Freedom from Blog

Don't call it a comeback . . . .

Sunday, May 31, 2009

Stoppard's Arcadia at the Folger

If you live in the greater Washington, D.C.-Baltimore region (hint, hint), it would be a great idea to go see this play--which closes June 14, btw. Especially if you have a philosophical/academic bent (ahem). It's a great production of an amazing play--and contemporary (1994, I believe) even.

Too tired to say more. But do try to see it.

Friday, May 29, 2009

Chidren of the Cornyn

So I heard Sen. Cornyn on NPR last night criticizing Sotomayor's "that's where policy is made" gaffe (in the Kinsleyan sense of a pol accidentally saying something this both true and unsayable). Now, I won't cast aspersions on Cornyn--a former justice of the Texas supreme court!--but he must know that his line here, that judges shouldn't make policy but merely just apply the law, is complete bullshit. He certainly had to make some policy when he was on the Texas high court.

Don't believe me? Then check out Richard A. Posner--the GOP judge, mentioned for the Alito seat--specifically, chapter 8 of Overcoming Law: There has never been a time when the courts of the United States . . . have behaved consistently in accordance with this ideal. Nor could they, for reasons rooted in the nature of law and legal institutions, the limitations of human knowledge, and in the character of a political system.

OK, and now a list of instances of "judge-made policy" that conservatives like. We all know that "judge-made law" is always about abortion rights. But conservatives actually like some judge-made policy. (Btw, some of these doctrines are liked by liberals, too, in some circumstances. I'm not calling these "conservative," they're just doctrines that conservatives have tended to like, over time.)

Here's a partial list of legal doctrines that are based purely on case-law and have no statutory basis; to the extent they have constitutional basis, the Constitution leaves quite a bit to be filled in by the courts:

* Standing. Conservatives like the standing doctrine because it blocks liberal interest groups from litigating government policy. It's rooted in Article III, but I think it would be hard to get contemporary standing doctrine out of the words "cases" and "controversies." And standing is an important policy.

* State-secrets privilege.

* Executive privilege. Not mentioned in the Constitution at all, people. Inferred by--yes, you guessed it, the courts!--from the implications of the Constitution. I guess that it emanates in the penumbra or something.

* Substantive due process limits on punitive damage awards in state courts. This one may actually split conservatives--I think that Scalia, IIRC, thinks that this is nonsense on stilts (he may be right!). But certainly some conservatives like this one.

* State sovereign immunity, under the 11th amendment, against suits by the citizens of the same state. It may make sense, it may not--but it is clearly judge-made policy.

* Qualified immunity of state and federal officials from liability. This one is less politically prominent than the others, but this is a big one for litigation. The doctrine was, um, created in response to the flood of s. 1983 lawsuits post-1961. I am not aware of any statute on this at all.

I could go on. That's a partial list. The fact is that appellate judges make policy all the time. As Posner says, they have to. I don't even know why this is controversial.

Oh, yeah, I do. It's because one side of the debate insists on ignoring the reality and instead clings to an "ideal" that is impossible to comply with. And ends up talking to us like we're children.

I think I'm tuning out of the confirmation thing for awhile.

Thursday, May 28, 2009

The Time Machine Game

OK, here's how we play. I have a time machine, and I can send you back to any point, but only to ask people in the past about their expectations of the future. In today's installment, we're going back to 1989--yes, that's right, 20 years into the past!--to ask informed citizens a simple question: "Do you think that abortion will be as central to U.S. politics in 20 years (i.e., 2009) as it is today?"

Now, 1989 person has good reason to be skeptical of this. Given the Court confirmation fights of the recent past (Bork! in 1987)--and the election of "pro-life" George [H.W.] Bush in 1988--it looks like Roe v. Wade is toast. [Of course, 1989 person has no way of knowing that Bush will nominate Souter, who along with Reagan nominees O'Connor and Kennedy will decline to overrule Roe. And we violate temporal continuity if we tell her--so hush!] So there's likely going to be something in the post-1989 period on abortion. But will abortion be a litmus test--largely for both sides--in 20 years? Or will the agenda have moved on?

