Tuesday, October 09, 2018

Cruising the Web

Justice Kagan last week expressed her concern that the Supreme Court will no longer seem legitimate since we no longer have a swing justice such as Sandra Day O'Connor and Anthony Kennedy.
"In the last, really 30 years, starting with Justice O'Connor and continuing with Justice Kennedy, there has been a person who found the center or people couldn't predict in that sort of way. That enabled the court to look as though it was not owned by one side or another and was indeed impartial and neutral and fair," Kagan said.

She continued: "It's not so clear going forward. That sort of middle position, you know, it's not so clear whether we'll have it."
Well, she could be a swing justice if she liked, but her definition of swing is, apparently, only a Republican-appointed justice who votes with the liberals.

Ed Morrissey points out that Kagan said this before the vote on Brett Kavanaugh. Isn't that a rather particular thing to say in the middle of a big battle over the confirmation of her possible new colleague.
It’s clear as day what Kagan is doing — she’s playing politics while the Senate debates Anthony Kennedy’s successor. Kagan is lamenting Brett Kavanaugh’s nomination while assuming that he won’t bring an independent mind to the court. That’s precisely the kind of politics that Senate Democrats harrumphed about all week after last Thursday’s public hearing. In fact, it’s worse — it looks very much like Kagan’s trying to get the Senate to reject the nomination, which amounts to interference with the prerogatives of the other two branches and calls into question Kagan’s judicial temperament....

It’s also amusing that Kagan almost explicitly assigns herself and the other three liberal justices to the roles of predictable jurist in this statement. It’s undeniably true, but one would expect a Supreme Court justice to at least argue that she’s independent. Give Kagan one cheer for honesty, I guess, and a half-cheer to Sotomayor for not objecting to it.

Anyway, the middle of the court still exists. Chief Justice John Roberts has filled that spot on occasion, and it’s likely that Kavanaugh himself might do so a time or two as well. However, the center of the court has undeniably moved to the right, which is what Kagan’s real objection is. The fact that she’s airing that objection while the Senate is still voting on Kavanaugh’s nomination exposes Kagan as a political hack.

When Kennedy was the swing justice, there were many critical decisions that rested on where Kennedy came down. I used to tell my students that we're all living in Justice Kennedy's world. Do we really want to live in a country where so many crucial decisions rest on one individual? That never seemed the ideal to me. I would prefer that such decisions be reserved to elected legislators instead of resting on Anthony Kennedy's shoulders.


Charles C. W. Cooke responds
to all this hysteria over having a supposedly conservative majority on the Court.
For as long as I live, I will never understand this way of looking at the Court. For a start, it is unclear to me why the press implies that it is a historical problem when “conservative” justices form a majority, but not when the opposite is true. This is not the first time in American history that the Court has been lopsided in its approach to the law. And if being lopsided is a problem, then surely the Court was problematic in other eras? Reading the many pieces decrying its “shift,” we might ask whether the Court was “illegitimate” when FDR had appointed seven of the nine justices and, magically, they began upholding whatever he wanted, and whether the Court was “illegitimate” when Earl Warren abandoned any pretense at following the law and, in the words of the decidedly non-conservative Professor Tushnet, spearheaded rulings that “were philosophical, political, and intuitive, not legal in the conventional technical sense”? And then we might ask: If not, why not?

That to one side, critics’ maniacal focus on preserving a “swing vote” demonstrates clearly that they do not understand what the Court does. The Court’s job is to neutrally uphold the law — whether that law be in the form of statute or the Constitution itself. In this context, the concept of a “swing vote” makes little sense. Justice Scalia asked, “What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we’d like it to say?” We might ask in concert, “What in the world is a swing vote? A judge who mediates between the people who are right and the people who are wrong?” Ironically enough, it is the people who are making this argument — not those who reject it — who are “politicizing the Court.” If, like me, you believe that originalism is the only legitimate approach precisely because it removes politics from interpretation, then the more originalist judges you see, the less political the Court is likely to be. If, like Kavanaugh’s critics, you believe the opposite — that is, you think that the Court must represent the “will of the people” — then you cannot help but politicize it, and to the point at which ends up as just another legislature. If that’s what you want to do, then fine. But please don’t pretend that you’re concerned for its impartiality, or that the other “team” getting a turn represents the end of all that is virtuous and just.


Jay Cost scoffs at the idea that we need to worry about the Court's legitimacy. It turns out that, like much else, legitimacy is in the eye of the beholder.
Those warnings depend on a fundamental misunderstanding about the operation of the law in 21st-century America. Those warnings also depend on selective amnesia about the operation of the law. Because, let’s not forget, when the Supreme Court has issued unpopular progressive rulings that have overturned democratically enacted statutes or disrupted social norms, in progressive eyes the Court was never more legitimate. It was an intellectual and moral elite, operating at the vanguard of social justice.

