Social Support for College Mothers

Bitch Ph.D. throws her support to what sounds like an excellent bill: The Elizabeth Cady Stanton Pregnant and Parenting Students Act of 2005. It would start pilot programs in colleges and universities to provide support services for students who decide to take their pregnancies to term instead of abort.

I think that colleges and universities should offer their support to all life choices, and Bitch agrees:

Although I don't know the details of the bill, as presented in this article it sounds to me like a long-overdue--and feminist--solution. It's incredibly difficult for student parents at college: often there's no campus daycare, and if there is it has long waiting lines; often daycares don't offer drop-in services or aren't open for evening classes; often even women's centers on campus don't have resources or support aimed specifically at student parents.

A really good friend of mine is a single mom who is struggling hard to get through college, and continually running into problems with daycare, school schedules, inadequate financial aid, housing, etc. She's called me in frustrated tears talking about dropping out, and I encourage her to hang in, but it's ridiculous: colleges and universities do a terrible job of supporting student parents.

I also agree with Bitch that this is an issue that progressives should seize upon--a great bridge we can build over to pro-lifers:

This is one of the issues on which I often find myself arguing with my peers: the educated, liberal, ambitious social classes. We have a tendency to argue that teen pregnancy is bad, that it hampers girl's economic, educational, and social development. We focus on birth control and delaying pregnancy. But the thing is, it isn't having a child that screws girls over: it's the stigma against having kids, the total lack of social support, the "you made your bed, now lie in it" attitude that we have as a society.

Just proof again that while their are bitter disagreements, there are issues where pro-life and pro-choice can and should come together.

Bush's Darfur Agenda

Troubling accusations over at Tapped regarding Bush's Darfur policy. They quote a piece at Save Darfur:

The Darfur Peace and Accountability Act (H.R. 3127/S. 1462) continues to slowly move forward as Congress enters the home stretch of the legislative year prior to an as yet undetermined adjournment date in late November or early December. Senate Foreign Relations Chairman Richard Lugar has favorably reported the bill out of committee, and Senate Majority Leader Bill Frist has indicated his support for bringing the bill to the floor as soon as an anonymous hold is lifted. [Emphasis added]

The emphasized part is the key. Tapped continues:

Last April the White House sent a letter to House Appropriations Chairman Jerry Lewis asking him to quash the Darfur Accountability Act (which was then attached to the Iraq supplemental) by the time it came out of the conference committee. I got ahold of that letter, as did Nicholas Kristof, and we held it up as yet another example of the administration's lily-livered response to genocide. It seems that the White House wanted to avoid repeating that embarrassment this time around so they gave their favorite hack a call and told that senator not to let the legislation even make it to conference committee. Disgusting.

If this is true--that the anonymous hold on this critical legislation was put up at the behest of the Bush administration, then they've lost any credibility they once enjoyed on opposition to genocide. It's one thing to decide that Darfur is a dead issue and not expend political capital to push a skeptical congress to act. It's quite another to deliberately hold up progress and put the administration expressly on the side of the murderers. Unfortunately, it seems like the Bush administration has come to a decision: pro-murder, anti-intervention.

Reclaiming Islam

In the wake of the horrific Amman terrorist bombings, John Hinderaker of Powerline had the following observation:

The fathers of both bride and groom, at the far left and right, were murdered. The bride and groom were both wounded, but, thankfully, survived. The groom, Ashraf Mohamed al-Akhras, said from his hospital bed:

I lost my father and my father-in-law and I saw many other dead. This is a horrible crime. The world has to know this has nothing to do with Islam.

I understand his sentiment, but the fact is that this mass murder, like all the others committed by al Qaeda and like-minded groups, has everything to do with Islam. It is up to sane Muslims everywhere to reclaim their religion from the sadists and fanatics.

Reading this sort of thing, I'm always curious about what would constitute "reclaim[ing] their religion". What would persuade the rightie boys at Powerline that "sane Muslims" do not condone this sort of behavior?

Cue Daniel Drezner. He collects a series of articles regarding the aftermath of the bombings--and it looks like the "mainstream" Muslims are coming out pretty hard against terror. He links to this Washington Post editorial characterizing what he calls "a long string of reversals" for al-Qaeda:

Even as it has bloodied Iraq -- where two more suicide bombings were recorded yesterday -- support for violence and Islamic extremism has been declining elsewhere in the region. Two movements that pioneered suicide bombings, Hezbollah in Lebanon and Hamas in the Palestinian territories, have at least temporarily set aside violence and are focused on participating in democratic politics. An al Qaeda branch in Saudi Arabia has found little support, and most of its leaders have been captured or killed. In Lebanon this year, a popular revolution embraced a democratic agenda, and a grass-roots democratic movement has appeared in Egypt. The government most under siege in the region is not the Jordanian monarchy but the Baathist dictatorship of Syria, which has been a tactical ally of the Zarqawi network and the Iraqi insurgency.

Meanwhile, according to the Chicago Tribune:

The offshoot of Al Qaeda spearheading the anti-U.S. insurgency in Iraq sought to defend its actions Thursday in the face of furious Arab protests in the streets of Jordan's capital over the hotel attacks that killed three suicide bombers and their 56 victims.

After first claiming responsibility for the Wednesday bombings of three hotels popular with Israelis and Westerners, Al Qaeda in Iraq later issued a second Internet statement that appeared to acknowledge that its tactics may have backfired and undermined any support the group enjoyed among the Jordanian population.
[...]
But most of those killed were Jordanians or other Arabs, and many of the thousands of residents who marched in protest Thursday spoke of an assault on their sense of security in this tightly run city, which had been spared the carnage of suicide bombings elsewhere in the Middle East and was considered an oasis of stability.

I'm not sure what Powerline wants besides personal statements of outrage, massive anti-terrorist protests, and a widespread fall in general support for Islamic extremism in the Muslim world.

The problem right now isn't convincing the Muslim rank-and-file that terrorism is immoral and wrong. That's a battle we've won. Our problem at the moment is two-fold. First, that Islamic extremist groups may have reached a critical mass already where they don't need mainstream support. After some period of time, Northern Ireland Catholics didn't need mainstream Catholic support to continue its reign of terror (nor did NI Protestants need mainline Protestant support for same). To indict the religion as a whole at that point would be asinine and unfair--though it is still a conflict fueled by religion, the moderates really can't be held responsible to "take back the faith" at some point.

Second, while Muslims are repudiating terrorism, that doesn't mean they're ready to trust the West. Right now, the Islamic view is that they are between the frying pan and the fire. They don't like the extremists, and they don't like us. That's an image gap problem--we have the burden to show to the Islamic world that our society is a model they should follow (or at least fuse with their own). Right now, we're just saying "reject terror, reject terror", and that's not enough. It's like the Republicans always say about Democrats: they can't just say that Republicans are awful; they must also offer concrete plans and proposals of their own. Well, we need to do the same for the Muslim world--not just say "boo terror," but also provide clear-cut benefits for choosing to join the global community and adopt liberal and progressive ideals. That's a project we're failing miserably at currently, and things like torture scandals and stripping accused terrorists of due process rights is not helping our case.

Comparative Race Theory

There is, I think, a severe perception/reality gap between how much people around the world "consider" race and how much we think they do. For example, I just wrote an article urging Americans to take a more critical view of race, and abandon color-blindness. Basically, your classic leftist multi-culturalism argument.

Lots of conservatives blast this theory as being "European," and gleefully point to the Paris riots as proof of its failure. Yet this seems to be an inaccurate description of how the Europeans view their paradigm:

France's Constitution guarantees equality to all, but that has long been interpreted to mean that ethnic or religious differences are not the purview of the state. The result is that no one looks at such differences to track growing inequalities and so discrimination is easy to hide.

"People have it in their head that surveying by race or religion is bad, it's dirty, it's something reserved for Americans and that we shouldn't do it here," said Yazid Sabeg, the only prominent Frenchman of Arab descent at the head of a publicly listed French company. "But without statistics to look at, how can we measure the problem?"

So wait...the French are more color-blind than we are? This leads Ann Althouse to ask the following:

Should France's policy of not taking account of race, ethnicity, and religion, in light of the recent rioting, make us look more favorably on our own attention to such things?

So Prof. Althouse thinks that we are indeed color-conscious, and that France proves that this is superior to the color-blind system. But here's Imani Perry arguing that it took American news networks two weeks to even mention that the rioting was done by mostly minority protestors. So maybe we aren't so color-conscious after all? What is going on?

So basically, here's what we have:

The Republicans think we are and need to be absolutely color-blind, and point to French riots as proof that our color-blindness is a superior system.

The French think they are and need to be absolutely color-blind, and point to American race-consciousness as immoral and "dirty."

The center-right Althousians think that we are color-conscious, and that the French riots show that our color-conscious method is superior.

The leftist folks like me think that both the French and Americans are not color-conscious enough, and think both state's systems are indicted.

