Stone Court

David Kopel, many of whose Fifty-nine Deceits in Fahrenheit 9-11 I debunked here, here, here, and here, today condemns 199 University of Colorado professors as "Professors for Academic Fraud and Terrorism" who "disgraced themselves today by signing an advertisement in the Boulder Daily Camera in support of Professor Ward Churchill". (I have not seen the ad, which is not on-line. Kopel links to this Denver Post article about the ad.)

Kopel's basis for these strong charges? That Churchill has done, or been accused of, a lot of bad things -- lying in publications and about his own biography, punitive grading practices, threats of violence, advocacy of treason, etc.

The problem is that Kopel's critique may been an effective condemnation of Churchill, but it misses the point of what the signatories were complaining about -- which was that the investigation was being conducted outside ordinary procedures and in response to the unpopularity of Churchill's views. Indeed, the Post reports that the signatories acknowledged that "many faculty are 'troubled' by Churchill's statements and 'some of the things revealed since the investigation began.' But, they said, 'any findings will be tainted by improper procedures.'" There may well be things in Churchill's record that would justify firing him, but is Kopel really unable to see that the risk that commencing such an investigation because a professor took an unpopular position, rather than in response to a specific charge of wrongdoing, could chill academic freedom?

The draft Articles of Impeachment against Richard Nixon accused him of:

Conspiracy to Suppress Free Speech. Caused harassment, by means of tax audits and other acts by the Internal Revenue Service, of named persons designated as political "enemies" of President Nixon for the purpose of inhibiting or preventing their exercise of First amendment rights, in violation of section 241 of the Criminal Code.

Would Kopel have defended Nixon on the grounds that some of Nixon's enemies really did cheat on their taxes?

Friday, Mary and I discussed Chez Miscarriage's series on "mother drive bys", which Ampersand nicely summarizes. At the end, Amp asks:

Probably the rank sexist inequality lurking behind all this - that fathers aren’t expected to do equal childcare time (by and large), or put in a damned-if-you-do-damned-if-you-don’t position regarding staying at home or working - is too obvious to need mentioning. Right?

Of course, Amp is exactly right about the rank sexism behind the mother drive bys. For what it's worth, I'd say a similar sexism lies behind "father drive bys", which in my experience fit into two broad categories:

1. Crocodile Tears. I have remarked to Mary that I would be rich if I had a dime for every time I took our boys a store (for example) and was told with sympathy that I "had my hands full". Mary has never been told that. Mothers tend to get little sympathy -- it's their job, right? -- while fathers get condescension -- wow, even if it wouldn't be worth mentioning when Mary does it, it must be really, really hard for Fred.

2. Presumed Ignorant. Fathers get all kinds of unsolicited advice that I suspect folks would figure mothers were not stupid enough to need (though maybe that's too optimistic given many of the comments on Chez Miscarriage's original post). For example, I regularly got "his shoes are untied!" when my older one was in a stroller -- I knew that, but because he thought untying them every time I tied them was a game I eventually decided to just let it be since it didn't matter anyway since he was in a stoller. My favorite, though, was folks always telling me he was bored or unhappy in the swing. He sure looked that way (he was a very sober baby), but he was actually loving it. After a while, I felt like I needed to take him out of the swing every once in a while, just so the other parents could hear his protests that he wanted to keep swinging. (Pathetic, I know, but there it is.) Again, I think the subtext enforces sexist allocations of childcare by sending the message that fathers just don't do it very well.

There may be more to this taxonomy (please let me know what I'm missing), but that's what comes to mind right now.

Bush in Bratislava yesterday. (UPDATE: Text now links to original AFP picture and context. Sorry for the broken link.)

A few weeks ago, I discussed Stanley Kurtz's effort to blame the "cultural left" in general, and working women in particular, for the "crisis" of declining birth rates.

Of course, Japan -- that hotbed of the cultural left -- has lower fertility than almost anyone, a situation that Japan's government considers a serious problem. Today, we learn that 70% of single Japanese women prefer not to get married, not a good fact for fertility since Japan also has a very low rate of non-marital births.

What's interesting is that, as far as I can tell, the problem is one of the "cultural right" (recognizing the imprecision of applying such a term to Japan) -- namely, an unwillingness to revise unusually restrictive immigration policies; a marriage paradigm that, this survey reveals, is increasingly unappealing to Japanese women; and, as the Japan Times reports, the counterproductive effects of laws that require married couples to adopt the same name, which apparently discourages marriage, and the official stigmatizing of non-marital births, which further depresses fertility.

A sun beam can make everything alright.

Henry Waxman -- "the Democrats' chief pursuer of purported wrongdoing within the Bush Administration" -- today asked the House Committee on Government Reform to investigate Jose Canseco's allegations about steroid use in baseball.

While Waxman's letter focuses on Canseco's allegation that Mark McGwire used steroids, I suspect he is hunting bigger game (to mix my sporting metaphors). Not coincidentally, Waxman's request quotes Bush's 2004 State of the Union:

To help children make right choices, they need good examples. Athletics play such an important role in our society, but, unfortunately, some in professional sports are not setting much of an example. The use of performance-enhancing drugs like steroids in baseball, football, and other sports is dangerous, and it sends the wrong message - that there are shortcuts to accomplishment, and that performance is more important than character.

Canseco's allegations include the allegation that Bush did not set such a good example when he owned the Texas Rangers:

Canseco claims the [Rangers'] general managing partner at the time - an aspiring politician named George W. Bush - had to have been aware that his players were using performance-enhancing drugs but did nothing about it.

