Miers update

Richard Bennet has an interesting theory on Harriet Miers:

Bush doesn’t care about abortion, and neither do the bibliocons. They understand that even if the Supreme Court was to strike down Roe, the states would legalize it anyway, and they’d lose their moral authority. It’s one thing to say that five men in black robes are imposing their personal views on you, and quite another to be faced with the certain knowledge that the people hold values that define you as outside the mainstream. So it’s best if Roe stays intact and the conservative movement has the issue to complain about.

The real problem that bibliocons have with the court showed up earlier this year in the great shouting match over the corpse of Terri Schiavo. All along the bibliocons and paleocons had been telling us they were fed-up with activist judges getting involved in state and local issues where they didn’t belong, but suddenly they were all over the courts for refusing to be activist with respect to the family and the State of Florida. So it became clear that the right wants the mirror image of what the left wants, an activist bench that is willing to impose its personal values and beliefs on the rest of us.

Looking for judges who have that sort of orientation is a hard search, because the conservative team that the right’s been grooming since Roe (Luttig, McConnell, Olsen, et. al.) is all about judicial restraint, and none of them can be relied upon to jump into the breech on Schiavo-type cases and do the right thing by the right. So Bush had to ignore the conservative farm team and draft a close personal friend with the proper religious credentials and the requisite lack of judicial hang-ups.

John Cole thinks Bennnett may be on to something.

But why does anyone think that Harriet Miers will rule on the basis of her "religious credentials" rather than follow the law? Aren't the religious conservatives who now seem to be pushing this notion actually promoting a noxious stereotype about "people of faith"? Reality check: Judge George Greer, the Florida judge who originally issued the order to withhold artificial nutrition and hydration to the undead body of Terri Schiavo, is a deeply religious conservative Christian.

Meanwhile, John Fund reports that two personal friends of Miers's, both sitting judges in Texas, personally assured James Dobson and other religious right leaders in a conference call that Miers will vote to strike down Roe v. Wade if she has the opportunity.

My own hunch is that Miers is a pragmatist, not an ideologue, and that she will sorely disappoint the theocons who have bought into the "she's one of us" brand of identity politics.

Meanwhile, Eric Muller replies to my post on whether the criticism of Miers on the grounds that her career has been primarily in the private sector is fair or snobbish. Eric believes that the real issue is that Miers "has spent her professional life pretty much wholly outside the sorts of legal conversations that are common among top government lawyers." Former Bush assistant Matthew Scully disagrees. Meanwhile, Juan Non-Volokh heretically suggests that expertise in constitutional law is not the be-all and end-all of qualifications for a Supreme Court justice:

My point is not the constitutional law is unimportant for prospective Supreme Court justices. I just think that those of us who teach and write in the area are inclined to exaggerate its importance on the Court. I care about a prospective justice's approach to constitutional interpretation as much as the next legal blogger, but it's hardly the only question I consider important in considering a nominee. Indeed, I would argue that a Supreme Court with a wider array of experience would be better than one made up of nine experts in constitutional law. Experience as a prosecutor or criminal defense attorney is likely makes a prospective justice more qualified to consider criminal procedure cases than a unified theory of federalism, representation-reinforcement, or judicial review of legislative action.

I find this argument persuasive. Maybe it's just because the piling-on makes me want to root for Miers. My hope is that she will get confirmed, and will quickly show herself to be a member of the independent judiciary -- not a loyal sevant to any leader or movement.

Just call me Ms. Rosy Scenario.

Update: Via Andrew Sullivan, an interesting juxtaposition, at Info-Theory, of two conflicting quotes from Texas Supreme Court justice Nathan L. Hecht, one of the "Friends of Harriet" who participated in that speakerphone conference with leaders of the religious right.

From John Fund's account:

What followed, according to the notes, was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, "Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?"

"Absolutely," said Judge Kinkeade.

"I agree with that," said Justice Hecht. "I concur."

And from an October 5 article in the Pittsburgh Post-Gazette:

But Justice Hecht also said he couldn't predict how Ms. Miers might vote on a challenge to Roe v. Wade.

"If you're asking, 'Is she going vote to overrule Roe v. Wade, or Lawrence v. Texas [a 2003 decision striking down Texas' law against same-sex sodomy], I don't know that you can ask anyone that because you don't know until you are there."

Will the real Justice Hecht -- and the real Ms. Miers -- please stand up?

Iraq: A time for cautious optimism?

Apparently, the provisional Iraqi Constitution has been approved by the voters.

Two large provinces dominated by Sunni Arabs voted no on the Constitution and at least two others gave it only only a slim margin of support. As a result, Juan Cole tells The Washington Post that "this thing is an enormous fiasco," because in the absence of a consensus, the Constitution and the political process itself will lack legitimacy and the insurgency will still find a fertile ground. Others, including Martin S. Indyk, a former Clinton administration official and now a Brookings Institution scholar, are not quite so pessimistic. More from the Post's analysis:

In the December election, provinces will receive proportional representation so even a low turnout in Sunni provinces will still result in more Sunni Arabs being sent to the legislature. In the January elections for the interim parliament, Sunni representation was especially low because most Sunnis boycotted the elections while Kurds largely voted for a Kurdish coalition and Shiites backed a coalition of Shiite Islamist parties.

A last-minute deal last week on the constitution -- allowing it to be amended in the next year, rather than eight years as originally anticipated -- is also designed to encourage Sunni Arabs to become more involved and reject the insurgency. The constitution was largely drafted to reflect the interests of the Kurdish and Shiite groups that dominate the assembly, including carving out distinct ethnically based territories with greater control over oil wealth.

But experts said that, even so, Sunni Arabs will remain a minority in the unicameral body and in a country with 60 percent of the population adherents of the Shiite Muslim faith. Some said that Saturday's result -- demonstrating anew that Sunni Arab concerns will be outvoted -- could actually do little to encourage the Sunnis.

"The fundamental problem is this is not a consensus constitution, and one part of the country has massively rejected it," said Larry Diamond, senior fellow at Stanford University's Hoover Institution and a former adviser to the U.S.-led Iraqi provisional government. "This was not a joyful vote. It was a pragmatic vote to continue the process."

Diamond credited the Bush administration, especially U.S. Ambassador Zalmay Khalilzad, with recognizing the problem and working hard to bring the Sunnis into the process. He said that the Sunnis realize they "shot themselves in the foot" by boycotting the January elections. Now, he said, the administration should begin intense informal mediation to narrow differences between ethnic groups before the election.

...

Martin S. Indyk, a former Clinton administration official who directs the Saban Center for Middle East Policy at the Brookings Institution, said the administration's scenario of greater Sunni participation is plausible. But he said it is also plausible the Sunnis will conclude that because they failed to block the constitution, the political process is stacked against them.

It should be noted that Sunni Arabs, who make up 15 to 20% of the population of Iraq, enjoyed a privileged status under the Saddam Hussein regime; to the Sunni elite, a fall from dominance may amount to "getting shafted." There are also, of course, Sunni Arabs who are genuinely interested in a better future for Iraq. Despite the divisions, it seems to me that they do have a stake in the political process. Is this democracy as we know it? Of course not; the draft Iraqi Constitution enshrines Islam as the state religion and the foundation for Iraqi law (though, somewhat paradoxically, it also prohibits discrimination based on gender and religion), and the people generally voted as the clerics told them to vote. But it sure sounds like a positive first step.

Andrew Sullivan, hardly a drumbeater for the war of late, sees progress and concludes: "If the turnout reaches 65 percent, this will have been a real triumph for the forces of sanity and self-government." Further to the left, Kevin Drum sounds guardedly optimistic as well (enough for a commenter to accuse him of training to be a "Fox News pundit").

Let's hope the cautious optimists are right.

Female autonomy or new "separate spheres"?

Ann Althouse links to a New York Times article on a surge in single women deliberately choosing to become mothers, often with the help of the Internet. The title of her post is, "Female Autonomy: Does It Frighten You?", and it opens thusly:

Women without men who want children: Must they find a man first? Must they behave so indirectly in the pursuit of what they want?

The post has generated intense controversy with over 120 posts since this morning, and with charges flying back and forth of female selfishness, male-bashing, and "dinosaur" attitudes toward women.

As a single, 42-year-old woman, I sympathize with women who are nearing the end of their fertile years and haven't found the right man. I'm not anti-child and I have some regrets about the fact that I have almost certainly forgone motherhood, but I don't feel an intense longing for a child, either, and I cannot say with any certainty what route I would have taken if I did. I'd like to think, however, that before I even considered a sperm bank, I would have made more of an effort to find "the right man," and made different choices in some of my past relationships.

What troubles me is the selling of single motherhood by choice as "female autonomy." First of all, as some of the commenters on Althouse's blog pointed out, parenthood by definition limits one's autonomy. Second, single parenthood by choice almost inherently perpetuates gender inequality: because of biology, it's a choice far less available to men. (I don't know the statistics, but I would assume that gay male couples are far less likely to raise children biologically related to one of the parents than are lesbian couples.)