Who's right? And more importantly, why is there such a perceptual gap in terms of how our and their systems actually "are"? Are we color-blind or not? Are the French multi-culturalists or not?

There is something interesting afoot here...

Well I am a Twitch Concerned

Andrew Sullivan points out this lovely example of the Senate Majority Leader's values:

Frist told reporters Thursday that while he believed illegal activity should not take place at detention centers, he believes the leak itself poses a greater threat to national security and is "not concerned about what goes on" behind the prison walls.

Well I am a bit concerned. Because I think that abandoning core American values is not something we should turn away from. As Sullivan puts it elsewhere:

We can win this war without destroying the very civilization we are fighting for. We can win without losing our soul. Any other kind of victory is a euphemism for defeat.

That's why I care. Because we aren't winning the war on terror, a war against global extremism, if we ourselves are terrorizing, if we become the extremists. Torture is an extreme position. It should and must be beyond the pale.

I think that Chicago Law Professor Geoffrey Stone nails it:

Perhaps it's just me... but do you get the sense that the United States is in the process of destroying all the good will and moral leadership its has earned in the international community over the past sixty-five years? At the outset of the war crimes trials at Nuremberg, Justice Robert Jackson, the chief U.S. prosecutor, made an eloquent and remarkable statement: "That four great nations, flushed with victory and stung with injury, stay the hands of vengeance and voluntarily submit their captive enemies to the judgment of law is one of the most significant tributes that Power has ever paid to Reason." Think how far we have shrunk from that aspiration. With secret detention camps, blatant violations of international human rights, administration demands for the authority to use torture, efforts to deny detainees even the most elementary rights of due process and fair proceedings, our government has sunk to a level of immorality we never even contemplated in the Civil War, World War I, or World War II. Don't we, as lawyers, have a professional and ethical obligation to say something? Don't we have a responsibility to demand that our government respect our most fundamental values of procedural fairness, rule of law, and human decency. Is it acceptable for us to live silently through a period in which our government disregards Reason in order to pay tribute to Power? Perhaps it's just me....

We should be clear--even Republicans are starting to come around on this issue. Opposing torture is not something partisan. It is not a political question, but an American value that must be upheld at all costs.

Traffic-Jammed.

"Pat Robertson is Twisted" Watch, Part 263

Jason Zengerle gives us the latest in the good reverend's "you're either with God or against Him" rhetoric:

"I'd like to say to the good citizens of Dover, if there is a disaster in your area, don't turn to God, you just rejected Him from your city. And don't wonder why He hasn't helped you when problems begin, if they begin. I'm not saying they will, but if they do, just remember, you just voted God out of your city. And if that's the case, don't ask for His help because he might not be there."

Dover, as you may know, just voted out its pro-creationism school board members and replaced them with a pro-science slate. The penalty for this egregious sin is apparently abandonment by God to the cruel twists of fate.

Wow.

Training The Idiot Generation

I'm a debater. That really is the core facet of my identity. I like arguing, but more than that, I like arguing intelligently. In fact, that's why I joined debate in the first place--as a place of refuge from our superficial society, a place where substance mattered. Thus, like any self-respecting debater, nothing is more aggravating than judges who ignore issues and arguments and instead vote based off "style" or "presentation." I want to be judged based on whether I made a good argument or a bad one--whether I won the debate--not whether or not my argument was delivered at the right tempo or whether my gestures were aesthetically pleasing.

I was at a local college debate tournament yesterday (that's why I had no blog posts--did you miss me?). My partner and I did alright--made the Bronze medal round. But the ballots were just a paradigmatic display of atrocious, style-based judging. I say that for both rounds we won and the rounds we lost (one which we lost, and one which we "lost", if you get my drift). Judges such as this destroy the integrity of debate as an institution designed to foster critical thinking. If all that matters who who uses the best metaphors, then there is no incentive for debaters to make intelligent arguments. And of course, these same factors play out in society writ-large--if voters only care about style, then politicians will continue to campaign on shallow, superficial platforms. You get what you vote for.

Now, in a narrow sense, I'm disillusioned enough that I'd be content if these rhetoric-whores would just leave the judging pool and let me debate in peace. I've long since given up hope that there will be any wide-spread shift in our society's pro-rhetoric stance. But I do actually believe that the primacy of such concepts like "rhetoric" and "persuasion" are wrong and bad for society at large. Specifically, I'm going to make the claim that by encouraging our students to be "rhetorical" rather than substantive, we cause significant, qualitative, and observable harms upon our society and democracy. So when our educational institutions teach students to be rhetorically persuasive, rather than make well-warranted and supported arguments (or at the very least say that the former takes precedence over the latter), they are doing our nation a great disservice and should be loudly opposed. Instead, we should seek to undermine rhetoric where-ever possible, not by opposing someone just because they speak pretty, but by ignoring rhetoric and making "intelligence-based" decisions--doling out social rewards and punishments based on merit and argumentative quality.

My first point on why rhetoric is bad is that it gives an incentive to be stupid. If we privilege rhetoric over substance, then rational actors will behave accordingly. Now, presumably there will be times that substantive appeal and persuasiveness will be one and the same. But where there is a conflict, a rhetoric-first position demands that we dumb ourselves down so as to remain oratorically pleasing. This is why I gave the post this title. By saying that rhetoric is a bona fide positive skill, we are quite literally giving students an incentive to be idiots. We are telling them that rewards and punishments will be given out not on the basis of merit, but presentation. And thus, when a student is faced with an either/or proposition, where she can either make a difficult, counter-intuitive, or otherwise unpersuasive but smart argument, or a shallow, superficial, but quite persuasive dumb argument, she'll rationally choose the latter. This may be true as a descriptive state of affairs (more on this later), but it is inarguable that it is normatively wrong and harmful to society.

The second point is that rhetoric tends to support arguments that either are merely poorly crafted, or are flat-out evil. The first argument I made just noted that intelligence will take a back seat to rhetoric when the two come into conflict. In theory, that's content-neutral--it may be just as likely that rhetoric will support good arguments as bad ones. This point, however, argues that the "persuasive" argument is more often than not the worse argument. There are two reasons for this. The first is that persuasion appeals to very deep-seated (primitive, you might say) emotional responses, rather than sophisticated intellectual ones. At least since Hobbes, and probably before, we've known that humankind, at its most basic state, is not a friendly creature. Our base emotions tend not to be those supporting equal personhood, empathy, unity, or trust. They tend to be selfishness, mistrust, anger, violence, prejudice, and most of all, fear. A persuasive argument that seeks to appeal to the former set of emotions and values will thus operate at a severe disadvantage. It has to both appeal at a visceral level, and yet avoid appealing at the most visceral level. This skirting of the subconscious surface is a very difficult maneuver. And even if done effectively, presumably an advocate that skilled could make an even more appealing argument based off the latter emotions, because they're more deeply entrenched and thus, things being equal, will take precedence. The second reason is that we live in a complex world. Good arguments thus will also tend to be complex. But complexity isn't persuasive to human beings. On a cognitive level, we like simple, cut-and-dry explanations, that establish easy to understand chains of causations and neatly divide the world into right and wrong. An argument that operates in that paradigm is far more likely to be persuasive, because it is stereotype-reinforcing. We want the world to be this way, so we are more likely to find persuasive arguments that indeed, tell us the world is this way. And because this is a deeply-ingrained mechanism of viewing the world, it will only rarely come to the surface and thus is quite difficult to challenge. Meanwhile, a "good" argument, which deals with the real complexities that color our universe, will be ignored or pushed aside. Remember Kerry and his "nuances"? This is precisely what I'm talking about. Now Kerry may have had a good foreign policy position, or he may have had a bad one. But he wasn't attacked on the ground of his position's merit, he was attacked specifically on the grounds that it was "nuanced." Making a complex argument was thus presented as in itself wrong--the substance of the argument was quite literally irrelevant to the attack. Nothing could demonstrate more clearly the way that our patterns of thinking make the type of arguments most likely to be correct (a good argument is likely to be a nuanced one, regardless of whether Kerry's particular nuanced argument was a good one) into political no-nos in today's world.

The implications of this are tremendous, for it means that by teaching that rhetoric is good we are paving the way for demagoguery. Of course, there have been talented rhetoricians who have also made significant substantive arguments. Rev. Martin Luther King Jr. is perhaps the best historical example, Sen. Barack Obama fits this paradigm today. However, the scales are significantly weighted against them. Today, the people who are most likely to be seen as "persuasive," or who have a wide social following, are not our public intellectuals or leading philosophical lights. It isn't John Mearshimer or Martha Nussbaum or Mary Ann Glendon that are trotted out in public debates as our great rhetorical models. It is the folks on talk radio and "Cross-fire" style shows that command our loyalty. That we are persuaded by Rush Limbaugh and Michael Moore and Sean Hannity and Ann Coulter and George Galloway should represent a serious indictment of the very concept of "persuasion." Historically, Hitler's greatest asset was his voice; he was by all accounts a stunning orator. Uncritically accepting rhetoric as a "good" weakens our intellectual defenses against persuasive but morally bankrupt appeals.

