“Where I come from it’s called fairness”

Professor Brian Kalt is dissapointed with Senator Biden’s legal views:

First, when asked why he supported the decision in Roe, Biden said “Because it’s as close to a consensus that can exist in a society as heterogeneous as ours.” That’s a preposterous answer, for three reasons. First, anyone who can put the words “Roe” and “consensus” in the same sentence without a “no” in the middle has not been paying attention to the last thirty-five years of American history. If Roe represented a consensus, it would not have been such a landmark case, and it would not have caused one of the biggest rifts in American politics in the intervening years.

 Professor Kalt insists that the best consensus strategy is:

if tracking consensus is the standard for a good judicial opinion, then Palin’s answer was much better. There is no national consensus on abortion. There is a diversity in the U.S., and in individual states. Tracking consensus is a lot easier if states can each go their own way—think of lighting a house, and having either one switch for the whole house, or individual switches for each room—and easier still if it is done through the legislative process rather than the less flexible judicial process.

By that logic, why stop at states?  Why not say that it is the right for each citizen to choose since there is no consensus on the policy? If we accept that there is no deliberative outcome on abortion that generates consensus, why opt for consensus in smaller groups rather than individual preference aggregation?  Second, by ruling that Roe is an extension of Griswold, the court reached for the consensus on the grounds of the basic structure of society rather than for consensus on the particulars of the issue.  The court appealed to our shared consensus of the right to privacy and our morally autonomy on considering questions of the good rather than “solve abortion from the bench.”    

That relative inflexibility is the third point: the job of judges in constitutional cases (in my opinion, but apparently not Biden’s) is to apply the law as it is, not as it should be. Legislators are supposed to remake the law line with the election returns; judges are supposed to hold the constitutional line and they are given lifetime appointments to insulate them from political considerations.

And what if Biden’s position more resembles John Rawls’:

The positions of judges, umpires, and referees are designed to include conditions that encourage the exercise of judicial virtues, among them impartiality and judiciousness, so that their verdicts can be seen as approximating considered judgments, so far as the case allows.

Of course once we allow this to be the guiding principle of legal judgments, judges will have to give publicly justifiable decisions about fairness to justify decisions rather than being reduced to majoritarian toolboxes asked to endorse the majority’s pathetically suboptimal use of public reason. 

Finally, Professor Kalt indicate we should be worried about Biden’s judgment that he disagrees with the Supreme Court for striking down a bill that Biden authored.  How does Professor Kalt expect Senator Biden to react to that?  

The pattern Professor Kalt warns us about is that Biden is a man with deranged legal views who wants to mess with the basic structure of society.

Here’s another pattern, both examples mentioned in his piece are examples where Biden has raised concern about our basic structure of society’s ability to treat women as free and equal persons.  He has supported, and even undertaken measures to alter the basic structure of society to move it more in line with its aspirations.  In this version, he doesn’t sound so monstrous to me.  

 

On Hail Mary’s

Matt Yglesias writes on Charles Krauthammer’s “Hail Mary” Theory today.  

Krauthammer writes:

Krauthammer’s Hail Mary Rule: You get only two per game. John McCain, unfortunately, has already thrown three. The first was his bet on the surge, a deep pass to David Petraeus who miraculously ran it all the way into the end zone.

Then, seeking a game-changer after the Democratic convention, McCain threw blind into the end zone to a waiting Sarah Palin. She caught the ball. Her subsequent fumbles have taken the sheen off of that play, but she nonetheless invaluably solidifies his Republican base.

When the financial crisis hit, McCain went razzle-dazzle again, suspending his campaign and declaring that he’d stay away from the first presidential debate until the financial crisis was solved.

Yglesias writes:

Some things in life are like that. Notably, many games. But also US Presidential elections. Significantly, though, prolonged wars of choice aren’t like that at all. Iraq is the kind of situation where a whole range of possible outcomes is possible, it involves more than two players, and the interactions between the players aren’t zero sum. It’s not, in other words, at all the kind of situation in which it’s appropriate to throw a metaphorical hail Mary. Unless, that is, you’re thinking of Iraq policy primarily as an electioneering gambit.

I want to note two things.  First, and most important, did you see that hail mary that my former school, MTSU threw on ESPN Tuesday night football?!? It was there second completed hail mary pass to end the game THIS season (sadly they were tackled at the one yard line to lose against Kentucky on the first play).

