ADULTERY INEQUALITY

Count me in support of the lefty consensus that
1. What Mark Sanford did as cheating husband to his family was wrong.
2. That personal failing shouldn’t ruin his political career.
3. What Mark Sanford did as stimulus-rejecting Governor to South Carolinians was wrong.
4. That political behavior should ruin his career.
5. If his lack of family values at home hurts his career the way his lack of family values at work should have, it’ll be hard to feel bad for him.
6. Especially given his desire to force patriarchal family archetypes on the rest of us.

All that said, as I was stirring up my usual indignation that John McCain and Newt Gingrich get off the hook about their affairs, I started to wonder for the first time: What would happen if a female politician admitted an affair? How would Americans react? I’m thinking the answer, given the energy our society puts into regulating female sexuality, is: worse. Could a woman who admits adultery salvage her political career today the same way that men do? What about in twenty years? Are there any examples where this has happened? Maybe abroad?

Update (12:55 AM)
: Ask, and the internet answers.

NOT A GOOD WEEK FOR JUSTICE

Robert Bork’s failed domination set a crucial precedent that a nominee whose jurisprudence endangers fundamental freedoms can and should be rejected by the Senate regardless of his personal competence. Unfortunately, Senate Democrats set a new one on Monday by stopping short of a filibuster on Sam Alito, a man who literally wrote the brief on how to kill Roe v. Wade, who has shown unwavering support for the power of the federal government to have its way with marginalized individuals, and who rejects that government’s responsibility and power to act in the service of the disenfranchised. Monday set a dangerous new precedent that when push comes to shove, the Senate will advise and consent only on whether the nominee is a sex offender or an incompetent. It’s a precedent Republicans can be depended on to take advantage of, to the real detriment of everyone who looks to an independent judiciary to safeguard their rights.

The Democrats’ ostensibly rebellious clapping after Bush said that Congress hadn’t enacted his plan to erode Social Security only emphasized the dark irony of the day: politicians who express their opposition through unauthorized clapping but not through the parliamentary avenues available to stop the confirmation of men who will leave us less free.

Want to put some real progressives into Congress? Here’s a good place to start.

THE WEEK IN FEARING FEAR ITSELF

Big week on the not-trampling-over-all-of-our-values-and-freedoms-in-the-same-of-security front. I’m skeptical of how much difference the McCain ammendment committing us not to torture will make on the ground, but it’s a good sign that even after sending Dick Cheney out of his undisclosed location and onto Capitol Hill, Bush wasn’t able to keep Congressional Republicans on the reservation (the anti-anti-torture reservation, that is). The ultimate result, in which Bush met McCain much further than halfway from his original “waterboarding is freedom” position, shows him to be a weakened President and puts this nation back on record against willfully inflicting abusive pain on prisoners. The urgency of the issue, and the limitations of legal language like McCain’s in addressing it, are reinforced in Human Rights Watch’s announcement today on pervasive torture in secret US-operated foreign prisons:

Eight detainees now held at Guantánamo described to their attorneys how they were held at a facility near Kabul at various times between 2002 and 2004. The detainees, who called the facility the “dark prison” or “prison of darkness,” said they were chained to walls, deprived of food and drinking water, and kept in total darkness with loud rap, heavy metal music, or other sounds blared for weeks at a time. The detainees offer consistent accounts about the facility, saying that U.S. and Afghan guards were not in uniform and that U.S. interrogators did not wear military attire, which suggests that the prison may have been operated by personnel from the Central Intelligence Agency…Some detainees said they were shackled in a manner that made it impossible to lie down or sleep, with restraints that caused their hands and wrists to swell up or bruise. The detainees said they were deprived of food for days at a time, and given only filthy water to drink. The detainees also said that they were held incommunicado and never visited by representatives of the International Committee of the Red Cross or other independent officials.

This “dark prison” report follows Friday’s New York Times revelation that President Bush has been authorizing the NSA to spy on Americans without even going through the secret courts designed for the purpose, which should shake any confidence one might have that better laws will fully set this administration straight. Bush apparently believes that he is authorized to personally designate Americans as surveillance targets based on the congressional resolution authorizing him to go to war in Afghanistan.

That Congress showed much less deference on Friday, when Bill Frist could only muster 52 votes for cloture on the Conference Committee’s version of the PATRIOT Act reauthorization, which took out all the civil liberties protections that Russ Feingold and others managed to get into the version passed unanimously by the Senate. In a striking victory for sensible privacy protections over fear-mongering, Feingold, Leahy, and company have kept the Senate from approving the Conference Committee Draft. It’s also a huge victory for Feingold personally, who has gone from being the only Senator to vote against the PATRIOT Act to leading a charge to continue debate on the bill which saw more Republicans cross over to oppose cloture than Democrats crossing over to support it. Looks like the Democratic leadership, rather than marginalizing him, is now trying to pull him into the party establishment, handing him a seat on the Intelligence Commission.

Hillary Clinton, meanwhile, made the news for her own sorry contribution to the discourse on patriotism and freedom: a proposal to ban flag-burning. Hers is ostensibly a compromise position in that it’s a bill rather than a constitutional amendment, and it only applies on public property or when someone is intimidated. But legitimating speech restrictions based on how uncomfortable the speech makes other people feel makes a mockery of free speech. She should know better.

