Gerry Canavan

the smartest kid on earth

Posts Tagged ‘activist judges

A Few Sunday Night Links

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* Bill Gates vs. education. Via.

“They start with the assumption that something is broken,” says Patricia A. McGuire, president of Trinity Washington University, which serves low-income women in the District of Columbia. “Then they take the next step of deciding what the fix is before they really understand the problem.” Skeptics say such confidence is dangerous when dealing with complex social phenomena like education.

* Rise of the Warrior Cop. How a military contractor managed to keep alive a drone program even the Air Force thinks is a boondoggle.

You Are Being Tracked: How License Plate Readers Are Being Used To Record Americans’ Movements.

* Scalia: activist judges caused the Holocaust. Truly a dizzying intellect.

Despite calls from students, faculty, the LAT and the Sacramento Bee to allow greater public discussion and debate over the appointment of Janet Napolitano as President of UC, the Regents moved ahead and quickly named her to the position.  In so doing, they have forfeited what little moral and ethical authority they retained as leaders of the University of California.  They retain, of course, the legal power to act as they please and as they have done.  But we should be clear that they have rejected the idea of a University and have declared that they see UC as simply another bureaucracy to be managed from the top.

* And some more on MOOCs from Tenured Radical and The Edge of the American West.

1. A failure rate of 56-76% translates over 40 courses (roughly typical for a four year college) into an infinitesimally low graduation rate. 56% gives you 0.0000000084629%. That’s a bit low because students could take more than 40 courses to manage graduation, but it’s also a bit high because it doesn’t allow for the 17% who didn’t finish the courses.

Rising from the Ashes Thursday

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* Confusion Reigns Over Legality of Anti-Union Bill Passage in Wisconsin. I offered in the MetaFilter thread last night my suspicion that having this bill overturned on procedural or state-constitutional grounds could be Walker’s face-saving exit strategy at this point; it’s been very common over the last few decades for Republicans to pass transparently illegal or unconstitutional legislation as red meat for the base, only to raise additional cash when “activist judges” throw the legislation out. If the lack of quorum genuinely tied his hands, illegitimately claiming to have passed the law anyway lets Walker still claim to have won. It’s certainly being reported that way.

* Watching Twitter last night was inspiring, despite the defeat. Calls for a general strike in particular are exiting; that’s something I’d never expected to see happen here. (The last was apparently in 1934.) The class war is definitely happening out in the open in the moment: Wisconsin GOP Bill Allows State to Fire Employees for Strikes, Walk-Outs. No strike yet.

* Elsewhere in union-busting news: The many lies of Chris Christie, in the New York Times.

* So what is this Manifesto? In essence, it is a vindication of the arts and humanities as the most valuable of social and cultural practices.

* Flying cars: just one year away.

* And you always knew it: science proves running a lot will kill you.

Facts Are Stupid Things

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What’s wrong with Judge Vinson’s anti-health-care ruling, page-by-page.

UPDATE: Relatedly, see Jonathan Cohn’s “The Bad Faith of Mandate Critics.” See also Steve Benen and Ezra Klein:

The principle conservatives are fighting for is that they don’t like the Affordable Care Act. And having failed to win that fight in Congress, they’ve moved it to the courts in the hopes that their allies on the bench will accomplish what their members in the Senate couldn’t. That’s fair enough, of course. But they didn’t see the individual mandate as a question of liberty or constitutionality until Democrats passed it into law in a bill Republicans opposed, and they have no interest in changing its name to the “personal responsibility tax,” nor would they be mollified if it was called the “personal responsibility tax.” The hope here is that they’ll get the bill overturned on a technicality. And perhaps they will. But no one should be confused by what’s going on.

Written by gerrycanavan

February 3, 2011 at 10:23 am

All about Kagan

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I still find myself pretty solidly in the Greenwald/Campos/Digby caucus on the Elena Kagan nomination. As Scott Lemieux argued earlier today, there’s just not enough in her record to justify her nomination at a time when Obama already has 59 senators certain to vote “yes”: “In a context in which a more accomplished and more clearly liberal justice could be confirmed, the pick just can’t be defended.” If we take Steve and Ezra’s framing of this as a “trust us” high-stakes gamble—and perhaps many people do still blindly trust Obama to make decisions of this sort—the progressive response is that it didn’t have to be. Obama could have gotten either Diane Wood or Leah Ward Sears confirmed; he chose not to, and probably won’t next time either.