Now, "had to have been aware" is not exactly personal knowledge, and Bush has directly denied the claim, but, frankly, Bush's claim that he didn't know is not plausible. I had Jose Canseco on my Strat-O-Matic team in 1988, and I strongly suspected he was using steroids -- and that was four years before Bush had him on the Rangers. In the 1990 playoffs, 34,000 Boston fans sure knew, chanting "Steroids" every time Canseco came to the plate. When the Rangers aquired Canseco on August 31, 1992, it was public knowledge that steroids were part of the reason the A's were willing to make the deal:

Always, with Jose, it was something. It was Jose and his cars, or Jose and his gun, or Jose and Madonna. It was steroid rumors, or the second-guessing of manager Tony La Russa, or irritating teammates by leaving games early. It was Canseco ramming his wife's car with his own, then wondering what all the fuss was about.

Eventually, the A's got tired of listening. Monday, when they shipped him to Texas ... it was Canseco's controversies that greased the move....

Gary Shelton, The Eyes of Texas Are Upon Jose, St. Petersburg Times, September 2, 1992 (Nexis ($)).

The above is all circumstantial. Who knows whether Waxman will uncover more? However, as Jason Giambi has learned, subpoenas often have a wonderful way of getting at the truth.

Is this all relevant and worth pursuing? My inclination is to say yes. Bush himself elevated the issue of the example set by those in professional sports. Moreover, Bush's conduct (both in 1992 and 2005) is a microcosm of his style of goverance -- a cavalier disregard for the truth, a self-righteous interest in the conduct of others (usually in the name of the "children"), and a firm conviction that rules are for other people.

As Bill Clinton learned, it may not be as important whether a scandal is "important" as whether it is easy to understand.

OK, I'm going to cash in some of my cynical New Yorker street cred here. My initial reaction to the Gates was that it was a lame waste of money with unjustified artistic pretensions, but I have to say that seeing it in person I was favorably impressed. Besides the fact that that much orange is cheerful in February, the Gates seemed to have the mass of blase New Yorkers acting like giddy children on a field trip.

We walked among thousands of people fillings the paths of the upper reaches of Central Park on a cold February Sunday. A 60ish East Sider stopped to tell me that his gloves, which he got from his son 10 years ago, said "Gates" on them -- with the kind of enthusiasm for the subject I'd expect from an 8 year old. In fact, it seemed like every casual conversation included a discussion of the Gates. Overall, it reminded me of nothing more than the bubbly energy of the City back in 2000 during the Subway Series or 1994 during the simultaneous World Cup and Gay Games. Yeah, it's a lot of right angles and orange synthetics, but it cheered me up.

Below are my very own, copyright Fred, photos. Note the daytime moon in the second one....

The Supreme Court has refused to hear an appeal of an Eleventh Circuit ruling upholding an Alabama statute prohibiting the distribution of "any device designed or marketed as useful primarily for the stimulation of human sexual organs".

I don't have time to blog fully on this right now, but the Eleventh Circuit's 2-1 decision is really quite frightening. Think what you may about government bans on pornography, prostitution, recreational drugs, etc., those bans are generally based on a claim that there is some objective reason for the ban, such as preventing crime or disease. In this case, the Eleventh Circuit did not even pretend to require such a basis, finding that it was sufficient that Alabama has a governmental right to regulate morality.

Probably, so soon after Lawrence v. Texas, the Court didn't want to take on the issue of whether States can, constitutionally, regulate morality without any other state interest. But it should have.

UPDATE: Here's the Eleventh Circuit decision. To give you a flavor of the statute and the decision, here are two passages:

Alabama's Anti-Obscenity Enforcement Act prohibits, among other things, the commercial distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value." Ala.Code § 13A-12-200.2 (Supp.2003). The Alabama statute proscribes a relatively narrow bandwidth of activity. It prohibits only the sale--but not the use, possession, or gratuitous distribution--of sexual devices (in fact, the users involved in this litigation acknowledge that they already possess multiple sex toys). The law does not affect the distribution of a number of other sexual products such as ribbed condoms or virility drugs. Nor does it prohibit Alabama residents from purchasing sexual devices out of state and bringing them back into Alabama. Moreover, the statute permits the sale of ordinary vibrators and body massagers that, although useful as sexual aids, are not "designed or marketed ... primarily" for that particular purpose. Id. Finally, the statute exempts sales of sexual devices "for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose." Id. § 13A-12-200.4.

...

Advocating that public morality should no longer be a "rational basis to restrict private sexual activity," the dissent seeks to ignore that the legislation at issue bans by its express terms only the unsavory advertising and sale of sexual devices that the majority of the people of Alabama may well find morally offensive. The fact remains that the complainants here continue to possess and use such devices, burdened only by inconvenient access.

Note to David Bernstein:

The notion that women "just prefer[] to do other things" than become tenured professors is not analogous to the notion that conservatives "just prefer[] to do other things". Conservatives are running all branches of the federal government (and most states), are widely represented (and in many cases dominant) in the upper echelons of virtually every industry, and are substantially over-represented in the top 5% of income earners. Women are not.

Related Post: Manufacturing Acts of Self-Victimization, Part II

A silly hobby of mine is trying to prove the nonsense hypothesis that a person's name is his or her destiny. Judge Wisdom was a well respected jurist. Marion Nestle is an expert in food policy. That kind of thing.

So, the name of Bush's "old friend who secretly recorded private conversations in which Bush appears to acknowledge past drug use"? Doug Wead.

Coincidence? You decide.

