Andrew Sullivan's Blog, page 345

Chaotic in Crimea, Ctd

#BREAKING 2,000 Russian soldiers land in “armed invasion” of Crimea: Kiev official

— Agence France-Presse (@AFP) February 28, 2014

#Crimea
RT @markmackinnon: Russian troop trucks on road north of Sevastopol: pic.twitter.com/P7K91JR45b

— Maxim Eristavi (@MaximEristavi) February 28, 2014

Armed men seize Ukrtelecom building in Sevastopol, cutting off phone & Internet access to 80% of local population. gazeta.ru/politics/news/…—
Kevin Rothrock (@KevinRothrock) February 28, 2014

Russian fighter jets are flying CAPs over the Sea of Azov. Mi-24s and APCs (also Russian) have been seen within Crimea. 1/3—
Collin Fisher (@CollinFisher) February 28, 2014

And attack helicopters:

Special representative to Crimea: thirteen Russian aircraft land at base near Sevastopol with 150 people on each—
Sky News Newsdesk (@SkyNewsBreak) February 28, 2014

This is not good – Russian consulate in #Crimea ordered to hand out citizenship to #Ukaine riot police Berkut. itar-tass.com/politika/10123…—
Dan Peleschuk (@dpeleschuk) February 28, 2014

Crimean airspace now closed and reports telecoms have been cut too – events accelerating fast in Ukraine and still no word from Putin—
Tony Halpin (@tonyhalpin) February 28, 2014

If gunmen in Crimea are not acting on Kremlin's behalf, it would calming for Russian govt. to say so. Silence fuels uncertainty, instability—
Michael McFaul (@McFaul) February 28, 2014

BREAKING: White House: Russian intervention in Ukraine would be grave mistake http://t.co/BZhOPl2RHe #ukraine #crimea pic.twitter.com/SJnCNQNDvy

— Haaretz.com (@haaretzcom) February 28, 2014

Obama: “There will be costs for any military intervention in Ukraine”

— Ilya Mouzykantskii (@ilyamuz) February 28, 2014

The Interpreter continues to see Russia’s actions as a prelude to war:

For days we’ve been reporting rumors that the Russian government was expediting passports for ethnic Russians wishing to flee Crimea. There was a draft law debated to this effect in the Russian State Duma. Now, this announcement on the Russian Foreign Ministry’s Facebook page:

Consulate General of the Russian Federation in Simferopol urgently requested to take all necessary steps to start issuing Russian passports to members of the “Berkut” fighting force.

In other words, Russia is now urging the nationalization of Yanukovych’s riot police. Why is this important? Before Russia invaded Georgia in 2008 they issued passports to ethnic Russians.

Some background on that invasion:

[In 2008], Moscow was accused of stirring up tensions in the separatist regions of Abkhazia and South Ossetia and goading Mikheil Saakashvili, Georgia’s pro-western president, into ordering his armed forces to retake control of South Ossetia. Russia responded by sending in troops and warplanes and crushing the Georgian military in the five-day conflict.

Putin will never let go of Crimea, especially the great Russian base of Sebastopol. By comparison South Ossetia was a minor matter.—
Christopher Meyer (@SirSocks) February 28, 2014

But Jonathan Marcus doesn’t think comparisons to Georgia are appropriate:

Georgia was a small country that had deeply irritated Moscow and one that could do little to respond against Russia’s overwhelming military might. … Given the size of Ukraine and the divisions within its population, it would simply saddle Russia with involvement in what might rapidly become a bitter civil war. Russian pressure at the moment serves a different goal. Ukraine is heading towards bankruptcy. It needs outside funding. Moscow knows that Western financial institutions must play some kind of role. Its concern is to underline in as clear terms as possible that any future Ukrainian government should tilt as much towards Moscow as it does to the EU. Russia’s bottom line is that Kiev should resist any temptation to draw towards Nato.

Actually, I agree. Putin doesn't want to invade Ukraine right now. He wants to start a Ukrainian civil war. And THEN invade.—
Garry Kasparov (@Kasparov63) February 28, 2014

Joshua Tucker sides with Marcus:

Ukraine is a much bigger country, with a much bigger population, and a much bigger military. Georgia has 37,000 active military personnel and 140,000 active reserve personnel.  Ukraine has 160,000 active, and 1,000,000 reserve.  A war with Ukraine would look very different from a war with Georgia. …

What’s really in it for Russia?