The third issue I'd like to address is the idea that rhetoric is a useful skill to have in today's world, and thus should be taught. Obviously, being a good orator is a skill that can be used to great personal advantage (one could say the same about being a good assassin, or being good at backroom political knife-fights). The question then, is whether or not a society in which rhetoric is of such importance is one we wish to accept uncritically, or one which we should challenge and overturn. I very strongly believe the latter, and thus ask why is it socially acceptable to say an argument is "better" because it is "better presented" or "more persuasive"? While they of course exist on different moral planes, there are distressing parallels between making decisions based on rhetorical appeal and making them based on race, sex, religion, or other "irrelevant" characteristics (when, of course, such characteristics are indeed irrelevant). They manifest themselves in different ways, but all share the defining characteristic of subordinating merit and rationality to prejudice and subjectivity. The fact that something is persuasive is no more of an indicator that it is right than the fact that something is White is such an indicator. When our school systems teach rhetoric as something qualitatively beneficial, rather than (at best) a necessary evil, they suppress whatever nascent challenges to the system that may otherwise arise. We see that schools put the full force of their authority down to define writing "well" as writing "persuasively," teach students to analyze and evaluate literary (and even political) works via the paradigm of "literary and persuasive devices," and otherwise operate wholly and uncritically within a paradigm that encourages the development of good oration at the expense of well-crafted argumentation.

I'll concede that perhaps the schools should teach rhetoric as a "tool in the toolbox" because our society still (to its shame) operates within a rhetoric-first paradigm, and people live in the here, not in a rhetoric-subordinated utopia. But I'd say that insofar as its possible, the schools should within its own bounds and assignments, try to shift that standard away from superficial persuasiveness and towards critical thinking and deep analysis (especially because schools are, at least nominally, the sole remaining fortresses of intellectualism). Where we can muster a foothold for intelligence, we should--and who knows? Maybe if we start educating students in an intelligence-first paradigm, then that might just have impacts that change the real world. But by choosing to affirm rather than challenge the hegemony of rhetoric, schools are engaging in material cooperation with a dangerous social force that we are obliged to oppose.

I write this piece in considerable frustration, because I have little faith in either my broad goal of anti-rhetorical social change or my narrow goal of preserving debate as a refuge for intellectualism coming true. Simply put, the deck is stacked against us and its a battle that we are losing. However, that doesn't mean we should stop fighting it. As debaters, we should work to explain to other members of our community (especially volunteer lay-judges) the value of intellectualism over rhetoric. As educators, we should teach our students to be critical thinkers and reject curriculum proposals which reify the stupefying pro-rhetoric mindset. And as citizens, we should demand a higher level of discourse from our elected-officials, educate ourselves about the ideas coming out of our universities and think-tanks, and pledge to vote off issues, not hand-gestures. If we all just work a little harder, I think we can make a difference.

Cert. In Hamdan

In what Orin Kerr termed a "surprising move," the U.S. Supreme Court has granted cert. in Hamdam v. Rumsfeld, to determine the legality of the Military Tribunals commissioned to try suspected terrorists. The D.C. Court of Appeals upheld the constitutionality of the panels. Kerr says that if he had to guess, he thinks the Court will reverse (that's a good thing). Now-Chief Justice Roberts was on the D.C. Circuit Panel and thus has indicated he'll recuse himself, which may counter-intuitively be a bad thing.

SCOTUS Blog gives us the issues that the Court will resolve in official legalese:

"1. Whether the military commission established by the President to try petitioner and others similarly situated for alleged war crimes in the 'war on terror' is duly authorized under Congress's Authorization for the Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224; the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President?"

"2. Whether petitioner and others similarly situated can obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneva Convention in an action for a writ of habeas corpus challenging the legality of their detention by the Executive branch?"

Though the latter (Geneva Convention) question is definitely the sexier one, Steve Vladeck hints that it may be the former that ultimately sinks the Bush administration. Vladeck interprets the two main precedents, Ex Parte Milligan and Ex Parte Quirin as permitting military tribunals if and only if there is congressional authorization. The two statutory roots cited by the Bush administration above are the Authorization for the Use of Military Force (AUMF), and Article 21 of the Uniform Code of Military Justice, 10 U.S.C. 821 (UCMJ). The former, as Vladeck points out, does not ever mention military tribunals or detainees at any point. The latter reads as follows:

The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals. (emphasis added)

As I read this section (and I think Vladeck agrees), it means only that this statute does not supersede any other statute which would give authorization to military commissions, tribunals et al. It does not affirmatively establish those courts' jurisdiction itself. If this is the case, then the Bush administration can only justify the tribunals on the "inherent power of the presidency," which would essentially mean overruling Milligan and drastically expanding the power of the Presidency way beyond anything even considered in the past century.

One final note: While we like to cast this issue as a terrorist asserting rights in US court, I'd remind everybody that it is that very issue which is under dispute. As I wrote when the matter was before the D.C. Circuit, Hamdam disputes that he is a member of al-Qaeda, arguing that he was but a menial laborer with no ideological or structural ties to the organization writ large. He may, of course, be lying--folks accused of illegal activity have been known to do that. But that is all the more reason why we need a fair trial to determine that very relevant fact. It is repugnant to the basic principles of justice to assume his guilt prior to adjudication.

Stop Queering The Spin!

Headline, CNN.com, 11/07/05: "Bush: 'We Do Not Torture'"

"Our country is at war and our government has the obligation to protect the American people," Bush said. "Any activity we conduct is within the law. We do not torture."

Headline, CNN.com, 11/07/05: "Five U.S. Soldiers Charged With Detainee Abuse"

Five U.S. soldiers from the 75th Ranger Regiment have been accused of beating detainees in Iraq, the U.S. military said Monday.

The allegations stem from an incident on September 7 in which three detainees were allegedly punched and kicked by the soldiers as they were awaiting movement to a detention facility," according to a news release from the U.S. military.

The charges were filed November 5 after an investigation into the alleged abuse, the statement said.

The announcement came on a day when President Bush told reporters that the United States does not condone torture.

The Washington Post has more--including an inexplicable jab at Democrats for being insufficiently pro-free trade. Bush complained that in past sessions, there were Democrats willing to work with him. Well, gosh, where could they have all gone? Maybe they're missing because you aggressively campaigned for their electoral defeat in 2002 and 2004. Boo-frickety-hoo.

But I digress. "We do not torture" is by all accounts simply a lie. It's not like the second CNN article is some sort of ground-shaking revelation. We--by which I mean both the American government and the American people--have known about this for a long time. Bush's claims that we do not torture are disingenuous--and are belied by his threat to veto a bill prohibiting torture. If we have done nothing wrong, why does he fear this bill so much?

Andrew Sullivan is far less charitable than I am. Fareed Zakaria also takes the Bushies to task:

But today, what angers friends of America abroad is not that abuses like those at Abu Ghraib happened. Some lapses are probably an inevitable consequence of war, terrorism and insurgencies. What angers them is that no one beyond a few "little people" have been punished, the system has not been overhauled, and even now, after all that has happened, the White House is spending time, effort and precious political capital in a strange, stubborn and surely futile quest to preserve the option to torture.

Torture is not an issue that's going away. If anything, the problem is getting worse as the Bush administration doggedly defends it's right to crucify detainees (I'm not making this up) (all the while insisting that nothing ever happens). Is it really too much to ask that we take some personal responsibility on this one issue? And while my post title may be sarcastic, in actually I think this is precisely what needs to be focused on. The media needs to start seeing through the spin, seeing through the lies, and send a message to the Bush administration that torture will not be tolerated--in any form, at any time, anywhere.

Kevin Drum closes out:

It's not going to be easy for the United States to regain its credibility as a country dedicated to combating barbarism and supporting human rights. That's all the more reason we should start now.

Amen.

Only Game In Town

Judges are dropping like flies in the DeLay case. After the original judge, Bob Perkins, was removed due to his contributions to liberal groups, now the administrative judge in charge of selecting a new judge has withdrawn at the request of Ronnie Earle. The Texas Supreme Court Chief Justice (a Republican) will select a new judge.

Oh, the name of the administrative judge now removed? B.B. Schraub. There's no relation, but my father did at one point contact him by mail and try to establish any connections. Seemed like a nice guy. Still, I like being the most prominent Schraub on the net, and am glad that a potential threat to that position has been pushed aside.

Race, Education, and Society

I got some interesting commentary on my Race LASIK article. To recap briefly, the argument is that our society isn't color-blind, that racism still exists, and that as a result efforts to remedy racial discrimination and disparities need to be color-conscious. My friend Mark Olsen seems a bit confused about what I'm advocating here though. He just says that governmental legislation won't fix the problem of racism. That may or may not be true--I really don't talk about governmental intervention at all. Certainly, I suspect that I would like government to take a more active role in this problem than he is (if for no other reason than that the free market is manifestly a failure in dealing with this issue), but the post itself is studiously neutral on specific remedy plans.

