One Person's Opinion
A compendium of random thoughts regarding politics, society, feminism, sex, law, and anything else on my mind. POST YOUR COMMENTS BY CLICKING ON THE TIME INDICATOR BELOW THE POST YOU WISH TO COMMENT ON. RSS FEED AVAILABLE AT http://feeds.feedburner.com/Dilanblogspotcom
Attorney Shopping Links
Bag and Baggage
Ernie the Attorney
National Law Journal
Talking Points Memo
Tuesday, May 10, 2005
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.
Monday, May 09, 2005
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.
Sunday, May 08, 2005
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.
Thursday, May 05, 2005
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.
Wednesday, May 04, 2005
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.
Tuesday, May 03, 2005
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.
Monday, May 02, 2005
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.)