Legal Fiction

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Interesting – South Dakota’s draconian abortion ban may get rejected this fall (via Memeorandum). Right now, it’s 49-37 in favor of overturning the ban, with 14 undecided. This is interesting for a number of reasons, but particularly because it illustrates the dynamics of the median voter and political parties — and how their intersection affects public policy.

This will be obvious to many of you, but it’s worth asking — why did a draconian ban opposed by the public get passed overwhelmingly by the South Dakota legislature? Answer – the median voter principle. Or more precisely, the median voter principle + one-party state = draconian ban.

Simply put, the median Republican voter is much further to the right on this issue than the median voter in the general public. And the South Dakota legislature is heavily Republican. According to Wikipedia, the Senate is 25-10 freedom fighters to evil-doers, while the House is 51-19. Assuming a lot of these R’s are in safe R districts, then the R primary election decides who will hold office. Thus, when these legislators cast their votes, the only voter they worry about is the median Republican voter in the GOP primary.

The dynamics of popular initiatives, however, are different. Because referenda bypass the legislature, their success depends on winning the median voter in the general public, not within a political party. That explains how Arnold got elected – and it also explains why Rudy Giuliani will never win a GOP primary.

The abortion ban illustrates perfectly how all this plays out. In South Dakota, as in other states, the internal GOP fight is not so much over the legality of abortion, but whether to allow exceptions for rape and incest (which is telling in and of itself, but that’s a different post). And the legislature’s vote demonstrates where the median South Dakota Republican voter comes down on that question. But even though this position has a majority of the majority, it doesn’t have a majority.

Again, this isn’t exactly ground-breaking, but I’ve always found it interesting. On an aside, this same principle also explains why gerrymandering leads to increased polarization – and why the Senate usually reflects public opinion more accurately (discounting the malapportionment). Most House legislators (on both sides) don’t have to worry about the general election – only the primary. The Senate can’t be gerrymandered, so it’s more “centrist” even though there are some “safe” states that cause a similar result.

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I hate to say it, but I pretty much agree with this Peter Beinart column about the Democrats’ recent wave of pandering on Maliki, amnesty, Dubai, etc. And though the obvious objection is that this pandering is politically necessary, I agree with Beinart here too:

But even politically, that's probably wrong. The Democratic Party's single biggest foreign policy liability is not that Americans think Democrats are soft. It is that Americans think Democrats stand for nothing, that they have no principles beyond political expedience. And given the party's behavior over the past several months, it is not hard to understand why.

Make that years, and I agree 100%. Anyway, it should hopefully be clear that I wasn’t exactly a big supporter of el Libertador’s invasion of Iraq. And though I don’t expect anything but a failed state to come of it, I would of course prefer a different outcome. And to demand that Maliki – who is for now democratically accountable and in charge of the shakiest of coalitions – essentially cheerlead for Israel was grossly irresponsible. Particularly given that the country in question is not exactly taking a stand for human dignity and progressive values at the moment. Anyway, regardless of what they thought of him, Democrats could have at least shown the man some g.d. courtesy by attending his speech and not publicly humiliating him. Welcome Mr. Putin, could you please lick this NATO boot before you address Congress?

One thing that Democrats just can’t seem to learn is that they will never out-Republican Republicans. And the reason it can’t be done is that, when you’re trying to out-nationalist the nationalists, even tactical victory leads to strategic defeat.

Here’s what I mean. As I explained here in more detail, one of the political problems Democrats face is that they’re fighting within terms of a debate that has been defined by the GOP. The example I used before was the “big government” versus “small government” debate. As long as Democrats are fighting within this linguistic/conceptual arena, they lose – even if they win. Yes, they may win a round here and there by saying they’re the real party of small government. But in the long run, taking this position only validates the terms of the debate and discredits the larger idea that government can be a force for public good. To win, the terms of debate must changed from big versus small to something else.

Same deal with “getting to the right” of the GOP on national security. If the terms of debate are “hawk” vs. “dove,” or “badass” versus “wussy,” etc., then the GOP wins. That’s because what’s implicit in this sort of linear spectrum (from hairy-chested hawk to wussified dove) is that bombing things and being nationalist is the “good” position. The point of foreign policy, though, isn’t to see who’s most willing to be a anti-Muslim badass or a mindless nativist.

When the Dems try to do this crap, they usually look ridiculous (to me anyway). But even assuming the stunts described in Beinart’s column pay off in the political short-term, they undermine progressive values in the long run because they validate “getting to the right” as a substantively good position. To be clear, “getting to the right” is usually an exercise of nativism or bloodthirsty nationalism that I want nothing to do with.

To take a broader step back, the urge to “get to the right” on something is, fundamentally, a failure of vision and imagination. Democrats are seeing the “battlefield” as the GOP has designed it and are engaging with them on their terms. To stretch the military analogies to the breaking point, you don’t go fight on the enemy’s most favorable terrain. In general, Dems need to just get out of the hairy-chested business altogether and change the terms of the debate. Talk about different things. Attack examples of failures and idiocy and attack them hard. But spare us the phony attempts to demonstrate that you hate Muslims as much as Glenn Reynolds or John Podhoretz or Michelle Malkin do. You don’t wear that shirt well.

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Kathryn Jean Lopez:

Speaking of people who are fighting this war — God bless Ledeen.

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Did anyone else get the sense that Charles Krauthammer couldn’t really figure out what he wanted to say in his latest column? There seemed to be a fairly deep internal contradiction in his argument — a sort of schizophrenia. He couldn’t decide whether to defend Israel’s assault as narrowly targeted, or to justify all-out attacks on civilian targets. The former is, shall we say, a wee inconsistent with the latter.

The “Dr. Jekyll” side of Krauthammer’s column is that Israel’s actions should not be seen as disproportionate because they are “precision-guided", etc. The problem though is that he merely assumes the existence of facts that fit his narrative, which is rather surprising coming from him (Fukuyama: “[Krauthammer’s] 2004 speech is strangely disconnected from reality. . . . There is not the slightest nod towards the new empirical facts that have emerged in the last year or so[.]):

What other country sustains 1,500 indiscriminate rocket attacks into its cities -- every one designed to kill, maim and terrorize civilians -- and is then vilified by the world when it tries to destroy the enemy's infrastructure and strongholds with precision-guided munitions that sometimes have the unintended but unavoidable consequence of collateral civilian death and suffering?
. . .
The perversity of today's international outcry lies in the fact that there is indeed a disproportion in this war, a radical moral asymmetry between Hezbollah and Israel: Hezbollah is deliberately trying to create civilian casualties on both sides while Israel is deliberately trying to minimize civilian casualties, also on both sides.

People may want to defend Israel’s actions, but it simply no longer possible to characterize these actions as a limited attack on “the enemy’s infrastructure” or as “precision-guided.” It is a massive and merciless assault on civilian targets that has displaced three-quarters of a million people — and the shame of it extends to America too. [And as far as moral asymmetry goes, many of the attacks are morally indistinguishable from Hezbollah’s rockets, except that they are orders of magnitude more precise and destructive.]

But anyway, the Dr. Jekyll argument isn’t really where Krauthammer’s heart seems to be. What he really wants to argue — and this is the Mr. Hyde part — is that these massive assaults on civilian targets are justified given the crap that Israel puts up with. That’s what he’s getting at with his references to the Allies’ bombing of Japan and Germany in WW2:

When the United States was attacked at Pearl Harbor, it did not respond with a parallel "proportionate" attack on a Japanese naval base. It launched a four-year campaign that killed millions of Japanese, reduced Tokyo, Hiroshima and Nagasaki to cinders, and turned the Japanese home islands into rubble and ruin.

Krauthammer is having a Colonel Jessup moment here — he really wants to say that the Code Red is justified, but can’t quite bring himself to do it. In other words, what he really wants to say is “they can bomb whoever the hell they please and you snot-nosed liberals and foreigners butt out.”

And so, we have another example of how, underneath the cloak of neoconservative moral idealism, there lies a dark and fairly hideous vision with little regard for the human dignity supposedly at their heart of their ideology.

Robert Louis Stevenson, The Strange Case of Dr. Jekyll and Mr. Hyde:

“There is something wrong with [Mr. Hyde’s] appearance; something displeasing, something downright detestable.”

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Sorry for the non-posting this week. It's been one of them weeks at work.

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Back in town, but I'm still catching up. In the meantime, please read this "analysis" article by Robin Wright (who should know better). She really should have journalistic privileges suspended for a week for these kinds of bold "analyses," which is stenography pure and simple (and stenography of pretty illusions at that). And this stuff is EXACTLY what I was trying to get at with my whole surgeon/knight post a few days ago.

Anyway, more later.

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For work. Be back tomorrow.

I do need some help though. I've been toying around with moving the site from blogspot, or at least getting a somewhat more professional looking design. I won't be doing ads, but I'm ready for something other than the primitive blogger template. If anyone has any good recommendations for (relatively cheap) website design, please email me. We at the Legal Fiction media empire thank you.

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Via Billmon, I read this passage from Noah Feldman writing in the NYT magazine:

In choosing these Islamists, Palestinians and Lebanese Shiites were in effect endorsing not only their political aims but also their commitment to violence, which was never hidden during their campaigns. . . . That is why Israel has targeted not only Hezbollah leaders and strongholds but has also bombed infrastructure that sustains daily life for everybody in Lebanon. From Israel's standpoint, this is no longer a fight with nonstate terrorists who are holding their fellow citizens hostage to their tactics. It is, rather, war between Israel and countries that are pursuing (or tolerating) violent policies endorsed (or at least accepted) by their electorates.

