If morals are relative, is it wrong to impose one's values on another group? No, says William F. Vallicella. If moral are relative, the nothing is objectively wrong. So the value of imposing one's values on someone else cannot be wrong in the sense that everyone must admit it's wrong. So the best one can say is that in his value system it is wrong to impose values on another.
See, one can disagree with an objective morality and still impose his values on others.
(Hat Tip: Sago Boulevard)
Thursday, September 29, 2005
Would Reid have Voted for Ginsburg?
Harry Reid voted against Roberts because he left too many questions unanswered. That means that Reid felt he couldn't get a feel on how Roberts would vote in future cases, since his record was inconclusive (thanks to White House "stonewalling") and Roberts' refusal to answer questions on cases facing the Supreme Court.
But Justice Ginsburg has come out in support of Roberts' position and explained that she did the exact same thing. So would Reid have voted for her in her nomination was today?
But Justice Ginsburg has come out in support of Roberts' position and explained that she did the exact same thing. So would Reid have voted for her in her nomination was today?
Tuesday, September 27, 2005
Doesn't Burk Have Anything Better To Do?
Martha Burk has sent a letter of protest to NBC and NHL Commissioner Gary Bettman over an ad the NHL is showing as part of its "My NHL" advertising campaign. As usual Burk lacks the most basic political sense. Fresh off her failure at Augusta, she is now targeting the one sport that can use any publicity it can get.
I used to follow hockey back when the Rangers actually made the playoffs. And like most fans I did not care less when the league went off the air for a year. How many fans really know the NHL is back? How many fans heard of the "My NHL" campaign? The smartest thing for the league to do is to continue using this ad because it will now generate publicity thanks to Burk and friends. And many men will be curious to see what the ad is about, especially when they hear there's a scantily clad women in the background. So all Burk has done is create publicity for league in desperate need of it. Feminists of all stripes must be thanking their lucky stars that Burk is stepping down.
I used to follow hockey back when the Rangers actually made the playoffs. And like most fans I did not care less when the league went off the air for a year. How many fans really know the NHL is back? How many fans heard of the "My NHL" campaign? The smartest thing for the league to do is to continue using this ad because it will now generate publicity thanks to Burk and friends. And many men will be curious to see what the ad is about, especially when they hear there's a scantily clad women in the background. So all Burk has done is create publicity for league in desperate need of it. Feminists of all stripes must be thanking their lucky stars that Burk is stepping down.
List of Potential SC Candidates
OUBlog has posted a list a possible candidates for the O'Connor seat. Most of the candidates are are the usual suspects, the people rumored to be picked last time. My (uniformed) understanding assumes a lot of these people can be crossed off the list for purely politcal reasons. And with Bush hinting to picking a woman or minority, some on the list can be struck off because they don't fit the profile. Here's the list with my comments in italics:
Emilio Garza. Court of Appeals, 4th Circuit. Would be first Hispanic named to the Court, but only if Benjamin Cardozo (served 1932-1938) doesn't count (hereafter "oiBCdc"). Has publicly criticized Roe v. Wade and would likely be filibustered.
The skinny: Republicans would love to see Democrats attack a highly qualified Hispanic. (Seems like a pretty solid option given his ethnicity and opposition to Roe. He might generate a filibuster, but it would be much more difficult to filibuster a Hispanic whose court is headquartered in New Orleans)
Janice Rogers Brown. Court of Appeals, DC circuit. Only potential nominee more conservative than Clarence Thomas. Would be first black female on the Court.
The skinny: Has compared big government to slavery and the New Deal as the triumph of our "socialist revolution." She's so far right it's possible the Democrats wouldn't need to filibuster her. (No chance. She fits the minority/woman profile, but she's an extreme libertarian who was filibustered for years before getting on the Court of Appeals. The Democrats will never allow her on the Court)
Alberto Gonzalez. Attorney General. Would be first Hispanic named to the Court, "oiBCdc". Purportedly pro-choice candidate could unify Republicans and Democrats the same way Kelo v. New London (New London took people's homes to give them to private developers) did: substantial opposition by both.
The skinny: Democrats would have to consider whether they'd prefer a pro-torture official as head of the Department of Justice or 1/9th of the Supreme Court. (Simplu put, it's questionable if Gonzalez is conservative enough for this spot. With Bush's apporval ratings sagging, he needs to reenergize his base and appointing a moderate conservative is not the way to do that. While he fits the Hispanic profile, I don't see this move making political sense)
Frank Easterbrook. Court of Appeals, 7th Circuit. Leading disciple of the law and economics movement, would be favorite of economic conservatives upset by Kelo.
The skinny: Richard Posner, founder of law and economics, would deserve any law and economics seat, but the provocative Posner couldn't be confirmed. Like Moses, Posner showed the way, but he doesn't make it to the promised land. (Too Law and Economics. I haven't read anything by Easterbrook, but if he's like Posner at all, his views on Constitutional interpretation or law in general would diverege far from Bush's. Plus, he doesn't add the diversity/woman element)
Miguel Estrada. Private practice. Honduran born and raised immigrant graduated from Columbia and Harvard. Would be first Hispanic named to the Court, "oiBCdc". Denied lower visibility seat on Court of Appeals by Democrats to keep themselves from having to block this highly qualified conservative Hispanic from the higher visibility Supreme Court.
The skinny: According to the Washington Post, Latino opponents to his Court of Appeals nomination thought him "insufficiently Hispanic." (Estrada got the worst of the filibusters. While eminently qualified, he's portrayed as too extreme, and I can't see him losing that label because of a SC nomination)
Michael McConnell. Court of Appeals, 10th Circuit. Former constitutional law scholar. Strong supporter of religion in public life. Conservative, independent thinker has criticized Roe v. Wade and Bush v. Gore.
The skinny: Probably the most conservative nominee who could be confirmed. Even liberal law profs would love to see one of their own make it to the big leagues. (Solid choice but not a conservative or woman, so no go)
Edith Jones. Court of Appeals, 5th Circuit. Voted to reinstate a death sentence because defendant hadn't proved that his attorney slept through "critical" parts of his capital trial.
