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TOTALLY NOT CURRENT, BUT STILL:

The second of the two songs on this youtube is the best song ever written about political sex scandals. Yes, it's John Denver's "Ballad of Gary Hart":

http://www.youtube.com/watch?v=LGW4wVHeJLE

Labels: gary hart sex scandal donna rice john denver

posted by Dilan at 8:49 PM

 
JESSE HELMS:
Matthew Yglesias has a bunch of stuff on him and I recommend all of it. Basically, Jesse Helms, now being praised by conservatives, was a racist and homophobe of the first order, and unlike some of the other racist politicians of the pre-civil rights South, he somehow got away with never really moderating his views.

The key to understanding why Helms is important is to look at Yglesias' comment threads. You will see his conservative readers bringing out all the old canards, including that opposition to affirmative action is not racist (true, but (1) that falsely assumes that all Helms ever did was oppose affirmative action, and (2) some arguments against affirmative action certainly are racist, and Helms made those), and that Democrats like Al Sharpton, Jesse Jackson, etc., are the "real" racists.

I don't think that conservatives are evil-- not at all-- but if there was a single strain of American politics that I would say comes closest to pure evil, it's this idea that the "real" racism in America comes from blacks. Not that blacks can't be racist-- Louis Farrakhan comes to mind-- but the idea that this word, this concept, which was coined to describe a system of organized, systematic white supremacy, which kept black Americans down for over a century, is only really appropriate to describe what a few fringe black political figures (who, by the way, have less influence in the Democratic Party than fringe religious figures have in the Republican Party) believe about American race relations.

Take your pick-- this is Humpty Dumpty saying words mean what he says they mean or Orwellian Newspeak taking a word and using it to mean its opposite. But it is truly corrosive to American discourse, because in a country where so many blacks are still getting the short end of the stick, on issues ranging from the fundamental (terrible underfunded inner-city schools) to the esoteric (blacks can't catch taxis in American cities), we desperately need to be able to discuss these issues in good faith. And someone who claims the biggest racist in the country is Jesse Jackson is trying to torpedo that discussion and instead have a different discussion about how bad black leaders are and how the Democratic Party should be shunned by white Americans for associating with them. Meanwhile, black kids across the country continue to go to schools full of drugs and guns and gangs and dilapidated classrooms and outdated textbooks where they can't learn.

Jesse Helms is the hero of people of this mindset-- the man who never changed, who never pretended to give a crap about the problems of the millions of black residents of his state or the country. Because we all know that it is much, much worse that Al Sharpton gets invited to a Democratic presidential debate than it is that so many black Americans still live in squalid conditions.

I guess the one thing about this is that at least it is more honest than the other conservative trope on race, which is to piously invoke Martin Luther King on affirmative action but ignore everything else he ever advocated. The Jesse Helms supporters, at least, know which side of the civil rights struggle they are on-- the wrong side.

Labels: jesse helms civil rights conservatives

posted by Dilan at 10:28 PM

 
OK, RSS FEED NOW WORKS:

The link is http://feeds.rapidfeeds.com/11954/. Hope you all subscribe.

Labels: RSS feed

posted by Dilan at 12:10 PM

 
OK ANOTHER TEST:
Let's hope this one works.

Labels: RSS test

posted by Dilan at 12:06 PM

 
TEST POST:
I am trying to get RSS to work. (As usual, the directions for such things on the web are incomprehensible.) This is a test post.

Labels: RSS test

posted by Dilan at 11:56 AM

 
CYD CHARISSE:
Everyone remembers Singing In the Rain, the justly famous 1952 MGM movie musical that routinely makes lists of the best films of all time. The film is full of great scenes-- Gene Kelly's iconic scene singing the title track while dancing in the middle of the street in the rain is, of course, one of the most famous scenes in movie history. People also remember Donald O'Connor singing "Make 'Em Laugh" with enough slapstick to fill two Laurel and Hardy movies, and a young Debbie Reynolds as the love interest of Kelly's character.

They needed a professional dancer to dance the ballet dream sequence opposite Kelly, so they turned to the "best legs in Hollywood", which belonged to one Cyd Charisse. Charisse was not a conventional looking actress, but she was lithe and graceful, and could contort her body in the direction of the demure or the seductive. And the resulting scene, which can be seen here and here, is so well done one can argue that it is not only as good a scene as any in the movie, but one of the best dance sequences ever filmed.

Charisse acted as well as danced, and got some good lead and supporting roles, the best of which (such as Silk Stockings, a remake of Garbo's Ninotchka) traded on her slightly exotic air, but she never achieved the kind of fame that famous hoofers like Ginger Rogers, Fred Astaire, and Kelly did. That's too bad-- they'll be watching that scene from Singing In the Rain as long as anyone cares to watch movies.

Charisse died yesterday at the age of 86. At the risk of sounding beyond my years, they don't make them like her anymore.

Labels: Cyd Charisse dancer Singing in the Rain

posted by Dilan at 10:03 PM

 
STOP DEBATING EVERY ISSUE AS A MATTER OF PRESS BIAS OR MORAL SUPERIORITY:
Ted Kennedy, as you may have heard, is very ill. In response, a number of people on both sides of the political spectrum have poured out their sympathies. I think that's great. I would hope it would be the same if, for instance, Bob Dole was stricken.

But I noticed that a fair amount of the conservative commentary consisted of self-congratulation and comparison to liberals, who it is alleged never express sympathy for conservatives who are stricken. The evidence of this was scattered comments by anonymous commenters on liberal websites saying that they hope that this or that conservative would die.

Of course, liberals do the same thing, pointing to, for instance, freerepublic.com, which is famous for having some rather vituperative commentators. But there have also been recent allegations that perhaps Mike Huckabee and Hillary Clinton have been rooting for political assassinations. (For the record, I think both instances were slips and were not meant to be malicious.)

The point, though, is that this pitch of moral superiority has become a standard feature of American political discourse. Yes, you can say something nice about the opposition, but only as a tool to congratulate yourself and your side of the aisle for its classiness, and pointing out how trashy the other side has been.

There is a variant of this that is the flip side of the coin, which is claims of media bias. Obviously, nobody is going to claim that the media is never biased. But not everything is a matter of media bias. And this is a standard trope when one's own side gets caught with a hand in the cookie jar.

So, when John McCain was forced to disown John Hagee for his remarks about Hitler, plenty of conservatives tried to change the subject to whether the media was treating McCain unfairly and whether a liberal politician would suffer the same punishment for the same sort of activity.

And this comes on the heels of Obama supporters wondering whether conservatives would ever have to pay for their associations with loony pastors in the wake of the Reverend Wright episode.

Now, to be clear, I am not saying that one should never complain about media bias or that such complaints have no merit. What I am saying is that complaining about media bias is not a substitute for evaluating one's own position and the activities of people on one's own side. Democrats in New York, for instance, can complain rightly about the Bush Administration and the media going after Eliot Spitzer for activities that so many politicians are engaged in. There may well be a double standard. That doesn't, however, excuse Spitzer's conduct.

And that's the problem with too many discussions of media bias now. They are an all-too-convenient way to change the subject. And what they share with the moral superiority trope is that in both cases, someone is trying to score a political point rather than confront the real issue.

So let's try to address our political issues without constantly referencing how much better we are than our opponents, or how we get treated so much worse by the media, OK?

Labels: media bias moral superiority

posted by Dilan at 9:39 PM

 
"THEY'RE ALL GANGING UP ON HER"
We are starting to see the outlines of Hillary Clinton's master narrative for her candidacy during the closing weeks of the campaign. Essentially, she is inspring a lot of feminist commentary about how Barack Obama and the Democratic establishment and the media are forcing her out of the race before the votes have been counted, and denying her supporters (especially women eager to support a serious female candidate) the opportunity to vote for her.

It's politically irrelevant (there are few scenarios in which she can win the nomination, and those involve deus-ex-machina type events, not adjustments to her campaign strategy) but a fascinating study in the use of feminist rhetoric in American discourse.

This is, of course, not the first time Hillary has claimed that the old boys are trying to keep the women (represented by her) in their place. She did this in the runup to the New Hampshire primary. She did this when she complained that Obama always got the first question in the debates. She did this when she contended that Rick Lazio, her opponent in the US Senate race in 2000, was "invading her space" at a debate. And, of course, she did this over and over again as First Lady.

The thing that interests me about this line of rhetoric is that while it is very effective for her and is labeled a feminist argument, it actually is the kind of thing that is quite bad for actual feminism. Not that discourse doesn't matter to feminists. Deborah Tannen has enjoyed popularity in both academic and public intellectual circles discussing the relationship between gender and discourse. And language reflects and can shape reality. Workplaces full of sexist language can create a hostile environment. Condescending language (such as male supervisors calling female employees "honey" and "sweetie") can reinforce antiquated views about female subordination.

But even though that is true, and even though it is further true that we want women in politics to face a level playing field with men, it is nonetheless true that the rhetorical climate faced by Hillary Clinton is far from a feminist priority, or at least it should be. For one thing, Hillary Clinton can capitalize on it. It doesn't hurt her candidacy when hecklers chant "iron my shirt" at her; it helps it.

Additionally, however, most of the things that Hillary Clinton and her supporters are complaining about are simply not, in the scheme of things, that big a deal. It is certainly true that Clinton's supporters saw the debate with Lazio as an example of a male invading a female's space. (Lazio came over to Clinton's lectern to make a point). But the reason why feminists are concerned about men invading women's space has no application to political debates. Nobody thinks that Lazio was actually threatening physical violence against Clinton or was imposing his physical size on her to get his way.

Similarly, the fact that several male candidates ganged up on her in early debates is, in fact, a feminist triumph, because it was a tribute to the fact that for the first time, a woman was a frontrunner in a presidential primary campaign. And many Americans want a President who has been tested in some way under fire, it's not a good thing to protect female candidates from this sort of dynamic. Such protection doesn't help them get elected. It's simply not the same as men ganging up on the sole woman in a male-dominated worksite. (Indeed, if anything, the complaints made by the Clinton campaign and their supporters were almost demanding that she be placed on a pedestal, which is the worst possible thing for feminism.)

In the meantime, there are actual feminist priorities out there. Reproductive rights. Equal pay. The second shift of housework that many women who are married or in relationships do. Continued job discrimination and sexual harassment. Lack of child care. The last thing the feminist movement needs is to have the brand associated with relatively trivial issues about the symbolic complaints of female political candidates with respect to procedural issues. Moreover, to the extent that Hillary's campaigning in this manner breeds resentment against Barack Obama in the fall and a dropoff in his support, this could really set back the feminist agenda. (I am skeptical that this will happen, but the cynical use of feminism by the Clinton campaign doesn't help things any.)

We need to stop pretending that the feminist cause begins and ends with Hillary Clinton's wishes and desires. I understand the emotional appeal of second wave feminist women, who fought to integrate schools and workplaces and blazed the trail for younger generations, to voting for a credible female candidate for President, an opportunity that may not come again in their lives. But the feminist movement is about all women, not one woman. And voting against Hillary Clinton and for Barack Obama is simply not anti-feminist. Indeed, it may advance the cause of feminism more than voting for Clinton would.

Labels: Clinton Obama feminism

posted by Dilan at 10:26 PM

 
MCCAIN'S "QUESTION TIME" A GREAT IDEA:
Credit where credit is due. John McCain proposes that if he is elected President, he will make himself available for questions from the Congress in the style of the Prime Minister's Questions in the UK.

Anyone who has seen the unlikely combination of insult and gentility, theater and policymaking that is the Prime Minister's Questions in the United Kingdom knows that, if nothing else, seeing the President answer questions from Congress would be very entertaining. But it is actually much more than this. Question Time is a form of accountability, a concept that has been sorely lacking the past 8 years. Yes, Bush has occasional press conferences, but political opponents ask better and tougher questions than the press. Plus, they ask questions on a wider variety of issues; the press might ask Bush 8 questions on the Iraq War, 3 on gas prices, and 2 on the 2008 presidential campaign, but during Question Time, Gordon Brown or his predecessors have had to faced questions such as the price of cattle in Jersey or traffic abatement in Newcastle-Upon-Tyne. It forces the Prime Minister to study and to learn more about the country. I would bet that whatever one thinks about his ideology, Bush's Katrina screw-ups would have been less likely to happen if he had faced an occasional question about levee policy in Louisiana or the state of FEMA readiness.

This is not to say that Question Time is a panacea. Lots of time is eaten up with stupid questions. The MP's belonging to the same party as the Prime Minister ask softball questions that allow the PM to trumpet this or that success. Further, Britain's parliamentary system, with its third and fourth parties, helps immensely; Gordon Brown gets attacked from the left (by Liberal Democrats) as well as the right (by Tories), and also has to answer questions from Ulster Unionists regarding Northern Ireland. (It is unfortunate that Sinn Fein can't get over it's objection to the oath of office promising loyalty to the United Kingdom, or there would be a competing view about Northern Irish politics also represented in the body.)

Here, it would likely be the case that a Democratic president would be attacked from the right but not the left, and vice-versa. Most Democrats in Congress were far to the left of Bill Clinton, for instance, but they weren't about to launch attacks against the guy given his capacity and willingness to retaliate politically against his critics.

Nonetheless, I have to believe that Question Time would still be a distinct improvement in terms of oversight in American politics. Plus, it might have a civic benefit as well-- it is tremendously entertaining, much more so than a presidential press conference or State of the Union speech. It might even become a hit on television (C-SPAN's reruns of British Question Times draw a cult following). Seeing President John McCain face off against Senator Hillary Clinton on health care policy might draw lots of viewers.

All and all, not a reason for a liberal to vote for McCain, but a praiseworthy proposal nonetheless.

Labels: McCain Question Time proposal United Kingdom

posted by Dilan at 7:06 PM

 
THE GAY MARRIAGE RULING: PROBABLY NOT IDEAL, BUT IF YOU DON'T LIVE IN CALIFORNIA, IT'S NONE OF YOUR BUSINESS
Today, the California Supreme Court decided that the equal protection clause of the state Constitution requires that marriage, if it is offered to straights by the government, must be offered to gays. I am sure there will be plenty of mostly predictable commentary about the substance of the decision. Personally, I find this decision to be less compelling than a similar decision in Vermont, which held that the state was required to offer civil unions to gays and lesbians. Essentially, while I know why the word "marriage" is important to gays (and it would be important to me if I were gay and wanted to hold a commitment ceremony with my partner), the equal protection issue with respect to gay marriage arises out of the fact that straight people get favorable treatment from the government that is denied to gays and lesbians. Indeed, understanding this point is crucial to the gay marriage issue.

If marriage were nothing more than what religious conservatives claim it is, i.e., a religious sacrament and a traditional institution and ceremony for men and women to enter into, their arguments might make some sense. Marriage could be seen as for 1 man and 1 woman in the same sense that bar mitzvahs are for 1 teenage Jew.

But the problem is that the state attaches a bunch of benefits to married couples. These benefits range from things like automatic hospital vistiation and inheritance to tax breaks to one of the most important benefits possible, the right to bring one's spouse into the country and to adjust his or her immigration status. All of these benefits are denied to gays and lesbians. Only some can be replicated through contracts and legal documents, e.g., inheritance.

Further, private industry is also authorized to discriminate on the basis of marital status. Thus, insurance companies can offer coverage to one's spouse but not to one's partner, for instance. An employer can allow an employee time off to care for an ailing spouse but refuse it to a gay employee caring for an ailing partner. Et cetera.

Thus, the lack of gay marriage is like passing a thousand little discriminatory laws against gays and lesbians. (Indeed, this is true even as states legalize gay marriage, civil unions, and domestic partnerships, because many of these issues are governed by federal law, and the federal government doesn't recognize gay marriages even from states that permit them.)

I am afraid that a decision like the California Supreme Court's will miss this point. I am all for gays being able to "marry" as opposed to entering a "civil union" or forming a "domestic partnership". But while I can see that issue's importance to gays, it isn't nearly as important as creating a union for gays that entitles them to all the benefits that straights have, i.e., an end not only to state discrimination but to federal discrimination against gays and lesbians. Does today's decision get us closer to that point? Not necessarily. Indeed, it is quite possible that, after the Court relied on the state legislature's passage of generous domestic partnership benefits in holding there was no basis for withholding the term "marriage" to the unions, other states and the federal government may shy away from granting any benefits to gay and lesbian couples, lest a court later adopt the California Supreme Court's ruling.

But I have another point about this issue. A lot of the commentary condemning the decision is sure to come from out of state. We are likely to hear tired conservative arguments about how unelected judges (never mind that California Supreme Court judges face retention elections) are imposing their will on Californians (never mind that California's elected legislators twice passed gay marriage bills, and while they were vetoed by the Governor, he nonetheless supports today's court ruling).

I have one thing to say to those commentators. This is none of your business. As long as the federal Defense of Marriage Act remains law, this decision will not prevent homophobic bigots in other states from outlawing gay marriage. Nor will they be required to recognize California gay marriages in homophobic states.

Accordingly, whether we do this by court decision, legislation, or vote of the people is irrelevant to you. We did it. Just like we legalized medical marijuana, which has also been criticized by conservative outsiders. (Indeed, conservatives are attacking Barack Obama for the sin(?!?) of arguing that California should be able to enforce its own marijuana laws without federal interference.)

Conservatives believe in federalism, remember? If and when there is a challenge to federal marriage laws, commentators in all 50 states can certainly speak up. But what we do in our state to our laws is not the concern of bluenoses in more conservative parts of the country. So leave us alone.

Labels: california, conservatives, court decision, federalism, gay marriage

posted by Dilan at 8:21 PM

 
OBAMA'S RIGHT: IGNORE HILLARY
Today, Barack Obama did something he should have done weeks ago. He was criticized for it by the news media, but it was nonetheless the right decision. He decided to ignore the West Virginia primary and concentrate on his general election matchup with John McCain.

What's that, you say? He hasn't won the Democratic nomination yet? Sorry, from his vantage point, he has. Politics is about creating expectations. One reason Bush was able to win the Florida recount in 2000 is that his partisans were skilled at creating the belief that he had already won. It didn't matter whether they had or not; Bush and his surrogates said it enough times that it was taken as a plausible argument.

At this point, nothing can derail Obama other than some out-of-the-blue attack. By engaging with Clinton and pretending she's still in the race, Obama increases slightly the chance that such an attack might stick. So, he's not doing it anymore. He spent today in Missouri, a state that has already had its Democratic primary and will be important as a swing state in the general election. He's going to Michigan later in the week, a state that held a no contest primary which Clinton defrauded Obama into not campaigning in, but which will be important in the general election.

I don't think Clinton's continued presence in the race harms Obama. But that doesn't mean that Obama has any obligation to engage her. Let her stay in the race, but don't take the bait. The superdelegates are clearly breaking for Obama, there's no way Clinton can catch up in the pledged delegate count, and the thing's going to be officially over the day after the last primary (as even Clinton supporters are now conceding). Just start running ads and making attacks against McCain, and keep on visiting important general election states. If you act like the race is over, it will be over.

Labels: Obama Clinton McCain primaries Democratic general election

posted by Dilan at 11:06 PM

 
WHY ISN'T MCCAIN MOVING TO THE LEFT/CENTER?
John McCain made some news last week giving a boilerplate speech about appointing conservative judges. (Memo to conservatives: saying "I favor judges who interpret the law and don't make law" is not a serious analysis of jurisprudence.)

There's nothing particularly remarkable about this: both Bushes promised the same thing (although Bush 41 diverted from his rhetoric and appointed liberal David Souter as well as conservative Clarence Thomas, and Bush 43 sought to put crony Harriet Miers to the Court). Reagan said it, and Dole said it too.

But what's strange about this is the timing. John McCain has already clinched the Republican nomination. This rhetoric on judges is the type of thing you do to attract conservatives during the primaries. The primaries are over. Conservatives (many of whom love the Iraq War and almost all of whom aren't willing to vote for Obama) are going to vote for McCain. They have nowhere else to go. Yes, they don't like his positions on campaign finance and immigration, but they have no leverage.

Richard Nixon, who, whatever you think about him, was quite good at winning elections, mastered the art of moving to the right in the primaries and moving to the left in the general election. And yet the right stuck with him until the last dog died. Why? Because they loved the fact that he won elections and drove liberals crazy. Indeed, despite my ambivalent opinion of Bill Clinton, it is clear most liberals loved the guy, for the same sorts of reasons-- he won elections and drove conservatives crazy.

John McCain cannot win this election by offering warmed over conservativism. Period. Huge majorities of the American people deserted conservativism due to Katrina and Iraq. The economic situation doesn't help conservatives either, and health care is also a winning issue for Democrats. I know a lot of conservatives think that they can win the election on meaningless hot-button issues like they did in 1988 with the Pledge of Allegiance and 2004 with the Swift Boat Veterans, but this isn't happening. In 1988, Bush was running for Reagan's 3rd term, and Reagan was immensely popular. The flag salute and Willie Horton are well remembered, but Bush would have won anyway. And in 2004, Kerry barely lost. Had he been able to articulate a plausible alternative narrative on Iraq, he would have won. He lost because he had originally supported the war and couldn't explain his twists and turns.

2008 is a much worse environment than 2004 for Republicans. We have had four more years of the pointless carnage in Iraq (and no, the "surge" is not a winning issue the way Republicans portray it-- it's one thing to "surge" and get out, but what Republicans advocate is permanent occupation of Iraq). We have had Katrina and what it exposed about Republican governance. We have a terrible economy and distress.

John McCain, if he wants to win this election, needs to start screwing over conservatives, big time, and moving to the left. Nixon favored the EPA, OSHA, a guaranteed income for all Americans, and national health care, and he at least professed the desire to end the Vietnam War and get American troops out. He needs to dare conservatives not to vote for him. Because the truth is that their threat is complete bluster. Meanwhile, the threat of average American voters deserting the Republican Party is very real. And Jeremiah Wright isn't going to bring them back.

Labels: McCain liberalism conservativism republicans democrats

posted by Dilan at 9:51 PM

 
WHY DO NETWORKS NEED TO "CALL" RACES?:
The other night, one of the networks "called" Indiana for Hillary Clinton very early on, while the other networks decided to wait until later in the night. Hillary Clinton ended up winning in a close vote, but the decision not to "call" the race early looked good in light of the fact that Obama closed the deficit late in the count as results came in from Gary, Indiana, from voters who presumably knew Obama from Chicago politics and overwhelmingly voted for him.

But that raises the question of why networks "call" races at all. In an election, after all, there are a certain number of votes, they are counted, and some prize is awarded based on the result of the count. (In Democratic primaries, in fact, the total vote counts of states are actually less relevant than the media would have you believe-- the delegates are allocated according to complex formulae, sometimes according to congressional district, sometimes proportionally, sometimes in a sort of hybrid.)

Leaving the parenthetical point aside, the state is "won" by the candidate who receives the most votes. The votes are counted and the tallies are announced. But networks "call" states based not on those tallies (or not solely on those tallies), but based on "exit polls", statistical samples of voters (which, it might be noted, have not been particularly accurate in the last few election cycles).

Why, exactly, do we need this? Who decided it was a news story what a sample of voters who were polled decided? This is an especially strange type of "news" considering that news organizations do not generally release the actual results of the exit polls (perhaps because they don't want to call our attention to how inaccurate they are). Indeed, the media consortium that conducts exit polls has gone to greater and greater lengths each election cycle to prevent us from knowing the exit poll results. (Of course, these attempts have been largely ineffectual, but that hasn't stopped them from trying.)

So, it is considered big news-- indeed, bigger than the actual vote counts, given the amount of hoopla the networks surround their projections with-- that the network has used a poll that we cannot see the results of to predict what candidate will, in a few hours, turn out to have more votes.

Of course, the obvious reason they do this is because waiting for electoral results would require that networks stay on late into the night. The projections, therefore, allow the network to get the news coverage off the air and get back to regular sponsored programming. All the better to make money.

This would be harmless enough if we were talking about something like "American Idol". But elections matter. And network projections matter. Exhibit A for this is 2000, when the networks first projected Florida for Gore, and then reversed and projected for Bush (and with that second projection, further projected that Bush had won the election). By the time they withdrew their projections, the networks had implanted in millions of Americans the idea that Bush had won the election and Gore was trying to overturn the result.

I don't see much that can be done about this. The networks aren't going to change their ways. But we viewers can and should ignore network projections. Let them count the actual votes. Sure, maybe we won't know who won the election until breakfast. Is that really such a big deal? Are we that impatient?

Labels: network projections elections

posted by Dilan at 7:16 PM

 
FLORIDA AND MICHIGAN– AND IOWA AND NEW HAMPSHIRE:
While the Democratic presidential race looks like it may finally be coming to a conclusion, the issue of what to do about Florida and Michigan’s delegations is still unresolved.

As a preliminary matter, I am not at all convinced of the conventional wisdom that Florida and Michigan delegations must be seated for electoral reasons. This is based on the theory that voters who would otherwise vote Democratic (say, because they want to end the war in Iraq or want better health care or are ticked off about Republican mismanagement of the economy or disaster relief or just because they like Barack Obama) will be so ticked off over who gets credentialed at the (likely meaningless) Democratic Convention in Denver that they will sit out the election or vote for John McCain. That entire line of reasoning seems doubtful at best.

But assuming the issue has any importance at all, the media has gotten this quite wrong. What happened is this. Traditionally, political primaries were not that important. New Hampshire went first, but many states didn’t have primaries at all and many states that did have primaries didn’t have much impact on the election because the voters did not vote for leading candidates. Rather, political insiders controlled the bulk of the delegates at the conventions and they selected the presidential nominees.

In the 1960's and 1970's, this began to change, with more states holding primaries as well as caucuses (which were more informal and had lower rates of participation than primaries), leading candidates campaigning through the primaries and caucuses, and the media covering them. Suddenly, the primaries were important, and New Hampshire was still going first. And Iowa secured its spot in 1976, when Jimmy Carter, a not-particularly-well-known state governor, won the Iowa caucuses which were held before the New Hampshire primary.

Ever since then, the history has been as follows: the primaries have grown to greater and greater importance each cycle, with more media coverage and more importance attached to early primary results. Thus, you can no longer enter the race in March, as Robert F. Kennedy did in 1968, and have a shot at the nomination. Rather, you have to campaign at least a year out in Iowa and New Hampshire. Candidates respond to this by pandering to these small, unrepresentative states’ parochial interests, giving us stupid ethanol subsidies because of Iowa’s powerful corn industry. More important to our story, candidates also pander to Iowa’s and New Hampshire’s strong desire to maintain their first-in-the-nation positions and their outsized influence.

Meanwhile, in a series of successive elections, the nomination got decided earlier and earlier in the process. States that held late primaries found themselves holding meaningless votes. Not only that, but even those states whose votes were early enough to “matter” were left with 2 or 3 viable candidates to vote for, because the bulk of the candidates (including some very qualified people) were forced to drop out after Iowa and New Hampshire as their money dried up after poor showings.

So, the natural reaction of other states was to move their primaries up in the calendar. Now here’s where it gets interesting. Because the national parties actually like Iowa and New Hampshire. There are many possible reasons for this, though, interestingly, it doesn’t get as much comment as it should. I suspect part of it is that small states like Iowa and New Hampshire are actually more susceptible to the influence of insiders, because superior organization, provided by party insiders, and important interest groups (such as labor unions), can win a small state. (In contrast, you win a big state by putting lots of advertisements on the air, and fundraising, unlike organization, is harder for insiders to control or influence.) Another possible explanation I have seen floated for the love of New Hampshire, at the very least, is that it is close enough to the Washington, D.C. and New York areas to be relatively easily accessible for the candidates, donors, and media.

In any event, whatever the reason, it is clear that the parties are committed to having Iowa and New Hampshire go first. So each election cycle, they pass rules that punish states that move their primaries up and position them either before Iowa and New Hampshire or too soon thereafter. The usual way this works is that they refuse to seat at the convention some of the delegates from the states that move up their primaries.

Of course, this has proved to be a toothless sanction, as states accurately perceived that the conventions didn’t matter but the time you held a primary did. So they continued to move up primaries despite the sanctions. In response, Howard Dean, the DNC chairman, upped the ante in 2008. He responded to criticisms about Iowa and New Hampshire being unrepresentative states by allowing the more diverse small states of Nevada (with plenty of Hispanics) and South Carolina (with plenty of blacks) to go earlier than other states (though Iowa would still be the first caucus and New Hampshire the first primary). But he also said that if any state went early, they would lose all of their delegates. Not half, all. Further, Dean got the major candidates to agree tht they would not campaign in rulebreaking states, in the hope that the lack of campaigning would discredit the results and keep the media from covering them or assigning them any importance. (Remember, media coverage is crucial here, because it is precisely the media coverage given to early states that makes them so important. Iowa’s and New Hampshire’s respective shares of the total number of delegates to the conventions are minuscule.)

Of course, that gets us to Florida and Michigan. They perceived that even losing all of their delegates and not having campaigning wouldn’t outweigh the advantage gained from going early. And, to address a talking point put forth by Clinton supporters, this was true of Democrats as well as Republicans. If there is one thing that is a matter of true and genuine bipartisan agreement, it is the belief in big states that it isn’t fair that their votes in presidential primaries don’t count while Iowa and New Hampshire voters are kingmakers.

So, Florida and Michigan decided to buck the rules, based on the calculation that this was the only way to ensure that their voters’ votes would count at all, because media coverage of their primary election winners was more valuable than actual convention delegates selected too late in the process to matter.

Of course, they lost their bet. First, Obama and Edwards took their names off the ballot in Michigan, effectively rendering that primary into a farce. Second, it turned out that the later primaries did matter, because Obama and Clinton were so closely matched. (It should be mentioned that the bet was only a bad bet on the Democratic side– Florida Republicans got to be the voters who ended Rudy Giuliani’s bid and propelled John McCain to the nomination.) Third, again because of the close match between Obama and Clinton, the party is not in a position to seat the states delegations’ notwithstanding the rules (this ran contrary to another assumption of Florida and Michigan political leaders, who figured that after the nominee was selected, the parties would find a way to seat delegations so that all 50 states were represented at the conventions). Rather, the party has to remain neutral on the issue and insist on enforcing the rules as long as Obama and Clinton continue to compete for the nomination, because anything else would be seen as changing the rules to benefit Clinton.

Now, here’s the key. If you listen to the media, there are many villains here. Hillary Clinton, of course, gets blamed (and rightly so) for insisting that these states should count after she agreed they wouldn’t when she was pandering to get votes in Iowa and New Hampshire. The politicians in Michigan and Florida are blamed for moving up their primaries and then seeking a rule change when it didn’t work out the way they planned. They were warned, of course. State legislatures are being blamed, along with the DNC and the Obama campaign, for not coming up with a scheme to hold make-up primaries or caucuses.

But what is amazing to me is that the most culpable parties in this entire story are getting off scot-free, with no criticism whatsoever. That’s right, Iowa and New Hampshire. It is their insistence on going first that caused the entire problem.

The fact is, nobody would ever deliberately create a system where two lily-white tiny states with parochial interests and populations that are so unlike the rest of the country would be given a disproportionate influence on the presidential selection process, including the power to veto candidates who might be more effective and desirable representatives for the much larger populations in the bigger states. And this crisis flows directly from their insistence that only they can go first.

I have heard a lot of talk about how the Democratic Party, the states, and the campaigns might fix the Florida and Michigan situations in this cycle. But absent a serious reform of the process that lets other states in and doesn’t give an entirely unfair and inordinate amount of influence to these two states, there’s no reason to believe that other states won’t again move up their primaries in 2012. And who can blame them? In the vast majority of election cycles, we won’t see a Clinton-Obama-style race where the late states matter. And the only way a state can participate in screening the candidates and narrowing the field is to go early. Until the parties take on Iowa and New Hampshire and put them in their place, this problem is likely to recur every four years.

Labels: iowa new hampshire michigan florida primaries

posted by Dilan at 10:29 PM

 
IF HILLARY WANTS TO STAY IN, LET HER:
I support Barack Obama in the Democratic primaries. Indeed, the supposed political brilliance of the Clintons has always eluded me-- Bill Clinton got less than 50 percent of the vote twice against crappy opposition, he lost the Congress in 1994 for the first time in 50 years because the public was so dissatisfied with his performance, he was impeached in 1998 because he decided to lie in a deposition and drag the country through 8 months of further lies until he was caught dead to rights, and while he ran the country well enough (especially on budgetary issues and the economy), he failed to accomplish anything particularly meaningful in eight years.

And Hillary, of course, ran health care into the ground (without even proposing a liberal plan in the first instance), won a Senate seat by leapfrogging over more impressive New York politicians like Nita Lowey who had paid their dues for years, and didn't accomplish anything in the Senate except voting for the war in Iraq, the biggest American foreign policy disaster since Vietnam.

Nonetheless, while tonight's loss in North Carolina and virtual tie in Indiana will increase the volume of calls for her to get out of the race, I don't have any particular desire to join the chorus. Why? Because I think the arguments for that-- the alleged harm of attacks against Obama and the need for a "unified" convention-- are entirely overrated.

First, it is important to note that Clinton, while in second place, is not far behind. In truth, if she could convince superdelegates to vote for her, she could still wrest the nomination away from Obama. (She won't do that, but that doesn't mean that she is mathematically out.) In the old days, a candidate with Clinton's level of support would have certainly been permitted to take her cause to the convention.

Why, then, must she drop out after winning more votes than any second place finisher in history? Allegedly, it is because her attacks on Obama are helping the Republicans. But are they? First, her attacks are fairly mild-- she is careful to praise Obama often, and making stupid arguments about a gas tax holiday is hardly a historic example of dirty politics. And forcing Obama to respond to mild attacks probably does him some good as a candidate.

Second, there seems to be this abiding conviction that the political conventions need to be shows of unity. But why? I'll let you in on a dirty little secret. Nobody watches conventions anymore. People don't care about them. Networks don't cover them. They may be slickly produced, expensive infomercials, but they are completely inconsequential ones.

Except-- if a convention actually decided something, people would watch. Indeed, a contested Democratic convention would be the best thing to happen to Democratic politics in years. While the Republican snoozefest would be ignored, millions of Americans would tune in to see the Clinton folks do battle for the nomination. Yes, there would be some disunity on display. But this would also mean that millions of Americans would hear Democrats giving speeches on Democratic issues, like health care, the economy, and opposition to the Iraq War. While in politics, unlike some other parts of life, there is such a thing as bad publicity, in this scenario, the good would clearly outweigh the bad.

So let Hillary take her cause and her delegates to the convention. She earned it, and it's good for the party. But I do wish she'd shut up about that gas tax.

Labels: Hillary Clinton Barack Obama Democratic Party convention

posted by Dilan at 9:04 PM

 
ON HORSE RACING AND CRUELTY:
One with no acquaintance to the sport of horse racing probably wonders, after high profile fatalities like the loss of Eight Belles in Saturday’s Kentucky Derby and the eventual death of Barbaro as a result of a breakdown in the 2006 Preakness, why such a cruel sport is legal. A cynic, of course, would point to its lucrative betting pools and resulting tax revenues, though in truth the sport is down and doesn’t generate the interest that it once did. (While much in the film “Seabiscuit” was dramatized and fictionalized, the depiction of the large crowds that attended big horse races in those days is entirely accurate.) And, of course, there’s the fact that when something is culturally accepted and a societal tradition, it is much harder to legislate against it. Surely many Spaniards know the cruelties involved in bullfighting and are sickened by it, but don’t expect Spain to make it illegal any time in the foreseeable future.

Nonetheless, why do so many Americans love a sport that clearly puts beautiful animals at risk? Of course, betting is part of it. While horse racing is no longer the only option for legal gambling, it is still a game of skill that offers better odds than the lottery and at least the theoretical possibility that the game can be beaten. Horse racing also offers an intellectual puzzle; a combination between statistical analysis of the horses’ and trainers’ past performances and intuitions about the trainers’ intentions and how the race might be run.

But there’s more to it than degenerate gamblers. Many fans of the sport truly love horses. I am probably not the best person to comment about this– to me, most horses look pretty similar– but the sight of horses running in a pack at top speed has a visceral appeal to many people. And even I can tell you of some champion horses who looked like champions– a horse like 1989 Belmont Stakes winner Easy Goer was huge, with bright red hair, and ran with an efficient stride that appeared to gobble up ground. He was a thrill to watch.

So horse racing fans are in a bind. It is a wonderful sport, both for the gambling action and for the pageantry of the sport. But it is a terrible sport, because even top horses risk their lives. Now, to be sure, statistically, fatal breakdowns are not common, and the fact that we have seen two in the past three Triple Crown cycles is a horrible coincidence.

Nonetheless, the sport is not where it should be on safety. An analogy can be drawn to meat eating. The truly ethical position is to be a vegetarian. However, we are programmed to eat meat, meat is often economical, and for some it is the only convenient food available. Nonetheless, deciding that it is not unethical to eat meat doesn’t mean that our factory farming system, with its reliance on inhumane conditions, massive doses of growth hormones, and environmental pollution should be tolerated or is morally justified.

Horse racing is filled with practices that make the breakdown rate worse. Horses are bred with little regard to soundness, because the breeders just sell the horses as yearlings and the injuries are not their problem. Buyers just want to make their money back as quickly as possible, so horses are rushed to the track. Injuries are masked with pain-killing and performance enhancing drugs, which shouldn’t be legal but are. Trainers, wanting to protect their employers’ investments and maximize their breeding value, no longer race horses into condition and instead come into big races off workouts alone.

And the true tragedy is that although everyone in the sport realizes these things, the regulatory apparatus for horse racing is so diffuse, with different regulations in every state and racetracks and governmental agencies sharing the regulatory burden, that it is likely that nothing will ever get done about them.

The only major reform coming down the pike is synthetic racing surfaces. And it is true, these might reduce breakdowns (the results are inconclusive so far). But synthetic surfaces are being treated as a cure-all for all that ails the sport, when in fact all they are is mitigation for all the horrible ways in which the sport is abusing the animals.

I suppose I will like horse racing until the day I die. But the sport does not make itself easy to love. And if these high profile breakdowns continue to happen, perhaps the public will reach a point when it is had enough. The interests who are preventing reform of the industry are hastening that day.
posted by Dilan at 11:03 PM

 
ON "MORAL EQUIVALENCE":
One of the biggest cliches in our public discourse is the term "moral equivalence". "Moral equivalence" is supposed to be a huge sin. It occurs when a person compares action A, usually done by the United States or one of its allies, with action B, done by some notoriously evil regime. The argument is that comparing action A to action B in that situation is improper, because it makes it sound like the generally good regime that engages in action A is the moral equivalent of the evil regime that engaged in action B.

When placed in this abstract form, one can instantly see several things wrong. Most importantly, it refocuses the debate away from how similar actions A and B are to how the nation engaging in action A is good and the nation engaging in action B is evil. To see how this is pernicious, let's conduct an experiment (and violate Godwin's Law in doing it). Suppose the United States decided to round up all Jewish Americans, place them in concentration camps, and kill them with poison gas. Now, an objector to this policy stands up and says "this is a terrible policy! This is exactly what the Nazis did!"

In response, a defender of American policy replies "you are drawing a moral equivalence between us and the Nazis. You should be ashamed of yourself. Why do you hate America?"

Now, obviously, that analogy is exaggerated for effect. But the point is that the validity of any analogy between two regimes depends on how similar the policies being compared are, and
the concept of "moral equivalence" does not add anything here; rather, it distracts from that analysis in favor of a per se rule that one can never compare the actions of "good" regimes to the actions of "evil" regimes.

Further, the "moral equivalence" argument is itself a very pernicious concept. It is an attempt to shut down criticism of the regime that engages in action A. Analogies are very powerful arguments. They can be false, of course, or circumstances can be different. But, take the torture debate. While many people can figure out that torture is wrong without an analogy, it certainly is powerful to point out that some of the worst regimes in history waterboarded and used other "enhanced interrogation techniques". That is evidence that such techniques are, in fact, torture. The entire point of "moral equivalence" claim it to make sure that this powerful analogy never gets made. Essentially, it doesn't matter how many techniques associated with Stalin and Pol Pot that we adopt, since we are not Pol Pot or Stalin (true enough), there is no basis for criticizing our conduct.

Additionally, the claim of "moral equivalence" is intellectually dishonest. People who draw these analogies are not, after all, saying that the regime engaging in action A is the moral equivalent of the regime engaging in action B. Indeed, they are saying the opposite-- that because everyone knows that the regime engaging in action A is not the moral equivalent of the regime engaging in action B, it is deeply troublesome that the former regime would adopt some of the latter regime's tactics. The whole point is that regimes should hold themselves to higher standards than those set by people like Hitler. The person raising the issue of "moral equivalence", therefore, is deliberately miscasting the argument so that it can be discredited without refutation.

"Moral equivalence" is poison to the discourse. It should be jettisoned.

Labels: moral equivalence

posted by Dilan at 5:04 PM

 
WHAT CONSERVATIVES DON'T UNDERSTAND ABOUT RACISM:
Recently, movement conservativism mounted a pushback against a meme that had gained some currency, with David Brooks and National Review Online, among others, contending that Ronald Reagan's infamous endorsement of "states rights" at his 1980 campaign kickoff event in Philadelphia, Mississippi, where three civil rights workers had been slain in the 1960's, was not intended to endorse racism.

The reason for the pushback is obvious. Historically, American conservativism has been associated with racism, especially in the Deep South, and conservatives now rely on the votes of white Southerners for electoral success. Furthermore, blacks nowadays cast their lot with liberals, and the conservative movement tends to oppose various measures supported by blacks to improve their lot. Conservatives, however, have to be careful not to out and out endorse racism; "color-blindness", where minorities don't get preferential treatment, and "benign neglect", where the needs of minorities are ignored but the government does not actively target minorities for unfavorable treatment, can be broadly popular with the American people. However, out and out advocacy of racism is a pretty sure ticket in many parts of the country to getting thrown out of office.

So conservatives who are not racists understandably protest when they are accused of racism, or of encouraging or condoning it. And they protest when their movement's heroes, such as Reagan, are accused of it. Most honest conservatives will acknowledge that the conservative movement, at one time, was deeply wrong on racial issues, but they will insist that this era is over.

But if you listen to the views of ordinary conservatives-- callers on talk radio, posters on comments threads, etc.-- you will quickly see how this is not the whole story. In fact, you can find plenty of out and out racism among the conservative faithful.

A perfect example of this is an opinion I have heard a lot of lately-- that the Democrats are "racists" because they let Al Sharpton and Jesse Jackson into debates in presidential campaigns. In this narrative, Sharpton and Jackson are "racists" because they advocate color-conscious remedies for racism, and because of some past comments about Jews. Some conservatives will paint an even broader brush-- that all liberals are "racists" because of support for affirmative action. (Of course, many liberals oppose race-conscious affirmative action, but nuance and subtlety is often lost on conservatives.)

