publius

Mavericky!

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by publius McCain accuses the Democratic nominee for President of wanting to “lose the war.” Not a surrogate, not a 527 — John McCain said that. Joe Klein pretty much sums it up. It’s a truly classy, relentlessly positive, issue-focused campaign they’re running over there.

What Yglesias Said

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by publius I think this post succinctly captures the absurdity behind the whole “the surge won the war” wave that’s sweeping across Republican circles — and of course, elite media opinion. (And don’t forget our own Eric Martin here and here).

Lessons From The Dark Knight

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by publius

Let’s get to the real issues of the day – The Dark Knight. One of the larger intellectual questions the film asks is whether humans can be the final arbiter of their own power. In other words, should I (or anyone) be entrusted to decide which laws I can ignore for the sake of the greater good?

Obviously, these questions relate quite directly to our own war on terror. But they also extend well beyond the national security context. The questions raised there cover everything from epistemology to the theological divide between Catholics and Protestants.

Spoilers below…

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All McCain’s Men

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by publius I don’t have time today to give this story the attention it deserves, but I’d encourage everyone to go check out Lindsay Beyerstein’s exclusive scoop on Randy Scheunemann, McCain foreign policy advisor. (Bloggers can be reporters too!) The gist of it is that Scheunemann has an enormous conflict of interest because of his … Read more

Our Grotesque Immigration Policy

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by publius Maybe Mickey Kaus or his BFFs at the Corner could weigh in on this: It started when Juana Villegas, an illegal immigrant from Mexico who was nine months pregnant, was pulled over by a police officer in a Nashville suburb for a routine traffic violation. By the time Mrs. Villegas was released from … Read more

John McCain, Tactical Super-Genius

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by publius It’s pretty hilarious to hear the McCain campaign’s whining about the press circus surrounding Obama’s Summer Tour ’08. It’s funny on one level because they practically forced Obama to go abroad by taunting him in every press release – and now it’s backfiring completely. Obama’s trip also provides a pretty stark contrast to … Read more

History Lane – The First Macintosh 1984

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by publius So last night I watched all three parts of the old 1996 PBS special “Triumph of the Nerds.” Hosted by Robert Cringely, it’s basically a history of the computer from early 70s up through 1996. It’s fascinating – and I’m planning on writing a couple of posts on it. But for now, you … Read more

Michael Gerson – The Worst Ever

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by publius

I think it’s fairly clear that Michael Gerson is the worst op-ed writer in the United States. He’s certainly the most insufferable. Sorry Richard Cohen – maybe next year! And today’s effort doesn’t disappoint, even by Gerson’s lofty standards.

First, let’s start with the trifling stuff. Gerson’s writing annoys me because it uses too many puke-inducing adjectives. Good writing and good speechwriting apparently don’t go hand and hand. His columns read like a cross between a Hallmark card and a 9th grade essay. (The majestic majesty of the eloquent sky yawned ostensibly, like a velvet monarch.)

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Mordor Stirs

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by publius The Politico reports that the health insurance industry is gearing up for a big post-election fight over health care reform: Ahead of the approaching health care reform storm, the insurance industry is building an ark: a nationwide education campaign aimed at raising an activist army at least 100,000 strong. . . . The … Read more

A Real “Hero”

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by publius I must confess I haven’t followed Israel’s looming prisoner exchange closely. But maybe someone could explain why I shouldn’t be disgusted at Lebanon’s “hero’s welcome” for a man who once bashed in the skull of a 4-year old girl with the butt of his rifle. Am I missing something?

Three Cheers for “He Said/She Said” Journalism

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by publius Ron “Fightin’” Fournier achieved something I once thought impossible – he’s made me appreciate the “he said/she said” template for journalism. In case you didn’t see the Politico story, Fournier heads the AP Washington Bureau. Since he took over, things have been a little different (Steve “Ivan Drago” Benen explains why things have … Read more

The Primary Reason McCain Sucks

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by publius John McCain may well win this fall. But he’s an atrocious candidate. And his campaign is fairly atrocious as well, particularly compared to the well-disciplined, relentlessly on-message Bush-Cheney machines of yesteryear. But it’s not just that McCain is gaffe-prone. His policy shop has been a complete joke – his policies generally lack crucial … Read more

I Hate Cancer

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by publius Tony Snow is dead at 53. Heartbreaking – thoughts go out to his family. I hope I live to see the day when we get rid of cancer — it’s taken far too much from me, and from everyone.