The skinny: Bush 41 chose Souter over her in 1990, and we know how 43 loves to fix daddy's mistakes. (Would seem to make as much sense as anyone until this point. Conservative, female, and got shafted because of Souter)
Priscilla Owen. Court of Appeals, 5th Circuit. Filibustered by Democrats until compromise over nuclear option allowed her to receive a vote.
The skinny: Democrats could call Alberto Gonzalez, who accused her of "unconscionable judicial activism" when they served together on a Texas Supreme Court abortion case, to testify against her. But since her vote denied the pro-choice claim, it's the sort of judicial activism that Republicans love. (Same problem as Estrada. Viewed as "out of the mainstream." Can't see her changing that perception)
Edith Brown Clement. Court of Appeals, 4th Circuit. Stealth conservative who graduated Tulane (read: not Harvard, Yale, etc.). White House leaked her name as O'Connor's replacement hours before actually naming Roberts.
The skinny: We won't get fooled again! (As good a choice as Jones or Garza, plus hails from New Orleans)
It would seem Bush will choose either Clement, Jones, or Garza, given all the factors I mentioned. We'll see on Friday.
(Hat Tip: Legal Theory Blog)
Emilio Garza. Court of Appeals, 4th Circuit. Would be first Hispanic named to the Court, but only if Benjamin Cardozo (served 1932-1938) doesn't count (hereafter "oiBCdc"). Has publicly criticized Roe v. Wade and would likely be filibustered.
The skinny: Republicans would love to see Democrats attack a highly qualified Hispanic. (Seems like a pretty solid option given his ethnicity and opposition to Roe. He might generate a filibuster, but it would be much more difficult to filibuster a Hispanic whose court is headquartered in New Orleans)
Janice Rogers Brown. Court of Appeals, DC circuit. Only potential nominee more conservative than Clarence Thomas. Would be first black female on the Court.
The skinny: Has compared big government to slavery and the New Deal as the triumph of our "socialist revolution." She's so far right it's possible the Democrats wouldn't need to filibuster her. (No chance. She fits the minority/woman profile, but she's an extreme libertarian who was filibustered for years before getting on the Court of Appeals. The Democrats will never allow her on the Court)
Alberto Gonzalez. Attorney General. Would be first Hispanic named to the Court, "oiBCdc". Purportedly pro-choice candidate could unify Republicans and Democrats the same way Kelo v. New London (New London took people's homes to give them to private developers) did: substantial opposition by both.
The skinny: Democrats would have to consider whether they'd prefer a pro-torture official as head of the Department of Justice or 1/9th of the Supreme Court. (Simplu put, it's questionable if Gonzalez is conservative enough for this spot. With Bush's apporval ratings sagging, he needs to reenergize his base and appointing a moderate conservative is not the way to do that. While he fits the Hispanic profile, I don't see this move making political sense)
Frank Easterbrook. Court of Appeals, 7th Circuit. Leading disciple of the law and economics movement, would be favorite of economic conservatives upset by Kelo.
The skinny: Richard Posner, founder of law and economics, would deserve any law and economics seat, but the provocative Posner couldn't be confirmed. Like Moses, Posner showed the way, but he doesn't make it to the promised land. (Too Law and Economics. I haven't read anything by Easterbrook, but if he's like Posner at all, his views on Constitutional interpretation or law in general would diverege far from Bush's. Plus, he doesn't add the diversity/woman element)
Miguel Estrada. Private practice. Honduran born and raised immigrant graduated from Columbia and Harvard. Would be first Hispanic named to the Court, "oiBCdc". Denied lower visibility seat on Court of Appeals by Democrats to keep themselves from having to block this highly qualified conservative Hispanic from the higher visibility Supreme Court.
The skinny: According to the Washington Post, Latino opponents to his Court of Appeals nomination thought him "insufficiently Hispanic." (Estrada got the worst of the filibusters. While eminently qualified, he's portrayed as too extreme, and I can't see him losing that label because of a SC nomination)
Michael McConnell. Court of Appeals, 10th Circuit. Former constitutional law scholar. Strong supporter of religion in public life. Conservative, independent thinker has criticized Roe v. Wade and Bush v. Gore.
The skinny: Probably the most conservative nominee who could be confirmed. Even liberal law profs would love to see one of their own make it to the big leagues. (Solid choice but not a conservative or woman, so no go)
Edith Jones. Court of Appeals, 5th Circuit. Voted to reinstate a death sentence because defendant hadn't proved that his attorney slept through "critical" parts of his capital trial.
The skinny: Bush 41 chose Souter over her in 1990, and we know how 43 loves to fix daddy's mistakes. (Would seem to make as much sense as anyone until this point. Conservative, female, and got shafted because of Souter)
Priscilla Owen. Court of Appeals, 5th Circuit. Filibustered by Democrats until compromise over nuclear option allowed her to receive a vote.
The skinny: Democrats could call Alberto Gonzalez, who accused her of "unconscionable judicial activism" when they served together on a Texas Supreme Court abortion case, to testify against her. But since her vote denied the pro-choice claim, it's the sort of judicial activism that Republicans love. (Same problem as Estrada. Viewed as "out of the mainstream." Can't see her changing that perception)
Edith Brown Clement. Court of Appeals, 4th Circuit. Stealth conservative who graduated Tulane (read: not Harvard, Yale, etc.). White House leaked her name as O'Connor's replacement hours before actually naming Roberts.
The skinny: We won't get fooled again! (As good a choice as Jones or Garza, plus hails from New Orleans)
It would seem Bush will choose either Clement, Jones, or Garza, given all the factors I mentioned. We'll see on Friday.
(Hat Tip: Legal Theory Blog)
Saturday, September 24, 2005
That Was Quick
Operation First Rain is under way. A missile blew up during a Hamas rally, so they blamed Israel and shot 35 missiles into the Negev. So Israel decided to do the smartest thing: retaliate hard. The primary security-oriented supposition that Disengagement was based on was that the IDF would retaliate hard for any cross border violence because the Palestinians would be violating an international border.