Let's be clear here-- anti-Semitic comments by black civil rights leaders should be condemned. Make enough of them and I am perfectly willing to call the person a bigot. The argument-- made by some black academics-- that blacks cannot be racist is silly.

But even more silly is the narrative of racism that seems to be adopted by many conservatives, i.e., that advocating for a race-conscious remedy for discrimination is the same thing as hating people because of their skin color, believing that they are inferior, refusing to hire or associate with them, and supporting governmental discrimination against them. Yes, I know, there is a long tradition of advocacy for "color-blindness" in the civil rights movement. And there are very valid arguments in its favor. But someone who thinks that because historically, a lot of smart blacks never got a chance to go to the best colleges, it is valuable to take steps to make sure they can is not Governor Faubus or Strom Thurmond.

In fact, there is still a ton of real racism out there. Look at the number of people who openly want to profile all Muslims and subject them to special scrutiny and searches and seizures. Look at the number of people who condone racial disparities in policework and criminal sentencing. Look at the people who want our immigration policy to let in white people and keep out Spanish-speaking brown people.

The thing is, if conservatives really want to show us that they are not tainted by racism, they should condemn these things, and in specific terms. Not offer justifications for them, not encourage them, and not stay silent as their constituents continue to be poisoned by virulent hate of racial minorities. Conservative movement leaders should be forced to admit that no, affirmative action may be wrong but it isn't racist. That Jesse Jackson and Al Sharpton aren't the greatest sources of racism in society. That government programs that single out minorities for worse treatment are wrong.

They don't want to say it. And that's why I don't have much patience for their defenses of their sainted Ronald Reagan on race.

Labels: conservative racism Reagan affirmative action

posted by Dilan at 2:31 PM

 
INDIVIDUAL MANDATES:
The health care crisis is amazingly an issue that is both incredibly complex and devilishly simple. It is incredibly complex because it involves such things as: (1) the fact that 40 million or so Americans lack insurance; (2) the overuse of emergency room care and the effect of unpaid hospital billings on the credit system; (3) the control of health care costs; (4) the amount we should spend on elective care, and experimental drugs and treatments; (5) the desirability of a link between employment and health care; and (6) the choice of young, healthy people not to participate in the risk pool.

It is devilishly simple because the Medicare system solves all the problems with respect to seniors, and extending it to all Americans, creating a single payer like they have in Canada, would be the preferred public policy outcome.

However, Americans are easily scared by the insurance industry and therefore the public support for single payer isn't there. So the Democrats have settled on lousy ideas for health reform. In 1992 it was "managed competition", where employers were forced to buy insurance through private insurance companies, who didn't play any constructive role except to drive up costs and make the system more complicated. Now, it's the "individual mandate", supported by Hillary this time around and by John Edwards as well, where rather than actually providing insurance to all Americans, the government solves the problem by legal fiat, by forcing us to buy coverage, with alleged subsidies for lower income Americans.

Here's the dirty little secret, however. The individual mandate, in addition to being immoral (you do not solve poverty problems by simply passing laws requiring poor people to purchase things they can't afford), won't work.

Here's what I envision happening. First, the Republicans in the Senate will filibuster any universal health bill, like they are stopping the expansion of the S-CHIP Children's health program. So, to buy off the Republicans, Edwards/Clinton will have to either eliminate the individual mandate and/or reduce the subsidies. So you won't get a workable plan to begin with, because the Democratic candidate was unwilling to open the bidding with single payer and bargain down.

Second, let's suppose the thing gets passed. Now you have a program with two components: an individual mandate, which powerful insurers may like, because it means more customers, and big subsidies for poor and some middle-class people, which Republicans hate. Now, what gets cut every year? If you don't believe me, look at how Medicare, a single payer, universal program, is sheltered from budget cuts while Medicaid, Women Infants And Children, and other such programs are placed under huge cost constraints. Because we don't have a single payer plan, we will have a big subsidy for poor people that the Republicans will target and cut. Or, even more likely, they just won't let it rise at the rate of inflation of health care costs (which is greater than the rate of inflation for most consumer goods). The result is, we'll lose the subsidies and be left with a mandate for the poor and middle class to spend money they don't have. A nice regressive tax, put in by Democrats.

Now, there's also, you may have heard, a prong of these plans that features a public health care plan that will be in competition with the private plans. Don't bet on it surviving. That will be the first things that Republicans kill in negotiations, because it will be seen as a back door to single payer. Even if it gets passed, it will be gutted. Don't believe me? Bill Clinton created a public student loan program that competes with the private bank loans. The Republicans have decimated that program to ensure that it never becomes the preferred method of getting a student loan. All that campaign money from private industry will do that to you.

In contrast, all we have to do is slowly expand the single payer plans we already have, show the public that the sky doesn't fall, and we will be well on our way to a single payer plan that will actually solve the problem.

This is a good reason, one of many (the Iraq War being the biggest) why people shouldn't vote for Hillary Clinton or John Edwards. But if they do win, I hope their health care plan goes down in flames. We don't need something that is structured to turn into a regressive tax on the poor and which is designed to prevent us from getting to the single payer system we need.

Labels: single payer Medicare health care reform Clinton Edwards

posted by Dilan at 10:31 PM

 
OBAMA IS LEADING BECAUSE THE IRAQ WAR DOES MATTER:
Matt Yglesias points out a trend by former Iraq hawks like Peter Beinart and David Brooks to say that Iraq is losing salience as an issue, voters therefore are not looking for someone "tough" on foreign policy (i.e., hawkish), and this explains Obama's rise in the polls.

This is a classic example of wishful thinking by hawks. In fact, there is a more obvious alternate explanation. The Democratic base is just as ticked off about Iraq as it was 3 or 6 months ago. (Nobody in the Democratic base believes the alleged military success of the "surge" justifies us continuing to stay in Iraq indefinitely.) Obama happens to be the one candidate, among the three leading Democrats, who opposed the war. As voters find that out (because he tells them), he's surging in the polls.

Really, you would be surprised how many Hillary Clinton supporters assume she is anti-war. They just have no idea. (This is part of a more general phenomenon that people do not know how conservative she is.)

One of the overlooked issues in the campaign coverage is the potential for an Obama nomination and election to cause a seismic shift in Democratic Party orthodoxy on foreign policy, which has not changed much in 30 years ever since the party leadership decided that it must never under any circumstances look dovish because that will lead to McGovern-like losses. (Of course, in truth, the reason the Democratic Party had no credibility on Vietnam is because John Kennedy and Lyndon Johnson were so deeply responsible for that war.) If Obama wins the primary and wins the general (a very distinct possibility), suddenly there will be a lot of Democrats who are going to become very fearful that the base won't let them have mindlessly hawkish positions anymore.

Labels: Iraq hawks Obama

posted by Dilan at 9:09 PM

 
SHIELD LAWS:
There has been a lot of discussion of the need for shield laws in the media, with the Valerie Plame case heating up. ("Shield laws" are laws that create a "reporter-source" privilege that allows reporters to avoid testifying regarding what their sources told them in an investigation.)Unfortunately, the media seems to be betraying its institutional bias in favor of shield laws as necessary to ensure that the next Watergate story doesn't get squelched. Meanwhile, those who oppose shield laws are responding, some with sophisiticated arguments, others with screeds about how bad the Plame leakers were. This issue is neither as simple as "reporters need to be able to promise anonymity" nor is it as simple as "a crime was committed, so the reporters must testify". Rather, the issue of enacting a shield law concerns a number of complicated issues, such as:

(1) Who is a journalist? Is a blogger a journalist? Howabout someone commenting on a blog? Does the First Amendment permit discrimination in favor of those who own printing presses or radio stations as opposed to those who use cheaper media? And is it advisable to create a privilege that may be asserted by anyone who posts on the internet?

(2) Why should any privilege extend to nonpublished information (Ms. Miller, after all, never published the information)? Isn't the purpose of the privilege to protect the ability of journalists to publicly divulge information that is embarrassing to those in power? Should Washington gossip, passed on to reporters and never published, be privileged? Especially if such gossip is illegal?

(3) Is the shield law worth the cost to the criminal justice system, i.e., in convictions that will be unattainable if the reporters' testimony is not compelled? Every new privilege comes at this cost, and for this reason, courts and legislatures DO NOT protect all confidential relationships. Parents can be forced to testify about conversations with their children, accountants (in many jurisdictions) can be forced to testify about conversations with their clients, best friends can be forced to reveal their closest confidences, etc. In each case, a privilege could be recognized, but it would mean that some criminals would walk. Is it worth it here?

(4) Other privileges are not absolute and also come with the proviso that the person asserting the privilege must obey a valid court order overriding the claim of privilege. Why should journalists have an absolute privilege? Why isn't a showing of compelling need, or the unavailability of the information from other sources, a sufficient justification to override the privilege? What if the leak itself is the crime, such that the journalist is the ONLY person who can testify as to whether the crime was committed? And why shouldn't journalists who disobey orders overruling privilege claims go to jail? That's what happens to lawyers and doctors and priests and psychotherapists who refuse to produce information that they are ordered to produce, after a privilege claim is overruled?

(5) Isn't it a concern that the broader the privilege that is granted, the more likely it is that journalists will contract to keep their sources anonymous in situations where there is NO compelling public need to do so? Is that a cost worth paying? Doesn't this case demonstrate that? Why were seasoned Washington reporters contracting with White House officials to keep them anonymous while they leaked secrets with national security implications so they could discredit a political opponent? We're a far cry from Watergate, aren't we?

(6) Is absolute confidentiality a necessity for reporters to obtain information? Lawyers, after all, can't grant absolute confidentiality-- there are several exceptions to the lawyer-client privilege-- and yet, clients talk to their lawyers about crimes that could result in their execution. Similarly, doctors and therapists can't grant absolute confidentiality, and yet people talk to them as well.

(7) Aren't most prosecutors extremely reticent to subpoena journalists? Exactly how many journalists have been jailed in the past 30 years for refusing to reveal sources? Aren't there guidelines that discourage this tactic in most cases? Is the prospect that a prosecutor may subpoena the reporter really so great that it impedes the promise of confidentiality granted by the reporter?

None of this is to suggest that there is no room for shield laws. Shield laws obviously do protect reporters in the Watergate situation where the government is out to punish leakers of embarrassing information. What this is intended to suggest is that this issue is not easy, and reflexive defenses of the media's right to promise absolute confidentiality, all the time, do not really appreciate the depth of the policy issues involved.
posted by Dilan at 10:32 PM

 
IF YOU ARE GOING TO HOLD YOURSELF OUT AS AN ILLEGAL IMMIGRATION EXPERT, IT HELPS TO KNOW SOMETHING ABOUT ILLEGAL IMMIGRANTS:
Mark Krikorian, who holds a position with one of the major right wing think tanks on the immigration issue, comes up with this gem of a post at the Corner:

"In an NRODT piece last year on an immigration strategy of attrition (as opposed to my cover story in the current issue, which you could read if you were a subscriber), I referred to 'virtual chokepoints' where interior immigration enforcement should be conducted – events that were necessary for normal life in a modern society but infrequent, like applying for a driver’s license. Another chokepoint is applying for a mortgage, which illegals aliens shouldn’t be able to do if we’re actually serious about controlling immigration. Of course, not only are they are allowed to do so now but, as this story from a correspondent indicates, banks are actively marketing mortgages to illegal aliens. In fact, the bank in question actually issued a press release bragging about the program, quoting the Mexican Consul General in Atlanta saying that the program would enable illegal aliens 'to become further involved in the local community.' This, indeed, is the central political question in immigration – do we squeeze the illegals to make them leave and deter others, or do we embrace them through legalization, either de facto legalization like this mortgage program or the de jure version, as the president and others are proposing."

This is pretty astounding. Anyone who knows the slightest thing about how illegal immigrants live their lives know that they manage to circumvent these sorts of obstacles, because they know that life without certain privileges in this country is far better than life with those privileges in their own countries (usually because you can get a good paying job here and you can't back home).

If you don't allow illegal immigrants to cash their paycheck at the bank, they will cash it at a check cashing place. If you don't allow them to get a driver's license, they will take the bus. If you don't allow them to go to the public hospital, they will go to smaller clinics.

Yet here is a person-- WHO PURPORTS TO BE AN EXPERT ON THIS SUBJECT-- who thinks that denying mortgages to illegal immigrants is going to cause them to LEAVE THE COUNTRY!?! I guess all that right-wing seed money didn't buy much.

You know it's a standard piece of liberal tripe that often times prejudiced people are people who don't know anyone really well from the group that they are prejudiced against. Thus, integration and racial diversity are important goals because people who are around minorities and have friends of color are less likely to be racists.

Similarly, having a gay friend or relative affects one's view about homosexuality. (It certainly affects the Vice-President's view of it.)

Obviously, Mr. Krikorian hasn't gotten to know many illegal immigrants. You would think, even though he is on the side of trying to keep them out of the country, that he would, as an alleged scholar on this issue, try and learn about the subject matter including by talking to some of them and understanding their motivations. They aren't hard to find, you know-- many, many academics have done studies where they have interviewed them and learned why they come and why they stay in the country and how they live their lives.

In any event, I don't see how someone who expresses this shallow a viewpoint about the motivations of illegal immigrants can possibly be taken seriously as an expert on immigration policy. Of course, they pay him to express a viewpoint, not to get his facts right.
posted by Dilan at 7:56 PM

 
THE PURCHASING OF PUNDITS:
Robert Novak has been in the news the last year or so, because of his role in the leaking of Valerie Plame's name as a CIA agent. But those who see Novak's column or his television appearances over the last three years may have noticed something else about him, something that while related to the Plame situation encompasses some of the other things he writes and says as well.

Novak has, ever since the end of the cold war, been something of a foreign policy isolationist. He opposed the first Gulf War, as well as Clinton's campaigns in the Balkans and W's Iraq invasion. At the time Bush proposed it, Novak ripped into Bush with his normal fierce rhetoric. Since that invastion, of course, some who supported the war have been convinced by the WMD debacle or the postwar chaos to recant their support. However, I know of nobody who opposed the invasion and flip-flopped the other way. Except Novak.

Novak has explained himself by saying though he opposed the invasion, it went better than he thought it would. He is the only person who thinks so. Since Novak's position makes no logical sense, how can it be explained? I think pretty simply. Novak is a journalist and commentator who relies on Washington insider sources to provide the information for his columns. Karl Rove and the Bush Administration are famously adept at playing hardball with those who do not sing their tune. Novak was probably told, either explicitly or implicitly, that if he wanted tidbits and scoops, he needed to play ball on Iraq. And so he flip-flopped.

If this is what happened, it may explain the Plame situation as well. The Bush Administration wanted to discredit Joseph Wilson, so they made Novak prove he was on board by having him print the leak.

I don't know any of this for sure-- it is all speculation. What I do know is that Novak flip-flopped on Iraq, and he flip-flopped in a direction that no rational person would flip-flop.

But I received an indirect boost for my theory when the American Prospect ran this item. Turns out lobbyist extraordinaire Jack Abramoff was able to buy favorable pundit treatment for one of his clients, the Commonwealth of the Northern Mariana Islands, through the use of junkets and favors. One thing I don't think the general public understands is that the commentators that they read in the newspaper or see on television can be whores just like politicians can be. Read the list of the people who Abramoff bought off.

To me, this is a huge issue. People who pose as pundits are implicitly promising their audience to be giving their own opinions, not something that was paid for by a moneyed interest or a political ally. When pundits fail to do this, they are violating their trust with the audience.

Let me say further that this is one of the problems with modern conservativism. Simply put, there is a ton of this. It is abundantly clear that certain pundits NEVER criticize the White House, and ALWAYS say whatever the talking points are. And these people are rewarded with increased access. Further, some of these people are employed by publications that claim to be independent but are actually currying favor with the White House, such as the National Review and the Weekly Standard.

If someone's opinion is for sale, by definition, it is valueless. So remember, the next time you see a conservative talking head on television-- that space is for rent.
posted by Dilan at 7:20 PM

 
IRAQ, THE DEMOCRATS, AND FOREIGN POLICY "SOPHISTICATION":
One of the amazing things about our foreign policy debates, at least when Republicans control the Presidency, is that they are always portrayed as "hawks vs. doves". What I mean by this that the temperment of the two parties, rather than the specific policy, is what gets debated. (This doesn't happen when Democrats are in office, because the Republicans usually split with some supporting the Democrats' foreign policy and others opposing it, as happened with the Kosovo bombing campaign.)

The GOP, according to the stereotype, is the tough, hawkish, "daddy" party, while the Democrats are the soft, dovish, "mommy" party. Of course, this is a killer when foreign policy is debated, because the American public is fundamentally hawkish. (Yes, they did eventually oppose the Vietnam War, but it took years for that public sentiment to gel.)

Of course, given that their interests are served by it, it is no surprise that the Republicans debate all their foreign policy proposals in these terms. They are always talking about being tough on terror, or Saddam, or Iran, or North Korea, or Cuba. The response of many Democrats has often been to try to deny the Republicans an issue by showing that they can be "tough" too. This had a lot to do with why Truman and LBJ pursued ill-advised wars in Korea and Vietnam.

This is all Politics 101; however, the problem is that defining the world in terms of hawks and doves really costs the Democrats when the Republicans pursue a dumb war, as is the case in Iraq. Many Democrats supported the President when he invaded Iraq, including luminaries such as John Kerry, Joseph Biden, Joseph Lieberman, and Hillary Clinton. Many Democrats won't admit that the reason for such support wasn't some principled belief that we needed to invade Iraq in response to a terrorist attack that Saddam Hussein had nothing to do with, but rather the fear that they would be portrayed as "weak" by the Republicans if they didn't support it.

What irks me most about this is that many Democrats, to this day and despite the obvious failures in Iraq, act as if the anti-war Democrats, like Howard Dean, were unsophisticated peaceniks with no idea how the world worked. Like in Vietnam, the peaceniks were actually correct in Iraq. And reflexive acceptance of hawkish Republican foreign policy is no more sophisticated than reflexive pacifism. (Really, has there ever been a war that Senator Lieberman opposed? Someone should ask him this sometime.)

There's plenty of conflicting recommendations for how the Democrats should reposition themselves on foreign policy, but here's a simple suggestion: support wars that are winnable, based on solid evidence and where the security of the country is at risk. Oppose wars that do not meet those criteria. And when the war doesn't meet that criteria, don't be afraid to vote "no" on it and let the Republicans label you "soft". The fact is, Howard Dean, despite being condemned by conservative pundits and more than a few centrist Democrats as a left-wing pacifist, is actually a centrist who simply was able to figure out that the Iraq war was a bad idea. (He supported a number of previous military campaigns.)

In contrast, many of the people who are considered "experts" on foreign policy within the party supported the war. Rather than condeming Gov. Dean and the other people who were right on Iraq as "shrill", maybe it's time the centrist Democrats examine whether the people who were wrong on Iraq were "dumb". And maybe being willing to oppose a war once in awhile should be considered just as important a factor in choosing future Democratic leaders as being willing to support a war is.
posted by Dilan at 8:45 PM

 
THE TACIT COMPROMISE OF AMERICAN IMMIGRATION POLICY:
Seems like every week, the LA Times publishes letters from citizens irate that nothing is done to stop illegal immigrants from living in the country, educating their children, obtaining gainful employment, and using public hospitals. Nor is this attitude unique to California. Similar letters make their way into the New York Times on occasion. And voter initiatives to crack down on immigration are wildly popular, dating from California's Proposition 209 in 1994 to the recent Arizona initiative to deny benefits to illegal immigrants. The Minutemen, a ragtag militia that is really something of a joke (if not worse), is popular with a lot of people who should know better. And rabidly anti-illegal immigrant Colorado Rep. Tom Tancredo may run for the Republican Presidential nomination in 2008.

Yet despite the fact that there seems to be a national consensus against illegal immigrants, little gets done and nothing really changes. Why? The conventional political narrative is that pro-immigrant liberals and pro-business conservatives are able to stop anti-immigrant measures from getting through Congress (and courts invalidate state initiatives on the ground that only the federal government has the power to set immigration policy).

I think this conventional wisdom is probably true as far as it goes, but doesn't really get at the tacit compromise, unspoken, that is at the heart of America's immigration policy.

That tacit compromise is essentially as follows. First, there is no practical way of expelling the millions of illegal immigrants who have established strong ties to the United States. Their kids go to school here, and some of them speak little Spanish, are American citizens, and have never set foot outside the United States. If their jobs (including farming, childcare, and manual labor) were vacated, it would do tremendous harm to the American economy, which relies on this labor force because of the increasing skills, education, and specialization of the American workforce.

Second, there is insufficient political support for resetting American immigration policy to accurately reflect this country's needs and the realities of our economy and the economies of Mexico and Central America. Simply put, Mexican and Central American immigrants are not allowed to legally emigrate to the United States (except if they are lucky enough to marry a citizen or they already have a close relative who has a green card or citizenship). The quotas for those countries are set ridiculously low, given their proximity, the ease of crossing into the United States, and this country's need for additional workers. (The next time a person complains to you about how illegal immigrants shouldn't "break the law" and should come here legally, point this out.) There are also millions already here who have the abovementioned ties to the US (including jobs and young American citizen children) who effectively cannot be made to leave, but whom the political system will not legalize because that would be considered an "amnesty" and a "reward for lawbreaking".

It doesn't get said enough, but our current system is an almost inevitable result of those two facts. The fact that many of the illegal immigrants already here are effectively undeportable, and the economy needs a continued influx of migrant workers from Mexico and Central America, means that measures that would kick such persons out of the country and prevent them from returning cannot be enacted. The fact that the public opposes raising the quotas for legal immigration from Mexico and Central America and opposes "amnesty" for those who "broke the law" to come here means that measures that would allow the flow to occur legally cannot be enacted either.

One would think that post-September 11 security concerns might have affected the debate, and they have, but not in any positive manner. The positive effect of the concern about terrorism would have been to recognize that we want to know who is crossing the border and to legalize and register the flow of migrants. Instead, anti-immigration advocates have cynically linked the terrorism issue to illegal immigration, even though the 9/11 hijackers crossed our insecure border with Canada and Mexican workers have nothing to do with terrorism.

Another thing that is not often remarked upon, but has something to do with why we don't get any farther than the Tacit Compromise on this issue, is that many of the opponents of illegal immigration are actually simply opponents of immigration generally. They don't say this flatly, of course. Rather, they often talk about a "skills based" immigration policy, which would mean that "unskilled" farmworkers wouldn't be able to get in, only skilled computer programmers from the far east. But, of course, those computer programmers can get in legally now, because their prospective employers or universities can sponsor them. The whole point of such proposals is to try to stop immigration of manual laborers across our southern border.

It should be noted that in economics, the willingness to work for low wages in extreme heat in bad working conditions is a "skill" just like computer programming is a skill. In both cases, you have something that employers need and Americans cannot provide in sufficient numbers. To that extent, the distinction between "skilled" and "unskilled" is meaningless.

The other thing that should be noted, and is noted often enough, but is always denied by anti-immigration advocates, is that race and ethnicity definitely have something to do with this issue. The best way of seeing that is to note that during the same period when anti-immigration initiatives have done well at the polls, "English only" laws have also done well. People are afraid of Spanish-speaking people taking over the country, or at least the West. They are afraid of changes to the culture. They are afraid that Latinos have more children.

This doesn't mean that everyone who is opposed to illegal immigration is a racist. Many aren't (although the argument that such people are simply concerned about lawbreaking is ludicrous-- illegal speeding is far more harmful than illegal immigration, and speeders' conduct directly relates to driving, and yet these people are not calling for the denial of driver's licenses to speeders, but rather illegal immigrants). But what it does mean is that because these "cultural" concerns about the growing Hispanic population motivate many anti-illegal immigration advocates, they will actively oppose compromises that allow for additional legal Hispanic immigration into the United States.

This is an issue that will probably never be solved. George W. Bush, who is loved by Republicans, can't bring his party together to support a plausible guest worker system-- superficially because anti-illegal immigration conservatives are concerned about "rewarding" illegal immigrants already in the country, but more deeply because anti-illegal immigration conservatives want to reduce Hispanic immigration into the United States. So we will continue to live with this status quo that nobody likes, but which represents the unspoken compromise between reality and a large group of Americans who will not accept it.
posted by Dilan at 7:21 PM

 
HAVE YOU NOTICED THAT MICROSOFT IS TRYING TO PUT WORDPERFECT OUT OF BUSINESS?:
Microsoft Word is now, by far, the most popular word processing software. 15 years ago, it was Word Perfect. (Before that, actually, it was WordStar in ancient times.)

Word could have never attained its market position if it had not been made easy to convert files between Word and WordPerfect. Both programs came with extensive "Open" and "Save As" commands which allowed you to exchange files between the two word processors. And because of that, people could switch to Word and bring their files over.

Now, things are very different. Most people use Microsoft Word. So Microsoft has now made it very difficult to convert files. Newer versions of Word can no longer save files in WordPerfect file formats. Since most people are using Word, that means that WordPerfect users now have trouble exchanging files with others and have an incentive to switch over.

This is exactly the sort of behavior that the Microsoft antitrust litigation was designed to prevent. Unfortunately, a conservative panel of the DC Circuit Court of Appeals prevented the break-up of Microsoft, because it thought that remedy to be an interference with the free market and insufficiently respectful of the supposedly quick pace of technology development which the court thought could remedy any anticompettive behaviors by the company. As a result, the government was forced to accept a toothless settlement, and Bill Gates can now do whatever he wants.

And that's why computers give you so many headaches.
posted by Dilan at 9:21 PM

 
BS ARGUMENTS AND THE CORROSION OF PUBLIC POLICY:
As a lawyer, I see plenty of arguments that are unmitigated BS. Not simply wrong, not simply unsupported, but completely vacuous and doomed to fail. This is actually not surprising, when you think about the ethical duties of lawyers. We are required to zealously pursue any non-frivolous position on behalf of our client. And "frivolous" does not mean "frivolous" in the sense used by Republican tort reformers, but an argument that is basically precluded by controlling law. Of course, it really doesn't benefit our clients to make bad arguments in most cases (unless the point is to bury the other side in arguments so that they don't effectively respond to the good arguments), but nonetheless, a predictable result of an ethical standard that allows and even requires us to go right up to the line is that some of those arguments are going to be weak-- some are even, despite the ethical boundary, going to be frivolous. (It should be remembered that lawyers are not often disciplined by the State Bar when they do make frivolous arguments.)

In any event, BS arguments have little effect on the legal system. Juries don't believe them, judges don't buy them, and opposing lawyers often spend more time coming up with ways to ridicule them than they do substantively answering them.

However, BS arguments are also made in politics, and these are a very different matter. Arguments are made that would never stand up in court or under serious scrutiny. Distinctions are drawn between completely analogous practices. Practices that are completely different are conflated. History is misrepresented in obvious ways. Statistics are completely misused, and are sometimes made up out of whole cloth. Politicians take positions that are completely opposite to those taken 2 years ago, or are philosophically inconsistent with those taken 5 minutes ago. Matters are asserted to be "principled" that are based on base political calculation.

Of course, none of this is really surprising. Politicians have been accused of dishonesty for almost as long as there have been polticians. However, for anyone paying attention, hearing the same BS over and over again is infuriating.

A nice example of political BS that has driven me crazy over the last few weeks is the filibuster debate. Over on the left, a former law professor of mine argues that the filibuster is completely constitutional, having argued several years back when the Democrats controlled the Senate that it was completely unconstitutional.

But that's child's play compared to the Republicans. Here is a partial list of their BS arguments:

"The filibuster of judges is unprecedented. No judge with majority support in the Senate has ever been filibustered." Justice Abe Fortas was filibustered when he was nominated for the Chief Justice position. While he never had an on-the-record vote with more than 50 senators voting "aye", they wouldn't have filibustered him if they had been able to get a majority to vote "no" on him. Further, and more elementally, there is no defensible distinction between all of the other techniques of blocking nominees ("holds", "blue slips", etc.) and the filibuster, except that the filibustered nominee at least gets a hearing and a vote.

"The judicial filibuster is unconstitutional. The Constitution requires an 'up or down' vote on a judicial nominee." No, it doesn't. The Constitution provides for the Senate to give "advice and consent". First of all, these would-be constitutional textualists have nothing at all to say about "advice"-- no President consults with the opposing party's Senators before nominating, because these nominations are controlled by interest-group poltics (read: groups that care about abortion). Second, the Senate imposes on itself all sorts of requirements for different sorts of consent-- unanimous consent rules, supermajority rules, things that can be done on the request of one Senator, etc. Nobody in the Republican Party ever thought any of this stuff was unconstitutional before they started getting their judges filibustered.

Also, and relatedly, since when is a cloture vote not an "up or down" vote? Republicans are using this formulation because it apparently polls well, but the Democrats are perfectly willing to allow these judges an "up or down" vote, just one that requires a 60 vote majority.

"The Democrats are religious bigots who are opposing nominees because of their sincerely-held religious beliefs." No, they are opposing nominees who they believe will attempt to force their sincerly-held beliefs on the country, or ignore the Constitution or the law when it conflicts with that. This is not an idle concern-- Judge Priscilla Owen, for instance, is extremely anti-abortion and was willing to ignore the language of the Texas parental consent statute in order to prevent someone from having an abortion.

The Democrats, by the way, may not be correct about their inferences with respect to all of the filibustered nominees. Since being recess-appointed to the Eleventh Circuit, for instance, Judge William Pryor seems to have demonstrated independence and is not blindly following his religious convictions. But there is nothing "bigoted" about refusing to confirm someone who believes, for instance, that natural law based on Catholic theology supersedes the Constitution and laws of the United States. Such a hypothetical candidate would not be able to fulfill his or her oath of office.

"The Democrats want nominees who legislate from the bench." So do the Republicans. There is a legitimate debate about to what extent judges should broadly interpret constitutional provisions. Justice Scalia, famously, favors a rather narrow interpretation (though even he will uphold the "living constitution" in certain instances, as when he has taken the position that drug tests and thermal imaging are "searches" under the Fourth Amendment despite the fact that they did not fall within the original understanding of the term). But while you would never know it from the debates on this subject, so does liberal Justice Ruth Ginsburg. In contrast, Bush nominee Justice Janice Rogers Brown has stated explicitly that she rejects judicial restraint and believes in a broad interpretation of the Constitution to serve a conservative property rights agenda.

The language used by politicians on this subject is a vestige of Roe v. Wade, which was a plausibly "activist" decision. But some of the most important recent debates have concerned such things as the Eleventh Amendment and state sovereignty, where conservatives and not liberals are disregarding the plain language of the Constitution.

I don't know if Bill Frist will try the "nuclear option"-- I suspect he doesn't have the votes to do it-- but I do know that the Republicans have not made a single persuasive argument as to why they should get their judges through. And the clear game here is not to defend these nominees on the merits. Having a bad argument on the merits, of course, is often the impetus for making BS arguments, in both the law and politics.
posted by Dilan at 8:56 PM

 
BRUCE SPRINGSTEEN IS MASSIVELY OVERRATED:
Bruce Springsteen certainly deserves his spot in the R ock 'N' Roll Hall of Fame. He's made some great records, like "Born to Run" and "Thunder Road". But he is also clearly the most overrated artist in the history of rock. To the critics, this man can't do wrong.

I have seen this more up close than most, because my local paper's rock critic, Robert Hilburn of the LA Times, has never once given a bad review to a Springsteen performance or album. He indents and italicizes the lyrics, as if they were poetry. Further, he praises Springsteen for the exact same things he criticizes other artists for-- for instance, although Hilburn trashes Billy Joel as undeserving of his record sales and adulation every chance he gets, Hilburn wrote a hagiographic review of Springsteen's "Youngstown", a song about steelworkers that was a complete rip-off of Joel's "Allentown". (If the editor of the Calendar section at the LA Times had any balls, he or she would refuse to assign Hilburn to any Springsteen reviews on the ground of bias. Make the guy buy a ticket, since he's obviously a huge fan.)

Unfortunately (or maybe fortunately), you can't access Hilburn's reviews without paying for the privilege, so I can't link to them here.

I will link, however, to another fan reviewing Springsteen's latest, the spare "Devils & Dust", on slate.com. Slate, to its credit, links to snippets from the songs on the album. Listen to them. The only word for these songs is terrible. Unlistenable. And even if you think they are better than I think they are, no honest person could rate this anywhere near "Born to Run" or "Glory Days" or any of Springsteen's best work.

The critics did this with Bob Dylan a few years ago. He released an abum, "Time Out of Mind", which sounded horrible. His voice was barely audible, and he couldn't carry a tune even in the nasally way he used to in the 1960's and 1970's. No matter, critics loved it and actually propelled it to a Grammy win. It's probably the worst album to ever win the Grammy, and that's saying something. Nonetheless, Dylan is a sacred cow.

We should have no sacred cows in music. If Hilburn is unwilling to say that Springsteen is all washed up, the Times needs to find a rock critic that will. Nobody cares what people who will never negatively review the Boss think about his new albums and concerts anyway.

(By the way, one other thing. They used to write about the Boss' "solidarity for the working class". With scalpers charging $3,000 for his acoustic shows on the current tour, they sure don't write that anymore.)
posted by Dilan at 8:02 PM

 
THE 7 MILLIONTH ONLINE POST ON THE TERRI SCHIAVO SITUATION:
I don't have much to add to what everyone else has said about this matter, but I am really bothered every time someone refers to Mrs. Schiavo's blood relatives as her "family". (It isn't only right-wing outlets like Fox News that do this-- even CNN does it.) It makes it sound like they were closest to Mrs. Schiavo.

In fact, Mr. Schiavo is also her "family". And when you use the term "family", it spins the whole issue the wrong way. You see, the Florida state courts' decision was based in an important way on the fact that as her husband, Michael Schiavo has the last say as to whether she lives or dies. If someone doesn't have a living will, the closest relative gets to decide whether to terminate life support. If you are married, that means your spouse. If you are not married, it means your children, or your parents, or your brothers and sisters, or your nearest living relatives.

Thus, the Florida state courts found that Mrs. Schiavo's "family" is her husband. And that echoes common sense-- married adults tend to be closer to their spouses than they are to their parents, and tend to confide more secrets in them, including their decisions regarding end-of-life care.

But the media point is this-- you have two claimants here, both contending to be Terri's "family". In this situation, it behooves the media not to use the word "family" to describe one and not the other.
posted by Dilan at 12:21 PM

 
ARMSTRONG WILLIAMS AND RIGHT WING "ASSIGNMENTS":
I've long held that one of the things that makes right wing commentary tick in this country is that commentators are "assigned" certain issues to write and talk about. These topics are probably picked by GOP Central or the think tanks that are funded by major GOP donors, and the choice of topics is intended to advance themes that will serve the interests of the Republican Party. (Note that "serving the interest" of the Republican Party can include some topics that, while not congruent with current Republican doctrine, nonetheless put issues in the news and into the public debate that cause people to decide to vote Republican. Thus, advocating restrictive immigration policies serves the interest of the Republican Party just as advocating tax cuts does-- in both cases, skilled advocates can get voters to skew more Republican.)

Armstrong Williams, of course, was a classic right winger on assignment. He is a charismatic black commentator who talked about racial issues and education, spreading the GOP gospel-- anti-affirmative action, anti-anti-poverty programs, etc. Well, it turns out that the GOP got sloppy-- instead of funding Mr. Williams through their normal network of donors and think tanks, the White House paid him directly to shill for the No Child Left Behind Act.

Interestingly, conservatives are-- to their credit-- condemning Williams' shilling. Turns out that even they don't think it's kosher for the Bush Administration to have a pundit on the payroll. Good for them.

I can't help noting one irony though. One of the condemnors is Daniel J. Flynn. I have praised him for condemning Williams, and he deserves that praise. However, Flynn is also on assignment-- though unlike Williams, he isn't on the White House payroll. Flynn's book, which I have skimmed at my local Borders, is called Intellectual Morons: How Ideology Makes Smart People Fall for Stupid Ideas. (Note the telltale colon in the title after a pithy two word main title-- this is a constant feature of all books written on assignment.)

Flynn's book is based on a plausible premise-- that sometimes very smart people aren't very grounded in reality and are drawn to dumb ideas. Academic leftists are certainly an example of this; the recently departed Susan Sontag is another example. Of course, academic right-wingers like Richard Epstein and Milton Friedman have taken idiotic positions as well. But that's not my main beef with Flynn-- obviously, he's going after the left, and that's fine.

My beef with Flynn is twofold-- (1) that he refuses to recognize that there is a wide swath of issues where the right wing simply shows disdain for established academic knowledge in favor of fables that may please the religious or business base of the party but which have no basis in reality; and (2) that he infers from the fact that some academics take stupid positions, that all their ideas must be wrong.

Let me take these points in turn. The first point is actually the key to his assignment. In many areas, right wingers go up against established scientific knowledge. These areas include both subjects important to religious people, such as the teaching of evolution, stem-cell research, and the belief that people were better off when "traditional values" governed prior to the 1960's, and subjects important to the financial donors to the Republican Party, such as global warming. Thus, it is obvious why Flynn's book could be of tremendous value to the Right. People trust scientists. People respect scientists. People believe that science produces useful knowledge. People know that many conservatives in history who opposed science, such as the Church leaders who opposed Galileo, have come out looking very bad indeed. So discrediting academics, turning the tables and calling them the idiots is a very important project for the conservative movement.

The problem is, all academia is not Susan Sontag or Paul Ehrlich (the famous neo-Malthusian environmentalist who believed that overpopulation would kill us all) or Peter Singer (the animal rights advocate who believes that infanticide can be justified). Specifically, Charles Darwin was right (not on everything, but on the crucial issue of natural selection) and the religious right's literal interpretation of the Bible is wrong. Stem cell researchers are right (along with all the great philosophers who were able to figure out that a zygote does not have all the rights of a human being) and the simpletons who believe that you should never destroy a fertilized egg are wrong. The "good old days" before the sexual revolution were days of back alley abortions, huge amounts of unreported rape, domestic violence, and unwanted pregnancies. And human activity almost certainly has caused some warming of the planet. Sorry, folks, the conservatives are wrong. And calling out a few leftist academics-- who may very well deserve to be called out-- does not change that.

Second, Flynn's whole book is premised on the idea that we shouldn't take liberal academics seriously because they have advocated some dumb ideas. Margeret Sanger was a eugenicist. Peter Singer supports infanticide. Alfred Kinsey was a deviant. Malcolm X advocated violence. But that's transparently not true. Family planning, animal rights, the study of human sexual behavior, and black self-help are not bad ideas because some flawed people introduced them to the public discourse, any more than we shouldn't use railroad cars because Leland Stanford, Jr. built railroads exploiting poor Chinese laborers or that we shouldn't build freeways because the first ones were built by Adolf Hitler. Indeed, many conservative ideas were introduced by flawed people too-- the Declaration of Independence that conservatives love to point to because it contains copious religious references was written by slaveholders. Ronald Reagan, who introduced "moral values" into contemporary politics, was a divorcee who very likely impregnated his second wife before they were married. Does William Bennett's awful gambling habit (and pathetic rationalizations for it) impugn his groundbreaking ideas in education policy? Indeed, much of modern conservative politics could be traced to Barry Goldwater, who voted against the Civil Rights Act of 1964 and supported Southern "states rights" that was a code word for maintaining Jim Crow.

The point is, we judge ideas on their merits, or at least, scientists and academics do. And we do a pretty good job of it-- and Flynn actually unknowingly demonstrates this. You see, Margaret Sanger's good ideas about family planning have become common currency to everyone but the extreme right, but her bad ideas about eugenics have faded from the scene. Nobody takes Peter Singer seriously on infanticide, but the animal rights movement is flourishing, with even some conservatives arguing that we have a responsibility not to be cruel to animals.

The danger of Flynn, however, is that he has tapped into a powerful vein of American belief. In truth, many Americans-- including many who did not go to college-- have a distrust towards academic elites. Eroding their trust in science and academia is thus not only desirable to Republicans, but is also possible. (Think about all the people out there who believed Michelle Malkin's book rather than all the orthodox, carefully studied historical work that has been done on the World War II Japanese evacuation and internment.) The truth is, we need science and academia, because the devout and the rich don't have all the answers. In fact, they can be quite irresponsible at times. We need science and academia because if we don't rely on objective methodology and the scientific method, other countries who do rely on it will get ahead of us. American science is what got this country ahead in the first place. It is what built our military superiority. It is what fueled our favorable trade position with new technologies. People who believe that universities are filled with idiotic leftists won't fund research, development, and education. We all must hope that Flynn's view never truly takes hold.

posted by Dilan at 8:45 PM

 
THE ISSUE OF "INTENT OF THE VOTER" VS. "FOLLOW THE DIRECTIONS" (AND WHY IT'S MORE COMPLICATED THAN THE SIMPLISTIC, PARTISAN ARGUMENTS OF 2000 MADE IT SEEM):
Down in San Diego, 120 miles south of where I am, it seems they are having a food fight a la Bush v. Gore to determine who the new Mayor will be. The incumbent, Dick Murphy, was forced into a three way race when surf-shop owner Donna Frye commenced a write-in campaign. (San Diego is one of the few cities in America-- all of which are concentrated in Hawaii and California-- where owning a surf shop is considered serious training for a politician.) The election resulted in a near tie, with Murphy carrying the city by several hundred votes.

However, the new optical-scan ballots used in San Diego clearly instructed voters to darken an oval next to the write-in line in order to cast a write-in vote. This was necessary so that the vote-counting machine would indicate that the ballot contained a write-in vote. Apparently, a state law requires that the oval be darkened for the ballots to count. The media inspected the ballots, and it turns out that if the undarkened oval/write-ins for Frye are counted she wins the election rather than Murphy.

You may remember similar issues in the Bush v. Gore Florida food fight in 2000. Ballot instructions in Florida-- as they did just about everywhere else where punchcard ballots were used-- stated that voters needed to remove the chips (the famous "chad") from the back of the ballot card before dropping it in the box. Nonetheless, ballots of voters who did not follow these instructions were nonetheless counted in some counties (and not in other counties, creating the alleged equal protection violation that was at the heart of the Supreme Court case that eventually stopped the recount). "Hanging chads" that were partially detached from the ballot, and "dimpled" and "pregnant" chads that were completely attached but appeared to have been contacted by the voting stylus, were counted by some counties.

There was, however, one big distinction between Florida 2000 and San Diego 2004. In the Florida recount, the governing law required that elections officials attempt to determine the intent of the voter. Under that standard, voters who disregard instructions can still have their votes counted.

San Diego thus presents the cleaner question-- under California law, the voter must follow the instruction and darken the oval. That instruction is clearly printed on the ballot, which the voter is supposed to read before voting. And the instruction has a legitimate basis, because it allows the City to save money and time and to obtain a more accurate and honest count by using machines to count the ballots rather than counting them by hand.

