Paul Butler for Coolest
Paul Horwitz wants to know who is the "coolest" law professor in the academy. He nominates Alex Long of Oklahoma City University, but opens the floor for contestation.
My nominee is GW Law Professor Paul Butler. There are a few reasons to support this. For one, he is a blogger at BlackProf. This shows that he is hip and edgy and connected to the trends of us youthful folk. Remember, while old people can be "cool," what is cool is unquestionably defined by the young.
Drawing off that is the second and ultimately controlling reason for Butler's dominance in the field. Horwitz pitches Long on his use and analysis of musicians in law review articles. To that end, I submit that he is easily trumped by Professor Butler's article Much Respect: Toward a Hip-Hop Theory of Punishment, 56 Stan. L. Rev. 983 (2004). To open, let's start with the opening footnote:
Professor of Law, The George Washington University Law School. This Article was presented as a work-in-progress at Washington University School of Law and at a Stanford Law Review Symposium. I thank the participants in those events. Special shout out to Daniel Solove. Mad props to Christopher Bracey, Kimberly Jade Norwood, and Dorothy Roberts. Big up to my research assistants Jeremy Medovoy, Michael Robinett, and Eduardo Rodriguez.
Next, let's look at the article itself. The artists it references are ones that actual have "street cred": Nas, NWA, Jay-Z. In addition, it cites to suitably obscure people--one's who the truly connected and plugged in might know, but people "on the outside" will be left scratching their head saying "what?" Here we have people like Erykah Badu and Immortal Technique. These names, in terms of coolness, clearly beat out "GBV, Lester Bangs, the Specials, Manilow, Paul Westerberg, Mike Watt, Robbie Fulks, Waylon, Hank, and Uncle Tupelo," who are cited by Long and whom even Horwitz admits are getting a bit long in the tooth. Furthermore, the article manages to be an actual important contribution to the literature on punishment. I do believe utility is cool (think iPods). And by being published in the Stanford Law Review, it has the advantage of cross-over appeal--"ghetto made good," so to speak.
Put simply, rap trumps whatever it is Mike Watt does. Professor Butler is clearly the coolest law professor, and Much Respect to anyone who can prove me wrong.
Torture Blurbs
Dahlia Lithwick (via that same post) quotes Felix Frankfurter giving a line I very much like. He discusses those who "afford brutality the cloak of law." The quote comes from Rochin v. California [342 U.S. 165, 173 (1952)]. The case there involved police officers forcibly trying to extract drug capsules from a suspect's mouth, then after he swallowed him, applying a stomach pump to force him to vomit them up. This case is also where the phrase "shocks the conscience" entered our legal lexicon. The type of techniques President Bush wants to preserve for his use are the epitome of what should shock the conscience, and I certainly hope our collective conscience has not atrophied so much so that it no longer does.
Andrew McCarthy calls anti-torture Senators "anarchronisms." Publius has another idea of what truly constitutes an anarchronism.
Representative Peter King (R-NY)--one of the few representatives who can fairly be said to have explicitly supported terror and terrorists--has had a change of heart. But so far, the progressive turn that leads him to believe that wanton depravations of human dignity (such as terrorism) are bad has yet to cause him to turn against torture as an interrogation tactic. In somewhat related news, Rep. Duncan Hunter (R-CA), chairman of the House Armed Services Committee, sums up the extent of his inquiry on this issue: "We'll do what the President wants." That's GOP oversight.
Brian Tamanaha: Don't make a deal with the devil. Some temporary security is not worth sacrificing our nation's immortal soul.
Finally, a TPM Reader nails it: It really doesn't matter who ends up winning the torture debate. By virtue of having it, we've already lost. This isn't about censorship. This is about there being some redlines in our moral psyche which we shoul refuse to even consider, much less cross. If someone offered you a considerable sum to sell your children into slavery, the proper response isn't to deliberate over the offer, weigh the pros and cons, and come to a decision--even if that decision is "hell no!" There is a type of moral sacrifice in even debating the subject, regardless if one holds the line on the right outcome.
