Daily Archives: November 1, 2005

The Alito nomination

So far, I think the best analysis of Samuel Alito’s record and what we know of his views is provided by Julian Sanchez at Reason‘s Hit & Run blog: here, here, and here. Good op-ed by Ann Althouse in the New York Times. The upshot of it seems to be that Alito is not the Scalia-like ideologue he’s made out to be.

Here’s a particularly interesting tidbit:

According to at least one former Alito clerk, Nora Demleitner, he is not the rabid conservative he’s so far been made out to be. Demleitner cites Alito’s majority decision in the 1993 case Fatin v. INS, in which Alito held that an Iranian woman could be granted asylum if she could show that complying with her country’s “gender specific laws and repressive social norms” would be deeply abhorrent to her.

“To this day, it remains one of the most progressive opinions in asylum law on gender-based persecution,” says Demleitner.

A law professor at Hofstra University who clerked for Alito from 1992 to 1993, Demleitner said she and her former clerks are scratching their heads at the appellation “Scalito,” which news reports say is Alito’s nickname, and which plays into the notion that Alito is a carbon copy of Justice Antonin Scalia.

“The only thing we can think of is demographics,” she says. “They’re both Italian Catholics from Trenton.

“He’s not an originalist; that’s the most important thing. I don’t see him saying, ‘As the Framers said in 1789,’ the way Scalia writes his opinions,” adds Demleitner, who says she’s a liberal Democrat. “I was listening to one reporter this morning and I thought she was describing Attila the Hun and not Sam Alito.”

(Hat tip: Andrew Sullivan.)

There is, of course, Alito’s controversial dissent in Planned Parenthood vs. Casey, upholding Pennsylvania’s spousal notification (not consent) law for abortions. A good analysis of his dissent can be found at Patterico’s. See also Orin Kerr, at The Volokh Conspiracy, for a discussion of another Alito opinion, concurring in a ruling striking down New Jersey’s partial-birth abortion ban. Based on these two opinions, I don’t see how Alito can be pegged as a pro-life zealot.

For the record, while I am staunchly pro-choice, I think that spousal notification is a painfully complex issue. Yes, it’s the woman’s body. It’s also the man’s future child, and while there may be no good way of balancing the man’s and the woman’s interests when those interests compete (i.e. when one of them wants to have the child and the other doesn’t), I think that our current system, in which women have all the reproductive rights and men have the responsibilities, is seriously flawed. I don’t believe we can expect men to be equal partners in child-rearing while denying them any say in reproductive decisions. Paternal consent, in my view, goes too far in infringing on the woman’s bodily autonomy; paternal notification, on the other hand — with exemptions when there is domestic violence or other complicating factors — may not be such an onerous measure.

There is also, of course, the issue of Alito’s own gender. Eric Muller, who personally knows and likes Alito, expresses disappointment that one of only two women on the U.S. Supreme court is being replaced by a man. I share that disappointment on some level; I would have especially liked to see a conservative woman on the high court (particularly a conservative with libertarian leanings). However, I also don’t like the idea of gender — or race, or ethnicity, or religion — being the determining factor in someone’s selection for a post or a job. I don’t mind it being a “plus”; but if, after the Harriet Miers fiasco, Bush had picked another woman — unless this woman was clearly the best qualified candidate — it would have been a clear statement that the vacant seat was a “woman’s seat.” And that, I think, is something best avoided.

Update: In Slate.com, University of Virginia law professor Richard Schragger makes the case that Alito’s rulings show a consistent tendency to favor laws restricting abortion as much as the Supreme Court permits.

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Bad blogs! Bad! Bad!

Forbes magazine has published a lengthy attack on the blogs under the title “Attack of the Blogs.” (Registration required and it’s a bit of a hassle, but a way to bypass it, with some commentary, can be found here.)

The gist of the article is that because of the amorphousness, vastness, and speed of the blogosphere, nasty and even slanderous attacks from blogs on individuals or companies can be very difficult to combat.

Bloggers respond here, here, here, here and here (and in many other places, I’m sure). Some reactions are predictable — e.g., La Shawn Barber:

I’ll admit that in the aggregate, blogs can whip up a frenzy and create an opinion storm that probably scares the establishment more than we bloggers imagine. And that’s good.

This is America. It’s our duty to challenge politicians and the press, and with a free market system, businesses better beware, too. What frightens them so much is they can’t control us. Yes, if we libel companies or individuals, there should be consequences. But a blog swarm in itself is not a crime or an infringement of anyone’s civil rights.