Thus, we are seeing a paradoxical phenomenon: on the one hand, we expect married fathers to be far more involved parents than they were in the traditional nuclear family model; on the other hand, we are far more accepting of a family model that shuts out fathers completely. One might see this trend as a modernized version of Victorian "separate spheres": child-rearing and family are a female domain. Only, in the modern version, women get to participate more or less equally in the traditionally male domains of work and public life, while men are even less connected to the female domain than they were in the Victorian era. Something tells me this is not a good thing for male-female relations, children, men, or women for that matter. Among other things, let's not forget that according to numerous studies, everything else being equal, children do fare better when both parents are present.

Some of Althouse's posters (almost invariably men) suggest that the inability of these women to form a lasting romantic relationship suggests that they are ill-suited for the committment of child-rearing, too. This claim may be too simplistic, and the charge of selfishness may be quite unfair in some cases — as is, of course, the "man-hater" charge that one poster levels against Althouse. Yet I do think that the attitude toward men displayed by Althouse and some of her female posters is rather troubling. They seem to assume that if a woman cannot meet a man she considers a suitable partner, the problem has to be with men. Could it be that some of the women have an inability to commit, or an unwillingness to share control over child-rearning? Could it be that asking them to lower their standards is not always unreasonable? If, as Althouse and some commenters on her site have noted, professional success tends to narrow a woman's marital options, this is partly because many successful women do not regard a less successful, lower-earning man as a suitable mate.

Listen to one of the women in the excerpt quoted by Althouse:

"You're paying for it, so you kind of want the best of the best," said Anna Aiello, 38, of Moriches, N.Y., on Long Island, the mother of 1-year-old twins, who saw her ability to select a 6-foot-2 blond, blue-eyed, genetic-disease-free donor as some consolation for not getting to fall in love with someone who would most likely have been more flawed.

Female autonomy does not frighten me; but this mentality does. What are the odds that Ms. Aiello has unreasonable expectations toward men? What are the odds that she will impose unreasonable demands of perfection on her "flawless" twins?

I don't want to issue a blanket condemnation of single mothers by choice. While biology favors women when it comes to the ability to choose solo parenthood, it also imposes on women a "now or never" choice that men don't have to face. But it's one thing to be understanding; it's quite another to celebrate this choice as an expression of female freedom and autonomy.

Althouse writes:

I can see that people will find it disturbing that the normal desire for a child doesn't stay part of the pressure on women to make matches with men. This is hard on men, but maybe it will put a good pressure on them to become better husband material.

Personally, I think it is far more likely to promote more rancor and division between the sexes, and a growing estrangement of men from family life. And that's nothing to celebrate.

Same-sex marriage, civil unions and polygamy: Tacitus replies

Last week, I pointed out that the widely circulated "gay marriage leads to polygamy in the Netherlands" story was inaccurate, since the trio that recently "married" in a small Dutch town did not make use of same-sex marriage or even civil union laws but instead utilized a samenlevingscontract ("cohabitation contract"), which gives the participants some marital-like rights but largely allows them to define the terms of the partnership.

Now, Tacitus, one of the conservative bloggers who had made the "slippery slope" argument, replies:

[T]he substance of my argument changes not at all: the setting-up of alternative structures meant to ape marriage in any form, be it civil unions or
samenlevingscontracts, while evading or negating the fundamental features of marriage, serves only to negate marriage itself by opening the door to the slippery slope toward the world wherein hideous Dutchmen can marry multiple women simultaneously. And that's in a better-case scenario.

What, then, does Tacitus suggest? No legal protections of any kind for same-sex relationships — not even essentially private, legally enforceable contracts? Leaving aside humane and moral considerations, would that even be politically viable, in this day and age? It seems to me that the answer is clearly "no."

Hence, I repeat the question I asked in my original post. If the chief concern is the dilution of marriage by "alternative structures," isn't the full legalization of same-sex marriage the "safest" option, as Andrew Sullivan argued years ago? Or, at least, a Vermont-like civil union system that is not available to heterosexuals or to people already married?

Vitriol envy?

I usually don't revel in my hate mail, but this is amusing.

In response to my column on Bernie Goldberg in the November Reason (not yet online, though an earlier Boston Globe column on Goldberg's 100 People Who Are Screwing Up America can be found here), a reader from Alabama has this to say:

It amuses me to see how Bernie Goldberg got under your skin. Your attack on him came across as a little desperate.

I love how you call Ann Coulter a "nasty right-winger". I hope you read everything she writes. Ann Coulter is brilliant, funny and always entertaining. She would eat you alive in a debate, and she is a better writer, so I can seehow she gets under your skin too.

Bernie Goldberg, actually, leaves me fairly indifferent. I was simply amused by his blatant partisanship in selection the Goldberg 100, and by his evolution from liberal media gadfly to conservative media darling.

But Ann Coulter really does "get under my skin." I usually turn off the TV when she's about to appear; when I try to stick it out, I rarely last more than a minute. I refuse to go to any public event in which she participates. I think Coulter is the epitome of what has become the bane of political discourse in America: the tendency to demonize one's opponents, to treat them a priori as either idiots or scoundrels, to substitute ridicule, sarcasm, insults, and bile for even a pretense at reasoned argument. Goldberg, who leaves Coulter off his list of political hate-mongers, thinks it's okay because she does it all with "a twinkle in her eye." To me, that "twinkle" looks more like a brazen smirk ("yeah, I'm saying outrageous stuff -- try and stop me").

I've never understood Coulter's reputation, even among some reasonable conservatives, for being "funny" (let alone "brilliant"). For instance, here's a zinger Chris Caldwell cites as "Menckenesque" in his review of Treason in The Washington Post: "Even Islamic terrorists don’t hate America like liberals do. They don’t have the energy. If they had that much energy, they’d have indoor plumbing by now." This is humor? Here's another sample: "Whether they are defending the Soviet Union or bleating for Saddam Hussein, liberals are always against America. They are either traitors or idiots." Dorothy Parker herself, in her grave, must be green with envy.

Yes, dear reader, you've got me pegged: it's my life's secret tragedy that I can't write like Ann Coulter. The only thing I'd love even more would be to look like her intellectual twin, Michael Moore.

Feminism, men and the "authority of experience"

In the comments on the Feministe thread about sexism in Saudi Arabia and in the United States, a man's comment that "to say we have even a remotely similar patriarchal culture is an insult to America" earns him this response:

You don’t suffer this kind of s**t, Talldave, so f**k off. You don’t get to tell women what culture we have, what we endure, and what we live through. If you want to find out, try shutting up and listening.

This is a common attitude, albeit usually expressed in somewhat less obnoxious and less potty-mouthed fashion: women are the sole authority on sexism, and for a man to question their perception of the oppression of women in this culture is insensitive, chauvinistic, and indeed the mark of an oppressor.

There is, of course, the minor fact that not all women see themselves as part of the radical feminist "we." In my experience, the world described by some of the posters at Feministe — a world in which male physical and sexual violence toward women is as common as the common cold, and is condoned by most men except for a few enlightened specimens — bears little resemblance to reality. Of course, on the same thread, a woman who says that she works with domestic violence victims and does not accept the radical feminist view is dismissed as a liar, a wannabe man, or perhaps a man posing as a woman.

But that aside, what's wrong with listening to the male perspective? If men tell us that they don't see themselves as particularly powerful, or as having been granted full license to use and abuse women as they please, why isn't their side of the story worth hearing?

Crazy idea, I know.

Feminism, multiculturalism and domestic violence

Last week, I wrote:

I think a significant portion of the left leans toward some form of moral equivalency or cultural relativism when it comes to gender issues in the West and in non-Western countries. Even feminists who are sharply critical of women's oppression in Third World countries often feel the need to throw in annoying disclaimers about how we really aren't much better.

Well, this very issue is a topic of some heated debate right now over at Feministe, Protein Wisdom, and John Cole. (Hat tip: Richard Bennett.) At Feministe, Jill put up an item about Rania al-Baz, the Saudi television presenter who went public as a victim of domestic violence after her husband tried to beat her to death. She quotes from an article in Salon.com:

“The crucial thing,” says Baz, “is that the structure of society — the fact that a woman cannot drive or travel without authorization, for example — gives a special sense of strength to the man. And this strength is directly connected to the violence. It creates a sense of immunity, that he can do whatever he wants, without sanction. The core issue is not the violence itself, it is this immunity for men, the idea that men can do what they like. It is the society of which the violence is an expression.”

Jill comments:

Sounds like grade-A patriarchy-blaming. And she’d be right.