No one seriously thought the border would remain inviolate. Supporters of Disengagement thought Hamas would be smart enough to wait a little bit before attacking. Israel is basking in solid international support right now; its standing around the world is probably its highest since Oslo in 1993. Attacking now is just dumb, but Hamas did not want to look incompetent so they had no choice but to attack Israel for its "crime" against Palestinian civilians. Well, it's time to reap what they sowed.
No one seriously thought the border would remain inviolate. Supporters of Disengagement thought Hamas would be smart enough to wait a little bit before attacking. Israel is basking in solid international support right now; its standing around the world is probably its highest since Oslo in 1993. Attacking now is just dumb, but Hamas did not want to look incompetent so they had no choice but to attack Israel for its "crime" against Palestinian civilians. Well, it's time to reap what they sowed.
Thursday, September 22, 2005
Harvard Chickens Out
Despite promising to bar employers who openly discriminate against gay and lesbian employees from recruiting on campus, Harvard reversed course yesterday and decided to allow the military access to its Office of Career Services. Why? Because the Defense Department threatened to withhold the $400 million dollars Harvard receives annually from the Federal government. Under the Solomon Amendment passed in 1994, the Defense Department is authorized to withhold funding from any school that denies military recruiters access to its campus. The constitutionality of the amendment will be tested by the Supreme Court later this year in FAIR v. Rumsfeld.
The question (from the limited research I've done) is whether academic freedom is protected under the First Amendment and therefore whether Congress can pass a law under its Spending Power that conflicts with such freedom. I haven't done enough research to have an opinion, so I'll leave it at that.
But a school with a 22 billion dollar endowment should be willing to stand up and defend their principles even at the loss of a few million dollars. It's not like Harvard needs the money. It's just sad to see people talk big, and then when push comes to shove, crack under pressure.
The question (from the limited research I've done) is whether academic freedom is protected under the First Amendment and therefore whether Congress can pass a law under its Spending Power that conflicts with such freedom. I haven't done enough research to have an opinion, so I'll leave it at that.
But a school with a 22 billion dollar endowment should be willing to stand up and defend their principles even at the loss of a few million dollars. It's not like Harvard needs the money. It's just sad to see people talk big, and then when push comes to shove, crack under pressure.
Wednesday, September 21, 2005
Blogroll
I've updated (I mean created) my blogroll. I listed the first blogs that came to mind, and as I think of it right now, I know I left some off. So when I have time, I'll put some more on. Don't be offended if you read my blog and I didn't put your blog on the list. But if people keep coming here, I'll see the referring URL and that'll remind me to update my blogroll.
Tuesday, September 20, 2005
Kerr Wants McConnell
Orin Kerr lays out the case for Michael McConnell here. Sounds like a pretty good choice.
Nazi Hunter Passes Away
Simon Wiesenthal, famed Nazi hunter, died today at the age of 96. A man who devoted his life to bringing closure for the living and justice for the dead, his passing brings a moment of sadness to the world. Let us hope his memory will be used to strenghten the rights of the weak.
Update: the US Senate will vote on a resolution in his memory, in recognition of "his legacy of promoting tolerance, justice and human rights."
(Hat Tip: Sago Boulevard)
Update: the US Senate will vote on a resolution in his memory, in recognition of "his legacy of promoting tolerance, justice and human rights."
(Hat Tip: Sago Boulevard)
Do We Need Women's Sports At All?
Is there any advantage to having Women’s sports? More specifically, should the government require that schools allocate equal funds to both men’s and women’s sports teams?
Title IX requires that to receive federal funding a school cannot distinguish based on sex. In reality this rule requires equal funding for both men’s and women’s sports programs. The constitutional legitimacy of Title IX is debatable, but I’m accepting its veracity here.
Is there an advantage to having separate women’s teams? Should a school be required to create two tracks of sports programs? Those are difficult question. There seems to be benefits of women’s sports, from self-confidence to learning about teamwork. But do these benefits justify congressional legislation mandating women’s teams?
First a libertarian objection: Let’s assume there are benefits to women’s teams. If these benefits are universally known, then schools will create women’s sports programs for the sole reason of drawing qualified females to their school. If school A has a program and school B lacks one, then more women will choose school A, all things being equal. And even though all things are never equal, school A will have a recruiting advantage over school B. So if women are choosing schools for their sports teams, then other schools will create programs simply to keep up. This is free market economics at its best.
I am not a libertarian (although I do have some leanings). The above argument has been made against Title VI, which prohibits discrimination based on race in employment. The argument goes that if one corporation refuses to hire Blacks, they are putting themselves at a disadvantage and the firms that are equal-opportunity employers will do better, forcing the racist firms to change their hiring practices or lose money.
Even if this argument is true in fact, I disagree on moral grounds. Society should not allow a situation where certain groups can be openly excluded on racial grounds. Such a society promotes the existence of an “other,” and that is detrimental to having a cohesive society. Moreover, the other will often feel disadvantaged and will generally not be as successful. So I agree with Title VI.
But Title IX is different. If men’s teams excluded women, then the situations would be analogous. But men’s teams are inclusive, and women can play if they make the team based on merit. So women’s teams are a form of affirmative action, because the school creates these teams for people of a certain gender, and the teams are generally are not inclusive. I see no reason why creating women’s teams is any more correct than having two tracks of men’s teams. If both men and women can make the men’s team, then everyone has an equal opportunity. Creating teams for people who aren’t capable of making that team makes as much sense as creating special handicap teams.
I’ll deal with some other objections in later posts.
Title IX requires that to receive federal funding a school cannot distinguish based on sex. In reality this rule requires equal funding for both men’s and women’s sports programs. The constitutional legitimacy of Title IX is debatable, but I’m accepting its veracity here.
Is there an advantage to having separate women’s teams? Should a school be required to create two tracks of sports programs? Those are difficult question. There seems to be benefits of women’s sports, from self-confidence to learning about teamwork. But do these benefits justify congressional legislation mandating women’s teams?
