Wednesday, September 26, 2007
A trio of topics have come up over the last few years, all draped in the flag and country and "giving back". The underlying principles behind each differs quite a lot, from partisanship to misplaced patriotism. I'll start with the latter and work my way to the former.
1) Several politicians have proposed that young Americans donate a significant amount of their time to some form of civic or charitable cause. As a right-winger I'm opposed to large amounts of government-mandated charity, so immediately my defenses are up even though at age 26 I'm not likely to be effected by it (most plans call for 18-25 year olds). One of the key things that makes charity meaningful and rewarding is that it's voluntary. You do better by yourself in doing better by others. What's really irked me about the issue is the number of times I've seen it brought up as a who-could-object-to-this common-sense proposal.
Mandatory service would involve a lot more than just teenagers picking up trash on the side of a road. You're talking about monitoring, enforcing, punishing, certifying what does and doesn't count, and who knows what else. If it's for only a short period of time then the labor won't accomplish nearly enough to make up for the cost and hassle of operating the program. If it's for a long period of time then you're talking about what amounts to slave labor and seriously disrupting lives. In either case it's not going to foster 'civic responsibility' as much as civic unrest. It's one thing to draft men at a time of vital war, it's another to demand busywork because of a generic "young people today aren't nice" mentality.
2) I've seen a few people on several locations of the political rainbow call for a return of the draft. Some want it because they think it would reduce militarism. I think that wanting to do a draft for political reasons is indefensible, and if you can't raise enough anti-war protests that's your own problem. Politicians shouldn't mess with the military any more than they already do (see: questionable weapons programs, military base decisions, Donald Rumsfeld). Wanting a draft because "we're running out of soldiers" is sheer laziness.
We don't pay soldiers even a fraction of what they deserve, and the fact that so many are willing to serve at current pay scales is a testament to the character of our military. Considering that they have to leave home, give up many basic freedoms, are on the job 24/7 and risk their lives, and that they get paid less than many/most policemen, it's amazing that anyone signs up. If the military was seriously on the verge of needing more men, while at the same time taking up a much smaller % of GDP than it did even during many recent times of peace, to me the logical first step would be to increase pay and see if that would get more recruits. Some people might want to serve but couldn't really afford to right now. Others might be indifferent to serving now but go for the money. The prospect of a 'mercenary' army might not appeal to some of you, but to me in a situation like we're in today it's a lot more morally defensible than forced service. The bottom line is that the military does compete with the rest of the economy for manpower, and if it needs more then it should first be willing to at least try paying more for it. Speaking of paying more, I'd like to wrap this up by going after one of the most lackluster talking points of the last five years.
3) "There isn't enough sacrificing for the Iraq war, just look at what people went through in WW2". There are a couple variations on this. I have yet to see one where the point was "you should donate more time and money to veterans groups". The point is usually "we can't have tax cuts and a war and conservatives should give up one or another". This is what's called a false dilemma. Take two things that are marginally connected at best (war funding and taxation) and say there one or the other must be sacrificed. The problem with this line of thinking is that it assumes far too many things, but perhaps most importantly it assumes that if a conservative got what he wanted (war and tax cuts) there would be an unsustainable budget deficit. Thing is, if you ask any halfway respectable conservative he'll come up with several hundred billion dollars worth of spending to cut and thus balance the budget. I won't even go into the whole "sometimes tax cuts lead to more/not much less revenue" talking point because that's a whole 'nother debate.
I'm annoyed so much by the talking point because it's usually employed in a very dishonest, partisan way, and it also tries to use an end-around on the tax debate (since war is more serious than taxes). It's a "gotcha". I hate a "gotcha" debate mindset. Even if you 'win' a debate like that it's going to do more to cause discord rather than change minds.
So in conclusion: charity is awesome but it should come from the heart, pay the troops more, and the federal budget is big enough for there to be some leeway on what people want without making assumptions.