Say everything goes as best as it possibly could for Russia: Crimea secedes, Ukraine goes along with it without a fight, and Crimea eventually joins Russia.  Russia gets some nice new beaches, but do they really want a Ukraine as a neighbor which now (a) regards Russia as the biggest external threat it has, and (b) has just lost lots of Russian-speaking voters?  Wouldn’t that seem to guarantee a hostile Ukraine for years and years to come?  And would another region of Russia with a potentially restive ethnic minority, [the Turkey-backed Crimean Tatars,] be worth that price?

Leon Mangasarian adds that a full military conflict remains unlikely:

[Eastern European analyst Anna Maria] Dyner said economic concerns are an even bigger reason discouraging Russia from overt intervention in Ukraine. The Kremlin doesn’t have “a huge amount of money to spend on such a big operation,” she said. More fundamentally, she added, Russia’s slowing economy is a factor.

“Ukraine is an important gas transit country to Europe and a conflict would probably damage pipelines, further harming ties with the West,” Dyner said. “This would damage the Russian economy, which is the last thing Putin wants right now, just as they’re thinking about reforms amid weak growth.”

But Luke Harding believes that “Moscow’s military moves so far resemble a classically executed coup” in Crimea:

[S]eize control of strategic infrastructure, seal the borders between Crimea and the rest of Ukraine, invoke the need to protect the peninsula’s ethnic Russian majority. The Kremlin’s favourite news website, Lifenews.ru, was on hand to record the historic moment. Its journalists were allowed to video Russian forces patrolling ostentatiously outside Simferopol airport. …

From Putin’s perspective, a coup would be payback for what he regards as the western-backed takeover of Kiev by opposition forces – or fascists, as the Kremlin media calls them. The Kremlin argument runs something like this: if armed gangs can seize power in the Ukrainian capital, storming government buildings, why can’t pro-Russian forces do the same thing in Crimea?

Meanwhile, Josh Rogin reports that the troops in Crimea may not be official Russian forces, but rather soldiers working for the equivalent of Russia’s Blackwater, probably under the direction of Russia’s military:

[Analyst Dimitri] Simes cautioned that information about the fast moving events in Crimea is hard to verify, but the message coming out of Moscow is that these security contractors were deployed by the Russian military for two purposes; first of all they want to secure the airport to ensure that thousands of pro-western protesters don’t descend into Crimea to push back against the Crimean population’s effort to establish a new government and seek some autonomy from the new government in Kiev, which most Crimeans see as illegitimate.

Second, the forces could be paving the way for Yanukovich to travel to Crimea, where he will maintain that he is still the president of all Ukraine. In fact, Yanukovich was involved in the decision to deploy the security contractors to the airport, he said. …

[T]he private security forces provide a loophole for Vladimir Putin; he can claim there is no Russian “military” intervention while using Russian-controlled forces to exert influence inside Ukraine. The plan would be to give the new Crimean government a space to hold a referendum and then elections, thereby establishing a province with some autonomy from Kiev.

Keating doesn’t think anybody would be able to stop Russia from having its way with Crimea:

The fragile new Ukrainian government, which has other problems, not the least of which is keeping other parts of the country from splitting off, doesn’t really seem like it’s in a position to retake Crimea by force, risking a full armed intervention by the Black Sea Fleet. These moves likely violate the 1994 agreement between the U.S. and Russia under which Moscow agreed to respect Ukraine’s sovereignty within its current borders in return for Kiev giving up its Soviet-era nuclear weapons. Beyond verbal warnings, the United States certainly seems extremely unlikely to intervene.

He nonetheless warns against assuming this would a big win for Putin:

[G]aining de facto control over yet another dysfunctional pseudostate, essentially ensuring long-term tension with Kiev in the process, certainly doesn’t seem as good an outcome as what Russia thought it was getting a month ago: a government of the whole of Ukraine tied economically and politically to Russia rather than Europe. This isn’t really a great outcome for anyone.

The Silent Sex

Mary Beard speaks up about women’s voices being muted throughout history:

[P]ublic speaking and oratory were not merely things that ancient women didn’t do: they were exclusive practices and skills that defined masculinity as a gender. As we saw with Telemachus, to become a man – and we’re talking elite man – was to claim the right to speak. Public speech was a – if not the– defining attribute of male-ness. A woman speaking in public was, in most circumstances, by definition not a woman.