First a libertarian objection: Let’s assume there are benefits to women’s teams. If these benefits are universally known, then schools will create women’s sports programs for the sole reason of drawing qualified females to their school. If school A has a program and school B lacks one, then more women will choose school A, all things being equal. And even though all things are never equal, school A will have a recruiting advantage over school B. So if women are choosing schools for their sports teams, then other schools will create programs simply to keep up. This is free market economics at its best.
I am not a libertarian (although I do have some leanings). The above argument has been made against Title VI, which prohibits discrimination based on race in employment. The argument goes that if one corporation refuses to hire Blacks, they are putting themselves at a disadvantage and the firms that are equal-opportunity employers will do better, forcing the racist firms to change their hiring practices or lose money.
Even if this argument is true in fact, I disagree on moral grounds. Society should not allow a situation where certain groups can be openly excluded on racial grounds. Such a society promotes the existence of an “other,” and that is detrimental to having a cohesive society. Moreover, the other will often feel disadvantaged and will generally not be as successful. So I agree with Title VI.
But Title IX is different. If men’s teams excluded women, then the situations would be analogous. But men’s teams are inclusive, and women can play if they make the team based on merit. So women’s teams are a form of affirmative action, because the school creates these teams for people of a certain gender, and the teams are generally are not inclusive. I see no reason why creating women’s teams is any more correct than having two tracks of men’s teams. If both men and women can make the men’s team, then everyone has an equal opportunity. Creating teams for people who aren’t capable of making that team makes as much sense as creating special handicap teams.
I’ll deal with some other objections in later posts.
Monday, September 19, 2005
Who watches the WNBA?
I mean seriously, who? Jay Mohr, for SI.com, doesn't know. I have to agree with the thrust of his article, that the WNBA is a miserable failure. Why is the NBA willfully giving away cash to sustain a league that has no hope for growth or even survival? The NBA still subsidizes the league. It's not really growing. I can't imagine the league is making money.
Look how popular it is. They are currently playing the finals and ESPN.com has them 11th on its list. That's right, 11th, four below US soccer and five below college basketball, whose season hasn't even started yet. I don't know how ESPN decides where to put what, but I would have to assume it's based on the number of hits each sport gets. So either WNBA fans are not Internet-savvy, or no one is looking for the sport.
I've seen live Liberty games tape-delayed to make room for tape-delayed Mets game. That means more people would rather watch the Mets again than watch the Liberty play live. Barely 8,500 hundred people showed up in Sacramento for the WNBA finals. They couldn't come close to selling out a finals game.
I don't see this sport going anywhere. I'm not denying that lack of interest is in some way driven by chauvinism, that men can't watch women who are better at sports than they are. Every single player in the WNBA would kill me on the court. Every one.
But the biggest problem is that they aren't sufficiently better than I am to make me watch. I'm a short, Jewish, unathletic guy. I can't come close to dunking. But the sad thing is that neither can the vast, vast majority of the WNBA. I simply don't feel like they are doing things that I can't do. And part of the draw of sports is watching feats that the average person can only dream of. That's why we spend money to see Bonds hit the ball 6000 feet. Or why we sit glued to our TV to see McNabb evade eight players and then throw the ball fifty yards off his back foot to hit a receiver in stride. We won't get any of that excitement watching Lisa Leslie or Sheryl Swoops.
It would be nice if the WNBA survived and grew. But let's stop pretending the league is a success.
Look how popular it is. They are currently playing the finals and ESPN.com has them 11th on its list. That's right, 11th, four below US soccer and five below college basketball, whose season hasn't even started yet. I don't know how ESPN decides where to put what, but I would have to assume it's based on the number of hits each sport gets. So either WNBA fans are not Internet-savvy, or no one is looking for the sport.
I've seen live Liberty games tape-delayed to make room for tape-delayed Mets game. That means more people would rather watch the Mets again than watch the Liberty play live. Barely 8,500 hundred people showed up in Sacramento for the WNBA finals. They couldn't come close to selling out a finals game.
I don't see this sport going anywhere. I'm not denying that lack of interest is in some way driven by chauvinism, that men can't watch women who are better at sports than they are. Every single player in the WNBA would kill me on the court. Every one.
But the biggest problem is that they aren't sufficiently better than I am to make me watch. I'm a short, Jewish, unathletic guy. I can't come close to dunking. But the sad thing is that neither can the vast, vast majority of the WNBA. I simply don't feel like they are doing things that I can't do. And part of the draw of sports is watching feats that the average person can only dream of. That's why we spend money to see Bonds hit the ball 6000 feet. Or why we sit glued to our TV to see McNabb evade eight players and then throw the ball fifty yards off his back foot to hit a receiver in stride. We won't get any of that excitement watching Lisa Leslie or Sheryl Swoops.
It would be nice if the WNBA survived and grew. But let's stop pretending the league is a success.
Sunday, September 18, 2005
Voting Against Roberts II
The Washington Post editorial today cautions the Democrats against opposing Roberts. Despite worrying about Roberts' record of protecting civil liberties and his "suspicion" of affirmative action programs, they recognize that Roberts is the best possible candidate the Democrats could expect Bush to appoint. And as a pragmatic matter, if they vote against Roberts, Bush will just completely ignore their positions and appoint whomever he wants.
Not surprisingly the NY Times takes a completely different tact. A man of Roberts' health and age will serve for a long time, and it's imperative that he meet "the very heavy burden of proving" that he has the qualities to be a good CJ. What qualities are those? That he be a "guardian of... rights," something he alluded to by recognizing a right of privacy. But he hasn't given us enough to prove he'll be the staunch protector of gay rights and abortion sufficient to be CJ. He's too much of a mystery and should be opposed.
The liberal blogger Atrios disagrees with the WaPost because he feels that voting against Roberts evidences disapproval and the opposition party should not be a rubber stamp. Voting against Roberts will not stop his confirmation, so why not show disapproval?
The WaPost is taking the most sensible path. As I've noted in the past, Roberts is no more conservative than Rehnquist. So opposing him is pointless, unless Democratic Senators want the Republicans to oppose any nominee who happens to be even remotely liberal. One day, at some point, the Democrats will control the Executive branch, and if they play this game now (a game with no tangible benefit since they cannot stop Roberts confirmation short of filibuster), it will come back to haunt them.