Nonetheless, we have absolutely no doubt that everyone who did not darken the oval but did write in Donna Frye's name intended to vote for Frye. So we have a clear conflict between the "follow the directions" standard and the "intent of the voter" standard.

I know this opinion goes against what is thought to be the "liberal" position on these issues, but I am in the "follow the directions" crowd. Not that I take any glee or pleasure in disallowing the votes of people who clearly manifested an intent to vote for a particular candidate. But an intent to vote is different than a vote. If you forget what day is election day, or accidentally leave the polling place with your ballot and do not discover the error until after the polls close, you may have intended to vote for someone, but you have not cast a countable vote.

And the fact of the matter is, Americans are way, way too cavalier about not reading instructions. We throw away instructions to appliances without reading them. We don't read the owner's manual when we buy a new car. We sign all sorts of contracts without reading the large print, much less the small print. And in all these circumstances, we can suffer harm, physical or financial, and yet we still do it-- though we sometimes ask the court system to save us from ourselves afterward.

So why, exactly, should we be solicitous with voters who don't read ballot instructions? We print the things in many different languages-- as well we should-- to ensure voters understand them. Yes, I know, the franchise is too important to compromise based on technical rules, but by the same token, the franchise is also too important to casually exercise without even bothering to read the directions. And remember, even under the liberal Florida standard, many votes weren't counted in 2000 (a fact liberals are painfully aware of)-- so it's not like applying liberal counting standards will ensure that everyone's intended vote gets counted. To the contrary, such standards may very well give voters a false sense of security.

If you want to make sure every vote counts, let's have educated poll workers who offer real assistance to voters as to how to ensure their ballots are properly marked. Let's have voter education projects and television and radio and print and billboard ads to remind voters to read the instructions and to vote carefully. Let's encourage political parties to let their members know how to fill out their ballots. And by all means, let's have the easiest-to-understand ballots we can possibly design-- the "butterfly ballot" was a true outrage. (In fact, all these things should be happening even if the counting standard is liberal, because as noted above, even where such standards prevail, it is still possible to have one's intended vote not be counted.)

But in the end, exercising the franchise requires real responsibility. Indeed, in a society that asks far less of its citizens than it once did, this is one of the few responsibilities of citizenship. It may seem like a pointless and silly exercise to require San Diegans to fill in that oval, but doing so would remind citizens of how important it is to take a few minutes to read the instructions before doing something important. Maybe it's a lesson that could carry over to other areas of life as well.

posted by Dilan at 4:48 PM

 
THE WAR AGAINST DONOHUE CATCHES ON:
Josh Marshall has now jumped in, calling Donohue "an extremist and a gamer". That works for me.

posted by Dilan at 11:50 AM

 
WILLIAM DONOHUE, CTD.:
Slate's Dana Stevens agrees with me: "William Donohue, the Catholic League president who was quoted last week as saying that 'Hollywood is controlled by secular Jews who hate Christianity in general and Catholicism in particular.' Donohue, who should have been persona non grata on the talk-show circuit after that disgraceful outburst, was back on Hardball last night, cross-talking with a rabbi and an atheist about something or other—I couldn't bring myself to watch."

I couldn't have said it better myself. Take this guy down.

posted by Dilan at 9:10 PM

 
3 OBSERVATIONS ABOUT THE COMING DEBATE ON SOCIAL SECURITY:
1. Despite what Republicans say, it's impossible to avoid the transition costs caused by the switch to a system of personal accounts. The fact of the matter is that the money to be collected in the next 20 years in payroll taxes is committed to pay the benefits of retirees during that period. That is how the system works. Divert those payroll taxes, or some part of them, to private accounts and you create a shortfall that you have to make up with other governmental revenues.

There's a Republican talking point out there that disputes this, that says that there is no transition cost, but simply the "moving forward" of liabilities from the future into the present. Frankly, I do not understand this argument. Right now, current payroll taxes pay for current retirees. Future payroll taxes (and perhaps some general revenues to pay for shortfalls) will pay for future retirees. If you divert the payroll taxes, you now need another revenue source to pay for those future retirees. Either a spending cut or a tax increase will be needed to do it.

2. Personal accounts won't solve the Social Security crisis, if there is one. There is a big debate as to whether Social Security needs "fixing". However one wants to characterize it, the problem is that the class of retirees figures to increase in size (i.e., the baby boomers) while the class of workers figures to stay stagnant or decrease. Thus, there will be a smaller pool of payroll taxes to pay for a larger pool of retirees.

Everyone agrees that, in broad contours, that's the issue. So what the Republicans propose to do is dip into the pool of future payroll taxes that is supposed to pay for baby boomers' retirement, and use that money to pay for something else (essentially 401(k)'s for current workers). That, quite obviously, won't solve the problem; it will make it worse. The funny thing is that people don't see this. If Republicans proposed to take that money and use it to pay for a tax cut, or a war, or an elementary education program, everyone would understand that they were raiding Social Security. But because they are using it to pay for a program for a different set of future retirees, they are somehow able to pitch that diversion as "saving" Social Security.

Simply put, if there's a future shortfall of revenues, what the program needs is a larger revenue pool (such as a tax increase) or smaller payouts (i.e., benefit cuts, or means-testing, or raising the retirement age), or some combination of both.

Of course, the Republicans are the same party that thinks that it can balance the budget through huge tax cuts and spending increases, so I guess they are being consistent.

3. The problem with personal accounts is that they miss the point of Social Security. The purpose of the program is not the same as a private savings account. Social Security was conceived during the Depression-- when many people had lost a ton of money in the stock market (duh!). The purpose was to guarantee the elderly some minimal income, as a form of social insurance, to keep seniors out of poverty even if their savings was decimated, even if they lost their money in the stock market, even if life dealt them a bad hand. Social Security is not an investment program, but a form of social insurance. It also recognizes that poverty among the elderly can become a tremendous burden on relatives, friends, and society. To put it very cynically, we all have a strong interest in ensuring that senior citizens are not relying so much on the rest of us. Social Security also has a mild and proper redistributive function that rewards people for a lifetime of work, even in low paying jobs. Personal accounts can't accomplish that.

Bottom line-- personal accounts are a VERY bad idea.

posted by Dilan at 8:38 PM

 
I'M DREAMING OF A RIGHT CHRISTMAS:
The latest claim of persecution by the right wing is that Christmas is supposedly out of fashion. Evil secularists are devaluing the importance of the Lord and Savior by saying "Season's Greetings" and "Happy Holidays", the Salvation Army has been booted from in front of Target stores, and kids can't sing carols in school. The right wing media talks about this every day on every talk show, and Fox News features a discussion of it on every program, which indicates that Republican central handed this down as the party line. Obviously, tarring liberals as anti-Christmas would be the ultimate political masterstroke.

But even granting the right wing's premise (which the mainstream media has quite skeptically examined and found to be almost total BS) that Christmas is under attack, has anyone asked these guys about Santa Claus? If there's any single figure that has done more to destroy the "real" (i.e., religious) meaning of Christmas, it's the fat guy in the red suit. As is well known, Santa has nothing to do with the birth of Christ, the Virgin Mary, the manger, the three wise men, or any of the rest of it. Santa was created in the last 500 years, not 2000 years ago.

And Santa-- not liberals spouting inclusive messages of "Happy Holidays"-- is the main and central threat to the religious message of Christmas. Every child thinks of Santa coming down the chimney and bringing presents, every advertiser features red suits and hats in its Christmas ads, and every shopping mall has a Santa Claus. (How many malls have nativity scenes?) I'd say the average American sees 10 images of Santa or Santa iconography for every one image of Christ or Christian iconography this season.

Yes, Santa stands for good values-- gift giving, living a virtuous life, etc.-- as well as a few bad ones, like gluttony and residential burglary. But the point is, the Jolly Old Elf enjoys a stronger association with this holiday than the person whose birth is being celbrated.

In contrast, people who say "Happy Holidays" are being inclusive. They are saying, in shorthand, "Merry Christmas, Happy Channukah, Happy Kwanzaa, Happy Ramadan, and everything else". They aren't excluding Christians, they are including everyone else. (The spokespeople of the religious right pretend there's no difference between the two, but I hope they repent for the sin of dishonesty after they say such things.)

So I'm waiting for the right wing to turn its fire on the real reason people don't celebrate Christmas as a religious holiday-- Santa Claus. I am not holding my breath, however. The reason the right wing has chosen to go after schools that don't sing Christmas carols is because they are easy targets-- a form of over-the-top secularism. Santa Claus, on the other hand, is extremely popular. But if this issue were about principle and not politics, they would go after Santa, because Santa's vision of a secular Christmas-- with reindeer and stockings and presents under the tree-- is what is really standing in the way of a solemn, pious observence of the birth of Jesus.

posted by Dilan at 1:14 AM

 
TAKE DOWN WILLIAM DONOHUE:
If Hillary Clinton was right and there really is a vast right-wing conspiracy, William Donohue, who leads an outfit called the Catholic League for Religious and Civil Rights, is a charter member. Donohue, whose organization purports to be a grass-roots association of Catholics, performs several useful functions for the right wing: (1) he articulates the fallacious argument that prohibiting the government from endorsing religion is the same thing as discriminating against Christians; (2) he is good at getting on television and getting his name in the papers, ensuring that the "spokesperson" for Catholics on many issues is a person with a very right wing perspective on Catholicism (i.e., Mel Gibson is a saint, abortion and gay rights are evil, the death penalty, war, and poverty are issues on which the Church has no definitive teachings and thus Catholics have every right and obligation to disregard everything the Pope says about them, and sex abuse by priests is either completely legally protected activity shielded by the First Amendment right of free exercise of religion or all the fault of homosexuals in the priesthood); (3) by complaining of anti-Catholic and anti-Christian bias all the time, usually with respect to rather unimportant things like art exhibits, he reinforces the feeling that many Americans have that Christians, rather than being a privileged majority, are put upon and face massive discrimination; (4) he promotes "The Passion of the Christ", a film almost designed to make liberals who object to its content look like anti-religious heathen; and (5) he keeps the media focused on issues of "decency" and "moral values", which plays to the Republicans' benefit because they are seen as the party more likely to restrict sexual expression in the media.

In other words, this guy is a hack-- obviously on assignment from GOP central-- and the media, which either has no appreciation of the difference between a hack and a serious conservative thinker, or, in the case of Fox News and right-wing outlets, actually works hard to blur that distinction, take him seriously as a spokesman for millions of American Catholics instead of taking him for what he is.

Here's the thing, though. Donohue, in defending "The Passion of the Christ" and in engaging in another current right-wing pet project, defending Christmas (I'll post something on this subject shortly), said some blatantly anti-Semitic things. Specifically, on cable television recently, he repeated the old canard that "the Jews control Hollywood", even singling out Harvey Weinstein when it was pointed out to him by another guest that there were all sorts of non-Jews who were major players in Hollywood. That would be bad enough, but Donohue managed to put his foot further into his mouth by remarking that the reason he thought "The Passion of the Christ" would not win Academy Awards was because Hollywood Jews didn't like the movie because these Hollywood Jews, according to Donohue, hate Christians and further because the movie is about Jesus Christ and is "about truth".

Now Donohue has gotten a fair amount of bad press for his statements. My local paper, the LA Times, has written about it (though the article is in the paid section of their website so I can't link to it), and this excellent Frank Rich column ran in the New York Times about the statements. Still, these comments aren't getting the buzz I think they should. I think this is a nice opportunity for my side to take Donohue down. He has, after all, clearly made anti-Semitic comments, but there's more to it than that. Taking him down would take down a guy who does very important grunt work for the right, as noted above. If Donohue becomes known as an anti-Semite or at least someone who has those leanings, the way Pat Buchanan is viewed, he may still get on cable television but never as the purported spokesman of all Catholics. The media would have to find someone else, and maybe that someone else won't be as much of a fascist hack as Donohue is.

But most importantly, making an issue of Donohue's statements will help to remind American Jews of something that they need to hear after over a decade of being courted by the religious right and the Republican Party in general. These people aren't your friends. At best, the religious right supports Israel because it wants to bring on the second coming of Jesus, which they believe will result in either the conversion or the death of all Jews. Hardly an agenda that Jews would want to sign on to. Further, conservatives may agree with some of the more conservative sects of Judaism on some cultural issues like gay marriage, and conservatives are willing to moderate their pitch to increase governmental endorsement of religion by invoking "God" rather than "Jesus" in public ceremonies, in order to be inclusive of Jews. But it wasn't that long ago that everyone understood the religious right and conservativism in general as having substantial anti-Semitic elements. Calling attention to Dononhue's statements should be a way for liberals to remind Jews that the Republicans have never purged these elements from their party and don't plan to, because they represent very important constituencies. In the same way, making an issue of Donohue will remind more moderate and mainline religious voters, and more tolerant evangelicals, that the Republicans still tolerate this stuff and that for significant segments of the Republican party, there is a very specific religious agenda that goes well beyond generic invocations of God at public functions.

I see this as a no-lose scenario for Democrats. So let's get on the horn and get this done!

posted by Dilan at 11:35 PM

 
GOD SAVE THE QUEEN:
I recently had occasion to rent the DVD for the Freddie Mercury Tribute Concert. If you don't know what this, this was a huge concert held at Wembley Stadium in London in 1992 in honor of Freddie Mercury, the golden-voiced lead singer of Queen. It was a charity benefit with the proceeds going to HIV research (Mercury, a flamboyant bisexual, died of AIDS). But this particular charity concert, in my mind, soars above any other such concert-- anyone who plans to get the DVD of the 1985 Live Aid concerts that is coming out should check out the Mercury Tribute as well.

The reason the Mercury Tribute worked so well is that it managed to both encapsule what was so great about Mercury while also being a great rock concert. As I said, Mercury was a flamboyant, outsized personality who also had a huge range. Queen's records ranged from quasi-opera ("Bohemian Rapsody") to R&B ("Another One Bites the Dust") to gospel ("Somebody to Love") to hard rock ("Hammer to Fall") to rock anthem ("We Are the Champions"). Other than Freddie Mercury, there was simply nobody who could sing all that stuff. So, the surviving members of Queen decided to invite many of the best rock and pop singers in the world to sing various songs in place of Mercury. This was a wonderful tribute to Mercury, because it stressed how unique his talent was, compared him favorably to some of the best in his profession, and made the show larger than life, just as Mercury was.

But the show also worked as rock and roll, because many of the choices were inspired. Axl Rose singing "We Will Rock You". Gary Cherone, later to join Van Halen, sang "Hammer to Fall" brilliantly. Brit-popper Lisa Stansfield sang "I want to Break Free". Elton John did "The Show Must Go On". Roger Daltrey made "I Want It All" sound like a Who song. And the show closed with Liza Minelli, of all people-- who was one of Mercury's personal favorites. She sang "We Are the Champions" like she meant it.

But there are two highlights to the concert that, in my mind, rank with any concert footage in modern pop music history. The first was "Under Pressure". This was a collaberation between Queen and David Bowie that was recorded for Queen's Greatest Hits set in 1981. Bowie obviously had to be there, but who would he sing it with? They chose Annie Lennox, who wore an outrageous Annie Lennox costume and black eye makeup, and who has a wonderful piercing voice that was perfect for the song. As the song neared its climax, with the two singers singing together about how the pressures of the world could be mitigated if we gave love a chance, Lennox clung closer and closer to Bowie, digging her fingers into the back of his neck. It was a tremendous, emotional performance.

The best performance of them all is one that George Michael is justifiably proud of. "Somebody to Love" is probably one of the most difficult songs in rock and roll to sing. (Try it some time if you don't believe me.) It goes way up and way down, but at the same time, the lyrics have to be delivered fast and conversationally, not operatically. That means the singer needs both range and breath control. Mercury, of course, had both. So does Michael, though he has often wasted his beautiful voice on the most insubstantial of pop songs in his own recordings.

But at the Mercury Tribute, Michael showed us all what he can do with a good song. It sort of came out of nowhere, because he came out to sing three songs, the first two of which were second-tier Queen songs. But when he launched into "Somebody to Love", he sang his ass off. He hit every note, loud and clear, and he sang the song with a great deal of passion. He got the crowd involved; they clapped along in unison and eventually sang the last notes in the song for Michael. And at the end, he let out a Howard Dean-like "Yeah!"-- he was really having a good time. Queen guitarist Brian May cheered him at the end of the song. Michael liked the performance so much he put it on his Greatest Hits album.

If you get the chance, check out the DVD of the Mercury Tribute. Freddie Mercury was unique, and the surviving members of the band created a fitting, unique tribute to him.

posted by Dilan at 6:25 PM

 
CAL HAS NO RIGHT TO GO TO THE ROSE BOWL:
Hey, I hate the Bowl Championship Series as much as anyone. (You'll have to scroll down to the item on the BCS.) But this idea that California is getting screwed because they aren't going to the Rose Bowl is silly. California did not earn a trip to the Rose Bowl this year. Yes, they had a great season, a couple of mistakes and hard-luck plays away from beating USC and going undefeated. But the only Pac-10 team that earns a Rose Bowl trip is the team that wins the conference. And USC won the conference. In the old pre-BCS days, California would have gone to a second-tier bowl-- or maybe, if they were lucky, to a top bowl like the Orange or Cotton Bowl. (It should be noted that a second Pac-10 team went to a major bowl something like once every 30 years.) The BCS creates the possibility that a second place team goes to the Rose Bowl when the first place team goes to the BCS championship game-- but it doesn't guarantee it.

When postseason rewards are keyed to conference championships, teams do get penalized for finishing second in tough conferences. But that doesn't mean that the system is unfair. In the days when only the conference champion went to the NCAA basketball tournament, USC once went 24-2 and was shut out of the tournament-- because its two losses were to conference (and eventual national) champion UCLA. But that system also had its advantages-- USC knew when the season began exactly what it had to do to make the tournament, and wasn't able to do it. In contrast, under the current system, every year the selection committee is criticized for its subjective judgments as to who to let in and who to leave out.

I can't wait for the day that we scrap the BCS and go to a playoff. As long as we have this stupid system, however, everyone knows the rules. If you win a BCS conference, you are guaranteed a BCS bowl slot. Otherwise, you aren't. California didn't win the Pac-10, and therefore can't complain. End of story.

posted by Dilan at 1:23 PM

 
UP FROM SINCLAIR:
In case you haven't heard, Sinclair Broadcasting Group, which owns numerous stations in swing states and which has extensive government contracts, intends to pre-empt local programming and air an anti-Kerry documentary by an organization affiliated with the Swift Boat Veterans for Truth. This is obviously an end run around campaign finance restrictions and a huge campaign contribution to the Bush campaign. (It might also be a Karl Rove dirty trick.)

Liberal groups are taking a page out of conservatives' playbook and trying to get sponsors to pressure Sinclair not to air the program. (Click here and scroll down for more details.) I feel no differently about this campaign than I do about any campaign by private interests to take something off the air-- on the one hand, the opponents of the program have every right to protest it. On the other hand, I am not completely comfortable with the fact that when such campaigns succeed, those members of the public who would be interested in seeing the program are deprived of that right.

But what's really bad is that this has provided the occasion for the resurrection of all the "public interest" arguments about broadcasting. (See also here and here.) In short, people contend that the airwaves are "public", and therefore, all broadcasters have the obligation to do whatever the public (read, government) tells them to do, on pain of losing their broadcast licenses. Of course, this view has some support in the law. Broadcast licenses have long been conditioned on a requirement that broadcasters act in the "public interest", and the federal government's now-repealed "fairness doctrine" required broadcasters to air "both sides" of major issues. The "fairness doctrine" was upheld by the Supreme Court in a case called FCC v. Red Lion Broadcasting.

The danger with these arguments is obvious. The argument that broadcasters can lose their licenses if their actions are deemed against the "public interest" is essentially a justification for massive government censorship. Indeed, given the Bush Administration's predilections, one would expect that liberals would be a lot more worried than they are about granting the government this sort of power. I could very easily see Karl Rove and company pressuring broadcasters to air smears against their political opponents. Instead, liberal websites are parroting the arguments that conservative anti-obscenity crusaders always make, about how the airwaves belong to the public and the public has the right to prevent anything they don't like from airing on television or radio.

Also, it should be noted that the "public interest" requirement probably doesn't stretch as far as these advocates would like to stretch it. The Red Lion case was based on the fairness doctrine, not the "public interest" requirement. No case has ever interpreted the "public interest" requirement as granting the government the power to pull licenses or punish stations based on the stations' partisan political expression. The "public interest" condition has been invoked in the past not in political speech cases but in connection with things such as the requirement that stations carry the Emergency Broadcast System or a certain amount of educational programming. Even there, there are free speech concerns, but at least there is no danger that the government is attempting to suppress political speech.

Here, the argument that Sinclair must serve the "public interest" is essentially a brief for the censors, a justification for the government to pull the license of a station that takes a position that some do not agree with. And if you think my fears are hyperbolic, check out this quote from a Kerry advisor: "They better hope we don't win."

Media consolidation, biased news coverage, the lack of editorial independence, and attempts to circumvent campaign finance reform are all legitimate issues that should be discussed. But let's keep the government out of the business of deciding whether political expression is in the "public interest". The dangers here are far too great.

posted by Dilan at 5:28 PM

 
KERRY WON:
I don't usually have much of an opinion about which candidate won a presidential debate. I probably should-- I was a successful debater in college-- but I don't. The only exceptions I can think of are that Clinton killed Dole a couple of times in 1996, and Bentsen destroyed Quayle in 1988 in the vice-presidential debate. In 2000, I suppose Bush beat Gore-- he had a good response to Gore on hate crimes and Gore did sigh too much-- but that conclusion is more tentative.

Well this one isn't. Kerry won easily on Thursday night. Two signature moments where Kerry "turned" Bush's attacks to his advantage. (1) When Bush brought up Kerry's awful statement about voting for the $87 billion before voting against it, Kerry replied that yes, he made a mistake in talking about that vote, but Bush made a mistake in invading Iraq. Which is worse? (2) Bush repeated over and over again the obviously focus-grouped phrase "mixed messages", as a shorthand way of describing Kerry's flip-flopping. Kerry turned it around in an unlikely way-- by bringing up the nuclear bunker buster program, something most voters have probably never heard of. Turns out Bush is developing a whole new type of nuclear weapon, with the intention of using it, while telling the rest of the world that they can't have nukes. Talk about a "mixed message".

What does this mean for the campaign? Hell if I know. Debates are notoriously overrated. The Bush-Gore polls were tied before Gore's sighs, tied after Gore's sighs, and essentially tied on election day. Clinton was already killing Dole in 1996. Bentsen's win over Quayle didn't move the polls for Dukakis one bit. Reagan, despite the legend, was beating Carter in 1980 with or without that debate. Kennedy and Nixon were tied in the polls before the supposed 5 o'clock shadow, and tied after that first debate (as well as the other three debates that nobody ever talks about and where Nixon was properly shaven).

That said, one could at least hypothesize why this might be different. After all, the polls were tied until Kerry was attacked by the Swift Boat vets. Bush took a narrow lead and has held it since. To the extent that the Swift Boat attacks swung some voters to Bush based on character doubts about Kerry, perhaps Kerry's strong performance might swing them back. Such voters are not likely to be strong supporters of the Iraq war; otherwise they would have never been for Kerry in the pre-Swift Boat polls.

But let's wait and see. I've seen too many of these campaigns where debates don't matter to think that they suddenly do. I'd still make Bush a slight favorite right now. But if I were a Bush supporter, I'd sure be worried. And since the next two debates are not limited to foreign policy like this one was, it's all downhill from here. (Conservatives will defend Bush to the death on Iraq, but not on the deficit or the prescription drug bill.)

posted by Dilan at 1:39 AM

 
APOLOGY TO KOBE BRYANT:
Turns out he asked the alleged victim for a different selfish, kinky sex act that is generally a no-no on a first date for non-celebrities (except in porn movies). See here and here for details.

posted by Dilan at 5:10 PM

 
700 FOR BONDS:
It's fashionable to hate Barry Bonds. Of course, here in LA, he's hated because he's a Giant. The media hates him because he doesn't play the game of smiling while answering their stupid, lazy-ass questions. The fans hate him because he plays the villain. And everyone hates him because he is suspected of steroid use.

Nonetheless, we are living through the era of a new Babe Ruth and we ought to recognize it. Nobody else out there is hitting 700 home runs. Nobody else has hit 73 in a season. Nobody else has had 200 walks in a season. In fact, if you attend a 3 game series of games between your local team and the Giants, you are almost guaranteed a Bonds home run and will quite possibly see two or three.

Sometime next year, he will pass the magic numbers of 714 (Ruth) and perhaps even 755 (Aaron) home runs. When he does, he will become the first since Ruth to hold both the single season and career home run records. It is said that it is better to be respected than loved. Unloved as he may be, Bonds' hitting prowress has certainly earned our respect.

posted by Dilan at 11:26 PM

 
DAN RATHER HAS GOT TO GO:
As they say, it's not the crime, it's the cover-up. And once it became clear that those documents were forged, it was incumbent on Rather to admit it and investigate what happened. Instead, he is covering his own ass (ironic since the forged documents included an alleged "cover your ass" memo.

Howell Raines was fired, and a lot of people didn't think that could happen. The question is, is Rather too big a fish?

(Of course, I never understood what was so great about Rather in the first place. I mean, the guy isn't exactly Walter Cronkite or Edward R. Murrow, is he?)

posted by Dilan at 7:59 PM

 
CELEBRITIES AND A CERTAIN TABOO SEX ACT:
[Warning, folks, this is very graphic.]
From the Vail, Colorado Daily News comes the edited transcript of Kobe Bryant's interview with police (according to the paper, it has been edited "for language and the most graphic details of the events as Bryant described them"):

"Detective Loya: Did you ever ask her if you wanted, if you could ...
Bryant: Yes. That’s when she said no. That’s when she said no. That’s when she said no.
Detective Loya: So what did, what did you say?
Detective Winters: What did you say, how did that, how did that come about?
Bryant: Um, you know, that’s when I asked if I could ..., she said no.
Detective Loya: So you like to ... ?
Bryant: That’s my thing, not always, I mean, so I stopped. Jesus Christ man. "

And here's more:

"Detective Winters: When did she, when did you stop, what, what made you stop?
Bryant: Well I asked her about the ... thing and she was like no, I don’t know.
Detective Loya: How many times did you ask her?
Bryant: Once.
Detective Winters: Okay, all right, okay. You said, when, did it stop at that point?
Bryant: Um, did I stop? (Inaudible) She went like this (inaudible), I asked her if I could ... and she was like no um, I thought she was cool, you know, I stopped. I stopped pumping and uh, I just, I just stood there like this (inaudible) and um, then she just moved like this."

Pretty obvious what the "..." thing is, isn't it?

Assuming the Kobe Bryant statement is truthful, this isn't the first time that a celebrity has been turned down for anal sex during a one-night stand.

For instance, there was Jenna Jameson and Marilyn Manson:

"Jenna talks about Marilyn Manson trying to have anal with her in the book but she had to turn him down because he was too big for her."

There was also Suzen Johnson and Frank Gifford. I don't have a cite for this one, but I remember that one of the tabloids reported that he asked for anal when he had his affair with the former flight attendant.

I think of consensual anal sex in the context of relationships. It is either something that very kinky women like to do with men that they completely trust, or something that women in long-term relationships will do (even though they don't really like it) to please their husbands or boyfriends who they love very much. I don't think that too many women do anal on the first date. It's painful (especially when there's no lube around, and you know that Kobe didn't have any lube-- he didn't even have a condom), requires preparation and relaxation, and, even at best and with a trusted partner, is far, far less pleasurable than vaginal sex is for a woman.

But, I guess this is one more example of celebrities getting-- or at least expecting to get-- whatever it is they want. Somehow I have a feeling that there are quite a few NBA, NFL, and rock groupies who do have anal sex sans lube with celebrities whom they just met, despite the fact that it is very painful for them, and that's why Messrs. Bryant, Manson, and Gifford apparently felt comfortable asking for it.

One other thing-- in the transcript, Kobe says, apparently about anal sex, "that's my thing". Why do I find it unsurprising, given Kobe's selfish playing style that emphasizes his individual scoring achievements over teamwork, that his "thing" is a particular sex act that gives him great pleasure while likely inflicting pain on his partner?

CORRECTION: It turns out that Kobe actually asked for a different kinky, selfish sex act. See this post. But my points remain valid.

posted by Dilan at 7:55 PM

 
COMMENTS:
I have enabled the "comments" feature on this blog. (I didn't know how to do that before.) Feel free to post whatever you want! (To post a comment, click on the blue time of posting indicator below the post.)

posted by Dilan at 5:59 PM

 
THE SMOKING TYPEWRITER:
The CBS documents are definitely forgeries. I have no doubt about it after reading this blog post:

http://shapeofdays.typepad.com/the_shape_of_days/2004/09/the_ibm_selectr.html

The only question is who forged them? I don't think CBS has much of an obligation to protect the anonymity of folks who passed them forged documents. And this is a serious issue that has serious political repercussions. There's a big story here, and CBS should figure out who snookered them.

posted by Dilan at 5:22 PM

 
THE FALLACY OF THE DEMOCRATS NEED TO BE "TOUGH":
Presidential campaigns always conform to established narratives. Republicans have to demonstrate that they are compassionate and not heartless, Democrats must demonstrate that they are strong and tough, and that they are not big-spending liberals. Each candidate is at times accused of being too ideological, and too captive to his base, and at other times is accused of being a flip-flopper, a wobbler, of cynically "moving to the center" for the general election.

I guess it is easier to use one or more of these prefabricated narratives than it is to actually figure out what makes the candidates tick or to say anything original about them. But the problem is, these narratives are not only lazyman's journalism-- they are also often wrong.

Consider, for instance, the problem that the Democrats are supposedly "weak" on defense issues. It probably started as part of the disgraceful Republican meme in the 1940's that liberalism and communism were one and the same, and thus the liberals could not be trusted to protect this country. So let's look from the 1940's out and see what we can see about Democrats and defense issues:

1948: Truman-- defense issues probably helped him, as he was associated with the successful conclusion of World War II and the dropping of the atomic bombs, which was widely popular.
1952: Truman declines to seek reelection because the Korean War was so unpopular. The Korean War is, along with Vietnam, the classic "Democrat War", to use Bob Dole's phrase from 1976. Truman was clearly trying to show he was as anti-communist as the Republicans. Instead, he got us into a quagmire that took 50,000 American lives and ended in stalemate. Adlai Stevenson is the Democratic nominee aganist Eisenhower, runs primarily on domestic issues, and loses to a war hero whom no Democrat could have likely beaten.
1956: Stevenson faces Eisenhower again, Ike still wildly popular, same result.
1960: Kennedy vs. Nixon. Kennedy argues that there was a "missle gap", and that Eisenhower and Nixon were insufficiently hawkish in the Taiwan Strait and in Cuba. Kennedy wins a close election. Defense issues helped Kennedy.
1964: Johnson vs. Goldwater. Actually, this is a fascinating election because Johnson won it by posing as a dove. (He rewarded the electorate for their votes, of course, by escalating the disastrous hawkish policy that Ike and Kennedy started in Vietnam.) He attacked Goldwater as "trigger happy" and ran the famous "Daisy commercial" which insinuated that a vote for Goldwater was a vote for nuclear war.
1968: Johnson, like Truman before him, doesn't run for reelection because of the unpopularity of the Vietnam War. Democrats could have nominated anti-war Eugene McCarthy but instead nominate Hubert Humphrey, who was compromised by his role in the pro-Vietnam War Johnson Administration. Humphrey barely loses to Nixon, who runs on a promise to get us out of Vietnam. Again, the more dovish candidate wins the election (and again, after posing as a dove, the winner proceeds to escalate the Vietnam War).
1972: McGovern is a big anti-war candidate, but he is also completely incompetent (convention speech in wee hours of morning, Vice-Presidential candidate taken off ticket after it turns out he had been in psychotherapy). Loses to Nixon despite Nixon's unpopularity.
1976: Carter promises a foreign policy based on human rights, isn't particularly hawkish or doveish. Beats Ford, who was crippled by Republicans' association with Watergate scandal.
1980: Carter seen as ineffective President; Reagan was unbeatable anyway. Greatest politician in my lifetime.
1984: Mondale was seen as too liberal, but again, he wasn't beating Reagan anyway.
1988: Dukakis gets bashed on for posing in that tank, but it should be remembered that he was trying to look more tough, not less tough, by doing that. He gets beat by Bush 41, who was running as Reagan II.
1992: Weird election. Ross Perot splits the vote. Clinton ran as a hawk, saying that he would be tougher on China than Bush 41 had. On the other hand, Bush 41 trumpeted what was then seen as success in the first Gulf War.
1996: Clinton vs. Dole. Again, both of them run fairly hawkish campaigns. Clinton wins.
2000: Gore trumpets his role in Bosnia and Kosovo war policies. Bush runs as a dove, promising a more "humble" foreign policy. Bush wins.

So let's see: in 1948 and 1960, out-hawking the Republicans helped Democrats. However, in 1964, 1968, and 2000, the more dovish candidate won. The only elections where Democrats were probably hurt by being doves were elections they were going to lose anyway-- the two to Reagan, and McGovern's incompetent campaign in 1972.

So why, exactly, was John Kerry's vote for the Iraq war seen as such an asset by the Democratic Party establishment in this election cycle? Especially since: (1) it makes it impossible for Kerry to properly and effectively criticize the war that he voted to support, and (2) it is perfectly clear that it was a political vote, an attempt to protect Kerry's electoral prospects if the war went well (all one has to do is look at Kerry's previous doveishness (including on the question of Saddam Hussein in 1991) to see this).

If the Democrats lose this election, they will have gotten what they deserved. Parties without any balls to stand up and oppose bad policies deserve to lose.

posted by Dilan at 11:27 AM

 
BUSH'S PAST:
Apparently 60 Minutes, this Wednesday, is going to run an expose on what President Bush was doing that year when he was supposed to be in the Texas / Alabama National Guard and nobody knows where he was. I am ambivalent about this issue, because I really do wish the Presidential campaign would focus on more important things, like Iraq and the deficit, but here are a couple of observations about this issue:

1. A lot of Bush's supporters have tried to make Bush's National Guard service into some noble cause akin to the current Guard members putting their lives on the line in Iraq, when we all know that in the Vietnam era this was a route for rich kids (like Dan Quayle) to not have to go to Vietnam while not explicitly dodging the draft either. Bush-- who could have defused this by simply having the guts to say that he didn't want to go to Vietnam and admires greatly those who did-- has never said a word about this argument being made on his behalf.

2. The (tacitly) Bush-sponsored Swift Boat ads (falsely) trashed Kerry's service record and his activities protesting Vietnam. Again, Bush could have defused this by simply condemning the Swift Boat ads as false and contemptible (no, not all 527 ads, just the Swift Boat ones). But he didn't (again, he does not have the guts to ever tell members of his base that they are full of it), and if voters have a right to consider whether Kerry has told the truth about 35 years ago, they certainly have the right to consider whether Bush has told the truth about 33 years ago.

The truth is, I am sure Bush did a lot of unsavory and unadmirable things when he was a young alcoholic. I also think it is quite likely that he didn't take his service to his country very seriously and had no intention of going to Vietnam. I happen to admire Bush for having overcome the problems of his youth. But let's face it-- the reason his comeback from alcoholism and youthful irresponsibility is so impressive is because he was so irresponsible in his younger years. He has never been willing to admit this in anything other than oblique terms. He has admitted that he was "young and irresponsible" but has never admitted specifics-- cocaine, multiple DUI's, avoiding Vietnam service, lots of womanizing, etc. (The reason for this is because he has a lot of supporters on the religious right who feel these things reflect badly on one's character even if one later repents for them.)

By the way, I don't think Bush has to admit these things. He really doesn't. I'm fine with him just obliquely saying he was young and irresponsible-- though I do wish he would just admit why he didn't go to Vietnam.

But here's the problem. Kerry was a very responsible youth. Really. He risked his life for his country, and then came back and exercised his First Amendment rights to try to end a war that he thought was immoral and save the lives of other young American and Vietnamese citizens. About the only irresponsible things that you could argue he did were using too extreme rhetoric in the Senate and throwing away the ribbons and medals-- and even those acts are actually quite defensible in context. But here's my point: even if you believe that Kerry went too far in some of his war protesting activities, such acts are probably not nearly as irresponsible as some of the things Bush did before he turned his life around.

So where does this leave us? It leaves us with something I've said for some time. Bush should not be attacked for the fact that in his youth, he was irresponsible. I don't care-- he's clearly turned his life around, and we should all admire that. But Bush-- and his surrogates as well-- have no business attacking Kerry for his actions when he was young, because if what Kerry did at age 27 is fair game, then the vastly worse things that Bush did before he cleaned up his life are also fair game. And the Bush people don't want to play that way. They need Kerry's youthful anti-war activities to portray him as a dangerous leftist peacenik. (Notice, for instance, Zell Miller's out of context quotation of Kerry's remark-- from his college days-- that he opposed US military actions without UN approval. Kerry has never repeated this remark, and voted for Kosovo and Iraq wars without UN approval, but Miller still used it.)

In this context, Bush deserves what he gets in terms of the examinations of his sordid past.

posted by Dilan at 6:32 PM

 
COMING NEXT WEEK, AN ARTICLE BY OLIVER NORTH, DENYING THAT ARMS WERE SOLD TO IRAN IN THE 1980'S:
You know, you would think that National Review would know better than to run an item in its blog, expressing skepticism that Israel could possibly be spying on the US's internal Iran policy debates, written by Michael Ledeen, a pro-Likud neoconservative who reportedly organized back-channel communications between Bush Administration neoconservatives and an infamous shady Iranian arms dealer who played a crucial role in the Iran-Contra scandal. (Nowhere on the National Review site have I found any disclosure of Ledeen's obvious conflict of interest with respect to his post.)

You would especially think that National Review would be cautious about allowing Ledeen to post his thoughts on this issue when Ledeen refused to comment to the Washington Monthly when they reported on Ledeen's activities.

I don't know about you, but to me, a denial that a wrongful act took place, made by someone who is sympathetic to the ideological goals of the suspect, and who organized a blatant attempt to subvert official policy relating to the same subject matter as the suspect's alleged wrongdoing, is not particularly credible as is. But when that person is directly asked to comment to the publication who breaks the story, refuses to do so, and then publishes his denial (i.e., a comment that should have been made to the reporters who broke the story when they asked him to comment) in a sympathetic, ideological publication that will not criticize him or note his obvious conflicts of interest, I don't think it's entitled to any weight at all. In fact, these circumstances make me almost certain that Ledeen is being dishonest and is avoiding commenting in a venue where he might face uncomfortable questions. Shame on National Review for allowing him to get away with this.

posted by Dilan at 1:13 PM

 
NICE DEMONSTRATION OF EXACTLY HOW OUT OF TOUCH THE RIGHT WING IS:
Look at this note by Kathryn Lopez from the "Corner" on National Review's website:

"BARBARA AND JENNA & THE GAY WEDDING [KJL]
"Yesterday it was reported that the Bush twins might be attending an upcoming gay 'wedding.' But before it becomes an urban legend: I am told by White House insiders that they are not attending. The misunderstanding can be chalked up to the young women being polite people."

It says all you need to know about the conservative movement that someone has to go to the trouble of issuing a denial (on background, no less!) to a conservative website that the President's daughters might honor a gay friend by attending the friend's wedding. (Also, note the irony of Lopez implying it was "polite" for the Bush daughters not to explicitly turn down the invitation. If Lopez is really committed to the belief that gay marriage is an abomination, she can't possibly feel that expressing that belief would be "impolite". Come on, Kathryn, if gay marriage has to be opposed to the point of not attending a friend's wedding (an impolite gesture in itself), then not explicitly turning down the invitation would seem to be a terrible compromise of one's principles, wouldn't it?)

And note, again, the use of "scare quotes" around the term "wedding"-- an issue I have commented on before. Apparently if you even use the term "gay marriage" or "gay wedding" without putting a derisive pair of quote marks around it, you are endorsing the gay rights agenda lock, stock, and barrel.

I really don't believe that smart conservatives (and Ms. Lopez is a smart conservative) really believe this trash. (I also don't believe that young conservative commentators believe this trash at all. Most college-educated people under age 40 had openly gay friends in college, and think it's no big deal.) I assume that the folks at National Review (Derbyshire aside) are playing to the bigotry of their supporters. (Lopez may very well believe that homosexuality is a sin-- she is, to my knowledge, a quite devout Catholic-- but that is a very different issue than deriding gays and making snarky and prejudiced remarks about them.)

Or at least I hope that's all they are doing.

posted by Dilan at 8:15 PM

 
LINK TO ERIC MULLER'S POSTS RE: MALKIN ON VOLOKH CONSPIRACY:
With respect to the item directly below this one, here's a link to the comments that Muller posted on the Volokh conspiracy website regarding the Malkin book on Japanese internment:

http://volokh.com/archives/archive_2004_08_00.shtml#1091762547

Note that you will have to scroll down to read all 10 of his posts.

By the way, one of the funnier Malkin responses to all this is that she operates under publication deadlines and therefore couldn't have been as thorough as Muller wants her to be. (See this link and scroll down to "Part 3".) That's really rich. So it's more important to get the book out before the 2004 election than it is to get your history right? Can Malkin's motives in writing this book be any more transparent (and any more unrelated to any serious scholarly interest in history)?

posted by Dilan at 8:51 PM

 
WELCOME TO THE BIG LEAGUES, MICHELLE:
Michelle Malkin is a conservative author who, like many others, is paid big money by the forces of institutional conservativism (in her case, the right wing Regnery Press) to put out books to serve the interests of the Republican Party. (Her book titles all have the telltale colon in them, e.g., "Invasion: How America Still Welcomes Terrorists Criminals & Other Foreign Menaces to Our Shores". When I see that colon, I run far away.)

Malkin's specialty is immigration issues. It's easy to be cynical as to why that is-- she's a fairly dark skinned woman of obvious Asian descent; she's thus the perfect person to make arguments that might be argued to be racist, nativist, or anti-immigrant if made by whites. But Malkin, let it be said, is also very smart and productive. She churns out a daily column (which is not easy to do) and is very articulate, and has an ability to process large amounts of information. Unlike many other right wing (and some left wing) popular authors, she has heard of the footnote and the primary source document.

As I noted above, she wrote a book a couple of years back advocating restrictive immigration policies. That's a perfectly good subject for a smart conservative to write about-- there are a thousand different opinions about the effects of immigration on society. A person can take an extreme position-- even a racist one (and Malkin, like many advocates of draconian treatment of foreigners, likes to conflate invading Arab terrorists with "invading" Mexican migrant workers)--- and the position can't be proven false. Immigration policy is, after all, a matter of opinion.

