Category Archives: original content

Here’s a suggestion

by Robert Huntington | 1 Comment

I have a slightly different idea for a simple Supreme Court that could be done by statute without amending the Constitution. Congress could create the position of Senior Justice, analogous to Senior Judges in the lower courts, who continue to sit by designation with a much reduced caseload and who get to decide which types of cases they will take. Retired Supreme Court Judges generally become Senior Judges. Justice Souter continues (as far as I know) to hear cases on the First Circuit. Here’s how it would work. Senior Justices would no longer vote on writs of certiorari (i.e., on which cases the Court will take) but, once the Court has granted certiorari, they could choose to take part in that case, e.g., by so informing the Chief Justice within 30 days. The result would be to draw Justices Breyer, Kennedy, and Souter out of retirement for any cases they deeply care about. If Justice Sotomayor were to retire and be replaced with another liberal, that could undermine the current 6-3 conservative majority (if you ever had tie, e.g., at 6-6, that would merely affirm the lower court ruling in that case without creating binding Supreme Court precedent).

I have no idea how feasible this would be in practice but I throw it out as something that might be possible, if only because Congress can do it by statute (or they could simply enlarge the Court but that might be a bridge too far for some, even on the Democratic side).

How term limits for Supreme Court justices?now backed by Biden?could work
How term limits for Supreme Court justices?now backed by Biden?could work
www.abajournal.com

Views: 4

Thoughts on abortion

by Robert Huntington | 1 Comment

(I first started working on the post around the beginning of the year and kept updating it, the last time on June 5. Rather than revising yet again to take advantage of the Supreme Court’s opinion, which I don’t have time to do, I’m publishing as is.)

The overturning of Roe v. Wade. Conservatives can almost taste it. So close. Possibly as early as next spring when the Supreme Court issues its decision in Dobbs v. Jackson Women’s Health Organization, the challenge to Mississippi’s strict anti-abortion law. But beware what you wish for. The issue is fraught with danger for the Republican party.

It seems to me that there is a solid, if not overwhelming, majority in favor of a moderate position on abortion. Most people are squicked by the thought of forcing a woman to carry an unwanted pregnancy to term, especially if it resulted from rape or incest. They believe in a woman’s right to choose what to do with her own body. But only up to a point. Most people are also squicked at the thought of a late-term abortion except under the most dire of circumsances (in fact, most late-term abortions occur under such circumstances). This moderate position, allowing abortion in the early stages of a pregnancy and permitting state regulation (including prohibition) in the late stages is essentially that of the Supreme Court in Roe and Planned Parenthood v. Casey. A recent poll showed about two thirds of the public in support of Roe and against the Texas statute.

Also, extremists on both sides have locked themselves into a slippery slope argument. The pro-choice people argue that any restrictions on abortion is a step towards banning all abortions while the anti-abortion people claim that allowing any abortions is a step toward ninth-month abortions in lieu of delivery. This makes it difficult for the pro-choice people to adopt the moderate position and impossible for the anti-abortion activists. It is one thing to claim that, whatever its potential, a zygote or fetus is not yet an actual human being. But it is quite another to claim that it is an actual human being and that killing it is murder. That locks you into the extreme position from which there is no escape.

Not that the anti-abortion crowd believes that. They don’t. The proof is that while they’re eager to prosecute those who provide abortions, they’re unwilling to advocate prosecuting the women seek abortions because they know that their support among the broader public would evaporate instantly. In fact, there is only one proven way to reduce the number of abortions: reduce the number of unwanted pregnancies. The most effective anti-abortion provision ever enacted in the United States is Obamacare’s contraceptive mandate. Yet, the conservative movement bitterly opposed it. And they also support abstinence-only sex education. Pragmatically, anyone who supports policies that increase the number of abortions (by increasing the number of unwanted pregnances) must be regarded as pro-abortion.

If the pro-life movement isn’t protecting the unborn, what is it doing? What are its leaders aiming for? The control of women’s bodies? That’s no doubt part of it. There are plenty among the base who long for a return to “traditional morality,” when women were “chaste.” But I think that’s only part of it. Anti-abortionism is very lucrative, both financially and electorily. It’s about money and political power.