I think that it's pretty clear that the agenda has not. For 20 years, other issues have come, and gone, some have returned. But abortion remains central. I've been surprised by how often it has already come up in the Sotomayor discussions.

I find this surprising--and I'm sure 1989 person would, too. The issues in 1989 were not the same as in 1969; the issues in 1969 were not the same as in 1949. But in 2009, one major issue--and potentially more, like affirmative action, taxes, etc.--is pretty much a 1989 issue.

Tuesday, May 26, 2009

Soto's Voce

I can't comment yet on Sonia Sotomayor's judicial record, but I have found the debate about her interesting, especially since it began long before she was chosen. Less from the wingnuts--like James Inhoffe (R-OK)--than within the progressive camp. Glenn Greenwald at Salon has enthused about her, in part I think because TNR's Jeffery Rosen wrote a column, based on anonymous sourcing, expressing reservations about her intellect and temperament. Greenwald tends to assume that anything that comes out of TNR is malicious "centrism", and he was quick to assign corrupt intent to Rosen, suggesting family vendettas and ideological betrayal.

As much as I appreciate Greenwald's valiance and doggedness in the fight for civil liberties under GWB, he drifts in Cheney-like heretic hunter mode whenever TNR crosses his path. He once attacked TNR retrospectively for having endorsed Joe Lieberman in the 2004 presidential primaries, without recognizing that they had been so divided that they had published FIVE separate endorsements in a single issue, none of which represented the unified view of a magazine devoted to diverse center-left dialogue. Similarly, here he missed the point of Rosen's piece, which cited liberal law clerks who feared than Sotomayor wouldn't be enough of a liberal lion, an anti-Scalia. Such criticism came today from Jonathan Turley, whose civil libertarian bona fides aren't in much doubt. Furthermore, Greenwald didn't bother looking to see that Rosen had also endorsed Sotomayor's nomination, arguing that confirming her wasn't a close call.

For my part, I don't much want a lefty Antonin. I prefer my justices restrained, right or left. And I've always thought that Nino's intellectual heft is overrated. His talent is less as an interpreter of the law--his "originalism" has always been a hypocritical and poorly concealed cover for right-wing preference maximizing--than as a red meat rhetorician. The left certainly needs that, just not necessarily on the court. I don't cotton much to a court that tries to lead social revolution (let that come from the political branches), but I do want a court that preserves constitutional liberties and resists the drift of right wing extremism. As Rosen himself has noted in his latest book, Scalia's caustic celebrity hasn't made him a very effective justice. Rosen prefers pragmatists of jovial temperament, although he undermines his case there by using CJ Roberts as a positive example. Sure, he cleans up nice for the cocktail parties, but at the end of the day, he's just another partisan flack. I'd be shocked if history remembers him as anything other than a reliable vote for the most privileged (and corrupt) voices of his day.

We might also note that it is hard to predict what justices will become liberal lions: Warren, Brennan, and Black were all surprises based on their backgrounds, and Frankfurter, Douglas, and Thurgood Marshall were all disappointments, if for very different reasons. Sotomayor is clearly qualified. At this point, all other speculation is crystal ball gazing.

Sunday, May 24, 2009

Profile Encourage

So, after three and a half years on this blog I've finally gotten around to revising my "blogger profile" (the link at right). Meaning. . . writing a blogger profile. Hard to think about boiling one's life story down to 1200 characters or less. I've tried to tell the truth about myself as I know it. Have I left anything out? I don't think so. This could one day be my obit. If I'm not a deathless superman, that is.

Becking Order

You've likely seen the footage of Glenn Beck on The View where Whoopi and Babwa confront him about his manufactured version of an Amtrak encounter, one designed to make him look like some common-man victim of rich, liberal media elites.

One thing that struck me: Beck will not engage with Whoopi, but he's very apologetic and deferential toward Babwa. Now maybe this is about race, but I think it's more likely that it is about authority. The Whiny One instinctively bows before old, white exemplars of authority while he can't even make eye contact with critics he deems non-authoritative.