Goodbye to “Sister Souljah”

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by publius I keep hearing that Nutsgate is a “Sister Souljah moment” for Obama. Frankly, it’s annoying me. First – it’s not a Sister Souljah moment at all. Second – I’m sick of that term. It’s time to retire the Sister Souljah label altogether. It’s inaccurate, and even borderline racist. There are two interpretations of … Read more

Edmund Burke, Patron Saint of Organic Food

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by publius

On the crunchy front, I recently finished Michael Pollan’s In Defense of Food. And while melodramatic in places, it’s worth the read. In fact, I’m finding myself investigating local CSAs, and trying to eat more “food” as opposed to “edible food-like substances.” (not at July 4 BBQs though – I’m not made of stone).

What’s interesting, though, about Pollan’s argument is how fundamentally conservative it is. In particular, it seems to echo many of Edmund Burke’s arguments in that it values the wisdom of traditional customs over the puny powers of Western reason.

To back up, the most powerful conservative Burkean argument has always been an epistemological one – that is, Burke is most persuasive when he’s talking about the limits of human reasoning powers. (This will be familiar to old LF readers). Burke is skeptical about our abilities to determine “the good” from abstract thinking. Instead of trying to recreate a brave new world on paper, we should instead look to the wisdom inherent in customs and tradition.

Under this view, tradition isn’t glorified for tradition’s sake. Tradition is instead a giant laboratory that provides us insight into what works and what doesn’t work. To Burke, we abandon these traditions at our peril when we opt for sudden change or revolution. (Admittedly, this view also justifies existing exploitative relations – e.g., slavery – but that’s a different post).

Anyway, whether Pollan intended it or not, a lot of these Burkean themes run through In Defense of Food, including: (1) skepticism of modernity; (2) wisdom of customs; and (3) the harms of sudden change. More below.

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The “Disgrace” of Social Security

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by publius I just wanted to follow up on Hilzoy’s post. Social Security is one of the most successful, efficient, and politically popular government programs in history. John McCain — candidate for President — said yesterday that the funding mechanism behind this wildly successful program is an “absolute disgrace.” (And that’s the charitable interpretation). Anyway, … Read more

Edwards as VP, Take Two?

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by publius Ed Kilgore caught today’s NPR interview with John Edwards, who apparently signaled a greater willingness to serve as Obama’s VP. And to be honest, I’m warming to the idea. I haven’t felt strongly about the VP pick – but my tentative preferences have been Webb, Clark, Sebelius, and Biden. All of these choices … Read more

More From Zimbabwe

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by publius Today’s Post has an excellent, though chilling, account of the Mugabe government’s bloody repression of the opposition following the election. I wish I had something more intelligent to say, but the article pretty much speaks for itself. It’s revolting — and infuriating. Here’s an excerpt: On the evening of May 5 — three … Read more

Obama Foolishly Underestimates Press Foolishness

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by publius

[UPDATE 10:00 CT: Ok, hilzoy changed my mind (she’s frustratingly good at that). There’s absolutely nothing sloppy about what Obama said when you read the whole passage. The press got Schmidt-Rolled today. It’s a complete and utter farce. So scratch what I say below about Obama’s sloppiness. The larger point of the post stands though — Obama has a nuanced policy, but it’s politically vital that he emphasizes the withdrawal side of that policy.]

When I first saw all the hysterical headlines this evening about Obama’s “refinement,” I got annoyed at Obama for being sloppy. As it turns out, I foolishly took these headlines at face value – bad idea [jeans]. When I actually read what he said, I realized that the press was largely fabricating a story out of nothing. Obama today said what’s he always said. Period. Full stop. The press is manufacturing a new story, with the help of GOP press releases (see Steve Benen for a fuller background).

But that said, I think Obama was uncharacteristically sloppy too. True, the media is terrible, but it’s often terrible in predictable ways. And today’s headlines (and the GOP attacks) were entirely predictable. So Obama should have been more careful.

To be clear, Obama’s policy is – and has always been – phased withdrawal with flexibility. Conditions on the ground have always been part of it — indeed, it would be irresponsible if they weren’t.

But the real issue here isn’t policy itself, but policy emphasis. More precisely, the issue in the weeks ahead will be what aspect of Obama’s policy – the withdrawal or the flexibility – gets the most emphasis. To win the political battle, Obama must ensure that withdrawal receives more emphasis than flexibility. After all, the Bush administration has been citing flexibility to justify indefinite occupation for some time. That’s not Obama’s policy, and it’s imperative that he doesn’t let it get defined that way.

I’ll spell all this out in more detail below…

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Funny

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by publius Andy Borowitz, “Liberal Bloggers Accuse Obama of Trying to Win Election“: The liberal blogosphere was aflame today with new accusations that Sen. Barack Obama (D-Ill) is trying to win the 2008 presidential election. Suspicions about Sen. Obama’s true motives have been building over the past few weeks, but not until today have the … Read more

Trouble In McCain-land

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by publius The Politico reported earlier today that the McCain campaign is essentially replacing Rick Davis, its current campaign manager, with Steve Schmidt. Not exactly where you want to be in early July. This is big news for several reasons, but one particularly important reason is that it’s seemingly a repudiation of Rick Davis’s bold … Read more

Noted Without Further Comment

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by publius The insufferable Michael Gerson: But it is hard to avoid the feeling that Obama has gained the nomination without fully earning it. Unlike Clinton or Bush, his intellectual contributions have been slight. George W. Bush – a regular Horatio Alger story. A Hegelian hero.