Two Views of the MBD
Jonathan Martin (behind a TNR firewall) and Terry Smith both comment on the election of White representatives in majority Black districts (MBDs). It's interesting to see how each frames the issue. Mr. Martin focuses on Tennessee's 9th district (vacated by Harold Ford Jr. for his Senate run). A White Jewish Democrat by the name of Steve Cohen (who pledged that, if elected, he would seek to become the first member of the Congressional Black Caucus) just won a heavily divided Democratic primary with 31% of the vote. Mr. Martin focuses on some of the tensions between Jews and Blacks that emerged here, specifically the feeling amongst many Jews that their strong civil rights background gets ignored and that they just get lumped into a generic category of "White" without any distinguishment or qualification. Sometimes, though, the problems go beyond that:
One black candidate publicly pointed out that Cohen's election would mean that "for the first time in thirty years," the city "could be without African American representation." Another paid for a push poll in which recipients were reportedly asked, "Are you more likely to vote for a born-again Christian or a Jew?" A third, just three days before the primary, went even further. Pouncing on Cohen's pledge to join the CBC, longtime Shelby County Commissioner Julian Bolton sneered, "The only reason he wants to join is that he wants to get money for Israel."
It's a mistake to overstate things--Mr. Cohen had strong showings in minority precincts, and just won the endorsement of the black mayors of both Shelby County and Memphis (which is not just a case of "anyone but the GOP." Another member of the locally dynastic Ford family has jumped into the race as an independent). Still, I think that it is important to at least recognize the Jewish cross-cuts Whiteness as an identity, so that when analyzing these races, we at least keep the issue in mind.
Professor Smith's Garvey-esque Black nationalism has always grated me, and this post is no different. He talks about both the Tennessee race, as well as the just concluded race in New York's 11th district, where a Black Democrat narrowly beat out a White Democrat in a tight four-way race. Smith comes down hard on both White politicians who seek to exploit divisions in the Black vote in MBDs, as well as overly ambitious Black politicians who put these seats at risk because they care more about their own advancement than coalescing behind one candidate and thus insuring that the seat remains in Black hands. To the former, he argues "a white candidate whose candidacy in a black district per se illustrates an indifference to black under-representation [cannot] possibly claim to be capable of representing black interests[.]" To the latter, he claims:
The struggles to obtain a black franchise, the lives that were lost, and more specifically the efforts to pass the Voting Rights Act of 1965, were not endeavors to create employment opportunities for black political aspirants. In the words of the Voting Rights Act itself, the goal was to give black voters equal opportunity "to participate in the political process and to elect the representatives of their choice." I think that goal is lost on black candidates when they risk black representation for their own advancement.
I think there is a fair amount of presumption in these post, especially with regards to how much of the votes of the "splinter" Black candidates would have gone to Cohen or David Yassky (the White candidate in New York) had they dropped out. Cohen, at least, ran relatively strong in Black precincts, as noted above, and unlike Yassky, he is longtime denizen of the district and didn't move there to run. Smith also complains that even when Black candidates win in MBD, a White minority there can still act as a moderating influence that prevents them from selecting the precise candidate the community would want. I'm not a fan of "majority of my majority" politics in the first place, and the example he uses (Cynthia McKinney's "struggles") seems to buttress my point: any system that knocks her out of office (especially when it replaces her with another solid Black representative) counts as a feature in my book, not a bug.
But the worst part is at the end, where Professor Smith calls for (in so many words) the creation of Black political machines:
Black voters will ultimately have to take matters into their own hands by forming strong community-based satellite parties (often referred to as political clubs) to conduct informal caucuses among black aspirants as a means of winnowing the field. There's nothing to compel the losers in such a process to abide the results, but there is likewise nothing to prevent the satellite party from punishing the sore loser, both by concentrating resources on its preferred candidate and by visiting electoral and professional retribution on the black candidate who risks a district's loss of black representation for his own personal interests.
Forming machines like this may help keep Black faces in congress, but in it is a virtual recipe for corrupt and unrepresentative politicians who will do nothing but shame the Black community. That's the case of any machine, mind you--but it should set off alarms when you want to bring that type of trouble onto your own community. Certainly, any person who claims to appreciate history, as Smith does, should know that machines are completely antithetical to the goal of "equal opportunity 'to participate in the political process and to elect the representatives of their choice.'"
I understand the desire for diverse representation, and I support the principle--I really do. But there has to be some crossover point where color is subjugated to content. Creating a machine system in Black communities would be catastrophic for that community's interests. Albert Wynn and Sharpe James are machine politicians. Barack Obama and Cory Booker are the politicians one gets when Black voters push politicians who have genuine talent and universal appeal. Who do you think is going to do more for the Black community?
