Southern Rumble

Alabama and Mississippi seem determined to wage a battle to death on which can forestall joining the 20th century for the longest period of time (we'll work on getting them to century 21 later).

In Alabama's corner, Legal Fiction provides a reminder of former Chief Justice Roy Moore's lawless antics while on the Alabama Supreme Court. To the state's credit, the judges kicked Moore out of office for ignoring a federal court order to take down his two-ton statue of the 10 commandments. To their immense detriment, the voters then elected Moore protege Tom Parker to the court, who ran explicitly on a 10 commandments platform. Judges who run based on ignoring the law? Sounds like judicial activism to me...

Of course, reckless disrespect for the constitution isn't the only thing that Parker had going for him. He also is a neo-confederate with links to several racist groups, including the Council for Conservative Citizens and the neo-secessionist League of the South.

And that isn't the only way Alabama reminds us that they hate black people! They also voted down a state constitutional amendment that would have stricken language in the constitution that mandated segregated schools, poll taxes, and asserted there was no right to a public education. Because 1954, 2004...what's the difference? But let's give a big hand to the Christian Coalition of Alabama, without whose opposition the amendment almost certainly would have passed. Way to spread Jesus' word!

In the face of all this, Mississippi has a tough task, and I admit they don't quite seem up to it. Their ace-in-hole is their celebration of Martin Luther King day, or should I say Martin Luther King/Robert E. Lee day (hat tip: The Moderate Voice). Because what is more logical than grouping together the greatest civil rights leader of our times, and the general who led the army which sought to preserve the enslavement of black people. It just makes sense.

So far, that's all I've found for Mississippi, which obviously doesn't hold a candle to the Alabamian antics. However, there's still plenty of time to come back! The title is still out there for the taking!

Central Values and Conservative Blindspots

Thought at the Meridian has written a post delving into the justification and rationale behind centrism (link: American Future. I agree with much of what TATM says. Like him, I am liberal on social issues but would be considered more "conservative" on foreign policy (I put in the quotations marks because I don't consider my position conservative at all, see here for details). This in particular was quite eloquent:

"Being centrist means to not want to buy the whole package of either Left or Right. It means being more concerned about issues than ideological consistency. A centrist position can hold strong principles, but it tries not to get tied down by stale ideologies...

Some people sneer at the centrist position. It is often said to be the viewpoint of the willy-nilly, wishy-washy and undecided. I strongly disagree with this view. I think that many people today don't want to, like I said, buy a whole ready-made package deal of leftist or rightist ideas. Many people hold leftist views on some issues, and rightist views on others. There is nothing strange or weak about this position. On the contrary, it takes careful consideration on every separate issue. I, for my own part, am more to the left when it comes to social justice-issues, but more to the right when it comes to foreign policy and the war on terror.

Instead of going to the extremes of the political scale, i. e. to the left or to the right, I prefer to go deeper into the centre. To delve down to the roots of things. A radically democratic view, if you like. Most centrists also have an instinctive dislike of political extremes and the all-too political, which is why so many centrists also are antitotalitarian, i. e. they combat extremism whatever shape it takes, be it Fascism, Nazism, Communism or Islamofascism."

The only quarrel I have with his otherwise excellent post is that he seems to only implicate the left for weakness in the war on terror (to his credit, he also takes a swipe at the isolationist right, but it is much smaller). He writes:

Today we face a new totalitarian threat: Islamofascism. This has not yet dawned upon the Left. Or rather, there is the Reactionary Left to whom it will never dawn, as they do not wish to know. Instead, they will try to support totalitarianism in opposition to "Western" or perhaps more commonly "US imperialism." Then there is the Liberal Left, who has turned out to be even more naive than I expected it to be, indirectly supporting tyrants and dictators, believing that "violence will only make things worse." The political quietism and pacifism of the Liberal Left, and the openly totalitarian and anti-democratic ideals of the Reactionary Left will risk undermining our Western democratic way of life if we don't start acting against these forces as well as against Islamofascism itself. So far, a great part of the Right has seemed to understand the totalitarian threat we're up against, except of course for the rabid, far-right "America first" isolationists who, like the Islamofascists, think that America is rotting from the inside because of the "decadence" going on there.

However, the right's ideological blindspots are as harmful to the war on terror as the left. First of all, the right still is stuck in its cold war glory days; it refuses to break out of the statecentric model which targets the "host states" of terror (Iraq, Afghanistan, Iran) rather than the terrorists themselves (al-Qaeda et. al.). I fleshed the point out in an earlier post:

In off-blog conversations about the Bush administration, I've argued that this presidency has, more than any Democrat, viewed the war on terror through a pre-9/11 mentality that emphasizes the importance of states rather than the non-state actors (IE: Al-Qaeda) that actually threaten us. In both Sudan and Afghanistan, terrorist groups have shown that they can survive and thrive without a supporting state structure (both of those countries had, at best, anemic central governments not in control of the whole country). Hence, the policy of attacking states rather than attacking terrorists is counterproductive, as Al-Qaeda can just "stick and move," dodging recrimination as we get bogged down in Iraq and Afghanistan and whatever other states we decide to intervene in.

Daniel Drezner sees this same problem at work in US policy towards Iran. After linking to an article which claimed that the US was trading the extrication of A.Q. Khan (the mastermind of Pakistan's blackmarket nuke trading ring) for support in any military action against Iran, Drezner notes:

"If this is true, it suggests the administration really believes that the threat posed by nuclear-armed states is greater than the threat posed by a black market proliferation network that could sell to states and non-state actors alike."

That's a very, very, scary thought, and shows a deep misunderstanding of the type of threat we face.

I listed off a plethora of other obstacles within conservative politics and ideology that prevent them from prosecuting the war on terror effectively. They get no political benefit from doing it, as the public sees them as strong on defense regardless of the particular policy stances they take. And ideologically, Conservative belief in free market principles and the inability of government to affect social change both hamper American efforts to defend our country and to defeat the root causes of terror, respectively. Looking over Bush's foreign policy and homeland security record, I see this pattern written all over. A lot of talk, a few high-profile initiatives, precious little substantive action at the detail level. And while it may be subtler, it isn't taking the threat of islamofascism any more seriously than the hard left.

Defending Friedman

Powerline approvingly links to Tom Friedman's latest column on Iraq. He, Powerline, and I all agree that the problems in the Arab world stem from corrupt, autocratic governments that deny freedom to their people. Hence, the US actions which have sought to change that situation--in Somalia, in Kuwait, in Afghanistan, and yes, in Iraq, are laudable. But Powerline is in despair: Why, they ask, why does Mr. Friedman still seek to blame President Bush for the problems we face?

Powerline thinks the only answer can be Friedman's partisan loyalty to the Democratic party. As usual, I'll have to let slide the audacity of Powerline accusing anyone of partisanship (and their usual defense, "they're the media, they're supposed to be objective!" doesn't fly here. Friedman's an editorialist, he can say whatever he wants), and just address the claim on it's merits.

Now, everyone at the table here apparently agrees that bringing Democracy to the Middle East is the only way to provide longterm solvency to the problem. The question is--is President Bush furthering that goal? Friedman says no, and I concur. Let's start with the obvious. Something has gone awry in Iraq. We weren't greeted with flowers, democracy didn't just sprout up like magic, and a few "dead-enders" has morphed into a large and growing insurgency. Something has gone wrong.

Now, this war is the Bush administration's baby. They orchastrated it, they set the policies, and they ran the operations. The responsibilty for what has happened rests squarely on their shoulders. Now, there are two conclusions one can draw from this. The first is that the Bush administration, somewhere along the line, screwed up. Badly. One can quibble about the details (Was it disbanding the army? Or focusing too much on mystical WMDs? Or not bringing enough troops? Or not lining up world support? Or refusing to secure the country in the invasion's aftermath? Or...etc), but obviously the Bush administration did something wrong, or else the situation wouldn't be what it is today. The second conclusion is that the Bush administration did everything right. That, in turn, suggests that the current chaos and mayham is the best case scenario that could have ever come out of Iraq. If that is the position Powerline wants to take, that's fine, but it would suggest to me that perhaps their favored policy option--invading countries to depose hostile and tyrannical leaders--isn't the panacea they've made it out to be. And if Iraq is the best we can do, then Powerline and I must part ways--I cannot reasonably support actions whose best case outcome is modern-day Iraq.

But Bush's flaws go beyond specific any policy faults we might find. Contrary to Powerline's assertion, Bush hasn't adopted the same view as Friedman as to the root causes of anti-American hatred. Friedman says that the hatred stems from autocratic tyrannies which shunt simmering resentment, poverty, and misery into generic hate for the infidel. Bush, by contrast, has argued that they "hate us for our freedoms." These are hugely different arguments. Bush argues that the cultures clash and there is no commonality, Friedman argues that the commonality has been suppressed and that causes the clash. Friedman's allows for eventual inclusion, Bush's stance is constantly alienating.