A blog swarm can be a stinging gadfly, a much-dreaded possibility, or someone’s worst nightmare, but in my opinion, blogging is free expression at its purest. If we’re willing to embrace this freedom, we ought to be willing to embrace its power.

For a more balanced perspective see Doc Searl, who acknowledges that the Forbes piece has a point though he adds that it is full of unfair generalizations:

I’d like to ask Dan — and others who damn all bloggers for the sins of the few — how they’d like to read a report that calls supermarket tabloids “the newspapers” or hate sheets “the magazines.” Because that’s what happened to bloggers in this piece.

Very true. The Forbes piece was shoddy and full of generalizations and strange logical leaps. Take, for instance, this passage:

Even mighty Microsoft, for all its billions, dares not defy the blogosphere. In April gay bloggers attacked Microsoft over its failure to support a gay-rights bill in Washington State (the company is based near Seattle). “Dear Microsoft, You messed with the wrong faggots,” wrote John Aravosis, publisher of AmericaBlog, which threatened to oppose Microsoft’s plans for a big campus expansion unless the company caved in. Microsoft reversed itself two weeks later, saying it supports gay-rights legislation after all. It says pressure from its own employees, not from bloggers, caused the change of heart.

So was it the bloggers or the employees? How does Forbes know it was the former? And if it was, how is this different, in principle, from pressure exerted by print media or talk radio or an old-fashioned letters campaign?

Professional journalists, if you’re going to attack bloggers for irresponsibility, you’d better make sure you got your facts straight.

Nonetheless, I think that the blogocrats (dang, I thought I’d coined a phrase but just found 90 hits for it on Google) can be pretty smug about the self-correcting power of the blogosphere. As Powerline’s John Hinderaker told Forbes:Some people in the blogosphere are too smug about free speech. They’ll say it’s okay if people get slandered or if people make up fake stuff because in the end the truth wins out … But I don’t think that excuses it.” No, it doesn’t. The truth doesn’t always win out in a cacophony of discordant voices. And even if it does, by then a lot of damage may be done. How would you like to battle rumors that you’re a spouse abuser or a child abuser for two or three weeks before the dust settles?

The other day, a certain David Weinberger of Joho the Blog took issue with my critique of certain bloggers who fueled the “Jihad at the University of Oklahoma” hysteria. His main point seemed to be that the New York Times gets things wrong too. Okay, it does; as I pointed out in my response to Mr. Weinberger, I acknowledged that in my column. In his reply, Weinberger accused me of making a “hasty generalization” about blogs, and then went on to say:

Blogs, to my way of thinking, are an extension of the conversations we’ve been having with our friends ever since humans starting having friends. That means we gossip, go wrong, speak without evidence, speculate wildly, leave typos uncorrected, and make tasteless jokes. The conversational nature of blogging – which necessarily includes its fallibility – is something. I believe, we need to encourage, not reform.

Because blogging is a conversation (imo), it continues even after some reasonable people think the hash has been settled. Journalism, on the other hand, aims at discovering facts, piecing together the truth, resolving the issue, publishing it, and moving on to the next edition. That’s good too, but so is the nattering refusal to accept the WSJ’s and FBI’s resolution of an issue.

Well, if Weinberg’s description is correct, what he says about blogs is more damning than any generalization I could make.

Are the bloggers “citizen journalists,” or gossips with a wider reach than ever before? If they’re the latter, then their growing influence is indeed cause for alarm. Fortunately, I don’t think the blogosphere is nearly as bad as Weinberger paints it (though of course he doesn’t think his portrait is “bad”). But still.

Yes, the mainstream media can also perpetrate lies and smears (see the McMartin case), and in a way those lies and smears are far more dangerous than the blogs’ because they established newspapers, magazines, and TV stations do have more credibility. On the other hand, a lie or distortion in the blogosphere can spread much faster, and can be far more difficult to put down — and also, the culprit can be much, much more difficult to identify.

The only answer, as I suggested before, is for bloggers to hold themselves and each other to higher standards. It may not be easy, given the amorphous nature of the blogosphere. But we can try.

La Shawn Barber says that with freedom of expression comes power, and we (bloggers, and presumably mainstream journalists who “get it”) shouldn’t be afraid of it. That’s a fine sentiment. But power without responsibility is very bad news.

