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Jun 22 10

iPatience, on the other side

by Editor

For a quick, by-the-numbers look at how 600,000 new version 4 iPhones might be distributed across the country, see iPatience.  If you managed to pre-order your iPhone, this analysis suggests it should be a manageable experience to actually go pick one up this Thursday…

May 18 10

Beinart’s Broadside

by Editor

Last night, I appended a comment to my essay on Tony Judt, about a new piece by Peter Beinart in the New York Review of Books.  Beinart’s piece is lengthy, but credible, critical, and important to read.

It has also captured the attention of some interesting commentators, prompting pieces also worth the read.  For instance, I wouldn’t have expected New York’s The Jewish Week to acknowledge any validity in Beinart’s argument – especially after episodes such as this one – but it has.  Here are a selection of responses to Beinart:

This is an important argument to have, and an important one to have in public: aired laundry still dries faster.

May 15 10

The Kagan Problem

by Editor

A.D. Freudenheim, The Editor

There are news articles galore about Supreme Court nominee Elena Kagan, reflecting the simplistic positioning of the left or the right—that she’s too much for one side and not enough for the other. For all the flattering things I have read, and all the quotes from friends of Kagan’s from high school and college praising her brilliance, I remain unconvinced. And I am as concerned with what this nomination says about President Obama as about Kagan herself. There are three parts to this issue.

Part One

As many have noted (e.g., Glenn Greenwald in a good NPR interview) Kagan’s views range from either unknown to poorly developed. She has spent more time serving in managerial and administrative jobs than working to develop a clear legal philosophy. No matter what one’s view of the Supreme Court—desirous of liberal judicial activism, or hoping to make Constitutional originalism the activist perspective—it would seem that a well-developed philosophy is a desirable in any nominee.

Then there’s the bits we do know. For example, Kagan’s decision to bar military recruiters at Harvard was misguided. The military’s “Don’t Ask / Don’t Tell” policy is absurd, but it is unreasonable for an institution to take Federal dollars, including money from the Pentagon, and then decide it doesn’t want Pentagon representatives on campus. That is simple hypocrisy. The recent case Kagan defended before the Supreme Court—regarding the shenanigans over a cross in the Mojave National Preserve—similarly defied common sense. Regardless of one’s view on the legitimacy of the cross itself, to advocate before the Court that the plaintiff has no standing based on Congressional tomfoolery was an affront to justice. Inherited from the Bush administration, Obama’s Solicitor General should have scrapped this case.

Part Two

The Obama administration has not been nearly as ardently liberal as some expected—or wanted. In particular, this president’s approach to civil liberties issues too closely mirrors George W. Bush’s, which is to say they lean towards the authoritarian, with doses of justification coming either from external threats or the simple desire for a “strong executive” branch.

It’s easy enough to contextualize the shift from the Obama campaign to the Obama presidency on some issues: closing Guantanamo was never going to be simple, nor was a pull-out of Afghanistan and Iraq truly imminent. On other fronts, however, there is more than enough disappointment to go around, the latest of which is Attorney General Eric Holder’s floating of a suspension of certain Miranda rights for “terrorist suspects,” and idea Obama seems to support. This may seem irrelevant to Kagan as a Supreme Court nominee, but it’s all of a piece: on any number of fronts, the Obama administration has failed to follow-through on its campaign commitments to restoring civil liberties to pre-Bush-era levels. It makes it difficult to trust that an unknown like Kagan will be the kind of Justice that Obama supporters want.

Part Three

Then there’s the simple and even broader issue of “political capital” and general Democratic wimpyness. For all the threat of a filibuster, the Democrats still hold 59 seats in that Congressional body. That’s more than a simple majority. Just as with health care, however, the political calculus of both Obama and his party seems to be one of safety, not boldness. Kagan—unknown, and in some important ways (for a Justice) unknowable—seems to represent the safe choice, because of the unknowns. It’s a shame.