What then is SCOTUS likely to do with the abortion cases before it? I suspect that the Texas provision allowing private suits as a way of avoiding judicial review is a bridge too far even for the conservatives. After all, what’s to prevent a liberal state from authorizing suits against gun owners as a way to circumvent the court’s Second Amendment jurisprudence? So I expect the Texas statute to be struck down. Who knows, the decision might even be unanimous.

The Mississippi case, with its direct challenge to Roe and Casey is a tougher call. Not that the conservatives on the court have any respect for precedent. They don’t. But they must recognize the political backlash that would hit the Republicans if Roe and its progeny were to be overturned. Money would pour into the coffers of an engergized Democratic party and it could be enough to hold the House and maybe even get a true majority in the Senate (which would allow them to abolish the filibuster over the objections of Manchin and Sisema). If they are truly the partisan political hacks they are often taken for, they will decide that stare decisis means something this one time. If, on the other hand, they are just ideological hacks, who have bought into the snake oil of originalism, Roe is doomed.

There is also the possibility of a mixed decision, affirming Roe for first trimester abortions upholding the Mississippi law. Chief Justice Robers seemed to suggest during oral arguments that he was open to this approach.The question is whether he can persuade one of his conservative colleagues to join him. In that case, you might see an opinion written by Roberts with the liberals (and one conservative) joining in part and the conservatives joining in another part. Plus, of course, there might be a half dozen or so opinions concurring in part and dissenting in part.

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My current reading pile

by Robert Huntington | Leave a comment

I haven’t posted this in a while. I might even post reviews of some of them when I do finish them.

1. A History of Knowledge by Charles Van Doren
2. The Great Deformation: The Corruption of Capitalism by David A. Stockman
3. My Trials: Inside America’s Deportation Factories by Paul Grussendorf
4. The Horse, the Wheel and Language: How Bronze Age Riders From the Eurasian Steppes Shaped the Modern World by David W. Anthony
5. How Not to Be Wrong: The Power of Mathematical Thinking by Jordan Ellenberg
6. My Great Predecessors: Part III by Garry Kasparov
7. Dylan’s Vision of Sin by Christopher Ricks
8. Vergil’s Aeneid, Books I-VI (in Latin) edited by Clyde Pharr
9. Lucy Crawford’s History of the White Mountains
10. Reagan’s America: Innocents at Home by Garry Willis

Views: 42

Reforming the filibuster

by Robert Huntington | 4 Comments

The End of the Filibuster?No, Really
The End of the Filibuster?No, Really
Many activists will not tolerate a Democratic-controlled Senate that allows Republicans to block civil-rights legislation next year.
www.theatlantic.com

There is little doubt that if Democrats retake the Senate and the White House, the Republicans will be as obstructionist as they were under Obama. So if want to get anything done, they will have to face the issue of the filibuster. Mitch McConnell has warned the Democrats not to touch the filibuster but he is, of course, a unprincipled reptilian whose brain consists entirely of one giant amygdala, and who consequently is only interested in one thing: power. His open hypocrisy in stating that he would fill any SCOTUS vacancies that occur this year (after his refusal to bring Merrick Garland’s nomination up for a vote) amply demonstrates this fact. So we should ignore whatver he says about the filibuster. Rather than eliminate it entirely. I would like to propose a reform that would retain it while preventing Republican obstructionism while making the Senate more representative of the people.

Back in 2007, the Republicans controlled the Senate and had not yet eliminated the filibuster for judicial nominations. The Democrats used it often (but not nearly as often as the Rublicans were to use it during the Obama years) and came under fire as “obstructionists.” I wrote a piece urging the Democrats to take the offensive and defend themselves on the grounds that they represented the majority. At that time, 42% of Americans lived in states with two Democratic Senators, 40% in states with two Republican Senators, and 18% with one of each. Today, those figures are 44%, 40%, and 16% respectively (independent senators are counted with the party they caucus with).

The Democrats are in a good position to recapture the Senate in November. If so, their edge in constituents represented would likely increase. If they want to accomplish anything (assuming that they hold the House and gain the White House), they will have to do something about the filibuster. There is some debate concerning the constitutionality of the filibuster and they might well be tempted to abolish it altogether but I would like to suggest a better idea: on cloture votes (and only on cloture votes), weigh each senator’s vote according the population of their state and if the votes against cloture represent a majority of the US population, the vote fails. Pragmatically, it would make it virtually impossible for the Republicans to block anything and it can be defended as making the Senate more (small d) democratic. If the filibuster is a protection of minority rights, then this is one on steroids. In theory, a minority of only 18 Senators (representing the nine most populous states) could block a bill’s passage. I would also suggest that the filibuster as reformed be reinstated for judicial nominees.

