Weekly Hit & Run Archive 2005 October 29-31

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With Out Persecution

From Drudge comes the day's most predictable news -- The National Italian American Foundation is officially

distressed by the attempts of some senators and the media (CNN, CBS) to marginalize Judge Samuel Alito's outstanding record, by frequent reference to his Italian heritage and by the use of the nickname, "Scalito."

Humorless NAIFer A. Kenneth Ciongoli, the Geep whose very name screams out an outsider's desperate embrace of WASPy first-initial dickwaddery, goes on to insist, bizarrely, that "no one mentioned that Justice Breyer was Jewish." He finishes with a flourish of persecution envy:

In honor of the memory of the just departed Rosa Parks the Senate champions of civil rights should insist that Judge Alito be considered only on his extraordinary merits.

Notification vs. Consent

As long as I'm in the awkward business of semi-defending Alito's ruling in Casey, which upheld a spousal notification requirement I don't personally approve of, I may as well make a note of Garance Franke-Ruta's post on the subject at TAPped. Franke-Ruta describes the "notification" requirement as in effect indistinguishable from a "spousal consent" requirement. Which, given the description she borrows from the National Abortion Federation, is certainly understandable:

Spousal notification -- would require a married woman to present a statement signed by her husband, attesting that he knows about her intention to have an abortion, before she could undergo the procedure.

Now, what's key here is the requirement to present a statement signed by the husband that he's been informed. It would give the spouse an effective veto on the decision to abort—he could always refuse to sign. But if you follow Franke-Ruta's link to the Casey decision, that's not at all the same as the characterization of the relevant provision in O'Connor's opinion:

§ 3209, which commands that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband;

Now, that's a huge difference. Because, within the context of the relevant precedent, someone who tried to claim the first, de facto "consent" sort of provision, didn't constitute an "undue burden" would certainly be stretching it. Now, ultimately, the court ruled that the requirement that the woman make the notification certification was also an undue burden. But ruling the other way, as Alito did, strikes me as much less of a stretch in this case, when you consider the various exceptions (among them fear of abuse).

As I said, I wouldn't be in favor of the authentic-notification rule either. But upholding that rule says a lot less about a judge than upholding the kind of rule Franke-Ruta is talking about would.

New at Reason

Matt Welch wonders of the Arnold who talked such a tough game during his gubernatorial campaign: Will he be back?

New at Reason

What does Google Print have in common with a government seizure of your home for the benefit of corporate developers? Not a damn thing, says Tim Lee.

Libertarians for Alito

To my dismay, giddy Christian activists are in Seventh Heaven over the nomination of Judge Samuel Alito to the Supreme Court. Troy Newman of the pro-life Operation Rescue exults, "We are trusting that we are now on the fast-track to derailing Roe v. Wade as the law of the land." Roberta Combs, president of the Christian Coalition, declares, "President Bush has hit a homerun with this nomination." Don Swarthout, president of Christians Reviving America's Values, adds, "We need someone on the US Supreme Court who stands for the true principles of America and applies them with common sense. In fact, I think most of America would agree that it is time for our nation to stop our tolerance for diversity programs that are detrimental to our nation."

But the libertarians over at the Competitive Enterprise Institute also see some reason to cheer:

Alito has issued landmark decisions upholding the free speech rights and freedom of association of business trade associations (Pfizer v. Giles (1995) and commercial free-speech rights (Pitt News v. Pappert (2004). His rulings have also shown a grasp of the regulatory and legal challenges facing business and an appreciation of the value of free markets.

Wow, a Nominee With a Paper Trail to Debate!

I haven't got a verdict one way or another on Alito yet, but ThinkProgress' roundup of "facts" about the nominee's views is less than impressive. (Addendum: I see the Center for American Progress is pushing the same list.) Let's consider some of their claims.

ALITO WOULD OVERTURN ROE V. WADE In his dissenting opinion in Planned Parenthood v. Casey, Alito concurred with the majority in supporting the restrictive abortion-related measures passed by the Pennsylvania legislature in the late 1980's. Alito went further, however, saying the majority was wrong to strike down a requirement that women notify their spouses before having an abortion. The Supreme Court later rejected Alito's view, voting to reaffirm Roe v. Wade.

