Month: May 2009

The Daily Wrap

Today the Dish was all over the Sotomayor selection. She seems very Obama-esque,  the pick was cunning, but her views on executive power are a bit of a mystery. Nate Silver predicted her confirmation, Orin Kerr compared her to Alito, and John Yoo had the uncrushed balls to question her legal acumen. Would she really be the first Hispanic justice?

The Dish also covered the other legal news of the day – California upholding both Prop 8 and its 18,000 gay marriages. Personally, I thought it was the right call. John Culhane translated the court ruling and an legal reader judged it a key step towards equality. Mercifully, the country barely averted a civil war.

We also took a look around the ruins of conservatism; Linker parsed the intellectual right; Conor dismembered Mark Levin; Dreher and DeBoer exposed the faux populism of Robert Stacy McCain; and I continued to dissect Cheney's speech last week.

To cleanse your mental palette, check out this incredible critter and go make some music.

The Continued Incoherent Blather Of Dick Cheney

CHENEYSIGDavidBohrer:Getty

In that remarkable speech last week, the former vice-president was also able to say:

And when they see the American government caught up in arguments about interrogations, or whether foreign terrorists have constitutional rights, they don’t stand back in awe of our legal system and wonder whether they had misjudged us all along. Instead the terrorists see just what they were hoping for – our unity gone, our resolve shaken, our leaders distracted. In short, they see weakness and opportunity.

As a reader noted, Cheney seems to forget that he is no longer one of the country's executive leaders. So at this point, he, by his own argument, is the one destroying "unity," "distracting" the new president, and "shaking" our resolve. By his own logic, he is now refuting his own position.

Obama's mandate on these questions was and is very clear. It was debated in the election campaign and the commitment to end Cheney's torture regime was actually embraced by both candidates, including the candidate of his own party. I think Cheney has every right to speak out, and thereby reveal both the hollowness of his arguments and his direct responsibility for war crimes. But Cheney doesn't. By his own logic, he should shut up and wait to be prosecuted by a united government under one supreme leader.

From The Annals Of Chutzpah

John Yoo, writing for the American Enterprise magazine blog, targets Sotomayor on grounds of excellence and intellect! This is the same man whose own legal memos were of such poor quality they forced an investigation from the Justice Department's internal watchdog. How painful is it when they remove these people's sense of shame?

A Soda Tax?

Posner is against the idea:

A tax on calories, or on high-calorie foods or ingredients, would be difficult to design and administer and would impose welfare losses, without significant offsetting wealth gains, on thin people. A further problem is that fattening foods, including sugar-flavored sodas, have fallen in price over time relative to fruits and vegetables and other healthful foods, so that a tax on calories would be highly regressive.

Gary Becker adds more arguments against the tax. Derek Thompson argues in favor of sin taxes:

At best, sin taxes take stock of the negative health externalities of obviously toxic products. If Virginia raises its (currently very low) tobacco tax and earmarks the funds for health care, it's either doing one of two things: Discouraging cigaratte use or raising money to cure future emphysema cases. Whether the tax forces VA consumers to question their smoking or pay for its effect, it's still preferable to having the rest of the state pay more taxes for their failing health. At the end of the day, we might as well tax the things we're only going to have to pay for later.

Reading The Decision

John Culhane parses the prop 8 ruling:

The majority went on for almost 140 pages. In brief, their points — which I’ll next explore in somewhat greater depth — are these: (1) The California Constitution is easy to amend, and that’s not something we can change: (2) The deprivation of rights isn’t that big a deal, really, because all that’s been removed by Prop 8 is the word “marriage” rather than the rights that go with it; (3) Based on precedent and constitutional history, Prop 8 is a permissible amendment to the state’s constitution — not a more substantial revision, which would require prior submission to the legislatures (and a 2/3 approval) before going to the voters; (4) There’s no separation of powers problem here: Everyone’s doing their constitutional job; and (5) The Attorney General’s “novel” argument that certain rights are “inalienable” and therefore immune from the vagaries of majority rule, has no traction.

It sounds like a reasonable judgment to me. The job of supporters of equality is now to make the case for real substantive equality – in name as well as form. And to take that argument to the people of California.

A Big Victory For Equality?

A legal reader writes:

Have been through the Prop 8 opinion and dissents. It appears that this is a blockbuster pro-gay-rights decision, restricting the effect of Prop 8 to the effect of removing the designation of gay civil unions as "marriage," but upholding all equal rights previously declared by the Court; and, suggesting that if the opponents of gay rights were to try to restrict equal union rights for gays by constitutional change, such change would be an Amendment (not a revision) and thus would be procedurally much more difficult to accomplish.

Being able to lay claim to the word "marriage" is important, but in all other respects this appears to be a spectacular decision in favor of gay rights.

The decision leaves intact the holding of the Marriage Cases that gays have the fundamental "right to marry" under the California constitution, now and in the future; but unless and until the California constitution is again amended to the contrary, such unions cannot be called marriage.

Opponents of gay civil union rights could try another ballot initiative to expressly amend the constitution to ban such rights, but under the Court's ruling, that proposed amendment would have to ban such rights expressly to be effective. The Court's opinion makes clear that generally, amendments will not be interpreted to repeal constitutional rights by implication. The disfavor of repeal by implication is a longstanding legal principle, and the Court's use of it here is a deft way of sending this issue back to the political process while upholding gay civil union rights for the foreseeable future.  Under this approach by the Court, opponents of gay civil union rights would have to word any future proposed amendments in such a way as to expressly ban gay civil union rights, and as a result, their ability to secure a sufficient number of petition signatures to get the amendment on the ballot, and then a majority of votes at the polls, will be all the more difficult.

This is a very, very good day for the cause of gay marriage rights.

The Vituperation Of Mark Levin

Conor has a tale to tell. What strikes me is that talk radio, even more than the blogosphere, can promote ugly and inflammatory discourse in ways that even its purveyors find hard to control. The medium rewards certainty and polarization and rhetorical excess. And when an entire political tradition – conservatism – gets reinvented and framed by a single medium more powerfully than any other, it may acquire a hue and tone that becomes increasingly unattractive to people sane enough not to think about politics all the time. As Conor notes, this is a problem. So too is the tendency to avoid engaging arguments and invoking the authoritah of popularity. Here's classic Levin:

“I don’t know Dreher and as best I can tell, most nobody does … Ok, let’s debate your point Conor. I told the caller she way extremely annoying. That is what any sensible person would have understood the comment to mean. Now, you don’t like it. You don’t like the way I said it. So what? If you were a dear friend or someone I knew and admired, I might think about it. But you are none of those things. I don’t know who you are and I don’t care if you don’t like it. My purpose was not to win over converts or represent the Republican Party. It was to dispatch this caller as I chose to. As for appealing to people, if I say I have a very large following in broadcast and print media, the likely response would be, “well, what does that have to do with the substance of my criticism.” So, you will have created your own maze of logic by shifting points."

Sigh. But Levin is the hottest item on the "right" since Beck.