Month: October 2007

E. Coli Conservatism In Action

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by hilzoy Here’s a fun story about our downsized regulatory agencies at work, from the NYT: “Walter E. Friedel’s plans to waterproof the tile floors of his hot tub room using Stand ’n Seal, a do-it-yourself product sold at his local Home Depot, promised to be a quick weekend project, one he could wrap up … Read more

Just Say No! To Obstruction

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by hilzoy This (via TPM) is just too funny: “In what could be a new incarnation of the successful bipartisan “Gang of 14,” Minority Whip Trent Lott (R-Miss.) hosted a meeting this week with a handful of the Senate’s most notable compromisers to figure out how to unclog the gridlock that has slowed the chamber’s … Read more

Not buying a bumper sticker

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by Katherine I think Barack Obama must have a unique ability among politicians to raise my hopes–then disappoint me. He had me going again for the last 10 days. Really good speech on inequalities in the justice system at Howard University. Really good speech on foreign policy. Put a hold on a terrible nominee because … Read more

Supporting The Troops, Take Aleph Sub Nought

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by hilzoy Via Balloon Juice, NBC: “When they came home from Iraq, 2,600 members of the Minnesota National Guard had been deployed longer than any other ground combat unit. The tour lasted 22 months and had been extended as part of President Bush’s surge. 1st Lt. Jon Anderson said he never expected to come home … Read more

In Defense of Bad Faith Second Amendment Arguments

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by publius

Via McCardle, I saw this uncharacteristically weak argument from Jonathan Turley:

Principle is a terrible thing, because it demands not what is convenient but what is right. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right.

To which McCardle responds:

I’ve always had a hard time believing that people who thought the right of “the people” was a collective right could be arguing in good faith–at least, not if they’d read the rest of the constitution. After all, no one would take seriously an argument that the right of “the people” in the fourth amendment “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” was a collective right that could only be enjoyed if you joined the National Guard.

These are tough questions. Lots of smart people argue different things. But the idea that arguing for a collective right is in bad faith is absurd. I happen to believe it’s the best argument — and I’ve even read the rest of the Constitution.

First, contrary to popular belief, the Bill of Rights weren’t necessarily libertarian protections for individuals and minorities. Akhil Amar, for instance, has argued that the Bill of Rights should be understood as structural, federalist (i.e., states-rights) protections for majorities. The animating fear was a distant, remote federal government that would tyrannize state governments (remember then-recent history). For instance, the establishment clause makes no sense as anything other than a protection of state-recognized churches (or against federally-established churches like the Church of England) — it is not a libertarian provision. Even the criminal protection provisions can arguably be seen — not merely as individual protections — but as structural protections against federal officials who impose arbitrary or tyrannical rule.

Of course, when you read over the Bill of Rights, it’s easy to read them as libertarian provisions. But Amar in particular has offered various textual and historical reasons why they shouldn’t be (or shouldn’t exclusively be) read that way. I’ll rattle those off below the fold.

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Another Reason to Ban Signing Statements

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by publius I agree with everything Hilzoy says about the latest disgusting revelations from OLC. I just want to quickly note that the NYT article illustrates all too clearly just how pernicious Bush’s signing statement accompanying the McCain “anti-torture” Amendment was. The NYT says: At the administration’s request, Mr. Bradbury assessed whether [McCain’s] proposed legislation … Read more

New Improved Torture Memos

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by hilzoy

From the NYT:

“When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be “ashamed” when the world eventually learned of it.

Later that year, as Congress moved toward outlawing “cruel, inhuman and degrading” treatment, the Justice Department issued another secret opinion, one most lawmakers did not know existed, current and former officials said. The Justice Department document declared that none of the C.I.A. interrogation methods violated that standard.

Here’s what we’re talking about:

The Bush administration had entered uncharted legal territory beginning in 2002, holding prisoners outside the scrutiny of the International Red Cross and subjecting them to harrowing pressure tactics. They included slaps to the head; hours held naked in a frigid cell; days and nights without sleep while battered by thundering rock music; long periods manacled in stress positions; or the ultimate, waterboarding.

