Wednesday, October 31, 2007

Liberals/Moderates Good, Conservatives Bad

That's pretty much the thesis of Geoffrey Stone's recent blog post on the University of Chicago's Law Blog. I guess if someone is as far left as Professor Stone, perhaps it is self-evident that liberal jurisprudence is correct and conservatives use the Constitution to further their policy aims. But for most of us who are somewhere in the middle, this article is sorely lacking.

Stone actually starts off well. He correctly notes that the court has moved to the right since the halcyon days of the Warren Court. But since that court had Black, Brennan, and Douglas it was very liberal and it was inevitable that the Court would shift back towards the middle.

He's also right that the plethora of 5-4 decisions last term does not prove that the court is evenly split. The Court only accepts a small numbers of cases and selection bias limits those cases to the difficult ones. When a case is "hard" even like-minded justices will sometimes disagree, so it's not surprising that the court is so divided. This isn't the greatest argument, but it's better than what comes next.

Stone believes the current court is very right wing and contains "five conservative Justices, four of whom are very conservative, and four moderate Justices, one of whom, Ginsburg, is moderately liberal." Whether someone is liberal or conservative is obviously a relative term and depends on the competition. Surely Breyer is a moderate when compared to William O. Douglas but not Clarence Thomas. So Stone starts with the presumption that the Warren Court was proper and anything to its right is conservative.

OK, here comes the good stuff. Stone goes on to define "Liberal" and "Conservative." First comes the liberal justices:

"To begin with, they shared a common vision of the purpose of judicial review. They believed that a primary responsibility of the judiciary is to protect individual liberties, and most especially the rights of minorities and others whose rights might not be fairly protected in the majoritarian political process. They believed that this responsibility was both contemplated and intended by the Framers of our Constitution as a fundamental check on the power of the elected branches of government, and they believed that courts can fulfill this responsibility only by actively interpreting the Constitution to ensure that democracy operates both properly and fairly." (emphasis added)

There is nothing controversial in this statement and it is more or less the views of John Hart Ely and Stephen Breyer. The idea that the courts should ensure Democracy and protect individual rights is a legitimate judicial methodology, albeit one I disagree with.

Stone then breaks down conservatives into three groups:

1) Judicial Passivists - judges who only exercise judicial review when the decisions of the democratic branches are clearly unconstitutional.
2) Originalists - judges who interpret the Constitution according to the Founder's intentions.
3) Conservative Activists - judges who aggressively interpret the Constitution to fit with their policy preferences.

Notice something missing? How about "Liberal Activists?" Stone completely ignores the idea that liberals could be activists pejoratively because he basically defines liberal jurisprudence as a form of judicial activism!

So once Stone is willing to admit that the Court should "actively" interpret the Constitution based on liberal values, what conceptual distinction can he draw between liberal activism and conservative activism? What's the difference between "actively interpreting the Constitution to ensure that democracy operates both properly and fairly" (which of course includes individual rights, a liberal political value) and "aggressively interpret[ing] the Constitution and invok[ing] the power of judicial review to implement conservative political values?" Why is it OK for the Court to decide that welfare payments cannot be terminated without a prior hearing (Goldberg v. Kelly) but not acceptable for the Court to strike down minimum wage laws (Lochner v. United States)? Both cases involve the judges making value judgments and then "actively" interpreting the Constitution in that mold. Even more pointed, what distinction can we draw between Roe and Lochner?

There's no difference. The disagreement is about the initial value judgments the judges make. But it's absurd to say one's opponents are wrongfully interpreting the Constitution because they disagree with one's initial value assumptions. Or at least it's ridiculous to do so without supplying some evidence or argument that one's viewpoint is correct. Stone basically assumes he's right and anyone who disagrees is wrong. It's amazing.

One more short point: It's beyond belief that a law professor would criticize Originalism in 2007 for being about what the Framers intended. The vast majority of Originalists today do not favor Framer intent but focus on clause meaning at the time of the Founding. Certainly Scalia and Thomas are not intentionalists and Scalia has expressly repudiated original intent Originalism on many occasions. Stone has apparently not kept up with the literature, so how can he criticize a methodology he doesn't understand?