He doesn’t come right out and say it, but taken to its logical end, this view essentially justifies attacks (or if you're old-fashioned, war crimes) against civilians for the military actions of its elected government. I think that sentiment is fairly widely shared, if unspoken, by people who are more tolerant of either Israel or Hamas/Hezbollah’s rockets. But even ignoring the crass immorality of such views, they simply don’t work as a matter of logic (or else have absurd implications).

First, there’s a fairly large gap between collective culpability and collective punishment. In other words, the Feldman “collective responsibility” view ignores the fact that the percentage of people supporting Party X is different from (and smaller than) the percentage of people affected by bombing civilian targets. For instance, under Feldman’s view, if a plurality of the people voted for Likud (e.g., 40%), it would theoretically justify bombing raids that affect 100% of the population. And of course, there’s no way to tailor bombs that kill only those who supported the “bad” party. Quite simply, “collective responsibility” punishes those who have literally zero to do with the military policy at issue and may have even voted against it.

Even more fundamentally, how exactly can Feldman be so sure that the Palestinians' (or by comparison, the Israelis or Americans') primary motivation in voting for a certain party was to endorse violence? That’s a critical assumption but one that can't really be verified. People vote for candidates or parties for any number of idiosyncratic reasons. Some people who hate the Iraq War voted for Bush because of taxes or judges. Some Palestinians voted for Hamas because of its social charity and anti-corruption message. I voted for John Kerry because his vice-presidential candidate wasn’t Dick Cheney. Hell, some people probably vote for a candidate because they like her hair. Who knows? Not Noah Feldman, I can assure you of that.

But even assuming that Feldman is correct in saying that “plurality vote" = "endorsement of violence by 100% of society,” the implications of this view are simply absurd. For one, and rather ironically, Feldman essentially justifies Palestinian attacks on civilians – as well as al Qaeda’s strikes against America (as Billmon correctly notes). Indeed, the logic is precisely the same. Because the “electorates” put officials in power who then made “bad” foreign policy decisions, it is perfectly justifiable to attack those electorates, or so the theory goes.

And that’s really the logical pickle that supporters of Israel’s strikes against Beirut find themselves in. By whatever justification you use to defend the attacks against civilian populations, that same justification applies to attacks on Israel’s own civilians (or to al Qaeda’s attacks on American civilians). And when that’s the logical implication of your position, you need a new position.

In addition, the Feldman view actually creates disincentives for civilians to support democracy as a form of government. Because civilians are collectively responsible for the actions of the leaders they elect, attacks against civilian targets in dictatorships are (logically speaking) less justified than attacks on citizens in democracies. Maybe we could put a new slogan on the little stickers at the ballot boxes in the Middle East – I Voted Earned Collective Responsibility Today.

The safer bet is to get out of the business of justifying attacks on civilians altogether. Period. And though attacks in civilian areas are sometimes required, they should be done sparingly and only for very compelling reasons. And both Hezbollah and Israel should be held accountable for their actions in this respect.

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It was one of those creepy operating rooms you see in movies — windowless, bright white tile walls, high ceilings, florescent lights — with a faint chemical smell in the air. In the middle of the room sat an operating table with thick buckled straps dangling off the side like human arms from a bed. Up near the ceiling, glass panels surrounded the room. Behind those panels, students wearing white labcoats looked down upon the table below with clipboards and pens in hand.

The brave knight suited up in his armor for the upcoming battle. Today he would face the evil wizard, a villain of unspeakable power and depravity. Shrouds of darkness had long covered Freedomland, his land, because the evil wizard had cast a spell upon its people, his people. The only way to save them was to face the wizard and kill him once and for all.

In the corner of the room, a white door cracked and creaked open. Three people emerged — two men with a girl of maybe 12 standing between them. Her hands were cuffed in front of her and the two muscular men wearing the white shirts — security guards from Ward C — escorted her to the table. She was screaming and drooling and fighting — in vain — to free herself from their grasp.

The knight gazed upon the sword he would use as his thoughts drifted to his parents. The wizard had attacked his family when he was just a boy. His father fought bravely, giving the boy a chance to escape, but the wizard overpowered him and froze him in stone (for the evil wizard could not kill a man of such honor). With his arch-nemesis frozen in stone, the wizard’s armies — wholly lacking honor — were free to attack the countryside. And attack they did, abducting women and children — maiming them and raping them and killing them.

The students looked on as the men strapped and shackled the little girl onto the table. The men tied on the straps so tight that the girl’s veins quickly popped up from her skin, zigzagging and cracking across her bluing arm. Another door opened and out walked the doctor — the genius — wearing scrubs, a surgical mask, and gloves. As he approached the table, he looked up and met the eyes of the students looking down from above. They were in awe. This man — known as “the wizard” in professional circles — was a surgical legend.

The knight whipped his horse mercilessly — he knew time was of the essence. The horse, who somehow understood the stakes of the battle ahead, gave everything it had. Kicking up a cloud of grass and dust behind him, the knight knew he was getting close. The day had come — soon he would be face to face with the evil wizard. Soon he would strike a blow for freedom.

The doctor turned and gazed upon the girl’s wide terrified eyes. Her arms and legs were strapped down on the table in the shape of a cross. For the moment, she had stopped screaming as she — like everyone else — watched the doctor approach. The screaming would start again though when he jerked back the cloth on the tray beside the operating table to reveal several sharp metallic instruments beneath — scalpels, knives, saws, and scissors, all glistening and sparkling under the florescent lights. The doctor picked up a scalpel and walked toward the girl, who by now was struggling against the shackles and shrieking with every ounce of energy she had.

With sword in hand, the knight charged into the wizard’s chambers. In the shadows by the stone wall, he saw his foe with his magical staff in hand — the staff that had caused such harm to his people. “Your day has finally come Wizard! Your evil reign is over! No longer shall your staff be used to terrorize Freedomland. I shall free the people from your oppressive spells and usher in a new era of peace and happiness!” The wizard charged the knight.

The doctor ordered the men to hold the girl’s head still. Four sweat-laced meaty hands froze her head in place like a clamp as the doctor traced an imaginary line with the tip of the cold metallic blade across the base of the girl’s left ear. Whispering to himself, the doctor said, “Your day has finally come Wizard . . .” And he sliced off her left ear.

The wizard, predictably, brought all his evil spells to bear against the knight. For years, however, the knight had been training, studying so he could predict the wizard’s moves. The knight, you see, was playing a longer-term game than the wizard. And so he knew that the freedom of his people depended on defeating the wizard. And he had learned that a wizard cannot be killed immediately. A wizard must be whittled away until his powers are sufficiently weak.

“Take that Wizard,” the doctor hissed as he sliced off the tip of the young girl’s nose. The security guards looked at each other nervously. One silently moved his lips, “Wizard?!?” The other just shook his head as if to say ignore it man and just squeezed the girl’s head tighter. The girl was really squirming now but her head was frozen solid as if in stone. The students took notes.

“Ha, Ha, Evil Wizard. You are wounded! Your powers are weakening!” But the Wizard jumped back to his feet and pointed his staff at the knight. In an instant, the knight’s sword flew from away from him and across the floor. He had been cocky, he must refocus. He must destroy the Wizard.

“The key to killing a wizard is the legs,” the doctor muttered as put down the scalpel and picked up the saw. The increasingly troubled guard tried to get the attention of his colleague, but the other guard was intentionally ignoring him and looking down at the blood dripping — pouring really — onto the toes of his shoes. Never interfere in the medical procedures, he thought, that’s what they said. Never in any circumstances . . . The students took notes.

In the course of the fight, the knight quickly realized that the wizard had made a strategic blunder, as those who deny freedom often do. The wizard had overreached and exposed himself. In a flash, the knight lunged in and, with a clean swift strike, cut the leg from underneath the wizard who suddenly collapsed on the ground dropping his staff in the process.

Don’t look. Lord — help me not to look, the guard of Ward C chanted to himself as he fixed his gaze even tighter on the toes of his now blood-soaked shoes. He had heard such awful sounds after the doctor picked up the saw — and the girl’s screams had suddenly changed. They were no longer screams of fear, but screams of pain— but he would not look. Even as the blood poured on his shoe. Even as the leg plopped down on the floor beside his foot. The students took notes.

The wizard lay at the knight’s feet, bloodied and dismembered. The knight crushed the wizard’s staff into a million splintered pieces. It is done, thought the knight. My people are free — they need no longer worry about the evil wizard’s spell. I will be a hero — a savior to my people.

“Freedom, at last,” the doctor muttered as he wiped off the saw.

The wizard looked up, gasping and coughing, though he knew what was coming. Like the knight, he knew that the only way to kill a weakened wizard for good was to cut off its head.

The students took notes.

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WP, "In Mideast Strife, Bush Sees a Step To Peace"

"He thinks he is playing in a longer-term game than the tacticians," said the former official, who spoke anonymously so he could discuss his views candidly. "The tacticians would say: 'Get an immediate cease-fire. Deal first with the humanitarian factors.' The president would say: 'You have an opportunity to really grind down Hezbollah. Let's take it, even if there are other serious consequences that will have to be managed.'"