It’s too easy to read a story like this and respond, “Wow, they sure are backwards over there in Saudi Arabia,” thus exoticising domestic crimes and excusing yourself (ourselves) from any ownership over this society, which also tacitly excuses violence against women. Yes, women in the United States have far more resources than Saudi women when trying to escape abusive situations, and the cult of silence around such violence has had holes poked in it here. For that, we can all thank feminism. But to claim that the cultural ills which promote and allow intimate partner violence exist there and not here is delusional to the point of being dangerous.

Some commenters, among them bloggers Jeff Goldstein of ProteinWisdom and Karol of AlarmingNews, took issue with Jill's statement as an instance of the liberal habit of trying to balance any criticism of other countries with a disclaimer that things are bad here too. This prompted some vitriolic responses from others, including Chris Clarke and Pandagon's Amanda Marcotte. Jill's defenders point out that her criticism of America was simply a brief acknowledgment of our own problem with domestic violence, coming at the end of a fairly long post about the abuse of women in Saudi Arabia, and that Jill explicitly rejects an equation between the situation of women here and there.

I think Jeff Goldstein is right on target (despite his self-defeating use of some unfortunate language in the comments thread at Chris Clarke's site). In fact, the placement of the comment about domestic violence in America at the end of Jill's post — in the concluding paragraph, not a footnote — has the effect of shifting the focus from the oppression of women in Saudi Arabia to the "cultural ills" that afflict women in America. If she had wanted merely to acknowledge that we have problems too, why not say, "Yes, America has problems with domestic violence and gender inequality, too, but to even compare them to the abuse and oppression of women in America is delusional to the point of being obscene"? The way her post is written, its main point ends up being: Let's not feel too superior to those Saudis.

Well, I, like Karol, will take the easy way out and say: "Wow, they sure are backwards over there in Saudi Arabia." I will also say that the claim that our society "tacitly excuses violence against women" is utter and complete nonsense. For one thing, patriarchy in America was always tempered by chivalry which regards striking a woman as vile and unmanly. The very first code of laws passed in the American colonies prohibited the "bodily correction" of wives by husbands; according to feminist historian Elizabeth Pleck, penalties for wife-beaters ranged from public "shaming" in church to fines to lashes.

It is quite true that, as Pleck demonstrates, the response to domestic violence in America was often hampered by the priority given to family privacy and family stability. But today, domestic violence — at least, the abuse of women by men — is one of the most widely discussed and deplored social ills in America. (If these are mere "holes" poked in a "cult of silence," I'm not sure what kind of attention Jill would consider adequate.) Indeed, in recent years it has been surrounded by wild exaggerations, with the media uncritically repeating such transparently bogus claims as "domestic abuse causes more injuries to women in America than car accidents, rapes and muggings combined." (In fact, according to the Centers for Disease Control, all kinds of violence combined account for about 5% of women's emergency room visits, compared to 18% for car accidents.)

What's more, while there are undoubtedly still instances in which the plight of abused women is dangerously neglected by the authorities, the War on Domestic Violence has led to excesses of its own. (For more on this, see here and here.) A few years ago in my home state of New Jersey, a judge openly declared, at a training seminar for municipal court judges, that "your job is not to become concerned about the constitutional rights of the man that you're violating as you grant a restraining order" because "they have declared domestic violence to be an evil in our society, so we don't have to worry about the rights." And another interesting example: In 1996, when the New York State Assembly was working on legislation toughening penalties for misdemeanor assault on a family member, some lawmakers tried to extend this measure to all assaults. The sponsor of the bill, Assemblyman Joseph Lentol, was adamantly opposed to this change: "The whole purpose of my bill is to single out domestic violence," he told the New York Times. "I don't want the world to think we're treating stranger assaults the same way as domestic assaults."

In the comments section of her post, as evidence that "we have these problems too," Jill writes:

Just look at what’s happened in New York in the past two weeks: The four-year-old girl who was found wandering around Queens crying for her mother has been on the front page of every tabloid paper. After not being able to track down her mom, police finally believe they’ve discovered her body in a Pennsylvania landfill — and her live-in boyfriend has admitted to killing her by suffocating her and then slitting her throat (and he had the audacity to claim that he suffocated her in self-defense, and then slit her throat to “open an airway”). That’s domestic violence, and it’s happening here.

But what does that prove? Where is the evidence that such violence is being "tacitly excused"? Obviously, to Jill and some of her posters, the mere fact of a man killing his girlriend shows patriarchal forces at work. But then what do we make of this horrible story of a woman basically torturing and beating her live-in boyfriend to death after he sold her computer to get money for drugs? Or the even more horrifying case of Soccoro Caro, the California housewife who murdered her three children, reportedly after numerous instances of physically abusing her husband? What do we make of gay men and lesbians who kill and abuse their partners? I'm sure you can still find instances, in some subcultures in America, of the belief that a man has to "keep his woman in line," using force if necessary. But we are not Saudi Arabia. We are not even more "liberal" Egypt, where according to a recent survey 86% of women ages 20 to 29 believe that a man is justified in beating his wife for a variety of offenses, from "talking back" to the husband to speaking to another man to refusing sex to spending too much money. It's not a difference in degree; it's a difference in kind.

Yes, we have gender issues that need to be addressed (some affecting women, some affecting men). But to even mention them in the same breath with the Saudi Arabias of the world is an insult — not so much to America as to the women who are victims of real patriarchy.

Update: Over at The Moderate Voice and The Debate Link, Jeff and other right-of-center bloggers who have criticized Jill's post as an example of knee-jerk leftist America-bashing are being accused of hypocrisy for failing to acknowledge a more recent post at Feministe, which discusses efforts to reform Colombia's harsh abortion laws with nary a reference to the battle over abortion rights in the United States, or to any American ills.

And the point is ... what? Left-wing feminists don't offer an "it's bad here too" disclaimer every single time they talk about the oppression of women in the Third World? Fine. But actually, the contrast between the two posts is interesting. Maybe the difference in approach is due partly to the fact that the oppression of women in traditional Islamic societies has become a conservative cause lately, with the plight of Muslim women invoked as a justification for U.S. intervention; so, when leftists talk about women's oppression in those countries, they want to be especially careful to avoid even seeming to validate "American imperialism." More broadly, radical/fundamentalist Islam right now is America's "Other," the them in "us vs. them." Maybe that's why talk of the mistreatment of women under fundamentalist Islamic regimes has to be accompanied (no, not always, but often enough) by disclaimers that are supposed to bring America down a peg: Can't allow those ugly Americans to feel culturally superior to the Other!

Update: David Schaub of The Debate Link replies. He thinks I take a somewhat slanted view of Jill's Feministe post, the bulk of which focuses on the terrible situation of women in Saudi Arabia. But then he has this to say, of my suggestion for how Jill could have mentioned America's own problem with domestic violence without appearing to fall into the moral equivalency trap:

Cathy's re-write would completely destroy Feministe's real point, which is that we shouldn't minimize our own abuse even while condemning the much worse abuse abroad. Cathy's wording would let us feel all superior about our abuse-response, which isn't a mindset likely to galvanize the masses toward true reform. It encourages political quiescence, the exact opposite of what we want here. So to propose it as a viable alternative only makes sense if the goal is to condemn Saudi Arabia and praise America, as oppose to condemn Saudi Arabia and not let America off the hook.

So David agrees that to "not let America off the hook" while condemning Saudi patriarchy is a part of Feministe's "real point." We simply disagree (respectfully, I hope!) on whether this is a good thing.

Let me make something clear. I'm not saying that we should simply pat ourselves on the back for being better than Saudi Arabia and decide that we need no further efforts to combat domestic abuse or gender inequality. If someone posted a story about a victim of domestic abuse who was badly let down by the system here in America, and then concluded by saying, "But hey, it's a lot worse Saudi Arabia!", I would find this absurd and offensive — not least because congratulating ourselves on being better than Saudi Arabia when it comes to the status of women is a bit like congratulating oneself for being a better husband than O.J. Simpson.

By the same token, I still believe that to bring up America's problems with domestic abuse in the context of a post about the oppression of women in Saudi Arabia — and to imply that the two have something in common — is terribly wrong-headed and insulting.

In praise of mediocrity?

The brouhaha over the Harriet Miers Supreme Court nomination has breathed new life into the Mediocrities Deserve a Chance defense, first offered by Sen. Roman Hruska (R-Nebraska) in defense of Nixon Supreme Court nominee G. Harrold Carswell, a judge who was widely described as mediocre. "Even if he is mediocre," Hruska told (in)famously told reporters, "there are a lot of mediocre judges and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there." (By the way, Carswell was voted down.)