Atrios completely misses the point. Yes, the Democrats' votes would only be symbolic and can have no real utility. But in the future, they might control the White House and not the Senate. The Republicans in retaliation could stop the confirmation without filibustering. That's not in anyone's best interest. We do not want to see the confirmation process become completely politicized.
Moreover, the Democrats only have a certain number of "No" votes. They cannot oppose every candidate. Roberts is a good candidate and will not change the balance on the Court. Why waste their vote? One might argue they vote against as much as they like. But the average American (the one who knows something about the judiciary), will not support constant obstruction, even if practically there's no actual obstruction. There has to be some consensus building in the Senate.
Not surprisingly the NY Times takes a completely different tact. A man of Roberts' health and age will serve for a long time, and it's imperative that he meet "the very heavy burden of proving" that he has the qualities to be a good CJ. What qualities are those? That he be a "guardian of... rights," something he alluded to by recognizing a right of privacy. But he hasn't given us enough to prove he'll be the staunch protector of gay rights and abortion sufficient to be CJ. He's too much of a mystery and should be opposed.
The liberal blogger Atrios disagrees with the WaPost because he feels that voting against Roberts evidences disapproval and the opposition party should not be a rubber stamp. Voting against Roberts will not stop his confirmation, so why not show disapproval?
The WaPost is taking the most sensible path. As I've noted in the past, Roberts is no more conservative than Rehnquist. So opposing him is pointless, unless Democratic Senators want the Republicans to oppose any nominee who happens to be even remotely liberal. One day, at some point, the Democrats will control the Executive branch, and if they play this game now (a game with no tangible benefit since they cannot stop Roberts confirmation short of filibuster), it will come back to haunt them.
Atrios completely misses the point. Yes, the Democrats' votes would only be symbolic and can have no real utility. But in the future, they might control the White House and not the Senate. The Republicans in retaliation could stop the confirmation without filibustering. That's not in anyone's best interest. We do not want to see the confirmation process become completely politicized.
Moreover, the Democrats only have a certain number of "No" votes. They cannot oppose every candidate. Roberts is a good candidate and will not change the balance on the Court. Why waste their vote? One might argue they vote against as much as they like. But the average American (the one who knows something about the judiciary), will not support constant obstruction, even if practically there's no actual obstruction. There has to be some consensus building in the Senate.
Police Actions are Murder?
Today, Israel's Internal Affairs cleared the police officers involved in the October riots in 2000. If you remember, at the beginning of the Intifada, right after Sharon visited the Temple Mount, riots broke out around the country, and the results were thirteen dead Israeli-Arabs. The Orr Commission report criticized many members of the police echelon, but did not recommend criminal charges.
IA's report was met with stark criticism on the part of Israel's Arab and left-wing community. Many attacked IA for allowing officers to get away with "murder." Such a characterization begs the question. Murder is the unlawful taking of human life. If the officers did nothing illegal, they did not unlawfully kill. Hence they could not have committed murder.
Riots create serious operative and moral problems for police. On one hand, they are dangerous (remember Yankel Rosenbaum?). On the other hand, the police don't want to just shoot at anyone. But rioting is not a civil right and is nothing like non-violent resistance. People causing dangerous situations are threats to the safety of their fellow citizens. I have no qualms using lethal force to stop them.
I'd propose something akin to the Dershowitz torture warrant. He argues that (humane) torture should be allowed only after a warrant is procured from someone very high up in the political chain of command (i.e., the President or the Chief Justice). While I'm sympathetic to giving the Chief Justice warrant power, as such power is usually reserved for the judicial branch, I'd rather see someone accountable, and the CJ, with life tenure, can never be held accountable (notwithstanding impeachment). So I'd grant this power only to the President.
I believe the same thing should apply to riots. The police have an obligation to stop it as quickly as possible. The Mayor should be allowed to authorize a "riot emergency." Once that happens, the police are authorized to use lethal force against rioters. The threat of being shot would surely serve as a deterrent against rioters.
Does such power give the police unbridled discretion? Absolutely not, at least no more than they already have. Police can use force when necessary, and the only check is IA reviews. I see no reason why such reviews would not stop cops from shooting at random in this case as well.
Moreover, there's serious accountability. The Mayor knows it's his political skin on the line, and will not authorize a riot emergency without ample cause. So we have a political check on his power, which will keep him responsible.
I know this seems harsh. But I'd rather see rioters shot than innocents stabbed on the street while they walk.
IA's report was met with stark criticism on the part of Israel's Arab and left-wing community. Many attacked IA for allowing officers to get away with "murder." Such a characterization begs the question. Murder is the unlawful taking of human life. If the officers did nothing illegal, they did not unlawfully kill. Hence they could not have committed murder.
Riots create serious operative and moral problems for police. On one hand, they are dangerous (remember Yankel Rosenbaum?). On the other hand, the police don't want to just shoot at anyone. But rioting is not a civil right and is nothing like non-violent resistance. People causing dangerous situations are threats to the safety of their fellow citizens. I have no qualms using lethal force to stop them.
I'd propose something akin to the Dershowitz torture warrant. He argues that (humane) torture should be allowed only after a warrant is procured from someone very high up in the political chain of command (i.e., the President or the Chief Justice). While I'm sympathetic to giving the Chief Justice warrant power, as such power is usually reserved for the judicial branch, I'd rather see someone accountable, and the CJ, with life tenure, can never be held accountable (notwithstanding impeachment). So I'd grant this power only to the President.
I believe the same thing should apply to riots. The police have an obligation to stop it as quickly as possible. The Mayor should be allowed to authorize a "riot emergency." Once that happens, the police are authorized to use lethal force against rioters. The threat of being shot would surely serve as a deterrent against rioters.
Does such power give the police unbridled discretion? Absolutely not, at least no more than they already have. Police can use force when necessary, and the only check is IA reviews. I see no reason why such reviews would not stop cops from shooting at random in this case as well.
Moreover, there's serious accountability. The Mayor knows it's his political skin on the line, and will not authorize a riot emergency without ample cause. So we have a political check on his power, which will keep him responsible.