Sure, some of Bush's statements have (laudably) emphasized that the Arab world is perfectly capable of embracing Western values and democracy. However, his metaphilosophy mistakenly divides the world into pure good and pure evil. In the Arab world, that means the terrorists (evil, unable to be reconciled) and the rest (good, shafting under the oppressive regime of the terrorists). That is far too simplistic. For many (I might even daresay most) of the Arab world, terrorist sympathies grow in those who would otherwise be most receptive to American ideals. These are people who feel the US has abandoned them, that the US doesn't care about Muslims or worse, is actively hostile to them. As Friedman notes, this view is badly misplaced, but Bush's "us vs. them" rhetoric exacerbates the situation by reinforcing the notion that the US will never address any of the grievances, some of them legitimate, held by the Arab world against America.

You Cannot Be Serious

Way back in the glory days of the election season, I wrote a short post explaining to Glenn Reynolds and Jonah Goldberg that the reason we weren't focusing on toppling the Iranian regime is because we were--well, a bit distracted at the moment by that other "I" country in the region.

But, ask, and ye shall receive. CNN reports that the US is gearing up to possibly attack Iran. Because when one war isn't enough, two are just right...

Don't get me wrong, I'm fully aware of the danger Iran poses to the United States. In fact, I'd argue that they are more dangerous than Iraq ever was--or had the potential to be. However, as Donald Rumsfeld so aptly reminds us, "you go to war with the army you have, not the one you wish you had." And we don't have an army anymore, or at least not one that isn't tied up in current combat environments. There simply aren't enough troops left in our reserve to launch ANOTHER front in the war on terror (hell, there are barely enough troops to win the war we're conducting now).

Frankly, I don't think this is going to happen. Even Kos is skeptical. But still, with the old neo-cons still running the ballgame, you gotta wonder if they might just be serious.

The Post and Powerline on Gonzales

The Washington Post has just announced its opposition to the nomination of Alberto Gonzales for Attorney General. This was not a preordained conclusion, as they supported the nomination of John Ashcroft and the war in Iraq, both signature GOP initiatives that have come under heavy fire from the liberal left.

Powerline attacked three of the editorial's arguments. They claim that the Post erred in saying that not giving detainees to determine if they are illegal combatants was a violation of the Geneva Conventions; they argue that the methods of interrogation authorized by Gonzales might have been more effective than the previous standards, at least within the realm of argument; and finally they claim that the Post was wrong to imply that the Supreme Court's repudiation of Gonzales' positions rendered him unfit for office.

I agree with the last attack by Powerline, but I think the first two deserve some scrutiny. On the first issue, Powerline cites AU Law Professor Kenneth Anderson, who claims that while not giving detainees a hearing is unwise, it is not illegal under the text of the convention. The relevant clause is as follows:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." [Article 5, Paragraph 2, 3rd Geneva Convention, emphasis added]

Anderson proceeds to argue:

"The Bush Administration was--and is--not in violation of Article 5 of the Third Geneva Convention. Read it. It does not say that a "competent tribunal" shall determine whether any doubt has arisen with respect to the POW status of a detainee. It says, rather, that "should any doubt arise" as to whether a detainee is entitled to POW status, then the person shall be treated as a POW until a competent tribunal shall determine his or her status. The question of who is entitled to determine whether any doubt has arisen is left open--it does not say that this matter must be determined by a competent tribunal. It leaves open the possibility that the President or the Secretary of Defense may determine, even for an entire group of detainees, that no doubt arises and hence no tribunal is required."

Now, Anderson is a law professor, and I'm not. So obviously, take what I'm saying with a grain of salt. Anderson is perfectly correct when he says that the text is ambiguous. It doesn't specify how doubt can "arise," nor how or by whom that is determined. What I don't understand is how Anderson reaches his conclusion: that the text therefore indisputably gives the President or Secretary of Defense sole authority to determine the classification without any guidance or oversight. That's one possible interpretation, but as Anderson admits, the text is ambiguous. It's equally possible that the law's intent is precisely the opposite: that all persons detained should be allowed to assert they deserve POW status, and are entitled to a fair hearing to determine this.

Anderson addresses this attack in part further on, claiming that:

"But it is not merely through a technical oversight that Article 5 was drafted this way, as the treaty drafting history indicates. It was designed to take account of the following kind of situation. Suppose the US Navy picks up drug smugglers with tons of cocaine onboard their vessel, out in the Caribbean. One of them claims POW status -- "I am a FARC member from Columbia! I am a POW!" Now, if a hearing were held, obviously that claim would be rejected forthwith...Should that claim by drug smugglers to be entitled to POW treatment pending a fullblown hearing be required? Article 5 was drafted precisely to make clear that you do not have to afford a hearing in every case, only in those cases where some doubt has arisen--and it is not required, under the language of the treaty, for a tribunal to make that determination. In the case of the drug smugglers, it makes perfectly good sense for the commanders to make the determination that doubt has not arisen. It does not make sense, nor is it fair, in the case of fighters picked up in Afghanistan--but it is within the literal wording of the text. It is not a violation of international law."

Specifics of the case notwithstanding (do FARC members even get POW protection?), I don't think it provides an adequate warrant for Anderson's point. What that situation shows is that America doesn't have to entertain frivolous motions for POW status. I'm not even sure I buy that argument--is it really that much of an imposition to have a petition sent to a tribunal who will summarily reject it? However, even granting it as true, it ignores a key distinction: the claims of the Afghan detainees are not necessarily frivolous. Certainly, it is not so cut-and-dry that the executive branch can unilaterally make the determination of "no doubt" for the entire class of detainees. In the case of the single FARC claimant, it is one person making a claim that is almost certainly false and/or irrelevant. In the case of the Guantanomo Bay detainees, it is an entire class of persons, some of whom conceivably have valid claims. These are distinct situations, and especially given the ambiguity of the clause, not to mention the clear intention of the treaty which was designed to prevent government's from inflicting arbitrary abuse on captured warriors, the treaty still seems, to me, to mandate a hearing for the Guantanomo Prisoners.

Powerline's second objection can be parsed down to this sentence:

"But if those who (unlike Powell) were actually in charge of the interrogations had believed that preexisting techniques were effective, the issue of whether it is lawful to employ additional techniques would never have come up."

This seriously misstates the issue at hand. First of all, it's entirely possible that the current tactics were working fine, and the military might still want to have available more aggressive techniques. They might want them for unforeseen contingencies, or they may be satisfied with the current results but want to keep their options open, or they might just be lusting for more power. But more fundamentally, the point is wholly irrelevant to the debate at hand. Part of being a Democracy is that we go into combat with one hand tied behind our back. We cannot utilize every single action or tactic that our enemies might avail themselves to. It's unfortunate, in a sense, but it also gives us the moral legitimacy that justifies us fighting in the first place. Powerline argues that "[l]ike so many liberals, the Post's editors want to assume away any tension between the need for effective interrogation and the desire not to use harsh techniques." That isn't true. We might acknowledge a "tension" in certain circumstances, however in a constitutional form of government we cannot unilaterally decide to toss out rule of law whenever circumstances would make that a convenient option. Maybe in cases of overriding national importance (like a nuclear warhead hidden in New York City), I could see the logic behind Powerline's position. But it is repugnant to our legal traditions to make this the default standard. Nor does the government's claim that "we are at war," and thus every action can be justified as "self-defense," save the argument. Again, in certain circumstances that works just fine, but it can't be applied prospectively to every possible threat that might hit our borders. There is a qualitative difference between seeking to avert a vague, looming, or potential threat; and acting to defuse an imminent attack on our nation. The Bush administration papered over this difference with Iraq, and their defenders are doing again here.

Powerline attacks on the Post's editorial fundamentally lack merit. They rest on a flawed view of what the Geneva Conventions require, and they are all too quick to negate the rule of law and constitutional governance which give our nation legitimacy. There may be some room for argument on the fitness of Gonzales to serve as Attorney General. But the Post's argument is quite rational, and to me quite persuasive.

Breaking News: Bush Admits a Mistake (Sorta)

According to CNN.com, President Bush may, for the first time, have admitted he's made a mistake!

Specifically, Bush said that "words have consequences" and conceded that maybe telling terrorists to "bring 'em on" may not have been the brightest idea.

Well, it's a start. For the record, the front page of CNN currently contains this story on the Armstrong Williams affair, and this story about prisoners escaping from Abu Gharib.

Perhaps, if Bush really puts his thinking cap on, he can identify a few more mistakes...

Foundation for the Promotion of High School Debate

Former debate champion John McKay has announced that he is creating Voices: Foundation for the Promotion of High School Debate. So far, there isn't anything more to it than the announcement, but he hopes to run a charity tournament/round robin and camp to raise money for aiding debaters with fewer economic resources in competing on the national circuit.

