that can actually make peace, not to mention stem the poisonous tide of ultra-orthodox influence over Israel.

An element away from disaster.