I know this seems harsh. But I'd rather see rioters shot than innocents stabbed on the street while they walk.
Saturday, September 17, 2005
Price Gouging
Is raising prices when natural disasters deplete the supply really that bad? Walter Williams, in the Washington Times, argues that price gouging forces people to economize resources. His example:
"Here's a which-is-better question for you. Suppose a hotel room rented for $79 a night prior to Hurricane Katrina's devastation. Based on that price, an evacuating family of four might rent two adjoining rooms. When they arrive at the hotel, they find the rooms rent for $200; they decide to make do with one room. In my book, that's wonderful. The family voluntarily opted to make a room available for another family who had to evacuate or whose home was destroyed. Demagogues will call this price-gouging, but I ask you, which is preferable: a room available at $200 or a room unavailable at $79? Rising prices get people to voluntarily economize on goods and services rendered scarcer by the disaster. "
Moreover, raising prices make sense because the producers of goods are forced to pay a higher cost. Last week, I spent the weekend in Lakewood NJ, where the co-op raised prices because the higher cost of gasoline increased their costs. Is that really unfair? Should the retailers bear the cost of the disaster?
Here's a question on a related point: Let's say we have ten gas stations in a centralized area. The average price for gas is $3.50 per gallon for regular. One of the gas stations charges $5. Is that price gouging? Or is it only price gouging when the seller monopolizes the market? What about if it's the only gas station within a two mile range and there's a snow storm that makes the roads hazardous? Is something only price gouging when the consumers have no other choice? I don't know the relevant laws, but I wonder where we draw the line.
(Hat Tip: [what else?] Volokh Conspiracy)
"Here's a which-is-better question for you. Suppose a hotel room rented for $79 a night prior to Hurricane Katrina's devastation. Based on that price, an evacuating family of four might rent two adjoining rooms. When they arrive at the hotel, they find the rooms rent for $200; they decide to make do with one room. In my book, that's wonderful. The family voluntarily opted to make a room available for another family who had to evacuate or whose home was destroyed. Demagogues will call this price-gouging, but I ask you, which is preferable: a room available at $200 or a room unavailable at $79? Rising prices get people to voluntarily economize on goods and services rendered scarcer by the disaster. "
Moreover, raising prices make sense because the producers of goods are forced to pay a higher cost. Last week, I spent the weekend in Lakewood NJ, where the co-op raised prices because the higher cost of gasoline increased their costs. Is that really unfair? Should the retailers bear the cost of the disaster?
Here's a question on a related point: Let's say we have ten gas stations in a centralized area. The average price for gas is $3.50 per gallon for regular. One of the gas stations charges $5. Is that price gouging? Or is it only price gouging when the seller monopolizes the market? What about if it's the only gas station within a two mile range and there's a snow storm that makes the roads hazardous? Is something only price gouging when the consumers have no other choice? I don't know the relevant laws, but I wonder where we draw the line.
(Hat Tip: [what else?] Volokh Conspiracy)
Thursday, September 15, 2005
Solum on Roberts' Effect on the Court
Larry Solum of the Legal Theory Blog responds to the prevailing wisdom that Roberts' appointment will move the Court to the right.
He makes a few good points. For one thing, Rehnquist was pretty conservative. It's hard to see Roberts being more conservative than his old boss. Moreover, Roberts will not be a swing vote, so even if he is more conservative, his vote won't change the Court's decision.
Solum is absolutely right. Which is why I don't understand liberal opposition to Roberts. He's no worse than Rehnquist and his vote won't change anything. And it's not like being Chief Justice gives him an extra vote or something.
He makes a few good points. For one thing, Rehnquist was pretty conservative. It's hard to see Roberts being more conservative than his old boss. Moreover, Roberts will not be a swing vote, so even if he is more conservative, his vote won't change the Court's decision.
Solum is absolutely right. Which is why I don't understand liberal opposition to Roberts. He's no worse than Rehnquist and his vote won't change anything. And it's not like being Chief Justice gives him an extra vote or something.
Roberts is not Scalia
An interesting article about the differences between Scalia/Thomas and Roberts here.
(Hat Tip: Legal Theory Blog)
(Hat Tip: Legal Theory Blog)
Tuesday, September 13, 2005
Religion Test
I took GodolHador's Orthodoxy "acid-test." Here are my top-10:
1. Islam (100%)
2. Orthodox Judaism (100%)
3. Sikhism (91%)
4. Reform Judaism (88%)
5. Bahá'à Faith (84%)
6. Church of Jesus Christ of Latter-Day Saints (Mormons) (72%)
7. Jainism (66%)
8. Mainline to Conservative Christian/Protestant (65%)
9. Orthodox Quaker (60%)
10. Eastern Orthodox (57%)
Ouch. At least I'm Orthodox. And if one day I decide to follow the path of Leonard Cohen, it's good to know I won't need to change any of my beliefs.
1. Islam (100%)
2. Orthodox Judaism (100%)
3. Sikhism (91%)
4. Reform Judaism (88%)
5. Bahá'à Faith (84%)
6. Church of Jesus Christ of Latter-Day Saints (Mormons) (72%)
7. Jainism (66%)
8. Mainline to Conservative Christian/Protestant (65%)
9. Orthodox Quaker (60%)
10. Eastern Orthodox (57%)
Ouch. At least I'm Orthodox. And if one day I decide to follow the path of Leonard Cohen, it's good to know I won't need to change any of my beliefs.
Friday, September 09, 2005
Voting Against Roberts
Mark Tushnet, famous liberal constitutional scholar and opponent of judicial review, argues that Democratic Senators should vote against Roberts if they disagree with his vision of the Constitution. Moreover, since we know he had positions that are contrary to liberal jurisprudence (well, we at least know he argued for those positions), they should place the burden of persuasion on him to prove he's become more "centrist."
He also argues that the President and Senate are coequal parties in the confirmation process. I'm not knowledgeable enough to debate that issue, but, for the most part, it seems that historically the Senate has deferred to the President's nomination unless the candidate was grossly incompetent or corrupt. Until Bork that was the standard procedure. Since Roberts is neither, why vote against him?