John says that debate is "the most valuable activity a high school student can partake in," and I couldn't agree more. For those of you who appreciate the analysis and commentary I give on this site, it was only possible because of the practice, training, and experience I had while competing in tournaments around the country. Debate teaches young men and women how to speak clearly, persuasively, and concisely, it shows them how to construct an argument, and it forces them to think critically about the most important issues that face our nation and our world. Most importantly, it exposes them to the immense variety of views that exist in this country, and thus creates a class of citizens who are aware that political life extends beyond their own particular partisan affiliation. These assets should be spread far and wide, to any student who wants them.

Like John, I was fortunate enough to be blessed with the means to attend these tournaments. However, many of my closest friends were not, and they had to work, fundraise, and scrape for every dollar to travel. Many of these people also happened to be some of the most talented debaters in the country, but many of them could not have succeeded without the support of a community willing to help finance their competition. Who knows how many more voices have been excluded from the debate world because they couldn't muster the funds to compete? Economics should not pose a obstacle to excellence, and any program which seeks to lower the barriers of entering debate has my fullfledged support.

I'll post more on this as more information comes out. However, I highly urge anyone who recognizes the importance of educating young people to be active and engaged citizens to aid and assist your local debate programs in whatever means possible.

Revisiting Booker (Already)

In my post on the three Supreme Court cases handed down yesterday, I wrote regarding Booker v. US:

"I'm not an expert...but I do dislike federal sentencing guidelines. So until I read the opinion closely...I'll call this a victory."

I may have spoke too soon. While I still haven't managed to read the opinion yet, it has come under A LOT of fire from the left. UNC Law Prof Eric Muller is happy to see the guidelines go, but caveats:

"I find myself wondering, though, about the impact on trial judges. If I'm right about appellate review, and the appellate courts are now more or less out of the business of reviewing guideline applications under any sort of even moderately rigorous standard of review, then the guidelines themselves might come to occupy the space of a sort of strange quasi-law. This will leave trial judges enormous discretion to use or abuse the guidelines to reach or avoid reaching desired or undesired sentencing outcomes without concern for correction. I hope I'm wrong about this, and that the result of today's decision will be more, rather than less, responsible trial court sentencing. But on this question, I think, the jury is (so to speak) out."

He continues in this vein in this post as well. Basically, he thinks that with the guidelines "advisory" but not "mandatory," defendants will have almost no grounds on which to challenge their sentences on appeal. What are they supposed to argue: that the trial court wasn't "advised" enough?

Dana Mulhaser argues that the ruling could give juries more power without giving them any more information. Since juries aren't told what their rulings mean in terms of sentencing (IE, they don't know the difference, in terms of punishment, between manslaughter and 2nd degree murder), if Congress decides to have juries rule on every aggravating question of fact (one way in which congress could get around Booker), then the result could be more harsher sentences in cases where the jury feels leniency should be in order--exactly the opposite of what liberals want.

Finally, Publius at the Legal Fiction blog argues that giving "discretion" to judges is a bad idea if what we want is fairer sentences. He argues:

"One of the recurring debates in law is about 'bright lines' versus 'standards' (or discretion). Your tendency to adopt one over the other is a function of the level of your trust (or distrust) of the official who will be making decisions. For example, the Warren Court distrusted state governments and especially local police in the context of protecting civil liberties (and you cannot divorce their jurisprudence from the civil rights struggle around them). They believed, rightly, that Alabama sheriffs would never protect the constitutional rights of black people. So, they adopted bright-line rules such as the exclusionary rule or Miranda warnings. If you cross these lines (e.g., if you don't give Miranda warnings), the defendant goes free. There is no discretion.
[...]
Fast forward to yesterday's decision. The real question you must answer before deciding whether to support the Guidelines is how much you trust judges in the context of sentencing. A lot of people, quite reasonably, believe that it's impossible to devise a just sentencing regime ex ante. Given the great diversity of factual situations, it's best to give judges a wide statutory range and leave the actual sentencing decision to their discretion. If John Kerry had appointed the entire federal judiciary, then maybe I would be a bit more likely to trust them. But progressives need to remember that the federal judiciary is overwhelmingly Republican and very anti-criminal...

It's more than a partisan concern. When the Guidelines were adopted, there was overwhelming evidence that criminal sentences varied along racial and class lines. The length of the sentences imposed by the Guidelines (especially gun and drug crimes) may be unjust, but they're not unfair. Everyone gets screwed equally. Yes, tossing the Guidelines will, at times, allow progressive judges to remedy some of the insanely long sentences that get issued for small amounts of drugs or gun possession (any Second Amendment-ers out there with me on this one? Brett?) But Booker will unfetter the Federalist Society too. And the Federalist Society, which fancies itself the guardian of classical liberalism, doesn't much care for criminals and really doesn't much care for the Fourth Amendment. It's just as possible that a lot of people will get increased sentences now that the Guidelines are gone."

I think he makes a good point, but I'm inclined to disagree for a few reasons.

First of all, with sentence guidelines as high as they are, right now the requirement is essentially the same as what conservative judges would give if they wanted to throw the book at defendants. How are they possibly going to go HIGHER if given discretion than what they already have been doing (maybe they'll give first time drug possessors the death penalty. That'll deter 'em!). Sure, there are some cases where judges might have liked to do an upward departure. But the Feeney amendment, which governed judges conduct on upward vs. downward departures, was much more lenient on judges who go up than go down. The fact remains there are both few instances where judges would want to issue tougher sentences but were precluded by the guidelines, and far fewer obstacles in the previous system that would block them from upward departures if they really were so inclined.

Second, I disagree with his claim that the system screws everyone over equally. That just isn't true. Not every criminal who gets 15 years for possessing ammunition is getting "screwed," some very much deserve it. But 15 years for an ex-felon who finds one bullet in his house and puts it in a drawer (sub. only, here via Proquest or here for Blog de Novo's summary)? They aren't getting "equally screwed;" one is getting far more screwed than the other. The whole problem is that while the sentence guidelines provide adequate punishments for certain crimes, they are wildly off base for others, because every crime is different.

That dovetails nicely with my third objection: I am inherently skeptical of one-size-fits-all rules in criminal law. The problem with hard rules is that they ignore or suppress context. Richard Delgado and Jean Stefancic note that

"Normative discourse...is highly fact-sensitive, which means that adding even one new fact can change intuition radically. For example, imagine a youth convicted of a serious crime. One's first response may be to urge severe punishment. But add one fact--he was seen laughing as he walked away from the scene--and one's intuition changes: Even more serious punishment now seems appropriate. But add another fact--he is mentally impaired or he was abused as a child--and now leniency seems in order." [Critical Race Theory: The Cutting Edge, xvii-xvii]

While guidelines can accommodate for some of these facts (via mitigating and aggravating factors, for example), the problem is that there are infinite combinations and permutations of facts that might surround even one type of crime. The idea that the legislature might be able to account for ALL of them in advance (much less how they interplay with each other) is a vain hope, but people can observe the relevant facts and relationships in individual situations and judge accordingly. The problem, as Publius points out, is that individuals might also add in subconscious class and/or racial biases to the process. But all that means is that there must be a renewed emphasis on rectifying those problems at the appellate level. Saying "some people will get screwed, so let's screw everybody" is not, in my view, a moral answer to the problem.

Election Fraud

Powerline makes the case for strengthening our laws against electoral fraud. I'm going to thread a bunch of needles here, because I agree with their conclusion while disagreeing with virtually all their warrants (which essentially boil down to: "It's the Democrats fault." Bad way to start).

They give three examples of "electoral fraud": Election 2000, where Gore "tried to steal the Presidency...and nearly succeeded," the 2004 Washington Governor race, where it "appears reasonably clear that the Democrats stole [the] race, and...will probably get away with it," and an alleged 46,000 voters registered to vote in both New York and Florida. Now, on the former, many Democrats (myself included) might be inclined to switch who was doing the stealing. If there was any case in the long line of legal mush that became Election 2000, it was the Supreme Court decision that was utterly and completely out of line (basically, it concocted a federal issue as a pretext for telling state judges how to interpret state law--a federal no-no.). To the middle case, its entirely possible that the voters were REGISTERED in both states but only voted in one (or didn't vote in either). Many people retire to Florida, or live part-time there. Is it inconceivable that they might have accidentally forgotten to cancel one of their registrations when they moved? I registered to vote in Minnesota when I got to college, but I'm not 100% positive that my Maryland registration is canceled. I can assure the folks at Powerline that I only voted in the snowball state, but perhaps they would like to check and see if evil college students like myself stole Minnesota from Bush's column as well. To the latter, even Rossi himself has (laudably) emphasized that nobody was trying to "steal the election". I'm sympathetic to Rossi's position, and part of the reason why is that he has been meticulous in casting the controversy as an issue of fairness, not partisanship. Powerline would do well to follow his lead. All of this, of course, raises the inevitable question: Is it possible for Powerline to address a real problem without a prerequisite level of sniping at Democrats? But I digress.