We find repeated stress throughout ancient literature on the authority of the deep male voice. As one ancient scientific treatise explicitly put it, a low-pitched voice indicated manly courage, a high-pitched voice female cowardice. Or as other classical writers insisted, the tone and timbre of women’s speech always threatened to subvert not just the voice of the male orator, but also the social and political stability, the health, of the whole state. So another second-century lecturer and guru, Dio Chrysostom, whose name, significantly, means Dio ‘the Golden Mouth’, asked his audience to imagine a situation where ‘an entire community was struck by the following strange affliction: all the men suddenly got female voices, and no male – child or adult – could say anything in a manly way. Would not that seem terrible and harder to bear than any plague? I’m sure they would send off to a sanctuary to consult the gods and try to propitiate the divine power with many gifts.’ He wasn’t joking.

Mental Health Break

“Careless Whisper” gets a ’30s jazz remix:

Little Kids Are Slimming Down, Ctd

Zachary Goldfarb examines the racial disparities in the JAMA study:

We’re celebrating the fact that for all kids ages 2 to 5 childhood obesity has declined from 13.9 percent to 8.4 percent over 10 years. Yet, 11.3 percent of black children ages 2 to 5 and 16.7 percent of Hispanic children that age are obese. Just 3.5 percent of white children ages 2 to 5 are obese.

Why the disparity? Income certainly plays a central role, though this study didn’t look at that factor. Researchers have other ideas, including the fact that black and Hispanic children eat solid foods earlier than doctors recommend, watch more television, have a higher intake of sugar-sweetened and fast foods and have mothers who face higher levels of maternal depression. It’s not a hopeless situation – breastfeeding by black and Hispanic children has increased, and government programs are fighting the disparity — but the gaps are vast.

Meanwhile, Razib Khan casts doubt on the study. A reader joins him:

In your post about the JAMA study about kids slimming down, the caveats loom large.

In a nutshell, in the minds of the authors themselves, the results of this study are sufficiently shaky that they are reporting only a modest decrease. According to the authors’ own statistics, the data is sufficiently noisy that such a decrease isn’t particularly surprising [1] even if the observation were the only one they examined. However, there is an even more disturbing shortcoming of the study’s conclusion about kids, one which the authors again acknowledge [2]. While it may be at most mildly surprising to observe that large of a change if you only made one observation, if you made a lot of observations, you’d be terribly surprised if a handful weren’t that extreme by chance alone. Surprisingly, JAMA allowed this overhyped conclusion based on an unsurprising and marginal result to be published. Predictably, it has generated headlines around the web. While predictable, this is very frustrating to scientists like me.

[1] In their paper, they write:

There was a significant decrease in obesity among 2- to 5-year-old children (from 13.9% to 8.4%; P = .03) [...]

In statistical parlance, they observed a p-value of 0.03 or 3%. This means that, even if there were no true change in rates obesity, noise alone could underly an apparent decrease of this magnitude 3% of the time. In biomedical studies, the most speculative and lax standard for calling a result “statistically significant” is conventionally set at 5%. There is nothing magical about 5%, but it comports with our sense of “not very likely”. Suffice it to say that most scientists consider 5% significance to hardly worth mentioning. See here, here, and here for how physicists deal with the issue of “statistical significance”.

[2] The authors admit:

In the current analysis, trend tests were conducted on different age groups. When multiple statistical tests are undertaken, by chance some tests will be statistically significant (eg, 5% of the time using α of .05). In some cases, adjustments are made to account for these multiple comparisons, and a P value lower than .05 is used to determine statistical significance. In the current analysis, adjustments were not made for multiple comparisons, but the P value is presented.

Why this didn’t undermine the whole argument in the minds of the reviewers and/or editors of JAMA is beyond me. As a reviewer, I certainly would have been been extremely skeptical of one or a handful of marginally statistically significant results, especially when the 3% result is the one generating the biggest headlines. That 3% is virtually indistinguishable from a 6% result result that wouldn’t have generated headlines.

But nevertheless, Paul Campos feels that the JAMA findings are “consistent with broader international trends”:

As Michael Gard notes in his recent book The End of the Obesity Epidemic, data from all over the world indicate that, over the past ten to 15 years, obesity rates have leveled off or declined among adults and children. This is an awkward development for obesity fear-mongers, who as Gard and others have pointed out, have repeatedly claimed that within another generation or two the entire population of some nations, most notably the United States, would be fat.