As blogger Patterico explains in some detail, it's awfully hard to justify that initial claim on the basis of Alito's dissent in the case they're talking about. His opinion seemed to be that there were enough exceptions (e.g. the spouse isn't the child's father; the woman worries the spouse will become violent) that a spousal-notification requirement for abortion—whether or not it's a good idea—didn't constitute an unconstitutional undue burden on the right. Now, I have no idea whether Alito wants to overturn Roe, but it seems an awful stretch to conclude that he would on the basis of that opinion. Next...

ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by "immuniz[ing] an employer from the reach of Title VII if the employer's belief that it had selected the 'best' candidate was the result of conscious racial bias."

That's what the majority "explained," but it's sure not the impression you get reading the opinion. Basically, it looks like a court had to decide, inter alia, whether a hotel had failed to promote the plaintiff becaue of racial prejudice. And Alito's argument is that you might think the hotel's stated reasons for promoting someone else are weak, but that this isn't enough to show they were pretextual. I don't know enough about the fact pattern in the particular case to take sides in the instance, but again, the claim that Alito wants to "allow race based discrimination" seems a far cry from what I'm seeing in that dissent. (Requisite libertarian disclaimer: If some employer decides it doesn't want to hire people named Sanchez, I think it ought to be able to legally—though I'd hope for it to be swiftly punished by public opinion. All I'm arguing in this post is what it's reasonable to infer from Alito's opinions, not what's good policy.)

ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito's dissent was so restrictive that "few if any...cases would survive summary judgment."

I can't even find the opinion online in this case, but again, all we get here is a short excerpt of how the majority chose to characterize Alito's dissent. From what I can see, the case involved a question of whether a disabled medical student had provided her school with adequate advance notification of the kinds of accomodation her disability would require in the classroom. Again, it's hard to say more without seeing the opinions, but I can imagine quite a range of disagreements over what counts as adequate notification that fall short of constituting a disagreement over whether the law should "allow disability-based discrimination."

ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT: The Family and Medical Leave Act (FMLA) "guarantees most workers up to 12 weeks of unpaid leave to care for a loved one." The 2003 Supreme Court ruling upholding FMLA [Nevada v. Hibbs, 2003] essentially reversed a 2000 decision by Alito which found that Congress exceeded its power in passing the law.

I was faintly hoping the case to which they refer might be a Commerce Clause decision in the Lopez vein—but sadly, no. It's an Eleventh Amendment sovereign immunity case, and has very little to do with the propriety of FMLA per se. So again, this is something of a red herring: Alito's views of Congressional power under the Fourteenth Amendment to abrogate state immunity under the Eleventh are apparently such that he would have held FMLA inapplicable to the states. I don't think I'd hold it against him if it were true that Alito "would strike down the Family and Medical Leave Act," but the opinion doesn't seem to support the claim.

ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home.

Getting warmer, but looking over the opinion, it's not quite as bad as they're making it sound here either. The disagreement here isn't over whether carrying out unauthorized strips searches as such violates the Fourth Amendment—if a judge thought that were permitted, it would surely be a dealbreaker. Instead, the opinions reveal a dispute over whether the officers had a good-faith belief that their request to search all occupants at the premises had been incorporated into the warrant. On the basis of my skim, I'm inclined to prefer the majority's take, but Alito's dissent isn't as awful or crazy as the precis above would suggest. Finally:

ALITO HOSTILE TOWARD IMMIGRANTS: In two cases involving the deportation of immigrants, the majority twice noted Alito's disregard of settled law. In Dia v. Ashcroft, the majority opinion states that Alito's dissent "guts the statutory standard" and "ignores our precedent." In Ki Se Lee v. Ashcroft, the majority stated Alito's opinion contradicted "well-recognized rules of statutory construction."

Having found the Dia decision, I'm not all that surprised, in light of the pattern we've seen above, that the "hostile toward immigrants" claim seems, again, like a huge reach. Alito authored a partial-dissent there taking issue with the standard for evaluating a lower-level immigration judge's determination of an asylum petitioner's credibility. I can guarantee I'm out of my depth in evaluating this one on the substantive merits, but again, the bolded claim seems, at the very least, like an extraordinarily loose inference.

