Month: April 2008

The Supreme Court ruling about Indiana's Voter ID law has been controversial and has attracted national media attention. Perhaps you can help me figure out what in the hell the SC was doing with this case in the first place.

Briefly, Indiana passed a law requiring voters to present a photo ID in order to cast a ballot (nb: an often-omitted fact about the law is that it allows voters to vote without ID so long as they go to the courthouse within 48 hours to sign an affidavit of their identity). The Democratic Party and various allied organizations filed a number of lawsuits challenging the constitutionality of the law. They were eventually condensed into a single case, Crawford v Marion County. It is a facial challenge, unsupported by any demonstrable injury. If you need to support an argument about the politicization of the judiciary and "legislating from the bench," look no further.
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Standing is a fairly basic concept. The courts – especially federal appellate courts, whose time and attention are scarce resources – do not deal in pre-emptive justice. They avoid cases in which no party can say "I challenge this law because it harmed me.
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" The Supreme Court (and political conservatives) loathe the idea of cases based on hypotheticals – i.e., this might hurt someone at some unspecified point. And yet both sides of this case base their arguments entirely on conjecture and speculation.

The Democratic argument, represented by plaintiff Crawford, is that this law disproportionately affects the poor, the elderly, the poorly-educated, and those without transportation. In other words, it affects Democrats. Republicans counter that getting to a government building once every 5 or 10 years to acquire or renew a government-issued ID is a reasonable, or certainly not excessive, burden. Neither Crawford nor any other plaintiff in the case actually fits the description the Democrats give. The ACLU's Ken Falk said:

Today’s decision minimizes the very real burden that Indiana’s voter ID law places on tens of thousands of eligible voters who lack a government-issued identification…

Really? And you couldn't point out a single one when the justices asked? You couldn't find one to use as a plaintiff? His claim makes sense intuitively, but it's also wrong. If these people number in the untold thousands they wouldn't be speaking in generalities in court.

Republicans argue that the law furthers a legitimate state interest in preventing voter fraud. Unfortunately they haven't been able to produce any examples of this either. The idea of people going to the polls pretending to be someone else is something at which they can only darkly hint, not prove.

So we have two sides making purely hypothetical arguments and asking the Court to settle the issue. On the one hand, the Democrats argue that we should not have to wait for an election to be damaged before addressing the law – the potential harm is so great that the Courts need to take extraordinary action. On the other hand, I think we can all see the potential danger in the courts expanding their jurisdiction into the realm of imagination. This is a case that is quite out of character for the SC (especially one with a conservative majority) to hear.
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It's not difficult to see why the plaintiffs got hammered in this case – they predicted, they conjectured, they extrapolated, they hypothesized, and they rationalized but they never proved anything. But as all of this was readily apparent before the SC intervened, it doesn't take a mountain of cynicism to suggest that their motive was to give the great Seal of Approval for one of the conservative movement's trendiest pieces of legislation.

I've managed to last this long without commenting on John "If the president decides that it's necessary, it's legal!" Yoo and I have no intention of breaking the streak today. I have no more inclination to dissect the raw idiocy of his words and actions than I have inclination to box a 90 year-old woman. I use that analogy purposefully, as the activities have their level of difficulty in common.

The issue at hand in the Ivory Tower is whether or not UC-Berkeley should dismiss Yoo. The WaPo had a pro/con editorial debate about the issue (h/t Non-Seq) and Ruth Marcus weighed in on the Don't Fire Him side. Marcus, like everyone else to the left of Curtis LeMay, concedes that Yoo's memo illustrates "shoddy legal reasoning" and is both "outrageous" and "repellent." She also notes that the administration rejected the memo. Her conclusion: Yoo may be a moron, and he may be wrong, but these are not reasons to fire someone. Free speech, 1st amendment, academic freedom, insert red herring here, etcetera.

Firing tenured faculty is hard. Real hard. Marcus notes:

Absent "very substantial evidence" of "clear professional misconduct" or criminal violations, Edley said, "no university worthy of distinction should even contemplate dismissing a faculty member."

She goes on to conclude (implicitly) that Yoo's actions constitute neither criminality nor misconduct. That's a fantastic leap across Assumption Gorge, yet Marcus seems to think this is simply obvious; her entire argument is premised on the assumption that, duh, of course he did nothing illegal.

Here's the rub. A professional who writes a blueprint for how to commit war crimes under the flimsiest, shoddiest, not-a-chance-to-stand-up-in-court reasoning could be considered a lawbreaker. Committing murder and plotting a murder are both crimes. Committing torture and plotting torture could also be argued to share that relationship.

I'm not a lawyer and I'm not going to try to answer that question. My point is only that it's far from obvious that he violated no laws, and even less so that he did not engage in misconduct as a lawyer.

And then she writes her way onto logic's shit list.

Pearlstein, a human rights lawyer, found Yoo's memo "blatantly, embarrassingly wrong under the law," but she conceded that legal conclusions lack the hard certainty of scientific truth. Yoo should no more be removed from a teaching job than a Supreme Court justice who writes a despicable opinion — upholding slavery, allowing separate but equal facilities, permitting the internment of Japanese Americans during World War II — should be impeached.