The claim that obesity is an epidemic phenomenon, and that its prevalence was on the way to approaching 100 percent, has always been crucial to the other claims of the anti-fat industry, most notably that today’s children will have shorter lifespans than their parents, and that obesity is as great a threat to public health as global warming. There has never been any real evidence for these claims: life expectancy continues to rise, overall health continues to improve, and today’s young people are healthier than their parents were at the same age. Faced with these inconvenient facts, the obesity police have always argued that, while it’s true we’re not seeing the supposedly devastating effects of a heavier population at the moment, we will surely see these effects if present trends continue.

The Miraculous Muscleheads Of Hollywood

So this is what you get from the New York Times when explaining how leading men in big budget movies look like a different species today compared with twenty years ago:

Almost any actor, even some of Hollywood’s most scrawny, can be physically transformed for the part if he’s willing to put in the hard work. The studios know this, which is why any inexpensive unknown can be chosen. The cast for “300,” including a post-“Phantom of the Opera” Butler and the relative newcomer Fassbender, were put on a brutal program with Mark Twight, a trainer whose workouts incorporated medicine balls, kettlebells and rings to emphasize the athleticism of the Spartans.

Did anyone fact-check that? Obviously not. So let’s rephrase with some hope of being vaguely close to the truth: almost any actor can be physically transformed for the part if he’s willing to put in the hard work and embrace a sophisticated steroid and nutrition regimen. The idea that the massive chiseled physiques in most action movies are simply a function of hard training doesn’t even pass the laugh-test. At one point, the reporter gingerly stumbles onto the bleeding obvious:

A number of trainers and actors told me that steroids were out there and that everybody had a good idea of who was on them — though nobody is willing to name names. But as trainers like Twight make obvious, the Hollywood fitness mechanism is brutal and advanced enough to make any performance-enhancing drug seem primitive by comparison.

Er, no. No training regime makes steroids look “primitive”.

First off, the steroids are far from primitive. They’re as sophisticated as the training methods. And it’s emphatically not either-or. Given the staggering physiques of almost all male action stars today, both drugs and training are obviously necessary. No one gets to look like Arnold without steroids, just as Arnold didn’t get to look like Arnold without steroids.

Second, just ask yourself: the piece reports a furious competition between hundreds of aspiring young male actors in an industry producing fewer movies with the baseline for action stars being a massive, muscled, chiseled and ripped torso. Did it occur to Alex French that a highly competitive environment in which steroids can mean the difference between miserable anonymity and staggering success is almost a textbook setting for a roid race? Of course it is. And of course every action movie Hollywood creates today is a paean to the power of pharmaceuticals.

Look, I’m not complaining. 300 is a gay porn movie from the gods. But please don’t try and convince me it’s really just the creatine and the kettle-bells.

Religious Liberty Or Anti-Gay Animus? Ctd

In the aftermath of Arizona, Dominic Holden is going with animus:

[S]ome are mewling that lawsuits aren’t the way to win the war of public opinion, that we should be fighting bigger battles. One of my friends said we should consider public accommodations to be necessities, like hospital visitation or lunch, but not flowers. But this isn’t about flowers. It’s about the Christian right seeing how far they can push this envelope. The line between trivial product and necessary service is an impossibly broad gray area. But if you believe same-sex marriage is a right, then consider the products and services that society defines as essential to that wedding. It’s not a seat on the bus or a seat at the lunch counter—but it’s just as important.

Dan Savage says he’s somewhere between Holden’s position and mine:

But here’s a suggestion for all the hatey, butt-sore, anti-gay bakers in Arizona: start an organization—The Arizona Association of Homophobic Bakers—and publicly identify yourselves as homophobic bakers. Put up a website with a list of bakeries that don’t want to do business with LGBT people. Put signs in your windows that clearly state that gay and lesbian customers are not welcome and will be turned away. As Anderson Cooper pointed out earlier this week, gays and lesbians are not covered by existing anti-discrimination law in Arizona. So it’s perfectly legal right now for bakers—and florists and caterers and photographers—to discriminate against LGBT customers. …

The homophobic bakers of Arizona will do no such thing of course. Because hater bakers know that putting “We Don’t Serve Gay People” signs in their windows will not only cost them our business—business they don’t want—but also the business of our straight friends, family members, and neighbors. Business they do want. And they’ll also lose the business of fair-minded straight people who think discrimination is wrong. And they’ll lose the business of straight people who worry about where this kind of selective, hypocritical, faith-rationalized discrimination could ultimately lead.