Speaking of love, one problem that recurs more and more frequently these days, in books and plays and movies, is the inability of people to communicate with the people they love; husbands and wives who can't communicate, children who can't communicate with their parents, and so on. And the characters in these books and plays and so on (and in real life, I might add) spend hours bemoaning the fact that they can't communicate. I feel that if a person can't communicate, the very least he can do is to Shut Up!
-- Tom Lehrer

... but I won't ....

With a brief post requesting feminists and their allies "to discuss the question of civility on 'Alas,' and perhaps other topics as well", Ampersand at Alas, A Blog touched off a firestorm of 123 mostly very-heated comments, leading to his banning two posters and closing the thread, which was promptly re-opened on the adjacent post (57 comments as of now) and on Cool Beans (30 comments as of now). These discussions, in turn, seem to follow from several earlier and controversial threads that I mostly missed but that also apparently created tons of comments and anger.

At the core of the angry exchanges was the claim by half a dozen or so women (and the active participants in this exchange broke down along sex lines) that civility was, essentially, a tool of oppression. At one level, this seemed to me like a suprising claim -- at least in the context of a feminist blog's message board -- because in this context I have seen far more incivility used as a weapon against feminism than civility. Just off the top of my head, anti-feminist posters (virtually all male) have stalked and threatened This Girl, implictly threatened a commenter on Trish Wilson's blog (and probably Wilson as well), hijacked Feministing threads with pointless and vulgar abuse, and mocked Hugo Schwyzer and implied that he is a child abuser for, essentially, playing with his niece and nephew. Even this blog has been linked to by a private message board associateed with a vile and sexist "Ameriskanks Suck" (one can only imagine what the message board says).

At the same time, the Alas commenters clearly have a point. They point out, quite correctly, that the veneer of civility can be used as a cover for the most uncivil of thoughts. Hell, that's the Bush Administration's M.O. Defending traditional marriage is "civil" for discriminating against gay people. Appointing judges who will "strictly interpret the Constitution as opposed to using the bench to legislate" is "civil" for "[m]ost of the rights that you enjoy go way beyond what the Constitution requires." (Thankfully, Scalia doesn't have time for civil.))

Likewise, the commenters are undoubtedly right that a call for "civility" can supress the voices of women and other oppressed people by forcing them to speak from a position of detachment rather than from personal experience and from personal pain.

I would add to the list (and if the commenters made this point, I apologize), that the skills for traditional civil discourse are skills for which the empowered receive disproportionate training. Indeed, my job is training people who have made it to law school to make precisely the "civil" arguments that are under attack.

So where do those valid concerns leave us? My view is that they provide important cautions about civil discourse. Sometimes, being civil just won't do. But I don't think we have to give up on the whole enterprise. The URL for this blog is www.thurgood.blogspot.com for a reason. Thurgood Marshall was not denying his anger at his oppression when he remade American law by speaking the language of the elites, he was honoring his anger. So, partly, I do believe in civil discourse as a tool to persuade, and I do think there are still people out there who can be persuaded (despite the blow to that belief of the last election).

But also, I think civility remains a virtue because it is more than speaking politely (and sometimes not even that). Rather, civility also includes intellectual honesty and genuine listening. The Bush agenda fails the civility test because it is intellectually dishonest. That's why Paul O'Neil, Colin Powell, and anyone else who's tried to make real conservative policy based on real evidence, is out of there. And, at the same time, speaking emotionally of genuine pain need not be uncivil.

There will be times when we must give up on civility. But we should still give genuine civility, and the chance to teach each other and to learn from each other, the first chance.

Light blogging this weekend, as I will be heading to New York, my "second home", where I was "made" -- oops, Mayor Bloomberg says I can't say those things....

The NHL announced today that it was canceling its season due to the failure to reach a collective bargaining agreement, implying that it would play next year with "replacement players" ("scabs" in the vernacular). Now, I don't really care about hockey, but I do wonder, why would a hockey fan want to watch minor league hockey players in NHL arenas?

I have a better idea.

Instead of replacement players, how about replacement owners? This may not be realistic in most labor disputes, given the cost of capital and/or the ready availability of comparable replacement employees, but top hockey players are difficult to replace, have a boatload of capital -- and the main expense is paying for themselves. Pencil pushers, on the other hand, are a dime a dozen. Harvard is cranking out hundreds of MBAs who I bet would be happy to organize a league for $160,000 a year. (OK, about 20 million dimes a dozen, but you get the idea.) Commissioner? I hear Carly Fiorina needs a job.

Which league would hockey fans prefer to watch -- real management with fake players ... or real players with fake management?

April 1, 2004:

THE PRESIDENT: ... The Unborn Victims of Violence Act provides that, under federal law, any person who causes death or injury to a child in the womb shall be charged with a separate offense, in addition to any charges relating to the mother....

The moral concern of humanity extends to those unborn children who are harmed or killed in crimes against their mothers. And now, the protection of federal law extends to those children, as well. With this action, we widen the circle of compassion and inclusion in our society, and we reaffirm that the United States of America is building a culture of life.

February 15, 2005:

Babies' DNA can be damaged even before they are born if their mothers breathe polluted air, according to a study published on Tuesday.

"This is the first study to show that environmental exposures to specific combustion pollutants during pregnancy can result in chromosomal abnormalities in fetal tissues," said Kenneth Olden, director of the National Institute of Environmental Health Sciences, which funded the study.

Bush's record on air pollution:

Dirty Skies: The Bush Administration's Air Pollution Plan
As air pollution continues to harm Americans' health, the Bush administration is pushing its misnamed 'Clear Skies' initiative, which would gut existing health protections and do nothing to curb global warming.

I'm looking forward to the Unborn Victims of Air Pollution Act of 2005. Until then, I'll just be ... holding my breath.