Wikipedia, Deep Blue:

The system [Deep Blue] derives its playing strength mainly out of brute force computing power. It is a massively parallel, 30-node, RS/6000, SP-based computer system enhanced with 480 special purpose VLSI chess chips. . . . It was capable of evaluating 200,000,000 positions per second, twice as fast as the 1996 version. In June 1997, Deep Blue was the 259th most powerful supercomputer, capable of calculating 11.38 gigaflops[.]

The Deep Blue chess computer which defeated Kasparov in 1997 could search to a depth of 12 ply. Good human chess players look roughly 10 ply ahead. . . . After the lost match, Kasparov said that he sometimes saw deep intelligence and creativity in the machine's moves, which he could not understand.

Bush to Blair, G-8 Summit (chewing):

See, the irony is what they need to do is get Syria to get Hezbollah to stop doin' this shit, and it's over.

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I’m hoping the stem cell veto will take its rightful place in history one day beside Galileo’s house arrest for the heresy of saying the earth goes round the sun. But given that evolution isn’t exactly topping the pop charts these days, who knows. Anyway, as frustrating as the veto was, I think it will ultimately be a political benefit.

Before I get to that, let me emphasize up front how strongly I disagree with Bush’s decision. Unlike abortion and other social conservative issues (school prayer, Pledge), it’s harder for me to find intellectual respect for the anti-stem cell position. On those other issues, I may disagree but I can at least see where they’re coming from. But not here. To essentially sacrifice living people for the sake of a microscopic dot is not a position I respect. This microscopic dot has no nervous system, no brain, no consciousness, no biological foundation of consciousness. Nothing. It’s a dot. To be sure, these dots eventually become the “girls and boys” that Bush described. But in the beginning, it’s a dot.

And paired against those dots are real living breathing brain-and-spinal-cord-possessing humans with debilitating injuries and diseases. I suspect many of you have experienced the slow-motion torture of losing a loved one to cancer or Alzheimers.

Personally, I would love to see Senator Brownback explain to a paraplegic who moves around in a chair by twitching his lips why protecting that dot is more important than funding research that could let him walk again. I wish he could spend one day as a paraplegic to see the concrete reality of the policy he’s advocating. But concrete reality isn’t exactly the first slide on the Powerpoint at the GOP caucus meetings these days if you know what I mean.

There is, however, some silver lining here. For one, the funding ban will most likely end in two years. The Congress and the public overwhelmingly support funding the research. The only thing standing in the way at this point is a sympathetic President. And with the important exception of George Felix Allen, Jr., the most viable GOP presidential candidates (McCain, Rudy) support funding. And all Democrats support it. So hopefully, the shackles will be off our scientists soon no matter what party wins in 08.

And though I wish Bush had signed it, from a purely political perspective, the veto is a net positive. (And so I have to disagree with Ezra). Most obviously, the veto adds visibility to a highly unpopular position that is one of the best wedges the Dems have. In fact, it’s one of those rare but valuable Red State wedges. As the roll call vote of the Mississippi Senators shows, it’s a safe issue for Red State Democrats -- more than safe in fact. It’s something they can traction on. McCaskill: Oh, you betcha. If Bush had signed the bill, the issue would have gone away. But because funding remains blocked, it’s going to continue being a high-profile political issue over the next two years.

The other part is that the stem cell veto fits in quite nicely with the broader critique that the GOP has become anti-science. To be more precise, the GOP is beholden to a wing of the party that is increasingly anti-science. Thus, the stem cell veto needs to be seen in the same context of Terri Schiavo and the mind-boggling opposition to the teaching of evolution. I would throw in global warming skepticism as part of this narrative too, but that particular anti-science comes from a different wing of the party. That wing doesn’t challenge the assumptions of the Enlightenment, they just like money.

It's an exaggeration to say that the stem cell-Schiavo-evolution wing wholly rejects modernism (they are Americans after all). But they are certainly more comfortable adopting public policy that lacks a factual or empirical foundation. I don’t mean to attack religious faith, I'm just saying there are limits to its ability to shape public policy for a constitutionally secular nation. Faith works great for matters of personal spirituality and worship. But not for policy. And when faith-based beliefs (i.e., beliefs without evidence) start affirmatively harming others, when they become harmful public policy, they must be resisted.

And as I’ve explained, the way to resist is to inflict political pain on those who supported the ban. That’s why the Missouri race is so interesting. If Talent loses, there will be a lot of Red State Senators who are going to think twice about opposing this research. And that’s how things eventually get changed. Gotta win. Gotta win. Gotta win. The rest is bullshit.

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I'm on the road for work today so I can't weigh in on the stem cell veto. But I will tomorrow.

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Bill Kristol (via Eric Martin):

[T]he Iranian people dislike their regime. I think they would be – the right use of targeted military force — but especially if political pressure before we use military force – could cause them to reconsider whether they really want to have this regime in power.

Bill Kristol, 2003 (via Eric):

"There's been a certain amount of pop sociology in America," [Kristol] told National Public Radio listeners in the war's opening weeks, "that the Shia can't get along with the Sunni and the Shia in Iraq want to establish some kind of Islamic fundamentalist regime. There's been almost no evidence of that at all," he continued. "Iraq's always been very secular."

Archduke Ferdinand:

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Let me give a big tip of my hat to the Georgia Republican Party tonight for making someone other than Ralph Reed the Republican nominee for Lt. Governor. They’re not exactly ideological soul mates of mine, but they did the right thing tonight and I commend them for it. And this isn’t just anti-Reed schadenfreude — it’s actually a big deal, and on many different levels.

On the most basic level, it matters because Reed is not a good man and doesn’t deserve to be in office. I’ve said my peace on this many times, but Reed’s gambling tactics are about as close as one can get to the Platonic ideal of hypocrisy. And he reached this lofty pinnacle while lying straight-faced to his most ardent supporters — for money. What’s especially slimy about it is that the elaborate laundering network he set up illustrates what we in the legal world call “mens rea” or “guilty mind.” It was systematic, premeditated hypocrisy wrapped in lies, which is particularly unacceptable coming from one who came to fame preaching about morality and values.

Of course, I doubt we’ve seen the end of him. My guess is that we’ll see a tearful mea culpa, followed by another run. And maybe that will be good enough to salvage his career. But maybe not. Frankly, he should have done this a lot earlier. Now, it will appear to be political calculation. But he's an extraordinary speaker (I've seen him live), and extremely smart, so who knows. But this one is gonna leave a mark - one that looks like this - $$.

On a more abstract level, this election restores some of my almost-lost faith in the democratic system. I do get annoyed at people who claim the public is “dumb.” That’s just snotty and arrogant. But the public is certainly uninformed about a great deal and America is currently reeling from the consequences of American’s unwillingness or inability to inform itself about the most basic of facts.

Indeed, democracy requires voters to have a basic grasp of basic facts. Otherwise, it doesn't work. And after the 2004 election, I honestly wondered whether the American public had simply become so impervious to facts that the system was incapable of creating rational policy (i.e., based on real facts). For instance, it’s ok to have supported Bush in 2004 because you support low taxes or the war. But it’s not ok to have supported him because you still thought Iraq had WMDs or that his tax cuts went mostly to the middle class. That's irrational. And there is a big difference between a subjective value judgment based on objective facts and one that assumes and relies upon facts that simply don’t exist. The latter gives rise to policies that look strikingly similar to our fiscal and foreign policies.

Anyway, my fear with the Reed candidacy was that GOP primary voters simply wouldn’t take the time to understand what Reed did. Reed is, after all, something of a rock star among southern evangelicals. Cagle was a nobody. For Cagle to have won means that social conservatives informed themselves and altered their political preferences based on what is many ways a complicated story. And that means there is hope for the reality-based community (chin up Billmon). Facts still matter and can still change elections.

To paraphrase Chris Rock, am I a low-expectation-havin’ [EXPLETIVE]? Yes. But it’s been a rough six years.

Finally, perhaps the most important consequence of Reed’s fall is that it will, in its own perverse way, clean up the system (or at least make it somewhat less dirty). Politicians respond first and foremost to pain. Thus, the only sure-fired way to change bad behavior is to inflict pain either at the ballot box or in the fundraising department. You can pass a reform bill every day for 365 straight days and the combined effect of those laws on the political system will be far less than one political defeat.

Political defeats put candidates on notice and give them rational incentives to stop otherwise rational behavior. This is the dark Madisonian vision in all its glory and genius. We must guard against corruption by pitting it against political self-interest. You can’t rely on the innate goodness of man — you can’t rely on noble chivalrous Broderesque bipartisanship. You can rely on beating their ass on election day — that’s how you change things. There is no other way. You have to make good behavior rational by voting out bad behavior.

And so, in the future, when politicians (including aspiring ones) contemplate doing what Reed did, they will hear Reed’s concession speech ringing in their ears and think twice. And that’s how it’s supposed to work. Accordingly, if the GOP goes down this fall, it will do more to clean up the system than anything Congress could possibly enact.

And so once again, let me commend Georgia Republicans. Well done.

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With almost half the votes in, it looks like Ralph Reed is about to go down. Many thoughts on this later tonight.

UPDATE: And it's official. Reed concedes. Hats off to the Georgia GOP.