Euston Manifesto
I almost signed this petition, called the Euston Manifesto, sight unseen. I actually did skim it, and it is a great indicator of the type of liberalism that desparately needs to reassert itself. Unapologetic in its stance against racism and oppression, with a clear recognition that unconstrained relativism is a threat to liberal and progressive ideals. Just as importantly, it recognizes that the West has to both see itself and be seen as an ally in the struggle for universal human rights--irrational prejudice and irrational pride are both barriers to creating a more just world.
Via Obsidian Wings, I think this speech by Tory Leader David Cameron perfectly exemplifies the type of commitment embodied in the Euston Manifesto.
I fully appreciate the scale of the threat we face. I believe that the leadership of the United States, supported by Britain, is central to the struggle in which we are engaged.
I believe that the neo-conservatives are right to argue that extending freedom is an essential objective of western foreign policy.
And I agree that western powers should be prepared, in the last resort, to use military force.
We know from history that a country must be ready to defend itself and its allies.
More than that, we and others are justified in using pre-emptive force when an attack on us is being prepared, and when all means of peaceful dissuasion and deterrence have failed.
Furthermore, I believe that we should be prepared to intervene for humanitarian purposes to rescue people from genocide.
Liberal Conservatism
But I believe that in the last five years we have suffered from the absence of two crucial qualities which should always condition foreign policy-making.
Humility, and patience.
These are not warlike words.
They are not so glamorous and exciting as the easy sound-bites we have grown used to in recent years.
But these sound-bites had the failing of all foreign policy designed to fit into a headline.
They were unrealistic and simplistic.
They represented a view which sees only light and darkness in the world - and which believes that one can be turned to the other as quickly as flicking a switch.
I do not see things that way. I am a liberal conservative, rather than a neo-conservative.
Liberal - because I support the aim of spreading freedom and democracy, and support humanitarian intervention.
Conservative - because I recognise the complexities of human nature, and am sceptical of grand schemes to remake the world.
A liberal conservative approach to foreign policy today is based on five propositions.
First, that we should understand fully the threat we face.
Second, that democracy cannot quickly be imposed from outside.
Third, that our strategy needs to go far beyond military action.
Fourth, that we need a new multilateralism to tackle the new global challenges we face.
And fifth, that we must strive to act with moral authority.
Would that American politicians (of any party) could speak of those ideals (much less implement them).
Aharon Barak's legacy as a profoundly Jewish justice on the Israeli Supreme Court is explored here in the Jerusalem Post. Barak's vigorous protection of minority rights is in keeping with the best traditions of Judaism and Jewish arbiters, including Louis Brandeis, Benjamin Cardozo, and Ruth Bader Ginsburg. I reference one of those decisions, dealing with religious freedom in a nation where Synagogue and State are still far too intertwined for my tastes. But in general, his work on the court has been superb and a model for other judges--of all nations--to follow when navigating the difficult currents between religion and state, and liberty and terror.
Unlike Christianity or Islam, Judaism remains dominated by its liberal wing (this isn't to say there aren't committed liberal Christians or Muslims, only that the predominant manifestation of those religions in the public sphere is not particularly liberal). By itself, this is an important message--religious faith is not incompatible with the ideal of building a progressive world. Protection of minority rights is not something stands in opposition to traditional Jewish values, it is the epitome of them.
The irony, of course, is that unlike in nearly every other nation, "protection of minority rights" in Israel does not mean protecting Jews, but protecting other groups (mostly Israeli Arabs or Palestinians, but sometimes also non-Orthodox Jews) from a Jewish majority. Majority rule is always in tension with minority rights, and there is nothing intrinsic to Judaism that should make us expect that tension disappear. I chuckled to read the same accusations leveled against Justice Barak as are thrown at liberal jurists here in the states--"activist", a "dictator", far too interventionist in the affairs of a democracy. Yet Israel--already held to an absurdly high standard by an unsympathetic world community--can only survive and thrive if it always pursues its goal of becoming a "light unto nations." Justice Barak has done much to lead them down that path.