Related Posts: Bush Talking Points Watch, Part VI; Bush Talking Points Watch, Part V; Bush Talking Points Watch, Part IV; Bush Talking Points Watch, Part III; Bush Talking Points Watch, Part II; Bush Talking Points Watch

I love Kos. Kos was part of the inspiration for this blog. Kos has done more for progressive politics than I can ever reasonably hope to do.

But I am troubled by this:

Ari is getting shots this morning, and I'm going along for moral support.

Be back in a few hours.

Moral support? Ari is fifteen months old. I would think he needed more than moral support, like say a ride to the doctor, no? Oh, you mean moral support for your wife?

Kos, taking the baby for shots is your job too. Take Ari together, if that's what you two choose to do, but don't act like you're giving moral support to your wife doing her job.

Much as I hate criticizing Kos, this is an important point. In my view, it is often the unexamined assumptions that are the biggest impediment to progress.

Kevin Drum picks an odd time to worry about the effect of blogs. On the occasion of Eason Jordan's resignation, he laments that the blogosphere's biggest successes seem to have been "collecting scalps":

I guess we all have our own ideas of what the blogosphere is good for. But when the history books are finally written, I hope that cranking up the politics of personal destruction yet another notch isn't what we end up being most famous for.

And one more thing: it might be time for liberals to realize that even if we manage to collect a few scalps of our own along the way, conservatives gain strength from promoting this brand of warfare far more than liberals do. I hope we're not just being useful idiots by joining in this game.

I say the timing is odd because today was the election of Howard Dean as DNC chair. That sure wouldn't have happened without the blogosphere. Had you heard of Terry McAuliffe before Clinton tapped him to head the DNC? Did you think anyone cared if you thought he was the right person for the job? Didn't think so. (Ironically, of course, Drum has been one of the biggest contributors to the blogosphere as a force for the better.)

I also disagree with the idea that the careful scrutiny of public figures inherently helps the right more than the left. At this point, the right runs everything, and the media is more than willing to let the GOP set the agenda, so more scrutiny, in general, favors good government and, not incidentally, the left. If you think Josh Marshall isn't affecting the social security debate, you're missing something. Obviously, "the politics of personal destruction" is a broad term and I don't endorse everything that could fit that rubric, but if "the politics of personal destruction" means calling Alberto Gonzales to task for his failures as White House Counsel, then I'm all for it. (On the Eason Jordan situation, I must say that it's very hard to get reliable information about what precisely occurred, so I am withholding judgment on the justice of the outcome, though it is hard to see how Jordan comes out of the whole series of events without at least some mud on his clothes.)

So, let's take Atrios up on his suggestion and "reward [the DNC's] good behavior".

As Kos reports that Senate Minority Leader Harry Reid "has got his [excrement] together", here's NARAL's Nancy Keenan in an "Open Letter to the Right-to-Life Community":

Senate Minority Leader Harry Reid -- who disagrees with us on the issue of abortion -- has offered a commonsense bill called the Prevention First Act which would help reduce unintended pregnancies through better access to birth control. This landmark legislation represents a serious first step in addressing the problem, and I hope you'll join pro-choice Americans and me in offering your support.

Let's work together to pass this bill, and make it the first step in a dialogue about preventing unintended pregnancies.

This is exactly right. As I discuss here, pushing the issue of real sex education and access to contraception (including EC) is a political winner for the choice movement -- and offers the opportunity to really improve people's lives.

And, while I'm on the subject, sign NARAL's petition to Welcome Pro-Choice Howard Dean to the DNC.

Related Posts: HRC: The Good, the Bad, and the Ugly; Seeing Red

Pick me, Mr. President. I have a question.... 

Labkat's take on the British involuntary testicular amputation case is so funny it would make you pee, if you weren't crossing your legs.

I can't wait to hear what she has to say about Tuesday's report that a "Welsh rugby fan chopped off his testicles after his country's epic victory over England".

Ezra Klein reports on a sideshow to Juan Cole's smackdown of the woefully underprepared Jonah Goldberg, who seemingly admits never having read a book about Iraq -- namely Cole's charge that "young men who advocate a war must go and fight it". Klein's summary:

The central point is whether young, healthy guys who advocate war are morally compelled to fight in it. The consensus is so long as we have a capable, volunteer army, no. I agree with that. If you argue for war then dodge conscription (like Rove, DeLay, Limbaugh, Bush, et al), you're fit for Republican leadership a bad person. I agree with that, too. The point Matt [Yglesias] brings up, however, is thornier, which should be expected from a philosophy major. Assume you advocated for war when it looked like the volunteer army could take care of it, but their numbers proved inadequate. What then?

Besides the sexist premise of Cole's original comment (and I will give Klein the benefit of the doubt that he was merely addressing the issue as Cole framed it), I agree with Klein so far. Supporting a war does not create an obligation to enlist, but supporting a war being fought with conscripts does create an obligation not to dodge conscription (defining dodging as acting in such a way as to intentionally increase one's chances of avoiding conscription, but not as responding truthfully to government inquiries, say about health problems, that may result in avoiding service).

However, I think the solution to Yglesias's conundrum (which may indeed be the one we face) is not, as Yglesias suggests, to sign up when it's clear more troops are needed, nor, as Klein suggests, to do something to support the war effort (in Jonah's case, to bloviate). The moral solution for the Goldbergs of this world is to advocate for the instatement of an equitable draft. If the war is worth fighting, and if there are not enough volunteers to fight in it, the natural conclusion is that we must have a draft, and Goldberg, along will all other able bodied citizens, should be subject to it.