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My faith in America is going to be tested tomorrow when Georgia Republicans decide whether to elect Ralph Reed as their nominee for Lt. Governor. If Georgia Republicans (a religious lot) vote for someone who treated evangelicals like slobbering mindless idiots, then there is truly no hope for them. It means they that they are too uninformed to participate in a democracy, or too impervious to reality.

However, if Reed loses, it shows that even the Georgia Republican Party is capable of responding to empirical facts. And if that happens, then it shows that they could respond to other facts. And if that happens, well, I'll let Rocky take it away from here:

ROCKY [addressing Soviet Union]: I guess what I'm trying to say is, if I can change, and you can change, everybody can change.

[UPDATE: Feddie, dear Feddie, say it ain't so??? After the gambling bill tactics?]

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I think a lot of the defenses of Israel's action aren't really addressing the real question. The issue isn't whether Israel has a right to respond, or even whether it should respond, the question is whether it should be responding in the manner that it is. Thus, it's not enough to point out the rocket attacks or the hostage-taking. That justifies a response, but not necessarily this particular type of response.

And that's what I'm looking for. To those who would convince me that Israel's actions are just fine, you need to explain why the actions against it justified the massive, civilian-and-infrastructure attack that we're seeing. Because, frankly, I'm not seeing right now.

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I'm tied up with work tonight. But here's a topic for you:

RESOLVED: Truman sucks.

Discuss.

[UPDATE: Just to be clear, this is a joke. I don't actually think Truman sucks. Just most of the people who invoke him.]

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William Kristol:

For while Syria and Iran are enemies of Israel, they are also enemies of the United States. We have done a poor job of standing up to them and weakening them. They are now testing us more boldly than one would have thought possible a few years ago. Weakness is provocative. We have been too weak, and have allowed ourselves to be perceived as weak.

The right response is renewed strength--in supporting the governments of Iraq and Afghanistan, in standing with Israel, and in pursuing regime change in Syria and Iran. For that matter, we might consider countering this act of Iranian aggression with a military strike against Iranian nuclear facilities. Why wait?

Dr. Strangelove:

Ripper:

You know when fluoridation first began?

Mandrake:

No. No, I don't, Jack. No.

Ripper:

Nineteen hundred and forty six. Nineteen fortysix, Mandrake. How does that coincide with your postwar commie conspiracy, huh? It's incredibly obvious, isn't it? A foreign substance is introduced into our precious bodily fluids without the knowledge of the individual, and certainly without any choice. That's the way your hard core commie works.

Mandrake:

Jack... Jack, listen, tell me, ah... when did you first become, well, develop this theory.

Ripper:

Well, I ah, I I first became aware of it, Mandrake, during the physical act of love.

Mandrake:

sighs fearfully

Ripper:

Yes a profound sense of fatigue, a feeling of emptiness followed. Luckily I was able to interpret these feelings correctly: loss of essence.

Mandrake:

Yes...

Ripper:

I can assure you it has not recurred, Mandrake. Women... women sense my power, and they seek the life essence. I do not avoid women, Mandrake, but I do deny them my essence.

Mandrake:

Heh heh... yes.

__________

It’s easy to say — and many have said — that Israel’s response to recent events has been disproportionate. And I agree with that. The response has been disproportionate (though understandable). However, I think it’s worth digging in a little deeper about why exactly the response has been disproportionate. When you look at it closely, it’s more complicated than just “they blew up more stuff than they should have.”

Generally speaking, I think people (like me) who came of age post-Cold War see the Israel-Palestine dispute in a fundamentally different way than older people. For instance, I’ve never known any of the Middle Eastern countries surrounding Israel to be anything but jokes, militarily speaking. For that reason, they’ve never scared me. Even today, no one has even the slightest fear that these countries might begin mobilizing troops for a real war. Just rockets and proxies because Israel is so overwhelmingly superior to all of them — combined.

But that’s not the way older people seem to view this dispute. During the Cold War, these countries were legitimate threats to all, and particularly to Israel. After all, Syria had Soviet backing. Egypt seemed like it was at least a military equivalent to Israel. And the countries combined posed a truly existential threat to Israel. Even the PLO, I hear, was once taken seriously as a military threat. But then they all got their asses kicked and the Soviet Union collapsed. And now they’re all jokes.

Unfortunately, though, I think part of Israel's problem is the lingering perception that these countries aren’t jokes, but existential threats. Now, in a sense, they are (which I’ll explain in a minute). But they are not currently existential threats in the conventional military sense. And given their robust diversified economies and education rates (even among the part of the population not forced to wear beekeeper outfits all day), I doubt they’re going to be a threat anytime soon in this conventional military sense.

I’m far from an expert, but it seems to me that the failure to grasp the current non-threat from these countries is at the heart of Israel’s failing strategy. And it also explains the precise nature of the disproportionality of Israel's response. When Israel responds to a kidnapped soldier and a few rocket attacks (that have no military significance in a macro-sense) by a mass bombing of Beirut’s infrastructure or a Gaza civilian power plant, that’s a disproportionate response — not merely because of the difference in magnitude of the bombings, but because of the difference in the nature of the attacks. Israel is responding as if it’s 1967 all over again and as if armies are massing on the borders. In other words, it's fighting with conventional military means as if there is an existential military threat.

But the conventional military threat of the Cold War era is no longer the threat to Israel’s existence — at least not for the time being. The true threat is a demographic one. It doesn’t take an Einstein to figure out the implications of the relevant population growth of Jewish and non-Jewish populations (both inside and outside Israel). Maybe in 25 years, maybe in 100 years, but at some point Israel is going to have to come to terms with its neighbors. Otherwise, it loses this game in the end. (hat tip to commenter byrningman)

And simply put, Israel will never come to terms with its neighbors (nor its territories) using conventional military means. I haven’t the slightest clue how to make it happen, but the answer has to be political and has to begin with an acceptable resolution resulting in a Palestinian state. Until that situation is resolved, nothing will be resolved. Of course, non-Jewish armies aren’t going to be marching into Tel Aviv anytime soon, but the growing non-Jewish population will make life pretty miserable for Israelis for years to come if things don’t change. Israel would be wise to attempt to resolve these issues from its current position of superiority.

Anyway, the problem with the current demographic trends is that if generation after generation grows up hating Israel, Israel will lose in the end unless some part of the current dynamic changes. We should do everything we can to prevent it, but math wins in the end.

Thus, other than nuclear terrorism, the true existential threat to Israel is the fostering of hatred by anti-Israel groups and nations. They believe that if they feed the hatred, time and birth rates will run their course. And so that’s the threat — that no peace will come. That no political deal will be executed.

Thus, if you’re a group like Hamas or Hezbollah, you’re not really even trying to invade or overthrow Israel. You’re trying to foster the hate. And you do that by preventing political resolutions. They're fighting a global, multi-decade counter-insurgency type of war where the goal is to goad Israel into disproportionate responses that foreclose the political deals that could stabilize the country’s existence.

In short, there are two different types of wars going on. Israel is fighting a Sherman-esque conventional war, complete with collective punishment and infrastructure destruction. Hamas/Hezbollah are fighting a counter-insurgency intent on thwarting political progress.

To see what I mean, check out this critical passage from Hilzoy:

So the basic outlines of this, as I understand it are as follows: Hamas and Fatah were about to make some limited progress, involving Hamas backing down a bit from its refusal to recognize Israel, when the first soldier was abducted. Israel responded forcefully. Negotiations were about to secure an end to this crisis when two things happened: first, unnamed parties blocked the deal, and second, Hezbollah abducted two more soldiers. Now Israel has again responded forcefully, and the conflict has expanded into Lebanon.

I understand how enraging it must be to sit back and watch the kidnappings and rockets, knowing you could wipe these people out. But, patience may be more tolerable when you understand (as Hilzoy does) that the kidnappings and rockets are intended to provoke a response that will kill political progress. That’s what they were intended to do here and that’s what they likely will do.

And the broader casualty of all this may be the West Bank withdrawal plan, which I suspect is just fine and dandy with many anti-Israel interests (and their useful idiots in Likud).

Obviously, Israel has to do something. And I’m not saying that it shouldn’t kill these people to defend itself. But there’s a big difference in targeting terrorists and bombing the Beirut airport. Because the surrounding countries are such impotent jokes, they can get away with that for many decades to come probably. But that won't last forever. At some point, it has to stop. For Israel’s own sake.

__________

I want to echo a point made in the previous post's comments by the oft-estimable, sometimes inestimable byrningman. The strike against Beirut, though intended to show strength, actually shows just the opposite. It’s a reflection of insecurity from a party and a prime minister who clearly feels exposed on the national security front. Thus, I think the assault was as much a response to Netanyahu as it was to Hamas.

And I’ll also echo a good point I’ve seen elsewhere (including from the Cap’n of all people) by saying that attacking Lebanon this hard this fast seems like a colossal strategic blunder. Simply put, Israel has done precisely what Hezbollah wanted it to do. And when you’re doing precisely what your enemy wants you do, you’re doing the wrong thing (see also Iraq). By launching a too-hard, too-fast attack without even trying any give-and-take diplomacy, Israel has strengthened the hand of Hezbollah in Lebanon, and by extension, Iran throughout the region. I mean, this really puts the anti-Syria forces in a bind in Lebanon.

And finally, there is the other point raised by commenter byrningman — Israel can’t keep this up. The current dynamic simply can't continue, particularly over a 100-year time frame.