On a final note, thanks for the positive feedback so far, especially from those of you who don't agree with all of it.
Thursday, September 20, 2007
Every Monday I spend a big hunk of time playing catch-up on RealClearPolitics' endless array of links. Since I didn't get to it on Monday the 10th, I had four days worth of material to read on the 11th. On a typical Monday I'll come across 2-5 irritating columns, but on the 11th it was a full set of 10, and all on the same subject. The war.
As I've said many times and will repeat again, I don't hold any ill will towards those who were opposed to the war at the start, and I'm not angry at those who want to end it now. It's an absolute muddle. In any given three month period there's some new really bad event or trend to show how far Iraq is from anything remotely considered 'mission accomplished'. That said, I am touchy on the subject.
My church has a very large military contingent for its size, and probably the bravest person my hometown produced in my lifetime was fortunate to avoid being killed in Ramadi during the height of violence there. I don't take the mission lightly, and I hate it when people either for or against the war debate it like a partisan political fight. I've gone over the administration's inability to make a decent case in the past, and I think part of that is the Rove-created media approach which works wonders when things are simple but falls apart when it gets hairy. Other right-wing pundits (ie. Limbaugh) drive me crazy by explaining the war exclusively through a Republican vs Democrat prism or oversimplifying.
Before jumping into my original plan of lambasting war critics, let me point out two right-wing memes I dislike. First is "they're fighting for our freedom". In Iraq? I'm as hawkish as it gets and even I'm not willing to step out on that limb. I view Iraq as a US obligation and a vital security interest, but it's not like World War II where the fate of the free world directly hung in the balance. Another is the "if we leave then al Qaeda will take over Iraq" talking point, one that I've seen bandied about from far too many commentators. Even at its most powerful, al Qaeda and its related jihadi groups were never a threat to conquer Baghdad. When they bombed the golden mosque, the Shiite militias rose up and expelled Sunnis wholesale from many neighborhoods in the capital (and probably elsewhere). Al Qaeda never had a chance to defeat the raw manpower of the Shiites. The worst case scenario has always been a bigger, badder version of the sectarian violence witnessed after the Samarra bombing. Both of those talking points are simplistic and appeal to base emotions rather than being concerned about accuracy. And speaking of lacking accuracy...
Simon Jenkins spent quite a lot of time running through the usual criticisms, which most anyone can repeat by heart. That he classifies all Sunni chieftains as "Saddamist" is irritating but it's minor. What makes me target this column is the part where he does the most original thinking, that is, his call for the US to emulate the UK's withdrawal plan. In essence, cut a deal to empower local militias who will keep order.
This just might work in Basra, I don't know enough about that area of Iraq to argue. What little I do know about Basra is that there's no way to apply any lessons from there to the rest of Iraq. You don't have the Sunni/Shia tensions, and you don't have to worry about insurgents using Basra as a base of operations. The flashy, foreign-led section of the Sunni insurgency has actively targeted other provinces from wherever it's headquartered at the time. Sunnis in Anbar rose up against al Qaeda's Iraq franchise but still oppose the government or its current leaders. Rival Shiite groups might bicker and occasionally shoot at each other but they do so in order to control, not fight, the government. Getting two Shiite groups to leave each other alone, which is an uneasy truce to begin with, is an apple. Getting Sunnis and Shiites to leave each other alone isn't even an orange. Far more complicated, far more likely to break down into violence. Jenkins isn't a "so what if a genocidal civil war breaks out" type, he agrees that the US has a duty to the Iraqi people. It's puzzling to me why he thinks that such a facile solution as the UK/Basra model (which is still wholly unproven) is the way to uphold that duty.