The reason for this conclusion is that citizens do not have an outsized obligation to sacrifice for policies they support. I believe that the government should revise the tax code to provide for a fairer distribution of assets. But I don't voluntarily contribute to the government the higher amount I believe I should be taxed. That would help the poor about as much as Goldberg signing up would help stabilize Iraq. Indeed, the why-don't-liberals-give-away-their-own-money argument is frequently advanced by conservatives (for example, today, in Joe's comments on this post of Hugo Schwyzer) -- and it has no more validity than Cole's attack on Goldberg. (That is not to say, of course, that Schwyzer's decision to tithe 10% of his income is not praisworthy or that it would not be praisworthy for Goldberg to enlist, but merely that one can honorably advocate for society to take some collective action without oneself taking it unilaterally.)

Goldberg was wrong to advocate for war in Iraq. If our troops are too few, he is wrong not to advocate for the draft that is the natural consequence of his war and that will expose him to the risk of conscription. Goldberg has plenty to account for morally, but in my view not volunteering is not on the ledger.

In today's Calling All Democrats, Thomas Friedman claims that "Democrats need to start thinking seriously about Iraq - the way Joe Biden, Joe Lieberman and Hillary Clinton have". His basis for this view? "[S]everal e-mail notes from Democrats about the Iraq elections" and "comments from various Democratic lawmakers" that "suggest that the Iraqi election is just beanbag, and that all we are doing is making the war on terrorism worse as a result of Iraq".

Leaving aside the internal disconnect of claiming that Democrats are not thinking seriously about Iraq, while simultaneously saying that the frontrunner for the 2008 nomination is thinking seriously about it, what is Friedman talking about?

Perhaps he should read his own newspaper. Here's Nancy Pelosi -- you remember her, don't you, the House Democratic leader -- as quoted in last week's Times ($):

As House Democratic leader, I want to speak with you this evening about an issue of grave concern -- the national security of our country....

Because of the courage of our servicemen and women and the determination of the Iraqi people, Iraq's election on Sunday was a significant step toward Iraqis taking their future into their own hands. Now we must consider our future in Iraq.

We all know that the United States cannot stay in Iraq indefinitely and continue to be viewed as an occupying force. Neither should we slip out the back door, falsely declaring victory but leaving chaos.

Despite the best efforts of our troops and their Iraqi counterparts, Iraq still faces a violent and persistent insurgency, and the chairman of the National Intelligence Council said in January that Iraq is now a magnet for international terrorists.

We have never heard a clear plan from this administration for ending our presence in Iraq. And we did not hear one tonight. Democrats believe a credible plan to bring our troops home and stabilize Iraq must include three key elements.

First, responsibility for Iraqi security must be transferred to the Iraqis as soon as possible. . . . .Second, Iraq's economic development must be accelerated. . . . Third, regional diplomacy must be intensified. . . . If these three steps are taken, the next elections in Iraq, scheduled for December, can be held in a more secure atmosphere, with broader participation, and a much smaller American presence. (Emphasis added.)

Did I miss the part where she called the elections beanbag? Was that somehow not serious? OK, Clinton, Pelosi, sure, but maybe Friedman was talking about the Senate Leader? Again, the Times ($):

"Yesterday's elections were a milestone," Senator Reid said. "But on Wednesday night, the president needs to spell out a real and understandable plan for the unfinished work ahead to defeat the growing insurgency, rebuild Iraq, increase political participation by all parties, especially Iraq's moderates, and increase international involvement.

"But most of all, we need an exit strategy so that we know what victory is and how we can get there." (Emphasis added.)

Milestone, beanbag, same difference. And since when is asking the President to have a plan for victory unserious?

Look, democracy and elections are good things -- and I see no evidence Democrats think otherwise. However, it hardly unserious to point out that we must consider the costs and benefits of Iraq, and that, while we hope Iraq will succeed, we know that the cost has been enormous in terms of lives, money, international support, and distraction from the war on al-Qaeda. It is hardly unserious to suggest that it is way to early to know how things will turn out in Iraq. It is hardly unserious to note that -- again from the Times -- there remains the worrisome possibility that the newly elected Iraqi government will be close to Teheran. It is hardly unserious to note that to date the Bush policy toward Iran, another charter member of the Axis of Evil, has yielded little. It is hardly unserious to note that we had confirmed today that the Bush policy for the third member of the Axis of Evil has been a stunning failure.

Success, at least for now.

A Google search of Roe v. Wade now leads first to ... Roe v. Wade.

Excellent work, Radgeek.

UPDATE: Unfortunately, a search for abortion is back to abortionfactsliesDOTcom (as Radgeek said was likely), so let me add Radgeek's proposed abortion link.

Related Post: On Googlebombing for Choice

In introducing a post calling Joseph Farah on his indefensible misreading of history, Lab Kat hits on one of my pet peeves -- the equation of same-sex marriage with polygamy. (Farah writes that "[i]t was only a matter of time" until "legalized polygamy would be ushered in by the same gymnastics of illogic that brought us same-sex marriage". The same view has been expressed, for example, by Presidential hopeful Rick Santorum, the Canadian Conservative Party, and our friend Stanley Kurtz.)

Once again, if folks are going to be intentionally dense ("the explanations offered by even the most eloquent supporters of gay marriage as to why allowing it wouldn’t lead polygamy are, to say the least, less than convincing"), I will make an exception to my rule about trying to avoid stating the obvious. Equal Protection is about, you know, equal protection. If the government tries to deny me Social Security benefits because I'm Jewish -- or gay -- that's an Equal Protection violation. But if I am a member of the hypothetical Church of Doubling, which says I must do everything twice, including apply for Social Security benefits, the government can fairly say, sorry Buddy, one per customer. The idea that a gay person gets one social security check, but not two, is unsurprising -- so why the shock when we start talking about spouses, where the general rule is "one at a time"? In most cases, the government can give something, or not give something, but it can't abitrarily give something to one person and not to another. Or, more bluntly, 1+1¹1.