Today, defenders of the Miers nomination aren't exactly championing mediocrity, but they're deriding "elitism" and "snobbery." See, for instance, Instapunk, who has a rather hilarious retort to Miers-basher George Will -- " Don't ever take seriously any sermon delivered by an adult male who is wearing a bowtie" -- and Varifrank, who writes:

This idea that has developed as of late that Supreme Court Justices are or should be “super human smart guys” is just crap and frankly I think its dangerous for the Republic. I think that fundamentally, the nomination of Mrs. Miers is an antidote for that poisonous idea. We’ve had our quota on the Supreme Court for women and minorities, now we have a slot for the “average American”. Yes, she is a lawyer, but she’s the least lawyer to be on the court in quiet (sic) some time and frankly I find that really refreshing and not a handicap at all.

Majikthise derides Varifrank's argument as latter-day Hruskaism, and indeed his post is not a great advertisement for anti-elitism: he consistently spells the name of Justice Stephen Breyer as "Breyers," and apparently thinks that the argument should be resolved with, "Do we or do we not trust the President?" Yet, to be fair, he's not exactly making a defense of stupidity. For instance, explaining why he doesn't care that Miers went to Southern Methodist University rather than Harvard, Varifrank writes:

Frankly, I would have loved it if she would have received her degree from night school, I could have judged her desire for the law very clearly with that. Someone who goes to Law school at night out of passion for the law and the attainment of justice is a bigger hero in my book than someone who’s mommy and daddy paid for “young junior” to go to 8 years of Harvard to follow in the family business at a white shoe law firm.

Well, so far, so good, though I don't know if there's a "night school" version of law school. [Update: A commenter informs me that some law schools do offer night classes.] But then Varifrank has to go and add that the best thing of all would be to have "someone with out (sic) a law degree at all" on the high court, because, you see, "Ill (sic) take the common sense of average folks any day over the well thought out judgment of the elite." Yes, how elitist to argue that some expert knowledge of the law is required for interpreting the Constitution. In fact, a non-lawyer armed with "common sense" could have "liberal" rather than "conservative" instincts and follow the "common-sense" assumption that if something is good, it ought to be constitutional (and vice versa). To some extent, the conservative intellectuals who are now wringing their hands about Miers' lack of credentials as a constitutional scholar are being bitten in the derriere by their flirtation with populism.

However, leaving aside the hypothetical Supreme Court justice without a law degree, could there be some validity to Varifrank's more moderate statement: "I’m not sure I want another 'Legal God' on the Supreme Court; I just want someone who can think for themselves who is reasonably adept at the law"? Maybe that's not so absurd. A similar suggestion, actually, was made more than two years ago by the left-of-center blogger Matthew Yglesias; the original post seems to no longer exist but it is excerpted at Balkinization:

Why should we want brilliant judges? Why not bland mediocrities? It seems to me that the lower federal courts, in particular, positively call for bland mediocrities who will adjudicate cases according to statute and precedent without doing much of anything that's remotely brilliant. Even at the Supreme Court level why should I want a judge who, like Posner and other brilliant legal theorists, has put forward revolutionary new understandings of the law?

Certainly I wouldn't want stupid judges, but you can be a lot less brilliant than Judge Posner before you become stupid. I think a nice, ordinarily smart guy who got good grades in college and law school but who hasn't demonstrated much intellectual creativity or daring or cutting brilliance is exactly what we're looking for. Leave brilliant reconceptualizations to politicians and writers and professors and let the judges just judge away boringly.

Balkinization's Jack Bakin disagrees; but it seems to me that Yglesias' argument is, at the very least, not self-evidently ridiculous or wrong. And I do think there is a peculiar kind of snobbery in some of the criticism directed at Miers. At Slate.com, for instance, Emily Bazelon believes that the new nominees comes up woefully short compared not only to the "legal gods" but even to Clarence Thomas and Sandra Day O'Connor, because the latter both had careers in government while Miers "stuck to the more comfortable private sector, becoming president of her 400-lawyer firm" and then president of the Texas Bar Association. Can we really automatically presume that public service requires more intellectual and legal acumen than private legal practice?

Speaking of Lenin...

Apropos of the "Lenin lives forever" joke I told in my "Myers and the Faith Card" post the other day, the New York Times on Wednesday ran a story about a renewed debate in Russia about what to do with the Lenin mummy still displayed in the Mausoleum on Red Square. A top Putin aide has called for a decent burial; interestingly, his rationale is not respect for the deceased or "Christian ideals" (mentioned, in the same story, by filmmaker Nikita Mikhalkov) but explicit condemnation of what Lenin stood for:

"Our country has been shaken by strife, but only a few people were held accountable for that in our lifetime," said the aide, Georgi Poltavchenko. "I do not think it is fair that those who initiated the strife remain in the center of our state near the Kremlin."

The counterargument was offered by Putin himself in 2001:

"Many people in this country associate their lives with the name of Lenin," he said. "To take Lenin out and bury him would say to them that they have worshiped false values, that their lives were lived in vain."

Is there anyone who thinks they hadn't "worshiped false values"? It's fascinating how much of human behavior, and particularly resistance to change, is driven by the fear of admitting that one has dedicated one's life to serving false idols.

It's unclear what Putin's stance is at present. An interesting suggestion comes from Russian radical democrat Valeria Novodvorskaya:

Ms. Novodvorskaya suggested that the president could find it useful, at a time when he is being portrayed as an autocrat, to lead a catharsis of the Lenin phenomenon. "He is trying to be taken as a democrat in the eyes of the West," she said. "He is also very fond of playing his comedies of national reconciliation."

By the way, while I grew up in the Soviet Union in the 1970s, I never once went to the Mausoleum; we had a class trip at school once, but I was out sick that day. (Honest, I was.) It's difficult for a Westerner to imagine what the official Lenin cult was like in the Soviet Union, and particularly in Soviet schools, where Lenin portraits were everywhere and children got a steady diet of stories, poems and songs about "Grandfather Lenin."

The Lenin of this cult was something of a cross between George Washington, Abraham Lincoln, and Jesus Christ. (One children's song contained the lines, "All the children in the world love Lenin,/Because Lenin dearly loved them all.") When we had a school festival to celebrate the 175 anniversary of the birth of the great Russian poet Alexander Pushkin, the program featured the reading of poems by Pushkin and poems about Lenin, and I think the latter outnumbered the former.

Neo-neocon has an excellent post on Lenin and other Communist mummies. However, a part of it focuses on the rather dubious anecdote that concludes the Times story:

No matter what Mr. Putin decides, there already are indications that time may ultimately do what no politician has yet achieved. The youngest Russian adults barely recall the Communist times, and some show little interest in looking back. "Lenin," mused Natasha Zakharova, 23, as she walked off Red Square on Tuesday, admitting that she was not quite sure whose body she had just seen. "Was he a Communist?"

If Ms. Zakharova was born in 1982, she would have started school in 1989 -- when the Soviet empire was still intact, and despite some reforms, Lenin was still officially revered. There's no way she could have escaped Lenin completely. Assuming that the Times reporter, C.J. Chivers, was not pulling a Jayson Blair, I suspect Natasha was pulling his leg.

For real signs of the times, however, look at one of the photos accompanying the Times article:



The man the left side of the picture, standing in front of the Mausoleum, has a Nike tote bag; the woman passing by is carrying a JVC shopping bag. Is Lening spinning in his glass case?

Update: In the comments, Olga writes:

On the subject of Lenin and children, I'm reminded of another Soviet joke. A grade-school teacher is telling the kids about how much Lenin loved children. "One beautiful summer morning," she says, "Grandpa Lenin was shaving outside his house. A small group of children walked by and shouted their greetings to him. 'Oh, go !@#$ yourselves, children!' Grandpa Lenin replied. He had a razor in his hand, he could've slit their throats, but he didn't. That's how fond Grandpa Lenin was of children!"

What's stunning is that the black humor isn't that far removed from the real-life absurdity of Lenin hagiography.

One purportedly true story that got included in a lot of textbooks and storybooks (and was also adapted into a poem by Alexander Tvardovsky) was "Lenin and the Stoveman."

The story goes like this: In the early 1920s, when he is already the head of the Soviet state, Lenin is taking a stroll in the village where he has a summer home. He sees a man walking across a flower-bed and politely takes him to task for his bad manners. The man (who happens to be the local stoveman) tells him to go to hell. A passerby tells him, "Do you know who you just told off? That's Lenin." Terrified, the stoveman goes home and tells his wife what happened. They both expect him to get arrested at any moment. A week later, all of a sudden, a car with two official-looking guys in it shows up at the stoveman's house and they tell him to come with them. He says good-bye to his wife, fully prepared for the worst. They bring him to Lenin's house and then it turns out that Lenin only wants the stoveman to fix his stove. Oh, of course Lenin fully realized that the man would think he was getting arrested when he sent for him in that way -- he just wanted to teach him a lesson in manners.

The stoveman is overjoyed, and the reader is supposed to be incredibly impressed by Lenin's generosity. ("He could've slit their throats!") It always struck me as amazing that no one saw the story as a damning indictment of the Soviet system: here was a man who thought he could disappear forever for cursing at the head of government!