Mark also points me to a post by LaShawn Barber to buttress his point about the "structural" and "social" aspects of the question. Again, I'm a bit perplexed as to how this undermines what I say about race, as my post explicitly argues that racial disparities are the result of social forces. However, I think Barber is really far off the mark in her particular evaluations. Here's how she starts:

A few years ago, NAACP president Kweisi Mfume insisted that there should be more blacks on TV. Too few colored folks on the idiot box was hurting black kids' self-esteem.

Reasonable people, myself included, thought the man was out of his mind. Children of all colors should be watching less or no TV, not more, especially when a persisting achievement gap leaves black kids, on average, four years behind their white peers by the time they graduate from high school.

This is a gross distortion of Mr. Mfume's position. Nobody wants children watching more TV. Certainly, Mr. Mfume's request for more black persons on TV (aside from being presented as criminals, where they have a near-monopoly) doesn't make any judgment on whether children should see more TV or less. Furthermore, the way blacks are presented on TV has impacts that stretch well beyond self-esteem. I've previously cited UCLA Law Professor Jerry Kang's article "Trojan Horses of Race" on this topic. What he shows is that the way people (specifically, minorities) are presented in the mass media has empirical and statistically significant effects on how black people are viewed in society at large. He titles the article "Trojan Horses of Race" because he claims that the subtle priming effect of television presentations acts like the internet virus of the same time. It smuggles in negative effects that embed themselves deep within our psyches, without us knowing about it and under the auspices of innocuous material. Again, this isn't mere speculation on Professor Kang's part, but backed up by a literal mountain of empirical data that I have yet to see effectively countered. So unless Ms. Barber can tell us how to get America at large to stop watching TV, Mr. Mfume's point still holds.

Ms. Barber also says that black leaders should advocate more vociferously about issues like education. I've noted before that education advocacy has consistently been at the top of the NAACP's agenda. If we don't hear about it, perhaps that's because the right-wing media would rather present those pressing for racial progress as a bunch of whiny leftist radicals who hate white people, than actually engage with black leaders who make reasonable public policy proposals which might (gasp) have to be enacted. Regardless, something is getting lost in translation here, because black leaders are aggressive on education and yet conservative critics keep on saying they're not.

Barber continues with the specific problems she sees as barriers to black youth achievement:

Much has been and will continue to be written about why black children lag behind their peers academically. Is the "acting white" syndrome to blame? Perhaps it's family structure, or rather the lack of family structure. While too many people prefer to blame government for their ills, most of our troubles begin at home.

To the former "act white" claim, I point you over to Darren Hutchinson:

[C]onservatives love to point out the "acting white" stereotype that some blacks who achieve academic success have encountered. Does this mean that blacks view academic success as nonblack -- or is it a racialized way of calling smart kids "nerds" -- which seems to evaporate any distinction between blacks and other racial groups on this issue. The smart as "geek" stereotype seems to transcend racial boundaries, even as it manifests itself in racial terms (e.g., "acting white").

At a very basic level, youth in any society of any race don't like the smart kids (believe me, I know). The difference is that a white kid who goofs of, doesn't pay attention in school, and makes fun of all the "nerds" goes to the local state university (sob). The black kid who does all that ends up going to prison. Clearly, systematic youthful discrimination against smart people isn't enough to stop success (either by the discriminaters or the discriminated), so this explanation falls out.

To the latter "family structure" claim, I'll concede it is relevant (though not exclusive), but let's not get too far ahead of ourselves. Yes, many urban black families have no father figure. But we can't make that point without asking another question: where did all the father figures go? They didn't just disappear. Answer: they're disproportionately in jail because our criminal justice system seems to target young black men like heat-seeking missiles. Ms. Barber would come back by saying that this just shows black community dysfunction, but that doesn't explain all of it. Our society (again, empirically) sanctions crimes associated with blacks more than it does those associated with whites (even though--on both a per capita and gross level, "white" crimes are more damaging to society economically and body count-wise. See Richard Delgado, The Rodrigo Chronicles, 272-74). It is more likely to arrest black law-breakers than white law-breakers, more likely to prosecute black arrestees than white arrestees, more likely to convict black defendants than white defendants, and will punish black defendants more harshly than white defendants. This is controlling for variables such as repeat offenses, as well as the issue of proportion. To be frank, our society stacks the deck against young black males. Read this Reihan Salam article and tell me differently. To excerpt briefly:

I'm sympathetic to those who argue that we need to ban marijuana as a public health strategy. Otherwise, every shiftless American youth will spark up while watching the Cartoon Network in the wee hours, sending U.S. productivity spiraling down to levels not seen since the Bronze Age. I get the picture. Unfortunately, banning marijuana, and squandering our human resources by incarcerating 30 percent of black men under 40, is a "luxury" we can't afford.

He's right, and one cannot address the problems Ms. Barber herself claims are critical without also addressing this issue as well. Summary: We can't complain about the absence of black men from black families if we're throwing them all in prison.

Ms. Barber "wagers" that the majority of under-performing black students come from poor "welfare-dependent" families (whom she further asserts "definitionally" aren't hard-working. I'll admit some may not be--but definitionally seems an utterly unwarranted slap at the many Americans who try but can't break out of poverty because our system doesn't give them the means). Based on my reading of the literature, this isn't true--black students underperform white students even controlling for economic class. She should be a bit less certain of herself, perhaps she'd learn something.

In any event, the point of my previous article still stands. Racism exists, and more than that, is alive and well. It can't be ignored, minimized, or denied. It has to be addressed full on. Nobody, not Mark, not Ms. Barber, not any of the conservative bloggers I read, none of them has given any substantive refutation of the mountain of empirical data that exists and I've provided to warrant this point. While certainly there are factors in the black community that could be improved (like in any community), any response to racial disparities in America that ignores the continued effect of racism is blind and doomed to failure.

Alito, Conservatism, and the Judiciary

A bunch of good stuff floating around the blogosphere today regarding all of the above topics in all sorts of interesting combinations. Starting with Mark Olsen, who wants a "thoughtful liberal" opposition to Alito. To be honest, I'm not the ideal fit for this job, because I take the apparently unique position of not wanting to decide on Alito before actually witnessing the hearings. You know, actually hear what he has to say? However, I will say that there at least conceivable grounds for opposing Alito--at this early stage, who knows if they'll be borne out, but that at least have to be examined. Anyway, Mark thinks that the torrent of liberal opposition is purely ideological, and puts forth the following:

-Do they imagine that they might never see a future opportunity in which a party they support holds the Presidency but perhaps not a plurality in the Senate? Would they then encourage the opposition party to only approve of nominees which passes the oppositions ideological inspection?

-What perchance does "advise and consent" mean to them anyhow? Hamilton in Federalist #76 argues against politicizing the nomination process. If they cited that and the reasons why he's wrong that would be icing on the cake.

I've already made my response to the latter (Fed. 76) claim. To reprise it briefly, Hamilton came at the issue as a noted democracy-skeptic and a proponent of extreme executive power. This view may have its merits, but it really isn't our system, which is premised off of free-wheeling debate and deliberation. I'd rather the debate be more rational than it is, but I'm not willing to eliminate democratic checks just because the Senate isn't as cordial as we might like. For the full argument, see the link above.

The former position is interesting. My preference on the matter would be that President's nominate more moderate justices (especially for judges vacating swing seats). If that's the end result of this endeavor, then I'll be delighted--and to be honest, I think it is a plausible outcome. If President's learn that the minority party will fight tooth and nail against extreme judges, then maybe they'll stop nominating them. On the other hand, maybe it will cause a nuclear war between the parties.

I would further claim that saying the opposition is "ideological" is far too simplistic. Judges, for the most part, have judicial philosophies. Assuming we accept that there are several valid interpretative philosophies, the choice of any one of these philosophies is ideological. It's ideological for presidents to pick them on that ground, and it's ideological for senators to oppose them on that ground. We don't like to admit it, but the Supreme Court is an ideological institution--this is an inescapable trait of any judgmental body. If ideology is unavoidable, then balance becomes key so the courts don't become overweighted toward one side of the political spectrum. Again, as for me, I'd like a balance of forces. Say, a Crit, an Originalist, an "Active Liberty"-type, a Textualist, a Minimalist, a Democrat (not in terms of party, but in terms of deferring to democratic institutions), and three Pragmatists. But that not being the case, it is fair I think to decide that certain judges apply their interpretative philosophies in too extreme a manner. And the question is, does Alito fit into that category?

That brings me to interesting link #2. Publius of Legal Fiction articulates three ways a judge can be "too conservative."