Second, does anyone else feel like the political discussion about “the surge” is ignoring the fact that our government is deploying some secret innovation in warfare?  

The inability to openly discuss this technology is being exploited by both sides against one another.  It seems disingenuous to think that someone(named Barack Obama, in this case) was misguided in opposing the surge because he did not foresee the successful deployment of a military technology that he was either unaware of or had never been used before in combat.  On the other hand, I have a suspicion that when McCain talks about using “Surge principles” in Afghanistan, he means deploying this technology, but can’t say it.  So Obama and Biden are beating him over the head with his “one size fits all” approach to Afghanistan when McCain really just means bringing over the advanced combat tactics that are working in Iraq because of whatever it is we have invented.  

Whatever it is, Bob Woodward, the only person who has seen it that can talk to us about it, considers it a critical reason that the surge is working, and I’m not sure how much credit for that John McCain can really claim in earnest.

October Surprise in Washington, DC

We’re talking about Soccer, of course! USA’s manager Bob Bradley promised us a “surprise” when he announced his squad for the game against Cuba at RFK on Oct. 11.  Many speculated the surprise might be that he wouldn’t pick a team that anyone who follows the side thinks is terrible compared to what it could be.

Well, that is also mostly true, so that’s sort of surprising.  But the REAL surprise is that the USA has won the battle against Mexico for Jose Francisco Torres of FC Pachuca, one of the hemisphere’s best football clubs.  This is an important battle to win against Mexico, because I don’t like our chances when they actually battle on the football pitch.  Carlos Vela, Gio Dos Santos and Andres Guardado managed by Sven Goran-Erikson vs.  Question Mark at forward #1, Question Mark at forward #2 and Landon Donovan managed by Bob Bradley doesn’t seem to be in our favor.

 But that’s getting ahead of ourselves.  Torres is a fantastic pickup for the Mens side.  I’d like to see him play in central midfield paired with either Maurice Edu or Michael Bradley.  Both Bradley and Edu are physical midfielders who can jam up the middle of the field for you AND they are also very good bombing forward and cleaning up plays around the box and getting goals when they play for their clubs.  But when they play together on USA, they both end up too far back too often.  If you put a guy with the skill and technique of Torres n the midfield, he can hold onto the ball and give Bradley or Edu enough confidence to come up and join some attacks because they won’t be afraid that Torres is going to give the ball away in the midfield with a bad touch or a bad pass.  That’s what happens now when Edu and Bradley play together because one of them is always asked to pretend to be Cesc Fabergas when that’s just not who they are.  Edu and Bradley cannot play that far forward and Landon and Dempsey cannot play that far back.  If you want to compare molds on the Spanish example: Bradley and Edu are Marcos Senna type players, and Donovan and Dempsey are in the Iniesta mold.  We don’t have a Cesc or a Xavi player, a true distributor who stays back and orchestrates the offense.  Maybe Torres can be the guy who can successfully link the ball front to back through the middle.  

The full callup sheet for the USA can be found here.

I’ve been a bad, bad blogger

This is one of those awkward, personal blog posts.  I have not been blogging regularly for some time.  While my life has been fantastic the last two years, the trajectory of my blogging has, in general, been heading in the other direction.  What has caused the decline?  Several major events.  I have lived in three different cities, I got married, I finished my dissertation, I produced five articles for publication.  But I think that the most devastating blow was that when the halcyon days of Nashville is Talking gave way, I lost my sense of community as a blogger, and I haven’t really recovered.  

There are not really many blogs that I read that read my posts in return.  I’ve lost that sense of reciprocal exchange through blogging because I read blogs that are above my station as a blogger.  And the less I blog, the worse the problem.  There are some exceptions of course. Flattered doesn’t begin to cover having David Estlund and Peter Levine post comments on my site.  But overall, I have felt lost.  

I don’t really have any conception of where I live, my career is in limbo, my friends are all far away, and I just have not felt like I knew what direction I wanted to go with this blog.  Should I specialize more? Professionalize?  What should I be conversant in?  

Well, here it is.  Despite the irregular postings, and the rough couple of years, I think I have come back around in my aims for Cows and Graveyards all the way back to where I started.  I don’t want to be conversant about any one particular thing, I just want to be conversant.  I want to share what I’m thinking and seeing with you, dear reader, and I want to hear from you also.  I have missed blogging like the way I did two years ago, and I sat here this morning and said to myself, “all in, or all out: which is it?”  It’s all in.  I’m back in business.