__________

NYT:

Israel, already waging a military operation in the Gaza Strip to free a soldier captured by Palestinian militants on June 25, immediately responded by sending armored forces into southern Lebanon for the first time in six years.

Beatles, Back in the USSR:

Been away so long I hardly knew the place
Gee it's good to be back home
Leave it till tomorrow to unpack my case
Honey disconnect the phone

Thomas Friedman, From Beirut to Jerusalem, 1989:

The first weeks after the [1982] invasion began were heady days for the Israeli boys in Lebanon, days of discovery and, they thought, of making new friends. . . . The attitude that Lebanon was a friendly place, where the Israelis might soon be able to come skiing in the winter, reflected the profound Israeli ignorance about the true nature of Lebanese society and the players there. Before the 1982 invasion, Israeli scholarship and intelligence on Lebanon was extremely scanty. . . . I once asked [my soldier friend what he knew of Lebanon prior to the invasion.] “We knew it was some kind of complicated Middle East Belfast. Okay, so they had lots of tribes. It meant nothing. We didn’t know about the differences between Sunnis and Shiites. And then, all of a sudden, we went in.” . . .

Indeed, instead of entering Lebanon with a real knowledge and understanding of the society and its actors, Israel simply burst in with tanks, artillery, and planes in one hand and a fistful of myths in the other – myths about the nature of Lebanon as a country, about the character of Israel’s Lebanese Maronite Christian allies, about the Palestinians, and about Israel’s own power to reshape the Middle East. . . . What the Israelis did not understand . . . was that the real Lebanon was two Lebanons – at least two. [T]he real Lebanon was built on the merger between Maronites, representing the Christian sects, and the Sunnis, representing the various Muslim sects. . . . The real source of Lebanon’s troubles was the fact that these two Lebanons – Christian and Muslim – frequently were at odds with each other, going back to the very foundation of their state, when they were literally thrown together. . . .

Not only did the Israelis enter Lebanon with a myth about their allies . . . but also with one about their enemies, the Palestinians. . . . They saw the Palestinians as part of an undifferentiated Arab mass stretching from Morocco to Iraq. . . . Myths are precisely what give people the faith to undertake projects which rational calculation or common sense would reject. . . . The idea that Israel might finally be able once and for all to bring an end to the physical and existential challenge of the Palestinians was an intoxicating notion that touched the soul of the vast majority of Israelis, and this explains why so many of them were ready to join Begin and Sharon on their march to Beirut. . . .

[W]hat made Begin even more dangerous was that his fantasies about power were combined with a self-perception of being a victim. Someone who sees himself as a victim will almost never morally evaluate himself or put limits on his own actions. . . . Sharon didn’t share Begin’s victim complex, but he had his own fantasies about power. Sharon knew how strong Israel was, and he believed, wrongly, that this military strength could, in an almost mechanical fashion, solve a whole know of complex, deeply rooted political problems. . . .

[Israel then set up a puppet government headed by Bashir Gemyayel.] Bashir was supposed to rebuild the Lebanese army so it could take over from the Israelis, keep the Syrians out of Beirut, prevent the PLO from ever taking root again in the Palestinian refugee camps, and, to top it all off, sign a peace treaty with the Jewish state. [Bashir was soon assassinated.] After Bashir was assassinated, however, the Israelis could no longer depend on his brute force replacing their brute force so that the Israeli army could withdraw. Israel would have to find its own way home, and in the process all her myths and misperceptions about Lebanon would come back to haunt her. . . .

Begin was so obsessed with getting a peace treaty from Lebanon to justify the invasion that he barely seemed to notice the country was going up in flames. He had promised his people forty years of peace and he had to have a treaty to show for his troubles – not to mention 650 Israeli lives. . . . Not one article of the treaty was ever enacted. . . .

So, on the first anniversary of the Israeli invasion of Lebanon, Begin must have understood that he was really in trouble. . . . Its choices, too, were between bad and worse: bad was staying in Lebanon indefinitely to preserve the military gains of the war; worse was unilaterally withdrawing, without leaving any peace treaty of formal security arrangements behind. . . . Begin finally discovered that if you don’t gradually let reality in to temper your mythologizing, it will sooner or later invade on its own.

Paul Wolfowitz, Feb. 2003:

The Saudi problem will be transformed. In Iraq, first of all the Iraqi population is completely different from the Saudi population. The Iraqis are among the most educated people in the Arab world. They are by and large quite secular. They are overwhelmingly Shia which is different from the Wahabis of the peninsula, and they don't bring the sensitivity of having the holy cities of Islam being on their territory. They are totally different situations. But the most fundamental difference is that, let me put it this way. We're seeing today how much the people of Poland and Central and Eastern Europe appreciate what the United States did to help liberate them from the tyranny of the Soviet Union. I think you're going to see even more of that sentiment in Iraq.

There's not going to be the hostility that you described Saturday. There simply won't be.

__________

I’m almost out of steam on Lamont-Lieberman, but I wanted to make what I think is an important point. What’s both interesting — and maddening — about the primary election is that it’s become two fights in one. There is the fight for the nomination itself, and there is the fight for the narrative surrounding the nomination. And the latter may actually be the higher stakes of the two.

One of the most frustrating parts of the CT primary for me (and many others) has been its Procrustian reduction into a pre-existing storyline — war vs. anti-war; left vs. center; crazy vs. non-crazy; Truman vs. non-Truman etc. As anyone who reads liberal blogs in good faith knows, the truth is a lot more complicated than that. Lieberman is unique in many respects, and has brought this on himself in his own unique way.

But after reading pieces of the David Brooks column, I realized that truth may be beside the point. The story is the point. It’s not the election, but the narrative surrounding the election that really matters. Many people have a vested interest in portraying (consciously or unconsciously) the Lamont people (and the Democratic Party more generally) as wild-eyed lefty ideologues. It’s not true, but the perception exists and perceptions have a way of exerting material effects on reality.

And the self-interest works on many levels here. First, we have Republicans who want the wild lefty ideologue image applied to the whole party. But there are also people like Marshall Wittman and some of the TNR crew who want Democrats to win, but really want Lieberman to win (and Liebermanism more generally). So the Lamont-is-loony narrative is politically useful for them too, but in a different way than for someone like David Brooks or David Frum.

The problem though is that when the Wittman/TNR crew embraces the narrative, they are also validating the GOP’s use of that narrative. And no doubt about it — if Lamont wins, his victory (or more precisely, the narrative of his victory) will become part of the GOP’s mid-term strategy. As Frum astutely observed:

Republicans are instinctively sympathetic to Lieberman as a Democrat who demonstrates that one can remain faithful to liberal principles at home while supporting the country's war effort abroad. That said, it might prove something less than an unmitigated catastrophe for the Republic, the war, and (ahem) the GOP if Lieberman were to lose. His defeat would hand Republicans a vivid symbol of what the Democratic party is evolving into: It's too left-wing, too defeatist, too antiwar even to tolerate its own vice presidential nominee of six years ago!

This narrative doesn’t accurately describe the sources of the discontent with Lieberman, but it’s a really easy story to tell — especially especially to people who aren’t paying attention. Hmm. Lieberman was for the war and got voted out by a bunch of liberals. Sounds right to me. Seen that before.

This, I think, is what the normally awesome Chait is worried about. The story of a Lieberman loss will be worse (consequentially) than a Lieberman victory. This view may or may not be right, but it’s definitely a cowardly one. It’s an inherently defensive way of looking at the world and I’m a’weary of it — I’m tired of always living in fear of what the other side is going to do. But more importantly, I don’t think it’s right. History sides with winners and there’s nothing like political victory to shape the narrative your way.

That said, I think it’s absolutely correct that, if Lamont wins, the “wild-eyed narrative” is going to come at the Dems fast and hard. The GOP will try to gain some traction from it in other states. The only answer for now I think is to keep explaining why that narrative doesn’t fit the facts — and to keep poking holes in it. Chait had a chance to do just that in the LA Times but didn’t, even though he’s clearly not much of a Lieberman fan.

And on an aside, it is strangely fitting that Joe Lieberman could potentially lose and still screw over the Dems by the very act of losing.

__________

I've added two long-overdue links to the sidebar - Ezra Klein and Steve Benen's Carpetbagger Report.

__________

I’m getting increasingly uneasy about the potential electoral crisis in Mexico. Compared to the U.S., the Mexican “Blue-Red” divide correlates much more strongly with class, geography, and ethnicity — and that’s not exactly a promising recipe for civil order. If people think we have an immigration problem now, well, it will only get about a million times worse if order breaks down in Mexico. To be clear, I don’t think that’s a likely scenario, but the probability is high enough to make me uneasy. But anyway, I want to use the election dispute to make a few general points about institutions and the rule of law.

The basic question is whether Mexico’s relatively new electoral institutions are strong enough to withstand a challenge to their legitimacy. I’ve been digging around a bit and here’s my understanding of how the process works (and please correct me if I’m wrong). In 1990, as the ground was crumbling underneath the PRI, Mexico enacted some substantial electoral reforms. Among other things, two institutions were created — the Federal Electoral Institute (IFE) and the Federal Electoral Tribunal (TFE). The IFE is the body in charge of administering elections — e.g., counting votes, giving results, etc. This institution declared Calderon the winner, and so it’s the same one that Obrador is challenging in the courts (for now).