The point about who is doing the stealing isn't really relevant, because a stronger system would go far in alleviating the paranoia and conspiracy theories that are running rampant on both sides today. A system that prevents fraud would (presumably) prevent it equally by both parties, so if both parties feel they are the victim than both should support stronger statutes. At the same time, the OVERRIDING GOAL must be to make sure everybody's vote counts. This is why I support liberal "voter intent" constrictions. If someone checks off a box for "Bush," then, under a line for write-in candidates that says "Write Candidate's Name Here" writes "Bush" again, I think we can fairly say that's a vote for Bush. It shouldn't be tossed out as an overvote. And while preventing fraud is absolutely imperative, it is equally important that all legal voters get to vote. Provisional ballots are a step in the right direction, but it is also important to provide enough voting stations in crowded urban areas, and to cut down on the bureaucratic red tape so it is easier both for voters and officials to see who has voted and who is registered to vote.

Powerline says we need to "upgrade our electoral system and guard its integrity with at least the fervor that we bring to preventing, say, underage drinking." Speaking as an 18 year old college student, I think that's unfortunately about the level we care about it now.

Turning Into Fire

Sometimes, the best way to break out of a bad position is a full-out offensive. On the other hand, a full-out offensive can also be suicide.

When it comes to redistricting, that's apparently the choice we face. Kevin Drum earlier opined in opposition to Ahnold's proposal to move redistricting out of the hands of legislature and into the hands of a set of retired judges. While Drum and I both sympathize with this goal, we opposed it on the grounds that since Republicans would never follow suit, it would only hurt Democrats (see my concurrence here).

Peter Beinart authored a rejoinder, arguing that Democrats should a) agree to the proposal starting after the 2011 census and b) in the meantime, should use this proposal to push for the same reforms across the entire nation. Presumably, this could offset Democratic losses in California with pickups in Florida, Pennsylvania, and other GOP-controlled states where the legislature has artificially reduced the amount of Democratic-controlled seats.

Sounds great to me, but Drum has a caveat:

But is Beinart right? If Democrats led a charge to end gerrymandering, would it sweep the nation or would it sweep only the blue states where they were leading the charge? Make no mistake: this is a very high risk strategy that assumes Republican leaders can be embarrassed into following suit. Maybe they can, but count me as still needing to see a sign somewhere to give me faith.

In other words, its total victory or total defeat. If the Democrats can force Republicans into redistricting their own strongholds (as well as our own), then we'll have scored a huge victory for Democracy and competition. If the Democrats CAN'T "convince" the Republicans to do it, then the Democrats will lose dozens of seats and be sent into perpetual political exile.

So the question is: Do you feel lucky, punk?

Blockbuster Case Day

A bunch of big decisions came down from the Supreme Court today. The most important one, U.S v. Booker, is also the one I have the least to say about. Booker ruled that the controversial Blakely v. Washington decision applied to federal sentencing guidelines. From my vague recollections, Blakely held that Washington's sentencing guidelines were unconstitutional because they allowed for judges to make "upward departures" (IE, sentences higher than what was recommended by the guidelines), instead of referring the matter to juries. However, Booker didn't entirely toss out the guidelines, but it instead made them into ACTUAL guidelines: advisory, not mandatory. I'm not an expert on Blakely, but I do dislike federal sentencing guidelines. So until I read the opinion closely (it's 124 pages), I'll call this a victory.

The next case was Jama v. INS. The INS wished to deport Mr. Jama to Somalia, but as many readers know, Somalia doesn't have a functioning government. Jama protested that therefore the government couldn't "consent" to his deportation, and therefore he couldn't be sent there. This case particularly interests me, as one of the organizations aiding Jama in his case (Minnesota Advocates for Human Rights) presented in front of my "International Perspectives on Human Rights" class last term. When I inquired about the case, they said that they were confident based on oral argument that Jama would prevail. Apparently, they misread the situation, because the Court rejected Jama's claim by a 5-4 margin. Another point of interest in the Jama case is a quote by Judge Morris Arnold Shepard in the 8th Circuit Court of Appeals hearing of the case, currently residing in my AIM profile:

"We note...that between countries, it is not uncommon behavior to attempt to accomplish a task by asking politely first, and then to act anyway if the request is refused."

Too true.

Cases such as these always revolve around complex areas of statutory and immigration law, of which I am ill-qualified to comment on. However, I am seriously disturbed at the possibility of deporting someone to Somalia. A country like that, which is in the midst of an anarchic civil war and doesn't even approach "functionality," is hardly a place we would send even hardened criminals. I don't know whether Jama committed a crime or not, but I wouldn't wish that fate on anybody, let alone someone who may have just been fleeing war and oppression.

Finally, we get to Clark v. Martinez. Speaking by way of Justice Scalia, the Court ruled that illegal immigrants facing deportation cannot be detained indefinitely if there deportation is not likely to occur in the foreseeable future (for example, aliens from Cuba). Six months was the guideline given for detentions, though the Court held open the possibility of exceptions in extenuating circumstances. When I first glanced over the summary, I thought the Court had allowed for indefinite detention, and I found it amusing(/troubling) that the Court would offer less protection to illegal immigrants than it did to suspected terrorists (see Hamdi v. Rumsfeld). I'm glad the Court didn't take that step, and I think that Justice O'Connor's concurrence (noting that there might be acceptable situations where one could detain an alien beyond six months) struck the right balance. The point is to create manageable and effective, but humane guidelines, not to place security on a pedestal at any price to liberty.

Edit: Jama was 5-4, not 7-2. I apologze for the error.

Court Refuses to Hear Gay Adoption Case

UPDATE: 1/11/05 @ 5:25

In a depressing development, the Supreme Court has declined to hear an appeal challenging Florida's absurd and deeply degrading ban on allowing gay couples to adopt children (How Appealing with the link).

I'm obviously very disappointed to hear that they aren't taking the case. I think that the 11th circuits reasoning in the case was shoddy, and contrary to what the Washington Post article implies, it isn't in any way comparable to the Court denying cert to the appeal of Massachusetts' pro-gay marriage decision. Put simply, Lofton (the gay adoption case) has a federal issue, and Goodridge (the Massachusetts case) doesn't. The Florida law is wholly unique amongst the nation, the legislative history makes it clear that the guiding, if not entire, principle behind the law was naked animus toward Gay people, and the law as a whole seems entirely inconsistent with the Court's groundbreaking decision in Lawerence v. Texas.

Now, those who wish for equality must turn to the political process. There has been an effort to round up support for repealing this disgusting piece of discrimination, but I don't have too much hope. The American political body just isn't ready to consider gay Americans equal citizens quite yet.

At least Israel is getting it right.

UPDATE: Eugene Volokh weighs in, as does Larry Ribstein. Meanwhile, Pseudo-Polymath takes issue with labeling those who oppose gay rights as "haters" (be sure to see my response in his comments section!). To be clear, its possible to vote for a law that restricts gay rights and not be hateful (although I think the Florida law, being an outgrowth of Anita Bryant's anti-gay "Save the Children" campaign, was an expression of hate, pure and simple), the vote certainly isn't "innocent" and at the very least is reflective of prejudice. However, in the interest of cooperation, I'll cease tagging all anti-gay rights personnel as universally "hateful," and instead label them "prejudiced" (clearly I've learned a lesson or two from Mr. Bush about bipartisanship!).

The Bland Leading the Bland

CNN is canceling Crossfire (link: Crooked Timber). Not a huge loss, as anyone who watched Jon Stewart's smackdown knows. But CNN's justification is interesting:

"Mr. Klein said he wanted to move CNN away from what he called 'head-butting debate shows,' which have become the staple of much of all-news television in the prime-time hours, especially at the top-rated Fox News Channel.
...
Mr. Klein specifically cited the criticism that the comedian Jon Stewart leveled at 'Crossfire' when he was a guest on the program during the presidential campaign. Mr. Stewart said that ranting partisan political shows on cable were 'hurting America.'

Mr. Klein said last night, 'I agree wholeheartedly with Jon Stewart’s overall premise.' He said he believed that especially after the terror attacks on 9/11, viewers are interested in information, not opinion."

I'm not sure that's what Jon Stewart was going for. The problem with shows like Crossfire, from my (and I believe Mr. Stewart's) perspective, isn't that they represent "opinion," it's that they concoct clashes between ideologies and thus artificially polarize America (as if it needs any help!). That's bad because it prevents interpartisan discourse and makes politics into a field of battle, rather than a reasoned, deliberative process.

But arguing that we shouldn't needlessly sow discord is not the same thing as arguing that we should eliminate all opinion from our information sources. Opinions are important, because they allow people to process the information given to them, prioritize it, catagorize it, and digest it. Most people don't think critically about the news they hear; opinion journalism forces them to account for different perspectives and allows to refine, or sometimes perhaps modify, their value systems and policy preferences. All of this is essential for a functioning democracy.

