Begging The Question

Thursday, May 04, 2006

Maybe This Explains Why Fitz-Hume Left
This is another post that started out half-baked in the junk drawer, but expanded beyond the confines of that post and earned an entry of its own.

I was wondering why no one resigns in protest anymore. I was reading Mark Bowden's great "Atlantic" article about Desert One, the failed attempt to rescue the hostages in Iran in 1980. Secretary of State Cyrus Vance resigned in protest of President Carter's decision to approve the rescue attempt. Then, I was reading Barry Werth's 31 Days, about the period between President Nixon's resignation and President Ford's pardon of his predecessor. Press Secretary Jerry terHorst resigned in protest of the pardon decision.

I've found a few more recent examples. Navy Secretary James Webb resigned in protest of President Reagan's cuts to the Navy budget. Weapons inspector Scott Ritter resigned over President Clinton's Iraq policy, and I think there were some resignations over his Bosnia policy, too. The assistant secretary for children and families in the U.S. Department of Health and Human Services, Mary Jo Bane, resigned when Clinton signed the welfare reform bill in 1996. Last fall, Susan F. Wood, the assistant FDA commissioner for women's health and director of the Office of Women's Health, resigned over the FDA Commissioner's policies on the Plan B emergency contraceptive.

I'm sure there are other examples, but I didn't spend a lot of time researching this. (Feel free to offer more examples in the comments.) It's not clear if the numbers of resignations are shrinking, because they were probably always infrequent, but it sure seems like the protest resignations are moving down the chain of command. Nowadays, the Secretary of State doesn't abruptly resign in a huff, he waits until after the election and quietly steps aside.

So what's changed (if anything)? Are high-level officials more loyal, or more in sync with the President's agenda? More cravenly ambitious and not willing to burn bridges? More "political," in the sense that they're willing to take their lumps and agree to disagree today, in hopes of winning the next argument? Maybe the difference is that more recent protest resignations are from career employees who may disagree with a new administration's policies. Maybe past Presidents were more willing to appoint high-level officials with enough backbone to quit on principle.

This makes me wonder what's going to happen after the 2008 election. If a Democrat wins, I wonder if the administration is going to be full of long-suffering outsiders with their own agendas to push, a rabble of officials tied to special interests rather than a unified cadre like the Texas cronies of LBJ or Bush. My hunch is that Democrats want to win badly enough to swallow their differences of opinion for a while, at least, but not forever. If a Republican wins, the economic conservatives and the social conservatives will both want action in their respective battles, and my sense is that both groups feel like Bush has wasted a lot of time and political capital, and will be eager to make hay if they get a third term in a row. Plus, a moderate Republican will almost certainly have to make some appeasements to the far right (and vice versa) to win in 2008, perhaps in the form of cabinet spots or other high-level appointments.

I think either of those scenarios could be the recipe for some protest resignations. I'm not saying that's good or bad. I was just interested in the way that these resignations have changed over the years. I'm willing to be convinced that my perception is flawed, of course. And I promise not to resign in protest if someone suggests I'm full of hot air.





Emptying the Junk Drawer
As happens from time to time around here, my brain gets filled up with half-posts and quarter-posts that never germinate. Eventually, I just give up and move on. But here's a few things I've been thinking about recently but were never able to muster into anything decent. (Actually, the previous post started out on this list but I rambled long enough to call it post-worthy by itself.) Anyway, feel free to take up any of these items; maybe you can make some treasure out of my trash.

1. In the last post, I mentioned an employer with grooming requirements that included makeup rules for women. I realized that I can think of one person who might be upset at workplace mustache regulations. That cracks me up every time I see it!

2. I gave some thought to the issue of cameras in the Supreme Court. There's legislation pending on the matter. I'm as big a Supreme Court geek as anyone, but I'm not terribly excited over the prospect of moving pictures of the Justices. Big whoop. I assume they wouldn't have live video; instead, I imagine, they would release the video that afternoon, to insure against outbursts or Janet Jackson-type snafus when a button pops off the SG's morning coat.

I don't think the Republic would fall. I don't think we'd ever get to the point where lawyers would include headshots with their cert petitions. Still, if MTV has taught us anything, it's that being on camera changes people. I think that litigants would inevitably try to insert "soundbites" into their arguments, knowing they're more likely to be mentioned on the news that way. Scalia would fire off even more snarky quips. And sooner or later, someone would eat someone else's peanut butter and they'd get together and kick somebody out.

