Stone Court

Yesterday, Amanda pointed out the connection between making divorce less available and spousal abuse.

But how about opposition to divorce and gay baiting? Jennifer Roback Morse argues that the tepidness of opposition to gay marriage is the direct result of no-fault divorce. The whole diatribe is rather, er, extraordinary, but I will highlight only one paragraph:

Second, the high divorce rate and the resulting non-permanence of marriage made the institution of marriage more attractive to same-sex couples than it otherwise would be. If marriage still meant one to a customer for life, I seriously doubt that we’d be hearing about same-sex marriage today. Gay couples evidently have a more relaxed concept of both permanence and fidelity than do heterosexual couples. Gay activists would be much less likely to invest time and energy working for the right to marry, if divorce were available only for adultery or cruelty.

So, let me see if I follow this. Gay people care so much about marriage because it doesn't mean much anymore. The idea of a permanent relationship is so appealing because it so ... unpermanent. On the other hand, those promiscuous gay folks who can't be bothered with fidelity wouldn't want marriage if they had to, um, commit adultery, to get out of it.

Deconstruction of the remainder of the screed is left as an exercise for the reader.

Finally, while one might be inclined to dismiss Morse as a random kook, she gets herself a fair bit of attention. Yesterday, she published a creepy article in the conservative, but "mainstream" NRO, arguing in favor of adoption over "assisted reproductive technology".

While condoms are now officially unsafe, guns are definitely safe.

Alphecca quotes the London Times on the source of her hardline pro-gun views:

With the bombings came marauding groups of armed white vigilantes called “nightriders” who drove through black neighbourhoods shooting and starting fires. John Rice and his neighbours guarded the streets at night with shotguns.

The memory of her father out on patrol lies behind Rice’s opposition to gun control today. Had those guns been registered, she argues, Bull Connor would have had a legal right to take them away, thereby removing one of the black community’s only means of defence. “I have a sort of pure second amendment view of the right to bear arms,” she said in 2001.

My initial, flip reaction, was -- well, that's not the lesson I would have drawn. Vigilantes make a practice of driving through your neighborhood "shooting", and you conclude that making guns more available is a good thing?

Actually, my response wasn't entirely flip, since I do question her judgment on this issue -- but I think this story tells us something deeper about Rice. Why is it that she and I would draw different conclusions from this story? It's because, for Rice, the deeper lesson of growing up in Birmingham in the early 60s was that government is fundamentally corrupt and untrustworthy, and, in such a world, of course citizens need to be armed to the teeth. I think that tells us a lot about why Rice is a Republican, but it is also an unsettling worldview for a Secretary of State.

Larry E correctly describes the new Bush push for abstinence education (over $130 million, after the Republican controlled Congress cut Bush's request by $100 million) as a "perfect example of the Shrub team's approach to knowledge" because there is no evidence these programs reduce teenage pregnancy or disease.

In fact, Mary points out that these programs may be counterproductive. For example, there is evidence that teenagers who sign "virginity pledges" may delay sexual activity, but, when they do have sex, are more likely to do so without condoms or contraception, thus increasing their risk of pregnancy and disease.

LarryE also observes that the abstinence proponents' response to their lack of empirical support -- that the programs tested "are not true abstinence programs because they talk about delaying sexual activity, but not specifically waiting until marriage" -- is ridiculous. Mary reminds me that the median age at first marriage is now over 25 for women and close to 27 for men. Maybe abstinence was closer to realistic in the 1950s, when those numbers were more like 20 and 23, but does Bush really believe that the average person should wait until his or her mid-to-late 20s? Really? That's a lot of frustration.

So, what possible Republican ideal does this plan advance? Reducing abortions? Apparently not. Reducing the size of government? Clearly not. Frustrating the reality-based community? Yes, I think I'm beginning to see a theme....

OK. OK. That's probably overstating it, but we're in Boston and there is altogether too much Red Sox display for my tastes....

Anyway, we're back East for the holiday, so there will probably be light posting for the week. See you soon.