In the legal context, I believe that a nominee can be "too conservative" in at least three different senses: (1) she subscribes to the king-in-wartime theory; (2) she's a bible thumper; or (3) she's hostile to the New Deal (which includes opposition to the administrative state and federal health/environmental/discrimination statutes). What's interesting is that these positions are, logically speaking, in tension with each other. For instance, #1 and #3 don't fit that well under the same conceptual tent. And #2 doesn't necessarily have a logical relation with either.

As far as which one is the worst, that's a tough call. I have a more visceral reaction to #2, but those conservatives are probably the least harmful given the politics of America (which are still, relatively speaking, secular). I think that #3 is the worst from a consequentialist point of view. While allowing or removing "under God" in a classroom doesn't really matter in the grand scheme of things, striking down the EPA or Social Security does. The #3 conservatives have the most potential to really screw up the country - and the global economy for that matter. But of them all, #1 is the most morally abhorrent, even if the consequences are more limited. Despite Herr Yoo's clever theories, the king-in-wartime theory contradicts the entire history and structure of Western law - not to mention every major religion as well. In fact, the history of Western law and legal thought has been rooted in the effort to restrain the executive peacefully.

So, when you hear that someone is "too conservative," the key question is determining what year that person wants to send America back to. For the #3 conservatives, it's 1932. For the #2 conservatives, it's pre-Enlightenment. For the #1 conservatives, it's pre-Magna Carta. So take your pick - 1932, 1600, or 1214.

I think that "building a bridge back to the 13th century" would qualify as a legitimate reason to oppose a nominee. Again, this isn't to say that Alito is a #1 conservative. But if he was, I think that legitimate opposition could be more than "ideological."

Moving on, over at VC the originalists are murmuring that Antonin Scalia has betrayed originalism. David Bernstein argues specifically that:

I expect that Scalia's problem is that to be a true originalist, many New Deal precedents would have to go out the window, and this is neither politically, nor, in many instances, practically feasible...But to be a sincere originalist, one has to grapple with how to resolve this quandry, not simply refuse to apply originalist reasoning out of "faintheartedness."

...[B]egging off from the tough issues...just won't do. Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That's culture war politics, not originalism...

Kevin Drum argues that this may be accurate but is effectively meaningless:

This ["originalism" as cover for the Culture War] strikes me as a remarkably honest assessment of what originalism is really about for most of its supporters, but unfortunately Bernstein doesn't follow it up. Instead, he talks about whether or not genuine originalists should overturn New Deal opinions from the 40s, which strikes me as sort of like arguing over whether or not Superman could kick Green Lantern's butt: harmless, to be sure, but hardly part of the real world. If Federalist Society members are convinced that even Antonin Scalia is too liberal for their taste, and what's really needed is someone who will vote to repeal the Social Security Act, they're just fantasizing, not discussing real-life issues. What's the point?

One could argue then that Scalia is just a bad judge--brilliant, to be sure, but not sufficiently wedded to his proclaimed interpretive theory to keep his politics out of it. Judges having ideologies, as I noted above, is unavoidable. However, judges as politically partisan is a legitimate redline, I think, and this is another thing that has to be questioned with Alito. Or to be more fundamental, it may well be that Alito just isn't a very good judge (not to be redundant, but again I'm not making this claim. I'm just noting that this is a possibility that has to be examined).

For example, Eric Muller (who used to work with Alito when he was a New Jersey Prosecutor) says that Alito may have been too quick to disregard precedent while on the 3rd circuit. And while Republicans defend Alito's controversial Casey paternal notification laws by saying that it passes no judgment on the law as policy, his opinion is also suspect as a matter of law. Over at Amptoons, it is noted that the common phrase "spousal notification" is a misnomer, as without gay marriage it is always the wife notifying the husband. Seeing as this is the case, the question is whether or not this sexed burden is equally imposed on men in analogous situations. Garance Franke-Ruta provides excellent evidence showing that it isn't (credit to Kevin Drum for putting the pieces together):

The physical intimacy of marriage and other sexual relationships creates a fair number of situations in which each partner has a decided emotional and/or physical stake in what's going on with the other, and in which it could be argued (though not necessarily affirmed from a constitutional perspective) that the state has a legitimate interest to intervene on behalf of one partner or the other. The most obvious example in recent decades is the case of HIV infection.

And so it is worth noting that at the same time the state of Pennsylvania was arguing that the state had a legitimate interest in compelling a woman to inform her husband before she obtained an abortion, the state declined to make the conceptually similar demand that an HIV-infected man inform his wife that he carried a potentially deadly infectious disease that could be sexually transmitted.

Seeing as this is the case, the argument that these laws are illegitimate infringements on a woman's liberty becomes much stronger.

Finally, I'd just like to point to the just-released 9th Circuit ruling in Fields v. Palmdale School District. I originally was pointed to the opinion by an aghast email from one of James Dobson's flacks. First of all, it's a Stephen Reinhardt opinion. For those of you who don't know, Reinhardt may be the most reviled appellate court judge by the right today (he wrote the Pledge case opinion). And I can't help but think that the throwaway reference to Stephen Breyer's new book, "Active Liberty," was consciously (or at least knowingly) designed to annoy conservatives. But what was interesting about the case was that not only did it give lie to, well, pretty much everything the right ever has said about its judicial principles, but that Judge Reinhardt seemed to deliberately set out to expose their hypocrisy in the text of his ruling. I should also note that I was ambivalent about the proper resolution of this case until I read the opinion, it's very persuasive.

The bare-bones facts were that the school district was doing a survey meant to expose possible early-childhood trauma in its students. So it sent a consent form for parent's to sign, and then surveyed their 1st, 3rd, and 5th graders on a variety of questions, some which included sexual topics. When the parent's found out, they sued under (of all things for supposed conservatives) the right to privacy, which in this case included a supposed right to control what their children hear about sex.

The Court rather easily dismissed the claim. It pointed out that the school district had a valid reason to conduct the study, so it satisfied a rational basis test. Furthermore, it noted that no court in any jurisdiction had upheld a parental veto over the school curriculum. This included sex education classes. As Judge Reinhardt pointed out, the government cannot stop parent's from sending their children to private schools more aligned with their value system. But, once they've made the choice to enroll their children in public schools, they can't then claim an imposition in the specific topics taught inside the classroom. Their complaints, if valid, should be addressed to the school board, a democratically elected body (which indeed cancelled the program in 2002 after parental protests). Parents can, of course, teach their children whatever they want and however they want. But the acknowledgment of that right does not translate into a blanket right to shield them from any contrasting information.

What was most entertaining was how Reinhardt worked in the "judicial restraint" point, the same one Republicans claim as a trump when discussing cases like Casey: "[W]e reiterate that we express no view on the wisdom of posing some of the particular questions asked or of conducting an inquiry into some of
the particular areas surveyed by the School District. That determination is properly left to the school authorities."

Deferral to democratic decision-making bodies? Check. Not wildly extending the "right to privacy" (something conservatives purport to despise anyway)? Check. In accordance with past precedent and the views of other circuits? Check. Basically, the case met every threshold requirement for conservative support but one: it didn't give the conservatives a political victory. And thus, it is tarred "activist."

Race LASIK

I'm attending a lecture tonight on Judaism and Feminism, so I don't really have to time for bona fide blogging. Instead, I'll reprint the article I submitted to the Carleton Observer's (one of our political journals) symposium on race. It's titled "Race Lasik."

* * *

You probably heard it first in elementary school. Race doesn't matter. Don't think about race. Don't judge someone by their race. Don't distribute benefits on account of race.

Be Color-Blind.

I bought into the myth once. That if we were color-blind, then all the troubles of racism would just go away. And today, when you ask conservatives what we should do about racism and racial inequality, that's their answer: be color-blind.

It is a weird metaphor though, isn't it? Color-blind. Normally, we think of color-blindness as something bad, a disorder to be cured or overcome. Few of us actually wish to be literally color-blind. And even if we do, we aren't. We don't have a lever that can switch from our current rainbow state of affairs into monochromatic bliss. The metaphor of color-blindness doesn't represent an actual state of being but a supposed ideal. Yet the vast majority of white Americans profess to have moved "beyond race," in a word, they claim to be "color-blind." The question is whether or not that ideal is possible or even makes sense. If it isn't or doesn't, the color-blindness as a racial strategy is likely to be as damaging as color-blindness as an optical condition, and should be treated accordingly.

To some extent, the theory of color-blindness is based off a lie. As Neil Gotanda notes, when making a race interaction, a "color-blind" person would first see the person's race, then pretend not to. We can't actually not see race (except, of course, those of us who actually are medically color-blind), so what is being done is a type of cognitive shift by which we fiat race to be an irrelevant characteristic. Because we say it's irrelevant, it is. But with all due respect to our individual agency, saying something has been stripped of meaning doesn't make it so.