You may oppose the legalization of polygamy, or you may support it. But either way, your views on that subject should not give you a moment's pause in supporting the full legalization of same-sex marriage.

Scott Lemieux and Publius offer competing defenses supporting the outcome in Roe v. Wade. While I haven't thought through all of the possible arguments and counterarguments (I'm inclined to think the strongest bases are Due Process and Equal Protection, with a possible Ninth Amendment supplement), Lemieux in defending Roe v. Wade makes several points that I disagree with:

1. Lemieux argues that the correctness of Roe v. Wade is contingent on the lack of a "social consensus that a fetus was a human life":

To clarify my argument, I do not think that any theoretically conceivable abortion law fails to pass constitutional muster. While I do believe that American constitutionalism recognizes reproductive freedom as a fundamental right, such a right would not necessarily trump a consensus view that the fetus was a human life.... In my opinion, a clearly worded, fairly enforced abortion statute premised on the fetus being a human life and that didn't delegate abortion policy to doctors would probably be constitutional.

I strongly disagree with the premise that a changing "social consensus" can be a basis for revoking a fundamental constitutional right. (Consider, for example, the recent poll that more than one in three high school students said the First Amendment goes "too far" in the rights it guarantees.) We have a way that changing consensus can change the Constitution. It's called amending the Constitution.

2. Which brings up my second disagreement with Lemieux. As Lemieux rightly points out, sometimes we want a changing consensus to lead to a changing of rights:

Publius offers two alternatives preferable to process theory: stare decisis [respect for precedent--FV] and a defense of the right to privacy. With respect to the former, I hope he or another scholar will pursue the matter further and try to give a better explanation than Souter did in Casey. I can't do this in good faith, because basically I think on this issue Scalia is right. I think precedents should be overturned if they're incorrectly decided. There may be a principled reason why we can keep Roe on stare decisis grounds without being stuck with Bowers [holding that criminalizing gay sex is constitutional--FV], but frankly, I haven't heard one.

In my view, though I am hardly a scholar in this area, there is a difference between overturning Roe and overturning Bowers. The difference is that Roe expanded a fundamental right, while Bowers limited one. From a structural point of view, the Constitution is a rights-creating document, and we should be far more reluctant to overturn a recognized fundamental right than to overturn a limit on one. (To be clear, that is not to say the Court should never narrow individual rights, but that such a fundamental reversal should be treated with special caution.)

3. I am uncomfortable with Lemieux's reliance on the argument that an abortion prohibition could not be fairly enforced as a central basis for the unconstitutionality of such a ban. He is certainly right that the burden of such a ban would fall disproportionally on the disempowered and that that is a serious problem. he may be right that there is a plausible argument that it is a constitutional problem. However, I am very doubtful that such an argument would receive much judicial support. (It reminds me of similar -- and unsuccessful -- arguments that the disparity in sentencing between crack and powder cocaine is unconstitutionally discriminatory against African Americans.)

4. I am not sure what Lemieux means by "I believe the equal protection clause does protect gender equality". If he means that it does not require sex equality, any more than it requires equality on the basis of race, I would agree. On the other hand, if he means that it should properly be interpreted as not extending the benefits of Equal Protection to women (and men) who are treated unequally by the government because of their sex, then I would strongly disagree. UPDATE: I mis-read Lemieux's statement to have a "not" that it did not have. Wow, is that embarrassing! Blogs are self-correcting and all that....

Amanda Marcotte effectively deconstructs a number of Stanley Kurtz's arguments in support of his position that Western affluence is threatened by declining fertility rates and the increasing ratio of the retired to workers, which in turn he blames on feminism, women working, contraception, and abortion. (As I understand it, declining fertility actually generally follows development, and there is clearly a close correlation between low fertility and high development.)

Incredibly, Kurtz's piece gets worse:

Thus, if faced with an ultimate choice between feminist hopes of workplace equality with men and society’s simultaneous need for more children, it is not hard to imagine that some on the cultural left would opt for technological outsourcing — surrogacy in various forms — as a way out. To some extent, this phenomenon has already begun: Consider the small but growing numbers of older, usually career women who choose and pay younger women to carry babies for them....

Christine Rosen ... suggests that objections to the human exploitation inherent in surrogacy could actually propel a shift toward artificial wombs. Of course, that would only complete the commodification of childbirth itself — weakening if not eliminating the parent-child bond. And if artificial wombs one day become “safer” than human gestation, insurers might begin to insist on our not giving birth the old-fashioned way.

Such dark possibilities demand serious intellectual attention. Neither principled objections to tampering with human nature nor instinctive horror at the thought of it suffice to meet the challenge of the new eugenics. (Italics in original; bold added.)

In other words: We must do something about women working, or we will end up with the "horror" of artificial wombs -- and of course you can't have a "bond" with a child that wasn't in your womb.

Significantly, Kurtz dismisses the very market-based solutions that conservatives normally embrace. First, the natural market solution to a need for workers is increased immigration, a solution that, as Amanda points out, he simply dismisses out of hand as politically unacceptable -- nevermind that immigration rates in the United States remain far below those accommodated from 1860 through 1920, and nevermind that the low growth countries he focuses on (like Japan and Italy) are far lower than that.