Tushnet disagrees with a quid pro quo that requires Senators to allow the other parties' choice because otherwise the opposition party will make their confirmations difficult. The quid pro quo is a bad idea because the Democrats broke it with Bork. And the Republicans supported Ginsburg despite her "out of the mainstream" ideological views.
There's nothing inherently wrong with voting against a nominee for any reason. Kennedy could vote "NO" because he doesn't like Roberts' shirt. But politically that's a dumb move because one day the Democrats (if they get their act together) will be back in the White House, and they will want to get their nominee confirmed. It's not going to happen if the Democrats play this game.
He also argues that the President and Senate are coequal parties in the confirmation process. I'm not knowledgeable enough to debate that issue, but, for the most part, it seems that historically the Senate has deferred to the President's nomination unless the candidate was grossly incompetent or corrupt. Until Bork that was the standard procedure. Since Roberts is neither, why vote against him?
Tushnet disagrees with a quid pro quo that requires Senators to allow the other parties' choice because otherwise the opposition party will make their confirmations difficult. The quid pro quo is a bad idea because the Democrats broke it with Bork. And the Republicans supported Ginsburg despite her "out of the mainstream" ideological views.
There's nothing inherently wrong with voting against a nominee for any reason. Kennedy could vote "NO" because he doesn't like Roberts' shirt. But politically that's a dumb move because one day the Democrats (if they get their act together) will be back in the White House, and they will want to get their nominee confirmed. It's not going to happen if the Democrats play this game.
Wednesday, September 07, 2005
Same-Sex Marriage in California
California is one weird place. Today the Assembly approved a bill that would allow same-sex couples to marry. Coupled with the Senate's support last week, California became the first state to have both houses pass a bill supporting SSM. While I oppose SSM, I still am happy to see this issue resolved in the legislature and not the courts.
Governor Schwarzenegger seems to believe that the issue should be resolved in the courts or by voters in a referendum. Much of California's legislation has been decided directly by the voters ever since Prop 13 put a cap on property taxes. California's Constitution allows referendums when enough signatures have been collected.
But why would the governor veto a bill because the legislature decided it instead of the voters? If the legislative body cannot make fundamental decisions along these lines, why have one at all? Why not have a referendum on everything? Schwarzenegger should not veto this bill solely because it wasn't decided in a referendum. And he certainly should not be looking to the courts to expand marriage. Leave the courts out of this.
But didn't California recently have a referendum on this issue? Didn't 61% of Californians vote in favor of Prop 22, which allowed the state to only recognize marriages between a man and a woman?
I wonder how the interplay between referendums and legislation affects the law in California. Can legislation overrule a referendum and vice versa? The issue might become moot if the people vote in favor of a constitutional amendment to ban SSM. We'll wait and see.
Update: Apparently Schwarzenegger's point was that the referendum outcome opposed SSM, so he would not support the legislation. Certainly a stronger reason to veto, but casts a shadow on every piece of legislation in California because referenda could overturn any of them. But I still have no idea how referenda and legislation interact, and which one is given preference. If Schwarzenegger holds to his promise to veto, we won't find out either.
Governor Schwarzenegger seems to believe that the issue should be resolved in the courts or by voters in a referendum. Much of California's legislation has been decided directly by the voters ever since Prop 13 put a cap on property taxes. California's Constitution allows referendums when enough signatures have been collected.
But why would the governor veto a bill because the legislature decided it instead of the voters? If the legislative body cannot make fundamental decisions along these lines, why have one at all? Why not have a referendum on everything? Schwarzenegger should not veto this bill solely because it wasn't decided in a referendum. And he certainly should not be looking to the courts to expand marriage. Leave the courts out of this.
But didn't California recently have a referendum on this issue? Didn't 61% of Californians vote in favor of Prop 22, which allowed the state to only recognize marriages between a man and a woman?
I wonder how the interplay between referendums and legislation affects the law in California. Can legislation overrule a referendum and vice versa? The issue might become moot if the people vote in favor of a constitutional amendment to ban SSM. We'll wait and see.
Update: Apparently Schwarzenegger's point was that the referendum outcome opposed SSM, so he would not support the legislation. Certainly a stronger reason to veto, but casts a shadow on every piece of legislation in California because referenda could overturn any of them. But I still have no idea how referenda and legislation interact, and which one is given preference. If Schwarzenegger holds to his promise to veto, we won't find out either.
Monday, September 05, 2005
Roberts for Chief
I like John Roberts. I think he'll make a fine justice. But I oppose his nomination for chief justice for two reasons:
1) President Bush skipped over some tenured justices on the Supreme Court itself. I realize that the Chief's job is mainly administrative and Roberts should be able to fill that role adequately. But he has little experience in the judicial role. There are many more justices on the Court (Scalia, Thomas, etc.) who were passed over by the President when he decided to appoint a novice. It looks pretty bad when we so completely lack confidence in the sitting members of the court that we want to put a 50 year old with limited experience on top of them.
2) Roberts will now be perceived as filling the Rehnquist seat. That should make his confirmation a no-brainer, even among the far-left. It's hard to criticize Bush for appointing a Rehnquist clerk to fill his seat. No unbalancing of the Court going on here.
But that's precisely the problem. Roberts is a fine conservative, but he's not an originalist, and therefore not in the mold of Scalia and Thomas, Bush's paradigm justices. He would have been a good choice to replace O'Connor because he's not that far to the right, has no extreme positions, is eminently qualified, and is well liked. If he replaced O'Connor, the Court would shift more to right, which makes sense given the conservative control of the other two branches of the government.
But if he replaces Rehnquist, Bush now has to find someone with similar characteristics to fill the O'Connor seat. Bush cannot nominate an originalist, because that will be a far greater shift. So most likely he'll try to find someone like Roberts, and if he succeeds the Court's shift will be minimal. But it's even more likely Bush will appoint someone closer to O'Connor because not everyone is Roberts. So there will no shift at all. Two vacancies and no ideological movement is bad for a Republican president who opposes the "living Constitution" theory.