No blogging for you today, Fred. Get to work! 

As noted below, I am somewhat sympathetic to the idea that pharmacists have a legitimate interest in not participating in conduct, including dispensing birth control, that they find morally repugnant. However, that legitimate interest needs to be balanced against the legitimate interests of patients in access to contraception and of businesses in conducting their affairs. To take somewhat fanciful examples, I think most people would agree that a pharmacy with a large staff should arrange its work schedule to excuse an Orthodox Jewish pharmacist from dispensing prescriptions on the Sabbath, but that no pharmacy should be required to employ a Christian Scientist pharmacist who refuses to dispense any prescriptions.

All of this is relevant because, perhaps unsurpisingly, the Mississippi Health Care Rights of Conscience Act of 2004, Miss. Code Ann., § 41-107-1, et seq., goes far beyond any reasonable balance.

As an initial matter, the Act was championed by Mississippi's Governor, Haley Barbour, the former chair of the Republican National Committee and a founder of Barbour, Griffith & Rogers (discussed today by Josh Marshall), as a major pro-life accomplishment. (Barbour also claims that previously "Mississippi was only one of four states not to provide any protection for the rights of conscience of health care providers," a statement that is untrue, see Miss. Code Ann. § 41-41-215 (enacted 1998)). In any case, there is little doubt that the Act reflects core Republican policy.

While the Act may advance the Republican's anti-abortion agenda, it is strikingly at odds with other parts of the Republican agenda. In particular, the Act reflects a sudden Republican embrace of evil "trial lawyers". The Act (§ 41-107-11) authorizes any individual or entity harmed by a violation of the Act to sue for damages and an injunction. Not only that, but the plaintiff is entitled to triple damages, including tripling of "pain and suffering", the category of damages that in other contexts Republicans most want to curtail. But wait, there's more -- no matter what, the prevailing plaintiff is entitled to a minimum of $5,000, no matter how small the actual damages. Not enough? OK, the winning plaintiff is entitled to attorneys' fees and expenses, over and above the $5,000 or triple damages. But what if the defendant had a really good reason for what it did? Doesn't matter. The statute also prohibits "that such violation was necessary to prevent additional burden or expense on any other health care provider, health care institution, individual or patient". In other words, no cost-benefit analysis is permitted, because the plaintiff's right is absolute. Again, this is contrary to Republican doctrine that cost-benefit analysis is essential -- for example, before restricting oil drilling.

Let's make this all concrete. Say I own a pharmacy, and my staff pharmacist refuses to dispense contraceptives. One afternoon we have a lot of prescriptions for the so-called "morning after pill", and I tell him, go home early today, and maybe these women will come back tomorrow when our other pharmacist is on duty. He loses an hour's salary -- since this is Mississippi, let's say ten bucks. That's one of the many ways I can discriminate against him under § 41-107-5(3). He could sue me and, to make up for his $10 loss, recover $5,000 plus attorneys' fees -- let's say $7,500 bucks altogether. And his right to sue would be unaffected by how much harm his refusal might cause a patient -- consider, for example, a young woman in rural Mississippi who cannot obtain emergency contraception in time and whose own conscience precludes her from obtaining an abortion.

In other words, the Republicans know as well as anyone else that if there is a right that you really want to protect, get a "trial lawyer". And when they tell you they don't like "trial lawyers", don't forget that what they are really saying is that they don't think the right at issue is worthy of protection.

(Statutory citations via Westlaw($). Lexis($) replaces the 98 in the citation with 107. I don't know which is correct. UPDATE: Lexis was right, and Westlaw has corrected the error. I have revised the post to reflect the correct citation.)

Do not be alarmed. The Demo-cat has taken control of your blog. No one will be hurt. 

An email exchange this morning between Mary and Fred:

MARY: In case you didn't catch this on Kos, I saw a similar story earlier in the year, which is what led to my claims about them going after birth control:

"For a year, Julee Lacey stopped in a CVS pharmacy near her home in a Fort Worth suburb to get refills of her birth-control pills. Then one day last March, the pharmacist refused to fill Lacey's prescription because she did not believe in birth control.