Addendum: Kos is recycling the same talking points, with some equally misleading commentary. Apparently, the FMLA decision tells us that "For Alito, workers shouldn't be able to take 12 weeks of unpaid leave to take care of newborns or loved ones." And the Doe v. Groody opinion reveals Alito's view that "Not only is [sic] strip searches of 10-year-old girls okay, but of wives as well since they are all merely that man's chattel." In a lot of ways, the first complaint is parallel to the silly "why do you hate America?" rhetoric folks at Daily Kos rightly chafe at. You think the Fourth Amendment proscribes certain anti-terror measures? You must be pro-terrorist! You think the Eleventh Amendment bars applying FMLA to states? You must be anti-people-taking-care-of-sick-relatives! The thing about wives as chattel is too ludicrously disconnected from anything in the decision—which, again, I'm inclined to disagree with—to take seriously.

We Love It!

Don't hold your breath that Plamegate the Movie will soon take Hollywood by storm, at least judging by the scientific method of the Halloween party I attended Saturday night. Like I presume one-third the population of Adams-Morgan, a friend of mine dressed up as a very credible Judith Miller. Only problem -- almost none of the assembled Hollywood riff-raff (including several journalists, and, er, me) had any idea who she was. "So you're a reporter, huh? Oh, from the New York Times. Yeah, I guess you look like a New York Times reporter," etc. It took far less cross-examination to figure out Katie Holmes.

Spoiler Warning

Republican dirty trickster Joseph Steffen used to be an aide to Maryland Gov. Robert Ehrlich; he lost his job last winter after he was caught spreading rumors about Ehrlich's most likely opponent in next year's reelection race. Now Steffen is contemplating a run against Ehrlich himself -- as a Libertarian.

One Reason to Welcome the Smoking Banification of America

Looking to start superficial conversations and hook up with complete strangers? Pray for a smoking ban! The Guardian reports:

Welcome to the practice of smirting (smoking and flirting), a craze which has swept Ireland since the introduction of the pub and restaurant smoking ban in January 2004. As it took hold, enterprising pubs and bars introduced outside areas for smokers to gather and with them came a more relaxed attitude to meeting people...

'It's brilliant,' says David Conlon, 24, of the ban's unexpected side-effect. 'You spend your time going in and out from the bars to the outside areas and that's a great way to get meeting people. There is definitely more pulling, just because you're inevitably chatting to way more girls during a night.

This increase in social smoking is one of the more worrying aspects of smirting... Many young Dubliners admit that they have increased their consumption of cigarettes because of the social benefits.

Whole thing here.

Is Alito Even Worse Than Roberts? Let's Hope.

Although it's supposed to be alarming, People for the American Way's "preliminary review" of Supreme Court nominee Samuel Alito's judicial record seems mostly reassuring to me after a quick read. Alito's conclusion that a ban on possession of machine guns exceeds Congress' authority under the Commerce Clause, which PFAW says "raises very troubling questions," is especially encouraging. Of course, there's always the danger, as with John Roberts, that Alito won't live up to his bad press. But judging from the gun case, his inclination to impose limits on congressional power is clearer than Roberts'.

Halloween Candy Not Poisoned But May Make Kids Fat

Following up on Jesse Walker's Halloween-themed links, I'd like to commit a public service by linking to Snopes.com's authoritative debunking of the myth of poisoned Halloween candy (for those unfamiliar with it, Snopes explores the veracity of urban legends). A snippet:

It's a sadness that a holiday so thoroughly and greedily enjoyed by kids is being sanitized out of existence in the name of safety. Sadder still is there appears to be little reason for it.

Though I've yet to find evidence of a genuine Halloween poisoning, I have uncovered a few isolated incidents initially reported as random poisonings that, upon further investigation, turned out to be something else.

That something typically turns out to be a gruesome intra-family homicide or the mad ravings of a Jack T. Chick comic-book religious tract.

Whole thing here. More Snopes on Halloween urban myths here (including info on pins, needles, and razor blades in Halloween treats--something that does actually happen from time to time, though typically as a hoax).

True tale of Halloween killjoy here.