Anyway, count me on the fence, leaning to no.

3. I really like reading Slog, the blog from Seattle's Stranger. Lots of neat stuff in there.

4. Really cool article from the Washington Post about coyotes showing up in DC-area suburban developments, and how humans and coyotes interact.

5. I spent a lot of time thinking about conspiracy theories and why people buy into them. I don't think I came up with any original ideas. But I enjoy reading some of the crap people believe.

6. I've been following this nerdy series of posts at Volokh's place about law review and the Bluebook. Here's my take on the Bluebook. Once you grasp the standard format (example: Supreme Court opinions cited as 505 U.S. 833 (1992)), most of the rules follow right along. Within that realm, it's mostly intuitive. And probably 85% of it is what common sense would dictate as the best citation method. (This is the trick to shorter, simpler citation manuals. They offer the standard format and say "do your best" with variations.) The two big problems with Bluebookery and law reviews that are Bluebook-crazy are (1) the other 15% is made up of pointless entries for sources no one ever cites and a bunch of mindbogglingly counter-intuitive or haphazard rules, and (2) law review Bluebook fascists love to dwell on that 15%, especially in the selection process for new members. The whole (indeed, only) goal of citation should be to aid the reader. I think the Bluebook does a decent job with that most of the time, even if that's by accident. It makes no sense to me why the Bluebook editors insist on thwarting that goal so often. And it makes even less sense why maniacal law review editors prioritize Bluebook compliance over the needs of readers. I suppose a deeper analysis could be made about whether the Bluebook, or any legal citation manual, should be descriptive or normative -- the old dictionary squabble -- but I'm not the one to undertake that chore. Anyway, good luck to any 1L's reading this who will be trying out for law review this summer.



Wednesday, May 03, 2006

Sex Distinctions in Sex Crimes?
A few weeks ago, the Ninth Circuit issued a decision rejecting a challenge to an employer's grooming code by a woman who did not want to wear makeup. Will had some thoughts and links here at Crescat. I wasn't so much going to post about that as use it as a jumping-off point.

Prompted by a comment in dissent from Judge Kozinski, Will mentions gender-based regulations on exposure of breasts. I must confess I've never understood why so many consider those regulations unproblematic, constitutionally. After all, the Supreme Court struck down Oklahoma's gender-based alcohol law in Craig v. Boren (1976), and struck down Utah's law applying sex-specific ages of majority in Stanton v. Stanton (1975). Why are gender-based dress codes so different?

Anyway, from that point I got to thinking about other potential sex-based differences in the law. For example, could Congress punish chi1d p0rn0gr@phy involving girls more harshly than c.p. involving boys? Let's assume Congress had factual findings establishing that girls were involved at a much higher rate than boys, were more likely to be involved in multiple acts per victim, more likely to be involved at a younger age and in more violent acts, and suffered greater long-term harm. (I have no idea if those assumptions are accurate.) These are the kind of findings that underlay the "crack/cocaine disparity" in federal sentencing law: Congress found that crack is more harmful, in a variety of ways, than cocaine.

I really don't want to get into that issue, but let's use it as an analogue. What if we had a "girl/boy disparity" in penalties for c.p.? As a practical matter, would it be an effective deterrent? Would offenders switch to boys? Did crack users switch to cocaine?

Leaving that aside, would it be constitutional? Note that the federal sentencing guidelines already provide for a sentence enhancement for choosing a "vulnerable victim." It's often applied to the elderly, the young, and the disabled or mentally challenged. Are those okay only because none of those are "suspect classes"? Could a court simply find that girls are especially vulnerable to certain kinds of crimes, and sentence accordingly?

I haven't thought a lot about it, but my hunch is that it wouldn't be constitutional, per Craig. I think that's even more likely to be the outcome if strict scrutiny applies, post-U.S. v. Virginia (1996). I think it's probably moot since I doubt the factual foundation necessary for a sex distinction in sex crimes wouldn't really pan out. But there's also something...I don't know...almost visceral, just a sense that this isn't the right way to run a railroad. What if we were talking about sex-based punishments for (adult) rape? And if that doesn't sound right, either, what does that mean for "hate crimes" laws? Why are they okay? And if they're not, why can't women go topless in public?