Granted, there are one serious objection to this idea. The Constitution states (Art. I, sec. 3) that “each Senator shall have one Vote.” However, I think this can reasonably be construed to refer to votes on the passage of legislation and not to procedural votes such as closure. After all, the Constitution also says (Art. 1, Sec. 5) that “Each House may determine the Rules of its Proceedings.” The courts have given great deference to Congress’s procedural rules, holding them beyond judicial inquiry. The lead case is United States v. Ballin, 144 U.S. 1 (1892), where the Court stated

“The Constitution empowers each house to determineits rules of proceedings. It may not by its rules ignore con-stitutional restraints or violate fundamental rights, and thereshould be a reasonable relation between the mode or methodof proceeding established by the rule and ttie result which issought to be attained. But within these limitations all mat-ters of method are -open to, the determinatio. of the house,and it is no impeachment of the rule to say that some otherway would be better, more accurate or even more just. It isno objection to the’validity of -a rule that a different one hasbeen prescribed and in force for a length of time. The powerto make rules is not one which once exercised is exhausted. Itis a continuous power, always subject to be exercised by thehouse, and within the limitations, suggested, absolute andbeyond the challenge of any other body or tribunal.” 144 U.S. at 5.

But challenging weighted cloture votes presents a special problem. If the Democrats invoke cloture, the bill goes to a vote and then to the President. By the time a court can hear the case, the law in question will have duly passed both houses and been signed by the President, all in accordance with the Constitution. I can’t imagine any court invalidating a statute because it thinks the Senate should have debated longer. The case would be dismissed as moot. The courts could invoke the exception to mootness that it did in Roe v. Wade, i.e., that the issue was “capable of repetition, yet evading review.” However, even if the courts did ultimately strike down the procedure, the Democrats could then eliminate the filibuster altogether.

An idea worth considering, I think.

Views: 134

North Korea to host Summer Olympics

by Robert Huntington | Leave a comment

Since North Korea is now the only country on earth with zero confirmed cases of CORVID-19, they have graciously offered to host the 2020 Summer Olympics. The IOC has agreed because they decided it was better than the uncertainty of postponing the games for a year or more with no guarantee of when they might be held.

North Korea is, however, requiring all athletes, officials, and fans to show up two months early, both so that they can quarantined in case they’re infected with the coronavirus and so that they can help build the necessary venues.

Also, London bookies are now reporting that Kim Jong Un has become the favorite to win all gold medals.

UPDATE: President Trump has reacted angrily to this news and demanded that the games be held in the United States saying “there’s nothing the Rocket Man can do that I can’t do better.” The President pointed out that all the recently constructed field hospitals could easily be converted quickly into sporting venues.

Views: 50

Trump’s immigration success

by Dale Worley | Leave a comment

It’s notorious that bureaucracies are hard to change from the top down.

He’ll sit here, and he’ll say, ‛Do this! Do that!’  *And nothing will
happen.*  Poor Ike—it won’t be a bit like the Army. He’ll find it
very frustrating.  — Harry S Truman

But Donald Trump has pretty much done that. He’s really in practice
cutting back immigration to just those people that the US allows in, and
cutting back which people the US allows in … all without getting
Congress to change the laws.

One of the more amazing bits is the shutting of the asylum pipeline that
people from Central America were using. For a while there, about
100,000 people a month were arriving from Central America and claiming
asylum, and due to the details of US immigration law, were “caught and
released” into the US. That was a significant fraction of the workers
coming into the US labor market. Needless to say, it caused apoplexy in
Trump supporters.

I’ll note here that I don’t know the details of asylum law, but given
the general violence in Central America, I wouldn’t be surprised if all
of these people qualified for asylum. What I would be surprised is if
this is different now than from any of the last 100 years.

But despite what one would think possible, Trump has managed to shut
this pathway off. I’d be interested in reading a clear discussion of
exactly how this was managed.

Views: 86

The word “socialist”

by Robert Huntington | 3 Comments

(This is a revised version of a piece first posted August 30, 2018. Since President Trump and the Republicans are planning to campaign against “socialism,” it seems worthwhile to revisit the subject.)