Simon and Takeyh spin things a bit too hard. All Shia demand more vengeance on Sunnis, all Sunnis demand majority power? That's reductionism almost to the point of being racist. Saying that the surge hasn't had a measurable impact on insurgent activity is flat-out wrong, since it not only stopped the steady uptick in violence but also halved it. The "all it did was move insurgents elsewhere" talking point proves that they aren't looking seriously at the differences between the surge and other past offensives. Before we couldn't even get al Qaeda et al to leave Anbar, which was by far the easiest terrain for them. Now they're having to go into places with significant Shia populations, significant Iraqi military positions, or both. Clear/build/hold was the mantra since late 2004 but it wasn't a reality until now, as we're finally helping local populations get the confidence they need to fight back and keep the radicals from returning. Last but not least they trot out another drastic oversimplification, that the US being friendly towards Sunnis will automatically turn the Shia population against us. I have no doubt that some Shiite leaders are upset but their implication is that we should have snubbed the Sunnis forever and that's about as idiotic a prescription for Iraq as I can think of.
Scheuer provides this gem:
Bin Laden and his boys sit unmolested on the Pakistan-Afghanistan border, planning more attacks in America because our bipartisan elite long ago delegated America's protection to a beleaguered Third World dictator.
Unmolested? That would be news to the thousands of incredibly elite soldiers in the area who kill Taliban by the hundreds on a regular basis. Maybe he means that they're unmolested in Pakistan. Okay, I'll give him that. And yes we rely on Third World dictator (Musharraf). The alternative is what, exactly? Pakistan has nukes and their major political figures are at least two of a very nasty subset (corrupt, incompetent, dictatorial, jihadist). Scheuer prides himself on being an expert on the region but he completely glosses over the very things which make the Afghanistan situation difficult. It would be like me ignoring demography when talking about future entitlement obligation. (I'll be coming back to that one soon enough)
Kevin Drum writes a staggeringly bad piece. I'm not sure where to begin. "The surge has produced only tiny gains in a few highly localized areas and has no chance of replicating those successes on a wide scale" is a whopper; 50%+ gains have been made in several of the most violent provinces and Baghdad neighborhoods, which in turn account for 90% of violence in Iraq. Saying that there is "no chance" of replicating the Anbar model dismisses the hard-earned people skills of our troops, and while I'm not going to pull a Jenkins and say that it's absolutely going to work it has worked everywhere the surge has gone. He goes on to wave away a post-withdrawal bloodbath by saying it would be bloody but short, and because he waves away hard-fought gains by our troops that makes it easy for him to reach his conclusion in 8 paragraphs.
The Nation thinks that if the US pulls out, the UN and the Arab League will be able to bring peace. I'm not going to dignify that with a response.
Gary Kamiya trips right out of the gate:
It's no surprise that Gen. David Petraeus' "anxiously awaited" evaluation of the war is to be given on the 10th and 11th of September. The not-so-subliminal message: We must do what Bush and Petraeus say or risk another 9/11.
Congress scheduled the hearings. That's just sloppy. He then goes on to say that the war on terror is "a palatable cover for vengeance and racism" and "the massacre in Haditha on a global scale", which is especially interesting because as the facts came out it became clear that the early 'Haditha massacre' narrative was incorrect and already most of the soldiers involved have been cleared. I'm not going to put more energy into this because it's primarily partisan bomb-throwing of the kind I so detest.
BUT WAIT, THERE'S MORE! The war isn't the only thing to generate bad columns!
Anthony Zinni is a heavy-hitter in foreign policy ranks, which makes it all the more silly for him to hand-wave his way around the fact that Musharraf is almost the worst possible "he's an SOB but he's our SOB" in that he's a dictator who can't secure his country against US enemies. As I mentioned earlier it's not as though we have better options per se, but Zinni takes things too far. Bush has handled Musharraf with kid gloves for 6 years now, we've hardly been unkind.
Richard Reeves goes after Fred Thompson with a huge logical leap. He points out that Reagan didn't really fight the growth in the size of government (true) and that Bush II has backed a lot of new spending (also true). Here's the conclusion of the column.