Maryland Votes
I voted in the Maryland primary (via absentee ballot) yesterday. It's a surprisingly spry primary season here, even with Martin O'Malley cruising to the gubernatorial nomination with the withdrawal of Montgomery County Executive Doug Duncan (due to a diagnosis of clinical depression). The senate race pitted Ben Cardin against Kwesi Mfume, two excellent candidates that had me on the fence until the end. The comptroller race was very dramatic, as Maryland political institution Donald Schaefer--whose old age and tendancy to make racist and sexist "gaffes" (to say the least) made him vulnerable--might finally be taken down. And there was plenty of close races down ticket, as well as a surprisingly competitive primary in the 4th district (I live in the 8th district, where Chris Van Hollen is now firmly entrenched).
First, the Senate race. While I liked both candidates, I ended up voting for Ben Cardin. Why? Well, he got the Washington Post endorsement. And faced with two candidates between which I had no preference, that seemed like as good a reason as any to vote off of. I highly respect the Post, and I think both candidates can beat Lt. Gov. Michael Steele in the general.
Yet, after casting my ballot, I was filled with a lot of regret. Why? Well, one of my friends here at Carleton made a last second plea for Mfume, which shook my confidence slightly. But also, it seems rather weak for a supposed progressive, who believes that the Senate should have more Black members, faced with a choice between two candidates who I basically believe are completely equal in every sense, votes for the White male over the Black NAACP leader. I mean, isn't this a bit of a litmus test? Sure, I'd vote for Barack Obama over nearly any other politician in the country (hell, I'd vote for him over Gandhi), but all that says is that I am willing to vote for the perfect Black candidate. A Black candidate should not have to be Obama-esque to win White voters. So this was distressing to me.
However, it looks like Cardin will win (without my help--my absentee ballot probably hasn't even arrived in the mail yet) the nomination. There has been chatter that nominating Cardin could drive a large portion of Black voters (a key Democratic base) into Steele's camp, as Steele is Black and the Mfume's loss could be seen as a repudiation of a community that has already begun to murmer discontent at being taken for granted by the state party. Nevertheless, I doubt this is so. Shavar Jefferies makes a great point about politicians who "must really think Black folk are stupid." Make a few references to Jim Crow, nominate a couple token Black candidates, and they expect the Black community to come rushing to them (this isn't only a GOP problem, by the way). There is a lot of disrespect accorded to Black voters, and this is only the tip of the iceberg.
In any event, it is my experience that Maryland as a whole has an unusually politically savvy polity. Turn out was apparently massive, which is always a good sign. I have no doubt that Steele is out of line with the majority of Black voters in the Old Line State, and will receive votes accordingly. If he can attract them on the basis of his positions or values, all power to him. But I don't expect Maryland Blacks to rush blindly into his arms, and it's quite patronizing to suggest otherwise.
Meanwhile, UMD Law Professor Sherilynn Ifill reports on the severe problems in MD voting booths that delayed the polls (and now the results) for hours. The only good thing you can say about it is that the problems seemed evenly distributed across White and Black areas, which is progress of a sort (I guess). It's not all that much, because any delay can force many poor Black voters to abandon poll lines (as they have to get work). There is no good excuse to not make Election Day a federal holiday, and regular primaries a state holiday. Seriously--this is an embarassement.
Aharon Barak, a giant in Israeli legal circles, is retiring from his position as Chief Justice of the Israeli Supreme Court. In his role there, he has played an intricate role in strengthening the protections for Israeli minority groups (as well as Palestinians), with key oversight of the separation barrier to attempt to minimize the damage it does to Palestinian civilian life. He will be sorely missed, but it appears his successor plans to follow in much the same direction, which is heartening news.
In one of his final decisions, Barak led the court in holding that religious courts could not annul marriages between a Jewish and non-Jewish partner. Israel's mixture of religious courts into family law stem from rules dating back to the Ottoman Empire's control over the region, inheirited by the British colonial mandate and then rolled over to Israel when it became independent. It currently stays do to joint support by religious Jews and Muslims in the Knesset, who want to maintain this institutional prerogative. Even still, this mix of Synagogue (/Mosque/Church) and State is an embarassement to a free country, and I am glad that it's grip has been weakened considerably by this ruling.
I believe in Israel as a Jewish state, but not as a theocratic state. Remember that non-Orthodox Jews (such as myself) aren't considered full religious Jews in Israel either. So I have a stake in ending this arbitrary discrimination as well. Fortunately, the trend lines appear to be moving in my direction. But pressure has to continue on this front.