Second, Kurtz dismisses with "instinctive horror" the idea of a technological solution to the problem. While I actually doubt that artificial wombs are such a real possibility, it is telling that he would be so troubled by a technological advance that (in his construct) could simultaneously make childbirth "safer" and promote "workplace equality". That certainly does sound like a threat to civilization as we know it! (OK, I'm being slightly unfair, since he also posits economic pressure to use artificial wombs, but only slightly given his "instinctive horror" and his fear that "humankind" faces a choice between "at least a partial restoration of traditional social values, a radical new eugenics, or endless and compounding population decline").

Is it just me, or does Kurtz's enthusiasm for pregnancy remind you of Genesis 3:16?

Unto the woman he said, I will greatly multiply thy sorrow and thy conception; in sorrow thou shalt bring forth children; and thy desire shall be to thy husband, and he shall rule over thee.

Via Feministing, a so-called "conscience" bill was filed yesterday (free registration req'd) in the Georgia Senate to permit pharmacists to refuse to fill prescriptions for emergency contraception. This bill, at least, is going nowhere.

Unlike some other "conscience" bills, which at least nominally cover all kinds of conscience objections -- Mississippi's, for example, creates a right not to participate in any "health care service that violates [the provider's] conscience" unless the objection is based on "race, color, national origin, ethnicity, sex, religion, creed or sexual orientation", Miss. Code Ann. § 41-107-5 -- the Georgia bill is targeted directly at emergency contraception:

Any pharmacist who states in writing an objection to any abortion or all abortions on moral or religious grounds shall not be required to fill a prescription for an emergency contraceptive drug which purpose is to induce and effect an abortion....

This approach would seem to create several enforceability problems:

First, it may violate the First Amendment and/or Equal Protection to the extent it privileges one kind of conscience objection over another.

Second, the statute is facially meaningless, because by its terms it applies only to "emergency contraceptive drug which purpose is to induce and effect an abortion". Since emergency contraception doesn't cause an abortion, the statute applies to exactly nothing. That is because the bill's sponsors (one of whom is the Senate President Pro Tem Eric Johnson) wanted to target RU486, which causes a medical abortion, is not emergency contraception, and is not dispensed by pharmacists). In fact, the Senate President admitted that he had no idea what the bill was actually about:

Johnson ... acknowledged he was not clear on precisely how either drug [Plan B or RU486] worked.

Call me old-fashioned, but sponsoring a bill usually implies having some idea what the hell the bill does.

These clowns, obviously, have other ideas.

Related Post: "Conscience is but a word that cowards use....", Mississippi Edition

The USA Today reports:

Some Dems nervous as Dean resurges

Nervous about what? We might lose the Presidency? The Senate? The House? The Supreme Court? The Governorships of the two biggest Democratic states (California and New York)? Or of solidly blue Massachusetts, Connecticut, Maryland, and Rhode Island? Give me a break.

While I agree with the Decembrist that it is difficult to impossible for those of us on the outside to judge who would make a good DNC chair, the hand-wringing from Kerry, Reid, McAuliffe over Dean's likely victory seems somewhere between silly and downright clueless. The biggest job for the DNC chair is raising cash, and no one can doubt that Dean is very good at that. Presidential ambitions need not be disqualifying -- the Republicans have in the past been chaired by both Bob Dole and G.H.W. Bush.

Their real (or at least their stated) complaint about Dean is that he will become one of the main public faces of the party and will (they believe) not hesistate to state his mind. (Kerry: "We're not looking for a spokesperson in the chairmanship"; McAuliffe: "Your job is to raise money and do the mechanics.... It is not your job ... to set policy.")

None of that makes any sense. Dean is not stupid. He is not going to treat the chair as authorization to convert his personal agenda into the party's agenda. But his agenda will part of the dialogue, and rightly so, given his grassroots support. More important, the party does need a spokesperson (or could use another spokesperson) because we are out of power everywhere. There is no Speaker Pelosi to personify the party. McAuliffe may have been a good choice when it looked like the Presidency and Senate were within reach and cash was the problem, but he was terrible on TV, and that was a liability when we were out of power.

The old ways are not working. New ones might.

Privatize this. 

Imagine, for a moment, a counterfactual world where a leading politican argues that a major reason poor people can't get out of poverty is their lack of assets and inability to save, and suggests using federal money to alleviate this problem by setting up private investment accounts for the poor. Can there be any doubt that the program would be derided as the worst kind of welfare entitlement, and the politician would be drowned in charges of class warfare and communist sympathies, if not outright treason, that would make Hillary Clinton blanch.

Now, back to the real world. James McCrery (R-La.), chairman of the House Ways and Means Social Security Subcommittee, proposes that we leave social security the way it is, but create private accounts out of general federal revenues. In other words, it would be the same as the plan hypothesized in the first paragraph, with the key difference that most of the money would go to the rich and middle class, not to the poor. With that critical change, far from being a political stink bomb, McCrery believes his plan would be more politically appealing than Bush's social security plan.

It says a lot about where we are politically that spending general revenues (or borrowings) to give assets to people making $10,000 a year is unquestionably a non-starter, while spending the same revenues (or borrowings) to give assets to people making $90,000 a year is smart politics. It says even more that, as McCrery candidly admits, his plan is economically the same as Bush's ("McCrery said Thursday that paying for personal accounts with general revenue from the overall federal budget would have the same end impact on the budget. 'It's all fungible,' he said.").

Normally, I'm not a big fan of Googlebombs. Yes, it was clever -- the first time -- but "miserable failure" lead inevitably to "waffles", so what's the point?

