Jeffrey Toobin’s Supreme Meltdowns; Liner Notes

I have a new column up at The Federalist, “Jeffrey Toobin’s Clueless Supreme Court Meltdowns Should Embarrass CNN,” mostly about his strange claim that the stakes for Supreme Court nominations are higher now because the framers of the Constitution thought everyone was dying in their 50s — a view that misunderstands vital statistics and misleads as a matter of history.

What got left out?  I was writing on a de facto ASAP deadline, so one thing I neglected to note that John Adams nominated two Justices who served over 30-year terms — one of whom was Chief Justice John Marshall.  Jefferson and Madison also nominated Justices who served more than 30 years, including the famous-among-lawyers Joseph Story.  Chief Justice Roger B. Taney, who burdened us with the Dred Scott opinion, served over 30 years due to Andrew Jackson.

It would be fair to say — as Jeffrey Rosen has — that while the average term for a Justice is roughly 15 years, it has increased to 25-26 years in the period since 1970.  But this math doesn’t really help Toobin.  To the contrary, the timing suggests that the tendency of Presidents to nominate younger Justices who can serve longer terms has little to do with increases in life expectancy, but a lot to do with the late Warren Court and early Burger Court appropriating power and converting the Court into the sort of political institution the framers worried about.

I also wound up leaving out the bigger picture, though it’s one familiar to WHRPT readers.  Here you have Toobin, CNN senior legal analyst, sounding more like the network’s progressive talking heads like Neera Tanden — despite the fact that the “finalists” were known well in advance, allowing Toobin plenty of time to research their records and philosophies.  Why does that happen?  In large part because news has devolved into infotainment, a problem accelerated by Jeff Zucker’s tenure at CNN.

PS: Consider sharing this post with the buttons below, as well as following WHRPT on Twitter.  Thanks for reading and sharing.

Is Progressive Ideology Incompatible With The First Amendment?: Liner Notes

That’s the title of my latest column at the Federalist analyzing a law review article mentioned in that recent New York Times “news” story about conservatives “weaponizing” free speech.  Georgtown’s Prof. Seidman argues that the free speech right as conceptualized in American law is at its core not progressive, and I’m inclined to agree, even if his account of the history of the law and his understanding of how media works are flawed.

What got left out for space?  In a column about a substantial article discussing a complex topic, plenty.  I’ll mention some historical items here.

For example, something Seidman barely alludes to — and which I don’t really mention as a criticism — is that the Supreme Court did not get into the business of judging whether state laws violated the first amendment (through its “incorporation” against the States via the fourteenth amendment) in a serious way until after 1925.  That’s not the only reason America’s free speech jurisprudence was less libertarian through the mid-20th century.  But the fact that the Court was necessarily considering fewer speech claims through much of our history was a factor in how often the Court was obliged to wrestle with the essentially libertarian ideas at issue.

Seidman’s account of history also skips WWII, during which FDR was certainly keen to prosecute seditionists, but was moderated by his Attorney General, the need to preserve wartime secrets, and other factors.  FDR was more successful in employing other tactics of censorship, though the Court was not bad on speech-related issues, including the Pledge of Allegiance case.  All of this is covered in an article by Prof. Geoffrey R. Stone.  Given that the Court was in other ways pliant to FDR’s wartime agenda, its fairly libertarian record on speech issues is notable, even if it does not fit Seidman’s odd retelling.

Indeed, had Seidman simply acknowledged a general long-term trend toward a libertarian reading of the first amendment (albeit not a purely straight-line path thereto), he could have more strongly made the case that the core of the text was quite likely to lead the Court where it did — which is why he thinks the first amendment can’t be progressive.  He chose instead to present a more convoluted tale that seems designed to pitch fellow progressives on the idea that the Court has rarely been useful to them, even though he concedes in his introduction that it has been on occasion.

OT: Tomorrow’s the Fourth of July, so I’ll re-link to my piece on “(Fictional) Advice to John Adams.”  Happy Independence Day!

PS: Consider sharing this post with the buttons below, as well as following WHRPT on Twitter.  Thanks for reading and sharing.

The Ungrateful Left Dumps on Justice Kennedy: Liner Notes

I have a new column up at The Federalist today: “The Left’s Spite Against Justice Kennedy Should Warn Anyone Who Tries To Please Them.”  Essentially, it argues that progressives know they’re unlikely to get a new Supreme Court nominee that’s better for them than Kennedy, but can’t help dumping on him because ingratitude is a core progressive trait.