Since color-blindness doesn't eliminate the presence of race but only pushes it from the conscious mind, any sub-conscious meanings, tropes, or valences triggered by race will remain untouched. These beliefs-beneath-the-surface operate subtly, but still have tremendous impacts on our social interactions. Color-blindness prevents us from overtly using race as a factor, but it does nothing to prevent race being used sub-consciously under the outward facade of other justifications. A study by Samuel L. Gaertner and John F. Dovidio illustrates this point nicely. White test subject shown persons in distress aided both white and black victims the vast majority of the time (81% for white victims, 94% for black victims) if there was no ostensible justification for them not help. However, when led to believe that other rescuers were available, the rate of aid to black victims plummeted to 38% even as the rate of aid to white victims remained mostly constant (75%). Race-based cues that skirt the surface of consciousness become extremely important when there are a variety of justifiable decisions within a value-laden scenario. In most complex cases, it is almost always possible to "substitute" a non-racial warrant for a racial one. But the fact that these ostensibly neutral explanations nearly universally result in wide-spread racial disparities should be a clue that the explanations aren't neutral at all, or at the very least, there is something more lurking beneath the surface.

Conservatives love to respond that the majority of inequities are a result of class and not race. The argument runs as follows: black people were discriminated against in the past, which accounts for their disproportionate presence amongst the poor and impoverished. Now that we've made racial discrimination against the law and have moved to race-neutral thinking, these barriers will be removed and blacks will be able to compete on a fair playing field. Today we're in a transition period, but once giving a fair shot, the racial disparities will disappear and merit will win the day.

This argument is very comforting. It is also very wrong. What the argument misses is that even today, black social disadvantage transcends class. University of Pittsburgh Professor Richard Delgado notes that whereas white poverty tends to be temporary, lasting only a generation or two, black poverty tends to perpetual. Black middle-class children are at a far higher risk than whites to be downwardly mobile--one drug conviction and the fall from grace can be quite swift. Empirically, a white child from a family making $20,000 a year has better life prospects than a black child from a family making $50,000 a year. Studies have shown that black defendants are punished more harshly than white ones, that crimes with white victims are punished more harshly than those with black victims, and that crimes popularly associated with young black men are tagged with harsher sentences than those for virtually any other group (the wild disparity between how crack and powder cocaine are treated in the criminal justice system can almost definitely be attributed to the fact that crack is far more likely to be used by blacks than is powder cocaine). Black defendants are also apt to be charged at far higher rates than white defendants--even though 2/3 of crack users are white or Hispanic, 84% of those criminally prosecuted for simple possession are black (simple possession of crack cocaine carries a 5 year mandatory minimum sentence for first use. Powder cocaine carries a maximum sentence of 1 year, but is more likely to be met with probation for a first time convict). Finally, Marianne Bertrand and Sendhill Mullainathan conducted a study showing that a "black-sounding" name (e.g., "Jamal" or "Lakisha") negatively affected the chances of job applicants vis a vis those with "white-sounding" names (e.g., "Paul" or "Emily")--even when both the "white-sounding" and "black-sounding" applicants have equal qualifications. In the face of such overwhelming evidence, to insist that it is class to blame for racial disparities is a case of willful, well, blindness. Something more is at work here. And that something is unquestionably race.

Can the color-blind framework solve these forms of (mostly unconscious) racism? I submit that it cannot. There are two reasons for this. First, the state of being "color-blind" requires one to assume race doesn't matter. Since the way unconscious racism works in an egalitarian society is to "latch" onto facially neutral policies and decisions, persons who proclaim to be color-blind will always be able to deny they have a problem by pointing to the "neutral" explanations for their acts. Second, the methodologies by which we might "find" sub-conscious bias are themselves indicted by the color-blind principle. Color-blindness is inextricably tied up within the rhetoric of individualism and anti-identity politics. However, it is impossible to find patterns of sub-conscious bias without looking at groups as groups. Recall the aid-to-victims study I cited earlier. The decision of any one person not to aid an individual black victim when others are available to do it proves nothing; it shows neither that the individual himself is racist, much less that society at large is. What makes a seemingly benign moral decision become racially loaded is how it plays out over the group at large. Though any one person may be able to justify her decision on non-racial grounds, it is impossible to explain the statistical disparity without seeing race as a contributing factor. But of course, color-blindness mandates that we not see race and, in doing so, can only explain such situations as a statistical anomaly, results of non-racial forces, or (worst of all) by dark mutterings that it's their fault.

The fact of pervasive race-based inequities even in the face of a color-blind world is a very real problem for opponents of race-conscious thinking. Were the problem confined to one aspect of life, then perhaps it could be dismissed as a fluke or quirk. But gaping racial disparities manifest themselves in nearly every facet of society (even controlling for economic class). From crime and punishment, to housing, to social interactions, to education, racial disparities have stubbornly persisted even in the face of our firm protestations of race neutrality. Something more is going on here besides the inexorable mandate of capitalism (an aside: Am I the only one amused by conservatives--always quick to defend the justice of the free market--being the first to assure us that economic deprivation is responsible for what liberals claim to be racism? But if capitalism is to blame for race-based inequities, then isn't that reason to regulate the market so that it no longer causes these problems? No, we're told, the free market is the way to go, and to interfere is unfair and immoral. It's a beautiful, if self-affirming, circle of logical inerrancy and moral bankruptcy). Color-blindness is not fixing these problems. And squeezing our eyes yet tighter will make them worse, not better. What America needs is not a purer form of color-blindness. Racism still exists even when our eyes are shut. What America needs some race LASIK surgery, to eliminate color-blindness and let us see the very real problems in front of us. After all, to quote James Baldwin: "Not everything that is faced can be changed, but nothing can be changed until it is faced."

Judge Removed in DeLay Case

The judge originally slated to preside over Tom DeLay's corruption trial has been removed. The DeLay defense team sought the move on the grounds that Judge Bob Perkins had contributed to Moveon.org and thus would be seen as biased. DeLay lawyer Dick DeGuerin argued thusly:

"The public perception of judge Perkins' activities shows him to be on opposite sides of the political fence than Tom DeLay." DeGuerin said no one contends Perkins did anything wrong, but "to protect the integrity" of the judicial system, he should not preside over a trial for someone to whom he is opposed politically."

I'm curious as to the fallout of this case. I should note I'm unclear on at least two very important facts. One, whether this can be cited as precedent (IE, is it a one-shot deal, or will this case actually influence how future similar cases play out). And two, can the prosecution also move to recuse a judge on the same grounds (IE, a judge who contributed to Republican organizations?). Will the rule set here play both ways? The answers to both, obviously, are critical in evaluating the case at hand.

I will say at the start that I think this ruling sets a dangerous precedent. Republicans have been relentless about portraying a politicized judiciary, and this ruling is a judicial seppuku that basically says judges can't be trusted to deal with their own political predispositions. All judges are political to some degree, some just flaunt it more than others. The presumption, though, is that judges can push aside their politics when hearing cases. If that presumption is damaged, there will be incalculable harm to the image of the judiciary as fair and impartial. Unfortunately, that very project has been on the agenda of the Republican Party for some time now, and as I support the impartiality of the courts I oppose Republican efforts to demonize judges for political points.

That's a broad question. The narrower question is whether this judge was the type to prioritize his politics over his judicial duties. And I have no idea whether that is true or not. I do think that DeLay should have won this motion if this judge reasonably could have been expected to subordinate law to politics. To prevent forum shopping (which is basically what DeLay wants to do here--see his related request for a venue change), that's a bar that should be set rather high. However, although I can't find the actual order itself, I've read nothing in DeLay's arguments that suggest a warrant for this claim. It's all about appearances and the presumption that someone who supports Democrats inherently will detest DeLay too much to judge fairly.

That, of course, raises the second of my unknown questions: does the rule being set here apply in reverse? The only way this decision can be justified is if the judge who replaces Perkins is scrupulously non-partisan. If it turns out the new judge is enmeshed in the Texas Republican machine, then that judge should be removed too. There is no reason to believe that Republicans enamored with DeLay's electoral victories will be anymore likely to be able to put aside party for the law, than a Democrat aghast over DeLay's ethical bankruptcy. However, if the outcome turns out to be replacing Perkins with a universally respected judge with unvarnished moderate credentials, then I'll say this all went for the best. But I'm not sure there's anyway to guarantee that will happen. And if it doesn't (and especially if the venue change goes through), then I think this motion will have radically subverted the chances of seeing justice done in DeLay's trial.

On Civility (Part 2)

A long while back, I posted a defense of civility from attacks by Brian Leiter. It was labeled "part 1?", and I never did get around to writing a second post (well, techically it was the second post. But details, details). I won't claim that this post is breaking any shocking ground, but I would like to contrast Professor Eugene Volokh's standard on civility to Professor Leiter's. Leiter argues as follows:

As we have remarked previously, civility is the greatest gift one can bestow on the creationist conmen, the right-wing liars, and the religious bigots--not to mention the hordes of ignorant blowhards in the blogosphere. To treat their positions with civility is to already legitimate them. The consequence of doing so is now available for all the world to see: the intellectually and morally depraved state of public culture in America today.