The TFE, by contrast, settles disputes. It is the final word. According to this panel of experts, the TFE (which was strengthened in 1996) can't even be overturned by the Supreme Court. Specifically, the TFE considers fraud allegations district by district only after seeing evidence that warrants a review (there are roughly 300 districts). Thus, the chances of a national recount are slim to none. They have until September 6 to certify the results.

In putting the final power with the TFE, Mexico decided it was better to let a small body of seven judges resolve these electoral disputes. That’s essentially how Posner justified Bush v. Gore in his book — better to get a final stable result than the right one. Of course, the difference is that Mexican law directs the judiciary to decide these things, whereas here, not so much. But I digress.

In any event, it’s an interesting contrast with the way the American Constitution handles disputed presidential elections. Our Constitution — through the 12th and 20th amendments — throws it back to Congress. And that makes sense. If the country really is in the throes of a full-blown electoral crisis, it seems better to let the most accountable branch have the final say. [On an aside, there still are some deep flaws with the American system, but that’s a post for another day.]

Based on what I’ve read, these new Mexican institutions have never really been tested. But they may get their first test run pretty soon, depending on how far Obrador is willing to go and whether is he willing to remain “inside” the system in challenging the results or whether he’ll take it to the streets.

I hate to get too melodramatic here, but moments like this (and Bush v. Gore) really do test just how far mankind and Western liberalism have come. The very fact that heated disputes about executive power are decided this way is a remarkable thing when you think about it. We’re essentially betting on the fact that humans — the glorified monkeys that we are — will put aside our most base emotions and abide by a rational political process. By words on paper.

In a lot of ways, it’s like a flood system. You carve out the ditches and drains beforehand, hoping that when the floods come, your system will channel the water safely where it needs to go. And so that’s the million dollar question — can Mexico’s electoral system channel the flood waters if they come? America’s system worked in 2000. Iraq’s system has not worked thus far. Mexico’s — well, we’ll see. I’m not a big Obrador fan, but I’m hopeful that he won’t drag the country into civil war (if for no other reason than to run again one day).

To take a step back, we tend not to realize it because we live with an illusion of eternal stability, but civil order is precarious, and we’re always in danger of falling back into chaos. Indeed, the political and social structures that we take for granted (the Lieberman-Lamont primary for instance) are built upon an invisible foundation of social stability. That debate wouldn’t be happening if, for instance, the Greenwich clan was pulling the Hartford clan out of their cars and beheading them. But that’s not happening here, at least not since 1865. But that can all change quickly. A terrorist attack here, a hurricane there, a constitutional crisis in a society riven by class — all of these things can make the precarious and invisible foundations that we take for granted come flaming a’ground.

And so it’s vital to channel disputes so that they won’t spread into the “foundation.” Presidential disputes need to be resolved so that they won’t give rise to a civil war that cuts at the very foundation of society. For that reason, the political process — and the institutions responsible for running that process — is often the only thing that separates us (literally and figuratively) from the law of the jungle.

And that’s where the rule of law comes in. To get people to settle disputes “within” the system, they need to respect the rule of law. And they’ll respect the rule of law when they see it as legitimate. It needs to be legitimately enacted, legitimately enforced, and followed and respected by those in power. The rule of law isn’t some hippy liberal thing — it’s the foundation of our society.

That’s why I’m always harping on the importance of legitimacy in my law posts. People probably think I’m dreaming up unrealistic nightmares and maybe I am. But legitimacy is what keeps the really big problems away — the Iraq-style problems. It’s for this reason that something like Bush v. Gore must never never be repeated. America’s roots are so strong — and the Court is so respected — that this fundamentally illegitimate decision was accepted. But it put a crack in the foundation. And a few more of these (especially one that put a Democrat in power) could easily lead to civil unrest.

Getting back to Mexico, it’s unclear whether Mexico’s institutions have the necessary capital to handle this crisis. Decades of PRI corruption have led people to distrust institutions. And Obrador may well tap into that cynicism successfully if he decides to do an all-out end run around the system in place. But then again, the new TFE is supposedly very well-respected and may well have enough “capital” to withstand an attack on its legitimacy. We’ll see I guess.

In short, a lot is riding on the judgment of Mr. Obrador. And if he pulls back from the abyss, this may strengthen Mexico's democracy in the long run.

__________

Although I was a big Edwards fan in the ’04 primary, I found him unimpressive in the general election and had pretty much soured on him as a candidate by the end. But I’m finding myself increasingly compelled by his call to fight poverty for several reasons.

First, and most importantly, because it’s the right thing to do. America’s poverty rate is appalling. Katrina was a worldwide embarrassment in that it cast a glaring light on the levels of destitution (often race-based) that we continue to tolerate. Second, I think it’s a viable political message with wide appeal across the political spectrum. In fact, it seems like one of those issues that could create some new and unlikely political coalitions.

Of course, that coalition apparently won’t include Fightin’ Cap’n Ed (of the Starship Enterprise, not the Navy) who had a different take on Edwards' anti-poverty stump speech.

The Cap’n was particularly annoyed with this line from the Edwards article:

“Thirty-seven million of our people, worried about feeding and clothing their children,” he said to his audience. “Aren't we better than that?”

The Cap’n replied:

Let's talk about poverty. Where did John Edwards get his numbers? The US Census Bureau has a ready table on poverty and near-poverty, and the number 37 million has no relation to those below the poverty line. [ed. Please note the bolded language] If his basis is worry, well, that tells us nothing; what parent doesn't worry about putting food on the table and clothes on the children, except for rich personal-injury attorneys? That threshold is meaningless.

Now here’s the very chart from the Census Bureau that the Cap’n himself linked to:



According to this chart, about 50 million people live at 125% of the poverty line or below. About 13 million live in between 100% and 125%. Thus, to get the number of people below the poverty line, you subtract the two. And if I’m recalling my second-grade math correctly, 50 minus 13 equals 37. Or if you’re a visual learner, 50 apples minus 13 apples equals 37 apples, which is the number that Edwards used (after canceling out the apples of course). The Cap’n didn’t read the column headings. Now don’t get me wrong, column headings can be tricky things. I’m no stranger to their treachery. But you really should look at them before basing your opposition to anti-poverty initiatives on them.

But it actually gets worse:

The real numbers tell a more interesting story. The percentage of people in poverty and near-poverty (125% of the poverty line) has actually decreased over the last 15 years.

Now, he’s actually right about that. The percentage of people in 1990 at 125% or below was 18% and now it’s 17.1%. Of course, before we pop open the champagne, note that the number of actual, living, breathing people (which includes actual living, breathing children) living in near-poverty or below has increased by 5 million in that time. I’m no economist, but it seems like this might be an inappropriate context for using percentages rather than the actual numbers.

[On an aside, for further proof that Cap’n Leibniz thought the 100-125% rate was the poverty rate, note that he writes in his abbreviated chart that the “% pov” in 1990 was 4.5% (in reality it was over three times higher).]

And of course, here’s the point he’s ultimately making:

If John Edwards wants to solve poverty, he can begin by cutting government spending, reducing bureaucratic overhead on private enterprise (starting with Sarbanes-Oxley), and introducing more free-market approaches, rather than the tired, failed top-down government programs that the Democrats have espoused since Lyndon Johnson's Great Society promised to end poverty in America.

Ah yes, the “failed” Great Society. Well, let’s go back to Cap’n Leibniz’s chart. In 1960, 31% of Americans — 31 — lived at 125% or below. The actual number of people was 55 million. After the mid-60s, it starts dropping sharply and is 17.6% (35 million people) by 1970, and hovers steadily there until 1980. What, I wonder, happened in the mid-60s that caused poverty to be cut so sharply. Hmm. Repeal of Sarbanes-Oxley? No, that's probably not it. I’m sure it will come to me eventually.

The point of all this snark is that Cap’n Ed’s post has literally no empirical basis. The number of people in poverty is increasing, and the Great Society programs worked. Thus, the foundation of his entire post is 100% wrong. It's fine if you don't believe that government helps reduce poverty, but it's not fine to pretend that this position has any basis in the reality-based world.

__________

Jon Chait:

Moulitsas and many of his allies insist that they just want Democrats to win. But in fact, they believe that any deviation from the party line — except for a few circumscribed instances, such as Democrats running for office in red states — is an unforgivable crime.

Number of Red states: 30

Number of total states: 50

__________

Well this is interesting — the NYT obtained an angry letter from Peter Hoekstra to Bush accusing the administration of failing to inform it about intelligence activities that “may represent . . . a violation of the law.” Hoekstra had been briefed about Bush’s other greatest hits, so the NYT concludes that he’s talking about some other program not yet revealed. As they say, read the whole thing.

But here’s a question — who gave the letter to the NYT? I should probably wait for people who actually know something about this stuff (Eric Martin — I’m looking at you), but here’s my totally unsubstantiated theory. Let me know what you think.

If you read the letter, you’ll see that Hoekstra has three complaints: (1) the Hayden/Kappes CIA appointments; (2) the DNI (Negroponte); and (3) some shadowy intelligence program that hasn’t been disclosed. Here’s my hunch — Hoekstra couldn’t give a damn about the intelligence program or the potential violation of law. Hard to believe I know given his strong support for civil liberties over the years. But this seems to be a fight about Negroponte and/or the CIA appointments — and the threat of disclosure is simply being used as leverage.