A totally unambitious selection that will likely do little or nothing to push the Court leftward, the Kagan selection has squandered our last, best chance to challenge the radicalism of the Bush appointments, while at the same time putting forth a nominee whose totally sparse record could actually make her harder to confirm than a more experienced jurist, litigator, or academic. I just don’t see the strategy.

That the case for Kagan is paper-thin at best seems to me to be utterly self-evident; watch, for instance, Glenn Greenwald decimate Jamin Raskin (a supporter of the pick) in this video from Democracy Now. Raskin is essentially unable to come up with any points in Kagan’s favor whatsoever. Across the Internet, the only counterargument to the Greenwald position that is ever presented is “Obama knows what he’s doing.” I grow weary of being told Obama knows what he’s doing.

Of course the right is doing its damnedest to make me like her, with gay-baiting and slavery-defending their most offensive opening bids. (“But she’s a bad driver!” clocks in at #3, “There aren’t enough men on the Supreme Court!” at #4. And then there’s Glenn.) In short the opposition seems totally unserious and that her nomination will probably be fairly easy (though maybe not). Either way, Obama should have swung for the fences; with big losses coming in the Senate this November, he likely won’t get another chance.

It should be said, in postscript, that Mightygodking thinks this is all still just eleven-dimensional chess, and I’ll admit that if that’s the thinking I can almost buy it. Climate Progress has also weighed in in Kagan’s favor, noting a Green Energy Report that Kagan “has a reputation as a supporter of environmental law and as a lawyer who takes climate change seriously.” That’s good! But it’s not enough to make me happy with the pick.

Up Too Early Central Timezone Blues

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* The paper on ecological debt I’m giving at the Debt conference at the University of Wisconsin at Milwaukee’s Center for 21st Century Studies today is pretty indebted to Naomi Klein’s recent work on the subject, which can be found at YouTube, Democracy Now, The Nation, and Rolling Stone. I may try to put this talk up as a podcast at some point.

* The oil spill disaster in the Louisiana has turned out to be much, much worse than originally thought: “a river of oil flowing from the bottom of the Gulf at the rate of 210,000 gallons a day that officials say could be running for two months or more.” The final devastation will likely be worse than the Exxon Valdez disaster. The White House says BP will pay the costs of cleanup. Related: Obama Administration Learns That Oil Leads to Oil Spills. At least they’ve quietly reinstated the federal moratorium on offshore drilling as a result of all this. Hope it stays that way.

* Can reconciliation work for climate like it worked for health care? Ezra Klein says not really.

* Ten states, including my beloved North Carolina!, are now considering Arizona-style document laws.

* Speaking of North Carolina, here’s the Independent Weekly voting guide for Durham County. The primary is Tuesday, May 4.

* It turns out the measurement fallacy Cory Doctorow was speaking about in my class’s interview with him has a name: Goodhart’s Law.

* Grad School Necessary To Maintain U.S.’s Global Position. Take that, The Simpsons.

* Republican consultant on Republican 2012 presidential field: “We Have Real [Expletive] Problems.”

* Calling out the real judicial activists.

* Socialphobes of the world unite! Against the telephone.

The telephone was an aberation in human development. It was a 70 year or so period where for some reason humans decided it was socially acceptable to ring a loud bell in someone else’s life and they were expected to come running, like dogs. This was the equivalent of thinking it was okay to walk into someone’s living room and start shouting.

* Books: still greener than e-readers.

* I can’t believe I forgot to celebrate Explicit Legal Pants Day. The rest of the post, on heterosexual privilege in Mississippi, is good too.

Inevitable District 9 sequel coming in two years.

* I’m so old I can remember when the GOP was against involuntary microchip implantation. It was like a week ago.

* And YouTube has the trailer for the feel-good movie of the year.

Politics Thursday

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* I’m shocked, shocked to find Mitt Romney caught being disingenuous about health care reform. Jonathan Chait has more lying liars on the constitutionality of the individual mandate, while Scott Lemieux explains another reason why even a radically activist Roberts court would be reluctant to declare the mandate unconstitutional:

But let’s say that Bush v. Gore vindicates the strongest form of legal realism and that we will soon see that Supreme Court justices are purely political actors. Would striking down the individual mandate ultimately advance conservative policy goals? Almost certainly not. On the one hand, it would be easy for Congress to get around the decision by simply structuring the tax differently and constitutionally, restoring the status quo. But what if Congress can’t? In some ways, this would be worse for conservatives — unless Congress was also willing to repeal very popular regulations (which even conservatives concede is a non-starter), the result will be the bankruptcy of insurance companies and a paved road to socialized insurance.