But Ms. Malkin has written a new book, and this one tackles a matter of history, not policy. Obviously the folks at Regnery wanted someone to put out a defense of Bush's anti-terror policies in advance of the 2004 election, so she spent the last year writing "In Defense of Internment: The Case for Racial Profiling in World War II and the War on Terror". (There's that colon again.) Her approach is to defend Bush's crackdown on civil liberties by saying that FDR's was even more oppressive, and the historical record vindicates FDR.

Needless to say, Ms. Malkin is swimming upstream here. The verdict of orthodox history is that FDR's actions were a grave and needless infringement on civil liberties, motivated by the worst sorts of racial prejudice. Of course, swimming upstream doesn't by itself make one wrong, but the reaction to Ms. Malkin's work by some professional historians is a nice object lesson in biting off more than one can chew.

Essentially, Ms. Malkin's problem is that she is not a historian, and she wrote her book in a year (working part-time, as she also writes her column AND had a baby this past year), drawing on some primary documents, mostly received from other conservatives who thought internment was not such a bad idea. And she is arguing that all the professional historians who have intensively studied the complexities of the historical record, and who have examined tens of thousands of pages of documents dispersed in archives in Japan, California, Washington D.C. and many other places, are full of it.

I've got to say that this has got to be one of the great examples of a conservative believing a bit too much of the movement's own BS. You see, conservatives like to refer to academics as biased pointy headed geeks who forsake rigorous study in favor of hack scholarship such as postmodernism and relativism. I will not deny, of course, that such hack scholarship exists, but that doesn't mean that any smart conservative with internet access, a Lexis account, and some like-minded friends who have collected a small sample of the primary documents is going to be able to disprove the consensus of professional academic historians. As biased as some academics may very well be, the fact of the matter is that the intensive methodologies of academics who are attempting to publish in professional journals or to produce a scholarly book cannot be duplicated by a smart layperson working part time.

In any event, I invite anyone who wants to see a conservative commentator, in over her head, get thoroughly eviscerated by academics who don't appreciate her efforts to discredit their life's work without paying her dues to click on this link and scroll down to all of the updates (and click on the Volokh Conspiracy links that are included down below the updates on the page as well).

Ms. Malkin has picked a fight she can't win.

posted by Dilan at 8:16 PM

 
THE SWIFT BOAT VETERANS AND THE KERRY-BUSH CAMPAIGN:
I can't remember when I have been more pissed off about a political attack than I was about the new advertisement and forthcoming book from a group calling itself the "Swift Boat Veterans for Truth", supposedly a bunch of Vietnam veterans who served with John Kerry and contend that he is lying about his war record.

This is despicable on all sorts of levels-- the media has picked up on the fact that this is being supported sub silentio by the Bush campaign (it was funded by a major Bush contributor and Bush could stop it with one phone call, as Vietnam veteran John McCain has urged Bush to do), and that the people involved didn't really serve with Kerry, and that some of the Swift Boat vets are already retracting their claims.

But I don't think the media coverage has given the full picture of why this is such a base political attack. The fact is, John Kerry spent the Vietnam War taking fire and risking his life on behalf of his country. George W. Bush pulled political strings to get ahead of many other people on a waiting list to join the Texas Air National Guard, avoided going to Vietnam and risking his life, and may have also failed to show up for duty (this last fact has not been definitively proven, but no records establish that he really did show up for several months after he had been transferred to Alabama, and he has avoided definitively saying that he had reported for duty during that period). In fact, George W. Bush was probably a rather irresponsible rich kid, a hard drinker and party animal who didn't get his life together until he turned 40. Kerry was, in contrast, an extremely precocious 26 year old.

None of this is really news. And really, none of it should determine who should win the election. I don't support Bush for President, but I do admire that he turned his life around. I think that is one of his best personal qualities. But in order to accept the narrative that he turned his life around, we must also accept that before he did, things weren't pretty. And they weren't. Whatever Bush was doing during the Vietnam War, he wasn't a responsible adult back then. Kerry, on the other hand, was one. And that doesn't mean that Kerry is a better man now; it only means that he was a better man back then.

Nonetheless, Kerry is running on this issue, and Bush's political strategists are scared to their bones about it, because it's impossible to run their normal cheap political attacks against the patriotism of liberals when you are running against a war hero.

So that is the context for George W. Bush's contributors and the right wing media bringing us the Swift Boat vets. And you can tell the political nature of the thing by what the vets say. Let's be clear-- I could totally see Kerry overstating his wounds to get out of Vietnam early, or overstating his war heroism to get elected. I could see that both because he's a politician and because of what we have learned about John Kerry in this campaign.

But that's not what the swift boat vets say, and the reason is obvious-- a John Kerry who may have overstated his military record is still a John Kerry who went to Vietnam and risked his life while Bush didn't. In other words, it wouldn't neutralize Kerry's advantage on the issue, which was the point of this attack.

So what the vets had to do was actually turn Kerry into a coward and a criminal. Thus, they claim that he got his Silver Star for shooting an unarmed Vietnamese teenager in the back. And they claim he inflicted a wound on himself to get a third Purple Heart to get out of the war. And they claim that the man who claims that Kerry saved his life by pulling him out of the water under enemy fire-- an incident that caused Kerry to be decorated with a Bronze Star-- is a liar, and that in fact there was no enemy fire.

You can just see how unbelievable this all is. It would mean that the US Military knowingly and repeatedly decorated a coward and war criminal, and allowed a person to get out of Vietnam by means of a self-inflicted wound, and that further we should believe these fellow servicemembers who never formally protested or complained about the medals when they were awarded but only spoke up when Bush campaign contributors came calling.

So you have a facially unbelievable story, paid for by known Bush supporters, and with an obvious "too good to be true" element to it, i.e., a carefully written narrative that negates each and every element of the claimed war heroism of Kerry, and specifically goes farther than simply criticizing Kerry for being a lousy soldier, instead making him out to be even worse than those who didn't serve in Vietnam. I am sorry, but there is no way in hell that the things the Swift Boat vets allege really happened.

One more thing needs to be said about this attack. While the Swift Boat vets were in Vietnam, the radio talk show hosts and Fox News commentators who are carrying the ball for them were not there, for the most part. And, of course, Bush, the intended beneficiary of the attack, also was not in Vietnam. War service is not pretty. Horrible things happen. Civilians get shot. Young men (and now women) are afraid and sometimes do stupid, even atrocious things. If we are going to honor those who serve our country (and we should), we also cannot turn around and nitpick at every single thing that happens while they are under fire. It is not as though John Kerry ran the Abu Graib prison. I guess the short way of saying this is, I really don't care, in the larger sense, whether the bullets were really flying when Kerry pulled Jim Rassman out of the water or not. I don't care whether the wounds that gave rise to Kerry's Purple Hearts came from a Vietnamese gun or from friendly fire, and I don't even care that they were superficial wounds treated with Band-Aids.

If you go back and question everything that a veteran ever did in the war, and end up elevating the record of someone who never served (and thus cannot be subjected to the same scrutiny), you are no longer honoring veterans-- you are in fact trashing them. Because we ask young people to do awful things on our behalf in war. In the Vietnam War, we did not ask folks in the Texas Air National Guard to do these things. (In a cruel irony, George W. Bush now asks those in the National Guard to die in the line of fire, the very thing he avoided by joining the Guard during the Vietnam War.) The fact that a 26 year old John Kerry did those things, for us, does not make him a worse person than George W. Bush. And it is completely dispicable that anyone would suggest that it does, and try to take down Senator Kerry's honorable service to his country by claiming that he is worse than a draft dodger.

posted by Dilan at 9:19 PM

 
SLATE LINKED TO ME!:
Kevin Arnovitz's excellent Fraywatch (http://www.slate.com/id/2104671/) linked to this blog and gave us a plug. That's reason enough for me to put up some new posts. I really need to pay more attention to this, because people are paying attention to me. I promise I will.

posted by Dilan at 9:16 PM

 
SO HE IS FRENCH AFTER ALL:All these complaints by the Democrats every time that Fox News or some other Republican organ calls their nominee "French"-- and then what do they go and do?  They Kerry come out for his post-convention concert appearance with the Boston Pops right in one of the sections of the "1812 Overture" where the orchestra is playing the French national anthem!
So it was Kerry marching out to the "Marseillaise".  Yeah, great job with the images, guys!

[UPDATE:  Just after I hit the "send" key, it got worse!  They started playing the Beatles' "All You Need Is Love", which starts out with-- guess what-- the Marseillaise!!!  I have to hope that they are just being ironic, but I doubt it.)

posted by Dilan at 9:36 PM

 
GIVING SHORT SHRIFT TO THE 1812 OVERTURE:
In a festive mood for the 4th of July, I watched the Boston Pops on CBS and "A Capitol Fourth" with the National Symphony on PBS. I've watched July 4 concerts on TV ever since I was a kid, with Arthur Fielder and the Pops on PBS. This year, however, something was missing-- the best part of every July 4 pops concert, the 1812 Overture.

It is strange, of course, that the 1812 Overture, by Peter Ilych Tchaikovsky, would become a staple of celebrations of American independence day. The piece, which takes a very typical form for a solemn Russian Romantic overture, depicts a battle between the French and the Russians during Napoleon's march on Russia in the Winter of 1812. (Napoleon eventually was forced to retreat because of the weather and the Russians' battle strategy. This was considered a key event in Russia history, because it boosted Russia's confidence that it would never be dominated by European powers. The Russians (actually the Soviets) later used the winter to repel Hitler's forces as well.) The Overture utilizes portions of the French National Anthem and a classic Russian Hymn that honors the Tsar, to create a contrapuntal sound of the advance and retreat of armies. Of course, what makes the piece famous is the use of chimes, cannons, bells, and everything else Tchaikovsky can muster, with the instantly recognizable closing fanfare playing on top of it (and the Tsar's Hymn playing victoriously in the background).

Why, then, is this explictly nationalist Russian anthem such an American institution. One might guess it has something to do with the year 1812 (after all, America fought a war in 1812 as well), but it really doesn't. There are two basic stories. The first is that Tchaikovsky played the overture in 1891 when he opened Carnegie Hall, and it has played on July 4 since then. But while Tchaikovsky did open Carengie Hall, he didn't do it on July 4; the concert was in May. More likely is that Arthur Fielder, the longtime conductor of the Boston Pops, decided that the way to get attention for his concerts on the Esplanade of the Charles River on July 4 was to do the "1812" complete with the staging that is only possible outdoors, including the cannons, the bells, the fireworks, and the kitchen sink.

Whatever, it became a tradition, and the 1812 Overture is the centerpiece of every Boston Pops July 4 concert. Those concerts used to air on PBS with Fiedler, and later John Williams, conducting. They did a version of the "1812" that deleted a repeated section but still lasted a good 16 minutes or so. It was always a sight to see, with fireworks and cannons everywhere and 400,000 spectators going crazy. Later, A&E network picked up the Boston Pops July 4 concert, and A&E featured the 1812 as well. PBS substituted the Capitol July 4 concert for the Pops, and they also did the 1812, with Erich Kunzel conducting, and usually with a choir to augment the string section at the start of the piece.

In the last 2 years, however, everything has gone to hell. The Boston Pops have been picked up by CBS, but they only show an hour of the concert. For that reason, they can't spend 16 minutes on the Overture. Instead, we get a couple of celebrity singers-- this year it was David Lee Roth (how pathetic), followed by a Sousa march, a patriotic singalong, and a bunch of fireworks accompanied by taped music.

Meanwhile, on PBS this year, to fit in a tribute to Ray Charles and Clay Aiken singing "God Bless the U.S.A." (yecch), we got only 2 minutes of the 1812 Overture, which Kunzel started conducting just before the end. This is truly objectionable-- it is impossible to get excited for the finale of the piece without hearing Tchaikovsky's depiction of the battle that leads up to it. The result is, this great July 4 tradition was completely desecrated by television this year.

Of course, this sort of thing is par for the course for television, which always looks for things to cut and seeks the lowest common denominator-- who needs Tchaikovsky when you have David Lee Roth? But I have a slightly cynical take as well. Perhaps the TV folks have decided that if you are going to cut something out of the 4th, an epic piece about a Russian battle is the right thing to cut. I have noticed that in recent years, Fox has not shown the singing of the Canadian national anthem at the baseball All-Star Game (which is always sung), but has come back after commercial to show the "Star-Spangled Banner". (They also forego a block of commercials-- real money-- to show the singing of "God Bless America" during the 7th Inning Stretch.) Americans can be very crassly nationalistic (witness the renaming of french fries as "freedom fries", and the more general vilification of the French, after the UN votes leading up to the Iraq war), and perhaps no TV station ever went broke pandering to that nationalism. So here's an overture that glorifies the sacrifices of two countries, the French and the Russians, that conservatives bash on every day on talk radio. Gee, is it that much of a surprise that this is what gets deemphasized?

What bothers me more than anything about this is that the 1812 Overture is one of the few exposures to serious music that many Americans have. It may be mildly fun to sing along with Clay Aiken on July 4, or to watch fireworks explode to the music of Mariah Carey records, but the music of Tchaikovsky changes lives, touches souls, and connects us with a history, both musical and military, that most Americans know little about.

Indeed, while I bow to nobody in calling this the greatest country in the world (we get the core issue of individual liberty right in a way that no other society does), the fact is that in many parts of America, not only is nobody expected to know who Peter Ilych Tchaikovsky was or the fact that Russia and France fought in 1812, but those who do know these things are viewed with distrust, as snooty elitists. When TV plays to this ignorance, by imploring God to bless the U.S.A. while not finding 16 minutes to devote to a piece that will still be listened to, and enjoyed, long after Lee Greenwood is forgotten, it disgraces this country. Americans are a tremendously lucky people-- we have freedom, riches, and near-universal access to the canonical works of western culture. We should not spurn this gift in favor of mindless crap on July 4.
posted by Dilan at 10:54 PM

 
JOHN KERRY'S MISSED VOTES:
So Bill Frist, Mitt Romney, and other Republicans want John Kerry to resign his Senate seat because he is missing votes while he runs for President, and delayed a vote on a Veterans' benefits bill so that he couldn't cast his vote during a break from his campaign. (Here's the link.)

Can this be any more transparent and cynical? If Kerry resigns, Romney, a Republican, appoints his successor. And the makeup of the Senate is close enough for one vote to make a difference. (Frist and Romney point to Bob Dole resigning in 1996, but he gave up his seat to a fellow Republican. Think he would have given it up if a Democrat would have had the power to appoint his successor?) The only real question here is why the New York Times doesn't point this obvious fact out in its story.
posted by Dilan at 1:11 PM

 
REAGAN ON THE NEW DOLLAR:
Reagan was a lousy President, and I am not too keen, as you might imagine, of putting his face on a coin or bill. But we do need to get rid of the penny and the one dollar bill. One dollar bills last one year in circulation; coins would last 20. We spend tons of money on dollar bills that we could save by replacing them with coins. Meanwhile, the penny is worthless. Nobody uses them; many places don't even accept them (try finding a slot machine, parking meter, or vending machine that accepts pennies).

I'd offer this trade to get Republican support for coinage reform, which would save lots of money. Agree to get rid of the penny and the dollar bill, and we will have to create a new dollar coin to replace the dollar bill-- we can put Reagan's face on that.

I'd rather reduce unnecessary spending than worry about who's face is on the bill. So how about it, GOP?
posted by Dilan at 11:39 PM

 
REAGAN'S HUMAN RIGHTS RECORD:
A number of people are saying, in their Reagan tributes, that he was a great believer in human freedom. Neoconservatives, who support agressive advocacy of human rights in foreign policy, characterize him as a demigod.

I don't think they are remembering the same Reagan that I remember. Reagan opposed the side of freedom in Angola, Guatemala, El Salvador, Chile, Haiti, and especially South Africa, where his administration considered Nelson Mandela, who turned out to be one of the genuine human rights heroes of the 20th Century, a giant on the level of Ghandhi and King, as nothing more than a dangerous communist sympathizer. Indeed, Reagan's subordinates used to bash Reagan's predecessor, Jimmy Carter, for a touchy-feely human rights-based foreign policy. Reagan's official policy wasn't support for human rights, but anticommunism combined with realpolitik.

Reagan didn't advocate freedom in domestic affairs either. His Attorney General, Ed Meese, tried to ban porn at a time when the VCR was liberating many American adults to finally explore their sexual fantasies. Meese also took the position that the familiar Miranda warnings that criminal suspects have received since the 1960's only protect guilty people. And Reagan supported the notorious Bob Jones University all the way to the Supreme Court in its attempt to retain its tax exemption while depriving its students of the freedom to date someone of their choice who happens to be of a different race.

Of course, lots of lies are always told about Presidents soon after their death. Nixon got the same treatment in 1994. We don't like to speak ill of the dead. But Reagan was no human rights crusader, and should not be seen as one.
posted by Dilan at 11:29 PM

 
SMARTY JONES:
The Triple Crown is simply very hard to win. The only thing in sports that is harder, that everyone wants to do, is Golf's grand slam. It's never been won in its current form (Masters, US Open, The Open, and PGA in the same year).

Of course, something I saw at Dodger Stadium several years back-- Fernando Tatis hitting two grand slams in the same inning-- is as singular as anything that could possibly happen in sport. But flukes like that are in a different category.
posted by Dilan at 11:39 PM

 
THE "TORTURE MEMO":
That torture memo is pretty damning. Remember how many times the Administration has denied that they engage in torture. And to think that some people still thing these guys are more honest than Clinton!
posted by Dilan at 11:35 PM

 
PLAYING THE LAKERS:
The Pistons were up by 6 late, fouled Shaq to create a three point play, and then allowed Kobe to touch the ball in the last seconds, which gave rise to a 3 point shot which inevitably dropped to tie the game and send it to overtime, where the Lakers won.

This happens all the time. Remember Derek Fisher against the Spurs? Remember Kobe twice against Portland when the Lakers needed to win to clinch the division?

When teams play the Lakers, and they take a single-digit lead late into the game, they have to assume that Kobe or somebody will hit 3 pointers. That means Shaq gets a concession layup to cut the lead to 4, rather than tough defense and a foul allowing the Laker deficit to be cut to 3. And that certainly means that anyone who touches the ball before Kobe gets fouled on the last possession-- 2 shots for Shaq or Luke Walton, both of whom got touches before Kobe.

You can't coach against the Lakers the way you would against any other team. No team I have ever seen is so effective in the last seconds. Not even the Bulls with Jordan.
posted by Dilan at 11:30 PM

 
AL GORE FOR VICE-PRESIDENT:
He'd be the perfect choice for Kerry. Read this to find out why.
posted by Dilan at 2:30 PM

 
JANET JACKSON, FREE SPEECH, AND CHILDREN:
Bill Maher has a wonderful rant about how concern for "the children" is the worst thing in America. He's not really right, of course (and I don't think he really means everything he says about the subject-- he is, after all, a comedian). After all, there are some areas in which we could use more concern for children. Why, for instance, does Michael Jackson still have unsupervised custody of his children? And why is Cardinal Roger Mahony still Archbishop of Los Angeles, still a person who receives numerous honors, and still a power-broker in the city, after having abetted the rape of numerous young boys by covering up for priests who abused children and continuing to place them in positions where they would have access to potential victims?

But Maher has a point. Even issues that have nothing to do with "the children" have to be spun that way. It's no longer simply bad to run a budget deficit. It's borrowing from our children. And policies have to be geared towards children. Every Democratic candidate proposes to make health care universal for children-- as if it isn't just as important to secure health care coverage for adults.

And where concern for "the children" really threatens to destroy what this country is all about is in the area of free expression. Let's start with two premises that I think are unarguable but which most Americans either have forgotten or deliberately ignore:

1. All children (except perhaps, those who are brought up in very traditional conservative households or communes, with homeschooling, no TV, etc.) inevitably are exposed to a certain amount of "adult" expression, whether it is nudity, sexual innuendo, graphic violence, profanity, or sexual conduct, during their childhoods, and the vast majority of those children turn out to be reasonably productive, law-abiding adult citizens.

2. If adults were forced to exclude from their reading, viewing, and expressive activities anything that might be deemed "inappropriate" for children, in any situation where children might be present, viewing, or hearing, there would be very little space left in society for "adult" expression and such expression would be seriously chilled and threatened.

For those reasons, the US Supreme Court has consistently held that the government cannot, in most areas, censor speech for adults merely because some children might be exposed to it. For instance, the government can't keep porn off the internet, can't shut down phone sex outlets, can't pre-screen and censor movies, can't prevent drive-ins from showing movies with nudity in them (it was argued that passing children on the street would see the nude scenes), etc. (There is one narrow exception in broadcasting, which I will get to near the end of this post.)

Middle America, of course, was outraged that their children might have seen Janet Jackson's nipple two weeks ago. My first reaction is to say "big deal". I don't remember when I saw my first nipple other than my mother's, but I wasn't that old. And nipples aren't that harmful, really. They appear on television in other countries all the time, and children who see them turn out fine.

But more needs to be said, since Americans are now calling for the FCC to censor the networks, congressional hearings are being held, and all the rest. I think it is important to remind people that it is good that we live in a country where Janet can flash her breast on TV.

Why? Because people want to see it. TiVo reported that this was the most replayed footage ever since the device was invented. And it also produced one of the biggest internet search query ever.

So, everyone wants to see this nipple. Why shouldn't they be allowed to see it? Because of the children? But get a grip folks, seeing this nipple WON'T HARM A SINGLE CHILD. Whether or not the culture in general adversely affects kids (and I would remind people that in their day, parents thought the Beatles and Elvis and "satanic" heavy metal music would harm kids too), one nipple on the screen for less than 2 seconds is a blip on a very large radar screen. So, even if one believes that certain expression is harmful to minors and would justify denying people who would like to see it the opportunity to do so, this isn't that expression. (This, by the way, is why the FCC's power to regulate broadcast "indecency" has nothing to do with the Janet Jackson matter. That power was upheld in FCC v. Pacifica in the context of the broadcast of a George Carlin monologue replete with profanity. That broadcast could at least be argued to affect children in a way that a quick flash of a nipple could not. Additionally, the Supreme Court has refused every invitation to extend Pacifica beyond its facts.)

I happen to think that if people want to see something, they should be able to see it. But even if you don't think that the free market should decide what sort of expression is valuable, the further danger is that this will chill more serious expression. NBC has already deleted an 80 year old's naked breast from an episode of ER. I could imagine that if someone proposed a documentary on breast cancer, the networks might turn it down. Network television had already been criticized by a congressman for airing "Schindler's List" uncut, because the film contains nudity. Sorry folks, but the Nazis did force concentration camp prisoners to strip. That's reality.

This is the road we go down when we try to make all expression fit for children. Heck, one jurisdiction even tried to prosecute somebody for shouting expletives when something went wrong with his boat, because there were children present. Maybe it's bad form and bad manners to say "Oh, *%#" when something bad happens, but should someone really be fined or go to jail for reacting as anyone might to a mishap? And do we want people in stressful situations to have to be constantly censoring themselves if it will distract from the important tasks at hand. Personally, I'd rather the person on the boat worry about piloting the boat than following a stupid law relating to profanities.

The truth is, I think this society likes to congratulate itself on how much it cares for children precisely because we actually care disgracefully little about actual children. Children don't have health care coverage (as I said before, this isn't more important than the fact that adults don't have health care coverage, but it does nonetheless demonstrate that we don't give a damn about kids). Children are homeless. Children go to awful schools with weapons and drug dealing and torn up, 15 year old textbooks. While we spend millions of dollars on programs to prevent strangers from turning up at the playground to molest children, tens of thousands of American children are molested by close relatives and we do little about that. And we have done little about the Catholic Church's involvement in sex abuse, too.

We can feel good about ourselves being all outraged about Janet Jackson and CBS harming American children by showing them, ever so briefly, a nipple, precisely because it doesn't cost us anything. (Actually, it does cost us something, in terms of free speech, but the American people are blinded to that.) Doing something about those things I mentioned in the previous paragraph would cost us a lot. Of course, the other difference is that suppressing speech won't improve the life of one American child. Indeed, it will only make the future worse for American children-- by depriving them of the free society that should be their birthright.
posted by Dilan at 2:01 PM

 
DRAFT PAPER ON THE ROLE OF 'DUTY' IN TORT LAW:
For those of you interested in such things, I have co-authored a paper (with Professor Gregory Keating of USC Law School) on the role of "duty" in tort law. The link is here. Your comments are welcome.
posted by Dilan at 1:24 PM

 
MICHAEL JACKSON'S PLANE AND THE PROBLEM OF GENERAL AVIATION SECURITY:
We don't yet know how all that video equipment got on Michael Jackson's plane, but the untold story here (I know it is hard to believe that any story relating to this matter is still untold, but bear with me here) is that even in this day and age of post-9/11 security, it is insanely easy for anyone to access private planes (which are referred to as "general aviation", or "GA", in contrast to "commercial aviation", which means airlines and airliners).

There are a number of reasons for this. Obviously, some of this is unavoidable. As everyone knows, metal detectors and X-ray machines are required at all commercial airports. But there are not that many commercial airports in the country. Here in the Los Angeles metropolitan area, we have six-- Los Angeles International, Orange County, Ontario, Burbank, Long Beach, and Palmdale. I believe New York has five-- Kennedy, Newark, La Guardia, Islip, and White Plains. In most cities (San Diego, for example, or Phoenix), there is one. Smaller cities sometimes do not have any commercial service whatsoever.

In contrast, there are thousands of general aviation airports, which encompass everything from a grass landing strip in a farming town to facilities landing Learjets and Gulfstreams for the rich and famous in places like Teterboro, NJ (close to New York) and Van Nuys, CA (near Los Angeles). Obviously, securing these places is a more difficult enterprise.

That said, however, you'd be surprised how many of these places lack anything more than a climbable fence for security. Aircraft are sometimes left open, where they can be tampered with, loaded with unauthorized cargo, or even stolen. And even in some of the largest GA airports serving learjets, ID's are not always checked, passengers and luggage are not screened, and people seem to be operating on an honor or recognisance system of security.

In this day and age, this won't do. There were indications after 9/11 that perhaps GA security would be improved. But then, it became clear that little would be done. Why? Well, for one thing, GA has a very effective lobby. Much as the farm lobby effectively represents the interests of agribusiness while claiming to stand for the small farmer, the GA lobby conjures up images of middle class Americans with pilots licenses who would face huge costs and inconveniences while running a security gantlet, all the while opposing even those security measures aimed squarely at the learjet set. (It isn't just security measures either-- while commercial airliners have been required to meet strict noise limits over the last 20 years, executive jets are not subject to those limitations thanks to the strength of the GA lobby; as a result, homes near Van Nuys Airport shake and crackle while all those jets carrying Hollywood celebrities and movie producers fly in.)

The GA lobby makes two main arguments against regulation-- first, that there are plenty of other weaknesses in homeland security that terrorists would exploit rather than using a GA plane to stage an attack, and second, that any regulation would impinge on the freedom of Americans to take to the skies. Both these arguments are easily answered. With respect to the weaknesses in other parts of the security net, one gaping hole does not justify another. Indeed, by the logic of the GA'ers argument, we shouldn't take any security precautions in any endeavor, because there will always be some loophole.

With respect to the argument that regulation will limit GA'ers freedom, this is, in a certain way, true, just as it is true that the same helmet laws that save the lives of motorcycle riders also impinge on their ability to feel the wind rushing by. But I would also express skepticism as to how much freedom would really be limited. I would envision different levels of security for different types of planes-- jets, after all, are more dangerous than multi-passenger prop planes, which, in turn, are more dangerous than Cessna 172's. A multi-tiered security system would reduce the imposition on recreational flyers while addressing some of the major holes in the system.

One might require that jets be parked in secure areas in airports with tightly controlled access, just like commercial airliners. Passengers and luggage could be screened at Transportation Security Agency checkpoints (remember, most GA airports don't handle learjets, so this may be doable), and passengers, flight attendants, and pilots would be subject to the same security checks as their counterparts in commercial aviation.

Multi-passenger prop planes should still be parked in secure areas (to prevent someone from stowing away or putting explosives on the planes), and pilots and passengers should be positively ID'd, with TSA officials setting up random checkpoints at GA airports with full search facilities, and conducting random background checks on passengers. All plane owners should be required to purchase terrorism insurance-- the insurance companies would then require that aircraft be fully secured and difficult to access. And everyone who gets a pilot license or takes flight training courses should submit to a background check.

I am not dead set on any of these ideas. My real point is, this is a big problem and the political system seems to be responding to lobbies and monied interests rather than doing something about it. People in the know raised similar warnings about hijackings and using commercial planes as missiles before 9/11. Let's hope that this time we can act proactively.
posted by Dilan at 10:59 PM

 
THEOLOGY AND ISRAEL:
I have blogged before about the deep respect I have for Israel, as a democracy among dictatorships in the Middle East, and as a successful country among failed states. I have also talked about the fact that Israel was born in a state of original sin, because it was formed by international powers who dispossessed Palestinian Arabs of their land without concern for the consequences. And that original sin has defined the state of war that Israel has found itself in ever since.

That original sin, however, can never be mended. Obviously, there has to be a refuge for Jews, who are, even now, repeatedly persecuted and attacked all over the world. And Israelis have a right to a safe, secure state, and further have the right to strike back against terrorists who bomb innocent people on the streets of Israel's cities. Indeed, the stubborn insistence of Israelis not to be beaten by the terrorists-- to continue to live their lives and engage in everyday activities despite the threat of additional suicide attacks-- is deeply admirable.

In my mind, the real threat to Israel-- because the terrorists will never be allowed to win-- comes from its friends and supporters, not the terrorists. And that threat is the insistence on intertwining the question of Israel's existence with the religious claims of the Jewish people to the Holy Land. The reason is that although these arguments may play well and may raise money from the believers, no non-Jew is ever going to feel obligated, or should feel obligated, to accept them, any more than Jews feel that they should give up sovereignty over the Temple Mount because Islamic tradition states that the Prophet ascended to heaven there.

Here is a nice example of this genre of argument. Charles Krauthammer is a war hawk and a strong supporter of Israel. Those are respectable positions, and I certainly don't condemn anyone for arguing that Israel should not agree to a Palestinian state if the peace plan would empower terrorists. He makes legitimate, if debatable, points against how the latest plan, concocted by liberal Israeli politicians in unofficial shadow negotiations with Palestinians, would compromise Israel's security.

But then he lands with this: "[Israeli negotiator Yossi] Beilin gives up the ultimate symbol of the Jewish connection and claim to the land, the center of the Jewish state for 1,000 years before the Roman destruction, the subject of Jewish longing in poetry and prayer for the 2,000 years since-- the Temple Mount. And Beilin doesn't just give it up to, say, some neutral international authority. He gives it to sovereign Palestine. Jews will visit at Arab sufferance."

Now wait just a second, Charles. I thought this was about Israel's security. I am not convinced that it would do this, but if giving up the Temple Mount would lead to peace between Israel and the Palestinians and an end to all the needless death, destruction, and misery in the region, isn't that reason enough to give it up? Is it more important to maintain symbolic control over a strip of land that is mentioned in holiday prayers than it is to save lives on the ground? As Krauthammer himself characterizes it, the Temple Mount is a symbol. The "ultimate symbol", yes, but a symbol nonetheless. Seriously, if I lived in Israel, I'd be much more concerned about the government giving up the Jordan Valley than the Temple Mount. But then, I am not a religious Jew-- and that is exactly the point.

If Israel is to ever settle its differences with the Palestinians, it will need to give Palestinians the land necessary to create a viable state. Everyone knows this. And creating a viable state means encompassing most of the Arabs in the Holy Land-- the last thing Israel wants is a demographic nightmare where Arabs live in Israel and eventually outnumber Jews, forcing Israel either to give up on being democratic or to give up on being Jewish. Further, no Arab wants to hear about how their new state cannot acquire particular lands because God gave them to the Jews, or because Jews lived there several millenia ago. Such arguments are not persuasive to Arabs-- nor should they be-- who have a different belief about what God wants and doesn't want, and who have their own historical attachments to land that they cannot reasonably be allowed to possess. Nor are they persuasive to non-Jews in the international community.

The paradox for Israel is that in order to maintain its Jewish character among so many Arab states, Israel must justify its actions based entirely on secular principles. People like Krauthammer may mean well, but they threten Israel's existence by situating the justification of Israel's actions in religion and religious history. This, in turn, feeds the notion in the Arab world that the Arab relationship with Israel is a religious war rather than an problem of providing two peoples with political rights and land. The best road to true security-- and religious freedom-- for the Jewish people is by pursuing a secular standard of justice, even if it means making painful compromises on heartfelt religious issues.
posted by Dilan at 10:28 PM

 
MORE "TIM GRAHAM":
Who is this guy, anyway? He's the person at The Corner whose assignment it is to articulate the right wing's claims of media bias. Well, he's really on a roll now. First, he posts an item that simply parrots a flash press release from the Media Research Center, a right-wing group that researches media bias. (That's pretty obvious evidence that Mr. Graham has been assigned the task of whining about media bias from right wing central, isn't it?)

Then, he puts in an item calling for completely biased coverage of the gay marriage decision by the Supreme Judicial Court of Massachusetts-- he wants the media to spin this as "unelected judges versus the democratic minority". Hey, Tim, I thought the party line was you guys wanted an unbiased media that let the viewers decide these things!

But what really drives me nuts about Mr. Graham's post on the gay marriage issue is that he refers to the issue as follows: "Judges favor what proponents call gay 'marriage,' but energized democratic majorities tend to reject it." Notice the use of "scare quotes" around the term "marriage", and also the use of the locution "what proponents call".

As a lawyer, I see scare quotes all the time in legal briefs. (For instance, in a case where one side denies that a contract was ever formed, you might see a sentence like this: Plaintiff contends that the parties agreed to a "contract" to distribute the pencils.) They drive me nuts. The reason is that-- except in certain, limited, obvious situations where the other side is clearly misusing a term-- scare quotes are a substitute for argument, rather than an argument itself. Mr. Graham's post is a perfect example of this. The reason proponents call the issue gay "marriage" is because that is what they are seeking-- a right of gays and lesbians to marry their life partners, and to claim all the public benefits of marriage. If Mr. Graham wants to articulate why he believes, for some reason, that gay marriage isn't really "marriage", that's fine-- but HE HAS TO ARTICULATE THE ARGUMENT. Putting "marriage" in quotes doesn't make the argument, doesn't persuade anyone (which is the point of making an argument), and basically makes the writer look either like he is too lazy to articulate the basis for his position, or doesn't have a basis for it.

In Mr. Graham's case, I would imagine it is a variant of the second alternative-- Mr. Graham thinks that gays and lesbian are so different and alien that any arrangement that they arrive at cannot be called "marriage". Of course, if he articulated that argument, he would look deeply homophobic. So, since he doesn't have a non-homophobic basis for his position, he falls back on scare quotes.
posted by Dilan at 11:38 AM

 
THEY ALL SEEM TO HAVE AN ASSIGNMENT
I always thought that Hillary Rodham Clinton's invocation of a "vast right-wing conspiracy" out to get President Clinton was way over the top. Bill Clinton created his own troubles. He had an affair with a subordinate (while this was a perfectly voluntary act, it also raises troubling questions about sex and power that have been properly addressed by feminists in situations where a Democratic presidency wasn't at issue), and then lied about it in a sexual harassment suit where he was legally obligated to tell the truth. Then, he lied to the country, and most importantly, would have continued lying about it to his dying day, and using his subordinates and yes-men to trash Ms. Lewinisky's integrity, had unimpeachable incriminating evidence (his semen on the dress) not materialized.

So I don't think Bill Clinton's impeachment problems were the result of any vast conspiracy. But I must say, more recent events are casting Ms. Rodham Clinton's analysis in a more favorable light. What I am referring to is the extent to which the right wing seems to "assign" certain tasks to writers, producing canned and predictable opinion that seeps its way into the public discourse without regard to its validity.

Books are the most obvious example of this. As a general rule, any conservative book with a snappy main title followed by a colon and an accusatory subtitle is the result of an assignment. Michelle Malkin writes "Invasion: How America Still Welcomes Terrorists Criminals & Other Foreign Menaces to Our Shores", because she was assigned the task of putting out the argument for a nativist immigration policy (which would just happen to advance the long-term goal of reducing the number of future immigrant votes for Democratic candidates). (By the way, just as an aside (I might post on this in detail in the future), do you notice how, even in Malkin's book's title, she conflates a "terrorist invasion" with the ordinary folks who cross our borders to find work? They are, of course, apples and oranges, and it is truly offensive to compare a poor Mexican migrant to an Islamist terrorist.)

Amazon.com has a wonderful feature that tells you what other books were bought by people who bought the book you are browsing.

And guess what-- Michelle Malkin's book links to a couple of the other "assignments" given out by right-wing central: "Useful Idiots: How Liberals Got It Wrong in the Cold War and Still Blame America First", by Mona Charen, and "Dereliction of Duty: The Eyewitness Account of How Bill Clinton Endangered America's Long-Term National Security", by Robert Patterson. Other assignments that are easily found through amazon's linking function include "Losing Bin Laden: How Bill Clinton's Failures Unleashed Global Terror", by Rich Miniter, "Hillary's Scheme : Inside the Next Clinton's Ruthless Agenda to Take the White House", by Carl Limbacher, and "Shut Up and Sing: How Elites from Hollywood, Politics, and the UN are Subverting America", by Laura Ingraham. There's also "Legacy: Paying the Price for the Clinton Years", by Rich Lowry, "Persecution: How Liberals Are Waging War Against Christianity" by David Limbaugh, and "Arrogance: Rescuing America From the Media Elite", by Bernard Goldberg. Adding to the comical similarity of the titles of all these books, the Lowry and Limbaugh books even add ridiculously obvious symbolism on the jackets-- the "A" in the otherwise white-lettered "LEGACY" on Lowry's book's hardcover is scarlet (get it?), and the "T" in PERSECUTION on the book by Rush's brother David is shaped like a cross.

Each of these assignments advances an argument that the institutitonal Republican Party sees as necessary to advance its electoral prospects. Slandering liberals as being on the wrong side of the cold war, as Charen does (along with Ann Coulter, in her book "Treason: Liberal Treachery from the Cold War to the War on Terrorism") helps plant in the electorate the sense that Democrats can't be trusted to defend the country against the current threat of terrorism. Blaming Clinton for the rise of Bin Laden (which was actually a bipartisan foreign policy failure-- W wasn't doing enough about him before 9/11 either), as Miniter does, has much the same benefit to the GOP. Raising the spectre of a Hillary candidacy for President, as Limbacher does, works wonders for right-wing fundraising. Aligning the Democrats with unpopular (and shallow) Hollywood elites, as Ingraham does, is another pet GOP project. I won't go through the rest of the titles, but you get the idea.

Fox News dutifully interviews these authors when their books come out, giving them added publicity and taking their (usually slapdash and poorly researched) views seriously. Michelle Malkin, for instance, has seemingly been interviewed every time an immigration issue has been discussed on the network.

But the assignments go beyond the bookshelves. When there isn't enough time to publish a book, the right wing turns to the web and parcels out more assignments. Any honest reader of the New York Times op-ed page knows that Paul Krugman calls the right wing on a lot of their BS. (This isn't saying Krugman is always right-- he isn't. But he points out a lot of the dissembling and half-truths that the right wing uses to sell policies that are really bad ideas (e.g., the efforts by the Bush administration to conceal the fact that its tax cuts are directed overwhelmingly at rich people).) So, someone named Donald Luskin gets assigned to trash Krugman.

Bernard Goldberg's books aren't published day to day, so someone has to advance the right wing's spurious and slanderous claims that the mainstream media is biased against conservatives. Someone named Tim Graham, at The Corner at National Review Online, and who doesn't (unlike many Corner bloggers) provide his e-mail address, writes about nothing other than supposed media bias. He's clearly on assignment. Here's a typical item. He lays into Judy Woodruff-- as fair and straight-laced a journalist as there is-- for asking supposedly softball questions of Tom Daschle regarding the recent Senate flare-up regarding the President's judicial nominees. But if you look at Graham's list of six questions, four of them are clearly adversarial to Daschle. (In any event, Woodruff is not Sam Donaldson or Tim Russert-- she's not a really tough interviewer. Graham provides no counterpoint of where she is ever any tougher with a Republican interviewee. But then, that's not part of his assignment.)

The point is, this is all clearly coordinated. I leave it to others to determine whether this constitutes a vast conspiracy, but what is happening is clearly no coincidence.
posted by Dilan at 8:05 PM

 
AFTER A LONG DELAY...
I'm back with some new posts.
posted by Dilan at 7:23 PM

 
WHAT'S GOING ON WITH THE CATHOLIC CHURCH?
Catholicism is a religion that cares deeply about ethics, and specifically about the human role in determining ethical rules. (Contrast this with fundamentalist Protestantism, which relies on a supposedly "literal" reading of the Bible to answer ethical questions in a societal context that is completely different from the one in which the Bible was written.) There is a great, long Catholic tradition of ethical thinking and moral philosophy. So I guess they've had a bad week.

First, it was reported that they are arguing that people shouldn't use condoms in Africa because the HIV virus might pass through them. This advice could kill millions of people. Then, just today, a senior Vatican official was quoted in a wire service report as saying the American Catholic sex abuse scandal was overblown by the media and not a big deal.

At its best moments, the Church is a great force for moral discourse. But on days like these, I am able to understand how such a great institution could nonetheless produce the Spanish Inquisition, the Crusades, the selling of indulgences, etc. Lord Acton may not have been thinking about the Church when he uttered his famous dictum, but he could have been.
posted by Dilan at 10:51 PM

 
MAURICE CLARETT V. THE NATIONAL FOOTBALL LEAGUE:
Ohio State's star sophomore running back, Maurice Clarett, who led the Buckeyes to the national championship last season, has been suspended since then for the season by the NCAA and the Buckeyes for academic violations and other reasons. He has responded by seeking to enter the NFL draft. The NFL has a rule that prohibits college sophomores and freshmen from entering the NFL draft. Clarett is now suing the NFL on antitrust grounds.

I should start off by saying that I am not an expert in antitrust law. I do, however, know how to read cases. And I have read the case that everyone cites as the precedent for Clarett's suit, Denver Rockets v. All-Pro Mgmt., Inc., 325 F. Supp. 1049 (C.D. Cal. 1971). That case involved Spencer Haywood's ultimately successful attempt to play pro basketball before his college class had graduated. A very good judge, Warren Ferguson, held that the NBA's rule prohibiting the entry of such players into the league was a "group boycott" that was per se illegal under the antitrust laws. (There are two types of antitrust violations-- many anticompetitive practices are struck down because they are "unreasonable", i.e., that they harm competition more than they benefit it. Some antitrust violations are "per se" violations, meaning that the conduct has been found to be so anticompetitive that it is always illegal no matter what the purported justification is for the conduct.)