"I was shocked," says Lacey, 33, who was not able to get her prescription until the next day and missed taking one of her pills. "Their job is not to regulate what people take or do. It's just to fill the prescription that was ordered by my physician."

Some pharmacists, however, disagree and refuse on moral grounds to fill prescriptions for contraceptives. And states from Rhode Island to Washington have proposed laws that would protect such decisions [...]

We have always understood that the battles about abortion were just the tip of a larger ideological iceberg, and that it's really birth control that they're after also," says Gloria Feldt, president of Planned Parenthood Federation of America.

"The explosion in the number of legislative initiatives and the number of individuals who are just saying, 'We're not going to fill that prescription for you because we don't believe in it' is astonishing," she said."

FRED: I did see it. I didn't post on it because I'm actually rather conflicted about how I feel about. I have the right to refuse to represent Operation Rescue on moral grounds, so I have some sympathy for the idea that professionals (or anyone) should be permitted to refuse to do things that are morally repugnant to them. My gut reaction would be that an independent pharmacist should be allowed to sell or not sell what he chooses, but that a CVS employee should get another job if she doesn't want to participate in her employer's business -- but of course there is an obvious Marxist critique to that. If I figure this out, I probably will post on it.

MARY: The problem, as with abortion providers (and the reason for the fundamentalists to make this their next line of attack) is that there are places where there is only one pharmacy in town. If that pharmacist won't give you your prescription, and you have to somehow get yourself to another town who knows how far away (what if you don't have a car? what if you can't get that much time off from your job? what if you're a teenager and you haven't told your parents you want to go on the pill?), you may be up a creek. As I said earlier, the first line of attack is against poor and young women--the ones for whom it will be most difficult to overcome the obstacles to contraception placed in their way.

Even worse, there are ob-gyn's, often ones who previously gave prescriptions for pills, who are now deciding that they will no longer do so. In many parts of the country, there aren't a whole lot of extra doctors floating around, either... And those extra days or weeks to find a new doctor, get an appointment, get there, and get the prescription filled may well mean that you've missed taking pills and are at risk of pregnancy...

Sure, they can probably buy condoms for the interim, but condoms are not nearly as effective a means of birth control-- AND they take power/control over the decision out of women's hands--also part of the fundamentalist agenda.

I don't know what the answer is in terms of pharmacists and their consciences. Practically, it may just be the case that Planned Parenthood, NARAL, NOW, etc., have to start a massive effort to expand services and make birth control more directly available so that women aren't at the mercy of fundamentalist doctors and pharmacists. I think there also has to be a push-back, because there's just no way that most married conservative Republicans really want to lose their access to and privacy around contraceptive choice, and they need to see that that's what their fundamentalist allies are trying to achieve...

The AP is reporting that Alberto Gonzales will succeed John Ashcroft as Attorney General, meaning that he is very unlikely to be in line for the Supreme Court opening that appears to be coming in 2005.

This gives me a chance to pat myself on the back for predicting three days ago that it wouldn't be Gonzales -- and also to kick myself for mis-spelling his name.

Just to be clear, I could well see Gonzales as a late term pick (say in 2007) if Bush has already succeeded in adding a couple of right wingers to the Court, but so much will happen between now and then that predictions are meaningless.

UPDATE: Christine at Ms. Musings suspects the same thing I do.

Did CNN.com really intend to leave in this last paragraph of its article on New Jersey Governor Jim McGreevey's resignation speech:

Wow, an entire column on James McGreevey and not one mention of Golan Cipel.

John Mercurio, New Jersey governor saying farewell: McGreevey stepping down amid scandal (Nov. 8, 2004).

(Cipel, of course, is the Israeli national who was chosen by McGreevey as New Jersey's top anti-terrorism official and who precipitated McGreevey's resignation by bringing a sexual harassment lawsuit against the governor.)

Hell, speculating about Supreme Court nominations is fun.