Exhibit A is the letter itself. Indeed, the very act of writing a letter like this and sending it constitutes a threat. Hoekstra clearly knows that anything written down has a decent chance these days of getting disclosed. And more importantly, the recipient of the letter knows this too. So, to me, the letter essentially says, “I’ll leak this if I have to.”

But now the letter is out. And I'm guessing that Hoekstra leaked it (let's see if he calls for a criminal investigation). And I'll also guess that the undisclosed intelligence program is something that has Negroponte all over it.

Of course, the more obvious answer is that leaking the letter is revenge for Negroponte undermining Hoekstra and Santorum's WMD magical mystery tour. But, that happened a month after the letter was written (and I think the act of writing itself was a threat). Now, maybe they were fighting about the WMD stuff in May, I'm not sure. But again, while the WMD embarrassment may have triggered the leak, it's not clear that it triggered the writing of the letter. Something else did. So stay tuned. And if you actually know what's going on here, please comment below.

And this concludes our conspiracy theories for the night.

[UPDATE: More at The Next Hurrah (via jonny).

___________

As I mentioned below, I thought Lieberman won the debate hands down. No big overarching point to make, just some observations.

First, debates are hard and experience matters. It was clear Lamont was a bit out of his league tonight. His voice was shaking at the beginning. His attacks on Lieberman didn’t seem particularly focused or forceful. And he just didn’t sound good. Lieberman, by contrast, was very good. He spoke smoothly and comfortably and sounded senatorial. More importantly, he hit Lamont hard tonight and Lamont didn’t respond effectively. It’s hard to pick it up from the transcript, but Lamont came off looking a bit, well, wimpy in response to Lieberman's forceful attacks. It makes you wonder why that Joe didn’t show up in 2000. He looked tough tonight.

Second, the debate reminded me of something an assistant football coach at my high school once told me. He said that he often watched big-shot NFL and college teams calling really bad plays and thought “I could do better than that.” I have that same feeling when I watch these debates. It’s not so much that I think I could do better speaking, but in writing the opening and closing speeches. (On some level, deep down where they don’t like to talk about at parties, all bloggers fancy themselves consulting geniuses). Anyway, I thought the opening speech could have been a lot better and a lot clearer. Those first 10 minutes are so important. I would have written something like this:

[obligatory thank yous] I want to begin tonight by thanking Senator Lieberman for his many achievements. I have nothing but admiration for Senator Lieberman’s efforts over the years, including his brave fight for civil rights in the 60s. I have admired you for years, as have all Connecticut Democrats. Unfortunately, something has changed over the past 18 years. Senator Lieberman is not what he once was. To be blunt, Senator Lieberman has lost touch. He has been in Washington DC too long and has lost sight of why he went there. And over the past few years, Senator Lieberman has consistently made the wrong choices about matters of the highest importance. On Iraq, the greatest foreign policy blunder since Vietnam, he has chosen again and again to cheerlead President Bush’s failed policies. I won't. I would have chosen differently. Alberto Gonzales implemented a policy of torture, and Senator Lieberman voted for him. I won't. I would have voted differently. Dick Cheney let oil companies write an energy bill, and Senator Lieberman voted for it. I won't. I would have voted differently. President Bush nominated Justices who will destroy women’s reproductive freedoms and Senator Lieberman supported them. I won't. I would have opposed them. Senator Lieberman opposed requiring hospitals to provide emergency contraception for rape victims. He said they could always drive somewhere else. I disagree. Now he says he’ll leave the Democratic Party if he loses. I won’t. These are important times. Never has there been so much at stake. The question Connecticut Democrats need to ask themselves — can we trust Senator Lieberman to make the right choices in the years ahead? I don’t think so. It’s time for a change. It’s time for Publius. Publius, Esquire.

Or something like that. Lamont had such a great opportunity to make clear distinctions, but he just didn’t have it together tonight.

Of course, the big question now is whether any of it matters. Yes and no. On the one hand, it may not matter at all. I doubt the audience was that large, or at least the audience of voting Connecticut Democrats. And the local news clips will take a few snippets of both men’s best lines so it will look like a tie. And who knows, maybe the CW will be that Lamont did great.

But assuming the CW tracks what really happened, I think this gives Joe some Joe-momentum. I mean, it really was an ass-kicking and I think it’s going to take a bit of the wind out of people’s sails. People were ready for the knock-out tonight and the failure to live up to expectations does, sadly, matter even if those expectations were unrealistic. At the very least, I think it will change the current dynamic, which is something Lieberman desperately needed.

In short, Joe may have kept his seat tonight. But you know, even if that happens, it's still good that Lieberman got a primary challenger. For one, it forced him to get up there tonight and repeat over and over his disagreements with Bush and his loyalty to the party. And on balance, I think Lieberman may curb his more egregious behavior going forward even if he wins. Fear of political death is the only thing that truly gets politicians' attention, and Joe is having a brush with mortality that he won't want to relive. Ask Arlen Specter.

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7:00 - MSNBC. Be there or be square.

God, I love election years.

UPDATE: My initial take - Lieberman by knockout. He was the clear winner tonight and Lamont looked, well, nervous and not ready for prime time. More thoughts later.

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I’ve been pretty surprised by the success of Lamont’s primary challenge. And I have to admit that I thought early bloggy visions of beating Lieberman were fantasies. But it looks like I was wrong — largely because I underestimated Lieberman’s inexplicable political incompetence.

This is going to sound snotty, but I think the blogosphere/netroots suffers from an “informedness bias” in assessing politics. That means they are so informed that it’s difficult for them to grasp just how uninformed large blocs of the public (or the Democratic Party) are about things (not dumb, uninformed). And so I thought people were overrating Lamont’s chances because (1) the rank-and-file wouldn’t be aware of Lieberman’s more ridiculous actions; and (2) Lamont — despite his rock-star status on blogs — would never get the name recognition necessary to win. (On an aside, the lack of informedness is why people like Bushes and Clintons have such an enormous head start in national elections and why the Warners and Romneys of the world have such a challenge ahead of them).

But Lamont is going strong, as Lieberman’s embarrassing indy petition confirms. And that surprises me. But even more surprising has been Lieberman himself. Putting everything else aside, I’ve been amazed at how politically inept he has been over the last six months, especially considering that he is a lifelong and successful politician. Maybe the failure to be challenged in 18 years made him rusty. Maybe he’s become too timid. I don’t know, but he’s definitely developed a bad case of the tin ear.

Of course, looking back, you can see the warning signs of his political in-acumen. His failure to go after Cheney in the 2000 debate was just strange, and certainly unlike Clinton and Gore who had a taste for blood in these things. Lieberman showed the same timidity — the will to lose — in the recount. Whatever you think of them, people like Clinton, Gore, Kerry, Edwards, and even Bush tend to share an important characteristic — they all have an overriding and all-consuming will to win. You can almost see the ambition leaking from them. Joe, not so much.

And then there’s Iraq and the 2004 primary. You know, although I disagreed, I understand why the big-shot Dem nominees initially stepped over themselves to endorse the war. They had visions of Vietnam and the Gulf War in their head. Cowardly, yes. Politically irrational, no.

But by the time the Democratic primaries rolled around, it was a different universe (at least within the Democratic Party). I for one was nothing short of outraged for a good chunk of 2003, as were most Democratic primary voters. It didn’t take a political genius to figure out that full-throated support of the war wasn’t exactly a winning primary strategy. That’s not to say Lieberman should have started opposing the war, but he needed to at least do something to tap into the discontent — and there certainly were enough failures to give cover for doing so. But no, Joe went right on being holier-than-thou about it, lacerating “craaaazy” Howard Dean in the process. There’s certainly an argument that he was being principled, but one can be principled and dumb at the same time.

And then fast forward to the end of the 2005. After a year of apologizing for torture, voting for Gonzales, playing footsy-cake with Bush on Social Security, and validating bad Iraq policies, Lieberman surely realized that a primary challenge was looming. Given his immense name recognition and long-standing (and generally solid) record, all he had to do was to give a few high-profile critiques of Bush or the war effort and I think it would have deflated the balloon. But instead, Lieberman wrote his acid-induced Strawberry Fields Forever op-ed in the Wall Street Journal, citing cell phone penetration to defend Bush’s Iraq policies. On top of that, he made perhaps his most ridiculous statement ever about how we (WE!) shouldn’t undermine our commander-in-chief's credibility in wartime. That one still burns. [Compare that to the politically-savvy Hillary who dulled netroots hostility by making a high-profile endorsement of the primary winner — expect more of this from her as the primary gets closer].

There are several levels of political stupidity here. First, he was clearly angling for Secretary of Defense. However, for him to think he had a realistic shot of getting a nomination from Bush’s White House shows just how completely ignorant he is of political reality in 2006 Washington. Second, this aggressive Bush outreach program shows that he had also lost all touch with the Democratic base. Either that, or he was so arrogant that he didn’t think he could realistically be challenged. Regardless, rather than deflate the Lamont balloon when he had a chance, he practically dared a primary challenger to run.

And then there was that bear commercial. And the kiss. And the first-on-his-feet standing ovation. And he did all this while a primary election was looming. I mean, even assuming he's right on all this stuff, it's political suicide.

Add it all up and you have someone who has simply lost his political antennae and his taste for political combat. And now he’s in real trouble. And there aren't any good options for him at this point. He had a real chance of losing the primary and I understand him wanting to keep his options alive. But it must have been humiliating for him. And at this point, I think it’s too late for a “coming out against Bush” speech.