This morning on “The Daily,” the New York Times popular podcast, the host, Michael Barbaro, and his guest, Times Supreme Court reporter Adam Liptak, pondered the legitimacy question at length. Liptak in particular emphasized the fragility of the Court’s power. Liptak referred to Andrew Jackson’s famous disagreements with the Supreme Court, a history that is far more complex than most now remember, to emphasize the importance of voluntary compliance to the Court’s authority.

But the America of Jackson’s two terms was fundamentally different from the America of today. The federal government was a fraction of its current size and reach, the balance of power between the states and national government was a matter of live debate (the nullification crisis started in Jackson’s first term), and the Civil War Amendments hadn’t yet placed American civil liberties beyond the reach of state and local governments.



Heather Mac Donald points out
how the feminist definition of rape has changed from what ordinary people might consider to be rape. Some of the more sensational accusations of rape in recent years has come to be how some women describe a sexual encounter that they've come to regret.
Columbia University’s infamous “mattress girl,” Emma Sulkowicz, was conducting an on-again, off-again sexual relationship with another student, Paul Nungesser. Two days after one of their consensual couplings, in August 2012, Nungesser invited Sulkowicz to a party in his room. She texted back: “yusss,” adding: “Also I feel like we need to have some real time where we can talk about life and thingz because we still haven’t really had a paul-emma chill sesh since summmmerrrr.” A week later, she suggested that they hang out together: “I want to see yoyououoyou.” Two months later, she texted: “I love you Paul. Where are you?!?!?!?!”

It wasn’t until eight months after their August 2012 coupling that Sulkowicz filed a campus-rape charge, alleging that Nungesser had anally raped her while she struggled and told him to stop. She claims that she waited so long to file so as to avoid re-traumatizing herself. Nungesser argues that she was simply chagrined that they had not become an exclusive couple. Whatever Sulkowicz’s motivation for filing, it is impossible to read her post-coital pleas to Nungesser as the aftermath of the most terrifying experience a woman can have, short of murder, rather than as the attempts of a female to reel a favored male back into her orbit.

Nevertheless, Sulkowicz was canonized as a martyr to rape culture, thanks to her stunt of carrying around a mattress to protest Columbia’s failure to expel Nungesser. New York senator Kirsten Gillibrand declared herself “inspired by Emma and all of her sisters in arms who have made their voices heard and given voice to thousands of other survivors all around the country.” Gillibrand invited Sulkowicz to President Obama’s 2015 State of Union address in order to “further amplify her voice.”

In September 2013, two freshmen at Occidental College in Southern California had sex after both had been on a 24-hour drinking binge. After making out at a party in the male’s dorm room, they conspired to evade the girl’s friends, who had escorted her back to her own room. The male, known as “John Doe” in court papers, texted “Jane Doe”: “The second that you away from them, come back.” Jane responded: “Okay.” John wrote back: “Just get back here.” Jane responded: “Okay do you have a condom.” John replied: “Yes.” Jane texted back: “Good, give me two minutes.” Before leaving her dorm room for their appointed tryst, Jane texted a friend from back home: “I’m going to have sex now.” After their sexual encounter, Jane texted a smiley face to her friends. She then went to a common room and sat on another guy’s lap, joking about NASCAR. The next day she went back to John’s room to pick up her earrings and belt.

Jane reported their coupling to campus authorities only after seeing that John was unaffected emotionally by it, whereas she, having lost her virginity, felt distracted and unable to concentrate. Having been instructed in the ways of the patriarchy by Occidental’s Title IX bureaucracy, she decided that she should not have to experience the psychological discomfort of randomly running into John Doe around campus, and that he should be expelled. Occidental was only too happy to comply. It found John Doe guilty of rape and expelled him in December 2013.

Jane’s psychological distress was undoubtedly real. Sexual liberation pretends that males and females respond identically to one-night stands, and that the loss of virginity is just an insignificant way station en route to the rounds of casual sex expected of contemporary adults. In fact, women are hormonally and emotionally affected by intercourse in a way that most men are not. And traditional culture was right to regard the loss of virginity as a milestone in a girl’s life, and to surround it with the sanctifying rituals of marriage.

But however understandable Jane’s post-coital emotions, they do not justify converting what was clearly a mutually agreed-upon coupling into rape. Any male whose partner asks about condoms, then voluntarily enters his bed for the express purpose of sex, is going to assume consent, and with reason.
We're told that men need to get affirmative consent before having sex. Well, wouldn't a text asking if he has a condom be an indication of consent? Wouldn't writing successive tweets before and after sex indicate that a woman was not forced? But that's not how the system works these days on some college campuses. She also reports on statistics showing that what feminist researchers classify as rape is not what the women involved actually think of as rape.
According to the #BelieveSurvivors platform, the reason why most researcher-classified rape victims don’t report their rapes is because the reporting process is too anti-female and re-traumatizing. In fact, most researcher-classified rape victims don’t report because they don’t think what happened to them was serious enough to report—another conclusion inconceivable in the case of actual rape.