“Statistical Dead Heat”

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by publius Via the invaluable Nate Silver, I see that CNN is reporting that Obama’s 5-point lead in a poll with 3.5 margin of error is a “statistical dead heat.” Arrrgh. I’d encourage the good people at CNN to go read either Silver himself or Kevin Drum’s easy “margins of error for dummies” post.

Packer Says, “Iraq 4-Evah!”

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by publius One can only hope that the Obama campaign will completely ignore George Packer’s political advice on Iraq: Obama has shown, with his speech on race, that he has a talent for candor. One can imagine him speaking more honestly on Iraq. If pressed on his timetable for withdrawal, he could say, “That was … Read more

Open Thread: Assignments

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by publius Some nasty little stomach bug cut into my weekend blogging. So while I recover, I thought I’d try the whole “assignments” thread that all the kids are doin’ these days. In case you haven’t seen these before, just let us know what you’d like us to write about. Or just gossip — open … Read more

Heller’s Indictment of Originalism

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by publius

Ok – let’s talk Heller. The question in Heller was not “individual” versus “collective” right, but whether the individual right must relate in some way to militia service. The Court said no, in a 5-4 party-line vote. I’m not crazy about the result, but I don’t care that much about guns. The reasoning, however, is far more troubling. Scalia’s opinion is blatant results-oriented analysis dressed up as rigid historical analysis. The idea that this result is compelled by the history is, frankly, absurd.

There are a million things about Heller on the Internets, so I’m limiting myself to this one point – the Heller opinion is an indictment of originalism. In particular, it shows the gaping weaknesses of a methodology that says our constitutional rights should turn on the ability of non-historian judges and law clerks to sift through cherry-picked snippets of early American history. Stuart kings should be less relevant than the realities of 21st century urban violence on this particular issue.

To begin, let me emphasize that history shouldn’t be irrelevant to constitutional analysis. It can be a valuable tool when the historical record is fairly clear. For instance, let’s say Congress decided to put images of our troops on quarters (25 cent pieces), and someone sued saying the Constitution prohibits “quartering” of troops. History there clearly illustrates that the text doesn’t refer to coins. Similarly, the “domestic tranquility” clause isn’t a basis for a federal domestic abuse statute. So yes, history can be relevant and even dispositive.

But the value of history to constitutional interpretation largely vanishes when the historical record isn’t clear – e.g., when it plausibly supports both interpretations. At this point, courts lack the institutional competence to decide which side’s cherry-picked history citations are more accurate. Judges aren’t historians. They haven’t been trained that way. They have no idea whether the subset of materials being presented is representative and sufficient and so on. Thus, when it’s close, courts need to move on to other interpretative methods.

In Heller, the opinion itself illustrates how unclear the record is. Both sides present historical examples that, taken alone, support their point well. But the evidence doesn’t compel a conclusion either way – particularly from institutionally incompetent judges. It can retroactively justify the decision, but it’s not determining the outcome.

Even if you’re not persuaded by Stevens’ dissent, he at least notes several powerful challenges to Scalia’s historical analysis. Just off the top of my head – (1) the original draft of the Second Amendment was more military-related; (2) several state constitutions explicitly mention self-defense, unlike the federal one. And there are many others. Again, I don’t want to get into a historical debate because it’s silly. The point is that Stevens provided several examples that, at minimum, complicate Scalia’s overly-rosy historical record (which of course neatly held up to a 5-4 vote).

But moving beyond Heller, the extensive use of history in complicated situations has at least two other major problems: (1) it’s anti-democratic; and (2) it’s completely divorced from real-world considerations. More on each below the fold:

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Heller

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by publius Scotusblog reports that it’s out. And the Court did affirm Heller, thus finding an individual right in the Second Amendment. This part was expected — the key will be how broadly they read it, and whether it jeopardizes federal gun legislation. The opinion was also 5-4 along political lines. More on that after … Read more

Kennedy v. Lousiana, Take Two

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by publius

It happens from time to time, but my initial post on Kennedy v. Louisiana was wrong. I disagree with the decision. That said, I think it’s a plausible decision – and it certainly doesn’t justify the hyperventilating cries of illegitimacy from conservatives that seem to accompany every decision that they disagree with (more on that in my next post).

But it’s a bad opinion. It’s not merely that the methodology is shaky. Even assuming you accept the methodology, the Court’s result doesn’t seem consistent with that methodology.