Opinions can be dangerous, of course. A demagogic pundit (Michael Moore, Ann Coulter) can do a lot of damage in a very short period of time. However, that's an argument for putting on sober, well-reasoned commentators on the air; it isn't an argument for eliminating commentary altoghther. One method seeks to combat demagoguery, the other tries to put its head in the sand and prays the problem will just go away. I'm sure we all know which option is better.

Let's Make a Deal

UPDATE: 1/10/05 @ 11:25 AM
I noted earlier that the prospect of getting the US to leave Iraq is probably the single issue that both the Shi'ites and Sunnis can unite around. So this article is quite intriguing (link: Kos).

"Iraq's most influential Sunni group will abandon its call for a boycott of Jan. 30 elections if the United States gives a timetable for withdrawing multinational forces, a spokesman for the group said Sunday."

If true, this brings about a tough decision for the US. On one hand, leaving Iraq too soon could be catastrophic. On the other hand, this is an incredible oppurtunity to put the elections back on-track. Since free elections offer the only hope, in my opinion, of getting Iraq back toward a stable and free future, I'm inclined to take the deal, with caveats. The US should be able to provide a "timetable" for withdrawal that is premised on and hinges upon certain levels of stability in the country and acceptance by all parties of the newly elected regime. If the US can make such a deal, I say we jump at it.

UPDATE: Iraq'd is also elated at the prospect. Bush may have been handed a oneshot deal to fix what had seemed to be an intractable failure. I suggest he take it.

Blinded by Mirrors: Fetishizing Our Own Oppression, Part Two

My first post on how people fetishize their own oppression got perhaps the biggest response of any blog post I've ever written (oddly enough, it was all via IM and not at all through commenting. Oh well). Strangely enough, I wasn't really happy with the post; I liked the topic but I thought it was poorly written. So here's a second go at it.

The first thing about self-fetishization (SF for short) is that pretty much everybody does it to an extent, but it gets more apparent the farther from the political middle one goes. Also, one can, depending on one's political leanings, SF either their own oppression (IE, how you are oppressed) or their own oppressing (IE, how you oppress others). Generally, Conservatives and Liberal minorities do the former, while Liberal majorities do the latter. Obviously, the second form of SF is a relatively new development; it is relatively unique to this era for a group to say, in essence, "we're not as good as we think we are." And I think that this is overall a good thing: It's beneficial for groups, especially empowered ones, to look in the mirror every once in awhile and recognize that they aren't the embodiment of justice, morality, and virtue.

Liberal SF was originally a response to the "my country right or wrong" jingoism that has been so pervasive across human history. Looking critically at the disconnect between stated social values and actual social action, liberals realized that we weren't actually what we said we were. Much, if not most, of the "American creed" was a myth; or at the very least, only accessible to certain people of privilege. Liberals thus became skeptical of actions justified on the basis of "American values," since so often these justifications were figleafs for the naked pursuit of national interest and were utterly separate (if not radically opposed) to the "values" they purported to uphold. Vietnam may have been the epitome of this dynamic. In a war that was fought for "democracy" and "freedom," the U.S. actively opposed democratic elections, installed oppressive dictatorships, "destroyed villages in order to save" them, and launched a brutal chemical warfare program that has had a serious longterm impact on the environment of Vietnam. None of these actions were in line with "American values," but they were all justified on that basis.

So far, so good. But what happened next was truly tragic. Amongst some elements of the radical left, a game of "oneupsmanship" commenced. Essentially, the object of the game was to prove liberal bona fides by opposing the exercise of US power. Basically, it consisted of a bunch of liberal academics saying "I'm so committed to progressive values that I'll oppose the U.S. even when its doing X!," where X is some US action justified on "American values." When X is an action like Vietnam, this makes sense, and is even laudable. When X is intervention to stop a genocide in Kosovo, it becomes incoherent. Eventually, with all the academics seeing just how far they would go, Vietnam, Kosovo, and Iraq all melded together into one grand narrative of US oppression, morally indistinguishable from one another. But in doing so, we are staring so intently into the mirror, so enraptured by our own gaze, that we forget that their are those in the world who are far worse off than ourselves. The Vietnamese people may have been far worse off in the wake of US intervention, but the Kosovar Albanians certainly weren't. Blinded by self-loathing, the SFers cannot see the ways that we--meaning the powerful--can aid the world instead of destroying it.

This type of masochism is the intellectual equivalent of "cutting," we inflict hurt upon ourselves (in the form of attacking our oppressive ways) in order to relieve the pain of being part of the oppression. By speaking out so vociferously even against ourselves, we hope to absolve ourselves of the guilt we feel, since we KNOW that we, too, benefit from the very structures we criticize. However, like cutting, SF hurts its cause more than it helps. Nobody looks at someone with razor slashes and thinks to themselves: "I want to be just like her!" similarly, the majority of Americans understandably don't want to live the remainder of their lives in perpetual self-flagellation; if that's what it takes to oppose oppression, then they'll pick the status quo, thanks. (Conservative minorities, briefly, work in the mirror image of liberal majorities. Guilty about perceived injustices perpetuated in their name, they elevate the "oppressions" caused by the quest for racial justice to prove that they are bona fide Conservatives).

Conservatives, too, SF, but in a very different way. The civil rights movement of the 1960s painfully demonstrated to many Americans that their privileged status was not a result of "merit" or "hard work," but a consequence of centuries of violent suppression and legal, social, and political inequities that made racial, sexual, and other ethnic minorities into a permanent political underclass. As America progressed, it became increasingly unacceptable for the dominant class to overtly express racism, sexism, or other forms of "isms" in order to justify the maintenance of their privileged position. The game had changed, and now the prevailing political discourse centered around "equality" and "rights." And the dominant class reacted accordingly. Whenever the government took express actions to rectify the fruits of discrimination, the majority, now put on the defensive, complained of "reverse discrimination." Giving preference to Black applicants to college is no different than giving preference to White applicants, they argued. Whereas many Whites might have admitted that Blacks were oppressed in the 1950s, in the 1980s they thought it was Whites who were faced with systematic inequality, barriers to achievement, and oppressive double standards.

Probably if you asked most Whites whether or not the discrimination they faced was worse than that faced by Blacks throughout most of their history, they'd admit that Blacks had seen worse. Even if one opposes Affirmative Action, it is apparent that it is a comparatively lesser harm than Jim Crow or Slavery. However, by elevating the "oppression" Whites faced so that it was now the equal to the horrors Whites had perpetuated on minority Americans, Whites could lay claim to the moral highground--while defending the very system of privilege they admitted was unjust! All the benefits of being racist, without the social disgrace of actually joining the KKK.

Conservative SF also serves another purpose: it allows the groups that reached the middle class via New Deal programs to avoid extending the same programs to the new underclass which needs them as much to succeed. Again, deep down, most of these people know that they had help in reaching their relative levels of prosperity, they didn't just pull themselves up by their bootstraps. However, by simultaneously elevating the nature of their struggle (by emphasizing their own hard work and deemphasizing the government aid that got them their) and degrading the status of the current underclass (tagging them as "welfare queens" who "don't even want to work"), the new middle class created a culture of victimization in itself that justified cutting back on the very programs which had granted their privilege in the first place. The middle class was being "robbed" of its hard earned middle class status in order to aid a set of people who were "too lazy to get a job" because they couldn't pull themselves up without some sort of aid. Of course, there is a very good reason why they couldn't just pull themselves up like their now-middle class predecessors: the story was a myth. None of the groups, past or present, had succeeded alone. However, the middle class was encouraged by conservatives to SF their own hardships to provide a contrast to the current poor, justifying inequitable treatment on the basis of "equality."

Finally, we get to the SF by liberal minority groups. These groups have a valid, current claim to oppression. However, what often gets lost in the mirror is that there are many forms of oppression, and most people are both the oppressors and the oppressed in different forms. A Black, Christian, Male, for example, gets the benefits of Christian and Male hegemony at the same time as he is suffering from the effects of White Racial hegemony. The population of black, African, disabled, pagan, lesbian women being rather small, it is fair to say that the majority of persons in the world today both reap benefits and pay tribute to the hierarchy system. However, rather than recognize this, many minority groups elevate their own oppression so they can dodge responsibility for fixing the oppression they participate in. Hence, one sees a African-American church loudly preaching for racial justice on one day, then engaging in the most vulgar forms of homophobia the next. When pressed, the community becomes defensive: How can you accuse ME of oppression? Can't you see that WE'RE the ones being oppressed here?

The real tragedy of the self-fetishization trend is that it causes people to talk past each other. When everyone sees oppression only in themselves, the ability to actually solve oppression (which, after all, is an evil that requires both an oppressor and an oppressee) becomes impossible. Blinded by mirrors, communication is reduced to cross-claims of who are the real oppressors, who are the real oppressed, and what obligations, if any, we all have to end it. The answer, of course, is that we are all the oppressors, all the oppressed, and we all have to work to end it to the best of our abilities. The liberal majorities must realize that ending oppression requires them to take action, the conservative majorities must realize that ending oppression requires them to make sacrifices, and the liberal minorities must realize that ending oppression requires them to look beyond the mirror of their own situation. Only then can the world truly end oppression.