As for Thompson, it is hard to understand what the former senator really believes about the big government he wants to run. In his announcement speech he contradicts himself, saying:
"When I went to the Senate, I wanted to balance the budget, cut taxes, reform welfare, require Congress to live under the laws that they had imposed on others, and I wanted to begin the modernizing of our military ...
"Now these problems have only grown worse since that time. ... On our present course, deficit financing will saddle future generations with enormous taxes, jeopardize our economy and endanger our retirement programs. ... This path is economically unsustainable."
That sounds like he wants to rescue the nation from his party and his party's leader -- because all the terrible things he's talking about happened while George Bush and other Republicans were running the country. In the end, Thompson is telling us that, like Bush, he is a big-government conservative spending his children's and grandchildren's money.
How is that a contradiction? How is that proof that Fred wants a bigger government? If you're going to do partisan attacks at least make it easy to follow. Fred is talking about governing with conservative ideals, Reagan and Dubya and the GOP congress often didn't, soooooo... Fred's lying? Wuh?
Last but not least it's John Tammy to hand-wave away the coming entitlement crunch. I have yet to see an economist, even with the most rose-colored glasses imaginable, provide figures to show how the US/EU/Japan/Russia/China Axis of Aging will be able to cope with the growing number of retirees without some combination of unsustainable taxes or massive benefit cuts or both. Tammy trots out productivity gains, without even trying to show how that will close the gap. He trots out globalization as though people in Bombay will be paying taxes to Washington DC or Rome. He even has the audacity to say that we'll be better off in the long run because raising children is expensive. Because workers are amazingly productive, just not productive enough to offset the cost of being born. Or something. John's logic is on par with the reviving elbow, only in one case it's pro wrestling and in the other it's economics. I think Tammy should be held to a higher standard than Hulk Hogan.
See what I mean about wanting to do the expand/contract thing? My gosh.
Wednesday, September 19, 2007
I don't think Paul Campos of Rocky Mountain News is a troll, which in a way is worse. For instance, this from yesterday. He writes about football coaches and extensively quotes "my friend JJ" to help prove that Notre Dame's treatment of Charlie Weis is an example of racism. Not that it was, say, a well-intentioned mistake. Oh no. Let's not go into the merits or demerits of giving Weis the job and a big contract. Let's just point out that he's white and the last coach was black. Case closed.
For that he gets published, much less paid? But wait there's more!
Steroids are okay! Let's use an obviously false hypothetical to prove it! Or how about Vick's plight is Orwellian and we're only outraged because poor people do it! Don't care about sports? Never fear, he's a veritable buffet of buffoonery. Nobody has proven that obesity has negative health effects! That's a real keeper, because he takes a perfectly reasonable argument (American obesity contributes to high healthcare costs), strawmans it, and then does a bad job of attacking the strawman. I want to go into a little more detail on this because it's beyond me how a professional writer would turn out something like this for mass consumption.
The logic of Huckabee's position goes something like this: People get sick because they're fat. If they became thin, they wouldn't get sick, or at least not nearly so often.
The logic isn't that thin people won't get sick, nobody says that, but Campos just has to throw that in to try and smear his opposition. And, mind you, the opposition is people who think Americans are too fat.
France spends half as much per person on health care as we do but has a much healthier populace, despite higher rates of smoking and drinking, and a high-fat diet that horrifies our puritanical public health authorities, who define "healthy" food as food people eat only out of a sense of nutritional obligation.
Campos thinks this is a good shot at Huckabee, or else he wouldn't include it. But did Huckabee say that all foods with fat in them are bad? No. He's talking about obesity. A diet can have fat in it and not lead to obesity, and hey, France is proof! Smaller portions, healthier fats, it all works out. Pulling the France card is a non-sequitur.
It's no exaggeration to say that behind statements like Huckabee's lurks the idea that, when people get sick, it's their own fault. If people didn't believe this, then the arguments of the defenders of the health care status quo would be recognized for what they are: attempts to defend the indefensible.