Loquacious McD pointed out something else about that interview. When asked to describe the "principles" for which he stood, he couldn't actually name any. Instead, he said "God," "George Washington," and "Thomas Jefferson," dropping names as totems of authority without offering any attempt at explaining what those figures themselves might have stood FOR. And "God," of course, is the ultimate symbol of the "authoritative individual" in whose reflected freedom Beck is vicariously basking. Since such authority is necessarily singular, it could never occur to Beck that there might be conflicts between them, say b/w an authoritarian God and the man who famously said, "It does me no injury for my neighbor to say there are 20 gods, or no God. It neither picks my pocket nor breaks my leg." You'd hope a Mormon like Beck would have some appreciation for such sentiments, but then there's the tension b/w the history (one defined by persecution) and the doctrine (one defined by theocracy). Turns out, it's all good if you're in the Pantheon. He's got many gods and they all agree. How convenient.

Saturday, May 23, 2009

Like New All Over

So last year when we moved into the new house, we bought a "fancy" HD flat screen teevee--a Sharp Aquos. It's not humongous, but good sized. Anyhoo, apparently I never managed to hook it up correctly to the HD cable box, so we weren't really getting "HD" teevee. The picture was good, but not great. Other things occupying my time, I kind of got used to it . . .

That cable box died recently, so the cable guy came out. First time the cable guys came out to deal with an issue with the new teevee. And he switched out the box, tested the equipment, and said, "That's not really HD. You know, you need an HDMI cable." I said, "Um, no, I didn't know that. Please explain."

Long story short: Now I can watch the Nationals' bullpen get pummeled in amazingly clear HD video. Thanks, cable guy!

The Choice, the Cycle, and the Gathering Storm

I think TMcD makes several nice points in this post. I just want to add that the civil libertarians here (and I know many who share their views) are really asking the impossible.

Obama has a choice: He can either pursue his own agenda (health care, climate change, the "New Foundation"), OR he can clean up after the Bush administration--airing the dirty laundry, pursuing malefactors, etc. He can't do both. American politics doesn't permit that ambitious an agenda. And pursuing criminal investigations--even IF warranted--would consume all his political capital ASAP. He wouldn't have any mojo left for any of his own agenda.

A good friend of mine, when forced to choose (by me), recently told me he would go for "the rule of law," his words, over health care, etc. I think that that represents a very sheltered and privileged set of priorities. It's likely, for example, that a failure on health care in the next two years dooms us to fifteen or twenty years of the status quo, more or less. I'm all for "the rule of law," but reality forces us to recognize trade-offs.

I think that this was what was behind the pull back on releasing the torture photos. There was simply NO WAY that those photos could be released AND the administration could continue to defer, demur, and avoid further investigations. It was a choice: release the photos and get dragged into a truth commission, or not release them. I really don't buy the "didn't want to put US military into harm's way" argument. You don't send 1000s of new troops to Afghanistan unless you're willing to do that.

That was a decision based on domestic politics.

As for the GOP, I was surprised tonite on NPR (et tu?) that the story was "congressional GOP has a good week"--based on the Gitmo vote and the concealed carry in national parks amendment in the credit card bill. These were largely symbolic victories. Neither will matter to any substantial bloc of voters come 2010--or 2012--and neither stands for a policy agenda.

It's important to remember that the news media needs a new story (it is "news," after all). I wouldn't be surprised at all if the news media "invents" a GOP comeback in the next few months. They have certainly been on the look out for Obama stumbles. (Air Force One, anyone?)

The GOP's biggest stumbling block, of course, is Dick Cheney. As long as he stays on the stage, they will have a hard time turning the page. But my guess is that his time is nearing its end. He's gotten just about as much coverage as one can get. We've heard his piece. The tide must ebb.

The wild card going forward is the Supreme Court confirmation fight. I am curious to see how that plays out. Both sides have to be concerned that they will be judged by the voters on their conduct of that fight. But exactly which set of voters they are concerned about--that is the question. If Senate GOPpers see this as an opportunity to rally the base--and that only--then it will be incredibly ugly. That's rather obvious, of course, but beyond that, time will tell.