The Bennett bash, cont'd

I thought the brouhaha over the racially charged remarks made by prominent conservative Bill Bennett had died down; but today, Bob Herbert revives it on the New York Times editorial page:

A Republican who served in the Reagan cabinet, Mr. Bennett told his listeners: "I do know that it's true that if you wanted to reduce crime, you could - if that were your sole purpose - you could abort every black baby in this country, and your crime rate would go down."

After making the point that exterminating blacks would be a most effective crime-fighting tool, he quickly added, "That would be an impossible, ridiculous and morally reprehensible thing to do, but your crime rate would go down."

Herbert then concludes that such "racial effrontery" is par for the course for Republicans:

The G.O.P. has happily replaced the Democratic Party as a safe haven for bigotry, racially divisive tactics and strategies and outright anti-black policies. That someone who's been a stalwart of that outfit might muse publicly about the potential benefits of exterminating blacks is not surprising to me at all.

As anyone who has followed the Bennett controversy knows, Herbert takes Bennett's words ridiculously out of context. Bennett was not talking about crime-fighting strategies; he was talking about abortion. He did not dangle what Herbert calls "twisted fantasies" of genocide before his audience to pander to racists, and then backpedal with the "impossible, ridiculous and morally reprehensible" disclaimer to cover his behind. He specifically invoked the "aborting black babies" scenario as an example of morally reprehensible absurdity -- as an example of why "pragmatic" arguments about the social consequences of abortion should not be invoked to argue either for or against abortion. (Bennett was responding to a caller on his radio show who had said that banning abortion and increasing the birth rate would have solved Social Security's fiscal problems.)

By the way, I think that what Bennett said was stupid, thoughtless and inflammatory. Yes, as a number of commentators have noted, it is an indisputable fact that today, African-Americans, particularly African-American males, commit violent crimes at a substantially higher rate than other groups. (William Saletan, however, makes the interesting point that there is a whiff of bigotry in the assumption that this pattern will continue into the next generation.) This is an emotionally charged topic tied in with issues of racism, stereotyping, fear, mistrust, etc. Unfortunately, as a lot of the discussion on the Bennett controversy demonstrates, quite a few liberals and leftists still prefer to evade this reality with dodges like "blacks don't really commit more crimes, they get arrested and jailed more" (not true -- see National Crime Victimization Surveys on the race of perpetrators as reported by victims), or "the black crime rate is higher because our society's skewed definition of crime leaves out corporate wrongdoing." But this is an issue that needs to be discussed honestly and, yes, sensitively, rather thancasually bandied about and used to prove a point about abortion -- and, worse yet, linked to a hypothetical scenario of aborting black babies to prevent crime. As Chicago Tribune columnist Clarence Page put it, in a column criticizing Bennett while absolving him of racist or genocidal intent:

Bill, juxtaposing "black babies" and "abortion" is asking for trouble. Throwing in "crime reduction" is asking for trouble in buckets.

Bennett's reckless comments fed into the suspicion, shared by a lot of black Americans, that deep down most whites are racist bigots -- perhaps even racist bigots harboring genocidal fantasies.

Bennett's poor judgment, however, does not justify smearing him as a genocide-fantasizing bigot, which he clearly is not. Nor does it justify using this gaffe to stoke racial division and paranoia (and I might add that while the Bennett-bashing is likely to increase black mistrust of whites, it is also likely, in a paradoxical way, to play to the prejudices of bigots who do see criminality as a black trait).

Several prominent liberal commentators -- Richard Cohen in The Washington Post and the aforementioned Clarence Page in The Chicago Tribune, as well as Brad DeLong, Matthew Yglesias, and Mark Kleiman in the blogosphere -- have come, albeit reluctantly, to Bennett's defense. Bob Herbert, instead, is peddling racial demagoguery.

Bush on terrorism

I listened to Bush's speech at the National Endowment for Democracy on the War on Terror. I thought that while his description of the situation in Iraq and Afghanistan was much too rosy, he made some powerful points. I agree with his comparison of Islamofascism to communist and Nazi totalitarianism. I agree that appeasement and compromise are not the way to deal with this thread. However, one specific point Bush cited as evidence that Islamofascist terrorism is not driven primarily by the actions of Western countries was misleading:

The government of Russia did not support Operation Iraqi Freedom, and yet militants killed more than 180 Russian school children in Beslan.

True, of course, but radical Islamic terrorism in Russia is largely a reaction to the Russian government's brutal, not to say genocidal, occupation of Chechnya. I hasten to say that this is not an excuse or a justification for terrorism, or a call to "understand" the terrorists. Nothing justifies the deliberate murder of helpless civilians, be they children or adults. But the point is that Russia was not simply randomly targeted because the Islamic radicals seek to sow terror everywhere.

That said, I agree with Bush on this:

In fact, we're not facing a set of grievances that can be soothed and addressed. We're facing a radical ideology with unalterable objectives: to enslave whole nations and intimidate the world.

That's a valid and important point, and there's no need to bend the facts to prove it.

A vote for decency in the Senate

And no, I'm not talking about new restrictions on Internet porn.

According to the Washington Post:

The Senate defied the White House yesterday and voted to set new limits on interrogating detainees in Iraq and elsewhere, underscoring Congress's growing concerns about reports of abuse of suspected terrorists and others in military custody.

Forty-six Republicans joined 43 Democrats and one independent in voting to define and limit interrogation techniques that U.S. troops may use against terrorism suspects, the latest sign that alarm over treatment of prisoners in the Middle East and at Guantanamo Bay, Cuba, is widespread in both parties. The White House had fought to prevent the restrictions, with Vice President Cheney visiting key Republicans in July and a spokesman yesterday repeating President Bush's threat to veto the larger bill that the language is now attached to -- a $440 billion military spending measure.

I am a supporter of the War on Terrorism, and I agree with Bush's statement today that in many ways "this fight resembles the struggle against communism in the last century" (except that we are facing a less powerful but more elusive, more unpredictable enemy). I also believe our mission in Iraq, however mismanaged, may yet do more good than harm. But we cannot, in this struggle, allow ourselves to lose sight of our own principles and moral standards. That the Bush Administration is vigorously resisting a bill that would prohibit "cruel, inhumane, and degrading treatment or punishment" of prisoners in U.S. custody, on the grounds that it "limits the President's ability to conduct the War on Terror," is disturbing – both morally and public relations-wise.

I'm proud of the fact that the amendment was overwhelmingly passed across partisan lines (and I applaud Sen. John McCain, a former Vietnam POW, for leading the charge). I'm not proud of the fact that it was needed.

See more from Glenn Reynolds and Andrew Sullivan on the subject.

A resounding silence from Michelle Malkin and National Review's The Corner, so far.

Just now on Fox News, Brit Hume has referred to the amendment as intended to ensure that "captured terrorists" are not mistreated. This is loaded language. Perhaps all or nearly all the prisoners at Guantanamo fit that description, but many of the Iraqi detainees are no more than suspects, or just people who happened to be in the wrong place at the wrong time.

Miers: The Gender Card

Besides faith, the other big and obvious issue is gender. One would have to be a Martian not to know that Miers has been selected for the Supreme Court seat because she's a she (and even the smarter Martians probably have it figured out by now). Even many of the conservatives who have been sharply critical of the pick because of Miers's lack of both conservative and intellectual credentials have stressed that there are many better-qualified women (see examples here, here and here). The bottom line, of course, is that after filling the vacancy left by Sandra Day O'Connor with John Roberts, Bush was under substantial pressure to nominate another woman to Rehnquist's now-vacant seat.

The pro-Miers Independent Women's Forum is perhaps alone in arguing that Miers did not a "woman's seat" on the high court. Here's the IWF's reasoning:

In originally nominating John Roberts to replace Justice O'Connor, the President laid to rest the notion that any one sex or ethnic group owns a particular seat on the Court. Having established that principle last summer, and having elevated John Roberts to be chief justice, the President was free to make this selection free from concerns of gender politics.

But that's rather peculiar logic. Just because Bush didn't officially make O'Connor's seat a "woman's seat" (decorated with pink frills and bows, perhaps?) doesn't change the fact that if Miers is confirmed, the gender composition of the Court will be the same as it was before. If anything, the Roberts nomination made the concerns of gender politics more pressing.

So this was clearly an affirmative action pick, and one might argue that it illustrates the worst of affirmative action: identity over qualifications. (In this case, perhaps, an identity twofer: a woman and an evangelical.) In this case, though, I'm not so sure that applies. While Miers's gender clearly mattered, it is quite true that there were other, well-qualified conservative women to choose from. The deciding factor was personal loyalty, otherwise known as cronyism -- just as it would have been with Bush's other frequently mentioned possible choice, Alberto Gonzalez.