Except that obesity is a choice in the vast majority of cases and those resulting diseases are, in fact, the sick person's fault? The obesity of Americans, myself included, is a moral and cultural failure which is incredibly expensive and degrades the quality of life. Campos is afraid that going after obesity is a smokescreen for not having universal healthcare. I can vaguely sympathize, but Campos doesn't focus on removing the smokescreen. He focuses on trying to minimize the perceived harm of obesity, just like he tried to minimize the harm that Bonds and Vick caused their sports.
For several years now, I've been documenting and describing the obsession the American public health establishment has with the absurd notion that the biggest health crisis facing the nation is the increasing weight of the populace and the even crazier idea that trying to make Americans thinner represents a sensible use of scarce public health dollars.
Do I even need to bother going after this? How is obesity not the biggest problem? How is making Americans thinner an unworthy goal? How are public health dollars 'scarce'?! Campos continues and concludes:
There's actually little correlation between weight and health except at real extremes. There's almost literally no evidence that weight loss in and of itself improves health. And we don't know how to make people thin.
It's difficult to express how exasperating it is to deal with the utterly irrational denial this last point elicits. A new meta-analysis of 31 long-term weight-loss studies by UCLA psychologist Traci Mann and her colleagues drives the point home with overwhelming force: When people try to do what Huckabee says they should do, to lose weight, the vast majority of them don't achieve any long-term weight loss. His response to this, of course, would be that they need to try harder.
Suppose Mike Huckabee were to give a lecture to 100 children of poor, inner-city single mothers, in which he told them that by staying in school and working hard they could escape poverty, and 20 years later he discovered that 95 of the kids were still poor. Would he still believe that telling such children to "try harder" constitutes an adequate response to the problem of inner-city poverty?
Wait, don't answer that.
Most people who try to lose weight fail. Campos takes that fact, one which I don't think many people would deny, and uses it to prove that there's no benefit to be derived from fighting obesity. Campos says there's no correlation except at the extremes. I think he hasn't been to a chain restaurant or a mall or a ballgame lately because there are a LOT of Americans at the 'extreme' end of obesity. Last year I went to Japan and weighed about 195 pounds, when I should weigh around 160. That's a goodly amount of flab, yet walking down Main Street USA I wouldn't come close to standing out. Yet in Japan I was easily in the top 3% of the fattest people in a given crowd. Walk into a crowded Applebee's and you'll see more 250+ pound lardbuckets than you would from walking the teeming streets of Tokyo for a month. We ARE the extreme! Campos is trying to obfuscate reality to score political points against a C-level Republican presidential candidate, and I just can't grasp why he feels the need to do so.
Then he tosses out a really sloppy hypothetical cheap-shot, and I hope that those of you reading this from the leftward end of the political spectrum can see what a poor example of argumentation this is.
And one more for the road: if conservatives agree with John Roberts court decisions then the decisions must be political! Which is a great way to dismiss the possibility that there is legal merit behind them, or that they could result from a steady and reasonable but non-partisan judicial philosophy.
Campos is a hack's hack and it's a wonder he gets to deposit money into his bank account for such efforts.
Tuesday, September 18, 2007
Two weeks ago I played Risk for the first time in about 15 years with a group of friends. Though I only came in 3rd of 5, it sparked something in me. Here was a game I could control (unlike fantasy football), it didn't force me to dwell on negative things (like the puropulse), and if I could find the right website it wouldn't be time-intensive at all. I didn't find one site like that; I found three.
Conquer Club, Landgrab and Grand Strategy all give you the ability to test your strategic thinking online for free. Give them a try (well not so much landgrab) and maybe you'll stumble across me.
Friday, September 14, 2007
I realize I'm to the right of 80, maybe 90 percent of the country. I accept that I can't possibly get all that I want. What gets me is that I can't vote for someone and expect to use the campaign platform as an indicator of future policies. Dubya came in against farm subsidies and yet didn't blink at signing record increases that went primarily to wealthy landowners and connected corporations. Republicans voted into congress to fight things like wasteful spending were going hog-wild within four years. Throw in the steady trickle of sexual and financial scandals on every level of government and it's easy to be jaded.