* Rachel Maddow had a pair of very striking pieces on right-wing incitements to violence last night.

* The health care reform reconciliation sidecar goes back to the House for technical reasons. It’s expected to be about a few hours delay. Incidentally, Steve Benen has issued marching orders on what we’re supposed to call the new program: ACA, the Affordable Care Act.

* The latest support for my theory that the GOP can’t hold its perma-No in the wake of Obama’s health care victory comes from Bob Corker (R-TN):

“This is so unlike the health care debate,” said Corker, noting that some of his Republican colleagues have made misjudgments on that point over the last month. “I don’t think people realize that this is an issue that almost every American wants to see passed. There’ll be a lot of pressure on every senator and every House member to pass financial regulation.”

* On the other hand, Republicans are apparently planning another Bunning-style freakout, this time starring Tom Coburn. In other Senate obstructionism news, the Republican objecting to any Senate committee business continuing past 2 PM was North Carolina’s own Richard Burr. Here’s still more on the breakdown of Senate procedure from Donkeylicious.

* How the Times‘ bias killed ACORN.

* And an amazing story from local alt-weekly Independent Weekly: N.C. eugenics survivors seek justice.

At 82 years old, Agnes is not sure she’ll live to see when or if the proposed compensation is paid. She appreciates the efforts being made in North Carolina to reconcile its eugenic past by acknowledging what she and thousands of others in our state went through. “It’s nice to know there are people out there that really care about your rights.”

Elaine, Agnes, Willis and Nial wonder why the American values of equal protection and individual liberty did not apply to them, and there are no simple answers to give them. They were caught within an ideological framework that said it’s acceptable to toss aside ethics and trample over the most basic of human rights if someone is perceived to not meet certain social expectations.

Now in her mid-50s, Elaine Riddick is one of the younger survivors of North Carolina’s eugenic sterilization program. From her apartment on the 32nd floor of an Atlanta skyrise, she has a beautiful view of the entire city. She says she has been able to obtain some measure of peace, which she attributes to her faith in God and finally letting go of the self-blame that she carried for years. Her adult son, Tony Riddick, whom she describes as “brilliant,” still lives in Winfall and owns his own computer electronics company.

Elaine has a loving boyfriend who, she says, takes good care of her and has a positive relationship with her son and siblings. Still, sometimes the cruelties from her past come back to haunt her. “Sometimes I think, what is happiness? Am I really happy? I don’t think I will ever be happy, because of what they took from me.”

Elaine was sterilized without her consent (or even knowledge) after giving birth to a child at age 14. She had been raped.

Is Health Care Reform Constitutional?

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Last seen reminding state agencies how they can and should legally discriminate against homosexuals, Virginia Attorney General Ken Cuccinelli is already promising to file a legal challenge to tonight’s health care bill. This of course leads us to another exciting round of “Is Health Care Reform Constitutional?” Tonight’s contestant is Randy E. Barnett of Georgetown Law, writing in the Washington Post. Barnett appears much more agnostic on the specific legal questions involved than previous contestants like Erwin Chemerinsky, focusing instead on the aggressive radicality of the Roberts majority:

But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.

If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.

You might have heard of it: Bush v. Gore.

Of course I worry about this, because I think Roberts, Scalia, Alito, and Thomas would overturn health care in a heartbeat, on whatever spurious ground presented itself. But while I don’t always agree with him, I think Kennedy has integrity, and I don’t think he would go along with it. (Have to admit, though, I’ve never been more sad to have to say “no relation”…)

A Certain Humility

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My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

The Supreme Court will likely overturn Chicago’s handgun ban. Don’t miss Jeffrey Rosen’s piece on the radicalism of the Roberts majority at TNR.

Written by gerrycanavan

March 3, 2010 at 11:00 am

Making History by Shaming SCOTUS? (TWICE UPDATED)

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A reader at TPM says so:

I know I’ve never seen anything like that happen in a SOTU and if anything like that has ever happened before in a SOTU or a joint session, I must have been hung over the day of the lecture in college. Even the fireside chat in which FDR unveiled his court packing scheme, as dripping with patrician condescension and barely concealed venom as it was, didn’t go second person and directly in their face the way Obama did tonight.