Bullshit stacked upon crates of bullshit. Slavery is blatantly unconstitutional, and a judge who authored an opinion today supporting its legality would in fact be impeached. It's no different than if a judge decided that murder is legal. But to Marcus, these issues are apparently subjective. Reasonable people can disagree about the legality of slavery or torture. No "hard certainty." Yoo's actions constitute little more than expressing an opinion. And we know everyone's entitled to those!

No. This is not an opinion issue. Torture. Is. Illegal. Period. The Constitution does not give the president the power to supercede the law with his wishes simply by saying "wartime powers" or "Article II" or "I think this is really, really necessary." The entire "academic freedom" angle is nothing but a red herring. This has nothing to do with Yoo's right to express an opinion. If he wants to say that Freemasons run the country or torture is cool or Proust is boring he has every right to do so. This is about hard facts. Not opinions. Not subjectivity. Not reasonable people agreeing to disagree.

No amount of phony hand-wringing changes the fact that this is an objective issue. Did he or did he not break the law? I am amazed that Marcus would invoke a slavery analogy since it is possibly the most cut-and-dried legal and moral issue.

It's illegal, it's unconstitutional, and it's morally wrong. Some people may choose to disagree, but here's the rub: they're wrong. In error. Incorrect. Of course we have the right to be wrong in this country. Unfortunately there are consequences to abusing the privilege, and Yoo doesn't get to avoid them by semantically turning the facts about torture – it is illegal and immoral – into an "opinion."

Yes, "some people" argue that the law permits torture by executive fiat. And some people argue that the sun revolves around the Earth.

So fucking what?

I used to play a pretty entertaining game with my students – "Real News or The Onion?" As the name implies, I provide a series of real, unedited headlines and the players try to guess whether they are real (from the "Top Stories" section a major news network website, almost always CNN.

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com or FoxNews.com) or The Onion. Feel like giving it a try?

Brazilian priest carried aloft by helium balloons
Boy's nose blows up 213 balloons an hour
Toddler forced to smoke pot
Grandfathers accidentally switched at hospital.
Gator grins atop back seat of car
Martha Stewart's dog dies

Go ahead, give it a whirl (sans google cheating). The winner gets….something awesome.

I made the mistake of grocery-shopping on Saturday, a.k.a. Race for the Cure Day. Rest assured that the shelves were stocked (and the endcaps capped) with pink versions of every product I've ever considered buying in my lifetime and several I haven't. You know the drill. Buy shit and the producers of said shit will donate 10 cents to the Susan G. Komen Blah Blah Blah. That's why you see racks of pink soup cans and pink santokus and pink hammers and pink flash drives and pink hair irons and a pink Hummer and Ken Griffey Jr. swinging a damn pink bat.

The phenomenon of pinkwashing – and the reality that this amounts to little more than free marketing under the guise of charity – helps manufacturers and retailers far more than it helps cancer research. Why else would they use this Marketing via Causes strategy instead of tax-deductible corporate philanthropy? But since many others have already made that point (it's so egregious that even Time Frickin' Magazine slammed the practice) I won't belabor it here.

What bothers me is how this fits into a larger trend in our society, the end result of 25 years of unrestrained free market worship. Every desire, every idea for social change, every impulse toward political participation, and every psychological need can be filled exactly the same way: by buying shit. Your desire to be an individual, to be a nonconformist, to change the world, to do good deeds….all can be accomplished with a trip to the mall. Everything, including the idea of doing charitable works, is a commodity. Thomas Frank has written about this seduction at great length (The Conquest of Cool and Commodify Your Dissent) and I recommend his commentary highly.

Worried about turning into your father or a bland mid-life Organization Man? Buy Nikes, a Harley Davidson, and some $225 lawn seats to see the latest shamelessly mercenary Reunion Tour of 60s/70s icons. Worried about neo-colonialism and income inequality? Buy fair trade coffee from Whole Foods (a behemoth chain store operation, of course). Worried about the environment? Buy a hybrid and some Rainforest-Free lumber for your enormously inefficient home. There's a reason Dennis fucking Hopper is on TV hawking IRAs and the Rolling Stones are rocking out for Ameriquest Mortgage: because refinancing and setting up a bitchin' Roth IRA are what cool motherfuckers do! Now you can prove you're the same cool motherfucker you were in 1969 by following the 60s icons' lead to your financial planner's office.

What's wrong with pinkwashing? If you're going to buy soup anyway, isn't it better for Campbell's to send a dime to charity? Yes and no. Yes, it's obviously good that charities receive donations. No, it's not healthy to encourage people to believe that they have Done Their Part and Made a Difference by shopping. It's unhealthy to tell people they are expressing their individuality by buying an iMac and a Jetta and choosing the Pottery Barn collection that really communicates who they are as a person. It's unhealthy to reassure your long-dead inner radical that you are not part of The Machine by feeding it.

It's sad – almost as sad as the Your Job is Nonconformist phenomenon (You're a rebel because you work at IBM or Google or for some Ad Agency or in Marketing or in some office that doesn't even make you wear a tie!) – and it's sucking the ability to think, speak, and act about social problems right out of our society. Perhaps that's why so many Americans feel like the current political situation is so far out of hand; when the Iraq War cheerleading began, they couldn't figure out which products to buy to stop it.