Real Conversation Overheard

I was waiting with two people, a man and a woman who apparently knew each other.

Woman: My mother had Rheumatoid Arthritis for 32 years.
Man: Is she doing anything for it?
Woman: She used to take (two medications I couldn't make out).
Man: Yeah, but is she doing anything for it (obviously referring to something nutritional)?
Woman: Well, she died in an ambulance when she was 63.
Man (obviously feeling bad): Oh, I'm sorry.
Woman: She was resuscitated and the two medications she used to take apparently were causing her lungs to fill up with water.
Me: ????!!!!!!!

Reminds me of this dialogue from the world's greatest TV show:

Kent Brockman: Dozens of people are gunned down each day, but until now, none of them was important. I'm Kent Brockman. At 3:00 PM Friday, local autocrat C. Montgomery Burns was shot, following a tense confrontation at town hall. He was taken to a hospital where he was pronounced dead. He was then taken to a better hospital where his condition was upgraded to "alive."

Tuesday, October 30, 2007

Semantic/Normative Originalism

Anyone interested in understanding the points of view of sophisticated originalists should check out this post by Lawrence Solum. It's a comment on a response by Randy Barnett to Brian Leiter about the normative bases of originalism. No one is clearer than Solum.

Sunday, October 28, 2007

A-Rod Opts Out

The guys broadcasting the World Series just reported that A-Rod is opting out of his contract. is confirming it.

The official reason is that he's unsure of the team's direction. They haven't signed Posada or Mariano, and Pettitte isn't sure what he whether he wants to retire.

Come on. These are the Yankees. Is there any doubt they're going to put a highly competitive team on the field? They can offer more for those players than anyone else in baseball, so I'd be very surprised if they don't re-sign Posada and probably Mariano. Plus they have a lot of top pitching prospects who are major league ready and will probably form a pitching core that'll last for the next ten years.

So what's really going on here? I doubt it's about money because what team can offer as much as the Yankees? The latest rumor was to extend his contract to make it 8 years, $231 million. How many teams have the resources to match that? And how many of those teams can match that and still compete?

My guess is he just doesn't want to play here. A-Rod doesn't have Jeter's personality and seems to be bothered more by jeers and boos than guys like Mariano. Some guys just don't like New York. But if he's going to take less money to play for a worse team, then he'd better get earplugs because his next game at the Stadium is going to really, really loud.

Thursday, October 25, 2007

Public Service Announcement

My wife and I are selling a brand new copy of the out-of-print and banned The Camel, The Hare, And The Hyrax. We recently bought the book and it's brand-new, not one of the used copies that are floating around online.

Check it out.

Wednesday, October 24, 2007

How Powerful Is The Israel Lobby?

Not as powerful as Mearsheimer and Walt might believe. Walter Russell Meade reviewed their book The Israel Lobby in the recent issue of Foreign Affairs, and I pretty much agree with everything he has to say.

To summarize, he lists three major problems with their thesis and its execution, two of which I'll list here:

1) They don't define the Lobby at all, and their amorphous, wide-ranging definition of the Lobby is so unbelievably broad that it would include any group in America that recognizes Israel's right to exist no matter what its view on Israeli politics, and amazingly the authors themselves!

2) They don't show how the Lobby affects American policy towards Israel. They show how Congressmen and Senators routinely affirm Israel's right to defend itself in great numbers, but they don't show how the Lobby "persuades" them to do so. They also don't show how these congressional resolutions relate to actual foreign policy, which is formulated and executed by the Executive Branch and not Congress.

I'll take Meade's word for it that the authors are not anti-Semites, although these were formerly respected academics, teaching at the highest levels of academia who just produced a highly biased polemic with little basis in truth.

Read the whole thing.