Dresden, Budapest, Tbilisi, and Baku on 40 Barrels of Oil a Day

Over at Antiwar.com, inveterate globe-trotting journalist Jon Basil Utley gives a brief but interesting account of a recent to Germany, Budapest, Georgia, and Azerbaijan. A snippet:

The Caucasus nations are evolving in a positive way. Competent and honest government is still a ways off, but there is growing recognition of what economic conditions are necessary for freedom and economic prosperity. Also, they have the advantage that the communists provided solid basic education and suppressed tribalism for nearly a century. Consequently, they have the possibility of becoming modern nations.

Whole thing here.

Happy, Happy, Happy!

My very sharp friend Will Wilkinson, who researches how publc policy affects happiness for the Cato Institute, has launched a single issue blog on that topic. Already added to my daily feed, I expect it to be a worthy read if the material already transposed from Will's other blog is any indication.

Plamegate the Movie

Funny blogger Mr. Sun has cast a movie ripped from today's headlines. His Plamegate the Movie stars Philip Seymour Hoffman as Karl Rove, the Rock as Patrick Fitzgerald, Angelina Jolie as Robert Novak, and an even more inspired choice in the role of Judith Miller.

Whole bit here.

The Devil Rides Out

Halloween link #1: Twenty-one years ago, dozens of children at the McMartin Preschool in Manhattan Beach, California, accused their instructors of molesting them in bizarre occult rituals. The lurid stories, which were eventually debunked, set the tone for the satanic panic of the '80s, in which many innocent lives were wrecked by false accusations and overzealous prosecutors. In yesterday's Los Angeles Times, one of the accusers finally recanted.

From Debbie Nathan's introduction to the story:

In the decade and a half since the defendants were set free, research psychologists have shown that it's easy to pressure children to describe bad things that never happened. False memories can feel real, though, not just for preschoolers but for older children as well. But [Kyle] Sapp, now known as Kyle Zirpolo, says he never had false memories: He always knew his stories of abuse were made up. The adults at the McMartin Pre-School "never did anything to me, and I never saw them doing anything," he says today. "I said a lot of things that didn't happen. I lied." 

Halloween link #2: The grotesque abuses at the Bridgewater asylum for the criminally insane, on the other hand, really did take place, and were recorded in Frederick Wiseman's extraordinary 1967 documentary Titicut Follies, the first of several films Wiseman made about life under different total and semi-total institutions (High School, Hospital, Welfare, etc.). The state of Massachusetts banned the movie not long after it was released, and it was kept from public view from then until 1991; to this day, it has been hard to track down a copy. But now you can watch it online.

Halloween link #3: If you want to spice up your Halloween party with literature guaranteed to send a guest to Bridgewater or some other home for the hopelessly mad, here's some Martha Stewart-worthy tips on how to assemble your own Necronomicons. If you just want your guest to keel over dead, skip the Necronomicon and invite his abusive boss.

New at Reason

Jonathan Rauch isn't a huge corporation hoping to influence American politics, but he plays one in this column.

Sam Alito, Jump a Little Lighter

Fellow New Jersey native Samuel Alito Jr. is to be named as the nominee to O'Connor's seat later this morning. Given the timing, expect 90 percent of headlines to use some variant on: "Trick for Dems; Treat for Base" to announce the story.

Update: OK, maybe not quite 90 percent, but Dahlia Lithwick hits it.

Joan Kennedy Taylor, RIP

The libertarian feminist Joan Kennedy Taylor, whose books include Reclaiming the Mainstream and What to Do When You Don't Want to Call the Cops -- and who played a substantial role in shepherding Charles Murray's Losing Ground to completion -- has died of cancer. I never knew her, but I admired her work, which appeared in Reason among other venues; I also appreciated her role as an editor of one of the best libertarian magazines of the '70s, Libertarian Review. Several of her articles are archived here.

Sunday Fun Link, Unless You Know the Comedian in Question, In Which Case I Offer My Deepest Sympathies

Yesterday, as the family and I tootled around the city, the conversation turned to an evergreen topic: What's Yakov Smirnoff up to these days? I didn't have to wonder for long -- in one of the comment threads below, I learned that he's ... painting.