I come to bury socialism, not to praise it. The word that is. When something is dead, you need to bury it. Socialism (again, the word) has been murdered. C.S. Lewis wrote of verbicide:

“Verbicide, the murder of a word, happens in many ways. Inflation is one of the commonest; those who taught us to say awfully for ‘very,’ tremendous for ‘great,’ sadism for ‘cruelty,’ and unthinkable for ‘undesirable’ were verbicides. Another way is verbiage, by which I here mean the use of a word as a promise to pay which is never going to be kept. The use of significant as if it were an absolute, and with no intention of ever telling us what the thing is significant of, is an example. So is diametrically when it is used merely to put opposite into the superlative. Men often commit verbicide because they want to snatch a word as a party banner, to appropriate its ‘selling quality.’ Verbicide was committed when we exchanged Whig and Tory for Liberal and Conservative. But the greatest cause of verbicide is the fact that most people are obviously far more anxious to express their approval and disapproval of things than to describe them. Hence the tendency of words to become less descriptive and more evaluative—useless synonyms for good or for bad.”

That’s exactly what has happened to socialism and socialist. On the right, socialism has merged with words like Communist, Marxist, liberal, progressive, etc. to the point where they are all just empty epithets of abuse that convey no information beyond the speaker’s disdain. On the left, politicians like Alexandra Ocasio-Cortez and Bernie Sanders embrace the term to show their distaste for contemporary corporate capitalism. In both cases, the word is more evaluative than descriptive.

Godwin’s law states that “As an online discussion grows longer, the probability of a comparison involving Hitler approaches one.” I have observed a related but more limited phenomenon that operates at a much higher speed. As an online discussion of Bernie Sanders or Alexandra Ocasio-Cortez grows longer, the probability of a comparison involving Venezuela and/or Cuba approaches one. Conversely, in an online discussion of Venezuela or Cuba, the probability that Sanders or Ocasio-Cortez will be invoked also approaches one. Ocasio-Cortez and Sanders are, of course, democratic socialists who generally invoke Sweden and the social democracies of Western Europe as their model. Venezuela and Cuba are as irrelevant as Hitler usually is in most discussions. (And, of course, in any discussion of socialism, someone will point out that Nazi is short for National Socialism and the discussion risks being pulled into the rabbit hole of arguing whether Hitler was a socialist or not.)

The word socialist has just too many meanings. It refers both to authoritarian states like Venezuela and democratic ones like Sweden. On the other hand, Sanders, AOC, and others seem to embrace the term in a (probably vain) attempt to rescue the word from the right-wing verbicidal maniacs and to emphasize that they’re nothing like them. I think we would be better off if we simply dropped these terms and used descriptive terms that do convey information. For example, instead of saying, “I oppose Medicare for all because it’s socialist” (and then arguing endlessly whether it is or is not socialist), simply say, “I oppose Medicare for all because it means higher taxes” (or whatever your real beef is although taxes seem to be the point of contention almost always). Instead of talking past each other, we would at least be on the same page and, who knows, we might even get somewhere. Anyone who can’t tell the difference between Venezuela and Sweden is a moron.* It’s akin to not being able to tell the difference between a certain winged mammal and a club used in baseball and cricket because they’re both called bats. Dropping the word socialist from our discourse would, if nothing else, make that particular stupidity harder to achieve.

I should add that capitalism (the word) is nearly as dead as socialism and should likewise be dropped. It’s an empty epithet of praise at one end of the ideological spectrum and an equally empty epithet of censure at the other end. Consider this sentence (by hedge fund manager Ray Dalio): “I think that most capitalists don’t know how to divide the economic pie well and most socialists don’t know how to grow it well, yet we are now at a juncture in which either a) people of different ideological inclinations will work together to skillfully re-engineer the system so that the pie is both divided and grown well or b) we will have great conflict and some form of revolution that will hurt most everyone and will shrink the pie.” How much simpler, more pragmatic, and less likely to lead to conflict just to say “we need to figure out how to grow the economic pie and how to distribute it equitably.”