What got cut for space? Virtually nothing, because this was me ranting to some people and those people saying I should write it as a column.  So I did, though I don’t think the tone is particularly ranty.  There are rants like this that tend to write themselves, as evidenced here by the fact that the very end manages to close a circle with the very beginning.

If I wanted to add anything, I suppose i could have pointed out that the Left has the same sort of ungrateful and counter-productive attitude toward Trump skeptics on the Right.  If you’re a progressive, the only option that should be open to such skeptics is to vote Democrat, even if the skeptics disagree with almost all of the progressive agenda.  It doesn’t occur to them that the effect would be to shrink the GOP to Trump supporters, which doesn’t serve conservatives’ medium-term interests.  Or Democrats’ for that matter, unless they think that having to cling tightly to Bill Clinton after the 1994 midterms served their medium-term interests (spoiler: it did not).

Janus v. AFSCME: Liner Notes Plus

I have a new column up at The Federalist on the Supreme Court’s opinion in Janus v AFSCME.  It’s mostly an explainer, I wrote over lunch yesterday when it might have been needed on a “breaking news” basis —  but Justice Kennedy’s retirement moved it to today.  That said, people (esp. non-lawyers) interested in walking through what the Court actually decided may find this useful; the media has already told you about the political fallout (though I have attached some numbers to that piece of the story also).

Given the circumstances, there really wasn’t much that got cut for space.  I could have expanded on the conclusion, which addresses how the Court found itself addressing the remarkably timely issue of compelled speech.  Ed Morrissey and Guy Benson have both expanded on this aspect and are both worth reading.  Whatever you might say about the retiring Justice Kennedy, his legacy beyond same-sex marriage will be mostly about freedom of speech.  The dissenting liberals in Janus seem upset that upholding the First Amendment may get in the way of progressives’ economic and regulatory agenda, but that’s because freedom of speech (and relatedly freedom of religion) are the core freedom on which America is based, the one we most need the Second Amendment to protect.

Summer Power Pop: Liner Notes

I have a new column (or playlisticle) up at the Federalist, “12 Summer Power Pop Gems You Need In Your Life Right Now.”  For the majority of you here for politics, consider it a look at one small facet of cultural conservatism, given the genre’s emphases on pop classicism and nostalgia.  Indeed, the genre’s de-emphasis of blues influences in favor of traditional pop and folk-rock would even lend itself to an analysis of whether the genre is due for a cultural anxiety-based resurgence at the moment rap and hip-hop have become the dominant force in pop.  But it’s the weekend, so I was trying to be a little lighter about it.

What got left out for space?  To begin with, everything.  As Mary Katherine Ham would note, science says that Power Pop was destined to be my lifelong musical comfort food, so I could have written twice or thrice as much about virtually everything mentioned in the column.  About Cheap Trick as a seminal Power Pop band given their marriage of Beatlesque melodicism with the musical power of the Who.  Indeed, “power pop” is generally considered to be a term invented by Pete Townshend to describe his band’s sound in the mid-60s.

I could have expanded on the odd interpersonal dynamics of the Beach Boys that were amazingly set aside for “Do It Again,” and what its success said about the late 60s writ larger.  Although we now metabolize this period of Rock as being about the Jefferson Airplane, Jimi Hendrix, etc., the Top 40 format — being the product of an American monoculture — was always more diverse than that.  In the 70s, it was the sort of space where you might hear Led Zeppelin, Smokey Robinson, and Dolly Parton within the space of an hour.  At the turn of the century, TRL served this sort of function.  But in the late 60s, you were just as likely to hear the instant nostalgia of the Beach Boys — or even Frank Sinatra — as you were to hear the bands that played Woodstock (though in fairness, even Woodstock included the 50s nostalgia act Sha Na Na).

I certainly could have written an entire column just about Big Star and the alternative bands that followed in frontman Alex Chilton’s wake (with the near-obligatory note that Chilton got his start as a teenager, singing hits like “The Letter” and “Soul Deep” for The Box Tops).  I mentioned the dB’s, Hoodoo Gurus and Redd Kross (even The Bangles at the outset), but it extends to bands like Game Theory, the Windbreakers, even The Replacements to name just a few more.  And it was a small world.  For example, Redd Kross has backing vocals on “Bubblegum Factory” from Susan Cowsill — formerly of The Cowsills, the real-life inspiration for the Partridge Family.  She married Peter Holsapple of the dB’s; they later formed a band (the Continental Drifters) with The Bangles’ Vicki Petersen (who later married John Cowsill).  Game Theory’s frontman, the late Scott Miller, was a contemporary of Susanna Hoffs, whose post-Bangles career includes a series of covers albums (“Under The Covers”) with Matthew Sweet.  Jeff “Mutt” Lange produced not only The Records’ debut, but The Cars’ Heartbeat City, including the Summer Power Pop classic  “Magic.”  Indeed, Cheap Trick even got the commission to rework Big Star’s “In The Street” as the theme for That 70s Show.