Tuesday, May 02, 2006

ALL-REQUEST: Money
I'm wrapping up my latest All-Request post with the last holdovers. Sorry I haven't gotten to these sooner.

PG asks: "If your loved ones were having problems and you could solve them at least partially with money, how much would you be willing to give up? (supposing that even if you gave a million dollars, you still would have enough money to live upon, barely)"

Hei Lun asks a related question: "A question inspired by PG's: if you won the lottery or come across an outrageous amount of money, say $300 million, how much would you give to 1) family, 2) friends, 3) charity, 4) politicians, or 5) others?"

PG's question is sort of hard to answer. I guess I'd give till it hurt, as the saying goes. I'm not a terribly soft touch, though, so "hurt" would probably arrive fairly soon. A couple of factors. First, I'm not wealthy and never have been, and I'm generally risk-averse, so I think I tend to prefer to hang on to money when I can. So my natural inclination would probably make me feel a pinch sooner than some. (Plus, this question is kind of moot, since I don't really think I have more than a trifling amount of income available for such a request.) Also, I don't have a big family (or at least, there aren't many members of my extended family who I think would come to me for money), so the pool of potential recipients of my largesse is small, even including some close friends who I would help as if they were family.

The other important thing is that my freedom has a value. For example, I might be willing to give more money if it meant I didn't have to move and take a less-interesting job so I could be close enough to help out. Yeah, I know that to some people that would sound really callous: "Toss grandma in the home and leave me alone; I'll send a check." But I doubt that my constant physical presence would be the solution to many peoples' problems.

So, moving to Hei Lun's question, I would give my family enough money that they didn't "need" me; I think we'd all be happier if our interactions weren't based on obligation, but affinity. And I think people would feel quite a bit of affinity for me if I were rich! As for friends, who (supposedly) are already there out of affinity, I would help them if they needed it, and otherwise have a lot of fun with them. Something like annual trips to Vegas on my dime. It wouldn't be like "Entourage," though. I don't want any leeches.

If I had enough money to dump tons of it, politicians wouldn't get very much. I have a few charities in mind, but I wouldn't be George Soros. I mean, I wouldn't underwrite a charity's entire operation, but I would write a big enough check to make a difference. I'd rather not mention the charities or politicians or public policy advocacy groups I'm thinking of, because some of them have some controversy attached, and I'd rather avoid that unless I actually had that kind of money. No need to stir the hornets' nest unnecessarily. Otherwise, I'd probably be generous to my alma maters, so I could get something named after me, and prevent some geek like me from having to pay back loans like I am.

Sorry if that's not specific enough. I think about these kinds of things every time I drive past the Lotto billboards, and I suppose my answers change every time, depending on what my latest outrage is. I guess I'll never find out exactly how I'd spend all that money until someone gives it to me. I'll be waiting....





Communist Cubicle Nerds, Unite!
"Dilbert" creator Scott Adams has a blog, and it's often humorous and often insightful. Not always, though. Sometimes Adams goes for the glib or facile explanation for something and doesn't connect all the dots.

A case in point: today's post about the "income gap." Perhaps in light of yesterday's strip, concerning wealth redistribution, Adams suggests that the reason poor people are poor and rich people are rich is that poor people are too stupid to vote for candidates who redistribute wealth. After all, Adams notes, there are more poor people than rich people, so if they just got behind a Robin Hood candidate, their troubles would be over.

Actually, the glib answer is that poor people don't vote that way because they think they're going to be rich one day. Another answer is that if Pres. Hood gave the poor all the wealth now held by the rich, the formerly poor would become Hood's targets, in a never-ending cycle until wealth were distributed exactly equally. (At which point, of course, some would waste it and be poor, and some would invest and get rich, starting the whole mess all over again.)

Of course, given yesterday's date, part of me thinks this is all a satirical effort to see how many people will comment at Adams's blog endorsing wealth redistribution. Don't forget, kids: Communism bad!



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    The views presented here are personal and in no way reflect the view of my employer. In addition, while legal issues are discussed here from time to time, what you read at BTQ is not legal advice. I am a lawyer, but I am not your lawyer. If you need legal advice, then go see another lawyer.

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