Thursday, May 21, 2009

Torturing Dick

Was anyone else reminded of the scene in the movie Dave where the Rovean former chief of staff, Bob Alexander (Frank Langella), awaits a pivotal presidential speech by Dave, the naif, expecting to be lifted up in triumph by his enemy's implosion, only to be unmasked as an authoritarian fraud?

Despite the artificiality of its media framing, there was something deeply historical and even "essential" about the Oba-Cheney "debate" today over national security and civil liberties. Modern thought, as we all know, revolves around the rise of "the individual." Since the beginning of the modern Anglo-Saxon politics almost 400 years ago, during the English Civil War, two competing visions of that individualism--the Hobbesian and the Lockean--have vied for preeminence. No matter how much the GOP waves the flag of founding "originalism," they will always be Hobbesians at heart.

Cheney's speech today was pure Hobbes: we live in a dangerous world where enemies are out to kill us; for freedom to survive, we need an absolute and unquestioned executive authority to secure our lives. In the war against those enemies, no legal rules or moral boundaries can possibly apply, since they would undermine the ability of the sovereign to mount an effective defense of his people. Once that leader has absolute freedom to act, the people will bask in his reflected power and will see themselves represented in him, whether or not they had any role in choosing him. What irony of a recent-but-former VP launching an unprecedented attack on a new president? Obviously, Obama is a usurper. Cheney has never accepted democratic norms, and, like Hobbes, his conception of legitimacy has nothing to do with the niceties of legal process and everything to do with projections of raw might. Indeed, those legalities are signs of "weakness" and hence work to undermine one's claim to power. Fear and Dick, to twist the old line from Hobbes, were "born twins."

Hobbes is often held up as a founder of modern "liberal" thought thanks to his intensely individualistic premises. But his thought is better described as "authoritarian individualism." It is a reaction against the first stirrings of "Jeffersonian" liberal democracy, appearing in England's Leveller movement, obsessed as the latter was with democracy, natural law, and due process. Hobbes may be modernity's original reactionary and its eternal doppelganger, co-opting the assumptions of his opponents to subvert their larger ends. Most of the right-wing thought over the subsequent centuries has followed a script first sketched in Leviathan: the American Tories (Seabury, Leonard, Boucher, Chalmers), the Social Darwinists (Spencer, Sumner), the existentialists (Kierkegaard, Nietzsche), the Fascists (Mussolini, Schmitt), and the contemporary right (Coulter, Cheney) all offer variations on his central theme. We must choose between apocalyptic and unmediatable opposites: peace vs. war, capitalism vs. communism, faith vs. damnation, friend vs. enemy, "real" Americans vs. terrorists. Moderation, pluralism, and practical reason have no place in a world of absolutes, which is why authoritarian individualists bear so little resemblance to the philosophical "conservatism" of an Aristotle or a Burke. As Cheney said today, "In the fight against terrorism, there is no middle ground." If there's any question whether the libertarians belong in this rogue's gallery, note that Cheney's speech today came at the American Enterprise Institute. Libertarians do not revere capital-ism, they worship capital-ists. In Hobbesian fashion they gaze upon great power and see themselves represented. Call it "vicarious freedom."

Obama's speech, by contrast, was pure Locke: a measured appeal to reason and the rule of law in recognition that, even in a state of war, the laws of nature--great respecters of persons in their personhood--must be upheld. Of course, Obama also inherits the messiness of Locke's proposed solution. Rather than embracing the Leveller position, which called for legislative supremacy without royal discretion, Locke invented a hybrid model that combined legislative supremacy with a separation of powers, intended to preserve some measure of executive "prerogative," especially in matters of war. Locke also gave one of history's great rhetorical defenses of individual rights, while in practice entrusting those rights only to the determination of the majority in parliament. Which sounds a lot like Obama's effort today to have it both ways: to affirm the rule of law and the "co-equality" of the branches while avoiding torture investigations and forging ahead with military commissions and "prolonged detentions," all of which quite reasonably strikes our civil libertarians (heirs to the Levellers and Algernon Sidney) as watered-down Bushism.