In 2004 I was more anti-Kerry than pro-Bush. I see that many people who were that way at the time are now more anti-Bush and want their votes back. Not me. However, I'm much less pro-Bush now than I was then, which has caused me to write a lot less about politics and current events over the last two years even though I read much more about both. The best example is the war.
In 2004, the Sunni insurgency started up. I figured they would be crushed quickly, and that we wouldn't tolerate any safehavens for Ba'athists or foreign terrorists. As it turns out, during the 2004 campaign Bush knew that there were large sections of the country with no coalition presence whatsoever and he never made the case for additional troops. I'd read stories from the front where US troops were winning battles and winning over civilians, and I figured that was happening across the nation and thus victory was around the corner. However, that progress was only made where soldiers were, which in turn was far too small a portion of the country.
I can understand being fed up with the Iraqis today, saying that we've done enough and that we don't need to shed any more blood for them. However, in 2004 the Iraqis hadn't been given half a chance and we were responsible for at least trying to secure the country as best we were able to. Looking at how much the surge has accomplished in the last three months, it's obvious that 2004 was not "as best we were able to". Neither was 2005 or 2006. But what's more, in 2004 we had far more soldiers who hadn't spent the maximum amount of time on the front the way there is today. A surge in 2004 could have used more soldiers, it wouldn't have needed even a fraction as much in targeting Shia militants, and it would have trampled the Sunni insurgency long before the 2006 mosque bombing that sent violence levels through the roof.
A quality leader in the White House would never half-ass a war. Doing so put more of our troops in danger over the long haul, and I can guarantee it was done in an effort to maintain Bush's poll numbers. A leader would have success and doing good by the troops as the top goal, not politics. I firmly believe the rhetoric Bush uses about the importance of Iraq in the war on terror and the world overall, but Bush doesn't act as if HE believes it. Let me give you some examples.
If he really believed it, he would put public pressure on Saudi Arabia to stop the flow of arms and men through Syria and into Iraq. Saudi state-sponsored religious leaders and media have supported the insurgency from the start. American troops put their lives on the line for the sake of regional security; the least the Sauds can do is get out of the way.
If he really believed it, he would gather as much data as possible about Syrian and Iranian complicity in the violence and mount a diplomatic campaign to lobby for sanctions. Whatever behind-the-scenes assurances would be needed that the campaign was not a run-up to more wars, he'd have to give them. Instead there hasn't been any sign that they're doing more than just leaks to the press about suspect weapons and supply trails. If Iran is really providing the IEDs that kill troops by the dozen every month, why not pressure Japan to buy their oil elsewhere? Why not pressure France and Germany to have their large (and often state-tied) corporations pull out of Tehran? The administration has no qualms about levelling accusations but nobody puts much stock into them because they don't take the obvious next step and try to hit back at Syria and Iran over their actions in Iraq. Compare to what we've done to Syria over Lebanon and Iran over the nuclear issue.
If Bush really believed in the importance of Iraq and the war on terror he would have called for an expansion of the military long ago. Don't support the surge? It doesn't matter because in a few months we won't have enough soldiers for it unless we extend tours of duty to an absurd length! It's not as though there's no money for it, I mean, we have enough to fill the coffers of Archer Daniels Midland and build bridges for fifty people in Alaska and support money pits like corn-based ethanol (other crops make better fuel). He could have made the case, beaten up congressional Republicans, and tried to make sure we have enough manpower to win in Iraq and more effectively hold Afghanistan. Would it have been risky? Yes. But fully acknowledging the difficulties and the cost involved in winning would have the benefit of being the truth and war supporters like me would have backed him twice as much.