Volokh, by contrast, advocates the following standard:

[A]ll arguments -- good or bad, bigoted or saintly -- should be framed without the use of personal insults or invective, since such devices are not only offensive and likely to lead to a worsening of the discussion, but also unnecessary. Offensive ideas, fine; offensive modes of expressing those ideas, unnecessary and thus not fine. Cohen v. California is a good guide for constraining government repression of speech. I don't think it's a necessary or wise rule for editorial decisions in publications such as this one.
[...]
Finally, as I've noted before, let me preemptively respond to the near certain response: "But would you let commenters advocate the Holocaust? Slavery? Mass rape?" Well, though I support same-sex marriage, we need to have some sense of perspective: The denial of equal rights here ain't the Holocaust. There may well be a pale that certain things are beyond. Yet the pale should be pretty far out, and the fact that advocacy of mass murder is beyond it doesn't tell us much about condemnation of homosexuality.

Incidentally, my position is almost identical to Volokh's. I too conceded an exception for genocide, and as predicted, Leiter pounced. And I basically made the same response as Volokh--there is a qualitative difference between opinions we disagree with, even detest, and advocating mass murder.

Blogospheric Norms and Judicial Nominations

So Sam Alito is Bush's "take two" judicial nominee. And the blogosphere, predictably, is abuzz. Everybody has an opinion--and unlike the Miers nomination, in which the primary reaction seemed to be confusion, people seem quite sure of themselves on this one.

BullMoose, for example, says that Bush "gave the right a treat," and argues further that:

The Alito nomination is evidence that Mr. Rove is once again riding high in the saddle. The Rovian solution to all of the Administration woes is a to give a hot-button treat to the base and attempt to trick the Democrats into alienating swing traditionalist values voters. Meanwhile, folks will ask, "Scooter who?".

The politics of polarization has been the governing philosophy of the Bushies. It got them re-elected and it is the only way they know to govern. With this understanding, the Alito nomination makes complete sense.

Paul Horwitz also posts in this vein--snidely remarking that this represents an affirmation of Bush's pledge to be a "uniter, not a divider": both Democrats and Republicans will reunite within their own parties to demonize their opponents again, rather than each other (again, contra Miers).

Eric Muller's personal experience lends him to positive thoughts, but he's still disappointed that the nominee isn't a woman.

Adrien Wing has no such personal experience with Judge Alito and thus no positive thoughts to balance her Muller-esque disappointment.

Eugene Volokh, by contrast, does not think any group is entitled to specific representation on the high court, noting that at the moment Protestants are under-represented and both Catholics and Jews are wildly over-represented.

Daily Kos thinks that this is the apocalyptic battle that both the right and left have been waiting for, while Orin Kerr thinks Alito is being caricatured and that after a few weeks of hearings he'll sail through. On the other hand, I got an email from James Dobson's outfit (God knows how I made that mailing list) saying he's overjoyed--and I can't imagine Dobson being overjoyed by anyone he thinks will garner significant Democratic support. Certainly, Professor Bainbridge is expecting a fight.

Obviously one could find more reactions easily--anyone who's anyone has weighed in. I kind of wonder whether or not there are negative implications to the feeding frenzy though. Bloggers are expected to have immediate reactions to the pressing issues of our time. That's why we like them--it accelerates the process by which analysis becomes available and also democratizes it--most issues of substance will find coverage on some blog, somewhere. Furthermore, to be read, a blogger reaction has to be somewhat interesting. "I don't know yet" is not interesting. Fortunately, since most political events either a) unfold slowly or b) are unpredictable, blog coverage of an issue either a) has a chance to build itself up and think itself through or b) is acknowledgely "off the cuff" and will be modified as further information becomes available. In either case, the tendency for quick, punchy posts does little harm. Judicial nominations are different. The arguments can be stored up in advance, but the "event" explodes over one Presidential announcement. Everybody was locked and loaded for this nomination--hell, most of the posts I read today could have been written advance with several other names filling in the blank. Unlike posts on slow-moving issues (say, a bill moving through congress), the full fury of blogosphere hits all at once on a judicial nomination. And unlike other "sudden" events (like Katrina), few are phrasing their comments as "first thoughts" or other such things that suggest they're open to persuasion on the matter. Since bloggers have to post fast and post partisan, blogospheric norms encourage hyper-condensed and polarized framing. I fear this will immediately become the dominant lens for the Alito nomination. And so, Republicans in the Senate will go to the mat for him, and Democrats will filibuster, no matter what Alito says and no matter what his views actually turn out to be.

Miers proved that blogs heavily influence the judicial confirmation game. But in a way, her nomination was a breath of fresh air--not in terms the nomination itself but how it was covered. Miers was such a curveball that the pre-set arguments didn't really work. So bloggers had to take a step back and re-evaluate the terrain. This didn't take too long (we are, after all, bloggers). But it took long enough for calmer (and also, non-blogger) voices to enter the conversation and make us actually think about what Justice Miers would be like. However, with someone like Alito who can fit our stock narratives, there is no time for deliberation. If the media plays on the theme being heard in the blogosphere (conservatives overjoyed, liberals apoplectic), then we'll all look at the confirmation process in that manner. And assuming Kerr's position, that Alito is a caricatured as a hyper-conservative activist when he really isn't, is true, we may have just shut the door on a fair evaluation of Alito's nomination.

My first thoughts on Alito are of cautious neutrality. I want to wait for more information. How exactly did Alito phrase his infamous Casey dissent? Would he really uphold a federal ban on machine guns if the government shows that their use has harms on inter-state commerce? These questions are critical in evaluating whether he will be a radical, or a cautious conservative, and we don't have the answers to them yet. Worse, I fear we may never get around to asking them. Basically, the question I have is this: Does the accelerated and hyperbolic nature of the blogosphere prevent cautious, deliberative debate on judicial nominations? What are the implications for bloggers if it does?

UPDATE: The Moderate Republican sounds the same themes. Ann Althouse thinks that Alito will be a Church/State accomodationist, which I consider positive news (so long as it doesn't coincide with the obliteration of separationist principles).

Scooter and the Law

Publius of Legal Fiction gives an overview of the Espionage Act as it may (or as Publius argues, may not) apply to Scooter Libby. Borrowing from Mark Kleiman, he lays out the following elements as necessary for a conviction:

(1) possession [legally or illegally] of (2) information (3) relating to the national defense (4) which the person possessing it has reason to believe could be used to damage the United States or aid a foreign nation and (5) willful communication of that information to (6) a person not entitled to receive it.

Publius argues that in the context of the statute, Libby's act didn't violate elements two and four. This isn't to say that one could not plausibly construe the statute in such a way that Libby did violate--just that Publius thinks that the most reasonable construction won't bear such an interpretation. I disagree, as I'll explain below. To the former clause, he argues:

The obstacles to indictment and prosecution are elements #2 and #4. Let's start with #2 - "information." The problem is that the second element isn't limited only to the vague word "information." That's just the only applicable word in a long list of words. Here is the complete text of that element:

document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense

The problem is that "information" is surrounded by a lot of specific words listing tangible items. As you law dawgs probably know, there's a principle of statutory interpretation called ejusdem generis, which literally means "of the same kind." The idea is that when you have a bunch of specific terms followed by a vague general term, the meaning or scope of the general term should be limited to the same types of things listed by the specific terms. For instance, let's say that a statute prohibited "cars, motorcycles, trucks, motor-scooters, and other vehicles" from entering the park. Under this canon of interpretation, "vehicle" probably would not refer to an airplane flying overhead (although such a reading would be plausible - especially to those who really hated, say, Delta).

Same deal here. The specific words ("sketch," "photograph," etc.) likely limit the scope of the general term ("information") to more tangible items. Under this view, leaking the State Department memo would be a better fit for the Espionage Act than would leaking Plame's identity.

I just disagree with how Publius is reading the statute here. I think that "information" is written so that it is specifically separated from the tangible items that precede it. This is true for two reasons. First, the way the first clause of the sentence ends: "or note relating to the national defense." The "or" would be redundant if the purpose was to link as "of the same kind" both the tangible items and "information." That leads one to the second problem in Publius' interpretation--the lack of "other" before information. In his example, he lists a bunch of items and then ends it with "and other vehicles." This implies that these vehicles are to be "of the same kind" as the ones that came before it. Had the clause instead read "and vehicles," it would imply that vehicles is distinct from what came before. Essentially, if the framer's wished the statute to mean what Publius wants it to mean, then it would make more sense for it to read like this:

document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note relating to the national defense, or other information relating to the national defense.

Subtle, but critical distinction.

To the latter element, Publius forwards the following claim:

But the real problem is element #4 - "reason to believe [the information] could be used to damage the United States or aid a foreign nation." Again, I concede that it's at least plausible to read the statute in a way that covers Libby, but that reading would not be the best one. When you read the entire statute, you get the clear sense that this statute was meant to criminalize the act of disclosing information to people potentially hostile to America or to those who wanted to harm or damage our national security. Remember that the act was passed in 1917 at the height of the Red Scare. To me, when you read all the sections of the Espionage Act together, the Plame leak doesn't quite fit.