Since Jim Lindgren at Volokh offers his "uninformed guess" that Bush will nominate Alberto Gonzalez, I will offer my uninformed reaction that it's not going to happen. While Lindgren argues that Bush has a "practice of appointing minorities to more of the truly important positions of power than any prior President", as I have pointed out previously he has a far more consistent practice of never appointing a moderate to anything that matters. Gonzalez in particular is very unpopular within the fundamentalist Christian movement because it believes he will not vote to overturn Roe v. Wade, which in itself is probably disqualifying for Bush.

I do agree with Lindgren that if Gonzalez were nominated he would be "as moderate an appointment as the Democrats are likely to see", but let's also keep in mind that he is moderate only in comparison to a radically ideological administration. (As White House counsel, his role includes oversight (though not complete control, of course) of Bush's judicial nominations, the vast of majority of which have been very far to the right.)

It won't surprise you that I think Durbin is an excellent choice for Senate Whip.

Atrios invites us to propose "Really Bad Ideas That Voters Love" as a way to increase turnout. More generally, Marshall, New Donkey, and many others are proposing that we think hard about articulating a coherent message. (In Liberal Oasis' view, we already have the message -- "Belief in the ability of a representative, responsive and accountable government to address certain community problems and protect personal freedoms" -- but need to get over the fear of saying it.)

As part of this focus on message, let me propose an idea that may seem odd at first: The Balanced Budget Amendment.

Now hear me out. I know that that used to be a big Republican issue. But, you know what, you don't hear them talking about that much any more, do you? The reason is obvious. When the GOP starting hawking the BBA, they were searching for a way to constrain what they perceived as Democratic profligate spending. Today, the problem is the profligate Republican tax cuts.

I know economists don't like the idea, but I suspect that, on the merits, it's actually not so terrible, at least when viewed in context of the alternatives. Arguments for allowing deficit spending generally assume reasonably rational governmental decision making. In the present environment, with such a massive disconnect between the Republican machine and the interests of the Nation, tying the government's hands is probably the economically rational course. If passed, the Republicans would have no choice but to choose between giving up their tax cuts for the rich and spending cuts so deep and painful that backlash would be inevitable -- kind of a reverse of Norquist's strategy to drown the government in a bathtub. (While one should be reluctant to amend the Constitution for short term considerations, the Republican revolution is obviously a long term project, and, frankly, each generation must fight its own battles.)

So, here's why I think this is a good idea to consider making part of our message:

1. It offers voters a simple, easy to understand solution to an important problem. It is easy to turn into a sound bite and, therefore, get media coverage. It can be hammered again and again, and is relevant to a vast array of issues.

2. As such, it offers just the kind of solution that heartland swing voters want. We know that because Ross Perot ran on exactly that issue in 1992 and 1996, along with Clinton keeping the Republicans under 41% twice in a row.

3. It would look bad for the Republicans to oppose it, since it used to be their issue.

4. It allows us to continually remind voters that a balanced budget is possible, that Clinton achieved it, and that Bush (and Reagan) massively expanded the deficit.

5. Since we are all looking for "moral issues" now, this is one that can be framed as a moral issue. First, as the Republicans used to do, there is the argument that it is required by the moral imperative of living within one's means. As they used to remind us, your family must balance its budget, why shouldn't the government? Second, it's about rules and discipline. Just like children, the Republicans who are running things need boundaries. (OK, you wouldn't say it in such a snarky way, but you get the idea.) For what it's worth, the Christian Coalition used to rate politicians on the BBA, though of course now the Christian value they rate is tax cuts.

6. Just as important, unlike becoming Republicans on abortion, gay rights, and stem cell research, the BBA is a "moral issue" that is not morally repugnant to our values. Moreover, it is not inconsistent with our central message, per Liberal Oasis, which requires "accountable government".

7. Howard Dean, who is already working on the project of reclaiming our Nation, is an obvious messenger. He already has a record of balancing budgets and talking about it in quasi-moral terms. Obviously, we would need leaders from the South, Midwest, and West to take up the cause as well -- it can't be all Dean, but Dean is good at getting media attention.