Or, it is law vs. politics. As president, Obama needs to pick his battles, and he cannot afford one with his own bureaucracies (CIA, Defense, etc.). So he's deferring the big questions until he's got a surer hold over his own branch. His power vis-a-vis Congress is greatest now, so he needs an immediate focus on his legislative agenda: health care, cap and trade, etc. But his power over the executive departments is lowest now, so his ability to alter the legal framework of the War on Terror is modest. In the meantime, let the civil libertarians howl. If they can build a groundswell of political pressure to shift the political ground over the next few years, all the better, especially if the Dems can pick up more seats in Congress in 2010 or 2012. Maybe that's too complex a bank shot to be a plausible explanation. It may also be the mirror image of the risky GOP strategy of putting all their chips on Obama failure.

Either way, these are the political trade-offs left us by a Lockean tradition where the pluralism of politics trumps the singularity of power of which Hobbes dreamed, one based in the awesome will of the unconstrained individual. I can only hope that the arc of a Lockean presidency will bend toward freedom.

Saturday, May 16, 2009

Explosion at the Nutjob Factory

Now that my semester is finally over--have I ever said that it's a bad idea to have a second child while finishing up five classes with 150 students at two schools?--I've been thinking once again about the fate of the conservative movement. We've had another month replete wit' da crazy as a rudderless GOP has desperately sought to find itself. What's a fit end to such a prolonged bout of adolescent narcissism? No vision quest or motorcycle Zen for these lads. No, it's all lashing out, teen rebellion in full "Whata'ya got!?" mode: down with "socialism," "communism," "fascism," teleprompters, pirate coddlers, Chavez appeasers, torture scoffers, tattoo removers, volcano monitors, gay marriers, "anal poisoners," big(ger) spenders, hypothetical future taxers, auto bailers, global currency adopters, no jacket in the Oval Office wearers, "rule of law" restorers, judicial empathizers, anti-Limbaugh laughers, and Portugese water hounders.

What a bunch of biddies. It's backbiting hour at the knitting club--they're less Brando than the Golden Girls, dreaming of the big dicks they sucked in bygone days (ooo, did you see that Ronnie Reagan!) while jumping at the smallest spider and peeing in their pants at the slightest provocation. Chicken hawk conservatism has become Chicken Little conservatism.

When I wrote, two and a half years ago, about the collapse of the "Conservative Era" I had some doubters, and although it still may prove premature, that post holds up pretty well in current light. Having lost House, Senate, and White House in successive landslide elections, the GOP has started eating its own. Limbaugh, Powell, and Cheney are all debating who should get kicked out of the little tent, and Richard Posner, one of the few intellectual wingers left at the party, has just called for the lights to be turned out. All depends, of course, on Obama's ability to govern. But if he can, and the signs are good, this could be the realignment Karl Rove longed for, just in reverse. Any wonder that Rove repeatedly insults Obama with exact descriptions of his own rule ("hardball," "polarizing," "partisan," "political"). No higher Rovean compliment than the last. He clearly sees his own lost victories realized in his enemies', and it is not so slowly driving him insane. In a few years, he'll be living in a gutter, marinating in his own vomit and filth, and shouting intermittent slurs like a sailor with Tourette's. Which, come to think of it, won't be very different from his current gig on FOX News.

So get out while you can, all ye true "conservatives": ye Souters and Specters and Powells. The reactionaries are in charge, and they want to throw you off the Titanic lest your weight sink their tilting ship. Reagan's rule--"no enemies on the right"--has finally been realized as "no friends in the center." The GOP will live on, and the crazies will one day come raging back. But, for now, best to leave them alone as they lunge toward their iceberg. Maybe that's a problem global warming can one day solve, but the moderates surely cannot.

Sunday, May 03, 2009


One almost gets used to the leafless season that is winter. But then all the trees sprout their leaves, and things are beautiful once again. New life, indeed.