At the time Judge Ferguson rendered his decision, it was consistent with governing Supreme Court precedent that held that group boycotts were per se illegal under the Sherman Anti-Trust Act. (The NBA's rule was a group boycott because it was essentially an agreement among all the independently owned and operated NBA franchises that none of them would purchase the services of an athlete whose college class had not graduated.) Many sportswriters writing about Clarett's case have assumed that Mr. Clarett has a very good case based on the Haywood precedent.

However, since 1971, antitrust law has seen a sea-change. Robert Bork (yes, that Robert Bork) wrote an influential book that argued against per se rules in antitrust cases and in favor of an analysis as to whether the particular challenged conduct harmed consumers. And Bork's analysis has been followed in many antitrust cases. For instance, Silver v. New York Stock Exch., 373 U.S. 341 (1963), which was relied on heavily by Judge Furgeson, was overruled in Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284 (1985), which held that the expulsion of a business from a wholesale cooperative (a form of "group boycott") would be analyzed for reasonableness rather than being barred by a per se rule. In NYNEX Corp. v. Discon, Inc., 525 U.S. 128 (1998), the current Supreme Court recast the group boycott per se rule as only applying in circumstances where the purpose of the group boycott was to harm competitors. (Indeed, the "group boycotts" that are usually the subject of antitrust cases involve agreements by a group of businesses to refuse to deal with a competitor to one or more of the businesses, in order to put the competitor out of business. It is obvious how such a tactic would harm consumers.) Of course, a sports league's determination of who is eligible and who is not eligible in no way harms consumers or prevents competition-- if anything, it invites competition, because if the public desires to see players like Clarett play professional ball, they might patronize a league that permits such players to do so. (Judge Furguson did not see this in the Denver Rockets case, even though Mr. Haywood had played in the ABA, a competitor to the NBA that had no comparable eligibility restriction.)

There are broader issues that go to the extent to which courts should involve themselves in setting and enforcing the rules in sporting contests. I plan to blog on that at another time. There are also broader issues about whether governing authorities in sporting events ought to have the authority to set eligibility rules for their contests, taking into account not only competitive interests but also societal interests (it may do some good, for instance, to force football players to attend college whether they want to or not).

Suffice to say, however, that I do not see Mr. Clarett's lawsuit as a slam dunk. Indeed, I would venture to say that later Supreme Court cases have called Judge Furguson's decision in Denver Rockets into question, and I am skeptical as to whether that case ought to be relied on in deciding Clarett's case. Ultimately, if Clarett presses his claim, he may end up going down as the man responsbile for overturning the Spencer Haywood precedent.
posted by Dilan at 1:12 PM

 
LEGAL PROSTITUTION: AT THE INTERSECTION OF FEMINISM AND CIVIL LIBERTIES
You might remember that I posted here a comment on a conservative who criticized Dear Abby and her readers for praising the friends of a 40 year old with a debilitating disease who procured the services of a prostitute (free of charge, as it turned out) to take his virginity. While reserving the issue of the morality and legality of prostitution for another post, I noted it was, at the least, overly rigid to take the position that the conservative blogger had taken, i.e., that advocating the utilization of the services of a prostitute in this situation was immoral. Rather, this was a perfectly moral solution to a real issue, because this particular guy was not likely to obtain sexual gratification through a normal relationship. (Indeed, he was living with his parents, who were social conservatives and who barred visits by his friend after they found out what happened. Even if the guy somehow met a girl (not easy when you are 40 and disabled), those parents were probably going to make it very difficult to consummate the relationship.)

The issue I left open-- the wisdom and morality of legalizing prostitution-- is an extremely difficult issue. Los Angeles, the city where I live, just passed a law that takes its prostitution ban one step further, with a ban on lap dancing in strip clubs. (According to the City Council, lap dancing leads to harmful conduct that spreads out into the neighborhoods around the strip clubs. I doubt that this is true-- more likely, the councilmembers were simply offended by the exchange of money for sexual gratification that constitutes a lap dance.)

Why is the legalization of prostitution such a difficult issue? For several reasons. First of all, as I just noted with the LA lap dance ban, the reason that it is illegal bears little relation to any reason that it should be illegal. Society wishes to express moral disapproval at the activity; that's why it is banned. It is also banned, to a certain extent, because people are rightly concerned with the urban blight that is caused by street prostitution. But one wouldn't need to ban all sales of sex just because street prostitution is undesirable-- if anything, the availability of sex in brothels, escort services, massage parlors, and strip clubs would decrease demand for sex on the street.

As with all laws based on moral disapproval, there is a fair amount of hypocrisy in bans on prostitution. Obviously, a lot of people patronize prostitutes-- otherwise, there wouldn't be so many of them in business. Further, most people don't disapprove of, or at least wouldn't make illegal, all sorts of informal exchanges of sex for money or something of value that exist in society-- people who have sex in exchange for a nice dinner, or an expensive engagement ring, or half of a rich old man's assets and earnings. But something about the direct exchange of sex for money seems vulgar and immoral to people in a sense that these other sorts of exchanges do not.

But before you think I am unsympathetic to the cause of keeping prostitution illegal, it should be noted that there are in fact strong arguments in favor of prohibiting the practice. First, as noted, street prostitution, in contrast to other forms of the practice, really is bad for the neighborhood, both because of the aesthetic effects of having prostitutes on the streetcorners and because of the secondary effects of drug dealing, prophylactics and litter, people going onto private property to have sex, etc.

Second, the feminist case against prostitution is strong and hard to rebut. There is quite a lot of prostitution that isn't consensual. Underage girls are forced into the practice in Thailand and other third world countries; women are trafficked from place to place and forced to work by violent pimps and managers who keep the profits; immigrants have their travel and identity documents taken from them and then are forced to work as slaves. Further, even nominally consensual prostitution is usually the product of desparate circumstances: drug addiction, inability to support one's kids, or escape from an abusive relationship.

All of this is awful for women. Only a Catherine MacKinnon-type radical feminist would say that it was exploitative for a middle class, educated woman to decide to sell a sex act to a gentleman for $2,500, but only someone with their head in the sand would say that there isn't exploitation of an immigrant sex slave in a brothel who is forced to perform unprotected oral sex on strange guys all day at $50 a pop, with $49.50 of it going to her "manager".

Further, prostitutes often become regular "Typhoid Marys" of STD's. Customers demand, and sometimes pay more for, particularly risky acts such as anal sex, unprotected intercourse, or oral sex without a condom. The ingestion of all of those body fluids from strange men, almost all of whom have multiple partners, is a recipie for disease transmission. Of course, the more exploited the prostitute is, the more likely she is to be forced to perform those acts. One of the many biproducts of the sex trade in Asia is an AIDS epidemic in Thailand and the Philippines.

But prostitution, "the world's oldest profession", is not going away. And like many things (marijuana being a nice example), when government makes it illegal, it gives up the chance to regulate an industry that cries out for regulation. It doesn't help matters that the only state that legalizes it, Nevada, puts such ridiculous restrictions on it (no brothels in the major cities; the workers basically have to stay out of the communities they work in) that most of the prostitution there is of the illegal kind.

How would one regulate prostitution? By aiming at the targets I outlined above: (1) no street prostitution, which really is urban blight, funds drug dealing and destructive habits, and spreads STD's; (2) regulations to prevent the spread of STD's, including requiring providers to register, to use condoms every time, and to be periodically tested, and (3) regulations to curb exploitation of women, including taxing (keeping the price high reduces the incentive to import sex workers under slave-like conditions, because such operations rely on volume which in turn is dependent on low prices), registration of providers, managers, and brothels (no more stealing workers' immigration documents), and strong and consistent crackdowns on anyone who advertises such a service without proper registration.

To make it work, the government might have to also apply the same requirements to other businesses, such as strip clubs and massage providers, where prostitution frequently occurs.

Anyone who doubts that such a system would be a distinct improvement need only come to Los Angeles, where prostitution laws are aggressively enforced, including by closing numerous massage parlors in the San Fernando Valley and by seizing and forfeiting the cars of those caught with street prostitutes. Nonetheless, on numerous streets in Hollywood and near downtown Los Angeles, there are tons of providers plying the trade.

The irony is, laws that reflect moral beliefs are often not the best manner of furthering those moral beliefs. One of the things that my proposal would do is make prostitution more expensive, which would probably mean that there would be fewer transactions. Thus, an opponent of prostitution on moral grounds ought to support it over the current system. But often times, moralists are more interested in seeing their preferences enacted into criminal statutes than they are in actually seeing less "immoral" activity among the citizenry.

Just as some get their pleasure from seeing a prostitute, I suppose others get some pleasure from knowing that such a transaction can send two people to jail.
posted by Dilan at 6:59 PM

 
WHAT AN IDIOT:
Take a look at this post at National Review's The Corner:

http://www.nationalreview.com/thecorner/03_09_21_corner-archive.asp#013825

I don't know who Rick Brookhiser is, but I don't think I've seen a dumber thing said in public discourse this year. First, is he advocating that you should be able to shout "fire" in a crowded theater? If he is, he's advocating a version of the First Amendment that even the most absolutist First Amendment zealots don't support.

Second, the right to compel the appearance of witnesses to testify in your defense is guaranteed by the plain language of the Sixth Amendment. And the reason it is protected is dreadfully obvious-- without that protection, innocent people could go to jail, or even be executed, if the government prevented them from calling the witnesses who could exonerate them.

Specifically, suppose an Al Qaeda leader says Moussaoui was not involved in the 9/11 plot. Isn't that evidence that the jury must hear in determining whether to convict Moussaoui? I realize that an Al Qaeda terrorist might have a reason to fabricate such testimony-- but that's precisely the sort of thing that we let juries determine in this country. A jury's function is to ferret out who is telling the truth and who is lying.

Brookhiser refers to Judge Brinkema's rulings allowing Moussaoui's lawyers to question these Al Qaeda leaders as allowing Moussaoui to communicate with other terrorists. This is, at best, a gross oversimplification. First of all, Moussaoui's lawyers, not Moussaoui himself, would be doing the questioning. The questioning would be in the presence of government officials and prosecutors who could cut it off if it appeared that messages were being sent. Indeed, the judge could very well require that the questions be submitted in advance for review. (If the Ashcroft justice department were more interested in actually giving Moussaoui a fair trial and less interested in railroading him through the system, they would agree to this sort of procedure rather than blatantly flouting Judge Brinkema's orders and daring her to dismiss the case.)

And in any event, exactly what harm would transpire if Moussaoui did manage to send a coded message to his co-conspirators? They, after all, are in custody as well. They wouldn't be able to do anything with that message other than sit in the bowels of Bagram Air Force Base while thinking it over.

There are thoughtful arguments on the issue of how much process is due captives in wartime, what is the correct division of labor is between the military and civilian justice systems, how is the government supposed to handle suspected terrorists who might be acquitted if they were tried, etc. And then there are people like Mr. Brookhiser, who don't trouble themselves with such thoughts and just assume that any ruling enforcing an important constitutional right in a terrorism case must by definition facilitate the goals of the terrorists.
posted by Dilan at 11:47 AM

 
BEEN AWHILE:
I promise I will have some new posts up soon. Been swamped with work.
posted by Dilan at 11:33 AM

 
SEABISCUIT'S IMPACT IN CALIFORNIA:
On April 29, I posted a rememberance of my youth among the huge crowds at Santa Anita. (I can't link to it because Blogger's link is down, but you can scroll down to see the post.) With the decline of horse racing as a spectator sport, Santa Anita and Hollywood Park, the two major racecourses in the Los Angeles area, now draw only a handful of people to their vast grandstands.

On the silver screen this week, however, in Seabiscuit, you can see a different Santa Anita. This Santa Anita was the most popular track in America during the years immediately preceding World War II. Indeed, after being used during the war as a waystation for Japanese and Japanese-Americans being sent to concentration camps, Santa Anita returned to host more huge crowds in the postwar era. Hollywood Park became hugely popular too, and one of the two would lead the nation in average attendance every year well in the 1980's.

Much is said about the importance of the racehorse Seabiscuit-- he provided a vessel for the hopes of a nation mired in the great Depression and in the runup to another world war. He popularized sports broadcasting, as his races would gain larger radio audiences than the President's "fireside chats". His owner, trainer, and jockey overcame adversity to achieve immortality through his exploits. And he won two of the most important races in American history-- his 1938 match race against Triple Crown winner War Admiral at Pimlico, in which he surprised most of racing's East Coast establishment by shipping east and beating what was thought to be a superhorse; and the 1940 Santa Anita Handicap, which Seabiscuit won over the previous year's winner (Kayak II), after being a frustrated loser of two nose-and-nose photo finishes in 1937 and 1938 (the latter to a lucky three year old carrying absurdly light weight), and after missing the 1939 race due to injury.

Laura Hillenbrand, who authored the book that the new film is based on, does a fine job of telling those well-known elements of Seabiscuit's story. But I grew up hearing a very different Seabiscuit story. It is the story that was told by Santa Anita, Hollywood Park, and Del Mar (the beautiful seaside racetrack north of San Diego). Seabiscuit, to Southern California, is more than just an amazing horse. Seabiscuit was California's first equine superstar-- indeed, one of the state's first true superstars in any professional sport.

It's hard to believe now, given that we have five baseball teams, three football teams, four basketball teams, and three hockey teams in the state, but for a long time, California had an inferiority complex in sports (as it did in many other things, such as high culture). We were way, way, out of the loop. New York, not Las Vegas, was the great boxing mecca. Baseball didn't have a team west of St. Louis. College football's great teams were in the midwest, such as Fielding Yost's "point a minute" Michigan Wolverines, Red Grange's Illinois Fighting Illini, and Knute Rockne's Notre Dame Fighting Irish. Hockey was not a major sport in the United States (and in any event, was another East / Midwest sport), and basketball and pro football were not major sports period. And horse racing was the province of New York (Belmont, Aqueduct, Jamaica, Saratoga), Maryland (Havre de Grace, Pimlico), Kentucky (Churchill, Latonia, Keeneland), and Florida (Hialeah).

San Francisco had been an established city since the gold rush, but had been devestated by a horrible earthquake and fire. Los Angeles had just started to grow due to the increasing popularity of the motion picture industry. The first crack in the armor was in college football-- California's teams, coached by Andy Smith, and USC's teams, coached by Howard Jones, became national powers. Jones smartly arranged an annual game against Notre Dame that became college football's greatest intersectional rivalry, and frequently got his team into the annual Rose Bowl game in Pasadena where he could showcase his teams against top teams from the east and midwest.

But the first professional athlete to break through was Seabiscuit. When Seabiscuit won his match race against War Admiral in 1938, California was a decade away from getting its first NFL team, two decades away from getting its first baseball and basketball teams, and almost three decades away from getting its first NHL teams. It was a decidedly minor league state. Seabiscuit was the first professional athlete that announced that perhaps California was not the boondocks of professional sports-- that California would be a force to be reckoned with.

Moreover, Seabiscuit simply made Southern Californians crazy about horse racing. Santa Anita opened to a small crowd in December 1934. The owner of the track, Charles Strub, had a lot of money (the track cost the then-unfathomable sum of $1 million to build), and put up $100,000 (tied for the largest purse for a horse race ever at the time) as a prize for his big handicap race in order to draw great east coast horses. The first renewal of the race drew Equipoise and Twenty Grand, two of the greatest horses of the era, along with triple crown race winners Faireno and Head Play. Commencing a tradition that Californians would proudly reenact from time to time over the years, the vaunted easterners all got beat-- a lightly regarded former steeplechaser named Azucar won the race.

But the Santa Anita Handicap was more of a curiosity than a great event-- until Seabiscuit came along. Seabiscuit became a crowd favorite in March 1937 and March 1938 by losing the rich race twice, both times by a nose, to Rosemont (a really good horse) and Stagehand (a three year old who carried 100 pounds, 30 less than Seabiscuit and about eight pounds less than just about any longshot ever carries in a modern handicap race). He then went to Hollywood Park, which opened in 1938 and needed a name attraction for its big race, the Hollywood Gold Cup. Seabiscuit won that race after making up a huge deficit in the stretch to a good speed horse, Specify. A huge crowd packed the new track to see him do it.

Seabiscuit cristened Del Mar too. In the summer of 1938, after the planned War Admiral match race fell through because of an injury to Seabiscuit (it would later be run in November), Seabiscuit was looking for a race, and Del Mar's owner, Bing Crosby, was looking for a way to promote his track. Crosby proposed running his horse, Ligaroti, against Seabiscuit in a match race. Traffic piled back 30 miles north, as the seaside track was packed with a crowd that would stand many years as its record attendance. Seabiscuit and Ligaroti raced head and head all the way around the racetrack, and their jockeys actually got into a fight in the stretch during the race and were flailing back and forth with each other. Seabiscuit won the race by a nose.

Finally, when Seabiscuit came back and won the 1940 Santa Anita Handicap, he drew over 65,000 people to Santa Anita. By this time, Californians were hooked. They were betting absurd sums of over $100,000 (in the middle of the great depression!) on every race. Heaven knows how many of those people first came out to a California track because the great Seabiscuit, California's biggest athletic star, the hero of the nation, the most famous horse in the world, was running. Certainly there was no other venue in all of California where one could see anyone of such cultural importance. But what we do know is that the afterglow of Seabiscuit lasted some 50 years. It is only since 1991 or so, when the sport really went into a tailspin, when the crowds have finally thinned out.

I really don't know if California racing would have succeeded without Seabiscuit. Certainly Santa Anita and Hollywood Park have never missed an opportunity to acknowledge Seabiscuit's influence. To this day, there is one statue, of one horse, on the Santa Anita grounds. That statue is of the horse that brought people to the track like no other: Seabiscuit.
posted by Dilan at 7:42 PM

 
FATHER GEORGE W. RUTLER, GAY MARRIAGE, AND NATURAL LAW:
You may remember that when now-Justice Clarence Thomas was nominated for the Supreme Court, before the Anita Hill accusations were made, a controversy arose over Thomas' praising of an article that supported the use of "natural law" in constitutional adjudication. Those big words basically mean that the article's author was arguing that the Supreme Court should decline to enforce laws that are contrary to the precepts of "nature", or, more often, God. Natural law derives from St. Thomas Aquinas' theory that posits that God instills in human beings certain moral precepts, which are then used by humans (imperfectly) to create human laws. Natural law does not have to be religious in nature; some other theorists reject Aquinas' attribution of natural law principles to God, but agree that humans are born with these principles hard-wired into their circuitry.

Natural law has a perfectly honorable tradition as a philosophical hypothesis and ethical philosophy. The Declaration of Independence, famously, invokes natural law when it states that humans "are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness". And the Catholic Church continues to study and invoke natural law as the governing ethical philosophy of the Church. The problem comes when it is invoked as law, or a principle of constitutional interpretation, as was advocated in the article Thomas praised. First, in its religious form, natural law would essentially establish a theocracy. Whatever the value of Catholic moral teachings, if we allow such teachings to be a valid basis to strike down legislation, we would be no different than Muslim countries where laws must conform to the Koran.

But even in its secular form, natural law is extremely dangerous, because, as even Aquinas recognized, its principles are so general. Nobody believes that humans are born with the Napoleanic codes inscribed in their brains. Rather, natural law theories posit that we are born with such abstract concepts as "you should not kill another human being" and "you have an obligation to take care of the weak". Of course, the article Thomas praised (wouldn't you know it) was advocating the use of such principles to strike down laws that legalize abortion. But even if we assume that these concepts are hardwired into our brains, they are too abstract to provide even a minimal basis for interpretation by a court-- abortion is a perfect example of this, as people would argue whether it constitutes "killing another human being" (Aquinas himself, for instance, did not oppose all abortions) or "not taking care of the weak", or whether in fact a fetus has not yet achieved full humanity, and that the mother's weakness is the relevant consideration of society.

As a result, natural law has properly been rejected as a means of constitutional interpretation, and even Thomas disavowed his praise for natural law during his confirmation hearings. But in one institution-- the Catholic Church-- natural law is still the touchstone of any analysis of what governments may or may not do. Of course, as we have seen lately, the Catholic Church's perception of its relationship to the law is peculiar indeed; the institution seems to feel that it is not bound by laws requiring those who take responsibility for the children of others to take steps to prevent sexual abuse of children, and further that any enforcement of the laws requiring cooperation with law enforcement is a violation of the Church's First Amendment right to free exercise of religion. (Under this theory, of course, the government would have had no power to stop David Koresh from raping pre-teenagers.) While this position is obviously a transparent ruse to protect the pedophiles and their enablers that are strewn throughout the Church hierarchy, I can also tell you that many Catholics (especially conservative ones) believe it. But while not bound by the law, the Church takes an aggressive position regarding its right to shape it, and the goal seems to be to bring human law in line with natural law principles as the Church sees them.

That's a long introduction for a noxious post that was made by prominent New York conservative priest Father George W. Rutler in National Review Online today. It was a response to an argument by John O' Sullivan, who argues that the solution to the gay marriage controversy is to permit competition among various models of marriage, including traditional religious marriage, civil marriages (which would include gay marriage), and domestic partnerships. O'Sullivan's argument is complicated, but it basically says that traditional marriage will suffer no harm from the competition. Here is Father Rutler's response:

"The point is not whether the State should recognize same-sex marriages (the term in itself being oxymoronic). The fact is that the State cannot do it. As the Canadian bishops recently wrote to the Prime Minister of Canada: Marriage pre-exists the State and is fundamental to society and the institution of marriage therefore cannot be modified by the State or a court of law. They also pointed out that 'same-sex marriage' discriminates against heterosexual marriage and the family which would be deprived of their social and legal recognition as the fundamental and irreplaceable basis of society."

This, of course, is classic natural law reasoning, with a perverse claim of victimization thrown in at the end. (I thought conservatives were opposed to the culture of victimization.) And the natural law reasoning is totally spurious. Of course, Father Rutler, marriages existed in the church before the State recognized it. And of course, those marriages "cannot be modified by the State or a court of law". But that has nothing to do with the issue at hand, which is what the state chooses to recognize as marriage and afford benefits to. The question of gay marriage is the question of discrimination-- whether or not the state can grant benefits to heteros that it refuses to grant to gays, including inheritance rights, immigration rights, child visitation, hospital visitation, insurance coverage, and the like. States should not hand these rights out in a discriminatory fashion whether they are labeled "marriage" or "a ham sandwich". And a government which chooses to continue to use the label "marriage" while handing these benefits out in a non-discriminatory fashion is not "modifying" the definition of marriage that preexisted the state, any more than a state that allows a person to remarry after divorce (not permitted under Catholic doctrine) or allowing a Catholic to marry a non-Catholic without an agreement to raise the children as Catholic (generally discouraged by the Church) is modifying the definition of marriage that preexisted the state. The state is simply modifying the manner in which it affords certain benefits to certain people who enter into certain social arrangements, i.e., civil marriage. Nothing the state can or will do will change the religious definition of marriage.

Let's take another example where we can see this more clearly. Catholic funeral rites also predate the United States government. The Catholic Church defines a "funeral" in a certain fashion, and requires certain ceremonies to take place as part of a funeral. If the US government decides to pay for the costs of funerals of dead veterans, and further decides to do it in a non-discriminatory fashion, paying not only for Catholic funerals that contain these ceremonies but also for other types of funerals, devised more recently, that do not contain them, is the government "changing" the definition of the funeral? Of course not! The Catholic Church can still believe what it wants to believe about its funeral ceremonies, and the US government is simply using a non-discriminatory definition of "funeral" to determine when veterans' benefits are paid.

Finally, a point about Father Rutler's discrimination claim. It is obvious as it can be that marriage laws discriminate in favor of heterosexuals, and Father Rutler must know this. So, he recasts this argument to say that taking away heteros "social and legal recognition as the fundamental and irreplaceable basis of society" is tantamount to discriminating against heteros. First, this is plainly not true. It is not discrimination to stop discriminating in favor of a group. When laws against interracial marriage were eliminated, did that action discriminate against those who preferred to marry within their race? Of course not-- they can still marry within their race, even now.

(As an aside, this post originally used affirmative action / racial preferences as an example of the foregoing. It was pointed out to me by a reader that when California passed Proposition 209, some advocates and at least one federal judge did say that eliminating racial preferences for minorities would constitute discrimination. I believe that the actual issue with ballot measures that eliminate racial preferences is somewhat more narrow-- i.e., that minorities are forced to seek favors from the government at the state level whereas others may seek them at the local level, and that such ballot measures eliminate racial preferences even when they are a remedy for discrimination, and the elimination of effective remedies for state discrimination violates equal protection. That is of little matter, however. It is clear that the elimination of legalized prejudice against homosexuals in no way discriminates against heterosexuals; there is no way in which favoritism towards heteros was any sort of a remedy for previous discrimination.)

But there is another problem with Father Rutler's discrimination claim as well. He identifies two aspects of heterosexuality that he says are being taken away by recognition of gay marriage. The "social recognition" of heteros as the fundamental basis of society, and the "legal recognition" of the same. The legal recognition argument is answered above-- taking away legalized discrimination in favor of a particular group does not constitute discrimination against that group. It simply levels the playing field. But I find the "social recognition" claim even more interesting. It is quite true that the social recognition of heterosexuality as fundamental to society is declining. But these gay marriage laws are reflecting that trend, not causing it. Rather, this social recognition is changing because more and more people are rejecting the Catholic Church's teachings that homosexuality is immoral, and that the legal system should be used to stop people from engaging in gay sex. Father Rutler's plea of discrimination is the petulant whining of someone who knows he is losing the culture war; of someone who is coming to realize that something that he views as extremely important, and likely to send us all to hell, is viewed as a basically private matter that is none of his business by ever greater portions of society.

The funny thing is, gay marriage isn't going to change this, except to the extent that gay couples are more visible and people come more and more to respect their right to be who they are. Father Rutler is afraid not only that legal recognition of gay couples may come, but that such legal recognition will cause people to see the basic humanity of gay people that he, and many in his Church, are unable to see. His views are deserving of no sympathy; only pity.
posted by Dilan at 10:56 AM

 
THE DIFFERENCE BETWEEN MORAL CRITICISM AND GAY BASHING, AND HOW
THE RIGHT WING BLURS IT:
The Supreme Court's recent decision in Lawrence v. Texas, invalidating a sodomy statute and overturning Bowers v. Hardwick (which upheld a statute that would throw homosexuals and heterosexuals in jail for up to 20 years for having oral or anal sex), has occasioned much hand-wringing on the right, which seems fixated on the idea that this is the first step on the road to gay marriage.

A lot of this argumentation is very disturbing to me. I support gay marriage, but I also know that it's a long way from invalidating a sodomy statute that makes criminals out of gays who perform sex acts that are performed by many, if not most, hetero Americans to recognizing gay marriage. Indeed, the Court expressly did not reach the argument made by the defendant in Lawrence that the Texas law was invalid because it discriminated against gays and lesbians. Rather, the Court held that the unenumerated right to privacy that has been found in the Constitution in earlier cases such as Griswold v. Connecticut and Roe v. Wade extends to protect the right of anyone, gay or straight, to commit private consensual acts of sodomy. Further, even Justice O'Connor, who was alone among the Justices in indicating her willingness to strike down the statute as discriminatory against gays, specifically stated that she thought that statutes that discriminate against homosexuals should be sustained if they have a rational basis, and that the protection of traditional marriage is such a rational basis.

So why then are Stanley Kurtz of National Review Online, and David Frum, and other conservatives so up in arms about how this is going to lead to gay marriage? Recent pieces by Jonah Goldberg provide the answer-- gays have prevailed on a broader question of tolerance and that drives certain conservatives who wish to remain intolerant of homosexuals crazy.

The question of tolerance is essentially this: in the past, it was perfectly socially acceptable to harbor a prejudice against gay males (attitudes about lesbians have always been different for some reason-- witness the popularity of lesbian pornography even among homophobic males). It is not anymore. It hasn't been socially acceptable to harbor such a prejudice in educated circles among East and West Coast elites for some time, of course (and the presence of a number of gays among Republican party poobahs, is evidence of this). But now, people are beginning to believe this all over the country. Ellen DeGeneres doesn't threaten anyone, and neither does Will and Grace, or Tom Hanks and Antonio Banderas in Philadelphia. In that sense, Goldberg is totally right; cultural conservatives have lost the war over homosexuality.
posted by Dilan at 11:22 AM

 
[CONTINUED]
Sodomy laws were the front line of that war. Why? Because the entire purpose of such laws was literally, to scare homosexuals straight. They were rarely enforced anymore. Many were amended to delete references to heterosexual sodomy. But they were an expression of prejudice and animus against gays and lesbians, and on that level, they had to stay on the books.

Of course, conservatives and their lawyers did not characterize the purpose of the laws in these terms. Rather, they said that these laws expressed permissible majoritarian disapproval against gays. However, that was entirely and obviously a cover. For one doesn't normally express moral disapproval by threatening to jail sinners. Failing to honor one's father and mother, having other gods before the God of the Bible, and coveting one's neighbor's wife or things are all specifically
outlawed in the Ten Commandments (unlike homosexuality, which is prohibited in Leviticus, a chapter of the Bible that contains all sorts of dietary rules that modern evangelical Christians almost all disregard). Yet none of them are punishable by jail time, nor are there any significant numbers of Christian conservatives calling for such punishment. So, if the purpose of these laws
wasn't disapproval of the sin, it had to be animus towards the sinner.

Further, the conservative movement was very clever about how they kept sodomy statutes in place. First, they strongly advocated a narrow form of constitutional construction that was intended to prevent what happened last week in Lawrence, i.e., there are no unenumerated rights in the Constitution, equal protection of the laws does not cover gays, moral
disapproval of a particular group is a sufficient state interest to uphold a law, and anyone who says otherwise is a dangerous liberal activist. But it was conservatives, such as Anthony Kennedy and Sandra Day O'Connor, who provided the crucial rejection of those arguments. Indeed, there is no way that either of them is going to vote for gay marriage as a constitutional right. This is no slippery slope. The fact is, while one can argue about the constitutional interpretation in Lawrence, this is not going to lead to wholesale
striking down of popular laws on the basis of unenumerated rights. In fact, in the past 50 years, I can think of exactly three cases that struck down a popular law on that basis, and all of them are in the area of abortion. Despite 30 years of constitutionalized abortion law, the doctrine of unenumerated rights has not extended to any areas where there has not been a strong popular
consensus. The notion of unelected judges running amok simply has not occurred and will not occur given the composition of the current Court. (The best example of this was Washington v. Glucksberg, where the Court refused to recognized an unenumerated "right to die" that overrode state laws prohibiting assisted suicide.)

The second conservative strategy on sodomy laws was to change the subject, or indicate that oh yes, if they were in the legislature, they would vote against such silly laws, but it should be up to the citizens of _______ to determine if they wanted such a law. I realize that in a sense this is a principled position-- it is Justice Thomas' position in his dissenting opinion (unlike the prudish
Justice Scalia, who clearly longs for the good old days when his theological views were reflected in state laws, Thomas clearly does not think the government has any business telling gays and lesbians that they can't have sex). But it is also a big cop-out. Sodomy statutes are not simply bad laws; they are fundamentally unjust ones. They either criminalize the private conduct of most Americans, or they criminalize the conduct of a disfavored class. Either way, they are an outrage.
And the conservative rhetoric did not befit the outrage. No, quite the contrary, conservatives were basically saying that on the margins, they didn't think these laws were very good, but they weren't going to do anything to persuade states not to enact them or keep them on the books.
posted by Dilan at 11:20 AM

 
[CONTINUED]
In this sense, conservatives basically got what they deserved in Lawrence. It's one thing to say that the judiciary should not get involved where the democratic process is busy repealing these unjust laws at the urging of those who are asking the judiciary to stay out. It's quite another to quietly acquiesce and even knowingly condone the presence of these unjust laws for years and years, and then act all outraged when the judiciary intervenes and obliterates them. The Court merely did something that the right wing should have done long ago.

And why didn't the right wing do it? Simple politics. Every tolerant elite right winger knew darned well that these laws were wrong and unjust, but those same conservatives knew that some anti-gay bigots and Christian theocrats remained in their base who supported the laws. So, the only way to handle the issue was to change the subject, which they did for many years.

So why are they now putting the focus on gay marriage? I think it is more subject-changing. If conservatives opine on Lawrence, they can't win. Say it was rightly decided or, at least, that it is good that these laws are wiped out, and they alienate their base (as Jonah Goldberg has found out). Say it was wrongly decided and it looks like you are catering to anti-gay religious zealots in supporting extreme laws that are unpopular in most of America.

On the other hand, the American public isn't yet ready for gay marriage. Truly, they should be-- gay marriage is nothing more than ensuring civil equality for homosexuals, so that they don't pay higher taxes, don't get screwed in inheritance or custody disputes, aren't disallowed from visiting their lovers and life partners in the hospital, etc. But the public doesn't see it that way-- the magic word "marriage" conjures up all sorts of proto-religious attitudes that interfere with the public's recognition of the equality principle.

As I said though, the Court was absolutely clear that Lawrence was not going to lead to the recognition of gay marriage. But this is a nice spin tactic-- the Republicans are trying to change the subject from what it should be, i.e., the party's abominable decades-long tacit support of sodomy statutes, to a different area of gay rights where their position is more popular. It might work. But nobody should forget that the G.O.P. is the party that, until forced by court decision in 2003 to abandon the position, advocated throwing gays and lesbians in jail.

Now let's bring ourselves back to the title of this post. In saying all these things, the question might arise, "do you really think that anyone who morally disapproves of homosexual sex is a bigot?" No, I actually don't. From what little I know of Christian doctrine, I don't think the Biblical prohibition of it is nearly as clear or fundamental as some conservative Christians do. But I understand that people can believe this, or any other sex act, is immoral.

But it seems to me that many conservatives use this moral condemnation argument as an excuse to conceal actual bigotry towards gays and lesbians. It isn't bigoted to believe that these acts are immoral. It is bigoted to support, tacitly or openly, throwing people in jail for engaging in them. And it is disgraceful that one political party, that claims the support of almost half the American
public, has seen it profitable to cater to such bigotry for so long.
posted by Dilan at 11:19 AM

 
OVERTURNING GRAY DAVIS' ELECTION:
Over the past 20 years, the California Republican Party, once strong and proud and able to elect Earl Warren, Ronald Reagan, George Deukmejian, and Pete Wilson to the Governor's office, has become a shell of itself. The reason for this is simple. California is a pretty liberal state. We are tolerant of gays, not particularly religious, not entirely committed to the War on Drugs, and supportive of government spending on services. There are some exceptions to this-- Californians don't like taxes, and many Californians don't like illegal immigrants-- but on a whole, the state is certainly a Blue state.

In most Blue states, the Republicans thrive by moving towards a more libertarian bent. For instance, liberal Maine has two GOP Senators-- Olympia Snowe and Susan Collins-- but both of them are social liberals and fiscal moderates. But here in California, the only voters to regularly vote in Republican primaries are neanderthal conservatives. Thus, Ms. Snowe or Ms. Collins would never be able to win a Republican primary here. As a result, Republicans lost every statewide office in the most recent elections, and just about the only elected Republicans here are Congressmen, state Senators, and Assemblymen who represent safe seats filled with gerrymandered hard-right conservative voters.

I don't want to imply that every elected Republican in California is a far-right wacko-- David Drier, for instance, hails from a conservative Pomona district but is a very smart and fundamentally decent congressman. But Rep. Drier is the exception-- most elected Republicans in this state are far, far to the right of Californians as a whole.

Gray Davis has capitalized on this. Twice, he has beaten candidates who are too far to the right to be elected Governor of California. In 1998, he beat Dan Lungren, and in 2002, Bill Simon (who in addition to being an extreme right-winger, was also an incompetent camaigner). Not too many people really like Davis here; rather, he was elected both times as the lesser of two evils.

But there are two important points here. First, a lesser of two evils winner is not illegitimate-- voters may have longed for a better choice, but Davis won his elections fair and square. And if Davis was so horrible a governor, they could have thrown him out in 2002. Second, the Republicans' losses are their own fault-- they are unable to nominate candidates palatable to the majority of Californians. Only if they continue to lose elections will the GOP learn its lesson and shift to where the votes are. (This is something that happened at the national level to Democrats with Bill Clinton.)

But, of course, the ideologues in the California Republican Party do not want to shift. So, instead, they have produced the silver bullet-- California's 1911 recall law, which has never been used against a sitting governor. Basically, if the Republicans can get enough signatures to put the measure on the ballot (and that is easy to do if the money is spent), they can have a yes-no vote on Davis along with a second vote on a list of candidates. It is very possible for unpopular Davis to be removed in a yes-no vote (where he doesn't have the advantage of running against an extremist Republican candidate), and it is possible for someone to win the recall election off the list of candidates with far less than 50 percent of the vote.

This is a perversion of democracy. It amounts to the Republicans saying that because they were unable to get their act together and nominate a moderate candidate to beat Gray Davis, they get to waste the taxpayers' money (special elections cost big bucks) creating an election under more favorable rules that might allow a right-winger with only narrow support among the electorate to sneak in and become the next Governor of California.

Further, it would set a horrible precedent-- I would assume that the Democrats would not wait long to launch another recall effort to knock out the illegitimate Republican victor of the special election.

You don't have to think that Gray Davis is the best possible Governor to recognize that he should be permitted to serve his 4 year term and that Republicans should find a candidate who could contest for the seat in 2006 and be palatable to the majority of Californians. Perhaps Rep. Drier could run.
posted by Dilan at 2:04 PM

 
THE SCARSDALE, N.Y. PROM:

I am not a huge advocate of abstinence programs. I think that while teenage pregnancy is a huge problem, and teenage venereal disease is a serious one, teenage sex is inevitable and not, if conducted responsibly, particularly problematic at all. At the same time, I don't think schools should sponsor events that make drunken, unprotected sexual experimentation more likely among teenagers, either. This isn't really a moral objection so much as it is a public health objection-- teenagers should be encouraged, indeed browbeaten if necessary, into having sex only in circumstances where no pregnancy or disease transmission will result. (And that includes married teenagers-- because teenage mothers are vulnerable, teenage marriages don't last very long and are often abusive, and childbearing tends to stop the educational process even for married teenagers, society really shouldn't encourage married teenagers to have kids either.)

Which brings me to the Scarsdale, NY Junior / Senior prom. The high school there discovered something that everyone who has turned 18 in the last 30 years knows-- that teenagers hire limos to take them to the prom so that they can drink before hand, and hire limos to take them back to post-prom parties so that they can drink some more. The school, in a decision unpopular with some students, decided to bus the students to and from the proms. This is a salutary decision. There are lots of good reasons to ban limos from the prom. The school's reason-- to stop teenage drinking-- is perfectly sound. Additionally, proms have become a platform for students with affluent parents to outdo each other in flaunting their affluence. Students with rich parents already feel superior enough to other students without schools sponsoring an activity that permits such a brazen exhibition of unearned wealth. Limos are a big part of that.

But I think the best reason of all to stop this is one not mentioned by the folks in Scarsdale at all. Proms are a coming of age ritual that formalize sexual activity. The last thing that teenagers need is to formalize sexual activity. What do I mean by that? Proms are a huge event, in which teenagers are treated like adults, dress up like adults, travel like wealthy adults, and often rent hotel rooms afterward like adults. They also drink like they imagine adults to drink. Many of these teenagers are going to the prom with people whom they have been dating awhile; a lot of them probably think the relationship will last forever. (Teenagers often tend to have unrealistic romantic expectations.) Put these elements all together and this is a recipe for unprotected sex. Too drunk to use protection (and in any event, not dressed or with a transportation option that allows for the easy purchase of a prophylactic), and on a night that has to be made "special". I would assume quite a large number of teenagers lose their virginity on prom night, and a significant number of those sexual encounters are unprotected and drunken.

Of course, teenagers who want to have sex will always find ways to do it; that is true. But there's nothing wrong with a school putting its foot down and constructing school-sponsored activities in a manner that decreases the likelihood that teens will leave the event drunk (or about to get drunk) and heading off to hotel rooms to consecrate the evening's festivities.

Every culture has its coming of age festivities-- Bar Mitzvas, quinceneros, and the like-- so the prom is probably here to stay. But schools who really want to do something about harmful teenage sex should probably get off the abstinence kick and reform the ground rules of an event that in its current form, makes such activities almost a foregone conclusion.
posted by Dilan at 1:44 PM

 
HOWELL RAINES SHOULD BE FIRED, THE SEQUEL:
(I can't get the linking to work but the original item on this appeared on April 15, 2003.)
First, savaging Wen Ho Lee. Then, killing two sports columns that disagreed with the paper's editorial crusade against the Masters. Next, killing negative stories about Robert Toricelli's ethics in an attempt to preserve a Democratic majority in the Senate. And now, the coup de grace. Raines' paper yesterday had to run a front page story plus two full jump pages full of corrections to stories written by fabulist Jayson Blair. It seems Raines had been on notice of Blair's tendencies for months and continued to give him major assignments, including the huge D.C. sniper case, while failing to tell the editors for whom Blair was working about Blair's problems, as well as failing to do elementary fact checking that would have revealed the extent of Blair's frauds. (Blair filed datelines from far away places, and then failed to turn in any receipts on his expense account to document his supposed travels.)

The New York Times is a proud institution and a great paper. The Sulzbergers need to get rid of this incompetent partisan hack and get a journalist in there, before their paper suffers any more than the considerable amount it already has.
posted by Dilan at 1:00 PM

 
THE DYING SPORT:
When I was a kid, my parents used to take me out on occasion to Santa Anita Park, which was a 20 minute drive from our house in Burbank. My mom was and is a huge horse racing fan; my dad likes the sport too, though not quite as much as my mom. Both of them are and were good handicappers, astute bettors, and a great example for anyone who would want to pursue a life of investing one's money on speculation as to what a 1,000 animal might do in the course of a minute and 40 seconds.

I still try and make it out to the track on occasion, but when I do, it is a lamentable experience. You see, when I was a kid, Santa Anita on a weekend was filled with people; 35,000 for an ordinary stakes race, 45,000 to 65,000 for a big race. You needed to purchase a reserved seat or you would end up sitting all the way down at the top of the stretch, more than 900 feet from the finish line. If you wanted to bet, you had to go down 15 minutes or so before post time; the lines were long, as were the lines to cash your tickets after the race. Local sportscasters used to go out to the racetrack and report live for their segments on the news. The best horses were very well known; quite a large segment of America knew who Forego, Seattle Slew, Exceller, Affirmed, Spectacular Bid, and John Henry were. Jockeys such as Willie Shoemaker and Angel Cordero, and trainers such as Laz Barrera and Charlie Wittingham also became famous.