Talking about preventing another 9/11 while relying on a 'light footprint' in Iraq and a shrunken force in Afghanistan isn't leadership. It's partisan cowardice. I'm glad that the surge finally happened but the delay has cost tens of thousands of lives and hundreds of billions of dollars, and there's no guarantee we'll even succeed in the end. The insecurity of Iraq in 2004, 2005 and 2006 helped shape the dysfunctional politics in Baghdad today and it might be beyond repair at this point.
You might be against the US presence in Iraq. This post isn't an attempt to justify that. Rather, I'm trying to say that the Bush 2 administration has been an object lesson in how not to govern as a hawk. Poor leadership has meant that those who opposed the invasion are almost entirely opposed to the occupation, and many who supported the invasion have either turned or are now demoralized, which is bad politics. Poor leadership also let a bad situation get much, much worse.
I'm hoping for better from the 2008 candidates but I'm keeping my expectations low.
Thursday, September 13, 2007
There are times when I read a column from the left and nod my head. It can be from outright agreement or just "that's a fair argument", and reading such columns has given me a lot of respect for my ideological opponents. Many writers have enough intellectual honesty and intelligence to overcome my initial contrarianism. However, not everyone is so skilled.
On most days I stumble upon a sentence, or a paragraph, or a piece of writing whose contents grate on me. Whether it's bad information, faulty reasoning or a worn-out talking point, it drives me crazy that I have no means of response. Or I should say it drove me crazy, because now I have this blog to vent my spleen onto for literally TENS of people to read. So here's an incredibly long example:
Cass R. Sunstein is complaining that the court is too far to the right. Considering that Kennedy is the center, the court can be fairly called right-leaning, so it makes sense for a Prospect writer to be concerned. However rather than making a straightforward, strong case that it will take a couple new nominations by a Democrat to rectify the situation, Cass grasps at every straw.
In 1980, John Paul Stevens stood at the center of the Supreme Court. Today, he is its most left-wing member -- and he hasn't changed.
That's the tag line, and it tells you exactly where things are headed. 1980 is the benchmark that courts should be judged by, and Stevens ought to be the center. Now, Cass should desire that the court move that far to the left, but the concern isn't based on pure ideological wishing. Look at the title: "The Myth of the Balanced Court". Meaning that the goal is balance, with a few clear leftists and a few clear rightists and one or more centrists to balance things out. Me, I'd prefer a court with Roberts at the center, but I can't expect Cass to feel that way. Cass however has set the table thusly: Stevens was the center and that's how to achieve a balanced court. Not a progressive court, a balanced court.
The body of the column starts by establishing a fair point: that the court is tilted to the right and that the media should report it as such. I'd say that there isn't really a problem because I hear far more of "Kennedy is the center" than I do "Kennedy is a centrist", but I won't quibble over this point. Now we get to the red meat.
Cautious on the lower courts, Ginsburg and Breyer were prescreened by and fully acceptable to Republicans on the Senate Judiciary Committee. Both their votes and their opinions have been far more moderate than those of the great liberal visionaries of the Court's past, such as William O. Douglas and William Brennan. Souter is a Republican appointee. His approach to constitutional law is in the general mold of Justice John Harlan, the great conservative dissenter on the Warren Court. Stevens, also a Republican appointee, was a maverick on the Burger Court, far to the right of three of its members. Contrary to what you hear, Stevens hasn't much changed in the last decades.
'Cautious on lower courts' is meaningless. Judges are often more reserved before reaching the top, especially when they know they'll have to be screened by partisans. As for whether they're left or right, Sunstein notes that they're less-left than several past judges. That doesn't prove anything either as far as whether they should be considered centrists. Souter was nominated by Bush 1, which is meaningless in determining where he stands. His approach being theoretically in the mold of Harlan doesn't mean it actually is. He was nominated in the hopes of getting someone like Harlan; very few court watchers would say he fulfilled those hopes. Stevens being a maverick on the Burger court doesn't disprove that he's currently a liberal, and "hasn't changed that much" is an admission that he has shifted at least somewhat to the left.