The Supremes are used to wafting into the House in their black robes, sitting dispassionately through the speech and wafting ethereally out again on a cloud of apolitical rectitude. It’s like they forget they’re there because they’re one of the three branches. And I truly don’t think it ever occured to them that crassly injecting themselves into the sordid partisan fray of what they like to call “the political branches” with that catastrophic decision would cause the President to treat them like people who’d injected themselves into the sordid partisan fray. (And why should they? After all, they got away with Bush v. Gore with barely a dent in their credibility). I even thought I detected a bit of “told you” coming from the four in the minority.

I think we saw a bit of history made tonight, and no one noticed except the Supremes themselves.

Obama seemed genuinely conflicted about this moment; if you compare his spoken remarks to the prepared text you’ll see he seemed to be softening his attack on the fly. I was remarking to someone over GChat earlier tonight that part of the problem with Obama seems to be, perhaps, his genuine respect for the separation of powers; beyond the mere politics of cover he seems to actually want Congress to do its own work in drafting legislation. It’s a problem, and hurting him badly, because Congressional Democrats have no brains. (A case study in how virtue becomes vice.)

But here, then, is one answer to that criticism, in its own way arguably a vice: Obama is also the politician who finally stopped pretending the five-justice majority that gave us Bush v. Gore and now Citizens United v. FEC is nonpartisan, apolitical, or “above the fray.” It’s been clear for years that this SCOTUS majority is every bit as activist as the “liberal judges” it decries. Indeed, with Citizens United, we see it’s probably more.

UPDATE: Media Matters, in response to a Drudge five-alarm whine over this, says it’s not that rare after all. Contra MM, the moment is somewhat singular. Citizens United was a specific decision, made just last week; Reagan’s criticism of decade-old Roe v. Wade and Bush’s complaints about anonymous activist judges don’t quite measure up.

UPDATE 2: Of course, many are pointing to Alito’s visible response to Obama as evidence of the criticism I make of the politicized contemporary Court above, as well noting that this too is a breach of protocol. Here’s Greenwald:

There’s a reason that Supreme Court Justices — along with the Joint Chiefs of Staff — never applaud or otherwise express any reaction at a State of the Union address. It’s vital — both as a matter of perception and reality — that those institutions remain apolitical, separate and detached from partisan wars. The Court’s pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations. The Court’s credibility in this regard has — justifiably — declined substantially over the past decade, beginning with Bush v. Gore (where 5 conservative Justices issued a ruling ensuring the election of a Republican President), followed by countless 5-4 decisions in which conservative Justices rule in a way that promotes GOP political beliefs, while the more “liberal” Justices do to the reverse (Citizens United is but the latest example). Beyond that, the endless, deceitful sloganeering by right-wing lawyers about “judicial restraint” and “activism” — all while the judges they most revere cavalierly violate those “principles” over and over — exacerbates that problem further (the unnecessarily broad scope of Citizens United is the latest example of that, too, and John ‘balls and strikes” Roberts may be the greatest hypocrite ever to sit on the Supreme Court). All of that is destroying the ability of the judicial branch to be perceived — and to act — as one of the few truly apolitical and objective institutions.

Franken ’12

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Al Franken’s opening statement from yesterday’s Supreme Court confirmation hearing. About midway through Franken makes our terms clear when he calls out the real judicial activists. Franken oh-twelve?

Written by gerrycanavan

July 14, 2009 at 12:26 pm

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Happy Canada Day

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Happy Canada Day. Let’s celebrate with links.

* SEK considers Infinite Summer’s weird morbidity (yes, it is weird), as well as the murky fluidity that constitutes literary “generations.” Despite the many other projects that already threaten to consume July I’ve decided to halfheartedly participate in this, and may even post about once I’ve caught up to where I’m supposed to already be in the book.

* “Pseudo-Liveblogging Tenure Denial”: just reading the headline is enough to fill me with dread.

* Richard Dawkins helps fund the world’s least-fun summer camp.

* Following up on my post about Ricci and originalism from earlier in the week, in which as usual the comments are better than the post, here’s Chuck Todd on MSNBC calling out the judicial activism to a speechless Joe Scarborough.

* Wal-Mart on the side of the angels? The monolith has endorsed an employer mandate in health care.

* Video games as murder simulators? The same claim can be made about just about any immersive media experience (and has been), with the existence of negative effects always taken as obvious but never actually demonstrated. (via /.)

* I have only vague memories of the original Alien Nation, though it’s been in my Netflix queue for a while—so I’m glad to see rumors of a sequel series helmed by Angel‘s Tim Minear. More at Sci-Fi Wire.