Now, it's all gone. The only time you need a reserved seat is if you go to the Triple Crown, the Breeders' Cup championship day at the end of the year, or some busy days at summer vacation tracks such as Del Mar, on the beach near San Diego, Monmouth, near the Jersey Shore, or Saratoga, with its quaint grandstands at the famous spa in upstate New York. Usually, there are less than 15,000 people at the track on weekends, less than 7,000 on weekdays. And those that are there aren't even sitting in the stands; they are down in the bowels of the track, sitting at tables near the betting windows and watching television. And every year it gets worse, probably because the empty grandstands don't provide any ambience and don't attract new fans.

What happened? Everyone in racing has a theory. Some blame state lotteries and other forms of legalized gambling, which broke up what once was a legal monopoly held by racetracks. (There is some evidence for this hypothesis in Hong Kong, where people are still crazy about horse racing, 70,000 show up at the track and bet $20 million a race, and no other gambling is allowed.) Some blame the simulcasting craze, whereby bettors are permitted to bet on races from other tracks; this drew the fans out of the seats and into the interiors of the grandstands, leaving the seats above empty. Some blame year-round racing, or medication rules, or all sorts of other things that have gone wrong with the sport since the glory days of the 1970's.

All these hypotheses have something to them, but the biggest cause of horse racing's problems today is probably a much simpler explanation. Tastes change. Horse racing thrived in an era with very few major sports. Americans fell in love with horse racing early in the 20th Century, at a time when baseball and boxing were the only other major sports. Races dominated the headlines. The best horses were known throughout the country. Radio and newsreel coverage of major races increased the popularity of the sport. The totalisator (an adding machine writ large, and hooked up to a large digital display in the infield of the racetrack) was invented in the 1930's, displacing bookies and making the game more honest by assuring that everyone bet against each other, not the disintrested house, and that everyone at the track received the same odds. Many states legalized betting on the races, and the sport expanded. (This is the climate in which Seabiscuit thrived; his story gripped the nation and will be the subject of a major motion picture this summer.)

Horse racing survived the transition to television, the rise of professional football and basketball, and the increasing popularity of the Olympic Games. But eventually, the competition became too tough. It was bound to happen. There are so many professional sports now that some of the longer-established sports were foreordained to lose ground. Indeed, even baseball, America's pastime, has suffered declining attendance and grossly declining television ratings. Meanwhile, NASCAR, professional beach volleyball, men's golf, men's and women's tennis, professional wrestling, soccer, and various "extreme" sports have gained in popularity. Since Americans don't have enough additional free time to pay attention to all these new sports while still following the old ones, there's been a decline. And horse racing is one of those sports that Americans have lost interest in.

Of course, this Saturday, for two glorious minutes, many Americans will care again about racing, as they run the Kentucky Derby. 150,000 will be at the track, and millions will watch on television. But those two minutes are never able to arrest the decline of the sport, because horse racing relies on the folks who show up at America's racetracks for the bread and butter product of the sport.

There's no moral in this. I wish it were different. I long for the days when I was a child, and we would sit among the crowds at Santa Anita, who would scream and yell for their selections as the horses turned for home in each race. I still understand the visceral thrill of thoroughbred racing. But those screams and those crowds are no more, and I know perfectly well that they aren't coming back, even if all the problems of the sport were magically fixed.
posted by Dilan at 12:21 AM

 
THE CONSERVATIVES GET A FREE PASS, AGAIN:
It's hard to add to what has already been said by everyone else about Rick Santorum's advocacy of sodomy laws, but what ticks me off more than anything about this is how slippery the Right is on this. Leaving aside the constitutional issue, the reason we have sodomy laws in this country is because state legislatures passed them, and have refused to repeal them. Which means, simply put, that there are some legislators out there who support them. And anyone who has driven through the Bible belt and scanned the car radio during the day will have no doubt as to why this is so-- there are areas of this country where homosexuality is so feared and so loathed that it is all they talk about on religious talk radio. Literally, there are preachers on the radio in the Deep South who talk about homosexuality as if it is the central problem facing this country.

The point is, if the right wing politicians and their supporters in the commentariat decided to buck their constituents and actively oppose sodomy laws, we wouldn't have them. Such opposition requires more than the "sure I oppose sodomy laws, but Sen. Santorum raises a legitimate issue and is being viciously attacked" position that we are hearing from most conservatives. Heck, even Pat Buchanan took that position on his MSNBC talk show the other day. And any position on sodomy laws that is shared with Pat Buchanan cannot be described as a position that confronts the religious right. Rather, these laws exist because those on the right who oppose them nonetheless indulge supporters of the laws as holding a legitimate, debatable position. Indeed, many conservatives have gone so far as to accuse those who oppose Santorum as being motivated by anti-Catholic or anti-Christian bigotry, as if Christian doctrine required that homosexuals be thrown in jail! (Quite the opposite; as I have pointed out before in this blog, someone who "loves the sinner and hates the sin" would never support these repressive laws which only do harm to the supposedly "loved" sinner.)

The reason that the right gets away with their soft opposition to sodomy laws is because nobody seems willing to ask them the tough questions. I have a feeling if that if most Americans, including quite a few who aren't particularly great fans of gay rights in other areas, knew that the Republican party tacitly, and sometimes actively, endorses throwing people in prison for having same-gender sexual relations in the privacy of their own homes, that might be a factor that those Americans would weigh in deciding whether to support Republicans. But somehow, the tactic of obfuscation, of making it sound like the only issue is the broad interpretation of the Constitution to provide a right to commit sodomy, or making it sound like the issue is anti-religious bigotry, or making it sound like the advocacy of jailing homosexuals is a moral tenet rather than a policy prescription, is working.

Of course, the Democrats don't help any. You will hear a lot of cheerleading for gay rights now, when nobody's paying attention, but during the election campaign, Democrats seeking the votes of bigots will tone down their support of gay causes. They always do. But I'd love to see John Kerry, or John Edwards, or Howard Dean, or whoever the Dems nominate, put the question to W in a Presidential debate in simple terms. "Mr. President, why won't you publicly confirm that you disagree with those in your party who say that gays should be thrown in jail just for having sex with each other? You do believe that there shouldn't be laws prohibiting gay adults from having sex with each other in the privacy of their home, don't you?" Of course, it will never happen. And sodomy laws will stay on the books, unless the Supreme Court strikes them down. How depressing.
posted by Dilan at 11:48 PM

 
HOWELL RAINES SHOULD BE FIRED:
Howell Raines is the editor of the New York Times. I don't know that much about his politics, but from what I know, I would agree with him on any number of things. I do know, however, that he is a lousy journalist who, as long as he is around, will give some substance to conservatives' shrill charges of liberal media bias. (So that you know, I do know a little bit about journalism. Just about every member of my immediate family is or has been a journalist, and I was the black sheep of the family who did something else with my life. And even I publish a blog, which I suppose is a form of journalism.)

Under Raines' watch, the New York Times has repeatedly engaged in unethical journalism designed to promote a political agenda:

1. The Times unjustifiably savaged the reputation of scientist Wen Ho Lee, who was practically accused of being a communist spy based on what apparently was very flimsy evidence, apparently in service of grudges that the paper's brass held against Bill Clinton.

2. After conducting a months-long campaign, featuring several stories on page A1, the front page of the paper (not just the sports section), to change Augusta National Golf Club's discriminatory policy against admitting women to the club (a policy that I think is idiotic and wrong (scroll down to "Why is Sexism Bad and Racism OK?")), Raines actually killed two columns by New York Times sports columnists that opposed the position that was taken by Raines' front page and by the editorial page. As a general rule, newsrooms don't interfere with sportswriters, and for good reason-- news editors tend to know very little about sports. Nor should good newspapers prevent their columnists from expressing dissenting views-- and this goes as well for Times sportswriters as it does for Bill Safire on the op-ed page. Raines was eventually forced to back down and run the columns, though the paper still lies about the reason the columns were spiked, claiming it was because the two award-winning columnists turned in substandard work, rather than columns that disagreed with the position being taken by the paper.

3. Now, as Mickey Kaus reports, it turns out Raines killed coverage of New Jersey Sen. Robert Toricelli's ethical misdeeds (the Times covers New Jersey and Connecticut politics, as well as New York politics, as a "local" story, because many of the paper's readers live in those states and commute to New York City), because he didn't want the paper to cause Toricelli to be forced out of the Senate (as he eventually was) resulting in a shift in control of the Senate to the Republicans. As a result, the Times' sources went to a TV station, which broke the story.

The New York Times is the "paper of record", a proud institution with a great professional reputation. Unfortunately, with Raines in charge, it's amateur hour, and the paper is being run like a Fleet Street tabloid. It's time for "regime change" at the New York Times.
posted by Dilan at 6:02 PM

 
AN ADDENDUM TO THE LAST POST ON PUNITIVES:
A reader's e-mail convinced me that I wasn't entirely clear in one aspect of my last post on the Campbell punitive damages decision. So, to be perfectly clear, my criticism is aimed at the conservative critics of the federal judiciary who whine about "judicial activism", and at the majority in the Campbell case, which includes liberals as well as conservatives Rehnquist, O'Connor, and Kennedy. Justices Scalia and Thomas, to their credit, want no part of the Court's punitive damages jurisprudence.
posted by Dilan at 1:04 PM

 
THE SUPREME COURT, FEDERALISM, UNENUMERATED RIGHTS, AND PUNITIVE DAMAGES:
Last week the U.S. Supreme Court decided State Farm Mut. Auto. Ins. Co. v. Campbell, holding that the Due Process Clause of the Fourteenth Amendment, which prohibits the deprivation of life, liberty, or property without due process of law, imposes sharp limitations on the states' power to impose punitive damages. The decision was drowned out by war coverage, but this decision promises to fundamentally change American law and call into question some of the basic assumptions of our tort system.

There is a longstanding debate about whether America is lawsuit-happy, and whether various sorts of limitations should be imposed on the tort system. This debate is going on in both state legislatures and Congress, who have been egged on by conservative groups (funded by corporate and insurance industry contributions) who want to limit damage awards. While traditionally, state legislatures and state court systems determine the compensation available for the victims of accidents in tort lawsuits, there is at least a colorable argument that Congress might have a role in regulating such compensation, both because it seems somewhat unfair that a defendant in Mississippi might have to pay much more in damages for the same wrongful act than a defendant in Texas, and also because a huge award affects not only a company's business in the state that imposes the damages, but also impacts the company's out-of-state business as well.

What is notable, however, is that these are essentially liberal, big government justifications for federal action. Under the arguments that conservatives have used to strike down civil rights statutes and federal gun laws, these sorts of justifications would probably not permit Congress to regulate state tort actions in this matter. Thankfully for the conservatives, however, the Supreme Court has found another means to nationalize tort reform-- the federal judiciary.

In the Campbell case, the Court held that: (1) no state may impose a punitive damage award that exceeds 10 times the compensatory damages awarded, and that in many cases, a punitive damage award equal to the compensatory damages will be appropriate, (2) the defendant's wealth, recognized since the adoption of the Constitution as a consideration in fixing the amount of punitive damages (a $10,000 penalty means a lot to a middle class individual but very little to a multinational corporation), may not be used as a consideration in justifying a large award, and (3) the facts supporting punitive damages award will be reviewed anew by appellate courts, with none of the traditional and well-established deference given to the facts as found by the jury or the trial court.

None of this appears anywhere in the Due Process clause. First of all, as long as there is a fair trial and a jury determination on punitive damages, there is no sense in which it could be said that a punitive damages award deprives property without due process of law. What is really being talked about is an unenumerated right in the Constitution. And the Court ignores the tests that the Court and most conservatives endorse for determining the existence of such rights, i.e., whether the right has traditionally been recognized and is implicit in the concept of ordered liberty. And it is no wonder-- large punitive damage awards have been around since the founding of the republic. Nobody ever thought they were prohibited. (To their credit, Justices Scalia and Thomas have consistently argued that the Constitution imposes no limits on punitive damages based on the nonexistence of any such tradition.)

What is even more breathtaking than the hypocrisy and lack of principle behind the Court's decision, however, is the impact that it will have on future cases. The constitutionality of punitive damages awards will now be an issue in every tort case where they are available. Further, the deterrent value of such damages will be substantially reduced-- especially since it is now unconstitutional to impose an award of sufficient size to dent the finances of a wealthy defendant. Hundreds of years of common law experience that has established punitive damages as an effective means of punishment and deterrence has been thrown out the window in favor of an unproven and contestible theory as to what should and shouldn't be considered by juries and judges in fixing damages. Of course, a state legislature, and perhaps Congress, could decide that this is an experiment worth attempting. But the judiciary has no business doing this.
posted by Dilan at 11:55 AM

 
BLOGROLL BACK UP:
I know you all have been waiting with baited breath. Just look to the left and scroll down.
posted by Dilan at 1:21 PM

 
FRUM AWARD NOMINEE:
John Kerry, running for President, said that we need a "regime change" here in America. Opportunistic Republican National Committee Chairman Marc Racicot (pronounced "Roscoe", if you are curious) responded by not only criticizing Kerry's colorful language (which would be kind of silly by itself, as no reasonable person would read the comment as comparing Bush to Saddam Hussein), but by saying that Kerry was wrong because he "dared to suggest the replacement of America's commander-in- chief at a time when America is at war". (Here's a nice discussion of what Kerry and Racicot each said.) In other words, because we are at war, the President may not be replaced, or at least it is unpatriotic to advocate the replacement of the President.

Mr. Racicot might not have been paying attention in history class, but this debate was settled in 1864, during to a war that, unlike the current hostilities in Iraq, actually involved sustained, disruptive combat within the territory of the United States where there actually might have been a decent argument to make about ordinary political activities disrupting the war effort.

To Kerry's credit, he properly responded to this attack by trashing the Republicans. After all, Kerry served with distinction in Vietnam and needs a lecture from nobody about patriotism. But this incident shows how the GOP is going to follow the Frum strategy right into the 2004 elections if they can, attacking the patriotism of anyone who dares to oppose them.
posted by Dilan at 1:03 PM

 
ROOT ROOT ROOT FOR THE HOME TEAM:
I have spent a fair amount of time here criticizing the Right for slamming everyone who opposes the war as anti-American and unpatriotic. For some reason, that is the default thinking pattern of American hawks at a time of war-- this is something that has happened in just about every previous war.

But as I noted in my last post, there is at least some anti-Americanism out there. What was I talking about? Well, there was a college professor who wished a "million Mogudishus" on the U.S. army last week. There are some people in the anti-war movement who don't want to hear about Saddam Hussein's dreadful history of chemical weapons attacks and systematic torture.

These people are marginal figures. I think they unfortunately give the Right ammunition to paint the whole anti-war movement as unpatriotic. But to resist this charge, the anti-war movement needs to do what the French and German governments did today: make clear that if it is a choice between Iraq winning the war and America winning it, America must win the war. Saddam Hussein is not Che Guevara. He is a ruthless dictator who runs an oppressive totalitarian state. He has screwed his people by refusing to get rid of his weapons and thus ensuring continued economic sanctions that have killed up to a million Iraqis. The Arab world needs more democracies, not more governments like Saddam's.

I didn't particularly care whether he invaded Iran or Kuwait-- those governments are horribly oppressive as well. (Kuwait's is also elitist and racist-- I don't have any sympathy for a government that imports foreigners to do the work to support its lazy population, and then refuses to provide any means for those foreigners to attain citizenship and share in the wealth of the country.) I certainly wouldn't have cared if he had invaded Saudi Arabia in 1991, the threat that caused Bush 41 to start the Gulf War. If Saddam had overthrown the Saudi monarchy and imposed his will on Arabia, Osama Bin Laden might have chosen to turn his formidable fire at Saddam rather than the United States.

But the current war is not Iran vs. Iraq, or Saudi Arabia vs. Iraq. This is Saddam Hussein versus a coalition that, whatever else you want to say about it, is attempting to impose a decent government in Iraq. Even the worst possible government that the coalition could install, full of neoconservatives more concerned with the security of Israel than the aspirations of the Iraqi people, would be a distinct improvement over the Baath dictatorship. The new government will not stockpile chemical weapons. It will not torture dissidents. It will not squander the country's considerable oil wealth building presidential palaces and buying tons of armaments. And it is quite likely that the government that we install will be much better than even that worst-case scenario. Iraq stands a chance of becoming some sort of a democracy, or at least a federated state that protects the rights of its minority groups (unlike any of the other countries in the region).

The point is, rooting for Mogudishu, or Vietnam, in this war, is rooting for the bad guys. Of course, one can still protest for peace, protest American tactics, or seek a pullout from Iraq. Such protests played a role in our pullouts from Vietnam and Somalia, which saved countless lives in needless conflicts.

And I don't flinch from my position that we should not have started this war in the first place. Indeed, I fear that after this war, the US will seek out future conflicts because there are very few remaining checks on American power. (I suspect we could defeat just about any country that doesn't have nuclear weapons.) I also fear that widespread nuclear proliferation will occur because countries with questionable governments (and there are many of them) will seek the security that Kim Jong Il has obtained against American attack. Whoever replaces W in the White House is going to have a difficult task of rebuilding international security mechanisms that W has destroyed with his inept and reckless foreign policies.

Those things are all true. But we must still defeat Saddam Hussein. Even in some of our more imperialist exercises have been good for the world in the long term. (Not all, just some. Kissinger should still face his day of reckoning for what we did in Chile.) Would Panama be better off if they still had Noriega? South Korea has a wonderful government; one hates to think what would had happened if the North had taken over.

The most important thing that we can all do in the coming days and weeks and months is to force the Bush Administration to keep its promises to install a decent government to replace Saddam Hussein. I wish we had chosen the route of peace. But when someone hands you a tub of lemons, you have little choice but to try and make lemonade.
posted by Dilan at 10:13 PM

 
FRUM AWARD NOMINEE:
Taking after Andrew Sullivan, I have decided to create an award for conservatives who inappropriately question the patriotism of war opponents. We name the award after David Frum, who is a serial offender at labeling anyone who disagrees with the war anti-American (see here and here). (One of the delicious ironies of Frum's baiting tactics is that he's Canadian himself.)

In order to be eligible for this award, the commentator must be (1) a prominent conservative hawk, who (2) labels an opponent or opponents of the war as anti-American, (3) where such a label is egregiously inappropriate. Point (3) is important-- obviously, there are some people out there who really do want to see the US go to hell in a handbasket; the sin of the Frums of the world is to assume that a central or even the main motivation of people who take anti-war positions is that they hate America.

Our first nominee comes to us from TAPPED. It is none other than Bill Kristol, one of the neoconservative prime movers behind W's Iraq policy. He viciously attacked Rep. Charles Rangel (D-NY), saying that Rangel's anti-war position had led him to desire to "see American setbacks in the war to vindicate [his] position". As TAPPED points out, Congressman Rangel is not only a Korean war veteran, but was seriously wounded in battle. Rangel is a black man who risked his life for his country, and suffered great pain and physical anguish in doing so, and, I might add, did this at a time when his country still imposed horrible racial segregation and discrimination against people with his skin color. Kristol, on the other hand, sat out the Vietnam War.

I am not one to buy, in toto, the "Chicken Hawk" argument (i.e., that a person has no business being a hawk if he or she ducked military service). I don't think that those who did not serve in the military are automatically disqualified from taking positions on matters of war and peace. Our system demands that all citizens participate in the process of determining whether we should go to war, whether they have served or not.

But this is not a matter of Kristol simply being a Chicken Hawk. This is the matter of someone who had a privileged upbringing as the son of Irving Kristol and who, like many others of his generation, had better things to do than risk his neck in a war that he nonetheless supported, gracelessly questioning the patriotism of a man took enemy fire for his country at a time when that country considered him to be a second-class citizen. What a warped mind Mr. Kristol has. Being patriotic is not a matter of agreeing with this or that political position. It is not merely an intellectual exercise. It is a matter of being willing to put your butt on the line when your country needs you. Charlie Rangel did so. He deserves better than to have his bona fides attacked by someone who has never had to leave the comfortable confines of the Washington establishment, where Mr. Kristol can safely sit around passing judgment on what everyone else's motives are.
posted by Dilan at 11:40 AM

 
BEAR WITH ME:
My blog has been experiencing huge technical difficulties. My blogroll and archive links seem to be gone. I will try to restore them soon as I can. Thanks for your patience.
posted by Dilan at 10:53 PM

 
GAZING AT MY OWN NAVEL:
This article mentions my humble blog in some pretty impressive company. Of course, maybe I'm the person who the author refers to as gazing at his own navel. In any event, we're flattered by the attention.
posted by Dilan at 9:19 PM

 
"EVERY CHILD IS A BLESSING"
It sounds like nobody could disagree with it. And it certainly is the governing principle of many peoples' reproductive lives in this country. Further, you can't seriously support equality and autonomy for women and yet criticize them for choosing to have their babies.

And yet.... every child is not a blessing to every mother. Sometimes, an abortion is the right thing to do. To choose an extreme example, remember the Nicaraguan 9 year old rape victim?

The reason this comes up is this Eve Tushnet item I ran across. She links to an anti-abortion blog, which then links in turn to a pro-abortion site, imnotsorry.net. There has, for some time, been a branch of the pro-life movement that focuses on ministering to women who regret their abortions. Certainly some women do regret their abortions; it is a morally complex decision, and in any event, society hangs a huge guilt trip on women who have the procedure. The I'm Not Sorry website is aspiring to be a counterweight-- a group of women who are glad that they had abortions. I'm not sure that I'm Not Sorry is entirely successful-- it's easy enough to start sitting in judgment of the reasons the women give for their abortions, which really isn't the point of the site. But what is most interesting is the anti-abortion blog's reaction to the site-- the blog's author basically dismisses many of those who aren't sorry about their abortions as childless women, and says that women who that tend to have children tend to regret their abortions more.

I don't know whether this is true or not, but I don't see particularly why it should be true. That's where I was going with the title of this post. It is simplistic to say that an unplanned child is simply a surprise blessing. Anyone who familiarizes him- or herself with the practices of any of this world's extreme patriarchal societies, or the history of women in the United States, understands that the ability to plan motherhood is a necessary condition for gender equality. I realize that many people have seen their lives blessed by children that they didn't plan to have. But it is that unplanned pregnancy that leads to a woman quitting her job, dropping out of school, marrying the wrong, abusive guy, going on welfare, or taking any number of actions that end up retarding her future opportunities. I, of course, am not female and have never been pregnant, planned or otherwise. But I would certainly think that there is many a woman out there who has had planned children and who is very glad that she wasn't forced to have that baby that came around when she wasn't prepared to become a mother.

And I think the misunderstanding of this point subtly colors the way we view abortion. Nobody wants to say that some children shouldn't be born. But really, the concept of children as a "blessing" really adds nothing to the abortion debate. After all, if every child is a blessing, why use contraception or even abstain during ovulation; why pass up a chance to add a blessing to one's life every chance one gets? Everyone, or at least everyone who is being remotely cautious, at least tries to time procreation. Though nobody will admit it, just about all of us understand internally that having children at certain points in one's life is not really a blessing. (If you really disagree with me on this point, what do you think about the 9 year old Nicaraguan?) And once you get past that point, the abortion debate gets back to whether it is morally permissible to destroy an embryo or a fetus.

There's more than one way to love children. And a woman who utilizes family planning, including abortion, to ensure that she brings her children into the world under the best possible circumstances, to me, is acting in a profoundly moral way. She is wanting the best for her children. But some pro-lifers seem to labor under the illusion that such a woman should feel guilty. There's no reason why she should.
posted by Dilan at 9:06 PM

 
JUSTICE SCALIA IS A BIGOT:
This is important information. Scalia purports to stand as the most prominent exponent of a theory of constitutional interpretation (actually, a spin regarding a form of constitutional interpretation that isn't actually all that qualitatively different from the methods of interpretation used by others, but that's beside the point) that says that only the text of the Constitution, and the original meaning ascribed to the document by its framers, matters. Those of us who know that this is bogus (and who, on occasion, get great joy from pointing out that it is bogus), often argue that people like Scalia have chosen to endorse a form of constitutional interpretation that fits their noxious political beliefs, and then seek to escape criticism of their Neanderthalic beliefs by saying that they were compelled to reach the unjust legal conclusions they have reached because they are obligated to follow their judicial philosophy. Now, with Scalia, we have a smoking gun. Check out what Scalia said at oral argument yesterday.

From the L.A. Times:

"At one point, Rehnquist asked if a state could prefer heterosexuals over a homosexual to teach kindergarten.

"Before the attorney could answer, Scalia asserted that disapproval of homosexuality would justify such a decision by the state. Otherwise, he said, children 'could be induced to follow the path of homosexuality.'"

E.J. Graff and Dahlia Lithwick also report that Scalia made this statement.

In other words, Scalia believes that a state's enacting criminal laws for the purpose of preventing people from becoming homosexuals is a legitimate interest, and he further believes the old canard that homosexuals "recruit" kids to become gay. This is not legal reasoning, or original intent, or anything else other than pure bigotry. The man thinks gays are a scourge. He thinks that it is the state's business to eliminate homosexuality. And he thinks that if the state does not do so, the gays will come to get our children. A person who thinks these things should not hold high office, on the Supreme Court or anywhere else.
posted by Dilan at 3:22 PM

 
MY OWN THOUGHTS ON THE CONSTITUTIONALITY OF SODOMY LAWS:
I have engaged in a fair amount of debate on this over at Slate, but basically, I think there are three possible theories as to why sodomy laws may plausibly be held unconstitutional: (1) that the privacy of the bedroom is an unenumerated right that is protected under the Constitution, (2) that sodomy laws are expressions of pure animus against homosexuals (or against so-called "deviants" more generally) and thus lack a rational basis, and (3) that, at least as to sodomy laws that target homosexual relations exclusively, such laws discriminate against people because of their gender (by allowing females, but not males, to have sex with a man, and vice-versa) and are not justified by any important state interests.

The crux of the debate over at Slate is that I don't think (1) is very persuasive. A finding of an unenumerated right in the Constitution is disfavored, for good reason; there is a grave danger of judicial activism when judges can simply construct constitutional rights where no text guides them. (I do not believe, as some people do, that there are no such things as unenumerated rights-- the Ninth Amendment makes pretty clear that such rights exist. People who claim that there are no such rights usually base their position on an obligation to follow the text of the Constitution, but they say little about the text of the Ninth Amendment.) The usual formulation is that such rights have to be "so deeply rooted in our traditions to be considered fundamental". The right to have sex with someone of the same gender is not deeply rooted in our traditions. (Indeed, that's exactly the point-- times have changed.)

But I do think that (2) and (3) are extremely persuasive. First, there is no doubt that the reason these laws exist on the books is that people want to condemn homosexuals. (Indeed, they aren't usually enforced precisely because their purpose is moral condemnation, not law enforcement.) Some scholars and judges, including most famously Antonin Scalia, think that such moral judgments are sufficient to provide a rational basis for a statute. But this proves too much-- any behavior can be condemned as immoral, and thus all statutes would pass the rational basis test if this is the law. Further, I don't think there is nearly the separation that Justice Scalia does between moral condemnation and animus, at least as far as legislation is concerned. While conceptually I think it is possible on a personal level to "love the sinner and hate the sin", it is not credible to say that a person loves the sinner if he or she wants to throw the sinner in prison (or to at least threaten to do so). Someone who wants to do that must at some level dislike homosexuals. This theory was used to strike down a Colorado statute nullifying local gay rights ordinances in Romer v. Evans, and I expect that it will be used to strike down the sodomy law in this case.

There is another, more daring theory, that I wish the Court would use to strike down the statute. Most anti-gay statutes are really a form of gender discrimination, and gender discrimination, even where it has a rational basis, is considered unconstitutional unless the statute is substantially necessary to serve important state interests. How are anti-gay statutes gender discrimination? Simple-- take the Texas sodomy law. Under that law, females are allowed to have any kind of sex with a male, but males are not allowed to have sex with the same male. Thus, the statute discriminates against men because of their gender. There is precedent for this theory-- it was used to strike down anti-miscengenation statutes in Loving v. Virginia. (If you were black, you weren't allowed to marry a white spouse that a white person was allowed to marry.) Further, it makes perfect sense. Indeed, if it were anything other than sexual activity that we were talking about, there is no doubt that this principle would be applied. For instance, imagine a statute that required that any contract, to be enforceable, would have to be made between people of the opposite sex. Or a statute that required states to educte males and females in separate classrooms. Those statutes would be struck down on the basis that they constitute gender discrimination.

The importance of this theory is that it would make classifications based on sexual orientation suspect under the law, so that a state would need an "exceedingly persuasive justification", and not just a rational basis, to discriminate against homosexuals. It would bring gays and lesbians similar protections to those enjoyed by racial and religious minorities, aliens, and women. And Texas politicians would have to find some other way to score cheap political points than demonizing gays and lesbians.
posted by Dilan at 11:58 AM

 
THIS IS WHY, EVEN IF YOU DISAGREE WITH HIM, ANDREW SULLIVAN IS THE BEST BLOGGER ON THE PLANET:
What a wonderful essay on sodomy laws.

(By the way, I disagree with Sullivan on the war, George W. Bush, and some other things. But he's totally right on this.)
posted by Dilan at 11:20 AM

 
GET RID OF THOSE SCREAMING NBA P.A. ANNOUNCERS:
When I was a kid, a guy named John Ramsey was the announcer for almost all the local (Los Angeles) sports teams, including the Dodgers, Angels, Rams, Lakers, Kings, and USC football and basketball. He had a deep, stentorian voice, and a punctuated delivery, which people loved to imitate. (Your attention please, for the Dodgers, batting [pause] for Sutton, number 11, Manny [pause] Mota!) He never raised his voice, even when the home team scored or was rallying. He died in the 1980's and was replaced by Lawrence Tanter on the Lakers (another deep voice) and Dennis Packer on just about everything else (he had a higher voice, but he parroted all of Ramsey's pauses and intonations). Tanter and Packer were, and are, reasonably professional P.A. announcers.

Meanwhile, the rest of the country went crazy. The most influential announcer was a guy named Dave Zinkoff, who worked basketball games in Philadelphia, first for the Warriors (before they moved to San Francisco and then Oakland) and then for the 76'ers. He would scream "Wilt CHAIM-ber-lain" and "Julius ERRRRRRRRRRRRR-ving" in his pregame introductions, and he would crazy when the home team did something. He was a colorful Philadelphia institution who, like Ramsey, died in the 1980's. (Zinkoff was so well-known in the NBA that Kareem Abdul-Jabbar said, when Philadelphian honored Abdul-Jabbar's last appearance in the Spectrum, that he missed Zinkoff on the P.A.)

Pat Williams, who worked for the 76'ers when Zinkoff was the announcer, became general manager of the Orlando Magic when that franchise formed and hired Paul Porter, a Zinkoff clone who screamed the lineups and who, after every Orlando basket, yelled the name of the player who scored. The Detroit Pistons hired a guy who, in the 1988 and 1989 finals, presented an obvious contrast to Tanter's low-key style at the Lakers, by screaming the Pistons lineup. And the Chicago Bulls took it to the next level, with Ray Clay introducing the opposing team in a dull, disinterested monotone before they rudely turned out the lights to the arena, and blasted the Allen Parsons Project over the loudspeakers at Chicago Stadium so that the opposing team couldn't hear, see, or think, much less conference about the game (as they traditionally might), while Clay screamed the names of the Bulls over the P.A.

Now, every NBA team (except the Warriors, the original employers of Dave Zinkoff, who stopped doing it at the request of their current coach) follows the Bulls' style in introducing the lineups. The dull monotonous introduction of opposing players really rankles me almost as much as the screaming; so what if it's Michael Jordan, he's the opposition, so you must boo him and not give him any recognition whatsoever. (Indeed, the Bulls fired Clay because he wanted to give Jordan, now on another team, the introduction that he deserved for the many years he gave the Bulls. Only under strong public pressure did the Bulls' management relent and allow the new announcer to give Jordan a big introduction.) And most of these announcers also follow the Paul Porter style of game announcing, with every basket by the home team an occasion to shout. (Indeed, it's not even right to call these guys cheerleaders, because unlike a cheerleader they actually have no sense of the crowd. Kobe Bryant might make some absolutely impossible basket, causing the opposing fans to cheer him, but the announcer will nonetheless quietly whisper "kobe bryant". On the other hand, some guy on the home team makes a basket to cut the visitors' lead to 20 with 45 seconds left in the game, with no crowd reaction whatsoever, and these guys scream their lungs off.)

The job of the announcer is to provide the fans with information. In the old days, they were more important, because names were not on the back of jerseys and scoreboards were rudimentary. (They still announce that a foul was "the first personal foul and the third team foul", even though that information is now readily available on the board.) But even now, a good P.A. announcer can provide useful information. Frank Fallon, who announced (in a traditional, low-key style) the Final Four for over twenty years before his retirement a couple of years back, used to read stats during the breaks. Don Sawyer, the long-time (traditional, low-key) announcer at UCLA's Pauley Pavilion, identified who, if anyone, got the assist on every basket.

In contrast, the screamers add nothing. When Dan Roberts at the Delta Center yells "how about our Jazz!" when coming out of a timeout, he may think he is prompting the crowd, but I've been in arenas where nobody said anything over the P.A. and the fans knew when to get up and make noise. New York Knick crowds made just as much, if not more, noise in the Garden even when classy John Condon, rather than the current screamer, was the announcer.

I'd like to see an NBA team try the following experiment: Hire a screaming P.A. announcer and turn the lights out for the introductions for half the games, and engage a traditional P.A. announcer and keep the lights on for the rest of the games. Let's see if there is any difference in attendance or crowd noise or home court record between the former games and the latter games. My bet is that there will be none. Nobody buys a ticket for the announcer, and fans know when they are supposed to cheer. The only thing these screamers serve to do is infuriate those, like me, who come to see the game and not to hear the announcer.
posted by Dilan at 8:29 PM

 
"FAIR AND BALANCED"
Some conservatives have admitted that the reason that Fox News claims that it is "fair and balanced" is to drive liberals up the wall. Everyone knows that Fox News tilts to the right. The less disingenuous arguments in favor of Fox News' journalistic standards are: (1) that many other media outlets tilt to the left, so Fox, while not balanced, is at least a counter-balance, and (2) that Fox News presents the news in a more entertaining, tabloidish fashion than other outlets, which draws viewers to television news that wouldn't otherwise watch.

I agree with argument (2). Indeed, I watch Fox News because I like the tabloid sensibility, whether seen in Shepard Smith's bits and bites from around the country (20 second reports on minor local stories that nonetheless are interesting for one reason or another), or the outrageous shouting matches on Fox's top-rated debate programs, "The O'Reilly Factor" and "Hannity & Colmes".

But argument (1) is entirely phony. I realize that there are whole books written on media bias, and that topic is really too specialized for me to comment on. (From what I have seen, however, I think that conservative arguments about liberal media bias focus way too much on the fact that the people reporting the news are liberals, a manifestation of the more general principle that most college graduates are liberals or moderates, and most conservative college graduates go into the corporate world and not journalism. But reporters only have control of content on the micro level of how particular issues are presented, and what questions are asked of what people. Issues of story assignment, editorial control, and the scope of what is "newsworthy", in the mass media, are generally made by corporate types who both tend to have more conservative types and who tend to make decisions that favor conservatives because such decisions profit the company. This isn't to say that there is no liberal bias; rather, I suspect that the extent of liberal bias is overstated, and that there are also conservative biases, and other sorts of biases, that are ignored by conservative media critics.)

So why, then, is argument (1) phony? It is phony because even assuming arguendo the rest of the media (or much of the rest of the media) is biased to the left, that sort of bias is qualitatively and quantitatively different than Fox News' rightward bias. Fox News spins, rather than simply slanting, the news. For instance, for the entire runup to the war on Iraq (and continuing during the opening days of the war itself), Fox News has accompanied its Iraq war reports with a caption at the bottom of the screen reading "War on Terror". Sometimes those words also appear on a screen behind the anchors as well. Now, no responsible news outlet, even a biased one, would put those words on the screen for reports on the Iraq war. Why is that? Because the contention of whether the Iraq war is part of the war on terror is extremely debatable. Even many of the war's supporters admit it isn't, and that war against Saddam Hussein is not connected to 9/11 or fighting Al Qaeda. The Bush Administration of course claims that it is fighting terrorism in Iraq, of course, but the evidence of Iraqi connections to Al Qaeda has not been particularly convincing.

Now I am not saying that you have to buy my argument that I don't believe the war on Iraq is part of the war on terror. You can believe that it is. My point is that no responsible journalistic outfit would casually identify the war on Iraq as "War on Terror", because of the existence of strong colorable, debatable arguments that it is not. The words "War on Terror" are the sort of thing that one would see on one of those prefabricated backdrops behind an Administration official giving a speech supporting the Iraq policy-- i.e., they are one side's spin as to what the war is about. The liberal equivalent of putting them on the screen during discussions of the war on Iraq would be for one of the other networks to put the words "War for Oil" on the screen while discussing the same war. And no "liberal" network has done or will do that.

Another example is Fox's use of the term "homicide bombers" to describe Palestinian suicide bombers. This terminology is forced, redundant (it's pretty obvious that a bomber is trying to murder people), and less descriptive than "suicide bomber". While all bombers are attempting to commit homicide (though some don't succeed-- Fox calls them "homicide bombers" anyway), the unique thing about the Palestinian bombers is that they are also committing suicide. Fox may feel that to remind viewers of this fact is somehow to honor their sacrifice, but what ever happened to another of their slogans, "we report, you decide"? Giving the viewers information so that they can make up their own minds is what journalists in a free society are supposed to do. Once you get into the area of deliberately suppressing facts in order to sway your audience's opinion, you are closer to Al Jazeera than you are to CBS or CNN.

Fox News, at its worst, is a spin operation. Maybe conservatives have a point that Dan Rather is a liberal Democrat, but he doesn't blatantly adopt the questionable language of one side of contested political questions or deliberately suppress facts to sway the audience. I like Fox News for what it is, and will continue to watch it. But "fair and balanced" my ass.
posted by Dilan at 7:55 PM

 
THE IMPORTANCE OF THE GENEVA CONVENTION:
Much of the Right (and sometimes the Center-Left as well) trashes international institutions, treaties, and international law, because they restrain American freedom of action. Thus, we don't want anything to do with an enforceable Biological Weapons Convention, because it might require us to submit our labs to inspections. We don't support the Land Mines Treaty, because we might have to remove mines from Korea. Et cetera.

What this critique ignores is that rules benefit us even as they constrain us. And the Geneva Convention is a perfect example of it. Donald Rumsfeld is absolutely right to scream about Iraqi mistreatment of our POW's. But we've been systematically violating the Geneva Convention (as well as the Torture Convention) by publically displaying, interrogating, and torturing detainees from our operations against Al Qaeda in Afghanistan and Pakistan, and by refusing to provide them with access to competent tribunals to determine their combatant status. Such conduct makes it much harder to enforce Geneva Convention norms (usually enforced through international pressure and publicity) on Iraq or anyone else.

I have a theory about this. I have a feeling that Rumsfeld and others in the Bush Administration may have actually believed that we had become so strong that the successful capture of American soldiers in military conflict was highly unlikely. He believed that our strength would be sufficient to protect our POW's. Certainly, nobody was talking before this war about Iraq being able to capture our servicemen and women. This is part of a more general overconfidence about the ability of military strength to solve the nation's, and the world's problems. (No, Don and Dick and Paul and Richard and Douglas, a successful intervention in Iraq is not going to suddenly democratize the Middle East, end terrorism against the US, or result in an end to the Israeli-Palestinian conflict.)

Weaponry is only one aspect of successful foreign policy. Strong international institutions set rules, and do so in ways that benefit us. The Geneva Convention provides a set of rules with respect to armed conflict that have stood the test of time. We are not at a time (and I don't ever expect us to arrive at a time) when such rules can or should be thrown out the window.
posted by Dilan at 2:07 PM

 
ALL THAT WORK TO MAKE THE OSCARS PALATABLE TO PRO-WAR AMERICA, AND...
Hollywood rolled up the red carpet, discouraged stars from overt anti-war speeches, cancelled the production numbers, and conveyed an overall tone of seriousness, all so as not to offend pro-war middle America and to convey the impression that the industry is no different than ordinary Americans.

And yet, the only two things anyone will remember from last night's ceremony are Michael Moore and Roman Polanski.
posted by Dilan at 1:45 PM

 
CAN WE PLEASE STOP USING THE PHRASE "AID AND COMFORT" TO DESCRIBE WAR OPPONENTS:
David Frum has done it again. As you may recall, when last we heard from him, he was attempting to stifle anti-war speech by saying that it has no value to society. Now, he gives us this piece (free registration required), in which he argues that Ted Kennedy's arguments against the war "suggest [that] leading Democrats are now stepping beyond criticism to lend aid and comfort to the antiwar movement in the United States and Europe". This passage confirms that Frum is a sleazeball. The phrase "aid and comfort" comes from the definition of the crime of treason in the US Constitution (Article III Section 3): "levying War against [the United States], or adhering to their Enemies, giving them Aid and Comfort". Frum knows this-- he is deliberately using these words to make Ted Kennedy (whose two brothers gave their lives for this country) sound like a traitor. Further, the passage is especially noxious because he uses the words "aid and comfort" in the context of the anti-war movement in the United States and Europe; the implication is that giving "aid and comfort" to these entities is the same as giving aid and comfort to Saddam Hussein.

Unfortunately, this type of rhetoric is way too common among hawks, many of whom miss no chance to accuse doves of being anti-American, pro-Saddam, and treasonous. This needs to stop. Giving "aid and comfort" to the enemy is a legal concept that refers to overt acts of treason, such as if an American citizen supplied weapons to the Iraqi military during the current war. That language has no place in the debates as to whether the war is justified. Frum and his ilk need to stick to reasoned discourse and stop accusing everyone who disagrees with them of being a traitor.
posted by Dilan at 1:42 PM

 
TURNABOUT IS FAIR PLAY:
Steven Reinhardt, the great liberal judge of the Ninth Circuit Court of Appeals, authored a 2-1 majority opinion today that holds that any federal statute that bars possession of non-commercial child pornography for personal use is unconstitutional under the Commerce Clause (that is the grant of power in the Constitution to Congress to regulate interstate commerce). I don't really feel strongly one way or the other about the correct interpretation of the Commerce Clause, or more accurately, perhaps I feel strongly in both directions. (On the one hand, I do think that 21st Century America demands a much larger federal government to solve national problems than 18th Century America did, and enforcing a strictly restrictive Commerce Clause would prevent the federal government from regulating national problems. On the other hand, some attempts to expand the reach of the Commerce Clause, such as the case where the Supreme Court held that a farmer's growing of wheat for his own personal consumption could be restricted by the federal government, on the ground that such conduct "affects" commerce, seem to me to be completely contrived and indefensible.)