I'm not sure as yet what I think of the gender politics of the Miers nomination. I don't believe in quotas and I don't believe that women bring some uniquely female perspective to jurisprudence, but I'd be lying if I said that I'm not in the least glad that the number of women on the Supreme Court won't be dropping to one. To some extent, I share Kate O'Beirne's disappointment:

When John Roberts was nominated his credentials and his knowable judicial philosophy spoke for themselves. In making the case for Harriet Miers, President Bush says that he's certain she will vote on the Court the way he'd want her to. This is striking a blow for women's achievement?

Good point. On the other hand, men with modest credentials have been appointed to the Supreme Court before, and maybe it's a sign that women have arrived when a mediocre woman in public life has as much of a chance at advancement as a mediocre man.

Curiously, or perhaps not, the nastiest gender-based swipe at Miers so far has come from a liberal feminist, Times Select prisoner Maureen Dowd. MoDo writes:

I hope President Bush doesn't have any more office wives tucked away in the White House.

There are only so many supremely powerful jobs to give to women who are not qualified to get them.

The West Wing is a parallel universe to TV's Wisteria Lane: instead of self-indulgent desperate housewives wary of sexy nannies, there are self-sacrificing, buttoned-up nannies serving as adoring work wives, catering to W.'s every political, legal and ego-affirming need.

So Bush's male friends are just cronies, but his female friends are "self-sacrificing, buttoned-up nannies" and "adoring work wives." Sexism, anyone?

Miers: The faith card

In recent years, the religious faith of judicial nominees has become a big issue. Some conservatives have accused Democrats of bias against "people of faith" and have made the argument -- absurd, in my opinion -- that it is "religious bigotry" to question an appointee's political/ideological views if they happen to be faith-based. (Would that principle extend to a judge who opposed the death penalty or military conscription based on religious convictions?) When John Roberts was nominated to the Supreme Court and some critics raised the question of whether his strong Catholic faith would affect his ability to rule impartially on issues involving Catholic morality (read: abortion), religious conservatives cried foul and argued that it was unfair and "chilling" to presume that Roberts's decisions would be governed by his personal religious views rather than law and constitutional principle.

Well, now we have this:

To persuade the right to embrace Ms. Miers's selection despite her lack of a clear record on social issues, representatives of the White House put Justice Hecht on at least one conference call with influential social conservative organizers on Monday to talk about her faith and character.

(Justice Nathan L. Hecht, now on the Texas Supreme Court, is a former colleague of Miers's who was apparently close to her at the time of her conversion to born-again Christianity.)

The article goes on to say:

Some evangelical Protestants were heralding the possibility that one of their own would have a seat on the court after decades of complaining that their brand of Christianity met condescension and exclusion from the American establishment.

In an interview Tuesday on the televangelist Pat Robertson's "700 Club," Jay Sekulow, chief counsel of the Christian conservative American Center for Law and Justice, said Ms. Miers would be the first evangelical Protestant on the court since the 1930's. "So this is a big opportunity for those of us who have a conviction, that share an evangelical faith in Christianity, to see someone with our positions put on the court," Mr. Sekulow said.

As David Bernstein puts it at The Volokh Conspiracy: "[T]he president sends his minions to drum up support based on her personal religious philosophy." But if Republicans can use Miers's personal faith to reassure the base that she will vote "the right way" on social issues, then why can't those who don't agree with that agenda be suspicious of her for the same reason?

Mind you, based on what we currently know, Miers doesn't seem likely to legislate her personal morality from the bench (her favorable attitude toward adoptions by same-sex couples is a case in point). She strikes me as -- for better and worse -- a pragmatist first and foremost. What interests me, however, is the double standard. I'm reminded of an old Soviet joke: A petitioner with some grievance goes to the Kremlin and demands to see Lenin. "Are you crazy?" an official tells him. "Lenin's been dead for a long time!" "I see," says the petitioner. "So when you need him, he lives forever -- but when I need him, he's dead!" ("Lenin lives forever" was a ubiquitous Soviet propaganda slogan.) Similarly, it seems, a nominee's faith can be relevant when it's convenient for the Republicans, but not when it's convenient for the Democrats.

Sorry, guys. If it's sauce for the conservative goose, it's sauce for the liberal gander.

Update: A reader at The Volokh Conspiracy makes the same point; David Bernstein agrees.

The Miers nomination

Not sure what to make, as yet, of the Myers nomination. She is certainly not the most brilliant or distinguished jurist out there; then again, neither was Sandra Day O'Connor when she was nominated to the Supreme Court. Given all the reports that her primary qualification seems to be an intense personal loyalty to George W. Bush, the cloud of cronyism that hangs over this nomination makes for a pretty lousy weather forecast. (See Randy Barnett's Wall Street Journal op-ed on the subject.) Over at Mark Kleiman's blog, Steven Teles writes that Miers, a Texas-style "business conservative" cum evangelical Christian with a marked deference to the executive branch, will be especially bad for libertarians -- on everything from gay rights and abortion to affrimative action, takings and civil liberties (gun owners' rights being the sole exception). The folks at the right-leaning libertarian Volokh Conspiracy, on the other hand, seem to have mixed feelings.

The hysterical reaction from the religious right -- see Instapundit and Andrew Sullivan for a roundup -- is rather entertaining, and I have to confess to a certain amount of Schadenfreude. What I find particularly amusing is the cries of, "He used us! we got him elected and he doesn't really care about our issues!" -- mainly because we heard the same wailing and gnashing of teeth during the Reagan presidency and under Bush the Elder. What makes them always think that this time, it's going to be different? And what made them think W. was a man of principle? No less striking is the fact that some on the right have openly voiced their yearning for a nomination that would have given us a culture war. Do they really think it's a war they can win? I'm with Kevin Drum on this one:

Yes, Miers is a Bush crony, and that's surely part of the story, but the bigger point is that Bush and Rove are practical politicians who know perfectly well that the kind of candidate the activist base likes is wildly unpopular with the public, because the ultraconservative agenda itself is wildly unpopular with the public.

Ann Althouse also makes an interesting point:

Personally, I think Bush does not want to see Roe overturned. I think he's a lot more pragmatic than the hard core pro-lifers who have vested their hopes in him. I think there are a few women very close to him ... who talk about the importance of letting women govern the insides of their own bodies, and that there are some smart political strategists -- including at least one genius -- who see quite clearly the devastating harm that would befall the Republican Party if the Court overturned Roe.

In the absence of a paper trail, we don't know very much about the nominee's views. However, WorldNetDaily reports that Mysterious Miers is pro-gay rights and pro-women in combat (as White House counsel, she apparently green-lighted the Department of Defense's assignment of women to units serving in combat zones).

Meanwhile, some liberals are fretting over the fact that Miers donated $150 to an anti-abortion group back in 1989 and worked to get the American Bar Association to change its pro-Roe v. Wade position in favor of a neutral stance (an effort that briefly succeeded in 1991 but was later reversed). Of course, that hardly proves she will vote to strike down Roe. Miers's position on the ABA endorsement -- that the bar association should not adopt a political stance rejected by many of its members, and should at the very least put the issue to a full referendum by its membership -- makes sense to me.

I'm still troubled by the twin issues of cronyism and mediocrity, and by the strong possiblity that Miers will rubber-stamp executive power (which Republican National Committee chairman Ken Mehlman reportedly mentioned as a reason to support Miers, stressing "the need to confirm a justice who will not interfere with the administration's management of the war on terrorism"; hat tip: Julian Sanchez at Hit & Run). But so far, color me cautiously optimistic.

Decline and fall in the Netherlands?

I know we have the Harriet Miers Supreme Court nomination and other important things going on, but in the past few days the right-wing blogosphere has also been abuzz with news of a polygamous marriage in the Netherlands. Here is the story, reported at the conservative site The Brussels Journal:

Netherlands and Belgium were the first countries to give full marriage rights to homosexuals. In the United States some politicians propose “civil unions” that give homosexual couples the full benefits and responsibilities of marriage. These civil unions differ from marriage only in name.

Meanwhile in the Netherlands polygamy has been legalised in all but name. Last Friday the first civil union of three partners was registered. Victor de Bruijn (46) from Roosendaal “married” both Bianca (31) and Mirjam (35) in a ceremony before a notary who duly registered their civil union.

“I love both Bianca and Mirjam, so I am marrying them both,” Victor said. He had previously been married to Bianca. Two and a half years ago they met Mirjam Geven through an internet chatbox. Eight weeks later Mirjam deserted her husband and came to live with Victor and Bianca. After Mirjam’s divorce the threesome decided to marry.