* For these people, let me offer some facts in the (probably vain) attempt at enlightenment (all facts taken from the CIA Factbook). I’ve thrown the USA in for comparison. GDP per capita (PPP): Venezuela $12,500, Sweden $51,200, USA $59,800; GDP real growth rate: Venezuela -14%, Sweden 2.1%; USA 2.2%; inflation rate: Venezuela 1087.5%, Sweden 1.9%, USA 2.1%; public debt: Venezuela 38.9% of GDP, Sweden 40.8% of GDP, USA 78.8% of GDP; maternal mortality rate: Venezuela 95 deaths per 100,000 live births, Sweden 4, USA 14; infant mortality rate: Venezuela 11.9 deaths per 1000 live births, Sweden 2.6, USA 5.7; life expectancy at birth: Venezuela 76.2 years, Sweden 82.2, USA 80.1; physician density: not given for Venezuela, Sweden 5.4 physicians per 1000 population, USA 2.59; health expenditure: Venezuela 5.3% of GDP ($663 per capita), Sweden 11.9% of GDP ($6093 per capita), USA 17.1% of GDP ($10,226 per capita); mobile phone subscriptions: Venezuela 78 per 100 inhabitants, Sweden 125, USA 121; internet use: Venezuela 60% of population, Sweden 91.5%, USA 76.2%.

Views: 485

The pros and cons of Esperanto

by Robert Huntington | Leave a comment

I confess. I am a recovered Esperantist. Back in high school (approximately 45 years ago), I was an enthusiastic Esperantist, learned it, proselytized it, etc. Then I realized how useless it was and abandoned it. My Esperanto books gathered dust in bags in my parents’ attic and, more recently, in totes in a storage unit. Recently, when I was contemplating what language(s) to raise our son in (he just turned seven months old), I decided to reconsider Esperanto. Here are my conclusions on the pros and cons of the language.

Let me start with the cons since there is only one: it’s completely impractical and useless; it peaked more than fifty years ago and will never be adopted as an international auxiliary language or even be spoken by more than a tiny handful of language geeks. (For those who don’t know me, I’m a language geek.)

Now for the pros. First, it’s a remarkable intellectual achievement, a fully usable (not that very many will use it) language that really is easy to learn. I realized this a few months back when our son David was born and I was thinking of bringing him up multilingually. I read Latin reasonably well (but can’t speak it), speak passable (but far from fluent) French and German, wretched Spanish, and have a studied a number of other languages at one time or another (my undergraduate major was linguistics).* Among the books on my shelf (and not in the storage unit) was the Esperanto translation of Winnie The Pooh. I picked it up and found that I could read it with ease despite not having studied the language in over forty years.** I quickly realized that I could speak it better than I could speak Spanish (despite studying that language semi-intensively and quite recently). So I fell off the wagon and took up Esperanto again. Within weeks it was probably on par with my French and German (which I have studied and spoken for decades). And this was despite the lack of opportunity to practice speaking with anyone. I note that Esperanto’s perfect phoneticism (i.e., each letter stands for only one sound and each sound is represented by only one letter) means that in two or three years’ time, when David is ready to learn to read, it should be easier to do so in Esperanto than in almost any other language (especially English or French).

A number of studies (summarized here) have suggested another advantage to Esperanto: it’s a gateway language that makes other languages easier to learn. For example, a year of studying Esperanto followed by three years of studying French produced better proficiency in French than four years of studying French. I’m somewhat skeptical about this and wonder if almost any language would produce a similar effect. Certainly, my knowledge of Latin gained in high school made learning French in college easier. In any case, this effect is unlikely to apply (I think) to someone learning the languages from infancy.

Anyway, I decided to bring David up in five languages: English, Esperanto, French, German, and Spanish. I pick a different language every hour and try to use that exclusively during the hour.*** I’m not worried about his learning English since everyone else around him is speaking it and I have no idea how much, if anything, of the other languages he will eventually acquire. I do note that, as far as Esperanto, is concerned, he will be in good company learning it as an infant. George Soros grew up speaking Esperanto as did the Polgár sisters (I’m not planning to push chess, or any other particular subjects on him, unless he shows an interest; I’m no László Polgár).

* I have often remarked that this makes me a linguistic whizz by American standards and a linguistic klutz by European standards (and, I suspect, by the standards of most of the world although my experience is generally limited to Europeans).

** I did touch on Esperanto in my law school thesis and briefly looked at it then (concluding that it would not help the European Community [as it was then known] with its language problems). See, Huntington, European Unity and the Tower of Babel, 9 B.U. Int’l L.J. 321 (1991).

*** Of course, I have to confess that I am also doing this for my benefit, i.e., in the hope that it will reverse (or at least slow) the atrophying of my linguistic abilities.

Views: 173