Monday, October 22, 2007

Great Sports Moments From Yesterday

1) No football Sunday would be complete without Chad Pennington throwing an INT returned for a TD. The 1-6 Jets are probably the most frustrating team I have ever watched because every game follows the exact same script: the Jets take the lead, blow it in the second half, have a chance to come back, but Chad throws one of those weak out routes that the DB jumps and returns for a TD. The same thing happens every single week.

2) On to the Indians, the team that got outscored 30-5 over the last three games. I love the baseball playoffs but this series when contrasted with the Yankees series is exactly why the playoffs are not a meaningful indicator of which teams are the best. The Indians had an excellent pitching staff this season, especially at the top of the rotation where they boasted C.C Sabathia and Fausto Carmona, two of the top pitchers in the majors. So what happened? Both Sabathia and Carmona have a double digit ERA over the four games they pitched, the Indians bullpen does not get the job done, and the team ERA is 6.82(!). That's almost 3 runs worse than their regular season ERA of 4.05.

How did they do against the Yankees? Sabathia wasn't great, but his 5.40 was almost half of his ERA against the Sox. Carmona's only start was for 9 innings and 1 run. The team ERA was 3.41, which over the course of the season would have been the best ERA in the majors. Well, the Red Sox have a good lineup so it makes sense that the they pounded the Indians pitching, right?

Wrong. The Red Sox offense is very good, with a OPS+ of 107. Not great. The Yankees, however, had a 123, which is better than the 61 Yankees, 99 Indians, and the 98 Yankees. This Yankees lineup was one of the best offenses in major league history. So you'd expect the Indians pitching to be at least equivalent to how they pitched against the average major league team. But it wasn't meant to be. Luck, small sample size and whatever played a major role, and pitchers such as Carmona, Sabathia, and Wang were all terrible in the postseason, while Paul Byrd and Jake Westbrook were actually pretty decent (and lucky).

Well that's over. At least when it comes down to it, the best team in the AL advanced to the World Series, which is as it should be. Let's hope the Rockies do well and small sample size becomes our friend this time.

Wednesday, October 10, 2007


Check out this article by Maureen Dowd (who I've read maybe a handful of times). The Op-Ed is supposed to be an "admission" by Clarence Thomas about why he only supports "White causes" and how he made Bush President. Here's what David Bernstein had to say:

Dowd writes, satirically, in Thomas's voice: "I used to have grave reservations about working at white institutions, subject to the whims of white superiors. But when Poppy's whim was to crown his son — one of those privileged Yale legacy types I always resented — I had to repay The Man for putting me on the court even though I was neither qualified nor honest. ... But having the power to carjack the presidency and control the fate of the country did give me that old X-rated tingle."

"Repay The Man?" "Carjack the presidency?" Not "qualified"? "X-rated tingle"? I find this about as funny as a David Duke speech, and for the same reasons.

Basically she only forgot comments about Thomas' favorite food being watermelon or how he likes White women, similar to every other Black man.

How could the Times publish that article?

Tuesday, October 09, 2007

Why I Hate the Division Series

This post might sound like sour grapes and to a degree it probably is. But the problem with a short series, as we saw during the World Series last year, is that anything can happen and the best team doesn't always win.

One thing I was worried about before the playoffs this season was that they wouldn't be as meaningful to me as they were in the past. Since becoming interested in Sabermetrics I've learned that clutch hitting isn't a skill but is luck, Derek Jeter is not a good defensive shortstop, and that anything can happen in a short series. The last point is obviously true. Just last season we saw an 83 win team from the worst division in baseball, handily beat a 95 win team that led the majors in ERA and played in a division with two other 90 win teams. Anything can happen.

So now I realize that a short series and especially the Division Series is often determined by fluke and lucky events. Just look at the Yankees-Indians series. In Game 2 Joba was dealing but then got attacked by a swarm of insects and gave up a run. Maybe he should have pitched through it, but does anyone seriously think he would have thrown two wild pitches in a normal environment?