However, I really like Radgeek's idea to Googlebomb for choice. The fact that a Google search of Roe v. Wade turns up anything other than Roe v. Wade is bad enough. The fact that it turns up a hateful and dishonest anti-choice site (I'll follow Radgeek's lead and not link to roevwadeDOTorg) is disgusting. (For example, this "pro-life" site dismisses the "mere 39 women who died from illegal abortions in 1972" (emphasis added), even while admitting that the number was more like 3 times that in 1966, before some states started legalizing abortion.) To make matters worse, the site is at least partly commercial, running ads from Booksamillion and a resume mill. Finally, RoevwadeDOTorg's presence atop the list is likely the result of its own Googlebombing campaign.

As of this morning, "abortion" does not come up with a similar top site. Instead, the result is: "ABORTION ACCESS: All sides of the issue", from ReligiousTolerance.org, which does try very hard to take an evenhanded approach. Here's a sample:

Many visitors to our web site ask whether abortion is right or wrong. More precisely, they might ask under what conditions is the termination of pregnancy morally acceptable?

The question cannot be answered. Various points of view are argued by different individuals and groups. This essay studies their positions and their reasons for holding their beliefs.

The media often refer to two opposing abortion groups: pro-life and pro-choice. Actually, reality is much more complex than this simple either-or binary system....

Pro-lifers hold various beliefs:...

Pro-choicers hold a different range of beliefs about the morality of abortion:...

There is no single right or wrong. Many different sets of beliefs exist among individuals and groups.

That's not a terrible place for people who hit "I Feel Lucky" to end up. The second link is abortionfactslies.com, but the third is prochoice.org. In total, in the current search's first page, 4 are pro-choice (3, 5, 6, and 10), 3 are anti-abortion (2, 7, and 8 -- though 8, abortiontvDOTcom gets extra credit for being unusually disgusting (e.g., "Guess who paid 72 cents to kill me?") and dishonest (e.g., a ProChoice Website icon in the upper left) even by the standards of the anti-abortion movement), and 3 are trying to be neutral (1, 4, and 9). Since Googlebombing is equally available to the anti-abortion forces, my inclination is to hold fire at the moment to see if the present equilibrium holds.

So, let me close by saying that you can read Roe v. Wade by clicking on any of my links for Roe v. Wade. Consider joining in Bombing for Choice.

UPDATE: In comments below, Radgeek offers strong arguments for including the "abortion" Googlebomb.

Judge Richard Posner weighs in on the Summers controversy:

Summers’s suggestion that women on average (an essential qualification, obviously) are not as willing to invest as much time in a career as men should not have been controversial. Women who want to have children, as most do, must expect to devote more time to child care that men do. That is a brute fact and has nothing to do with scientific careers as such.

Uh, hel-lo?? Why is that a "brute fact" that "must" be true and "should not [be] controversial"?

Normally, I try to avoid stating the obvious on this blog, but since these things appear not to be obvious to everyone, I will make an exception. The vast majority of the work of child-rearing has nothing to do with a parent's sex. There is no reason I can think of why women "must devote more time" to taking children to school, preparing meals, supervising homework, helping with music practice, or flossing and brushing teeth (to list some of the things Mary and I have done today). To be sure, pregnancy can hamper productivity for a period of time (something that varies greatly among women), there is undoubtedly a period post-partum where it is extremely hard to physically impossible to work, and breastfeeding is a burden for women who choose to do it. All of that, frankly, is small beer in a typical heterosexual two-parent family, even assuming that the man does nothing to compensate by taking on other domestic responsibilities -- and of course whether he does or doesn't is a decision made by human beings in a social context, not an unalterable fact of nature.

In any case, the principal drain on women's work force participation from child-rearing does not come from the short-term affairs of pregnancy and child birth, but from extended periods out of the work force or in part-time positions, and from the week to week accumulation of unequal time on domestic obligations. As an empirical matter, those responsibilities are borne disproportionately by women, but there is absolutely no reason to assume, as Posner does, that that is inevitable or non-controversial.

Related Posts: Translating Summers, Part III, Translating Summers, Part II, Translating Summers, Assume A Can Opener, Part II, Assume A Can Opener.

According to Google (at least until it changes), Stone Court is the one and only source for Iraqi voting rules, or, more precisely, for "Iraqi Voting Rules". It's not technically a Googlewhack, since that requires a two-word search without quotes that yields a single result, but it is still a bit odd -- has no one on the Internet but yours truly really used the phrase "Iraqi Voting Rules"?

Reuters reports that Johnson & Johnson is facing "a raft of lawsuits" over Splenda based on its advertising tagline, "Splenda No Calorie Sweetener is made from sugar, so it tastes like sugar." The claim is that the advertisement is misleading "because it gives the impression that Splenda contains natural sugar".

That sounds like a weak claim. It's hard to believe that consumers are really being duped into believing that something with no calories that tastes like sugar in reality is sugar.

In other words, this is the kind of case that, if brought as a class action, might be used by the Bush "tort reform" crowd as a poster child for litigation abuse, like the McDonald's obesity case. But these lawsuits include not only class plainitffs, but also major corporate plaintiffs -- notably, Merisant Worldwide Inc., which makes Equal, and Sugar Association, the sugar industry's trade association. I suspect it will come as no surprise that Merisant's Chairman Arnold Donald maxed out for Bush in both presidential elections (FEC database) (Arnold was still with Monsanto for the 2000 election cycle). The sugar industry also leans Republican, though not exclusively, for example, giving over 75% of its 2004 contributions to Bush over Kerry.

So, when you hear all the heated rhetoric about "tort reform", keep in mind that Republicans don't really want to kill all the lawyers. They just want to make sure all the lawyers work for them.

Related Posts: "Conscience is but a word that cowards use....", With Friends Like These..., The Most Litigious Man In History*.