Never in history had the United States authorized such tactics. While President Bush and C.I.A. officials would later insist that the harsh measures produced crucial intelligence, many veteran interrogators, psychologists and other experts say that less coercive methods are equally or more effective. (…)

Interrogators were worried that even approved techniques had such a painful, multiplying effect when combined that they might cross the legal line, Mr. Kelbaugh said. He recalled agency officers asking: “These approved techniques, say, withholding food, and 50-degree temperature — can they be combined?” Or “Do I have to do the less extreme before the more extreme?””

Discussion below the fold.

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The Iowa Cascade

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by publius

It’s true that a Hillary Clinton victory isn’t yet inevitable – but it’s sure getting close. She’s got strong, commanding leads in the polls. Lots of money and institutional support. Tons of experience, etc. In short, she’s got all the things that inevitable nominees tend to have. The catch, though, is Iowa.

Personally, I think Iowa is the only thing standing in her way. And so the million dollar question at this point is how the other states will react to Iowa. It’s impossible to predict, but I’m going to take a stab at it by using information cascades.

What makes Iowa such a wild card is that it can trigger instant information cascades – or “herd behavior.” The basic idea is that cascades happen when people rely on the visible actions of others rather than their own imperfect or limited information.

For instance, imagine you are at a fancy-pants dinner with lots of people and don’t know what fork to use. Let’s say you’re 55% sure that the small fork is for salad. But, you see two other people before you pick up the longer fork for the salad. You get nervous and discount your own private information, opting for the big fork instead. Imagine too that the guy next to you is even more confident that the small fork is for salad. But, with three people opting for the big fork, he does the same. And on it goes until everyone is using the wrong fork. Thus, the cascade. (For more formal statistical discussions, see here – pdf).

We see the same thing happen with bubbles, financial panics, etc. But we also see it following Iowa. And that’s the problem.

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Beyond Parody

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by hilzoy Honestly: you can’t make this stuff up. Michael Ledeen at The Corner: “The Left hates Rush, above all—as in the case of Thomas—because of the quality of his mind and the effectiveness of his work.” The quality of his mind? The quality of his mind???!! I mean, we are talking about Rush Limbaugh, … Read more

Discriminating Against Transgendered People

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by hilzoy

From the SF Chronicle:

“Leading gay rights organizations, with the pointed exception of the Human Rights Campaign, withdrew their support Monday from a landmark gay civil rights bill after House Speaker Nancy Pelosi of San Francisco and Rep. Barney Frank, D-Mass., pulled transgender people from the legislation that would protect gays and lesbians from workplace discrimination.

The intense backlash by the gay community surprised House Democratic leaders, forcing them to postpone what had been intended as a big House vote this week to include gays and lesbians in the nation’s job discrimination laws for the first time in American history.

The debate playing out between gay rights activists and two of their biggest supporters in Congress raises a classic political question: Are activists better off compromising and accepting progress or continuing to fight for everything they want?

Gay rights groups have been waiting for a decade for the bill to pass, and many say a few more months to try to build support for including gender identity would be worth the wait. They say transgender people will have little chance of winning protection from discrimination if they aren’t included in this bill.

Pelosi and Frank, however, fear the inclusion of gender identity will kill the overall bill – again denying gays and lesbians protection against job discrimination.

Pelosi, D-San Francisco, issued conflicting statements Monday in reaction to the turmoil. The first declared her personal support for including transgender people in the Employment Non-Discrimination Act but asserted she would stick by her decision to drop them from the bill to give it a greater chance of passage.

About three hours later, the speaker issued a new statement saying, “After discussions with congressional leaders and organizations supporting passage” of the bill, committee and floor votes on the bill had been postponed to “allow proponents of the legislation to continue their discussions with members in the interest of passing the broadest possible bill.””

If I were a Congressperson, I would be genuinely torn about what to do. On the one hand, according to Barney Frank, whom I trust, whip counts show that the bill will fail if it includes a ban on employment discrimination against transgendered people, but will pass otherwise. If that’s right, then there’s a serious case to be made for banning discrimination against gay men and lesbians now, rather than leaving the entire LGBT community exposed to legal workplace discrimination. On the other hand, I loathe the idea of not banning discrimination against transgendered people, especially if that would mean that no such ban would be passed for the foreseeable future.