I had to leave out that the Katrina & The Waves LPs came out on a Canadian hard rock label because that label had previously distributed songwriter-guitarist Kimberley Rew’s prior band, The Soft Boys, a psychedelic postpunk pop band fronted by Robyn Hitchcock (Rock’s answer to Lewis Carroll).  Or that Fountains of Wayne’s main songwriter, Adam Schlesinger, is so steeped in pop classicism that he also wrote the titular song for the movie That Thing You Do, as well as the George Michael homages for Music and Lyrics.

I could go on, but it’s probably better if you just click over for my observation about the human condition at the end of the piece (I always try to add a little something, even to a playlisticle) and enjoy the music.

PS: Consider sharing this post with the buttons below, as well as following WHRPT on Twitter.  Thanks for reading and sharing.

Why the Left Will Forgive Joy Reid: Liner Notes

I have a new column at The Federalist today about MSNBC weekend host Joy Reid’s third and presumably final apology for various posts she wrote on her now-defunct blog back in the Aughts.  It goes beyond the failures of Reid or MSNBC to address her , widely disbelieved claims that her old blog was hacked and that the matter was under FBI investigation, to explore why the Left must forgiven her for taking positions that were not far out of the progressive mindset when she wrote them.

What got left out for space?  Not much, though I could have elaborated a bit further n the final paragraphs.  What I will add here is that I have been largely unable to post here as regularly as I would like due to a minor health issue, which is slowly improving.  Accordingly, it is my hope to resume posting more here, even if they start off as shorter observations.  I have a bcklog of subjects upon which I could comment already.

PS: Consider sharing this post with the buttons below, as well as following WHRPT on Twitter.  Thanks for reading and sharing.

Spotify Faces the Music and MeToo Movement

My second column at The Federalist today is, “Why Spotify’s Decision To Censor Artists Opens An Bottomless Rabbit Hole.”  The decision of music streaming services to not only start policing “hate content,” but also to de-promote artists judged by them to have engaged in “especially harmful or hateful” conduct is going to turn into a chronic headache for these companies.  In particular, I suspect they will conclude that the statutory rape of minors is acceptable, based mostly on how many major rock and roll artists can plausibly accused of it.

Not too long ago, I had to leave out a discussion of the way we have let institutions decline and be replaced with platforms, and yet there is popular demand for platforms to act like institutions.  That discussion gets surfaced in today’s column.

What gets left out due to length this time is a discussion of the activist groups Spotify has recruited to help them implement their policy.  This is a moment of crisis management, so the impulse to bring in brands like the SPLC and GLAAD as an exercise in trust-building and branding is vaguely understandable, particularly if the execs at these companies lean left.  But I suspect Spotify will discover these groups make their living on expanding the scope of controversies, not quelling them.  And at least some of these groups will have no compunction about stabbing Spotify in the back the moment their political agenda diverges from Spotify’s desire to make a profit.  Unless these groups get to wet their beaks, of course.

PS: Consider sharing this post with the buttons below, as well as following WHRPT on Twitter.  Thanks for reading and sharing.

Andrew Sullivan Almost Seems Sane: Liner Notes

I have two new columns up at The Federalist today, the first of which is, “When Andrew Sullivan Almost Seems Sane, You Know We’re Crazy.”  The thesis is that Sullivan’s 2015 hiatus from blogging has allowed him to return as a columnist (for New York) who looks much saner in the Trump era than he actually is.  While original thinkers almost inherently will have some odd beliefs, Sullivan’s history as a conspiracy theorist should not be forgotten, even if it is overlooked by an establishment that finds most conservatives “too hot to handle” on their own pages.