1) President Bush skipped over some tenured justices on the Supreme Court itself. I realize that the Chief's job is mainly administrative and Roberts should be able to fill that role adequately. But he has little experience in the judicial role. There are many more justices on the Court (Scalia, Thomas, etc.) who were passed over by the President when he decided to appoint a novice. It looks pretty bad when we so completely lack confidence in the sitting members of the court that we want to put a 50 year old with limited experience on top of them.
2) Roberts will now be perceived as filling the Rehnquist seat. That should make his confirmation a no-brainer, even among the far-left. It's hard to criticize Bush for appointing a Rehnquist clerk to fill his seat. No unbalancing of the Court going on here.
But that's precisely the problem. Roberts is a fine conservative, but he's not an originalist, and therefore not in the mold of Scalia and Thomas, Bush's paradigm justices. He would have been a good choice to replace O'Connor because he's not that far to the right, has no extreme positions, is eminently qualified, and is well liked. If he replaced O'Connor, the Court would shift more to right, which makes sense given the conservative control of the other two branches of the government.
But if he replaces Rehnquist, Bush now has to find someone with similar characteristics to fill the O'Connor seat. Bush cannot nominate an originalist, because that will be a far greater shift. So most likely he'll try to find someone like Roberts, and if he succeeds the Court's shift will be minimal. But it's even more likely Bush will appoint someone closer to O'Connor because not everyone is Roberts. So there will no shift at all. Two vacancies and no ideological movement is bad for a Republican president who opposes the "living Constitution" theory.
Sunday, September 04, 2005
The Passing of a Chief Justice
William Rehnquist passed away last night at the age of 80. One of the greatest chiefs in the last century, Rehnquist was reviled by the left as a partisan hack, a perception that was reinforced to some by his vote in Gore v. Bush. The reason? He voted against Roe v. Wade, the decision that has become the paradigm of liberal jurisprudence.
Rehnquist's tenure on the court saw it move in a more conservative direction. The Court for the first time in generations curtailed Congress' Commerce Clause power. It upheld the use of government vouchers for private, including religious, schools. It also denied the existence of a constitutional right to assisted suicide.
But the Court was not as conservative as some pundits would have you believe. It upheld a public universities' affirmative action program. It struck down a number of state laws that allowed execution of minors. It denied a state's ability to regulate gay conduct. And it allowed a state to withhold scholarships from people majoring in religious studies, a decision written by Rehnquist himself.
So what will be Rehnquist's legacy? He should be remembered as a good leader, someone who managed to write minimalist opinions that answered the questions and nothing more, and a unifying force on the Court. But he should most be remembered as the leader of the Court that began to move the pendulum back to the center, after years of the Warren Court's liberalism.
Whatever he is remembered as, he will be remembered as one of the most influential chief justices in history.
Rehnquist's tenure on the court saw it move in a more conservative direction. The Court for the first time in generations curtailed Congress' Commerce Clause power. It upheld the use of government vouchers for private, including religious, schools. It also denied the existence of a constitutional right to assisted suicide.
But the Court was not as conservative as some pundits would have you believe. It upheld a public universities' affirmative action program. It struck down a number of state laws that allowed execution of minors. It denied a state's ability to regulate gay conduct. And it allowed a state to withhold scholarships from people majoring in religious studies, a decision written by Rehnquist himself.
So what will be Rehnquist's legacy? He should be remembered as a good leader, someone who managed to write minimalist opinions that answered the questions and nothing more, and a unifying force on the Court. But he should most be remembered as the leader of the Court that began to move the pendulum back to the center, after years of the Warren Court's liberalism.
Whatever he is remembered as, he will be remembered as one of the most influential chief justices in history.
Friday, September 02, 2005
How Important is New Orleans?
Maybe it's just my impression but the public sympathy the situation in New Orleans is receiving pales in comparison to 9/11. After 9/11, baseball canceled a week of games. Every news outlet had nonstop coverage. It was all people were talking about. Now I'm not saying no one cares what's happening down there, but it's not quite getting the same reaction. With reports of thousands dead, it can't be a numbers thing.
So why don't people care as much? A few reasons come to mind:
1) It's not NY. No offense, but NY is a more important city. New Orleans is in the middle of south, down in "Hicksville." If most of NY was under water, something tells me the evacuation operation would be moving just a little quicker.
2) There's no one to blame. 9/11 has a clear culprit. We were attacked. We were angry. There's no person or group to blame here, although some bloggers (here, here) have decided to pin the blame on the administration for supporting Disengagement. That's presumptuous and offensive beyond belief.
3) Who cares about the red states? I wonder how disenchantment with the conservative south has affected media coverage and public outcry.
I tend to think NY is better equipped to handle such an emergency. 9/11 did give the city a sense of steadfastness under pressure, and we saw that during the blackout. I realize the situations are totally different, but I tend to have faith in New Yorkers as a bunch of people who care when it counts (but only when it counts).
Update: Hastert's comments (can't find a link because of dial-up) were in sensitive at best and despicable at worst. He has to talk about this now?
New Update: Apparently he issued a weak retraction.
So why don't people care as much? A few reasons come to mind:
1) It's not NY. No offense, but NY is a more important city. New Orleans is in the middle of south, down in "Hicksville." If most of NY was under water, something tells me the evacuation operation would be moving just a little quicker.
2) There's no one to blame. 9/11 has a clear culprit. We were attacked. We were angry. There's no person or group to blame here, although some bloggers (here, here) have decided to pin the blame on the administration for supporting Disengagement. That's presumptuous and offensive beyond belief.
3) Who cares about the red states? I wonder how disenchantment with the conservative south has affected media coverage and public outcry.
I tend to think NY is better equipped to handle such an emergency. 9/11 did give the city a sense of steadfastness under pressure, and we saw that during the blackout. I realize the situations are totally different, but I tend to have faith in New Yorkers as a bunch of people who care when it counts (but only when it counts).
Update: Hastert's comments (can't find a link because of dial-up) were in sensitive at best and despicable at worst. He has to talk about this now?
New Update: Apparently he issued a weak retraction.
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