The Democrats have learned the wrong lessons from the Reagan-era fiasco over the nomination of Robert Bork to the Supreme Court. The focus tends to be on avoiding the Waterloo moment of a nominee withdrawing under fire. What this overlooks is the tremendous value to one’s political base: the Bork nomination may have failed, but it become a rallying point for American conservatives, and in the end was possibly more powerful and valuable even than his appointment to the Court might have been.

One gets the sense, 6 months out from mid-term elections, that Obama and the Democrats don’t have the stomach for a nomination fight. That statement on its own is just pathetic. Obama’s approval ratings (to the extent they matter) are strong. The Senate tilts heavily Democratic. A bolder, more philosophical nominee could almost certainly succeed in passing the Senate on a simple majority vote. And a battle over values—well-argued and cogently thought-through—could have its own value for the American left. If nothing else, it would provide a rallying point for tapping back into the core messages of Obama’s 2008 campaign, and reigniting Democratic and independent voters for the fall elections.

And if those 2008 messages are no longer meaningful or relevant to Obama’s leadership? Then both this administration and the nation have bigger problems and deeper, darker waters ahead.

Apr 28 10

The Next Justice

by Editor

A.D. Freudenheim, The Editor

As much as I may be confused by the direction our country should take—European-style socialism or hard-core libertarianism?—I am decidedly less mixed in my opinions about the next Supreme Court appointee. This is not to say I have a name to put forward, so much as a clear picture of the candidate likely to be the most valuable for breaking through the Court’s present left-right split. Here goes.

The next Justice (or, the next nominee for a seat on the Court) needs to be someone who will egregiously offend people on both sides of the Senate aisle, while paving a path through the extreme middle of the Court’s decisions for the next 40 years.

The nominee should, preferably, be either a present sitting judge or an esteemed legal scholar—but someone who spent time in a slightly different career prior to their current position, perhaps working in the business world or as a high school teacher.

The nominee’s background matters less than what they have done with it. Catholic, Jewish, Pentecostal: as long as they are presently a devoted (and official) Secular Humanist or Ethical Culture-ist, that should do it. The only exceptions to this should be for a Unitarian Universalist, or a Muslim; the latter would be perfect for the purposes of making everyone in the Senate excitable.

The nominee must, of course, believe in the separation of church and state, but not so much that they allow priests who are molesters to go untouched by criminal law—or so much that they think its wrong for a state school to support a religiously affiliated student group if the same school also supports racial, political, or gender-affiliated student groups.

For the same reason—it’s important to know where you’ve been, to understand where you’re going—the nominee’s ethnic background also does not matter, so much as clear evidence of a lack of entitlement. Did they pull themselves up by their bootstraps? Pick ‘em! Are they second-generation bootstrappers? Maybe even better.

Man or woman? Yes, one or the other would be good. If the nominee owns a gun, even better. If the nominee was once the victim of a hunting accident but still owns guns: best of all!

Abortion? Perhaps the Gordian knot for a confused and conflicted Senate, especially those colored-dog Democrats. Clearly, the nominee should be against abortion on moral grounds, but for it on legal grounds—and if the nominee is a woman, she should preferably be able to discuss having faced a possible (though not actual) unwanted pregnancy at some point in her life. If she took Plan B as a result, perfect.

Finally, much was made recently of some of the sitting Justices seemingly not knowing the difference between a pager, a text message, and an e-mail. Really, too much has been made of this, unless we suddenly believe the medium is the message. What matters is whether the nominee has a sense of the ubiquity of these devices and tools in the lives of normal people. (Because they are ubiquitous, but the nominee may not be normal.) In theory, any nominee who has spent time in the last decade not working as a judge or legal scholar should have had occasion to use a cell phone and an e-mail system, and it is up to the lions of the Senate to sniff out the meaty truth here. Similarly, we-the-people are entitled to know whether the nominee has ever used YouTube, Google, or signed an online petition from some relentless group like or some SwiftBoatVeterans.something group. All of this should come out in the hearing, with an emphasis on a discovery process for any web links the nominee may have willingly shared with other people.

But if the nominee has ever (s)(t)exted pictures of themselves at some point, and then posted them to Facebook? This should be considered an automatic qualifier; after all, nothing could be more in keeping with the zeitgeist of the day.