What got left out for space?  By focusing on the conspiracies, I had to forgo a lot of the Sullivan nuttery that falls outside that category.  For example, while I referred to his theory about “Christianists” trying to take over America, I skipped his corollary view that circumcision is directly akin to female genital mutilation.  There was his effort to rewrite the Catechism of the Catholic Church to claim it views homosexuals as “intrinsically disordered… enemies of our own families and a threat to civilization as a whole,” when the Catechism actually describes the tendencies as disordered, adding the people involved: “must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided.”

I also skipped Sullivan’s rampant political revisionism.  When he turned against the war, he desperately needed to find ways he could portray John F. Kerry as more conservative in 2004, which led him to focus on George W. Bush’s big spending (a point half-true insofar as Kerry in most every case wanted to spend more).  In 2008, Sullivan gushed over Barack Obama while overlooking his proposed spending (which ballooned even further once elected).

And even now, I am scratching the surface.

PS: Consider sharing this post with the buttons below, as well as following WHRPT on Twitter.  Thanks for reading and sharing.

Facebook and Google Police the Irish Abortion Referendum: Liner Notes

I have a new column up at The Federalist, “Google And Facebook Restrict Speech About Ireland’s Abortion Referendum.”  It opens like this:

“In a 1983 referendum, Ireland overwhelmingly voted to enact the Eighth Amendment to its constitution, which protects the lives of the unborn: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

This month, there will be another vote on whether to repeal the amendment. Global tech giants Facebook and Google have been drawn into the campaign, with different approaches reflecting possibly different politics.”

While both companies likely have pro-choice leanings, Facebook chose to refuse only foreign ads (in line with their current U.S./Russia hangover), while Google is refusing all adds related to the vote.  The former didn’t bother pro-lifers much; the latter very much does.

What got left out for space?  Well, space tended to push me to a conclusion that’s about whether there will ever be bipartisan support for an antitrust investigation of these two companies’ dominance in online advertising.  With more space, it might have been more of a piece about the way we have let institutions decline and be replaced with platforms.  What we are discovering is that some platforms would like to be more active in the public square and conversely, that the elites of withering institutions would like to recruit platforms into more institutional roles.

PS: Consider sharing this post with the buttons below, as well as following WHRPT on Twitter.  Thanks for reading and sharing.

Joy Reid’s Bizarre Non-Apology is “All in the Family”: Liner Notes

I have a new column up at The Federalist on MSNBC host Joy Reid’s non-apology for past homophobic blog posts and tweets, which someone on Twitter joked could have been titled “(If) I Blogged It.”  But what it’s really about is reminding people that the progressive left has its share of “alliances” with racists, misogynists and other bigots that are tolerated by the establishment in ways that are never tolerated when found on the right:

The operational rule of American progressivism was explained by Jeffrey Goldberg when he fired Kevin Williamson from The Atlantic for his views on abortion. When Williamson objected to Goldberg that The Atlantic had a history of publishing provocative writers like the late Christopher Hitchens, Goldberg replied, ‘Yes. But Hitchens was in the family. You are not.’

Many have remarked on the tribalism embodied in that response. More significantly, it is tribalism in the service of enforcing the ugliest sort of double-standard. The rules are simply different for those ‘in the family.’

As usual, I had to leave various points out due to length.  For example, when noting MSNBC would be hard-pressed to fire Reid while retaining Brian Williams and defending Tom Brokaw, I cut a bit noting it’s the funhouse mirror version of the Boston Globe firing Mike Barnicle in part because they decided they had to fire Patricia Smith.  That the calculus now points against firing people may indicate the growing imperative of maintaining “alliances.”

(When I sarcastically noted that “dozens of women at NBC spontaneously decided to defend” Brokaw, I did not know that they reportedly “they felt under huge pressure to sign” the letter.)

Also, while  focused mostly on the institutional question, I wish I could have included a bit on rank-and-file lefties on social media.  Conservatives who happen to be women, or persons of color, or Jewish, or LGBTQ, etc. are pretty routinely the focus of bigoted attacks from progressives.  They also get attacked by the alt-right, but the alt-right slime does not purport to exercise absolute moral authority as the progressive left does.

Had I been able to get into that, I could have gone further into the degree to which this dynamic reflects a deeper, more basic difference between left and right.  The latter tend to assume human nature does not change much, recognizes that this is why we need “civilization,” and argue with the left primarily about how quick or coercive we can be in civilizing others.  The further identity politics drives the left into thinking humanity can be remade and remade quickly and coercively, the more the Joy Reid stories they will be forced to overlook.

PS: Consider sharing this post with the buttons below, as well as following WHRPT on Twitter.  Thanks for reading and sharing.