Monday, April 12, 2010

Thumbs Up Althouse


2. me: I liked this exchange for its brevity and for Althouse’s crispness and being correct or at a minimum plausible on nearly every point she took up. On the other hand, I found Bazelon extremely weak and deferring to Althouse, unwilling to stake out a position, and unwilling to argue or even, more generally, simply engage with Althouse.

I thought Althouse was getting increasingly impatient with Bazelon’s limpness and soppiness such that near the end she sounded exasperated when she asked Bazelon “Well, what do you think?” in a kind of pointed way.

I thought Althouse was right to tell Obama to pick a liberal justice and then defend that choice. Bush certainly did that from the other end with Alito and Roberts. (On a side note, Dershowitz makes a good argument for nominees during confirmation hearings having the fortitude to say “This is what I think about x but am open to be persuaded by a better argument.” That is not only intellectually honest compared to the damnable fiction that either “I have no view of x” or, worse, I have never thought about x.”, it comports with reality.)

I liked Althouse’s correct point that Obama voted against, and was vociferous in his opposition to, Allito and Roberts and should want and expect the same from Republicans. Let there be a great debate about the meaning of your Constitution, how it gets approached, about Originalism and Textualism and Breyer's theory of "Active Liberty" and ideas about living trees and judicial activism and so on.

The ritual farce of the present confirmation hearings, so at odds with reality, does much, I have a theory, to deligitimate SCOTUS because people recognize them for the sham they are.

On school bullying, Althouse was especially trenchant. It’s inane, to suggest as did someone above that if solving the problem means throwing a couple of obnoxious kids in jail, then “so be it.” And it misses Althouse’s argument to complain that she opined as she did without knowing the particulars of the Massachusetts case. The same answer applies to both points: Althouse’s was a plausible social policy argument about the misconceived uses of criminal law to address certain types of social problems. There are tons of careful distinctions to be drawn and qualifications to be offered, but here Bazelon and Althouse were as one when it comes to kids being kids and ragging on other kids as they always have done and always will do.

To criminalize mean behavior is an incredible disproportionate intrusion of state power into the daily recurring conduct of our lives. Within certain limits of bullying conduct, as a matter of social policy one would want to start with school sanctions and reserve the criminal law for egregious conduct informed by some degree of what used to quaintly be known as “malice a forethought”.

Reinforcing this point were both women’s objection to the likelihood that the prosecution in the Massachusetts case was a prosecutorial knee jerk to the girl’s suicide and Althouse’s excellent point that if there was not something egregious in the conduct proximate to the suicide then prosecutors are going to be very busy, if there is to be consistency in the law, trying the multitudinous bullies in schools everywhere. It seems self evident to me that one would in the Massachusetts case want to be very wary of how stable was the victim.

Finally on the tea parties, Althouse was least persuasive in concluding that without other evidence she doesn’t believe that John Lewis was called a N… or that the other Congressman was spat on. Some evidence is their own say so; and in the case of the spitting I saw the video of the guy walking and reacting angrily to what looked like something terribly offensive landing on him causing him to flinch and get really mad.

But there is a bigger point here about which Althouse is indubitably correct: the tarring of masses of independent voters by the fringe, despicable actions of people numbering less than ten fingers is an abomination in news coverage and political analysis.

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