* Sainthood in America: the Archdiocese of Baltimore may soon recommend a local 19th-century priest to the Vatican for canonization. I found it an interesting look at the balancing act that must now be played when looking for miracles in an age of science:

“Something worked very well,” said Dr. Larry Fitzpatrick, chief of surgery at Mercy Medical Center, who will serve as medical expert on the archiocesan committee.

Preparing for his committee role, Fitzpatrick spoke to specialists at Memorial Sloan-Kettering Cancer Center in New York and M.D. Anderson Cancer Center in Houston.

“They’ve all got a few stories like this,” he said. “Is this woman really any different from these, what I would call ‘statistically improbable’ cases? The outcome is very unusual, but it’s not the only one.”

Fitzpatrick said his role on the panel is to be the scientist, to “be the Doubting Thomas,” but as a Catholic, he says, he must entertain the possibility of a supernatural cause.

What method could one possibly use to divide what is merely “statistically improbable” from what is “genuinely miraculous”?

Ricci

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Excitement on the SCOTUS beat as the Court overturns the lower court Ricci decision in a 5-4 vote along the usual partisan breakdown. Since Sonia Sotomayor had been part of the Second Circuit’s upholding of the original decision, now overturned, this decision will undoubtedly receive a lot of attention even beyond the usual contentiousness that surrounds affirmative action. I haven’t followed the case closely enough to say much of anything about it—and to be fair it sounds like an especially hard case—though my gut reaction to any 5-4 decision from the Roberts court closely matches this take from conservative columnist Ramesh Ponnuru in the New York Times:

The debates on these issues are highlighting a deep inconsistency in the way my fellow conservatives approach race and the law. Many conservatives oppose Judge Sotomayor’s nomination because she does not appear to support originalism, the notion that legal texts, including the Constitution, should be interpreted according to the meaning that the informed public assumed them to have when they became law. We argue as well that judges should try to overcome the biases of their backgrounds in the name of self-restraint. But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint.

Where Ponnuru and I differ, of course, is in his belief that originalism as a judicial philosophy has any useful content whatsoever. I don’t think it does; as I’ve said before, it’s a rhetorical strategy, not a method, deployed when convenient and passed over when not.

Written by gerrycanavan

June 29, 2009 at 2:40 pm

Brand New Day Monday

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I’ve decided to radically alter every aspect of my life from diet to exercise to procrastinative laziness, beginning today. Let’s start with some blogging.

* I’m with Alex Greenberg: why were judges ever allowed to rule on cases concerning major campaign contributors? For that matter, why are jurisdictions still electing their judges? It’s nuts.

* Also on the legal front: I’m beginning to suspect that “judicial activism” is just an empty buzzword designed to discredit court decisions the right-wing doesn’t like.

* Almost seventy percent of Americans support allowing openly gay men and women to serve in the military. What the hell is Obama waiting for?

* George Dvorsky on the top ten existential movies of all time. (Thanks, Bill!) It’s a good list, but when your top ten list of existentialist film is missing The Seventh Seal it’s time to consider whether limiting yourself to English-language film was a wise choice.

* Blogging wasteland: According to a 2008 survey by Technorati, which runs a search engine for blogs, only 7.4 million out of the 133 million blogs the company tracks had been updated in the past 120 days. That translates to 95 percent of blogs being essentially abandoned, left to lie fallow on the Web, where they become public remnants of a dream — or at least an ambition — unfulfilled. (Thanks, Steve!)

* Kids today have it easy; in my day, we had send professors corrupted files we’d made ourselves. And what happened to pretending to forget to attach the document? Too low-tech for you?

* ‘Manufactured Controversy’: A new report by Free Exchange on Campus, a coalition of groups opposed to David Horowitz’s “Academic Bill of Rights” and similar measures, argues that the entire movement is built on false premises and is designed to attack higher education.

* Enjoyed this from Boing Boing: lecture from Stanford professor Robert Sapolsky on evolution, religion, schizophrenia and the schizotypal personality, arguing by analogy to sickle cell that schizophrenia is the hypertrophic result of genes that in isolation reward their holder with feverous religious certainty. I’ve become increasingly skeptical of attempts to map every feature of human existence onto genomic evolutionary pressure—and Sapolsky’s lecture is much more speculative than empirical—but it’s an interesting notion.

We’re Gonna Need a Bigger Meme

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We’re gonna need a bigger meme: Clarence Thomas and empathy, Samuel Alito and empathy.

I had no idea Republicans were nominating so many activist judges.

Written by gerrycanavan

May 28, 2009 at 12:19 am