Rossi's Revote, Part Two

The Seattle Times reports that Washington Republican gubernatorial candidate Dino Rossi has filed suit to throw out the election results and have a revote. Powerline provides the link, and appears to approve. I'm sure that this sudden appreciation for litigation and "revotes" in the face of contested elections came out solely because a desire to see democracy flourish, and is entirely unrelated to any partisan concerns. An Election 2000 mea culpa is forthcoming any day now.

All of that notwithstanding, I'm a sympathetic to Rossi's position. I really am. I outlined my problems with a revote in my original post on the matter, but I think I made it abundantly clear that I don't think Rossi is in the moral wrong here.

Most interestingly is Gregorie's comment on the suit: "I respect the rights of others to file an action in court. That's their right. I have to respect that, I'm the attorney general."

Those are admirable sentiments, and are probably the closest thing to a fair, non-partisan comment by a politico on a situation like this I've seen in awhile. Rossi also deserves some credit in this regard. Unlike Powerline, which compares Gregorie to Richard Daley, Rossi has emphasized that he thinks that the discrepancies were the result of honest mistakes and that no one "is out to steal the election." So kudos to both candidates.

The real loser in all of this, of course, is democracy. Any election where the outcome is so muddled will invariably stoke conspiracy theories and paranoia (and holding a revote won't solve that). But it's heartening to see that both candidates have managed to stay respectful and have refrained from overheated partisan accusations.

Fetishizing Our Own Oppression

This post requires me to tell a story for a little bit, so please bear with me as I set up my point.

Today, I attended a conference on multiculturalism, diversity, and race relations. We did many activities, including small group discussion of "who we are," and a "privilege walk" designed to show how people can possess advantages or disadvantages in society through factors they had no control over.

Another one of the activities we did was called "four corners." In it, a statement was made, such as "Bowling is the most boring sport on TV," and the group would move into one of four corners of the room depending on whether they strongly agreed, agreed, disagreed, or strongly disagreed. Undecideds went in the middle.

One of the statements was "race relations are no better today than the were in the 1960s." As the discussion commenced, a lot of people who agreed argued that the face of racism had changed, but not improved. They noted the covertly racist Rockefeller Drug laws, as well as the fact that a large portion of black men are incarcerated and disenfranchised. They claimed that politically, claims for racial equality were DOA, and that institutionalized racism remained intact.

I was in the "undecided" group, and argued thus: Yes, I agree with the majority of what the agreeds said. Institutionalized racism was still intact, and we aren't even close to the dream of ending racial subordination. But, I argued, its gutcheck time. I compared the argument we were having to an argument over whether George W. Bush was the world's GREATEST threat to world peace. In that argument, many speakers on the affirmative listed off a myriad of awful, horrible, evil things that could be attributed to Bush. In response, a negative speaker asked: "Imagine you could place either Kim Jong Il, or George W. Bush in prison tomorrow. Its gut check time. Would you really put Bush in the slammer and let Il go free?" And I argued the same applied to race relations. It may be bad today, but gutcheck time: Would you rather live as a black man in Mississippi in 1960 or today?

Now here's the part that stunned me: A large portion of the people present (I hesitate to say a majority) shouted that they'd put BUSH in prison. To them, he really WAS a comparatively worse threat than Il. What could cause such a position?

I think that there is a tendency amongst society to fetishize our own oppression. All of the awful things that happen to us, or, if we're the guilt-sensitive liberal types, happen to others in our name, are the epitome of oppression. Kim Jong Il may execute anyone who speaks an ill word about the "dear leader," but we have the PATRIOT Act. Il has places millions in death camps across the country; we have Guantanamo Bay. In the eyes of some, these are comparable (or reflect worse on the US) because WE'RE the ones doing it. We fetishize our actions and minimize the oppression brought on or brought upon by others.

Such a view is dangerous. In a world with limited resources, pretending that the US or other liberal states are comparatively worse than the worst oppressive regimes insures that those regimes will never change. It is a recipe for inaction. We can't act to end oppression because it would be hypocritical for we, the REAL oppressors, to do so. And even if we can get past that, it would make more sense to remedy the "worse" oppression in the US than to ameliorate the "mild" oppression of North Korea or Iraq.

The logical incoherence of such a position is astounding. Can anyone truly argue that (especially proportionally) more people are starved, more people are denied the right to vote, more people are held in prison on political charges, more people are murdered, or that more people are denied the basic human rights to freedom or equality by the US than China, or North Korea, or Iran, or Sudan, or Congo? With all do respect to my radical friends, what planet are you living on?

The radical left needs to remember that protesting foreign oppression and recognizing its relative evil compared to the West does not justify the things the West does wrong (and there are many). Perversely, the self-flagellation that passes for activism amongst the left wing dooms those most in need of radical change. We need to train the eyepiece beyond ourselves and look to how we can help the world, not just hurt ourselves.

Impending Doom

Kevin Drum thinks the end of the blogosphere draws nigh. What's the cause? The trigger is that newspapers want to switch to subscription-based formats online, rather than their current free editions. Drum thinks that without the presence of free online content, bloggers won't have enough to talk about.

I see his point, but I think there are a few things that need to be addressed. First, there are other things bloggers link to besides newspapers. Law Review articles, court cases, academic journals, and above all OTHER BLOGGERS all serve as spark points for insightful and provocative discussion. As long as a few bloggers can still come up with independent thoughts without the benefit of the New York Times, we should manage to get through this okay. Second, people still can read the print editions of these papers and transcribe excerpts online. It isn't ideal, and it would hurt the general medium (because you can't provide hyperlinks), but it wouldn't be catastrophic either. Finally, I think the blogosphere might have reached critical mass, where it can sustain itself. There are so many bright, insightful commentators from all over the political spectrum currently running blogs that I think that there is enough information to go around.

Oh, and if you want some REAL impending doom, Gregg Easterbrook has an article for you. Features include giant volcanic eruptions, magnetic field reversals, and of course asteroid impacts.

I Hate Irony

Kevin Drum is depressed. So am I. Why? Because California Governor Arnold Schwarzenegger has proposed something that he and I both agree with wholeheartedly: ending partisan control of the redistricting process.

It is clear to me that partisan redistricting is one of the great plagues on our Democracy (NOTE: A new paper questions whether redistricting actually harms competitiveness in Congressional races. Mark Schmitt buys most of the paper's conclusions, but contests that specific one). Texas was the most flagrant manifestation of this, but it hardly is unique. The lack of competition in California's 52 congressional districts shows that Texas is not alone. In theory, then, I support Arnold's intiative. So what's the problem? Over to Drum:

So why am I depressed? Because the insanely partisan atmosphere of contemporary American politics means I can't support this proposal even though I think it would be good for the state. After watching Texas Republicans ram through a brutally gerrymandered mid-decade redistricting that gained the Republican party four congressional seats in the 2004 election, how stupid would a California Democrat have to be to agree to meekly support a goo-goo proposal that would have the effect of giving Republicans more seats in yet another state? Guys like Tom DeLay and Hugh Hewitt would be guffawing in their beers for days about our terminal naivete if we went along with this. Raw power would be their ally in red states and appeals to progressive idealism would be their ally in the blue states. That's quite a combination.

Chalk up another reason to detest DeLay and Co. Even if we want to play fair, we can't because its political suicide. We all have to race toward moral destruction in the longterm because to do otherwise would be political destruction in the short term. All because DeLay and his pals don't believe in abiding by basic ethical standards. Curse you.

Cheney Gets Down

This photo from Wonkette is just hilarious.

Word up, Cheney D.

Roots of the Hatred: An Answer to Powerline

Over at Powerline, the question is asked: what, if any, is the rational reason liberals hate Bush?

My experience is that the two propositions set forth in the preceding paragraph are articles of faith among this crowd. The first -- distrust of U.S. power -- is the searing lesson of the Vietnam era. The second -- disdain for traditional religion -- is the lesson of the culture war. I may be wrong about this, but before confessing error I'd need to see, at a minimum, a satisfactory explanation for the intellectual left's hatred of President Bush that does not incorporate either of my two propositions, or others similarly fatal to the formation of a coalition with evangelicals.