Conservative blogs were quick to jump on the story as a vindication of their predictions that legalizing gay marriage would put us on a slippery slope toward polygamy. Ace of Spades HQ asked, "Gay Marriage Will Lead To Polygamy? What Are The Odds Of That?" and replied, "Pretty f'n' good, as it turns out. The first three-party marriage -- well, 'civil union' -- has occurred in the Netherlands." More along the same lines at RedState.org ("Behold, the slippery slope in action"), Christian Coalition Blog ("Next time someone wants to 'pooh pooh' the notion that "civil unions" and/or outright gay marriage will create a slippery slope for degrading the institution of marriage even further, point them to this"), Tacitus ("Senator Santorum, I believe that's your vindication") and other places too numerous to mention. Last night, the story made Fox News as well: Bill O'Reilly, who has long argued that the legalization of same-sex marriage would open the door to polygamy, delivered a gloating I-told-you so at the end of his program.

But wait a minute. As Tim Cavanaugh points out at Reason's Hit & Run:

Victor, Bianca, and Mirjam are specifically not entering into a marriage but into a civil union, to which gay couples already have broad access. ... If you're upset that Victor and girls are free to set up their unusual relationship, you could just as easily argue that this shows the need to approve gay marriage and eliminate civil unions.

Actually, it turns out that it's not even a civil union. Victor and his two wives have entered something called a samenlevingscontract, or "cohabitation contract" -- which is not the same thing. Here's what a Wikipedia article (helpfully translated by a Dutch friend) says on the subject:

A cohabitation contract is a written agreement which can to a certain degree be compared to a marriage. It settles the legal and financial arrangements between two partners in a relationship. Other things can also be arranged in this contract, such as agreements about possible children in the relationship.

Since the eighties the contract has become popular with two different groups of people: those who wanted a relationship but didn’t want to get married, and those who lived together and wanted to get married but weren’t allowed to at that time. Because of the introduction of civil unions and later marriage for gays and lesbians, the need for cohabitation contracts has been reduced drastically for this group.

(Apparently, one principal difference between the samenlevingscontract on the one hand, and marriage/civil union on the other, is that the terms of the contract -- i.e., whether there will be alimony in case of a breakup -- are pretty much set by the parties themselves, except for legal provisions to protect children.)

So basically, the kind of contract the trio has entered into predates not only same-sex marriage but gay civil unions in Holland. Apparently there is some confusion over whether a cohabitation contract can include more than two people, or whether someone who is married can also enter into a cohabitation contract with a third person. This is the loophole the de Bruijns and Geven used to legalize their menage á trois. (Were they the first to do so, or merely the first to go public? No one seems to know.) They could not have availed themselves not only of same-sex marriage but even of a civil union, which is essentially marriage in all but name. By the way, in the United States, the law in Vermont expressly states that the parties to a civil union cannot be married to anyone else; I assume the same is true in other states that have legalized same-sex civil unions.

So in fact, one might argue that if anything is being vindicated here, it's the argument that Andrew Sullivan made more than 15 years ago: that domestic partnerships and other "quasi-marriage" mechanisms created to give some legal protections to gay and lesbian couples really do threaten the institution of marriage, and that it's much better, and actually much more conservative, to simply legalize same-sex marriage.

Does that mean there's nothing to the slippery slope argument? No, it doesn't. While I strongly favor equal legal rights for same-sex couples, I have also concluded, as I have written here, that the reasoning used to justify the legalization of same-sex marriage (i.e., the Massachusetts Supreme Judicial Court's assertion, in Goodrich v. Department of Public Health, that marrying "the person of one's choice" is a fundamental right) could be used to support legalization of polygamy. For that to happen, however, there would have to be (1) a non-fringe political movement advocating for the right to multi-partner marriage, and (2) widespread social acceptance of multi-partner relationships. Of course, (1) and (2) are related. At this point in time, neither factor is present: the polyamory movement has about as much influence as the Flat Earth Society, and multi-partner relationships are almost universally regarded as either immoral or just plain weird.

A slippery slope scenario is possible in a cultural sense: once society begins to encourage full acceptance of unconventional sexual/romantic relationships, this acceptance may extend to "poly" relationships and marriages. Some gay rights advocates may be reluctant to take a "judgmental" stand toward any behavior, at least among consenting adults, that runs afoul of traditional morality. It is perhaps revealing that in the Dutch media accounts of the three-way "marriage," the Rosendaal Three say that they rarely encounter negative reactions to their arrangement, except from a "deeply religious co-worker" of Victor De Bruijn's. What's more, so far the only demand for government action to close the loophole (and, if possible, have the trio's cohabitation contract annulled) has come from a small and unpopular conservative Christian party, the SGP. So yes, perhaps once you've convinced people that it's intolerant to oppose gay marriage, they may be more inclined to see opposition to multi-partner marriage as intolerant as well. But no slippery slope is inevitable. There are good arguments against multi-partner marriage that do not apply to same-sex marriage. For one, legalizing mutli-partner marriage would change the nature of heterosexual marriages; legalizing same-sex marriage does not.

Right now, though, I don't want to get into a discussion of whether legalizing polygamy would equal the end of civilization as we know it, or whether banning polygamy, as some of my libertarian friends believe, is just as intolerant as banning same-sex marriage. The point is that the conservatives' presentation of this story -- "from same-sex marriage to polygamy in the Netherlands" -- is substantially inaccurate. So much for the no-spin zone, Mr. O'Reilly.

More on the anti-feminist left

In a comment on my post yesterday on New York Times letter-writers who castigated Bush envoy Karen Hughes for having the gall to tell Muslim women they should have equal rights, Ampersand (who blogs at Alas, a Blog) writes:

Do you have any logical argument which suggests that those two letter writers are any more representative of the left than the two letter writers you agreed [with]? I think you'd easily recognize this mode of broad-brushing criticism ("one or two letter-writers said something dumb - therefore it's a trend that indicates that the whole movement should be disparaged") is illogical were it applied to your own beliefs.

As I pointed out in response, there's no evidence that one of the letter-writers who supported Hughes belongs to "the left"; but let's not quibble. Was I painting with a broad brush when I wrote that the erstwhile liberal belief in universal human rights has been "apparently, discarded by much of the left in favor of cheap knee-jerk anti-Americanism"?

I'll be the first to admit that "much" is a rather nebulous term. There are certainly left-of-center feminists -- Martha Nussbaum, Katha Pollitt -- who have strongly denounced patriarchy-condoning cultural relativism. But there is indeed a strong strain in leftist discourse that regards liberal feminist condemnation of Third World patriarches as deeply suspect and tainted with Western cultural imperialism. Here is one essay making such an argument. In a critique of liberal feminist Susan Moeller Okin, the author charges:

Okin assumes that generally "Third World" men systematically abuse "Third World" women and this adds support to the stereotype that "brown" men abuse "brown" women more than white men. .... She also does not take into consideration the possible effects of her position which can be understood as equal to a colonizing gaze which treats “Third World” people as more barbaric than their Western ‘counterparts’ because the people of the “Third World” are less developed and uncivilized.

This argument is not unique or eccentric; it is shared by prominent feminist scholars such as Hamilton College women's studies professor Chandra Mohanty, co-editor of the 1991 anthology Third World Women and the Politics of Feminism and a popular figure in academic feminist circles. (A summary of Mohanty's argument can be found here.)

There are many other instances of such attitudes. In October 2001, Sunera Thobani, a professor at the University of British Columbia and former head of Canada’s National Action Committee on the Status of Women, delivered a vehemently anti-American speech at the Women's Resistance Conference in Ottawa, Canada (funded by the Canadian government to the tune of over $100,000 and mainstream enough to be attended by Canada’s secretary of state for the status of women, Hedy Fry). In her diatribe against the U.S. war in Afghanistan and U.S. foreign policy in general, Thobani dismissed "all this talk about saving Afghani women" ("Those of us who have been colonized know what this saving means") and asserted that "there will be no emancipation for women anywhere on this planet until the Western domination of this planet is ended."

While Thobani was criticized by some feminist commentators, she received a standing ovation at the conference. The Vancouver Sun reported that female students interviewed in the women's lounge at the University of British Columbia were also overwhelmingly supportive of Thobani; one woman, a social work student, told the paper that "the same thing is being said on campuses and in coffee houses everywhere." According to the article, while "a few conceded women have little freedom in Muslim countries like Afghanistan," generally "the women at UBC appeared more critical of the U.S. than of Muslim regimes." (Yvonne Zacharias, "Student Support Thobani's Comments," Vancouver Sun, October 3, 2001.)

Across the border, Village Voice writer Sharon Lerner came to Thobani's defense, describing describing the backlash against her comments as evidence that "these days, it's hard for anyone to stray from the political mainstream, and harder still for women." Lerner's article, "What Women Want: Feminists Agonize Over the War in Afghanistan," was itself a testament to feminist ambivalence about appearing to endorse American power and American values while denouncing the brutal oppression of Afghan women by the Taliban. Lerner sympathetically quoted a Muslim feminist and peace activist, Hibaaq Osman, who bristled at the suggestion that Western men are any more enlightened about gender roles than men in Muslim cultures.