Luckily, however, I am a blogger and a citizen, not a Congressperson. And that means that my duty, as I see it, is clear. First, I should write my Representative, urging (in the case of my Representative) him to support the version of the Employment Non-Discrimination Act that secures the rights of transgendered people. And second, I should use my blog to argue my case. That argument, which is aimed at those of our readers who don’t know much about this topic, is below the fold. People who do know about it should feel free to add further information in comments. (Note: for the sake of simplicity, I’m going to stick to people who think that their biological gender is flatly wrong, and leave aside people with more muted gender issues.)

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Political Parties – Take ‘Em or Leave ‘Em?

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by publius

The Almighty Nine opened shop today, hearing arguments on whether Washington’s open primary violated the First Amendment. The more cynical framing of the question is whether the First Amendment provides cartel-like protections to the major political parties. That, in turn, leads to the broader question of whether our current two-party structure is a good thing. On that last question, my views have evolved considerably since I first started blogging, thanks in no small part to Bush. Strangely enough, the modern GOP has restored my faith in the two-party system . . . I think.

But first, the case. The backdrop here is a case called Jones from 2000 that struck down California’s “blanket” primary. It was an open primary — voters could vote for any candidate, and any candidate could align with any party. The catch though was that voters as a whole determined the party’s official nominee for the general election. For instance, the self-proclaimed Democrat with the most primary votes became the official Democratic candidate regardless of what the Party itself wanted. If Cocaine McPedophile declared himself a Democrat, then (in theory) Republicans could vote for him, placing him on the ballot for the fall. The Court found that this type of forced marriage violates political parties’ association rights. Fair enough.

Washington, however, had a different idea. It also proposed an open blanket primary, but allowed the “top two” candidates to move on (rather than the top vote-getter within each party). The catch here (again) was that any candidate could declare herself aligned with any party. The parties didn’t like that — in this sort of pre-runoff primary, they wanted only their own preferred candidate to have the “D” or “R.” [See Rick Hasen for more.]

I certainly sympathize with the parties — you don’t want loonies (or Mike Gravels as I call them) confusing voters. That said, I don’t see why the Constitution protects them here. It’s one thing to force a candidate on to the party like California did. It’s quite another thing to forbid candidates from declaring their own party preferences in a “top two wins” election.

The broader point is that this is simply one of the many structural legal protections that national parties currently enjoy. Whatever you think of Ralph Nader, he’s right that significant barriers to entry exist outside the two-party structure. In the Washington case, for instance, the First Amendment would protect the parties by allowing the institutional leadership to maintain more control of the nomination process. Without this protection, Lieberman and Schwarzenegger-type candidates (nominal Dems or Republicans with considerable cross-appeal) could win “the nomination” without institutional backing.

Whether that last scenario is good or bad is the million dollar question. In theory, open primaries create more “centrist” candidates. Rather than vying for the median party voter, candidates are vying for the median voter. Further, the less that “serious” candidates rely on the institutionalized party, the closer to the median they can be. The result would be people like the Governator and Lieberman.

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Too Weird

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by hilzoy I’m sorry: this is just too strange not to post on. John Fund in the WSJ: “The fact is that people inside the Giuliani campaign are appalled at the number of times their candidate has felt compelled to interrupt public appearances to take calls from his wife. The estimate from those in a … Read more

Yikes! I Was Eaten Alive By My Life!

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by hilzoy Sorry for being out of touch: life was busy. However, now that the conference is over, the talk has been given, my cousin is well and truly married to his wonderful bride, and I’m back from Maine, I can actually contemplate the internets again. Of course, I actually have to read the newspapers … Read more

The environment is there for political reform

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by Charles But first, let’s start with the title of this recent Los Angeles Times article:  Petraeus admits to rise in Iraq violence.  The message that the reporter and her editors are sending to their readers is that they know the "truth", and Petraeus was finally cornered in Baghdad and had to ‘fess up. Gen. … Read more