In addition to my posting duties here (and rest assured, The Debate Link remains my home blog), I have joined First Movers, a blog for future legal scholars hosted by Jim Chen of Jurisdynamics (and Minnesota law school).
You can find my introductory post here. I hope you find me and my fellow aspiring scholars to be interesting and enlightening.
The Anbar Question
So the story racing around the blogosphere is a report by the Marine Corps chief of intelligence that we've lost the Anbar province. Not that we're losing, not that the situation is dire, but we've lost, plain and simple. We were defeated. There is nothing more we can do there.
That's the central question, isn't it? I have not signed on to a troop withdrawal yet, primarily because I agree with Tom Friedman when he says that "we've got to find a way to salvage something out of Iraq." Not just for the Iraqi's sake, but for our sake too. Leaving that country in a state of anarchic civil war would be morally catastrophic, and would permanently damage America's standing in the eyes of the world (on top of the beating we've already taken on that score). Defeat in this war would do indescribable damage to any American effort to lead on any number of pressing international issues: from loose nukes, to brutal tyrants in Iran and North Korea, to the Israeli/Arab conflict.
But reality has a way of intruding on what "we've got to" do, and at some point we have to objectively assess whether or not Iraq is beyond our help. Call me a "defeat-o-crat" if you want, but eventually we've got to ask ourselves whether there is any hope for salvation. Have we reached that point yet? I don't know. But this assessment of Anbar certainly has to raise the question.
Vintage Al Gore
Kevin Drum reprints a classic Al Gore speech that is eerily prescient in its evalution of the threats we face, and its cautions of where we might go astray. A taste:
As important as identifying Iraq, Iran and North Korea for what they are, we must be equally bold in identifying other evils that confront us. For there is another Axis of Evil in the world: poverty and ignorance; disease and environmental disorder; corruption and political oppression. We may well put down terror in its present manifestations. But if we do not attend to the larger fundamentals as well, then the ground is fertile and has been seeded for the next generation of those born to hate us, who will hold these things up before the world's poor and dispossessed, and say that all these things are in our image, and rekindle the war we are now hoping to snuff out.
As Mr. Drum comments:
Liberals may be uncomfortable fitting his words into their current-day view of Gore as anti-war prophet; conservatives will be uncomfortable seeing Gore as someone plainly more dedicated to waging a real fight against terrorism than the guy they've been supporting for the past five years. And all of us would do well to remember what it's like to listen to someone who has at least a modest command of the ways and means of statecraft.
Looking Behind The Mirror
Steve Benen points me to a very heartening story. Gary Christenot, writing for the far-right WorldNetDaily spent some time in an area of Hawaii dominated by the Shinto and Buddhist faiths. Thus, all the prayers at school games and what not stemmed from those traditions. Experiencing life as a minority for the first time, he realized the severe discomfort even being forced to stand and observe another faith's prayer service can cause in a public environment. It's quite powerful stuff, and demonstrates quite powerfully the dilemma Justice Kennedy so ably noted in Lee v. Weisman: students who attend official ceremonies that include prayers from a background they are not a part of are forced to "participate or protest." As Christenot writes:
We often advocate the practice of Judeo-Christian rituals in America's public schools by hiding behind the excuse that they are voluntary and any student who doesn't wish to participate can simply remained seated and silent. Oh that this were true. But if I, as a mature adult, would be so confounded and uncomfortable when faced with the decision of observing and standing on my own religious principals or run the risk of offending the majority crowd, I can only imagine what thoughts and confusion must run through the head of the typical child or teenager, for whom peer acceptance is one of the highest ideals.
This is a classic demonstration of why diversity is important and why it is crucial to listen to the voices and claims of minority groups. It took an actual lived experience for Mr. Christenot to realize the damage school prayer can cause to those of minority faiths. Presumably, though, prior to this trip he was at least aware that many members of minority faiths found school prayer to be objectionable on precisely the grounds he identified, and chose to disregard their claims. Most Christians will not get the chance to live in rural Hawaii and duplicate Mr. Christenot's experience. So the best we can hope for is to try and enhance the diversity of voices and stories that religious Christians hear, so that they can imagine our experiences, even if they never actually get the opportunity to step in our shoes.
See also: The Wall of Separation