I only got to watch part of Game 4 this series (thanks to TBS' unwillingness to allow the home markets to play the games on broadcast TV), so maybe my experiences were skewed but the Indians got a lot of cheap hits with runners in scoring position and two outs. Their average with RISP and two outs was close to .500. That's insanely high, and frankly it's very lucky. The Yankees, however, managed ten baserunners in five innings, hit three home runs, and only managed four runs. Were the Indians better "in the clutch?" I doubt it. The Indians were luckier and played better over a four game stretch.

A series like this is why the playoffs are such a crap shoot and are not a better indicator of the quality of a team than the regular season. Besides luck, a major element of postseason play are matchups. The Yankees were at least as good as the Tribe, as evidenced by the 85 more runs they produced, which is not an insignificant amount and is why BP put the Yankees 6 games ahead of the Tribe. And that's not even taking into account the better competition the Yankees had to face.

But the Indians have two frontline dominant starters, one of which is lefty. They also have an excellent bullpen and an above average offense. The Yankees scored a ton of runs but their biggest weakness was hitting power lefties. This was a bad matchup for NY. But if the Yankees played the Indians 100 times, I think the former would come out ahead, owing to its superior offense.

Oh well. Either way I'm going for the Tribe the rest of the way.

Monday, October 01, 2007

Some Baseball Thoughts

1) You gotta feel for the Mets. Mets fans, not as much, but for the Mets players. I strongly dislike Mets fans because -- and I don't think this is only my perception -- they seem to care more about the Yankees losing than the Mets winning. I'm not kidding. I remember watching the Yankees lose Game 7 to the Diamondbacks in 2001 and listening the Mets fans get more excited about the Yankees losing that series than they were just the year before when the Mets played the Yankees in the World Series. I've heard stories of Mets fans who cheered for the Braves over the Yankees in 1999, merely days after their biggest rival beat the Mets in the NLCS.

So yeah, like everyone other Yankee fan, I get a sense of satisfaction watching Mets fans squirm after their team made history. But Yankee fans should not get too smug. Remember, we made history too in 2004.

I've always believed the "rivalry" between the Mets and Yankees is illusory, something cooked up in the minds of Mets fans to help them get over their sense of inferiority. The Mets and Yankees didn't play each other in a single meaningful game until 1997. Since then they've faced off in a mundane World Series and play average of six somewhat important regular season games a season (although the importance of those games are now open to dispute given how the Mets might have lost the division because of the yearly subway series).

These two teams are not rivals. If the Red Sox blew a seven game lead with seventeen to play and had to watch the postseason from home, I'd be feeling pretty elated. But as I watched Glavine get pounded yesterday, I felt myself pulling for them. They are a New York team afterall. I would have loved another Subway Series. Too bad it's not going to happen this year.

But when you see that Mets fan, remember 2004. That's how he feels.

2) How awful is the NL? Only 1 team in the entire 16 team league won 90 games, and that team game up more runs than it scored. 9 of the 14 AL teams had a better run differential than Arizona. The Tigers, who finished 6 games out of the Wild Card, had a better run differential than any team in the NL but the Rockies. Six AL teams would have won the NL Central. The Brewers, everyone's darlings, finished with the same record as the Blue Jays, but had a worse run differential in a far worse division.

After last year's World Series disaster, I'm not going to arrogate myself to pick the AL in a cakewalk, but whoever makes it out of the AL is going to be far better than the NL representative.

3) The Red Sox really helped the Yanks by finishing with the best record in baseball (thanks to the tiebreaker). The Sox chose the long schedule, forcing the Indians to pitch four starters (or pitch people on 3 day's rest) and Carmona only once. Sabathia is clearly the best pitcher in this series and I don't see the Yankees hitting him hard once (forget about twice). Carmona is an excellent pitcher, but someone the Yankees should have less trouble with. So basically I think the Yankees will lose Game 1, but win Game 2. The pitching matchups for Games 3 and 4 are fairly even (especially if Clemens can pitch) and the Yankees offense kills pitchers like Westbrook and Byrd.

So I'm calling it Yankees in 4. If it goes 5, the Yankees might be in big trouble.