Did someone call my name (I don't know if I qualify as part of the "intellectual left." I PLAN on being an academic, and my age isn't my fault!)? My immense distaste for President Bush stems from neither of the two premises Powerline puts out. The primary motivation for my ire is how Bush has delegitimized the exercise of U.S. power on the global stage, possibly for decades. I've already outlined the negative impacts of a world with an insular US, and I'm sure Powerline needs no persuasion on the matter. However, if it is important for the US to exercise power, than it must be EQUALLY important to create a climate in which US exercise of power to solve problems is supported, or at least tolerated. By undermining that sentiment, Bush has done the US (and the world) an immense disservice. In this respect, I loathe Bush for the OPPOSITE reason than the one ascribed by Powerline: It is my belief in the positive potential of US power that motivates my anger toward Bush's policies. I see him as destroying an ideal I deeply believe through arrogance, incompetence, and shortsightedness. An analogy that might work for Powerline would be if Bush was anti-tax zealot (not a hard picture)--but he expressed it by ONLY cutting taxes for millionaires. Powerline might be upset at the specific policy--I don't know--but it would be livid that now the whole enterprise of cutting taxes would be delegitimized by the idiotic actions taken in its name.

From a religious perspective, my faith dictates the extension of common decency to all mankind. Regardless of what I believe in private life, it is an important component of my spiritual beliefs that I believe them because I choose to, not because the government mandates them. I reject any attempt to impose religious views, whether I share them or not, on the population, because it is degrading to MY faith. Bush's cynical promotion of the FMA, which sought to degrade a class of human beings solely for the electoral benefit to be gained from it, was religiously offensive to me. And his and his allies' attempt to justify on the grounds of "Judeo-Christian morality," as if Jewish and Christian morality are remotely similar, was a distortion of historical realities (cf. Arthur A. Cohen, "The Myth of The Judeo-Christian Tradition," (New York: Harper & Row, 1957); Jacob Neusner, "Jews and Christians: The Myth of a Common Tradition" (London: SCM Press, 1991); and Stephen M. Feldman, "Please Don’t Wish Me a Merry Christmas: A Critical History of the Separation of Church and State." (New York: New York University Press, 1997), esp. 17-18 and 258-59) that sought to falsely incorporate my religious views into his oppressive ideology. I'll concede that this stance of mine may not make for an easy common cause with evangelicals, but it is equally not an expression on my part that all religious persons (of whom a count myself as one) are "rubes."

Those are my biggest reasons, but others abound. The most important article on this is Jonathan Chait's aptly named article "Mad About You: The Case for Bush Hatred." Some of Chait's reasons are simply visceral emotion (and he is the first to admit it), but not all of them. A few of the reasons include Bush's extremism:

Clinton offended liberals time and again, embracing welfare reform, tax cuts, and free trade, and nominating judicial moderates. When budget surpluses first appeared, he stunned the left by reducing the national debt rather than pushing for more spending. Bush, on the other hand, has developed into a truly radical president. Like Ronald Reagan, Bush crusaded for an enormous supply-side tax cut that was anathema to liberals. But, where Reagan followed his cuts with subsequent measures to reduce revenue loss and restore some progressivity to the tax code, Bush proceeded to execute two additional regressive tax cuts. Combined with his stated desire to eliminate virtually all taxes on capital income and to privatize Medicare and Social Security, it's not much of an exaggeration to say that Bush would like to roll back the federal government to something resembling its pre-New Deal state.

Partisanship:

When the September 11 attacks gave Bush an opportunity to unite the country, he simply took it as another chance for partisan gain. He opposed a plan to bolster airport security for fear that it would lead to a few more union jobs. When Democrats proposed creating a Department of Homeland Security, he resisted it as well. But later, facing controversy over disclosures of pre-September 11 intelligence failures, he adopted the idea as his own and immediately began using it as a cudgel with which to bludgeon Democrats. The episode was telling: Having spent the better part of a year denying the need for any Homeland Security Department at all, Bush aides secretly wrote up a plan with civil service provisions they knew Democrats would oppose and then used it to impugn the patriotism of any Democrats who did--most notably Georgia Senator Max Cleland, a triple-amputee veteran running for reelection who, despite his support for the war with Iraq and general hawkishness, lost his Senate race thanks to an ugly GOP ad linking him to Osama bin Laden.

And disingenuousness:

And, while there has been no shortage of liberal hysteria over Bush's foreign policy, it's not hard to see why it scares so many people. I was (and remain) a supporter of the war in Iraq. But the way Bush sold it--by playing upon the public's erroneous belief that Saddam had some role in the September 11 attacks--harkened back to the deceit that preceded the Spanish-American War. Bush's doctrine of preemption, which reserved the right to invade just about any nation we desired, was far broader than anything he needed to validate invading a country that had flouted its truce agreements for more than a decade. While liberals may be overreacting to Bush's foreign policy decisions-- remember their fear of an imminent invasion of Syria?--the president's shifting and dishonest rationales and tendency to paint anyone who disagrees with him as unpatriotic offer plenty of grounds for suspicion.

One might disagree with some or all of these, although at least a few of them should be roots for common cause between liberals and evangelicals (both, for example, hold value systems which would support more government spending to alleviate the ails of poverty). But they stretch beyond "irrational." Insofar as liberals and conservatives value different things, liberals might dislike Bush for some of the very reasons Conservatives laud him. But there are certain facets of Bush's presidency that should be detested by all members of the political spectrum. The excessive indulgence in partisanship, the poor handle on foreign policy, and the tendency toward extremism in lieu of compromise all spring to mind. If there is a group of Bush haters whose feelings are beyond the scope of rationality, there is another sect of us who share many common values with our Conservative brethren--if only they would acknowledge them.

Guess Who's Back?

Deja vu? How Appealing reports that Michael Newdow has launched another suit in federal court challenging the constitutionality of the "under God" clause in the Pledge of Allegiance. And according to the Sacramento Bee, this time he has co-plaintiffs (all of whom have full custody of their children, the kink that derailed Newdow's original suit).

The full text of Newdow's brief can be accessed here. It presents some compelling arguments. At the very least, it seems to knock flat the notion that the addition of "under God" was a religiously "neutral" act. It also presents some damning evidence of societal discrimination against atheists. There is simply no way to pretend that the United States is not overtly hostile to atheists without massively distorting the historical record. Unfortunately, this may not help Newdow's cause as much as it should. Jack Balkin, Professor of Constitutional Law at Yale University. "What Brown Teaches us about Constitutional Theory." Virginia Law Review Vol. 90, No. 6, October 2004. Pg. 1531-1577

"Law students are usually taught that it is the job of courts to protect what United States v. Carolene Products [304 US 144, 152, n.4, (1938)] called 'discrete and insular minorities.' These are groups that have suffered a long history of discrimination, are relatively politically powerless, and are unable to protect themselves in the political process. This portrait is quite misleading. In general, courts will protect minorities only after minorities have shown a fair degree of clout in the political process. If they are truly politically powerless, courts may not even recognize their grievances; and if they have just enough influence to get on the political radar screen, courts will usually dismiss their claims with a wave of the hand. Conversely, as a reform movement for minority rights gains prominence through political protest and legislative lobbying, courts will increasingly pay attention to minority rights and take their claims more seriously." (1551-1552)

The courts aren't as proactive about defending minority rights as we like to think they are. For the most part, it takes a lot more political influence--far more than atheists can currently muster--to bring about legal change.

One question I have is whether or not the 9th circuit will consider it bound under its ruling in Elk Grove to declare the pledge unconstitutional. Although the Supreme Court reversed its decision, it did not do so on the basis of merits. Since the facts of this case are identical to those in Elk Grove except for the issue of custody, it would stand to reason that the 9th circuit would apply the same analysis in this case as it did in the previous case. But I don't think it is BOUND to do so, which could get interesting.

I also question Newdow's tactics in this case. According to the brief, he has filed suits in courts across the nation. This seems like he is deliberately trying to create a circuit split and take the issue back to the Supreme Court. Nothing could be worse. As I noted in my very first substantive blog post, we dodged a bullet last time. The standing loophole let the Court defuse the firestorm around the case without closing the door to future litigation. They don't have that excuse this time around, and I am not convinced that the 3 judges who explicitly said the clause should be upheld could not pick off 2 judges from the majority to uphold it in law. This becomes even worse when one reads Justice Thomas' concurrence in Elk Grove. In it, he essentially agrees (as I do) that current precedent would mandate that "under God" is unconstitutional. But then, in a stunning evisceration of the principle of stare decisis, he proceeds to argue that this gives us a perfect opportunity to overrule the offending precedents and restore 1st amendment law to its former position prior to Lee v. Weisman. If he can sway enough judges to his position (and I do believe that he's right in a sense, the only way to uphold the pledge is to overrule Lee), this could rapidly become the largest legal setback for religious minorities in the past 50 years.

Torturous Reasoning

I earlier ripped into Powerline for their absurd suggestion that Republicans attacking Bush is a "betrayal". Today, Andrew Sullivan calls out Glenn Reynolds for the same foul, this time related to torture.