(This also brings to mind a comment I heard at a 1992 academic feminist conference at Radcliffe College. One one the panelists, Stanford Law School professor Deborah Rhode, pointed out that white men constitute only 8% of world's population and added, to great mirth and delight from the audience, "That's a very encouraging fact." Because, of course, all those non-white men around the world are so much friendlier to women's rights.)

More recently, when a proposed beauty pageant in Nigeria led to murderous riots by Muslim fundamentalists and death threats against a female journalist who irreverently commented that Muhammad might have approved of the contest, some Western feminists denounced the pageant. Jill Nelson, a former Washington Post writer and an outspoken feminist, wrote at MSNBC.com (which, unfortunately, keeps no permanent archives), "I don’t believe that Muslim or Christian men are really concerned about the rights of women. As far as I’m concerned it’s equally disrespectful and abusive to have women prancing around a stage in bathing suits for cash or walking the streets shrouded in burkas in order to survive." (She conveniently forgot to mention that no woman has been forced to participate in a beauty pageant in the West.)

So what's the bottom line here? I think a significant portion of the left leans toward some form of moral equivalency or cultural relativism when it comes to gender issues in the West and in non-Western countries. Even feminists who are sharply critical of women's oppression in Third World countries often feel the need to throw in annoying disclaimers about how we really aren't much better: you know, they have bans on women driving, the burka, forced sterilization and dowry killings, we have assaults on affirmative action and not enough women in Congress. Which is more or less what Barbara Ehrenreich wrote in a 1995 column on the U.N. conference on women in Beijing.

Shortly after September 11 and just before the strike against the Taliban, British Tory Boris Johnson, M.P and editor of Spectator magazine, wrote, "It is time for concerted cultural imperialism. They are wrong about women. We are right." How many people on the left would be willing to speak the truth quite so bluntly?

New column on church/state issues

It's Monday and my new Boston Globe column is out. It deals with some of the topics discussed on this blog in the past week: issues of religion in public life, as they play out in the debate over FEMA reimbursement for Katrina-related emergency services provided by religious organizations, and in the controversy over Noah Riner's convocation speech at Dartmouth:

IN RECENT years, there have been a lot of complaints on the right about ''religious intolerance" from secularist liberals. Some of this talk is a conservative version of the left-wing victim mentality; sometimes the charges are legitimate. Both champions and opponents of religion in the public square have a tendency to confuse equal treatment with faith-based privilege.

Read the rest here.

Here comes the morals police

Great post from Mark Kleiman about a new California law requiring "anyone with supervisory responsibilities" to undergo training in "sexual harassment prevention." At UCLA, where Kleiman teaches, "anyone with supervisory responsibilities" is defined so as to include "chairs, deans, principal investigators, and any faculty who have teaching assistants or research assistants, in addition to staff supervisors and managers."

Says Kleiman:

The whole concept is, I submit, deeply offensive.

Let's consider the notion of "training," shall we? I know what it means to "train" a puppy, or even an infant. But what, pray tell, does it mean to "train" an adult human being? I can train for a skill or a performance (chest surgery, say, or running a marathon), by building up the appropriate muscles, reflexes, and habits. But what does it mean to "train" someone about how not to be a sexual predator in the workplace? Are we to practice not demanding sexual favors from our subordinates? Do obnoxious-language-avoidance drills?

No, we can sit there as some staff drone or contractor either recites from a policy manual or tries to "raise our sensitivity": i.e., attempts to indoctrinate us. To paraphrase the caption (by E.B. White) of one of my favorite cartoons, I say it's Maoism, and I say to hell with it.

Here's a question for my readers learned in the law: Can the state lawfully require, as a condition of my employment, that I endure being preached at? Can it require
that my employer discipline me for refusing to sit through two hours of offensive boredom?

Well said. To make this even more offensive, by the way, the law requires that the sexual harassment prevention training be repeated every two years (apparently in case the dogs have forgotten their lessons).

By the way, Kleiman is likely to find that the "training" targets behavior that doesn't even start to rise to the level of sexual predation. The sexual harassment prevention materials I've seen (admittedly all going back a few years, but I doubt that much has changed) espouse a grim puritanical ideology that seeks to exterminate all sexual humor and innuendo, and even innocent compliments on personal appearance or clothing. Courtship is allowed, but only as a one-shot deal: once you've been turned down, any further attempts are verboten (a rule that would effectively nix a lot of marriages).

The feminist war on sexual harassment, another good cause gone awry, has faded from the news lately; but, as Kleiman reminds us, it is definitely still with us. Let's not forget that coercive attempts to regulate personal behavior are just as likely to come from the left as from the right.

The anti-feminist left

A few days ago, the New York Times ran an article about Karen Hughes, the Bush administration's envoy to the Muslim word, giving a talk to an audience of about 500 women at a university in Jidda, Saudi Arabia and finding a less than positive reception.

When Ms. Hughes expressed the hope here that Saudi women would be able to drive and "fully participate in society" much as they do in her country, many challenged her.

"The general image of the Arab woman is that she isn't happy," one audience member said. "Well, we're all pretty happy." The room, full of students, faculty members and some professionals, resounded with applause.

...

The group of women on Tuesday, picked by the university, represented the privileged elite of this Red Sea coastal city, known as one of the more liberal areas in the country. And while they were certainly friendly toward Ms. Hughes, half a dozen who spoke up took issue with what she said.

Ms. Hughes, the under secretary of state for public diplomacy, is on her first trip to the Middle East. She seemed clearly taken aback as the women told her that just
because they were not allowed to vote or drive that did not mean they were treated unfairly or imprisoned in their own homes.

The article went on to say that, rather to her shock, Hughes "found herself on the defensive simply by saying that she hoped women would be able to vote in future elections," and was confronted by women who said that they had no desire to drive, that they loved the "abaya" (the traditional head-to-toe covering Saudi women are required to wear), and that women in Saudi Arabia had "more than equal rights."

Yesterday, the Times ran four letters in response to the story, two of which excoriated Hughes for cultural imperialism. Kathy Seal of Santa Monica, California, wrote:

I treasure the vote and the other rights and privileges that American women and the men supporting them have fought for and won. Yet I'm appalled that Karen P. Hughes, the American under secretary of state for public diplomacy, is telling Saudi women that they should want these same rights and privileges.

People wonder why some people in other countries "hate America." Isn't such arrogance an irritant? Why can't we let the women in other countries fight for their own democratic rights just as we did, rather than telling them what's good for them?

Has it ever occurred to the administration that unless we're invited to do so, we shouldn't be going around telling people what they should want?

She was echoed by New Yorker Pam Perraud:

Karen P. Hughes is a poster child for this administration's clueless foreign policy. She shamelessly promotes American values as the best in the world while criticizing cultures she knows nothing about.

She's making a bad situation worse.

To this I can only say:

For shame.

Is this what the left (I assume the letter-writers are left of center) has sunk to? Defending one of the world's most oppressive patriarchies -- where in 2001 15 teenage girls died in a fire at a school and dozens were injured because the religious police prevented them from leaving the school without their headscarves and tried to bar male rescuers from entering the building -- rather than allow that some "American values" may be worth emulating?

Is this an expression of principled multiculturalist idiocy, or would these women be singing a different tune if, say, Hillary Clinton rather than Karen Hughes had been the messenger? Either way, this is disgraceful.

Interestingly, the one letter signed by a Muslim woman, Ayesha Khalid Khan of Boston, was supportive of Hughes and pointed out that the women's comments defending Saudi society's treatment of women may have been stemmed from fear of reprisals. (Saudi Arabia, in case you're wondering, is not a democracy.) Another letter-writer, Jane Manning of Equality Now, pointed out that many Saudi women do want the right to vote and to drive. Manning went on to say:

These women are advocating for ideals of justice and equality that are neither American nor Middle Eastern in nature; they are universal human rights deserving of protection from governments and inherent to all women and men, regardless of the national boundaries in which they live.

That used to be the liberal view -- now, apparently, discarded by much of the left in favor of cheap knee-jerk anti-Americanism.

(Reason No. 1,001 I am never going to join the left no matter how annoyed and exasperated I may get at the right.)

Incidentally, it's interesting that while the Times published two letters critical of Hughes and two supportive ones, the letters all ran under the general heading, "Stop preaching to Saudi women." Why not go all out and use the headline, "Women's rights: For Americans only!"

Update: By the way, there is nothing new about some women resisting equal rights and defending their traditional status as offering certain privileges and protections. There were female anti-suffragists in America in the 19th and early 20th Century. More recently, there was Phyllis Schlafly's successful movement to stop the Equal Rights Amendment. Somehow, I doubt that Pam Perraud and Kathy Seale would condemn American feminists for "preaching" to the traditional housewives who mobilized behind Schlafly.