But you can't help but smirk at what Reinhardt has done. Chief Justice Rehnquist and other conservatives have made it a pet project to reinvigorate the Commerce Clause as a substantive limit on Congress' powers. (While they haven't revisited the silly FDR-era farming decision, Wickard v. Filburn, they have ruled that Congress lacks the power to regulate gun possession around schools and violence against women, holding that these are purely local issues.) It's easy to see why they have done this-- an effective Commerce Clause can stand as a barrier to effective federal regulation in such areas as civil and women's rights, firearms, and other areas where liberals might want to impose regulations. What Reinhardt did today is point out that the same narrow interpretation of the Commerce Clause can stand as a barrier to effective federal regulation in areas where conservatives might support federal regulations as well. (I am sure John Ashcroft is fuming at this ruling.) At the risk of making a silly pun out of the Wickard case, you reap what you sow.

I might note there are some good practical reasons for Reinhardt's decision. The international market for kiddie-porn is a huge problem, and those who traffic in it deserve the harshest punishments. But some Wal-Mart one-hour photo clerks have turned into deputies of the government, turning over relatively innocent photos of nude family activities, that were not taken with or intended to be used for any sexual purpose, to the authorities. If the government cannot prove that the particular sort of child pornography that is the subject of the prosecution is actually connected to the interstate and international trade, the case for federal regulation is relatively weak. (Remember, federal regulation means mandatory prison sentences, whereas state regulation might just mean mandatory counseling for the families.) Reinhardt's position is backed up by the fact that, especially with respect to issues like child porn (where the statutes always pass the Legislature 99-1), giddy lawmakers who want to show how tough they are against some of the most vile people in society do not tend to make proper distinctions, or indeed any distinctions, between the most vile and the merely misguided. While a local-interstate distinction might not approximate this divide perfectly, it will at least be a reasonable fit, separating the folks who really are part of the international child porn trade from those who aren't.
posted by Dilan at 3:27 PM

 
NO, GEORGE, TOM DASCHLE IS NOT TRENT LOTT:
George Will, who, because of his jobs at ABC and the Washington Post and his great writing on baseball, is overrated as a public intellectual, has made a typically over-the-top statement in criticizing Tom Daschle's position on the war. He writes that Daschle is wrong to blame W for screwing up the diplomatic situation and forcing a war (an opinion that Daschle is far from alone in expressing). Will thinks that is silly because the diplomatic problems were the fault of France and not the US. OK, fine, lots of people have said that. But check out Will's conclusion:

"As for Daschle, he has become the Democrats' Trent Lott, with two differences. Lott was embarrassing about 1948, not 2003. And his fellow Republicans were embarrassed."

In other words, Daschle is worse than Lott, because Lott's comments concerned an issue of long ago, while Daschle's concerned a current event, and Lott was criticized by members of his own party.

Sorry, George. Your attempt to compare Lott's comments that we would have been better off with Strom Thurmond's election in 1948 (and resulting legalized segregation) with Daschle's comments that the President has done a lousy job of bringing allies along to his foreign policy is a classic apples and oranges situation. Indeed, it goes beyond that-- it's apples and orangutans. Lott endorsed a policy that has been discredited for 35 years. (Further, Will's characterization of it as "about 1948" is disingenuous spin: Lott's statements offended people living now, including many blacks who suffered under the policies Thurmond advocated.) Daschle may or may not be right about W (I happen to think he is right), but his comments certainly do not endorse any sort of extremist ideology; indeed, people like Josh Marshall, Kenneth Pollack, and Tom Friedman and many others have been making the same argument.

The fact of the matter is, this episode tells you a lot about Will. Nobody who understood what was really at issue with the Lott comments would compare a rather mundane criticism of American foreign policy by an opposition party leader to Lott's statements, much less contend that the mundane foreign policy criticism was actually a worse offense than Lott's. Perhaps Will has seen his party flirt with so many segregationist politicians and policies over the years (e.g., Bob Jones University, Reagan in Philadelphia, Mississippi) that he doesn't really see what the fuss was about Lott. Or perhaps he is one of those who believes that any criticism of a President in wartime is treasonous, rather than the legitimate exercise of First Amendment freedoms. But he must be either underreacting to Lott's offense or overreacting to Daschle's alleged offense. There are ways you can tell a real public intellectual from an ordinary partisan. This is the sort of thing that exposes Will as the latter.
posted by Dilan at 6:35 PM

 
A CLEVER WAY TO STIFLE DISSENT:
Some hawks have been forthrightly (and falsely) labeling doves as anti-American or pro-Saddam. (See, for instance, the recent criticism of the French.) But other hawks have a more clever and subtle way of doing the same thing. Here's David Frum, criticizing conservatives who don't toe the pro-war line on Iraq:

"The antiwar conservatives aren't satisfied merely to question the wisdom of an Iraq war. Questions are perfectly reasonable, indeed valuable. There is more than one way to wage the war on terror, and thoughtful people will naturally disagree about how best to do it, whether to focus on terrorist organizations like al-Qaeda and Hezbollah or on states like Iraq and Iran; and if states, then which state first?

"But the antiwar conservatives have gone far, far beyond the advocacy of alternative strategies. They have made common cause with the left-wing and Islamist antiwar movements in this country and in Europe. They deny and excuse terror. They espouse a potentially self-fulfilling defeatism. They publicize wild conspiracy theories. And some of them explicitly yearn for the victory of their nation's enemies."

So, it's OK to criticize the method that Bush uses to make war, but if you criticize the war, you are making "common cause" with the "Islamists". It may surprise Frum and a lot of his ideological ilk, but many people don't agree with this war because they think it's bad for America, or bad for the world. These doves (and this probably describes the majority of doves in this country and in Europe) do not support radical Islamic fundamentalism, and do not intend to make common cause with the Islamists (many of whom themselves don't support Saddam Hussein's regime in the first place). Their criticism is just as valid and reasonable and "valuable" as the criticisms who those who support a war but believe that W has screwed it up royally.

In any event, in a democratic society, it is not the function of the governing party, or its supporters, to determine which speech is "valuable" and which speech isn't. It is enough that doves have their opinions and have the right to express them. If Frum thinks the doves are wrong on the merits (which he clearly does), he has the right to express that too. But it is an illegitimate debate tactic to imply that someone else's opinion is less "valuable" (rather than being less persuasive) than your own. In a pluralistic free society, all opinions have value.
posted by Dilan at 12:03 PM

 
CLAYTON CRAMER AND ORIGINALISM:
So many people characterize the debate about the proper role of judges as between those who believe in enforcing the Constitution as originally intended and enforcing a Constitution that "evolves" to fit present-day norms that it is sometimes easy to forget that this is, at the very least, a gross simplification of jurisprudential debates. (Justice Antonin Scalia, of course, is a prime offender at this-- he'd like to believe that he is doing nothing more than neutrally applying the principles laid down in 1787, and that all of his ideological opponents are guilty of inserting their personal values into the document, so he repeatedly gives speeches where he endorses this intellectual framework.)

Clayton Cramer of the Volokh Conspiracy is another offender. In this post, he argues that only the original intention of the Constitution matters, denying that consistently applying such a standard could ever lead to disagreeable decisions and citing with approval an 1897 case that he says endorsed the originalists' method of interpretation of the Constitution.

It is important to note that Cramer goes farther than Scalia and other originalists. Scalia is often up front about the fact that his view of the Constitution can produce disagreeable results. Indeed, he considers it a badge of honor that he is able to reach results he personally disagrees with because his view of the Constitution requires him to reach such results.

Cramer responds to the oft-made argument that an originalist interpretation of the Constitution would remove needed protections against sex discrimination by saying the following:

"The rights of women? The Framers didn't write very much into our Constitution about sex. There is nothing in the Constitution that requires women to have a second class citizenship. There are no Constitutional prohibitions on sexual equality in the workplace. If there were, it would require a Constitutional amendment to remove those prohibitions. But I repeat: the Constitution is astonishingly free of language that puts us in a position of having to choose between original intent and equality of the sexes."

That statement is simply flat wrong. While there is nothing in the Constitution that requires women to have second class citizenship, the effect of an originalist interpretation of the Constitution would be that the Equal Protection clause of the Fourteenth Amendment would be interpreted to apply only to race discrimination, and not sex discrimination. In other words, there would be no constitutional impediment, as there is now, to governmental discrimination against women. Original intent means no constitutional requirement of gender equality, period. So we do have to "choose".

Speaking of choice, there are other legal protections for women that are found by courts in the Due Process clauses of the Constitution, including the rights to use contraceptives and to have abortions. Those rights would also go away if an originalist interpretation were adopted (indeed, those decisions are Justice Scalia's main targets). So again, originalism equals less rights for women.

Moreover, the very 1897 case that Cramer quotes from, Robertson v. Baldwin, indicates exactly how originalism would lead to disagreeable results:

"The first 10 amendments to the constitution of the United States, commonly known as the “Bill of Rights,” were not intended to lay down any novel principles of government, but simply embodied certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. In incorporating these principles into the constitution, there was no intention of disregarding the exceptions, which have continued to be recognized as if formally expressed. Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons...."

Of course, in the 1960's the Warren Court held that many libels against public figures are protected by the First Amendment; I am not sure if laws against blasphemy still exist or have been struck down, but such laws would be clearly unconstitutional as both impediments to free speech and establishments of religion, and the Supreme Court has greatly contracted the scope of the obscenity exception to the First Amendment, a development one can observe by going to the adult section of one's local video store. Pure originalism of the sort that Cramer cites with approval from the 1897 case would invalidate all of these doctrines.

I don't know how Cramer feels about guns, but many on his side of the political spectrum (and a few on my side as well, myself included) believe in a more robust Second Amendment than has traditionally been enforced by the Courts and is referenced in the 1897 case Cramer quotes. So again, originalism can lead to disagreeable outcomes.

I might add that I also do not share Cramer's interpretation of the Robertson case. The Court is not saying that all Constitutional provisions are to be interpreted based on their understood meaning at the time they were adopted, but only that certain provisions of the Bill of Rights were codifications of common law rights with understood exceptions. Nothing in the quoted passage of Robertson indicates that original intent is the only proper means of interpreting the Constitution.

The truth is, originalism is one of many tools to interpret the Constitution. It is of limited utility, because original meaning is difficult to discern, and more importantly, because the nature of a Constitution is different from a statute or a contract. There is a strong argument that the Framers were setting down general principles, and intended that future generations apply those general principles in a manner that fit the times. Indeed, with respect to many issues, there is no framers' intent. The framers had no opinion as to what principles of free speech would govern a world-wide computer network, or whether the government would have to show probable cause before employing a wiretap. But there is a First Amendment which guarantees free speech and a Fourth Amendment that requires that searches and seizures be reasonable, and it is quite plausible that the Framers intended that we determine the legal rules that engender the best "fit" between those general legal principles and the specific problems of our times. For my money, that is the original intent of the Constitution.
posted by Dilan at 11:21 AM

 
THEY WOULD HAVE KILLED 30,000, OR 300,000, IF THEY COULD:
The usually perceptive Eugene Volokh falls for one of the dumbest arguments around here (scroll down):

Volokh conspiracy

Volokh quotes with approval Tony Blair saying the following:

"[W]hat was shocking about September 11 was not just the slaughter of the innocent; but the knowledge that had the terrorists been able to, there would have been not 3,000 innocent dead, but 30,000 or 300,000 and the more the suffering, the greater the terrorists' rejoicing."

Why is this such a dumb argument? Because it confuses intent with capacity. Suppose that John Doe, an otherwise mild-mannered (I love that term from the old comic books!) American, wishes to kill 300,000 people with a nuclear weapon. That intention alone does not make him dangerous, unless he has the capability of carrying out his intention.

Similarly, the fact that the terrorists (Al Qaeda, by the way, not Iraq) would have rejoiced if they could have killed 30,000 or 300,000 people does not magically convert the terrorists into a greater threat than they otherwise are. Here's a simple formula for the dangerousness of terrorists: terrorists are as dangerous as the lesser of their capacity to inflict injury, and their intention to do so. Thus, a person with the most murderous intentions imaginable is not dangerous if he or she lacks the means of carrying those intentions out, or is only somewhat dangerous if he or she is capable of killing a few people but is incapable of a mass killing. In contrast, a person with the capability of inflicting mass harm is not automatically dangerous if he or she has no intention of carrying such harm out.

Al Qaeda is a severe threat, though to the extent that the US' operations in Afghanistan and Pakistan are weakening the organization's capabilities, it is probably less of a threat than it was on September 12, 2001. Still, to rather inappropriately paraphrase Robert Browning, their reach exceeds their grasp, and it is their grasp that defines their dangerousness. The fact that they might rather prefer killing 300,000 Americans is not relevant unless it is demonstrated that they are capable of doing so.

The converse may be true with respect to Iraq. Iraq has some capability to inflict mass destruction (though their capabilities have been degraded by inspections, compelled destruction of weapons, and bombings over the 12 years during which conservatives have falsely charged that we have done nothing to hold Saddam Hussein in check). But the allegations of Iraq's involvement in anti-US terrorism (other than a targeted attack on the President that evicted them from Kuwait, which implies a revenge motive rather than a motive to commit mass murder) have been quite speculative. Certainly we have been able to manage much larger and more certain threats of terrorism from other countries in the region without having to wage preemptive war. Iraq's capability to inflict harm to Americans is only relevant to the extent it does not exceed its intention to do so.
posted by Dilan at 4:00 PM

 
JUST A LITTLE POST ABOUT ERZOZNIK V. CITY OF JACKSONVILLE
According to the Associated Press, Tennessee is considering banning the viewing of pornography in cars, if the images are visible from the outside. Here's the link to Howard Bashman's little note on the law, which also links to the story:

How Appealing

What neither Bashman nor the Associated Press mention is that this is probably unconstitutional. The same issue came up with drive-in movies, when Jacksonville had an ordinance in the 1970's which prohibited drive-ins from showing nude scenes that could be seen by passers-by on the street. The Supreme Court struck down the ordinance, applying the well-established First Amendment doctrine that passers-by who are offended by such things can avert their eyes:

Erznoznik v. City of Jacksonville

Considering that the glimpse of porn from an SUV stopped at a stoplight, through darkened glass and on a tiny screen, is going to be even more fleeting than what was seen on the screen in Erznoznik, I would think the Tennessee law is unconstitutional. (Yes, the Tennessee law might be narrower in applying to "hard-core" porn (though this is not clear from the story), but the holding in Erznoznik has more to do with the principle that expressive activity cannot be entirely suppressed because someone (even a child) might catch a fleeting glimpse of unwanted objectionable material. In any event, a case prior to Erznoznik, Cohen v. California, involved a jacket that was worn in the LA County Courthouse (where children could have been present) and which contained the words "Fuck the Draft". Cohen's conviction was reversed, implying again that it is the ability of the viewer to avert his or her eyes, and not the content of the speech, that is the basis of the First Amendment protection.)
posted by Dilan at 11:28 AM

 
THE ARAB-ISRAELI CONFLICT
I don't like to say much about Israel. Everything about that country and what it represents is conflicting to me. On the one hand, Israel has a lot to admire. It is a successful country in a region of failed states, a David who has successfully defended itself against Goliaths, and a democracy that is generally much more respectful of civil liberties than its dictatorial neighbors. Further, it represents the solution to a real problem-- Anti-Semitism still exists, and there is a need for a place where Jews can go to escape it. And it faces discriminatory obstacles that other states don't face, because of its Jewish identity. For instance, the U.N. is structured to prevent Israel from participating in many of its functions (because Arab and European states have conspired to prevent its "listing" in any of the regional sub-groups that form the structure of the UN).

But you know there is an "on the other hand" coming here. Israel is the one state in the world that officially endorses torture (although the US is unfortunately moving in that direction). Israel has become worse and worse at impinging on its subjects' freedom of religion, to satisfy an Orthodox constituency that, for the most part, refuses to serve in the army which protects them from certain annihilation, and which is generally a backward presence in a forward country (many are on welfare, don't work, or insist on studying Scripture at government expense; many insist on having many more children than the society can support on the small strip of land that is Israel; many refuse to enter the 21st Century on issues such as gender equality). And most importantly, Israel insists on occupying, but not annexing (and that distinction is important), the land of Arabs, and settling Jews in that land (a form of demographic manipulation that borders on ethnic cleansing) in order to fulfill a Biblical vision that Arabs do not, and should not be required to, subscribe to. This occupation denies the Arabs any right to choose those who govern them, while privileging the settlers with preferred access to scarce water, housing subsidies, and full political participation in Israel's affairs.

Also, I object to Israel's sanitizing of its history. For many years, the official position of Israel was essentially that Zionists came and settled an empty land between the sea and the Jordan River to escape persecution, and the world eventually came to recognize their state, first as part of the British Palestine Mandate, and then through the creation of the State of Israel in 1948. The Arabs then attacked the new state three times, and Israel successfully and valiantly defended itself. During the first of those three wars, many Arab residents of the new state fled rather than agreeing to live under Jewish rule, and those Arabs were then cynically placed in refugee camps by Arab states who used the existence of Israel to channel opposition away from their despotic governments.

There is, of course, a lot of truth to this narrative. But there is also a lot of it that isn't true. Israel's creation was an act of original sin-- irreversible, and at the same time making what occurred thereafter a foregone conclusion. While it was easy enough for the British to draw up maps dividing the area of Palestine between Arabs and Jews, what actually happened on the ground was that a lot of Jews moved into a land populated by Arabs, talking about how they were reclaiming land that they had been driven out of in centuries past. The Arabs, understandably resisted, and when a state was proclaimed, they went to war against that state, which they had no input in the creation of. I would suppose that the Arabs of pre-1948 Palestine viewed the Jewish settlers the same way that Native Americans viewed American frontiersmen and women who settled the West, claimed title to the land, and then sought statehood from the US government. In both cases, the interlopers came in and transferred sovereignty to themselves, thereby dispossessing the previous residents of control over their affairs.

Nothing, of course, can or should be done about 1948. (If colonial powers had it to do over again, they might have created Israel in a place that was less populated and had no religious meaning to Jews (as religion is what has inexorably led to Israel's provocative policies on settlement and Jerusalem), and would have compensated anyone who was living there at the time.) You can't unring that bell. But at the same time, Israelis and their supporters should not be entirely surprised that many Arabs do not concede the state's right to exist. The creation of Israel did constitute the dispossession of Arab land.

Why the history lesson? Because, today, as we are on the cusp of war with Iraq, Israel is a much-discussed topic. The Bush Administration has announced the outline of a peace proposal, at the urging of its allies. A Virginia congressman, Jim Moran, has placed his foot in his mouth by making the untrue charge that powerful Jews are driving the war effort in order to further interests of Israel-- a charge that is echoed by Pat Buchanan. And Moran's critics are accusing him of anti-Semitism.

I think it is wise to stay clear of charges about "powerful Jews". While some Jewish and pro-Israel groups (such as the American Israel Public Affairs Committee) are powerful in Washington, and there is statistical overrepresentation of Jews in certain professions (the film industry, lawyers, etc.), the fact of the matter is that people perk up their ears at generalizations about Jews for very good reason. It's very easy for people to slip from "some Jewish groups are very powerful" to "the Jews control the world"-- and the latter was the Nazis' libelous charge that riled up the German population towards supporting some of the worst acts in human history.

But it's also very easy to throw the anti-Semitism charge against legitimate criticism of Israel, and of American foreign policy towards the Middle East. For instance, as I note above, any dispassionate analysis of what occurred in 1948 can show that there is substantial merit to the contention that Arabs were unfairly dispossessed of their land by the creation of the state of Israel. Given that, how is arguing against the existence of Israel anti-Semitic? (What is anti-Semitic is when such arguments are coupled with other arguments or policies that treat Israel unfairly, e.g., false claims that the Jews were never in the Holy Land in ancient times, or the refusal to judge Israel by a standard that is applied consistently to Arab states, which are far more oppressive.) I don't make that argument; I believe that Israel's existence is an established fact in 2003 (and, on balance, a very good thing), and we have to proceed from that fact. But the counter-arguments are intellectually defenisible.

And I am very concerned that all this talk of powerful Jews and anti-Semitism is distracting attention from the most underreported stories of 2003: the extent to which the Christian Right, rather than American Jews, is pushing a radical policy that would deprive the Palestinians of statehood. Of course, such arguments are usually couched in terms of Israel's security, but there are many people who go farther. Many evangelical groups are supporting the settlers in the West Bank, and believe that the Jews must ultimately control the entire West Bank because: (1) they were promised such land by God in the Bible, and (2) such control is a precondition for the second coming of Jesus. Those evangelicals are influential in the White House. Further, two important Bush Administration aides, Undersecretary of Defense Douglas Feith and Richard Perle, Chairman of the Defense Policy Board, apparently support a biblical claim to Greater Israel and once advised former Israeli Prime Minister Benjamin Netanyahu that Israel should take over the entire West Bank.

So far, thankfully, President Bush has not retreated from his stated belief in a two-state solution to the Arab-Israeli conflict. But there are many supporters of Bush who believe in a one-state solution, driving (or "transferring", as it is spun by supporters of the policy) the Palestinians out of the West Bank. Further, these beliefs are particularly dangerous because they are based so obviously on religious claims to the Holy Land that Arabs have no obligation to accept. (I have even heard that some in the Administration actually believe that the ideal Middle East would have the Palestinians take over Jordan and the Hashemite kingdom in Jordan moved into Saudi Arabia!) The populations of Israel and the US do not have the right to impose their religious beliefs on the rest of the world merely because they have the military power to do it, and it would not be wise to do so. Someone needs to ask Perle and Feith point-blank about this issue. (Perle often gives media interviews, so he shouldn't be hard to get on the record on this.)

The point is, the debate shouldn't be about Jews or anti-Semitism. It should be about whether there is a way to provide the Palestinians with a viable state in the West Bank while guaranteeing Israeli security. And those who would stand in the way of such a policy need to be called out into public.
posted by Dilan at 11:07 AM

 
EVE TUSHNET ON TORTURE:
I'd been meaning to blog something on the sudden desire of many Americans, American commentators, and American governmental officials to endorse torture in the wake of 9/11. This is of particular interest to me, because I have litigated torture cases and the universal legal principle condemning torture is very important to me. But Eve Tushnet beat me to it, and posted some of the most articulate arguments on the subject I have ever read, so I will just refer you to her:

Click here

The only thing I would add to Ms. Tushnet's excellent analysis is that there are also strong and important international law rationales for the prohibition on torture, rationales that the US has acceded to when it ratified the Convention Against Torture with bipartisan support, and when former President Bush signed the Torture Victim Protection Act, 28 U.S.C. § 1350 note. It has been fashionable to decry international law of late, but I can tell you that I have personally witnessed how these laws, especially when used in conjunction with the work of Amnesty International and even the US State Department in calling attention to countries that torture, have had a substantial impact. Before 9/11, only Israel officially dissented from the international consensus on torture, and they were roundly condemned for it. It would be a day of celebration for torturers in places like Beijing, Havana, Rangoon, and Riyadh if the United States decided to add its voice in dissent.
posted by Dilan at 11:46 AM

 
CAN WE RETIRE THE TERM "FIANCEE"?
I am not one to say that certain words are taboo. I certainly have no problem with profanity (though I really don't use it all that much myself), and I am generally a civil libertarian who harbors some suspicions about such things as trademark and copyright laws, because they have the effect of withdrawing words and phrases from the language. But there is one word I cannot stand. That word is "fiancee". Every time I see it used, I hit the roof.

Why? For several reasons. First, and probably most importantly, the word is used almost exclusively by women to describe their boyfriends. I do not believe that I have ever heard a male call his girlfriend his "fiancee". This despite the fact that the word itself comes from French and is feminine, i.e., it actually means a woman engaged to be married. I am not a prescriptivist with respect to language usage, so it really doesn't bother me when the meaning of the word has changed; rather, what I am getting to is that the modern usage of "fiancee" has more to do with gender and sexual politics than it does with historical usage.

And the gender politics are fairly obvious. In its current usage, a fiancee is someone engaged to be married. The fact that two people are engaged, of course, is really not a relevant identificatory characteristic; engaged couples are not afforded any different benefits or social standing than any other unmarried couples. Further, the concept of "engagement" itself has stretched. Many people call themselves "engaged" nowadays even though no wedding date has been set; indeed, some people accept a proposal, call themselves engaged, and then wait years to be married. So why do women (and almost exclusively women) rush to use the term "fiancee"? I would surmise that this is a vestige of outdated sexual morality. Women (and exclusively women) were expected in the past to remain virgins until they were married. Women who engaged in premarital sex were considered unchaste whores. Thankfully, these moral beliefs have gone by the wayside. But the term "financee" represents such beliefs sneaking back into the discourse. Why is it so important to a woman to announce that she intends to marry her male companion, even if no date has been set and there is a more than trivial likelihood that the marriage may not ever occur? There's only one answer; because it represents a moral rationalization. "Oh, that's OK, I can have sex with him because we are going to get married." It is pure 1950's morality, of the half-assed kind that was used to justify backseat assignations at the drive-in movie.

I don't particularly care whether people intend to get married. (Really, I don't even care whether they are married.) There's no reason for the use of the term, and I don't have a higher moral opinion of someone who is sleeping with a person she calls her "financee" over somone who is sleeping with her "boyfriend", or even someone having (horror of horrors) "casual sex". Indeed, my moral preferences probably favor the latter two groups, because they are being more honest about what they are doing. So there's no reason to tell me that this person who you are sleeping with is your "fiancee".

Further, when used where the couple hasn't set a date, the term has lost all meaning. The number of people who have said at one time or another that they planned to marry someone exceeds the number of people who actually got married by a large factor. If all those people were to call their significant others "fiancees", the term no longer refers to someone who is actually marrying, but rather just means a very committed boyfriend. And there's no reason to use a separate term for that; it is possible to be just as committed to someone without pretending that you are going to get married and you just haven't set the date or reserved the chapel or hired the caterer or engaged the minister or sent out the invitations or purchased the ring or taken any other concrete steps towards an actual marriage.

So let's just get rid of "fiancee" altogether, or, if we must use the word, reserve it for couples who are actually actively preparing their wedding for a set date in the very near future (maybe 2 months would be a good cut-off). And let's all be honest with ourselves: the 50's are over, and there's no reason why a woman in 2003 has to manufacture any pretenses as to why she is sleeping with a guy she is not married to. It feels good to do it, and that's sufficient.
posted by Dilan at 11:39 AM

 
LINKS!
I finally figured out how to do them. Check out the left side of the page.
posted by Dilan at 5:54 PM

 
OLDER ARCHIVES:
Once again, our older archives are not available through the menu on the left. Use these links instead:

September 2002: http://dilan.blogspot.com/2002_09_01_dilan_archive.html
August 2002: http://dilan.blogspot.com/2002_08_01_dilan_archive.html
July 2002: http://dilan.blogspot.com/2002_07_01_dilan_archive.html
June 2002: http://dilan.blogspot.com/2002_06_01_dilan_archive.html

posted by Dilan at 4:22 PM

 
THE IMMORALITY OF SOCIAL CONSERVATIVISM:
Even though they are often the subject of scorn in the media (and they always remind us of that fact), I would argue that the religious right actually gets a free pass in this country. What I mean by this is that while their politics are often criticized for being outside the mainstream, their moral values are almost never questioned. Almost everyone seems to presume that the adherence to strong, conservative moral principles is admirable. A couple of recent stories in the media have shed a nice light on how this isn't really so.

The first involves a 9 year old Nicaraguan girl who was raped and became pregnant, and sought an abortion. The link to the story is here:

http://www.sacbee.com/24hour/world/story/790317p-5651234c.html

The Health Minister of Nicaragua threatened criminal prosecution if the abortion went forward. The Roman Catholic Church attempted to persuade the little girl to carry the baby to term and give the child up for adoption.

I know it isn't fashionable, even among pro-choicers, to say that one is "pro-abortion", but no matter what the spin doctors say, part of being pro-choice is the recognition that abortion is the correct choice in certain circumstances. And this is one of them. Anyone who threatens to prosecute a 9 year old girl who terminates a pregnancy, or her doctor, or her parents, is committing an act of immorality many magnitudes higher than a therapeutic abortion, even if you believe that abortion is morally troublesome. It goes without saying that not only is a 9 year old in no condition to care for a child once born, but a 9 year old body is not fit for pregnancy. It would disrupt her life, imprisoning her for the term of the pregnancy, making going to school difficult, exposing her to taunts from her peers, etc. And it might even kill her. Plus, no 9 year old is ready for the emotional trauma of carrying a constant reminder of her rape in her body for the term of the gestation period. What are these people thinking?

I know, I know, "life begins at conception", it's murder, it's not the baby's fault that the conception was the result of a rape, etc. But even if you believe all of that (and of course, the truth is that early-term abortions are not particularly morally troublesome, because they snuff out life before it takes on human characteristics such as the sensation of pain, and the development of a brain and nervous system), the establishment of a principle that is never to be deviated from is not moral reasoning. It is rather deliberate blindness to the actual facts that govern specific situations. Even premeditated homicide can be justified in narrow situations. And it seems too easy for people who don't have to carry a child to term at age 9 to sentence someone else to do so.

Our second example of moralistic immorality from the right wing is contained in this item:

http://www.nationalreview.com/thecorner/03_03_02_corner-archive.asp#004615

It seems advice columnist Dear Abby received a letter that described a disabled male, about 40 years of age, who asked a friend of his to procure a prostitute for him, so that the disabled guy could lose his viriginity. (The prostitute donated her services; this fact isn't very important to the moral issue, although it does mean that what was done was at least legal.) The bedridden man lives with his very religious parents, who hit the roof when they heard about this and now forbid the man from seeing his friend.

Dear Abby and her readers have reacted in a very compassionate manner. They are outraged at the proper parties, the parents, who are imposing their own morality on a 40 year old man, and are improperly leveraging the fact that they are his caretakers so as to conform his sex life to their moral standards. But to Rod Dreher of the National Review, that makes Dear Abby a "moral idiot". If there is idiocy here, Abigail Van Buren (who has such a longstanding record of giving out sound advice that even if an insignificant provocateur like Dreher, who has never been an advice columnist, disagrees with her about something, he has no business using such insulting and juvenile language to describe her) is not from whom it emanates.

Again, let's assume for purposes of argument that prostitution is morally wrong. (I am conflicted on this issue, and will write about it in detail at a future time. But I have no problem indulging the assumption.) Heck, we can even assume for purposes of this argument that sex with someone you aren't married to is morally wrong. (If Dreher is like almost all other American adult males, of course, he's probably engaged in it. But again, we are assuming these things arguendo.) The fact of the matter is, again, this is the beginning of the inquiry, not the end. For moral principles have exceptions to them. Guys like this rarely find spouses. He is 40 years old, no spring chicken. He is bedridden and requires a full-time caretaker. Since his parents have assumed that role, I will go out on a limb and say he isn't very rich. He was a virgin at 40, which is an indicator itself that meeting girls is going to be difficult. Anyone with actual moral scrupules would say that his friend performed a profoundly moral act, providing his friend with some sexual satisfaction that he was never going to experience otherwise. This is clearly an exception to any conception of sexual morality that would hold these acts to generally be wrongful.

The point is, these are the sorts of questions that the Pat Robertsons and John Ashcrofts of this world should be forced to face. Because the truth is, they elevate their "moral" principles to the level of inflexible dogma, and do not care whether immoral results are reached in particular circumstances. If you believe in forcing 9 year olds to have children, and precluding bedridden men from having sex with a willing partner, your ethical compass needs serious adjustment. And it will only be forcing these harmful beliefs into the open that we can ever hope to stem the damage that they do.
posted by Dilan at 4:09 PM

 
WHAT DOES IT MEAN TO SAY THE NINTH CIRCUIT WAS "WRONG" IN THE PLEDGE CASE?

I can't think of a single Court of Appeals decision in recent years that has generated as much discussion as the Ninth Circuit Court of Appeals' decision to prohibit the practice of saying the Pledge of Allegiance in public schools. The legal issue the case turns on is whether or not the use of the words "under God" in the Pledge is an unconstitutional governmental endorsement of religious belief, or whether it falls within a judicially-created exception to First Amendment Establishment Clause ("Congress shall make no law respecting an establishment of religion") doctrine that permits "ceremonial" governmental invocations of God, such as the use of "In God We Trust" on coins or the commencement of legislative sessions with a prayer. There has been much discussion of these issues, both when the original 3-judge panel opinion came down and now that the Court has denied a petition for further review by an 11-judge panel, setting the stage for petitions to the U.S. Supreme Court.

But what troubles me is that for many who argue that the Ninth Circuit was "wrong", the issue isn't that the Court did not follow statements made by the Supreme Court that the Pledge is Constitutional (the basis of Judge Ferdinand Fernandez's dissent from the original panel opinion), but that the decision "takes God out of the classroom", or "fails to recognize that America is a Christian nation", or some similar contention. This is usually backed up by some argument about how the First Amendment was never intended to create a "wall of separation" between church and state, as Thomas Jefferson once said it created, or how the framers of the Constitution all believed in God, or how the First Amendment was only intended to prohibit the formation of an official church, etc.

These arguments have been around awhile, and suffice to say, they are based on, at best, an incomplete understanding of history. (For instance, the understanding of a separation of church and state is taken not just from Jefferson's letter, but also from the Virginia Statute on Religious Freedom, which was the model for the First Amendment. The framers may have been religious, but they were mostly Deists, whose beliefs were quite a bit different than modern evangelical or mainstream Protestantism. While it was true that the Establishment Clause was originally thought to reach the issue of establishment of an official national church a la the Church of England, and the framers tolerated state establishments of religion, it is well accepted, by both liberals and conservatives, that the Fourteenth Amendment extended many of the protections of the Bill of Rights against state as well as federal actions; in the case of the Establishment Clause, this expanded the coverage of the clause beyond the framers' understanding. Also, the Establishment Clause has to be read in tandem with the Free Exercise Clause ("or abridging the free exercise thereof"), which certainly implies a scheme through which the government may neither advance nor inhibit religious belief.)

But whatever one thinks about the merits of such arguments, they in no way make the Ninth Circuit's decision "wrong", and the people who make them are more interested in bloviating about the supposed societal decline occasioned by the expansion of the reach of the Establishment Clause, and the purported failings of liberal jurists, then they are in constructively analyzing the merits of the decision. The Supreme Court, over Justice Scalia's vociferous objections, has rejected the conservative arguments that the Establishment Clause permits the government to endorse theism over atheism and Christianity over other faiths. That is settled law, at least from the Ninth Circuit's perspective. (Nor is it going to change at the Supreme Court level, actually.) The Ninth Circuit's decision is not "wrong" unless it is inconsistent with Supreme Court caselaw, or an incorrect interpretation of the high court's precedents. The Supreme Court has never held squarely that the Pledge is constitutional. However, they have noted several times that it might be. Such notations are called "obiter dicta", and are supposed to be highly persuasive, though not controlling, to a lower court. So the Ninth Circuit had to have a good reason to decline to follow them. The Court felt it had one, both because of the admitted theistic purpose of those who added "under God" to the pledge (it was added in 1954 to contrast us with the Godless Communists), and because the Supreme Court has made it quite clear that government is to be neutral, not only among faiths, but between religion and nonreligion. "Under God" is not neutral. I find the Ninth Circuit's analysis highly plausible; it is certainly not an unreasonable resolution of a conflict between what the Supreme Court has said in its dicta and what it has said in its holdings.

It is very likely that the Supreme Court will reverse the Ninth Circuit and make clear how important it is that lower courts follow its obiter dicta. I guess at that point, one might say that the Ninth Circuit was "wrong". But the criticism that the Ninth Circuit was "wrong" because it didn't endorse the right-wing view of the correct interpretation of the Establishment Clause is meritless demagoguery. The separation of church and state, at least in the sense of requiring government neutrality between religious and secular institutions, is settled law. And I, for one, am sick of hearing selective arguments about how that separation doesn't exist. It has no relevance to the question of whether the Ninth Circuit rightly decided the Pledge case.
posted by Dilan at 12:55 PM

 
"THEY WAIVED GOODBYE, AND SLIPPED THE SURLY BONDS OF EARTH TO TOUCH THE FACE OF GOD"
Those words, of course, were the last line of the 648 word address (memo to Bill Clinton: all memorable political speeches were short) Ronald Reagan gave to the nation in 1986 after the Space Shuttle Challenger exploded soon after blast-off. I have never forgotten the beautiful line, or his delivery of it, even though I am not the biggest fan of politicians invoking their religious beliefs at every turn (as Reagan did). The fact of the matter remains that Reagan was one of the greatest orators ever to hold the Presidency, and that great skill allowed him to move the country in some very conservative (and I would contend very wrong) directions.

I say this because I want to vomit every time I hear some conservative comparing the current President to Reagan, usually either (1) in an attempt to justify some hard-right policy choice that the conservative says the public will buy if it is just sold well, or (2) in praise of some unmemorable Karen Hughes-drafted speech that the current President manages to deliver without too many malaprops or stumbles. Let's be very clear. W is no Ronald Reagan. And the conservatives who compare the two are either deliberately lying to pump up the current guy or have totally forgotten Reagan's incredible eloquence.

Read the Challenger address text at this website:

http://www.reaganfoundation.org/reagan/speeches/challenger.asp

The man wasn't called the "Great Communicator" for nothing. W, in contrast, gave a speech yesterday that nobody will remember-- stretching to find something to use in its headline, the Los Angeles Times used his statement that "Columbia is Lost". Yeah, we knew that. Bush tried the religious route too, but while Reagan chose beautiful poetry originally written by a World War II pilot that accurately fit the situation (the Challenger crew literally did waive goodbye and die soon thereafter, as their craft shot towards the heavens, where legend says God resides), Bush chose a canned sermon about how God calls the stars by their names, which could have been brought out for almost any memorial speech. Finally, W couldn't even say "God Bless America" correctly at the end of the speech. God may call the stars by their names, but W doesn't seem very good at calling God by His name.

Of course, it is unfair to compare one of the worst prominent public speakers in recent years to the master communicator, Ronald Reagan. But the conservatives started it. Let's hope they stop it soon.
posted by Dilan at 3:41 PM

 
FOOTBALL AND ENTERTAINMENT:
Did anyone catch the Super Bowl last Sunday? (Yes, I know. I was being facetious.) The NFL has done everything it possibly can to drown the game in a sea of non-football entertainment-- not only do we have a pop music act singing The Star Spangled Banner, but we have another (Canadian) pop music act singing God Bless America. Before that, several other pop music acts played on a stage on the field. More bands played at halftime, with "fans" (in reality, extras) shown on the field in front of the stage cheering on the performers. And Bon Jovi was inexplicably invited to play after the game and before the trophy presentation-- when thousands of people were leaving the stadium, and when those who were staying wanted to see the trophy presentations and not Bon Jovi! Always a good atmosphere for musicians to work in. (It was reminiscent of an old story Jay Leno tells of working as a struggling stand up comic at a strip bar called "The Mine Shaft", where it was dark inside and the patrons were given miner's helmets with flashlights on top when they entered. All the helmets, of course, were pointed towards the strippers, while Leno worked in the dark.)

As far as I can tell, the big halftime show was a concept originated by the Orange Bowl, which decided years ago that it would differentiate itself from the other bowl games by staging a prime-time made-for-television halftime show instead of just featuring marching bands while the networks cut away to show scores and highlights from other games. Those early Orange Bowl halftime shows got a lot of attention, both because they were well-done and also because the Orange Bowl was not always the best bowl game on January 1, so the halftime show provided a reason to watch even if you weren't interested in the teams that were playing.

I really believe that all this stuff started with the Super Bowl because they got a major case of Orange Bowl envy. Obviously, whatever the NFL does has to be bigger than some podunk college bowl game, so the Super Bowl set out to out-Orange Bowl the Orange Bowl halftime show. Of course, they succeeded; nobody pays attention to the Orange Bowl halftime anymore. But they also missed the point. People watch the Super Bowl because it is the biggest game in the biggest sport in America. The ratings were big even before they booked the Dixie Chicks and No Doubt. (Indeed, the ratings peaked in the 49 range in the early 1980's, before all these musical acts were added to the bill.) Perhaps some people also watch for the commercials, though I don't find the reports that large numbers of the football-indifferent tune in to see the ads credible.

I'd like to see them try putting on the Super Bowl without repainting the stadium and covering it with banners, without any musical acts (save, perhaps, a national anthem singer distinguished by talent rather than his or her place in the current Top 40), with no halftime show (other than some highlights and analysis), and with a modest trophy presentation in the locker room, as was done until recently. The show wouldn't drag on as long (people on the East Coast, including Tampa, had to stay up past 11 p.m. on Sunday to see the trophy presentation and interviews), and it would still get a blockbuster rating and make tons of money. Heck, it might even make more money (if that's possible), because the NFL's expenses would be lower.
posted by Dilan at 11:57 AM

 
THE DEATH PENALTY AND ERROR:
I've bashed on Jonah Goldberg before, and I am about to again, so before I do, let me say that he is one of the most intelligent young conservatives out there, a guy who cares about facts and ideas and does his best to avoid the sort of shrill sloganeering that people like Ann Coulter and Rush Limbaugh specialize in.

Now let's get on with the bashing. Goldberg, a supporter of the death penalty, takes on those who argue that the death penalty is inappropriate because innocent people might be executed, in the following passage (the link is at http://www.nationalreview.com/thecorner/03_01_12_corner-archive.asp#002632):

"If you think the cost of a single innocent life is too high to justify capital punishment, in other words if you think it must be perfect in every respect, then you might as well come out against the death penalty because otherwise you'll have to argue for a perfect government program and that is an untenable position.

"But keep in mind government finds acceptable rates of accidental deaths in all sorts of areas. From friendly fire in the military to deaths on our highways to extremely rare and fatal drug side effects. Surely even one child's death is a tragedy, but we know for a fact that roughly 50 young children die every year from drowning in 5 gallon buckets, mostly in their back yards. But we don't ban buckets. And that's roughly the same number as the number of cases of accidental gun deaths among small children, and we do not require child-safe bucket locks (Note to parents: You can childproof your bucket by putting a hole in the bottom).

"If you take it as a matter of principle that the death penalty is a social good, then you must be willing to accept some level of error to achieve that social good. It would be tragic if we executed an innocent man -- hasn't happened yet -- but I would still take a mend it don't end it approach in response (unless I was the one executed). There's nothing wrong with working very hard to keep that level as low as conceivably possible, but the only way to guarantee no errors is to abolish capital punishment entirely."

The problem with Goldberg's position, however, is that his little joke parenthetical actually undermines his entire argument. You see, it is extremely easy to say that the risk of executing an innocent person is acceptable, so long as you aren't at risk of being that innocent person. That's right, go ahead, it's OK to wrongfully take someone else's life. Oh well, it happens. So long as the risk is low, it's outweighed by the benefit. But if I'm in the dock, then, of course, the calculus changes.