Again, I disagree on Publius' notation of the most reasonable interpretation. Basically, the dispute we have runs as follows. He reads the clause as saying "reason to believe the information could be used [by the receiver] to damage the United States or aid a foreign nation," and I read it as "reason to believe the information [contains content that] could be used to damage the United States or aid a foreign nation." Obviously, I believe my interpretation is superior. I believe the purpose of the statute is the very reasonable goal of trying to minimize the spread of information which could damage American security. It doesn't matter who receives it--the promulgation of classified information is a security risk in of itself. If Scooter Libby had told me our nuclear launch codes, I think that would fall within the statute even though I don't mean harm to America. That's because I read element four to be characterizing the information itself, not the person receiving it. The act is designed to prevent the revealing of dangerous information, and it doesn't by its terms limit itself to "dangerous persons." The statute specifically mentions what "type" of person needs to receive the information in order for the law to kick in, in element six: "a person not entitled to receive it." That's a far broader set of persons than what Publius is talking about--again, had the statute drafter's meant what Publius says they mean, then they would have noted threat level as a determining factor in who the information was revealed to, not what the information was. The fact that element six exists independent of element four should suggest that they are meant to be evaluated separately. I can see where he's coming from in his interpretation, but to me it's less reasonable than one in which element four is a constraint on information, not receivers.

So basically, I do think that the Espionage Act could apply to Libby. Publius forwards the Intelligence Identities Protection Act as an alternative method for nailing Libby--but I think Kevin Drum's take down of it is pretty compelling.

"Chicago Burned Down...Again"

Give the GOP partisans some credit. They've taken a lickin', but they've kept on tickin' these last couple of days. Consider Republican strategist Bill Paxon:

"These guys just keep getting up every day and moving forward," said Bill Paxon, another former House Republican. "Some days aren't easy. They've had a tough run here lately. But the secret of their success through all of these twists and turns in the road is to just keep moving forward." [emphasis added]

Leading TNR's Michael Crowley to remark:

Success?? Good grief, so what would failure look like? FEMA blows the Hoover Dam? Zsa Zsa Gabor on the Supreme Court? America occupied by Iraq?

I can see it now: "The fall of Charleston to Iraqi National Guard elements is, far from a setback, proof that Iraq has adapted American foreign policy models and sees the pre-emptive attack strategy as legitimate and effective." And the Hoover Dam, of course, was finished in the socialist Roosevelt administration. So we're all happy to see that go.

UN Troubles

A UN resolution, threatening sanctions on Syria if it fails to cooperate in the Lebanese assassination investigation, is coming under veto threat by China and Russia, as well as strong opposition from Algeria. The reasons were the usual: blah, blah, National Sovereignty, blah blah blah too harsh (when on earth has a UN sanction been too harsh?). Algeria's objections were a slight variation on theme, however:

Algeria's ambassador to the United Nations, Abdallah Baali, said that "we have serious problems with several parts" of the resolution, noting that it goes well beyond supporting Mehlis's investigation. He cited one provision that he said could be interpreted as requiring Syria to commit to halting support for Palestinian and Iraqi militants. "We understand the need to ensure full cooperation of Syria," he said. "We don't believe that the time has come to even threaten sanctions."

Horrors upon horrors! Syria will have to stop directly aiding terrorists? Say it ain't so! I cry for the awful burdens the international community is placing on this poor pariah state.

While we're on the subject of attacking Israel being a debatable subject in the UN (and moreover, a debate Israel tends to lose), what does everyone think about this call by Israel to expel Iran from the UN? If you recall, a short while ago Iranian president Mahmoud Ahmadinejad said Israel "must be wiped out from the map of the world." While such rhetoric (depressingly) is not a shift from hardline Iranian elements, it is the first time that a high-level elected official as issued such a direct call for Israel's destruction. Israeli response was swift:

Israeli Prime Minister Ariel Sharon said "that a country which called for the destruction of another cannot be a member of the U.N.," according to a statement released by his office.

The statement quoted Sharon as saying, "Such a country, in possession of nuclear weapons, is a danger not only to Israel and the Middle East but to Europe as well."

Earlier, Israeli Vice Premier Shimon Peres, a Nobel peace laureate, said, "Since 1945, the establishment of the United Nations, no head of state which is a member of the United Nations ever called for the destruction of another member of the United Nations, publicly and clearly, as the president of Iran did.

I think we have to treat Iran's statements as a serious threat. Iran is hotly pursuing nuclear weapons (which would give it the capability to quite literally "wipe Israel from the map"). We know it has no qualms about funding lower-level attacks on Israel (Iran is linked to as perhaps the most aggressive supporter of Palestinian Terrorist Groups). The $100,000,000 question is what would happen if they stepped it up and launched a first strike nuclear assault. How would the world respond? Obviously, if Israel had time it would launch its nukes right back--but I'm not sure how long it takes for a missile to travel from Tehran to Tel Aviv, and I don't know at what level of alert Israeli nukes are kept at. If Israel can't respond, would the world sanction a nuclear retaliation? I'm just not convinced they would. And if they wouldn't, the religious fanatics in charge view whatever response they'd inevitably incur as a reasonable price to pay?

Given this, I am inclined to support Israel's call for Iran's expulsion. The UN will never do it, of course, because this act comes at the cross-section of the two redlines the UN will never cross: a) supporting Israel and b) doing anything of substance. But if the US or (better still) the EU threw its support behind the call to expel Iran, maybe things would change. Maybe. Doubtfully.

Don't Let Up

In the midst of the Miers recall and Plamegate developments, this Eric Reeves article on Darfur could get lost in the shuffle. Don't let it. I'll excerpt the important parts. Bottom line: the US is starting to give up on stopping the genocide in Darfur and is slowly opening relations with Khartoum.

[I]n the last six months the administration's stance towards the genocidal Sudanese government seems to have shifted towards one of appeasement--at a time when the situation in Darfur grows more dire by the day.

This change in attitude towards Khartoum first became apparent in April, when the CIA flew Major General Saleh Gosh to Washington, D.C., in order to provide intelligence on international terrorism. Gosh was Osama bin Laden's chief minder during his five years in Khartoum, from 1991 to 1996; he now heads the Sudanese government's ruthlessly efficient intelligence and security service, and has been referred by a U.N. Commission of Inquiry to the International Criminal Court to be investigated for crimes against humanity. The security service he directs is responsible for tens of thousands of extra-judicial executions, killings, and disappearances, as well as numerous instances of torture, illegal imprisonment, and other violations of international law. Most importantly, all evidence suggests that Gosh himself is one of the prime architects of Darfur's genocide.

Another sign of appeasement came in July, when the Washington firm C/R International, whose managing director is former State Department official Robert Cabelly, agreed on a contract with the Sudanese government. Because trade and economic sanctions put in place in 1997 by President Clinton remain in effect, the contract required an explicit waiver from the State Department, which it granted.
[...]
In short, the same vicious cabal in Khartoum that was explicitly declared by former Secretary of State Colin Powell to be responsible for genocide in Darfur has now been allowed to secure the services of a former State Department employee to provide it with p.r. counsel. For a fee of $530,000 per year, the firm's role will essentially be to put a happy face on a genocidal regime.

In its public face, the Bush administration is also slowly starting to pull back from its condemnations. Consider this statement by Michael Ranneberger, deputy assistant secretary of state for African affairs:

Even now what you're seeing is not these systematic Janjaweed attacks against villages. You know, somebody said, "It's because all the villages were burned." Well, it's not. You fly over Darfur, almost all the--you see thousands of villages, fully populated, farming going on, and everything else. So it's because of the presence of these African Union forces.

This assessment is belied by virtually everybody on the ground--Reeves says the prevailing consensus is that between 80-90% of the tribal villages in Darfur have been destroyed. Even if I was inclined to trust the Bush administration on this matter (which I'm not), I simply cannot believe that 5,300 troops patrolling an area the size of France, without a mandate to respond to acts of violence, could have triggered the massive turnabout in Darfur's situation that Ranneberger says they are.

We are approaching a turning point. This is the time where America will show whether its outrage at genocide can be sustained, or whether it will again dissipate as other matters draw our attention. The Bush administration has shown time and again that it will work with the most brutal of dictatorships if given free reign to do so. Clearly, they are enticed by the prospect of enlisting Sudan in the war on terror--and Khartoum is obviously dangling intelligence aid as incentive for the US to drop pressure. The only thing stopping the Bushies from treating Sudan the same as Uzbekistan, Saudi Arabia, or any of the other states in which we've been acquiescent in support of massive human rights violations is that the American people had, at one point, united in the belief that Sudan was beyond the pale. If that sentiment proves to be unsustainable, then I predict America will slowly, quietly, but inevitably begin opening relations with Sudan and downplaying the mass murder in Darfur.

Don't let that happen.