To back up, constitutional law decisions always have two key parts: (1) the result; and (2) the reasoning (i.e., the methodology or doctrine or framework). For instance, imagine the Supreme Court said (a) Gitmo detainees have habeas rights; (b) because Publius says they do and he’s infallible. That’s the correct result, but the reasoning is a wee shaky. More to the point, the methodology adopted will lead to bad things, even if we like the result it produced in this particular case.

It’s easy to lose sight of it in political debates, but constitutional law is often a battle of competing methodologies. And if you want to be cynical, certain Justices favor certain methodologies because they generally produce results they like. Originalist methodology, for instance, was heavily motivated by hostility to the Warren Court. True, originalism sometimes produces results conservatives don’t like, but those are the operating costs of adopting politically favorable methodologies.

So with the result/reasoning distinction in mind, we can better understand the problem with Kennedy. It’s not only that the methodology itself has some serious problems. It’s that the methodology suggests a different result. It gets a bit denser below the fold.

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Kennedy v. Louisiana

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by publius The Court today held that imposing the death penalty for child rape was unconstitutional. I haven’t read the opinion yet, so this post is subject to change. But as grotesquely heinous as child rape is, I think it’s the right call. I’ll talk about doctrine in more detail later, but I think death … Read more

Nomination – Worst Op-Ed of 2008

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by publius I should probably give up reading Richard Cohen columns. But I honestly don’t understand how he could make such two utterly inconsistent points in the same column. First, he tries to absolve himself from the McCain Crush by pointing out that McCain has flip-flopped a lot: But, for the record, let’s recapitulate: McCain … Read more

Jindal Has Company

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by publius When I heard that Bobby Jindal had written (non-ironically) about exorcising a demon, I thought it would pretty much sink his VP chances. Turns out — America agrees with him. From the Post, I saw that Pew released a comprehensive survey on Americans’ religious views. And, as you might expect, America remains extremely … Read more

Philosophers Needed

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by publius Unsurprisingly, Marc Ambinder defended (or perhaps “contextualized”) Charlie Black’s terrorism comments — you know, bold truth-telling and all. But I didn’t quite understand this: Let’s put aside our Humean selves and ask: is Black right? When existential worries predominate, will voters flock to the security blanket provided by a guy with decades of … Read more

George Carlin, RIP

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by publius George Carlin was one of my favorite comics, so I was very saddened to see the news this morning.  So I thought I’d post one of my favorite all-time Carlin bits.  It’s him talking about the first Gulf War where he says that "we like war."  It’s great — and fittingly appropriate.

Some Thoughts on Executive Privilege

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by publius I’m certainly no expert on executive privilege. But in thinking about when the privilege should apply, it’s important to distinguish between two different types of communications: (1) intra-advisors’ communications; and (2) communications with (or among) agency officials. The claim for executive privilege is much weaker in the latter, which of course is the … Read more

Steny’s Bold “Ignore the Rubes” Strategy

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by publius

To follow up on Hilzoy’s post, the part of the FISA “compromise” I find most infuriating is that the Democrats are quite literally insulting our intelligence in describing what they did. Their press releases and statements on telecom immunity assume that we’re morons. If you want to grant immunity, then do it and have the guts to say you’re doing it. But don’t lie about what you did. This whole “treat them like rubes” strategy is unacceptable.

To illustrate — the telcos are getting immunity and everyone knows it. They literally only have to show that the Bush administration sent them a letter. That’s it. Show the letter, and you’re immune — no discovery, no nuthin’. (As I’ve said, I don’t care that much about punishing telcos, I care about generating information through discovery).

However, instead of just admitting that they caved, the Dem leaders are pretending like they’ve instituted tough new standards by requiring a district court to make the final decision. Thus, they’re essentially doing two things: (1) lying about what they’re doing, and (2) shifting blame to a politically unaccountable branch of government.

When I say “lying,” what I mean is that Democratic leaders are dressing up the district court “review” as something it’s not. Via Laura Rozen, here’s how Rockefeller’s committee described the rubber stamping:

A district court hearing a case against a provider will decide whether the Attorney General’s certification attesting that the liability protection standard has been met and is supported by substantial evidence. In making that determination, the court will have the opportunity to examine the highly classified letters to the providers that indicated the President had authorized the activity and that it had been determined to be lawful. The plaintiffs and defendants will have the opportunity to file public briefs on legal issues and the court should include in any public order a description of the legal standards that govern the order.

Sounds pretty scary, eh? Lots of big mean words in there. “Supported by substantial evidence” — tough! Exacting! And you gotta love the whole “opportunity to file public briefs on legal issues.” Yes, I’m sure we can all have a lively legal debate about whether the letter that everyones knows was sent was in fact sent. Should be a very detailed brief.

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