As for losing Lieberman, I’m past feeling bad about it. He lost me after Abu Ghraib and I’ve never looked back. Yes, he has an admirable record and he votes right on most issues. But what’s frustrating about Lieberman is not so much what he does but what he doesn’t do. Lieberman is one giant opportunity cost. Whether you like him or not, he is respected and taken seriously by Republicans and right-of-centers. For that reason, Lieberman could have been a powerful voice for real change in Iraq — not necessarily withdrawal, but something other than what we’re doing. As a well-known and respected Democrat, he could have done a lot more on a lot of things. That’s why he’s infinitely worse than someone like Ben Nelson. There’s just so much Nelson can do coming from Nebraska. Lieberman, by contrast, is free to be great but chooses not to be.

And as someone who claims to have such a strong moral vision, his comments about torture after Abu Ghraib were beyond reprehensible coming from a supposedly solid progressive Democrat. I understand torture apologies from centrist libertarian Glenn Reynolds and Charles Krauthammer — that’s part of their charm and we’ve come to expect it. But I did not expect it from Lieberman — civil rights hero Joe Lieberman.

Well, that bank account is overdrawn. And for Abu Ghraib alone, I hope he loses. And if he wins the primary, I’ll support the Republican. Or maybe this guy. I don’t care. I just want Lieberman gone.

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The biggest challenge facing legal liberals today is their inability to answer a seemingly simple question — how should judges decide cases? Unlike legal conservatives, the modern left has struggled to articulate a normative theory of constitutional and statutory interpretation (i.e., how things should be interpreted). I’m going to try to do that today, or at least try to start a conversation, using the Hamdan opinion as an example of the direction I think liberal legal thought should be going.

In short, I think the key to a new progressive jurisprudence is a renewed focus on process, not policy. Courts should not attempt to impose policy, but should “reinforce” democracy by (1) ensuring that the process that gives rise to a policy is legitimate and (2) creating incentives for government actors to comply with that process. Other than that, courts should stay out of the way and let the political branches do their thing. There are exceptions of course, but before I get to those, let me back up and explain what I’m talking about.

At the outset, I should offer a few disclaimers. First, nothing I’m saying is particularly new. People have advocated for some sort of process or democracy-reinforcing jurisprudence for some time (e.g., Hart, Ely, and even Justice Breyer). I just think liberals should give these theories more serious consideration. Second, I’m assuming that our basic constitutional structure is legitimate. You could, though, make a decent argument that it’s not because it was ratified by a small fraction of white males, or because the Senate has become so malapportioned that it is fundamentally inconsistent with democratic legitimacy. I’m ignoring that stuff for now though the latter objection is certainly a problem for process theory.

The basic assumption underlying my sort of process theory is a deep skepticism of judicial power. If you aren’t that skeptical of courts, then this post isn’t going to be very appealing. But there are number of reasons why I think you should be skeptical, especially if you're liberal. First, you need to understand that it’s essentially a historical accident that the Court produces results that liberals generally like. As history has illustrated repeatedly, there’s nothing inherent to judicial power that causes these results. A strong federal judiciary could just as easily restrict individual rights as protect them. It could just as easily thwart popular will as uphold it (which we will see in spades if Stevens leaves and the Court starts narrowing or striking down legislatively-enacted environmental and civil rights statutes).

Second, and related, judicial power (at least unelected federal judicial power) is inherently less legitimate than legislative power. That’s not to say it’s illegitimate, just less so. The Supreme Court is still essentially 9 (or 5) unelected people deciding national policy. This is troubling from a procedural perspective in that policy isn’t being made by officials who can gather facts at hearings, etc., and then be held politically accountable for their decisions. It’s also troubling from a strictly mathematical or maybe even materialist perspective. In Bush v. Gore, for instance, you had five people substituting their will for 280 million. On some level, the legislative/electoral process is more essentially “of the people.”

This is especially true with respect to constitutional decisions. When the Court says something is unconstitutional, it is insulating that issue from the legislative process altogether. Again, I’m not saying that courts should never do that — they should. I’m just saying that courts should avoid doing so whenever possible (and that we need to be skeptical about them doing so). By doing so, courts can save their capital for cases where it's most needed.

The bottom line here is that the animating principle of any progressive jurisprudence should be deference to, and reinforcement of, the political process. Of course, the million dollar question is when courts should defer and when they shouldn’t.

Generally speaking, I think courts should try to limit their review to the process that resulted in a given statute or verdict. In other words, they should consider (1) whether the established process itself was flawed in some way; or (2) whether a validly-established process was complied with. If it was not, the Court should try to steer the issue back to a valid political process. I’m not saying that courts should apply this two-part test to every question before them. What I’m saying is that these are the sorts of questions that should inform the doctrine they do ultimately apply — i.e, these questions should be a thumb on the scale when the Court faces indeterminate legal questions.

Let’s see how this would work in practice. With respect to #1, courts should be more active where the political process is flawed or unresponsive in some objectively verifiable way. As I’ve explained before, the pre-civil rights era South is the perfect example. Because blacks were excluded from the ballot box, discriminatory laws and practices could not be addressed legislatively (which is the flaw in the great Bork’s critique of striking down poll taxes, etc.). The same might be true for laws restricting the domestic rights of children, or immigrants, or disenfranchised felons or any other group who can’t vote. This same logic, however, would not apply to minorities who could vote such as gays.

With respect to #2, the question is not so much the process itself, but whether a given action (verdict, statute, etc.) followed and resulted from a validly-established process. One example would be the 4th Amendment’s warrant requirement. Courts should be far, far more skeptical of verdicts resulting from warrant-less searches than from searches executed pursuant to a valid warrant. This skepticism would ensure that the state followed proper procedure (thus reinforcing the rule of law) and, critically, it would provide incentives to follow the correct procedure going forward. This same principle would apply to a number of the criminal protections spelled out so meticulously in the Bill of Rights (e.g., self-incrimination/Miranda process; right of confrontation/accepting out-of-court testimony; etc.). In short, courts should be extremely skeptical of exceptions to the established process for securing constitutional rights.

Hamdan provides a perfect example of how this theory would work in practice. As Balkin explained, the entire Hamdan opinion could be superseded by Congress. Hamdan essentially found that the President’s actions were illegal because they didn’t follow the proper process. The Court explained that there were two different laws governing these commissions — one is a validly-enacted statute (UCMJ), the other is the ratified Geneva Convention. The President’s military commissions do not comply with either. Thus, the President can either establish commissions that do comply, or Congress can pass a new statute.

It’s critical to understand what the Court did not do — it did not say “this is unconstitutional and therefore nothing in the legislative process can fix it.” What it said was that the President has to follow the existing procedure, or create a new procedure. In doing so, it shifted everything back to the political branches (which is why all the knee-jerk cries of judicial activism are so unwarranted here). In this sense, the decision was, as Balkin noted, “democracy-forcing.”

The Court of course could have endorsed the Yoo/Thomas view and adopted a king-in-wartime theory. Instead, it empowered Congress (the most legitimate and accountable branch), which is exactly what the text of the Constitution requires. As I pointed out in my last post, the king-in-wartime theory ignores that the Constitution gives many “war powers” to Congress too. The Court, in implicitly interpreting the President’s war powers narrowly, allocated power back to Congress. We may not like the result that Congress will reach, but that's our problem. If Congress does crappy things, we need to work harder to get a new one.

Of course, the question I’ve left unanswered is when courts should reject valid majoritarian actions because they are unconstitutional. As a non-originalist textualist, I am comfortable with judicial review only where the Constitution includes a specific negative prohibition or restriction (e.g., “Congress shall not do X”). Thus, I read provisions like the First Amendment and the criminal protections in the Bill of Rights as giving the courts broad textual license to strike down legislation and verdicts. The Constitution doesn’t have a negative restriction on, say, the scope of the commerce clause, so I would leave that decision to Congress. I am also skeptical of striking down anything but the most obvious cases on the basis of the vague concepts of due process or equal protection. (I’ll try to spell all this out in a later post).

But even in these areas, the Court should send things back to the legislative process wherever possible. That’s why I agree with O’Connor’s campaign finance and affirmative action decisions even though they weren’t written clearly. Those decisions allow the political branches to make these decisions rather than appropriating that power to the Court. For instance, laws empowering minorities certainly are not procedurally suspect in the way that a law disenfranchising a minority group would be. Thus, there’s no compelling reason to remove that issue from the political process.

There are more issues to work through, but this post is long enough as it is. One thing I should address before I finish is Roe-the-400-lb.-gorilla, because it obviously is inconsistent with what I’m saying. It is true that I’m skeptical of substantive due process where the political process is working (women, for instance, aren’t a disenfranchised minority — though many teenage women are). But, I think it’s possible to justify Roe on stare decisis grounds or because of the deeply-rooted reliance that society has developed. I’m ok with that so long as we draw the line around Roe and make it the exception. What I don’t want is a new free-wheeling 14th Amendment that can be used to strike down any law that judges conclude is too burdensome on individual liberty — especially if Republicans keep winning presidential elections.

This is all a work in process so I’d appreciate feedback.

[For those interested, you might also check out this review of Breyer's book by Professor James Ryan, which posed the important question I listed at the beginning - how should judges decide cases?]