Via Mary, here's the cover photo on cnn.com. I guess 51% makes you a saint. 

Via Atrios, the Wall Street Journal ($) is "debuting the idea" of Miguel Estrada for the Supreme Court and Scalia as Chief:

Mr. Bush could send an early message here if Chief Justice William Rehnquist decides to retire soon due to illness. He could do worse than elevate Antonin Scalia to Chief Justice and nominate Miguel Estrada as an Associate Justice, even as a recess appointment if that becomes necessary. Mr. Estrada is a distinguished lawyer who had the support of enough Democrats to be confirmed for the federal bench but was filibustered by Mr. Daschle. Mr. Bush's voters do not want another David Souter.

I'm afraid this was foreseeable:

While I hope never to have a chance to say "I told you so", ... I suspect Bush's strategy for the next justice would mirror the Clarence Thomas appointment, but for another constituency -- pick a young, attractive, ideological conservative who is a woman or Latino/a and has few published writings, and count on the left to be sufficiently split that the nomination squeeks through. The strategy, of course, was previewed with trying to appoint the now withdrawn Miguel Estrada to the D.C. Circuit. If the candidate is too green to be Chief, Bush can always throw the center a bone by elevating O'Connor to Chief as cover for adding another ideologue. (Of course, if Bush feels strong enough in the new Senate, he could make Scalia Chief.)

I suspect that one not yet mentioned casualty of Tuesday's election will be the filibuster, the Senate rule that has existed since the Nineteenth Century and in its current form (Senate Rule 22) essentially prevents any matter from coming to a vote unless 60 Senators agree to force a vote through "cloture". At this point, Rule 22 is the only thing that prevents the Republicans from doing absolutely whatever they want (other than Sandra Day O'Connor's whim, which they know will take care of itself sooner or later). There were already grumblings in the last Congress about filibusters, but two factors suggest that this will be the term they try to do something about it: (1) The elections of Coburn, Bunning, DeMint, and Murkowski (and, frankly, Bush) say that there will be no backlash -- that the Republican core is so solid that they can say and do anything and not pay a consequence; and (2) the Republicans got to the round number of 55 Senators, so they have available the fig leaf of changing the number of Senators required for cloture from 60 to 55 rather than doing away with filibuster altogether -- since this provision has been changed twice already (1917 and 1975), they will argue that they are doing no harm to history or tradition.

The only obstacle is that Rule 22 itself requires a two-thirds vote to change the Senate rules. However, Dick Cheney as President of the Senate could simply rule as a matter of order that the Senate Rules can be changed by majority vote. The legality of such an action would be dubious, but the arguments that it is legal would pass the laugh test, which as we know is all that they would need to diffuse media criticism. And, in any case, who could stop them? The courts wouldn't take the case, because of legitimate separation of powers considerations as well as illegitimate political ones.

UPDATE: Sadly, per Josh Marshall, I am only prescient by a matter of hours.

It's only a footnote, but along with the many real-life casualties of Bush's election, one other casualty is the vaunted reliability of the electronic markets. Though you can't see it now because they only report daily data, the Iowa Electronic Market had Bush at around $.26 in early evening. Tradesports was about the same. If you can't count on the market to predict the winner hours before it becomes obvious to the world, one must question its value as a "decision support system".

Presumably, just like traditional markets, the election markets responded to emotion and the allure of unreliable insider information. This doesn't prove that information markets can't work or can't work for elections, but I think it tells us that the existing version, because of the $500 investment limit, is fundamentally flawed. So I'm not going to take a lot of comfort in the fact that our chance of taking back the presidency in 2008 is trading at $.54.

Update: Dems winning the presidency in '08 is down to $.51, but if you really want to make some money, you can short sell McCain, whose chance of the Republican nomination is trading at $.24 despite his age (he'll be 72 in '08), cancer, and rocky history with the Republican establishment. (It's my understanding that, unlike IEM, which has a waiver, the legality of U.S. residents trading on Tradesports is in doubt.)