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The McMartin postscript

One of the alleged victims in the McMartin case, the mother of all day care sexual abuse panics of the 1980s, has recanted and now says that he was never abused. Like the other “victims” in the case, Kyle Zirpolo initially insisted to the investigators that nothing happened at the preschool, and was badgered and cajoled into making up stories that grew more and more bizarre: Satanic rituals held in churches, animal sacrifice, the accused teachers flying their children on airplanes to other locations (somehow without the parents suspecting a thing). This young man was in fact a victim — not of pedophile day care workers, but of therapeutic, prosecutorial, and journalistic malfeasance.

Kudos to Debbie Nathan for breaking the story.

Kevin Drum has an excellent post about this, but he doesn’t quite cover all the bases when he names “hysteria, local newscasters, and bad child psychology” as the culprits. First of all, it wasn’t just local newscasters (will Geraldo Rivera apologize for his substantial role in taking the hysteria to the national level?). Second, let’s not forget the ideology the 1980s wave of day-care sex abuse witch-hunts: feminist panic about child sexual abuse. See this article by Alexander “even a broken clock is right twice a day” Cockburn on the feminist role in these events.

It is often forgotten that radical feminists played a key part in bringing the issue of child sexual abuse out into the open, as part of their critique of the patriarchal family. (A good recap by Rael Jean Isaac can be found here.) Obviously, raising popular consciousness about child abuse — particularly by family members and trusted authority figures, rather than the stereotypical predatory stranger lurking around the playground — was a good thing, and the feminists deserve credit for it, even if their interest was often driven by some pretty demented ideas (such as Florence Rush’s claim that our society condones sexual abuse because it’s the process by which girls are trained to acquiesce in their subordinate role). But this achievement had a very dark side: a wave of false accusations of sexual abuse, including the “recovered memory” craze and grotesque stories of ritual sexual abuse in Satanic cults. The Los Angeles County Commission on Women even formed a Task Force on Ritual Abuse.

When some voices of sanity — including feminists such as Debbie Nathan, Carol Tavris and Wendy Kaminer — began to speak up against the hysteria, some of their “sisters” did their best to silence dissent by labeling it as collusion with patriarchy. Here’s Harvard Medical School psychiatrist Judith Herman chastising the left-of-center magazine Mother Jones for having the temerity to publish a piece about false memories:

Violence against women and children is deeply imbedded in our society. It is a privilege that men do not relinquish easily. So it’s not surprising that we would see serious resistance to change. Historically, every time a subordinate group begins to make serious progress, a backlash occurs. This is what happened one hundred years ago when Freud created the myth that hysterical women fantasize about sexual abuse. It makes perfect sense that we would now see another backlash in the pages of Playboy or even the New York Times. But I have to admit that I’m surprised at Mother Jones.

Gloria Steinem was also in the forefront of pushing the “recovered memory” agenda. Among other things, she narrated the 1995 HBO documentary The Search for Deadly Memories, and as far as I know she has continued to insist that the McMartin defendants were guilty.

Some point out that the other ideological foundation of the day care sex abuse craze was right-wing hostility to day care. There probably was some of that: the alleged abuse seemed to confirm the worst fears about the children of working women being “dumped with strangers.” But I don’t recall any conservatives of Steinem’s prominence lending his or her voice to the witch-hunts, or any conservative magazine running a lurid cover story titled, “Satanic Ritual Abuse Exists — Believe It!” (That particular honor goes to Ms. magazine.)

The radical feminists who pushed the “sexual abuse is everywhere” meme were interested in vilifying conventional masculinity and depicting “patriarchal culture” as a cesspool of misogynist atrocities; but the bitter irony is that so many of the victims of the resulting hysteria were women. That includes several of the McMartin defendants, as well as Margaret Kelly Michaels, the New Jersey preschool teacher who spent five years in prison after begin convicted on lurid charges of sexual molestation.

The reversal of Michaels’s conviction in 1993 marked the beginning of the end of the 1980s sex-abuse witch-hunts. The McMartin recantation may well be the final nail in the coffin.

Someone tell Gloria and Geraldo.

Note: The excellent HBO docudrama about the McMartin trial, Indictment, first aired in 1995. The script by Abby Mann was pitched to the networks but rejected because it took the unequivocal position that the defendants were innocent, and that was just too controversial at the time. Highly recommended, with great performances by James Woods as the lead defense attorney, Henry Thomas as defendant Ray Buckey, and Lolita Davidovich as therapist Kee McFarlane.

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