FLIP-FLOP IN A PHRASE

Appearing on Hardball, What’s the Matter With Kansas star Sam Bronwback (R-Kansas) just told us that Americans are angry at the courts because they keep “inserting themselves” in issues where we don’t believe they belong, like Roe, and “changing our understanding” of issues like property in cases like Kelo. What he avoided saying, lest he stray off the message discipline reservation, is that the decision in Kelo he decries as a change was a decision not to overturn the law. Senator Brownback’s problem with the court’s economic jurisprudence, in other words, is that it’s not activist enough.

The conservative establishment vision for the court is not that it leave controversial decisions to be settled directly by the people, but rather that it step back when majorities choose to legislate against civil liberties (especially those of others) , and then aggressively intercede to overturn even those economic regulations which are overwhelmingly popular. Conservatives like Sam Brownback are outraged when the court stops a heterosexual majority from writing homosexuals out of the city’s non-discrimination laws in Romer, but elated when it turns back Congress’ attempt to keep firearms out of our schools. Whereas my reactions, unsurprisingly, are the opposite. A couple days ago I set forth a couple of the reasons I think the Court is justified in blocking the imposition of majoritarian sexual morality in Griswold and unjustified in blocking the majority’s attempt to set common labor standards in Lochner (if you want to have sex without condoms and make at least $5 an hour at work – not at the same time that is – my using condoms doesn’t make a difference to you but my working for $1 does). And Brownback has his reasons for his position as well. But unlike, say, Nathan Newman, he can’t hope to credibly claim that he’s an opponent of “judicial activism” across the board (and unlike – maybe – Finnegan, he can’t claim to be a consistent fan of judicial intervention to limit government either).

As a couple Yalies just showed in a Times piece identifying Clarence Thomas to be the Court’s Activist-in-Chief, the question for most of us is when and to what extent such activism is just and appropriate, and the country would would be better served by a national debate on that question (personally, if the question were all the activism or none of it – which I’m glad it isn’t – I’d go with none so that the left would at least have recourse to the legislature, and a spur to organize).

THE LOCHNER LITMUS TEST

Finally made it into the Philadelphia Airport late last night, after several hours delayed in George Herbert Walker Bush Airport in Texas, a real monument to small government if ever there was one. It was long enough to read a good chunk of Ed Klein’s anti-Clinton screed, and yes, it’s as bad as they say, and certainly libelous – though I’m not convinced that should be illegal. And it was a chance to watch the same couple minute CNN piece on O’Connor’s resignation several times.

Not being a Democratic Senator, I have the freedom to go off message and say that O’Connor’s resignation is unfortunate not because she was the linchpin in some sort of divine cosmic balance on the court that’s best for the country, but simply because her replacement will almost certainly be even more conservative than her, and conservative jurisprudence is bad for our country. Of course, if she herself didn’t want that to happen, she shouldn’t have presided over the theft of the 2000 election.

As for who comes next, my sense is that the Alberto Gonzales trial balloon is a red herring. It wins Bush credit from some moderates and Latinos for having an ostensibly moderate Latino on the “short list,” and when he goes with a Janice Rogers Brown instead, he’ll win that much more credit from right-wing extremists for having “listened” to their concerns about Gonzales.

The good news is that there are still five votes on the Court for upholding Roe (Casey was 5-4, but since then Justice Ginsberg replaced Justice White, who was one of the four), though not Steinberg v. Carnhart, which the federal late-term abortion ban seems to have navigated around anyway. That said, support for the right to autonomy in intimate spaces and decisions long recognized by the court is absolutely a standard for just jurisprudence.

At least as important as support for Roe in the coming controversy, though, should be opposition to Lochner, the court’s atrocious 1905 decision overturning New York’s minimum wage statute on the grounds that the absolute right of contract including a “right to work” for poverty wages. Lochner was overturned in West Coast Hotel, which rightly upheld the power of the people, through the legislature, to foster justice in the face of collective action problems and asymetrical bargaining relationships by enforcing universal labor standards.

Since Justice Black’s dissent in Griswold, opponents of privacy rights have made the perversely labelled the cases protecting them as “Lochner”-like, ignoring the differences between legislation regulating the relationship between employers, employees, and consumers, one which is by definition public, and legislation which regulates the private choices of individuals. Much as Footnote IV in Carolene Products suggests that judicial review is more justified when exercised to protect the rights of “discrete and insular minorities” who face more obstacles in protecting themselves in the legislative process, legislation itself is that much more justified when it achieves collective ends a majority of individuals might prefer but be unable to enact individually due to collective action problems. The law wrongfully overturned in Lochner achieved majority support despite employer opposition because most workers preferred to work less than 60 hours a week but could not unilaterally refuse to work more without threatening their livelihood. It is far less credible to argue that the legislation barring contraceptive use rightfully overturned in Griswold solved a collective action problem shared by a majority of couples who did not want to use contraception themselves but were somehow unable to decide for themselves not to use them. This illustrates the distinction between private and public interaction, and why privacy rights, which protect the former from the kind of regulation appropriate for the latter, preserve personal freedom, while the absolute “right to work” suggested in Lochner diminishes it.

While Justice Black makes equivalence between Lochner’s invocation of substantive due process and that in Justice White’s concurrence, the relationship between the fourteenth amendment and absolute laissez-faire contract rights is far more tenuous than the relationship between the Bill of Rights and privacy. The laissez-faire hostility to so-called “class legislation” was also explicitly rejected as constitutional law by the people through the sixteenth amendment, which in imposing an income tax recognizes the right and responsibility of government to pursue economic justice and equal opportunity through law. The American people, whose prosperity has been fostered and protected by many of those laws, deserve a new Supreme Court Justice who recognizes that right and that responsibility as well.