In 2015, the Association of American Universities (AAU) conducted a sexual-assault survey at 27 selective colleges. The vast majority of survey respondents whom the AAU researchers classified as sexual-assault victims never reported their alleged assaults to their colleges’ rape hotlines, sexual-assault resource centers, or Title IX offices, much less to campus or city police. And the overwhelming reason that the alleged victims did not report is that they did not think that what happened to them was that serious. At Harvard, for example, over 69 percent of female respondents who checked the box for penetration by use of force did not report the incident to any authority. Most of those non-reporters—65 percent—did not think that their experience was serious enough to report. Over 78 percent of Harvard female respondents who checked the box for penetration due to “incapacitation” did not report. Three-quarters of them said that what happened to them was not serious enough to report. This is a judgment not allowed by the campus rape industry.
We are supposed to believe all women except when they don't think that they were raped.
The #BelieveSurvivors movement claims unique authority to interpret women’s experiences, even if that means ignoring a woman’s own classification of her experience as not rape.

The rest of us need not accede to this assertion of monopoly interpretive power. Our booze-fueled hook-up culture has made relations between men and women messier than ever, leaving many girls and women with pangs of regret—but those regrets do not equal rape. If we were actually in the midst of an “epidemic of sexual assault,” as New Jersey senator Cory Booker asserted the evening of the Ford-Kavanaugh hearings, we would presumably have seen women and girls take protective actions, such as avoiding frat parties and flocking to single-sex schools. None of those protective actions has occurred, however. Either women are too clueless to avoid patent danger, or the epidemic of sexual assault is a fiction. All evidence points to the latter conclusion. Judge Brett Kavanaugh may be the latest male to have his life torn apart by that fiction, but he won’t be the last.
When Mac Donald points out that, if we truly believed that 20-25% of women were being sexually assaulted on college campuses, we'd see women making different choices is something that I've long thought. When I've heard colleagues cite that statistic, I ask them that if the believe that so many women are being assaulted, how can they send their daughters away to a co-ed education? Across the board, parents would be panicking and refusing to let their kids go away to college.


As Libby Eamons writes, if women are regarded as intelligent, independent human beings, we need to accept responsibility for our own sexual decisions.
Decades of feminist discourse would tell us that women have the exact same sexual rights and privileges as their male counterparts do. From the first wave that got us the women’s vote, to the second wave that demanded women on college campuses have the same freedom of movement as their male counterparts, to the third wave that states unequivocally that women have the same right to engage in sex with as many partners as they choose, whenever they choose, and without any shame, women have staked their liberation on freedom to take any risk of their choosing in order to get the same freedoms that men have. Feminists from the mid to late 20th century knew that it would not be possible to be free and to be safe, and so they rightfully chose the former.

But in the Me Too era and under the burgeoning expectation of enthusiastic consent, the first questions asked are something like, “What kind of horrible man would do this?” and, “How can we make him pay for this crime yucky way he behaved toward women?” Any attempt to ask why a woman would invite a man into her bedroom late into the evening if she didn’t want to have sex with him, accept the offer of a third date after she really didn’t enjoy the first two, or continue a years-long sexual relationship even though sometimes the sex made her feel bad, are considered victim blaming. It is as though we are to believe that the woman involved has no agency, no free will, and no control over her own choices....

Maybe the plan is that if society can morally legislate, through fear of reprisals and reputation intimidation, the inner workings of straight sex and straight relationships, no woman would ever feel victimized by sex with a partner who she’s only sort of into. Is that a good enough reason to deny women the respect to assume that they are capable of making their own choices? And do we imagine for even a second that women would abide the same standards being applied to them?

....It is imaginable that when a person enters into a sexual encounter they do so because they are under the impression that they will enjoy it. But the call for equity, even from one-night stands, short-term hookups, and guys you only sort of know, speaks to a desire for new standards that are very specifically not equality. It is completely impossible to live in a free society and legislate or moralize for outcomes, especially those that take place behind closed doors and are intimate and private in nature.

If there are to be new standards of conduct and ethical behavior to which men are accountable under penalty of reputation and career destruction, men need to be told what they are, and what the penalties are. And if these standards include a clause in which men must protect women from their own consent, women really ought to think very carefully about exactly how much control they want men to have over their independent sexual decisions....

Still, there should be no “gray area” into which any sort of authority figure, government, organization, or corporation has subjective supervision to punish or disrupt livelihoods. If he didn’t do anything indictable, and the women were able to leave the relationship without legal intervention, it should remain a private matter.