Of course, Goldberg, a member of a prominent Washington family, is never going to be in that position. Indeed, it is almost always only those who are poor or with lousy legal representation who get the death penalty (except for the occasional Tim McVeigh in the high profile case). If Goldberg is ever falsely accused of murder, he'll get the best defense possible and will be able to get off or at least escape the death penalty. (O.J. Simpson, if you remember, was acquitted despite pretty clear evidence of his guilt, and the prosecutors did not even seek the death penalty against him, owing to his wealth and celebrity status.) Saying that it's worth it for someone else to sacrifice his or her life for one's ideological position is not particularly impressive reasoning. Indeed, it's exactly the sort of instrumental reasoning with respect to human life that conservatives tend to oppose when the issue is abortion or stem cells.

The great philosopher John Rawls died about a month ago. His great insight was that a rule is only fair if we would choose that rule behind a "veil of ignorance", i.e., not knowing yet what position in society we would occupy. I doubt that Goldberg would be so quick to defend erroneous executions if he did not know whether he might be in the class of persons that might face such executions.
posted by Dilan at 7:06 PM

 
THE GOLDEN FRAUDS:
It's offically Oscar season. (If you didn't know, the season starts at Christmas (the deadline for movies to be released in order to be considered for that year's Academy Awards) and runs through the winter to the end of March, when the Academy Awards take place. This year's show is on March 23. In future years, the show is going to be moved back into February to shorten the campaign season.) You will undoubtedly see movie advertisements during this period which tout the number of Golden Globe nominations that a picture receives. The Globes have turned into the motion picture industry's unofficial Oscar preview night. But you should pay no attention to Golden Globe nominations when choosing how to spend your 9 bucks. The Globes are a complete fraud.

The Globes are one of many awards shows that hand out trophies for the best movies, actors, directors, and writers each year. The Globes are given out by the Hollywood Foreign Press Association, which basically consists of the foreign equivalent of the sychophantic reporters who work for publications such as Us Magazine and the E! network and ask completely inoffensive questions of celebrities. Nobody should or would care what they think about movies, except that they have cynically entered into a symbiotic relationship with the entertainment industry to serve each others' purposes. Indeed, the track record of the Globes has not been good, with the horrible "Evita" getting nominations and Pia Zadora once winning an award.

The symbiosis functions as follows: the Foreign Press, of course, wants attention for their awards show, which translates into having big stars and studios granting them access and giving them gifts and junkets, as well as a fat contract with NBC. The industry, on the other hand, wants something that will help them sustain Oscar hype for three months and that will put butts in the seats. The Globes serve that purpose perfectly. The awards are calendared to occur just about at the same time as Oscar nominations, while Globe nominations are announced way back in December. Of course, it is likely that the nominators in the HFPA haven't seen most of the movies up for consideration when they are required to turn in their nominations (especially since many contending films haven't even been released yet at that point), but who cares? It's publicity, baby! (The fact that nominators haven't seen the films probably was a factor in Evita getting those nominations a few years back.) And that publicity comes at exactly the right time-- all the serious movies that nobody has heard about but which might win Oscars come out in December, and what better way to give the movie instant legitimacy than to put "5 Golden Globe Nominations including Best Picture" in the ad? Voila, instant cache!

And as for those nominations-- it will help you to read the fine print. You see, the Golden Globes have twice as many nominations in each category as the Oscars do. They do this by splitting everything up between "dramas" and "comedies", whereas the Oscar just has one category for "Best Picture", "Best Actor", etc. The studios, in their advertisements, go to ridiculous lengths to conceal this. In their print ads, the words "GOLDEN GLOBE NOMINEE: BEST ACTOR" might be written in bold 32 point type, with the word "(Drama)" written sideways in 10 point type. In radio ads, they don't even mention the qualification: I just heard an ad that said "and now it's been nominated for a Golden Globe for Best Picture of the Year". Of course, there is no such category-- there is only "Best Picture (Drama)" and "Best Picture (Comedy)".

This, of course, serves the industry's purposes quite well, because it doubles the number of films that qualify as "Oscar contenders" and implies that there are a lot more good films out there than there usually are. This is very important because there are many moviegoers who make it a point to see the Oscar contenders each winter. Thanks to the Globes, the industry may sell these people twice as many tickets.

The bottom line is that you should pay no attention to the Globes. If you are interested in paying attention to the Oscar race, wait until the Oscar nominations actually come out. Then be my guest and see the films. But ignore the Hollywood Foreign Press Association's annual shindig. It's just an elaborate scheme to separate you from your pocketbook.
posted by Dilan at 6:51 PM

 
WHAT'S IMMORAL ABOUT ILLEGAL IMMIGRATION?
Here in Southern California, there is obviously a huge disconnect between how elites view immigration and how the masses (especially whites) view it. This can be seen every time the Los Angeles Times runs a sympathetic story about an illegal immigrant. The paper have run several stories about the heartbreaking lives of undocumented children, who are abused by alien smugglers and treated harshly by the INS (including imprisonment with the most dangerous criminals in squalid jails, as well as being denied access to counsel, even to the absurdity of a 1 1/2 year old child making an appearance in an immigration court without a lawyer). Each time, the paper gets letters (probably many more than are actually printed) stating that it is wrong for the paper to even run sympathetic stories about immigrants, that these people are criminals and the only solution is the harshest treatment possible along with immediate deportation and the sealing of our southern border.

Leaving aside the practical difficulties of this position, I think these letters are indicative of a public that is so viscerally offended by illegal immigration (I won't speculate on the reasons, but they could include racial stereotyping, fear of no longer being in the majority, fear of losing one's job to cheap labor, and fear of terrorism and crime) that there is no room left for ordinary human compassion. The idea that anyone can write a letter, as Laura Ellen Malkhoo, of Huntington Beach, California, does in the January 7, 2003 LA Times, responding to an article that told the story of the 1 1/2 year old illegal immigrant who made a court appearance without a lawyer, by saying, as Malkhoo does, that "[t]he children are just as much criminals as our own U.S.-citizen juvenile deliquents and should be housed in juvenile detention" reveals an open sore.

I wonder whether these folks have ever thought about the moral dimensions of the illegal immigration issue. (Note that this is a fine example of how religion and morality are two different things-- I would bet most of these letter-writers would claim to be religious, but few have read anything by Kant.) Malkhoo states, as most of the other letter-writers have, that "the key word here is 'illegal.'". No, Ms. Malkhoo, it isn't. As anyone who has thought about ethics knows, legality and morality are two different things. Martin Luther King and Gandhi famously demonstrated that not only is it sometimes ethical to disobey the law, but that sometimes one has a moral duty to do so. Similarly, and on a smaller scale, no parent would think twice about speeding and running red lights to get a gravely injured child to a hospital.

So what is so wrong with crossing borders to feed your family? Not legally-- I know perfectly well it is illegal. But morally. Would these people say that a people who stow away on a ship to escape famine in Kim Jong Il's North Korea are common criminals? Would they say that a starving kid who did so is the equivalent of a juvenile delinquent? So why is it that people who come here to build a better life for their families are seen as the moral equivalent of theives and muggers? There are only two possibilities: either the folks who repeat these mantras, over and over, have never really thought about the moral issue (and what they would do if they were in the immigrants' place-- a key moral consideration according to the late, great ethicist John Rawls), or they have thought about it and know that they have no moral argument and therefore resort to the only argument that they have, that it is illegal.

Either way, I don't see a democratic solution to this. The California voting public passed vast sanctions against illegal immigrants in 1994, and they would do it again if they could. Thankfully, the measure, Proposition 187, was thrown out by the courts. Only the undemocratic courts stand between where we are now and simple barbarism on the issue of the treatment of immigrants.
posted by Dilan at 12:53 PM

 
THE MORMONS AND THE MODERN NATURAL SCIENCES:
An interesting controversy has sprung up involving a professor who is a member of the Church of Jesus Christ of Latter-Day Saints and who sought to show genetic links between pre-Columbian Native American tribes and White Americans. I am no expert on Mormon theology, but as I understand it, the Book of Mormon, which was revealed to the Prophet Joseph Smith by a messenger of God, set forth a history of pre-Columbian America where Jesus visited and ministered to tribes after his crucifixion and resurrection in the Middle East, and those who followed him were fair-skinned and God's chosen people. (This explains the Church's resistance, until relatively recently, in according blacks the opportunity to attain the priesthood-- the theology was that darker-skinned people bore the "mark of Cain" in recognition of the darker-skinned tribes' rejection of Jesus' teaching when he visited the Americas.)

The professor, as I noted, looked for genetic links between native American fossils and Caucasians, attempting to prove that the Book of Mormon was truthful in recounting whites living in America before European settlement. Unfortunately, his research instead led him to conclude that Scripture was incorrect and that no whites lived in America before the Europeans came. When he made his conclusions public, the Church initiated proceedings to discipline, and perhaps excommunicate, the professor.

This is not the first clash between Joseph Smith's revealed word and scientific truth. One of the important Mormon Scriptures, the "Pearl of Great Price", contains the "Book of Abraham", which Smith claimed to have translated from Egyptian hyroglyphics using special lenses. However, what Smith claimed were the original Egyptian texts were examined by modern Egyptologists, and they turned out to be ordinary funerary offerings, not Mormon Scriptures.

Obviously, the Mormons should be heartily condemned for their assaults on academic freedom and the seeking of scientific truth. But beneath that, I feel a certain sympathy for the Mormons. Their Church is less than 200 years old and has grown very fast, now claiming millions of members. Salt Lake City, settled by Mormon Pioneers led by Prophet Brigham Young, is an extremely impressive, beautiful and vibrant city which just hosted a successful Winter Olympics. Brigham Young University not only has excellent academic programs but also boasts a top-rate athletic program; their football team has even won a national championship. And they have overcome their prior racial discrimination to become one of the most diverse of American religions; no longer are Mormons always white suburbanites from large families, as they once were. They have had an amazing run.

But the reason I feel sympathy is because the youth of their religion puts them at an extreme disadvantage with respect to the interaction of science and their religion. All religions, of course, clash with science to some extent; only the most fundamentalist Jews and Christians, for instance, still believe that the earth was populated in the sequence and in the timeframe set forth in Genesis. But younger religions have it worse, because not only does science call into question their beliefs regarding events at the beginning of history, but also the more recent events set forth in their texts.

To see this, imagine if Christ had been executed in the 19th Century, rather than 2000 years ago. That would likely mean that Christ would have identifiable living distant relatives. Bodies could be exumed, and DNA compared, to show that "the Messiah" was in fact still buried in the ground and no resurrection had occurred. The facts relating to miracles could be investigated, and secular explanations proffered. It would be possible to show (either through genetics or the fossil record) that animals who never made it onto Noah's Ark nonetheless survived the flood and reproduced. Contemporaneous reports of events set forth in Scripture would have appeared in newspapers and magazines, calling religious parables and legends into question.

This is what the Mormons face, not because their religion is any less true than Judaism, Christianity, or Islam, but simply because it came around later and is thus more amenable to scientific scrutiny. These days, of course, they react by shutting down inquiry by practicing church members; that, of course, is just going to shift the inquiry over to more skeptical non-members. In the long term, the Mormons will have to adopt a more flexible view with respect to the truth of their holy texts, just as many Christians and Jews no longer believe in the literal truth of their Scriptures at least as to matters such as evolution and the fossil record. But there is also a certain smugness out there, especially among some evangelical Christians who view the Mormons as heretics and who are seizing on these findings as a way to bring Mormons "back to Christ". On a theolgical level, the problem for Mormons is not that science has proven their sacred texts to be incorrect; it is that science has that capability to a greater extent than it does with older religions.
posted by Dilan at 6:59 PM

 
SODOMY STATUTES AND THE HARM OF UNENFORCED LAWS:
Imagine if you lived in a town with the most restrictive sort of Sunday blue law, which essentially prohibited any public or commercial activity on Sunday other than going to church, with a penalty of six months in jail for the first offense and prison time for repeat offenders. The law was passed in 1780, and has not been enforced in 55 years. As a result, townsfolk engage in all sorts of activities that would be prohibited under the law, such as operating a movie theater, staging plays and sports events, opening the local stores and restaurants, playing games and picnicking in the park, publishing a newspaper, and anything else they might choose to do. There have been sporadic attempts to repeal the law, making the argument that a statute that is so routinely ignored and is never enforced should not be on the books. However, a vocal minority of religious conservatives who care deeply about the law have managed to block all attempts at repeal, arguing that even if the law isn't enforced, it reflects the fact that it is immoral not to honor the Sabbath, and the supporters of repeal are Godless hedonists who are opposed to one of this nation's great Judeo-Christian moral traditions.

This is the perfect analogy to the sodomy laws of many states, with the exception that some of the laws (though not all of them) apply only to homosexual sodomy and thus only criminalize the activities of a minority (other sodomy laws, however, apply to oral or anal sex between same-sex or opposite-sex couples, and thus criminalize the activities of almost every sexually active adult). Sodomy laws are almost never enforced against those having consensual sex, but they are difficult to repeal because the religious right is just about the only group that cares much about them, and they label anyone who attacks the laws as "anti-family" or anti-God, because their religious beliefs judge homosexual conduct to be a mortal sin. Of course, gay rights groups have attempted to repeal such laws, but in many states, gays have little or no political power, and they have bigger fish to fry anyway; the fact that the laws are generally not enforced means that they present a more theoretical threat as compared to the actual threat of things like employment discrimination and the denial of the benefits of marriage.

So the laws stay on the books. And they are not harmless. First of all, they do chill perfectly acceptable conduct. There are some people out there (I might call them "anal-retentive" but I don't want to make a bad pun here) who always try to follow the law, either because they are paranoid that the law will start being enforced or because they don't believe that it is right to knowingly break it. There is also always the threat that some day, a prosecutor, or a majority, might decide to start enforcing these laws again. Moreover, all unenforced laws (and there are a lot of them-- some having to do with silly or obsolete issues such as the duty to hitch your horse to the hitching post on the streetcorner) at the very least clutter our statute books, making it more difficult for an average citizen to learn what the law is and to conform his or her conduct to the law. Finally, the precise point of moral condemnation that makes the religious right support anti-sodomy laws is an important reason for their repeal-- the government should have no business engaging in the symbolic condemnation of private conduct solely on the ground of its supposed immorality.

As I said earlier, it is often difficult to overturn these laws in the legislature. What about in the courts? The problem with court challenges is originalism; the Constitution was written at a time when these statutes were enforced and were generally considered a legitimate exercise of state power. So no originalist worth his or her salt can say that a sodomy statute violates due process or equal protection. Nonetheless, those with more liberal judicial philosophies can find an abundance of theories for invalidating these laws, including that they violate due process by singling out a "discrete and insular minority" for harm or by invading the right to privacy, and that the violate equal protection by making irrational classifications between homosexuals and hetrosexuals, or between different sex acts. Indeed, a challenge to a Texas sodomy law has been brought to the US Supreme Court, and this may give the Court an opportunity to overturn its poorly-reasoned 1986 decision in Bowers v. Hardwick, where the Court upheld a Georgia statute with a 20 year prison term for sodomy on the ground that a state government has the power to criminalize anything the state feels is immoral. (Since that time, the Court's composition has changed and the Court has overturned a Colorado anti-gay rights statute with reasoning that certainly calls Bowers into question.)

But the political science questions are as troubling as the legal questions here. The fact that a democracy can produce laws that criminalize the harmless conduct of a majority of the voters certainly seems like a flaw in the system. One wonders whether, at least as to those laws that criminalize the sex practices of a majority of citizens, the answer might not be to start actually enforcing the laws. Then maybe the citizenry will learn that it is not wise to use the awesome power of imprisonment to make silly and anachronistic moral pronouncements.
posted by Dilan at 3:00 PM

 
CHAVEZ V. MARTINEZ AND MIRANDA:

The Supreme Court is about to hear the latest attempt by police, prosecutors, and conservative activists to overturn the famous 1966 decision in Miranda v. Arizona. You might remember that a couple of years ago, in a case called Dickerson v. United States, an activist panel of judges on the United States Court of Appeals for the Fourth Circuit chose to ignore Miranda and declare that a statute that Congress passed in 1968 and which had almost never been invoked in subsequent cases had actually overturned Miranda and we just didn't know it for 30 years. The Supreme Court emphatically reversed the Fourth Circuit, in a 7-2 decision, with Chief Justice Rehnquist, no fan of Miranda in the past, writing the majority opinion.

Now comes a second attempt, this time taking a slightly different tack. Under 42 U.S.C. Section 1983, a statute passed after the Civil War, a citizen can sue state and local officials for violating his or her constitutional rights. The Supreme Court added an additional requirement in the 1960's and 1970's that the right be "clearly established"; the idea being that officials should not be punished for not anticipating the development of newly-found constitutional rights that did not yet exist at the time that they engaged in the conduct complained of in the suit.

Miranda contains two basic requirements, which have both been clearly established since the original decision in 1966: (1) that police give the now famous warnings before commencing a custodial interrogation of a suspect, and (2) that, if the suspect invokes either the right to remain silent or the right to counsel, the interrogation must cease. The plaintiff in Chavez v. Martinez was interrogated about his alleged involvement in an officer shooting while he was in his hospital bed and in terrible pain due to a fresh gunshot wound, and despite the fact that he had repeatedly asked that the interrogation stop because he was in so much pain. So, the case for liability ought to be a slam dunk. Indeed, the Ninth Circuit Court of Appeals followed its earlier, established precedents in finding the officer liable.

The officer has taken the case to the Supreme Court, supported by conservative groups and prosecutors, arguing that Miranda actually just stands for the proposition that when a criminal suspect is tried, no statement taken without warnings or after an invocation of the Miranda rights by the suspect may be used. In other words, officers, have the right to flout Miranda's requirements, as long as they are willing to give up the right to use the statement at trial.

This is, to put it bluntly, a highly revisionist view of Miranda. In fact, the Miranda opinion derived its novel legal rule (before then, courts would look at all the circumstances to determine if a statement given in custody was voluntary) from dissatisfaction with oppressive police interrogation tactics, which are described in great detail in the Miranda opinion. The Court's concern was not that these statements were used at trial; rather, the Court's concern was that police were using oppressive tactics such as incommunicado interrogations and psychological torture to obtain confessions of questionable reliability. If the officer's argument is adopted in the Chavez case, not even an innocent person subjected to these tactics would be able to sue the officers or the police department for using them. (The officer's lawyers do concede that conduct that is so oppressive as to "shock the conscience", such as actual physical torture, might be prohibited. But in practice that test does not provide much of a deterrent to police departments, because it is very hard to meet and is reserved for the most heinous of conduct.)

Further, in addition to being historically inaccurate, the practical effect of a "Miranda only prohibits the use of statements at trial" rule would simply be widespread disobedience of Miranda. An established exception allows un-Mirandized statements to be used by prosecutors to "impeach" suspects, i.e., to expose that the criminal defendant is lying in his or her testimony. The idea behind this is that the purpose of a trial is to seek the truth, and the Miranda right should not function as a sword that allows a defendant to perjure him- or herself without consequence. However, the combination of this with a no-civil-liability rule is predictable. A few years ago, it was discovered that numerous police departments in California were intentionally questioning "outside Miranda", as they put it, to obtain impeachment evidence (or to keep the defendant from testifying in his or her own defense based on the threat that the statements given to interrogators could be used against the defendant). These officers would even sometimes openly say to the suspects something to the effect of "you've just invoked your Miranda rights, so we can't use your statement against you, so tell us what really happened". This was one of the cases, prior to Chavez v. Martinez, in which the Ninth Circuit developed its rule permitting civil liability for Miranda violations. If the Supreme Court rules in the officer's favor, no police department will follow Miranda; there is no downside to violating it (because of no civil liability), and a tremendous upside in obtaining statements that can be used against the suspect if he or she testifies in his or her own defense.

The officer's lawyers, along with some important scholars such as Eugene Volokh, argue that civil liability would interfere with the war on terrorism, because officers may want to question outside Miranda to prevent future terrorist acts rather than to obtain evidence against the suspect. Here's the link to Volokh's argument:

http://volokh.blogspot.com/2002_11_24_volokh_archive.html#85715207


There are at least three responses to this. First, and most importantly, in 1984 the US Supreme Court recognized in New York v. Quarles that there was a "public safety" exception to Miranda that allows police to question suspects without warnings when there is an imminent threat to public safety (in that case, it was to find out where a weapon that remained at large was). Any questioning of a terror suspect to determine whether and what imminent threats to public safety exists would not be unconstitutional under Quarles. Second, the war on terrorism is mostly a federal concern, and civil liability for federal officers is controlled by the Bivens doctrine, not 42 U.S.C. Section 1983. The importance of this is that Bivens recognizes that there can be "special factors" in particular cases that "counsel hesitation" and can permit the denial of liability. Certainly the desire to prevent imminent terror attacks would be such a "special factor". Third, even if a terror suspect's claim for damages for a Miranda violation went to a jury, it isn't likely that a jury would award much money, or indeed any money, to such a plaintiff. The connection between the Chavez case and terrorism is ephemeral, and serves as a nice reminder that there are some people out there who would like to wrap their pet projects (like bringing back the "good old days" of overly aggressive police interrogation) in the war on terror.
posted by Dilan at 12:26 PM

 
THE DIFFERENCE BETWEEN NO JURISDICTION AND CONSTITUTIONAL:
There is an underreported story about the Bush Administration's plan to use military commissions to try terrorist suspects. The Bush folks swear up and down that the commissions are constitutionally permissible; they cite the case of Ex Parte Quirin, where such commissions were upheld during World War II (though note that World War II was a declared war and that Congress had authorized the military tribunals in the war declaration).

But check out this story:

http://www.washingtonpost.com/wp-dyn/articles/A2778-2002Nov17.htm

The key paragraphs are these, which discuss the chatter that has been heard recently about dismissing civilian court charges against Zacharias Mussaoui and taking him to Cuba for a military trial:

"Moussaoui, who is accused of conspiring with Binalshibh in the Sept. 11 attacks, has said he wants to call Binalshibh as a witness in his trial. That prospect, coupled with the recent decision of Justice Department officials to take a more active role in the handling of his case, has led to the theory that federal officials will move to dismiss the case and put Moussaoui, who is defending himself with the aid of court-appointed lawyers, before a military tribunal.

"But government sources said the Justice Department has no interest in doing so. Because Moussaoui is in this country, he could try to fight such a move in federal court. That could open the tribunal process to a constitutional challenge, something the Bush administration wants to avoid."

These paragraphs indicate that the Bush Administration isn't so sure of the constitutionality of the military tribunals after all. You see, under Johnson v. Eisentrager, a 1950 Supreme Court case, the courts arguably have no jurisdiction to hear habeas corpus claims made by enemy aliens who are outside the territorial limits of the United States. Johnson has nothing to do with the constitutionality of military tribunals, or anything else; it simply deprives the courts of jurisdiction to hear a certain type of habeas corpus claim by a certain type of military detainee. As the Washington Post reports, the last thing the Bush Administration wants to do is administer a military tribunal to anyone present in the United States, because then the Johnson jurisdictional bar would not be present, and the courts could rule on the merits of the of the constitutionality of military tribunals. Of course, this wouldn't trouble the Bush Administration if they were really sure that the tribunals, which were never specifically authorized by Congress, despite Congress' specifically enumerated power under the Constitutional to make rules for captures on land and water, were actually constitutional. It is precisely because the tribunals are likely unconstitutional that the Bush administration has no intention of doing anything that might allow a civil court challenge to a tribunal's decision.

(I might add that the Bush Administration lied about this point when it was selling its tribunal plan to the country, claiming that the defendants had a civilian court appeal route because they could always take their claims to the US Supreme Court. They may do so, but the government is prepared to argue that the Supreme Court has no power to hear the case. Some right of appeal.)
posted by Dilan at 9:20 PM

 
THE FLAT-EARTHERS AND CONDOMS:
Take a look at this article and tell me that the Flat Earth Society hasn't taken over the White House:

http://www.newsday.com/news/opinion/ny-vpcoc143002251nov14,0,7803300.column

President Bush's base includes a fair number of people who believe that all nonmarital sex, gay or straight, casual or loving, promiscuous, monogamous, or onanistic, is morally wrong. That is a silly, anachronistic moral belief, rejected in practice if not in ideology by the vast majority of the country, but it is their's to have if they wish to hold it. But few things anger me more than when these sorts of beliefs end up corrupting the sciences. Twenty years ago, they tried to do it with evolution, by enacting a "balanced treatment" law in Lousiana that required the teaching of "creation science" alongside evolution, even though "creation science" was nothing more than teaching that scientific evidence either supported or did not refute the natural history recounted in the Bible. Thankfully, the US Supreme Court struck that curriculum down as unconstitutional.

Now, the religious right is waging war on condoms, making false and stupid statements in an effort to scare people away from relying on them. Let's be very clear on this: anyone who says that condoms are not effective against disease or pregnancy is either an idiot or a liar. That person is not a scientist. I am not a scientist myself, but I am able to say that with 100 percent conviction. A condom is a physical barrier. Yes it can break. Yes it can slip off. Yes people forget to use them sometimes, or engage in risky activities such as oral sex without one. Yes there are some diseases that transmit from or to the base of the penis and are thus transmittable despite the use of a condom. But a person who claims or implies that a condom is not at all effective against disease or pregnancy is akin to someone who claims that a fence doesn't keep out burglars. The claim refutes itself.

The White House's campaign, therefore, is nothing short of disinformation. Taking truthful information off of websites, reassessing the government's position, etc., simply means that the White House does not wish to tell the truth on this subject.

All this would be an interesting study in throwing a bit of red meat to the political base, if condoms weren't such a life-and-death issue. Unwanted pregnacies destroy the lives of women and children, they trap people in loveless and abusive relationships, they cause people to drop out of school and take dead-end jobs or go on welfare, they lead to abortions that conservatives claim to loathe. Sexually transmitted diseases are a life and death issue as well.

Already, schools that receive federal sex education funds are not allowed to mention condoms in their sex ed. classes, except to say that they fail, slip, and break. How many kids might decide it's not worth it to use a condom because of that incredibly misleading information? How many might end up pregnant, or HIV positive? If the official federal government position is that condoms are not effective, will condom manufacturers be required to take the truthful claims that they are off of their products? Will condoms have to be taken off the market? It's not a silly question; the federal Pure Food and Drug law requires that over the counter medical products be safe and effective; if the government decides that condoms are ineffective, they could be prohibited.

And the truth is that this has nothing to do with science. The religious right likes the idea of sex having consequences, because they feel: (1) that such consequences will deter nonmarital sex, and (2) that even if they do not deter such sex, the people who engage in such sinful activities are only getting their just deserts. Remember that many people claimed not so long ago that HIV was God's punishment for homosexuality, and Jerry Falwell and Pat Robertson also said that 9/11 was a direct result of God's "withdrawing His protection" of the US due to our tolerance of homosexuals. For the religious right, devices that prevent pregnancy and disease are bad things. (I should add they have other biblical reasons for this position, including a belief that the agrarian imperative that humans go forth and multiply still has application in the modern world.)

There are also related flat earth policies that spring from the same impulses of religious conservatives, including, specifically, an opposition to international family planning programs that is supposedly based on language that might condone abortion but in fact is consistent and unwavering whatever language is put in the program disclaiming support for abortion. Religious conservatives oppose birth control as well as abortion, so they use the more controversial issue of abortion as a cover for their programs that continue to foist poverty and patriarchy on the third world by denying them access to contraception. (This was a central facet of Christopher Hitchens' justly famous critique of Mother Theresa.) Another example is the push to force welfare recipients into marriage. The reason welfare recipients don't stay with the fathers of their children is usually due to the fathers' abuse or irresponsibility, or the lack of love between the partners. Government-enforced shotgun marriages do nothing for poor women except satisfy the moral scolds who hate the idea that some unmarried woman out there might be having sex.)

But the religious right, and its supplicants in the Bush administration, knows it can't win on the moral issue. Although many folks in the South espouse these traditional values (though there is no evidence that they actually practice what they preach), and even Clinton was careful not to openly endorse masturbation (he fired Joycelyn Elders over it) or sexual freedom (Saturday Night Bill practiced it, but Sunday Morning William always was contrite for it), any politician who campaigned on trying to stop people from having sex outside of marriage would be killed in the polls. So instead of the honest, losing argument that condoms are immoral, we get the dishonest, unscientific argument that condoms don't prevent pregnancy or disease.

Science is a threat to religious belief, no doubt about it. The fact that we can now enjoy sex with anyone we want to while running only a minimal risk of disease or pregnancy is a tremendous advance. Think of all the people who are in better relationships, who derive more sexual satisfaction, who have gotten in touch with their bodies and their orientations and have found the people who really make them happy because of the fact that you no longer have to risk killing yourself or ruining your life by having sex. Religious zealots who have political power are dangerous precisely because they will fight to stop the advance of science, harming all of us, including those who do not share their religious belief and whose lives they have no right to ruin. But fighting scientific progress in no way changes scientific truth. Zealots placed Galileo under house arrest for life for his heretical conclusion that the earth revolved around the sun. As the sentence was read, Galileo is said to have muttered "e pur si muove", which translates to "and still it moves". All the while the White House and its supporters scream and yell about the ineffectiveness of condoms, they will continue to prevent pregnancies and save lives. Truth marches on.
posted by Dilan at 8:53 PM

 
THE TELLING CONSERVATIVE ARGUMENT THAT "10 PERCENT" PLANS ARE UNCONSTITUTIONAL:
Affirmative action in college admissions has long been an issue where people's concern about the issue is disproportionate to the issue's importance. The truth is, only a few white and asian students every year at any given college are denied admission, and in most cases, the resulting injury is merely that such students are forced to go to a slightly less selective school. It's really not that big of a deal. But it inflames people, because it involves race, merit, and the madly competitive world of college admissions. Thus, judging by the behavior of civil rights organizations, you would think that this issue was really the make or break issue in terms of the advancement of the interests of minorities (rather than anti-poverty programs, more humane policing, or enforcement of antidiscrimination laws in such areas as housing and employment). Similarly, judging by the rhetoric of white conservatives, you would think that the advocacy of these programs discredits the civil rights establishment and represents a fundamental betrayal of Martin Luther King's legacy.

I am personally ambivalent about affirmative action. In an ideal world, I would hand out admissions to selective colleges solely on merit-- the recent revalations about how people secure spots for their children in the most selective preschools in New York by making huge monetary and nonmonetary contributions is a great example of the sort of corruption that is engendered when admissions committees have lots of discretion. And I think it is an outrage that the University of California continues to dole out admissions to its most selective schools to big donors. Standardized tests and lotteries have their drawbacks, but at least they make it harder for the not-so-gifted rich to buy their way into the best colleges and careers.

But we don't live in an ideal world, and in the world we live in, where atheletes, musicians, children of big donors, "legacies", and all sorts of others get in with substandard grades, letting a few minorities in offends no great principle. There are, however, compelling arguments against affirmative action in admissions that don't have anything to do with principle; specifically, such programs tend to benefit the most well-off of minorities, because it is very difficult for someone who has grown up in a poor neighborhood and survived 12 years of substandard education, with outdated books, schools full of guns and drugs, and a "Blackboard Jungle" learning atmosphere to suddenly score close enough to the cut-off SAT score to be put over the top by affirmative action. The black and hispanic middle class do very well, though.

In the wake of court rulings and ballot initiatives restricting affirmative action, a good compromise has arrived however; the "1 percent" or "4 percent" or "10 percent" solution. These programs guarantee admission into selective public universities to all those within the top X percent of their high school graduating class. I favor the compromise because it reaches down and picks up the poor kids who went to the lousy schools, rather than middle class minorities who really haven't been significantly disadvantaged. But the interesting thing is that I learned today that there is a strong conservative movement opposing such programs on constitutional grounds.

Read this post in an influential conservative weblog (stating, sensibly, that the X percent programs are constitutional), and then scroll down and read the feedback:

http://www.discriminations.us/archives/000257.html

Apparently, there are a lot of conservatives who believe that any government action that is intended to benefit blacks and hispanics, no matter how race-neutral, is unconstitutional. Blogger John Rosenberg answers that position well enough, but I find the whole discussion scary. The position that many conservatives apparently believe is that the Constitution is not only color-blind, but requires the continuation of white supremacy.

Put another way, all interest groups in a democracy are "rent seekers", i.e., they want the government to enact programs that benefit their particular group. Some of this rent seeking involves explicit preferences; there is a strong argument that such rent seeking by racial groups is constrained by the Fourteenth Amendment. But rent seeking also encompasses facially neutral legislation that nonetheless benefits the particular interest group. For instance, many farmers support relaxing the embargo with Cuba. That's a form of rent seeking, because the farmers' motivation is to increase their sales and their income. But that type of rent seeking is fundamentally different than a direct farm subsidy.

What the conservative responses on the discriminations blog seem to be indicating is that any effort by the government to improve the lot of blacks and hispanics is unconstitutional. Under that interpretation, the Fourteenth Amendment, intended to strip the badges of slavery and discrimination from blacks, actually prohibits any attempt to ameliorate the legacy of slavery. How that is different from out-and-out racism I do not know.
posted by Dilan at 7:09 PM

 
MORE ON THE ELECTION:
Check out my post in the Slate fray:

http://slate.msn.com/?id=3936&m=4930529
posted by Dilan at 9:26 AM

 
BUSH'S VICTORY:
Before saying anything about the election results, I have to start with the caveat. We all have a tendency to nationalize midterm congressional elections. This is really dumb, when you think about it. Contested congressional elections are decided by swing voters. Swing voters make up their minds at the last minute. And since they don't vote straight ticket, party affiliation, and specifically whether the President is of the same party as the candidate, isn't particularly important.

That said, everyone else is going to search for the meaning of the election results, and if I were to come up with a theory for this, it would be that something beats nothing every time. The modern Democratic party offers no alternative to the Republicans. Support for the Iraq war is a mile wide and an inch deep, yet few prominent Democrats oppose the war, and those who do don't trumpet it or run commercials on it or make it a part of their platform. As for tax cuts for the rich, when you bother to take 20 seconds to explain to a voter that the Bush tax cut is going in bulk to the richest 1 percent of the population, support evaporates quickly. But Tom Daschle can't whip up his troops to support cancelling future tax cuts-- quite the opposite, he encouraged those who opposed the cuts not to tell the public of their opposition, so as not to embarrass those Senators who voted for the tax cut.

The problem with the Daschle strategy should have been apparent long ago. If the opposition party brooks no serious opposition on the two major issues of the day, why should anyone vote for them. This election should be read as a repudiation of Dick Morris' triangulation strategy, which only worked when Republicans were openly supporting numerous extremist positions like abolishing the Department of Education and slashing Medicare benefits. Those days are gone. If the Democrats persist in being a second conservative party, they will continue to lose, over and over again, as befits an organization that offers no alternative to the voters.

I can't help but think of all those Democrats who bashed on Ralph Nader and his supporters for "costing" the incompetent right-winger Al Gore the presidency in 2000. Based on the Clinton record, Al Gore should have beaten Bush by 10 points (just as Bush 41 won in a landslide over Dukakis, running on the Reagan record), and Nader would have been a footnote. Gore lost because of his own incompetence, not because of Nader. And if the Democrats had nominated a candidate that actually stood for something, they would have carried the Nader voters in the first place.

I should note that despite running against the worst Republican candidate for anything I have ever seen in my life (Bill Simon), and despite a huge campaign warchest, Gov. Gray Davis, another member of the Al Gore wing of the Democratic Party, has only a 3 percent lead with 50 percent of the precincts reporting in the California Governor's race. Davis only has 46 percent of the vote, and a Green Party candidate, Peter Camejo, has 5 percent of the vote.

The Republican Party is a party of ideas. Tax cuts, building an empire, sacrificing of civil liberties to fight terrorism, privatizing social security and finding private sector solutions to the health care crisis, school choice, and less regulation of the private sector are all ideas. Many of them are wrong, but they are ideas. Except for school choice and social security, the national Democratic Party has no consistent and articulated position on any of these issues.

Taking strong positions on the issues will offend some swing voters. And it will certainly offend campaign contributors. But political tactics are only effective, in the long term, when they are engaged in the service of ideas. The fundamental problem with the Democratic Party, post-Clinton, is that tactics became the end, and not the means.
posted by Dilan at 11:22 PM

 
EXHIBIT 758 IN THE CASE AGAINST THE BUSH ADMINISTRATION'S HYPOCRISY ON SAUDI ARABIA:
Over the weekend, President Bush met with Indonesian President Megawati Sukarnoputri, and while he praised the steps taken by the Indonesians to fight terrorism in the wake of the bombing of the dance club in Bali, he was reported by the AP to have said that the Indonesians had a long way to go.

One simple question: have you ever heard Bush say that the Saudi Arabians have a long way to go? Quite the contrary; Colin Powell has praised the Saudis for fully cooperating on the war on terror. The folks in the Bush Administration, and the conservatives that support it, pride themselves on their "moral clarity". But they've got this one exactly backwards. Megawati's government in Indonesia is exactly the sort of thing we should be celebrating and holding out as an example to the rest of the Islamic world: a democratically elected government in a difficult to govern, predonimantly Islamic country doing its best to manage hundreds of islands with different and feuding populations. Add to that the fact that the President is a woman!

Meanwhile, our "friends" the Saudis run one of the most oppressive countries in the world for a woman to live in-- polygyny (but not polyandry), arranged marriage, enforced submission to husbands and fathers, no right to drive or to ride in the front seat of a car, and the forced wearing of the chador, a covering only slightly less oppressive than the burqa (the Saudis are gracious enough to let women expose their eyes). The Saudi government has never held a free election, is made up of a clan that plays by a different set of rules than the rest of the population (stealing millions of dollars, and engaging in huge amounts of adultry and fornication, both of which would merit severe punishments under Islamic law if done by a commoner) and whose members actually believe that they are superior and more fit to govern than the rest of the population due to their bloodline. (Monarchism is, at bottom, a form of racism, just more narrowly drawn to encompass a particular clan or family rather than an entire race.) And most importantly, unlike Megawati, who, for all of her faults, is actually trying to do something about terrorism in a very difficult-to-control country, the Saudis openly support terrorism, with payments of protection money to Al Qaeda, telethons to suicide bombers, and a state-sponsored propaganda and religious education campaign that spews anti-Americanism, anti-Zionism, and anti-Semitism.

Conservatives are often driven up the wall when liberals condemn Bush and Cheney, and his cohorts, for their backgrounds in the oil industry. But the Bush / Cheney deference towards Saudi Arabia flows directly from that background. (The only other inference is even worse-- that Bush sees a kinship with the snobbish obscenely rich plutocrats of another society.) If Indonesia had one-fourth as much oil as the Saudis control, Megawati would surely be seen by Bush as having done enough to fight terrorism.
posted by Dilan at 8:32 AM

 
WELL, MAYBE NOT!
Looks like the archives are gone again.

Here are the links to the archives:

September 2002: http://dilan.blogspot.com/2002_09_01_dilan_archive.html
August 2002: http://dilan.blogspot.com/2002_08_01_dilan_archive.html
July 2002: http://dilan.blogspot.com/2002_07_01_dilan_archive.html
June 2002: http://dilan.blogspot.com/2002_06_01_dilan_archive.html
posted by Dilan at 7:13 PM

 
COPYRIGHT TERM EXTENSION:
Last week, one of the most interesting recent Supreme Court cases was argued. The case involves an issue that has been extensively discussed by copyright scholars, but curiously has never reached the Supreme Court before-- whether the extension of copyright terms is constitutional.

To understand this issue, here is a little background. A copyright is a limited monopoly right, i.e., the copyright holder (i.e., the author or someone who the author sells or gives the rights to), and only the copyright holder, has the right to exhibit, public, or perform a composition, or to make other compositions from it. (This is subject to some limitations not germane to the current discussion, such as the right of others to make "fair use" of the work, and the "first sale" doctrine that allows a buyer of a book to resell it without permission from the copyright holder.) Like a patent, a copyright is for a limited duration-- currently a copyright lasts the author's life plus 70 years (or 95 years for a work created by a corporation).

Congress' power to grant copyrights is contained in the Copyright Clause of the Constitution, which states that Congress has the power "To promote the Progress of Science..., by securing for limited Times to Authors... the exclusive Right to their... Writings". The first federal Copyright Act, passed in 1790, three years after the Constitution took effect, provided for a maximum 28 year copyright. Since 1790, Congress has on occasion extended the terms of copyright, both retroactively and prospectively, numerous times. Before the latest extension took effect, the term was life of the author plus 50 years (or 75 years for corporate works). That was due to an extension in 1978; before that, under a major copyright revision in 1909, the maximum term was 56 years.

The obnoxious thing about the latest copyright extension was that it was passed after extensive lobbying by Disney to protect Mickey Mouse, which was about five years from falling into the public domain. (Mickey was also fairly close to the public domain in 1978 when the last extension took effect.) There is no doubt that 20 years from now, Disney will be back lobbying for another extension.

Bad policy and big money politics aside, why is any of this important? Because of the constitutional provision I quoted above. First, and most importantly, the Congressional power to protect copyrights is not absolute but only extends to protection "for limited times". In other words, it is clear that a perpetual copyright term is impermissible. Further, a term that is effectively perpetual (e.g., 1 million years) would be equally impermissible. The question is, can Congress get around this by simply extending the term in bits and bites to ensure that Mickey never makes it into the public domain? The answer can't be yes-- a continually extended time is not "limited". Moreover, the preamble to the Copyright clause makes clear that the purpose is to "promote the progress of science"-- i.e., new works. Extending existing copyrights does nothing to create incentives to produce new works. Indeed, quite the opposite; it increases the monetary incentives to keep on exploiting the old rather than creating something fresh.

Nobody expected the Supreme Court to even review this case. The Court of Appeals had upheld the copyright statute, holding that Congress' power to set the term of copyrights was nearly complete. There was no other case going the other way (a split in the circuits is the usual reason for Supreme Court review). The Court must have taken the case because it believed it to be important, and quite possibly because at least four justices (the minimum number to grant review) believed that the lower court was wrong and the statute was unconstitutional. There are differing reports on what went on in oral argument; I have now read the transcript and think that the Court was tough on both sides. But I sincerely hope that the Court puts an end to this business of continually extending copyright terms. I actually think they had it right in 1790-- a 28 year monopoly is more than adequate compensation for a person's creative efforts. But life plus 70 just ensures that an author's often talentless and idle grandchildren, or some faceless corporation that obtained the rights, continues to get rich, while the public is denied the use of the work. This is lousy legislation, and it is not in any sense a "limited time".
posted by Dilan at 7:10 PM

 
OK, WE'RE BACK
All old posts are available by clicking on "Archives", above
posted by Dilan at 6:41 PM

 
I WAS HACKED!
I am trying to recover all my old posts and will get the site back up and running soon.
posted by Dilan at 6:39 PM