Atrios is exactly right that Durbin would be enormously more effective as minority leader than Reid.

However, let me second Mary's suggestion that the best choice for minority leader is John Kerry. Complain as we will about the media, our problem the last time around is that we had no voice during the first half of the Bush Administration, meaning that the Republicans had complete control of the political and media agenda. If Kerry is made majority leader, we would have a European style opposition leader who the media would look to for the Democratic perspective on Bush's policies. Unlike Reid and Daschle, Kerry has a safe seat that would allow him to take the positions he needs to take to be minority leader. Kerry has the stature to command more attention in that role than anyone, even Durbin. And he would be there constantly to remind people how much better he would be doing things.

Yes, it would set him up to run again in 2008, but that's not a bad thing. Despite the conventional wisdom that a loser can't run again and win, we have proof to the contrary as recently as Nixon and, at a local level, we see it all the time (think Thune, Giuliani). Kerry ran a good race and could win in 2008 when he's not facing an incumbent. Plus, the benefit of the strategy is that, if it works and he's popular, he can run from a position of strength, while if he's not, we're not stuck with him as the nominee. Making Kerry the minority leader would require a lot of people putting their egos on hold, but honestly if our party's leaders can't do that -- and instead give us a leader who won't, or can't, endorse Roe v. Wade -- then the obstacles are even greater than I feared this morning.

UPDATE: This idea is receiving substantial support in the blogosphere, including Three Guys, The Talent Show, LeftWatch 2.0, Miasmatic Funk, Justin, Past Peak, the commenters to this post, and a number of commenters elsewhere.

FURTHER UPDATE: Reid it is. Let's hope that Kerry nonetheless continues to be a leader of the opposition. He won't be irrelevant unless he decides to be.

Kerry is right not to concede until we are certain that there is no chance of his winning, but there is nothing in public information to suggest that he has any chance of winning. The margin is too large, the provisional ballots too few. We're not even close to close enough for an automatic recount (see Ohio Code s 3515.011 (no links to individual sections). Ohio freely permits requests for recounts (Ohio Code s 3515.01), at least in the counties where recounts are possible (i.e., where they are not using electronic machines without paper trails), but this is an enormous gap to fill with a recount. Right now, the best source for the legal status of all this is Rick Hasen's Election Law Blog and the links he includes. All that said, it is possible, though barely, that the Kerry campaign has access to information that suggests that playing this all out is not a waste of time.

It's too early to think about what next, but the outcome is obviously enormously depressing. Jeff Alworth says that we now live in a one-party, fundamentalist state, which is probably about right. This may be stating the obvious, but we appear to have lost the presidency despite a disasterous war, an unfocused war on terror, a weak economy, an enormous deficit, a pillaging of the treasury on behalf of the wealthy and corporations, an incredibly energized liberal and urban base, a reasonably well run Democratic campaign, a financial parity that may be difficult to achieve ever again, and a Republican candidate who was manifestly unqualified for the office -- yet Bush easily won the popular vote and appears to have won the electoral vote. While this was not a Bush landslide, it is difficult to see how conditions will ever be more favorable for a Democratic victory than they were 24 hours ago (though not impossible, a subject I will return to in later posts). What is worse, we appear to have lost almost every close Senate race, even Kentucky, Oklahoma, and Alaska (not yet called), three states where the Republican candidates carried serious flaws into the election, suggesting that the Republican "brand" is overwhelming ours in enough parts of the country that we will be stuck in permanent minority status. The Supreme Court appears to be lost for the next 30 years. And all of this is far less depressing than the possibility the election was stolen by fraud -- I am inclined to doubt this but I have heard more than a few suspicions on Bush's consistently outperforming the exit polls.

I am not a religious person, but let us pray for our Nation, and the world.

The ediface is crumbling -- IEM is dead even, and sees a Kerry landslide as 50% more likely than a Bush one. Get out there and vote.