This guy is not accused of sexual assault, he’s accused of being a jerk. But this is America, you have the freedom to be a jerk, and women have the freedom to not date you, and tell other women why. But unless your workplace has a codified guideline for how you are to behave in your sexual life or else get fired, it’s not your boss’ business.

Do women really want an organized list of workplace demands over lifestyle that include sexual behavior? The fight for gay rights was in part about not being discriminated against in the workplace for private sexual practices, but now there’s a clamoring for private sexual behavior to be a terminable offense. What madness....

For the long arm of anything authoritarian to reach out and intervene in crappy relationships in order to protect women from bad acting men is to disrupt the feminist experiment and say, flat out, that women need protection from society, an intermediary between themselves and those men who would be jerk boyfriends, because they simply cannot handle those big, loud, hormonally charged men and their demands for sex. If women want the freedom to screw, they have to accept the freedom to screw up. Freedom is always worth it.

Beyond the destruction of men's lives when there are such false accusations, this approach to all accusations and women is that actual accusations of real sexual abuse, harassment, and rape are diluted and will not be believed by as many people.


Michael Warren looks at California which has long been a one-party state in which the Republicans are barely a blip in state government. So how has the blue model been doing?
Today, the state is a liberal’s dream. It’s multicultural. It’s largely urbanized. It is socially and environmentally progressive. People here frequently boast, without a trace of smugness, that if you want to see America in 10 years, look at California.
As Warren points out, California is a very wealthy story with some of the wealthiest people in the country. But the wealth is not spread very evenly.
But the wealth is concentrated at the top, and the squeezing of the middle class out to Nevada and Utah and Arizona and Texas has left a bifurcated state of the very rich and the relatively poor.

The state has the most liberal environmental laws and regulations in the country, which hamper the development of affordable housing. A San Francisco Chronicle investigation in 2017 showed rising housing costs driving lower-income Californians out of their homes and into the streets. Homelessness has skyrocketed in both the cities and the rural areas of the state. While 12 percent of the U.S. population is in California, 25 percent of the country’s homeless live there. From Sacramento to San Diego, you can’t help but notice the multitudes of people living on the street....

Without the middle classes to object, progressives think, the wealth can be redistributed to help those who need food, health care, and housing. California can be a place where social progress is achieved and immigrants are welcomed with open arms, no questions asked. It can be the picturesque center of a movement to reverse the effects of climate change and save the entire world.
Yeah, any state is doing well if they can hollow things out and lose the middle class. The probable next governor, Gavin Newsom, is eager to push California in a more progressive direction in contrast to Jerry Brown who has been doggedly trying to establish fiscal sanity.
That doggedness has rankled progressives, who grew more frustrated with every stroke of Brown’s veto pen on hundreds of bills passed by the overwhelmingly Democratic legislature. He recently nixed a bill that would have funded a state “advisory group” to look into how fake news spreads on social media. In 2012, amid the moral outrage over neighboring Arizona’s anti-illegal-immigration law, Brown issued a late-night veto on a bill that would have limited how much California police who stop illegal immigrants could cooperate with the feds. Another bill, passed by the legislature last year, would have required large businesses to post their median and mean salary data for both men and women on a public website, in the name of transparency on the gender pay gap. Brown vetoed that one, too. There were plenty of bills Brown did approve, but he’s given every interest group on the left something to grumble about. Progressives wonder: What’s the point of having control of the levers of power—and a booming economy to boot—if you don’t make some big changes?

Newsom is aware of the simmering impatience, which explains why he cast himself in this summer’s jungle primary as a champion of progressive causes.
Newsom has also been very vocal in opposing any sort of education reform. Any debate over policy in California is a debate among Democrats.
California’s looming public-pension crisis reveals another way Democrats are divided. The generous benefits public-sector unions in California have extracted from state and local governments are prompting cutbacks in school funding and services—or, more typically, tax increases and more bond issuances. A 2017 Stanford University study by former Democratic assemblyman Joe Nation examined 14 governmental agencies in California from the state government itself to cities, counties, and school districts. Nation concluded that “public pension costs are making it harder to provide services that have traditionally been considered part of government’s core mission” and that government contributions to pensions would have to double by 2030. And this is in a booming economy with rock-bottom interest rates.


But billions of dollars in campaign contributions from organized labor, plus the strict collective bargaining and compulsory unionization laws in California, mean it’s difficult for reformers to make headway in Sacramento or elsewhere. “The public-employee unions control the state and control the Democratic party,” says Will Swaim, the president of the conservative California Policy Center.
So expect even more progressive policies to be implemented when Brown leaves office. The big kahuna is single-payer health care. They don't have money to pay for all that they've promised in spending now. How are thing going to fund single-payer? Their only answer is to raise taxes. Is this all the model for other states? And just imagine what it would look like if these people were to control the federal government?