To be sure, Reynolds' claims are less reprehensible than Powerline's. He seems to making a descriptive rather than a normative claim: Opposition to Bush will only harden the resolve of Bush's Republican allies and thus prevent real change. He writes:

I think the effort to turn this into an anti-Bush political issue is a serious mistake, and the most likely outcome will be, in essence, the ratification of torture (with today's hype becoming tomorrow's reality) and a political defeat for the Democrats. And the highly politicized way in which the issue is raised is likely to ensure that there's no useful discussion of exactly how, in terms of incarceration, etc., we should treat potentially very dangerous people who do not fall readily within the laws of war.

To which Sullivan replies:

Run that by me again. The point is not "an anti-Bush political issue." It's about whether the United States condones torture of prisoners (many of whom have turned out to be innocent) in its care. Since president Bush shifted U.S. policy to one which allows what any sane person would call torture, any criticism of the policy, by its very nature, has to be "anti-Bush." And when the president responds to his egregious error - which has undermined the war - by rewarding those who helped him make it, like Gonzales and Bybee, are we all supposed to roll over? Is all legitimate criticism of the administration now reducible to this kind of inane partisanship? Glenn's deeper point is that if you ask for torture to be stopped, the majority of Americans will respond by saying: ramp it up. But that amounts to complete capitulation to something no civilized person should tolerate, and no grown-up military officer would approve. Glenn cannot pretend to be anti-torture, while eschewing any serious attempts to stop it through the political process. If you won't stand up to the Bush administration on torture, is there anything you won't acquiesce to? And it's not "hype." Read the reports.

Reynolds responds that even if Sullivan isn't a partisan, most of the critics are. I think that Reynolds is essentializing just a bit here; I've seen no evidence that there isn't at least a sizable chunk of the anti-torture agitators who oppose on principle, rather than as a political opportunity. Reynolds' also claims that Republicans want to have this debate, as it would just emphasize the Democrats as soft on terror. You know what? I'm willing to take a little political flak here and expose the gap between American rhetoric and reality. The American people ARE outraged by torture--as long as its on the front page. Mark Graber elaborates

Most Americans probably suspect that our nation now routinely tortures persons and that the President has sanctioned this policy. We sort of know this is wrong, but as long as we can maintain plausible deniability, who really cares. Thus, while we profess outrage when stories hit the front page, the outrage vanishes as soon as the stories disappear. Besides, some victims of torture might give up valuable information. Others are no doubt bad people, who might well torture us in appropriate circumstances. Most are people we do not know, and in America, people we do not know are people Americans need not care about. This is the real scandal, and it is about us. Beneath all the media talk of a politics of morality, George Bush and his cohort are deeply amoral people, and American under George Bush is a deeply amoral place. The real challenge for the left is making people care about torture, even when torture is not on the front page.

Put this on the front page and lets MAKE America, front and center, say "we're okay with torture." I don't think they have the chutzpah to do it.

I don't have too much confidence in the political process as a means to solve problems. But I do think that it should be the tool of first resort. Principle opposition to torture means getting out there, on the front page, and making it stop. And that's going to mean confronting those who would indulge in immoral US practices head on.

Feingold In the Ring?

Washington Whispers reports that Wisconsin Democrat Sen. Russ Feingold is testing the waters for a possible 2008 run (link Kos).

Keep a lookout for Sen. Russ Feingold , the second half of the McCain-Feingold campaign finance duo, who just won a third term from Wisconsin voters. He's on a nationwide mission to test out his progressive message that's liberal on some issues, like universal healthcare, and conservative on others, like the deficit. Fans think he can bridge the blue-state-red-state divide, making him not just a voice for a changing Democratic Party but a possible '08 presidential candidate.

Another ace up Feingold's sleeve was his opposition to the PATRIOT Act--the only person in the senate to vote against it. No flipflopping here, folks.

Obviously, I want to hear more about Feingold's positions (especially on Foreign Policy), but at the moment I'm cautiously optimistic. I think he could be an excellent candidate who can meld progressive and centrist positions to the betterment of all America.

Ethical Reversal

UPDATE: 1/4/05 @ 7:20 PM
Alot of bloggers, myself included, lambasted the House GOP for changing caucus rules to allow party leaders indicted on felony charges to stay in power. We noted that this rule change would cripple House ethical standards and many of us thought it was emblematic of the arrogance and power-drunkeness of the Republican majority.

So allow me to be the first to applaud the GOP's decision to reverse the rule in a party meeting. I think this was the ethical thing to do, and I call on House Democrats to enact a similar rule for their own party.

The Daily DeLay, which has been covering this issue from day one, has its press release up. Slightly churlish in my opinion, but well taken.

UPDATE: The Moderate Voice adds its thoughts, and reports that the Democrats have changed their rule as well. So everyone wins.

False Betrayal

Powerline is apoplectic that former EPA chief Christine Todd Whitman has the "temerity to impugn the President's re-election victory" in her new book, "It's My Party Too: The Battle for the Heart of the GOP and the Future of America". They write:

Someone should introduce a novel idea into government service: it's actually possible to serve in an administration, and then leave it without writing a tell-all expose about what a wonderful job you tried to do, but how, despite your best efforts, the administration went astray. When a Democrat like Richard Clarke betrays President Bush, that's one thing; when it's done by a Republican, it's unforgivable.

This article is so off base it almost defies a logical rebuttal. First, Richard Clarke isn't a Democrat. He's an independent. Second, perhaps Ms. Whitman actually thinks there are *gasp* things the administration could have done better! Maybe it isn't a vain effort at self-promotion and lucrative book profits. Third, and most importantly, the rhetoric Powerline uses is profoundly disturbing. Whitman "betrayed" Bush and that's "unforgivable." Powerline has taken the Democrats to task (often rightly) for their intolerance of opposing views. But I have yet to see mainstream Democrats label their moderate cohorts as "betrayers" just because they refuse to toe the party line to the letter (instead, they sometimes nominate them for Vice President, as Sen. Lieberman reminds us). Powerline would do well to remember that dissent is a virtue, not a vice, in a free society, and now that the campaign season is over they might also want to try admitting that the Bush administration isn't God's kingdom on earth. If Powerline thinks that the Republican party currently inhabits the perfect ideological terrain--politically, morally, on every issue, position, and controversy--that's their prerogative, but they should realize then that the party only came to its current state because "dissenters" challenged (betrayed?) the 50s-60s Republican orthodoxy of Taft, Eisenhower, and Ford. Seeking to silence those in the GOP with whom they disagree is the greatest gift Powerline can give to the Democratic party. But I for one prefer open political debate to transient political gains.

Moral Legitimacy

I've linked approvingly on several occasions (originally here and then expanded upon here) to Peter Beinart's pathbreaking article, "Fighting Faith," which outlines how the Democratic party needs to get serious on security issues. One of his most controversial claims is that the Democratic party needs to "purge" the radical leftists who deny the relevancy or importance of the global war on terror--those who think we can accommodate or appease the radical Islamic terrorists. Though I wouldn't personally go so far as to advocate a "purge," my general sympathies with Beinart's argument mean I'd be remiss if I didn't link to Joshua Zeitz's warning that getting rid of the leftwing sector of our party would rid of us some of our most important voices in the battles to assure domestic justice.

[T]he health of American democracy continues to depend on the ability of progressives to advance certain core values--on civil liberties, separation of church and state, gay rights, health care, and the social safety net. If liberals today boot out MoveOn, they will be purging some of their best organizers and fundraisers. But more importantly, they will be excommunicating the most passionate advocates of core progressive values in domestic politics. How often does one hear Joe Lieberman or Joe Biden talk about the crime of child poverty, the need to improve labor standards at Wal-Mart, the moral imperative of civil liberties and sexual freedom, or the importance of extending health coverage to all Americans? Sure, hawks like Biden and Lieberman more or less support these liberal positions. But their political passions lie elsewhere, namely in the realm of foreign policy. The Democratic Party needs moral clarity on foreign policy, but it needs moral clarity on the domestic front as well. If it simply purges the left, it may end up sacrificing the latter to achieve the former.

Zeitz notes that the very "softs" the Democrats purged in the 1940s were among the most articulate and passionate defenders of racial equality in the nation. Eliminating them seriously damaged the Democrats moral credibility on human rights. Today, the parallel issue is gay rights. Many of the moderate hawks in the Democratic party are ambivalent--at best--on the fundamental issues of gay equality. The leading lights in this fundamental quest for justice mostly reside on the left end of the party. I do believe that national security is an important issue for Democrats, and I might go so far as to say it's the most important issue. But I am not willing to sacrifice the rights of mankind upon the altar of political unity.

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

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

Dual Meaning

Here's an interesting insight on the mindsets of liberal vs. conservative commentators. The Iraqi's launched an attack, a real one, not long range mortars or a suicide bombing, on a US military outpost near Mosul. Unsurprisingly, the got slaughtered as soon as US forces could call in air support. What does this attack tell us about the insurgency?

Iraq'd says they're getting cocky. Powerline says they're getting desperate. Which is it? You got me, but viva la difference!

And Happy New Year! Blogging will be sporadic as I settle back into college. Hopefully I'll be back in full force by the 3rd or 4th.