In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative.
So you've got four solid leftists, Powell and Stewart were centrists, Stevens is acknowledged as to the left of them in 1980 and has moved further left since, and Burner and Rehnquist can be considered on the right. That's a 4-3-2 or 5-2-2 split leaning to the left. The only way I can imagine that being considered conservative is if it was compared to past courts rather than actual, you know, conservatism. By calling the 1980 court conservative, when even a tiny bit of knowledge or inquiry shows otherwise, Sunstein is trying to say that it should be the model of a balanced court. There's a debate to be had as to whether 1980 centerpoint Stevens was more to the left than 2007 centerpoint Kennedy is to the right, but the fact is, Stevens was leftist at the time and thus the court was leftist as well.
Again, Sunstein could have handily proven an easy point and focused on how the media portrays today's court and Kennedy. Instead, the coverage is assumed to be biased and the 1980 court being conservative, which is a reach, quickly becomes an assumption as well.
But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.
So he goes on an extended mental exercise of showing how far the 2007 court is to the right of the 1980 court. Hey, I won't disagree that the court has shifted to the right. The problem is that "1980 = conservative court" is the central premise. It would take a much longer, and much more detailed column to even begin to prove that, if it's possible to begin with. Sunstein's hand is tipped even more in the next section.
The consequences are huge, both for constitutional law and for public debate. When Kennedy, rather than Stevens, looks like the moderate, people's sense of constitutional possibilities, and of what counts as sensible or, instead, extreme and unthinkable, shift dramatically. Not long ago, Marshall and Brennan served as the Court's visionaries, offering a large-scale sense of where constitutional law should move. They thought it preposterous that affirmative action should be treated the same as old-fashioned racial discrimination, and their views on that question put real pressure on the Court's center. They wrote in clear, bold strokes against decisions to invalidate campaign-finance restrictions and to restrict access to federal court; their opinions pressed the Court toward moderation on those subjects.
So he's essentially saying that Kennedy is 'extreme and unthinkable'. Marshall and Brennan, who were the leftmost of the 1980 court, moved the court in a moderate direction. Opposition to affirmative action is no longer simply a different point of view, but an untenable one. Sunstein's entire column is supposed to be about how to get to a moderate court, but now it's clear that a progressive court is the true goal. I wouldn't have a problem with someone writing about wanting a progressive court, especially in the Prospect, but he disguises it as wanting moderation.
The results of the shift have been momentous. Where once it seemed clear that the Court would generally accept congressional judgments in favor of affirmative-action programs, the Court has now made clear that such judgments will be subject to "strict scrutiny" (and generally struck down).
Or in other words, he wants a default leftist court and now it isn't. Even questioning affirmative action is intolerable. He doesn't want a centrist court, he wants a progressive rubber-stamp. That's poor argumentation for a professor of law. This same kind of argument is then extended to other issues: the court isn't on the left so it isn't balanced. His own words disprove his assertion that the 1980 court was conservative, because he wants a court that debates how progressive to be rather than whether or not to be progressive.
The upshot of all these shifts is that what was once on the extreme right is now merely conservative. What was once conservative is now centrist. What was centrist is now left wing. What was once on the left no longer exists.
This is only true if you're basing it on where the court was at and before 1980, not if you base it on overall political and legal thought in America. Is there nobody as far to the left as Marshall on today's court? Probably. Does that mean nobody on the court today is leftist? Hardly. An easy way to tell is to see how often progressives complain about decisions which Stevens or Ginsburg or Breyer are in the majority, and compare it to how many conservatives complain about decisions where Kennedy is in the majority. I've seen lots of the latter and very little of the former. If Ginsburg was merely centrist then she'd be to the right of progressives 50% of the time and would regularly draw fire from them.
Cass goes for far too much early on and never stops reaching. That would be tolerable in a standard partisan cheerleader, but I'd hope for more from someone of his seniority and experience in the field of law.