… like discrimination against the divorced. Meanwhile, now that Arizona is out of the headlines, David Cohen takes stock of equal protection laws around the country:

[T]he numbers are quite staggering.

Twenty-one states prohibit discrimination based on sexual orientation in employment; 21 prohibit discrimination in public accommodations; 21 prohibit it in housing; 26 in hospital visitation; and only 13 in education. (All stats courtesy of the Human Rights Campaign.) These numbers indicate that there are huge gaps in anti-discrimination laws in this country, especially considering that an even smaller number of states also protect against discrimination based on gender identity.

What’s most amazing about these numbers is that polls show overwhelming support for anti-discrimination laws. To most people, it’s as simple as Gov. Brewer put it on Wednesday: Nondiscrimination is a “core American and Arizona value.” And yet, the law has not yet caught up with public opinion.

The reason is simple: Republican refusal to consider any protections for gay people, and won’t bring ENDA to the floor of the House. They don’t really have an argument, since they’ve long since conceded the core question of whether firing someone merely because they’re gay should be legal. Just listen to Jan Brewer or Mitt Romney. They just know that any positive legislation for gay citizens would be anathema to their base. So they claim (implausibly) that there’s no problem for gays in employment. Which is why their base’s recent loud insistence that they should too be able to actively discriminate on religious grounds is one more excruciating twist of the incoherence. Benen sifts through more public opinion surveyed this week by the Public Religion Research Institute:

[H]ere’s the kicker: “Three-quarters (75%) of Americans incorrectly believe it is currently illegal under federal law to fire or refuse to hire someone because they are gay, lesbian, bisexual, or transgender.” This matters, of course, because three-quarters of the country is wrong. Under federal law, employers can legally fire employees if they’re gay, or even if they think the employees are gay. Some states prohibit this kind of discrimination, but most don’t.

Among those that don’t:

In late January, weeks before Kansas’ and Arizona’s odious anti-gay segregation bills drew fury across the country, the Mississippi state Senate quietly passed its own viciously homophobic “religious liberty” measure to virtually no fanfare. The bill, which is nearly identical to Arizona’s, would have the same effect as its now-notorious counterparts, allowing any private business to turn away gays at the door. But unlike Kansas’ and Arizona’s bills, which drew fierce Democratic opposition, the Mississippi measure passed with unanimous bipartisan support.

Yes, you read that right: Every single voting member of the state Senate, Republican and Democrat, supported a bill that would effectively allow segregation of gay and straight people throughout Mississippi.

But it was mercifully ditched yesterday. The import of what survives is unclear. Meanwhile, it’s worth recalling that this kind of legislation is not just being introduced in the red states:

Legislators in the Hawaii House introduced the “Religious Freedom Restoration Act” on Jan. 23. It features the language: “No individual, sole proprietor, or small business shall be required to take any of the following actions if doing so would cause the individual, sole proprietor, or small business to violate their sincerely held religious belief: (1) Provide any facility, good, or service that assists or promotes the solemnization or celebration of any marriage, or provide counseling or other services that facilitate the formation or perpetuation of any marriage; (2) Provide benefits to any spouse of an employee; or (3) Provide housing, lodging, or similar accommodation to any couple.” It was referred to the House Judiciary Committee on Jan. 27.

(Photo by Justin Sullivan/Getty Images)

Dave Camp vs The Tax Code, Ctd

Yuval Levin rightly thinks the Camp plan, detailed here and here, sets a new standard for conservative tax reform:

That this proposal has come from the chairman of the House Ways and Means Committee means it will inform future tax-reform proposals on the right. That it proposes specific, concrete changes to a large number of tax expenditures as ways of counterbalancing the effects of lower rates means it can open the path to an actual process of negotiation and legislation. Too many of our tax debates in recent years have taken place in the abstract.

And that it appears to hold middle-class families harmless (by increasing the tax burdens of some wealthier Americans while actually improving their work incentives at the margin) is important because many conservative tax proposals in recent years have funded rate reductions by increasing tax burdens in the middle. Republicans certainly can’t win on taxes if they increase the cost of living in the middle class.

Reihan especially likes that the plan eliminates the deduction for state and local taxes:

In theory, this will end the implicit subsidy of the residents of high-tax states by the residents of low-tax states, and it might also make the residents of high-tax states more attuned to the state and local tax burden.

Another view is that in the absence of the state and local tax deduction, state and local governments might under-invest in the human capital of their residents, and this in turn will shrink the tax base in future years. Coupling the elimination of the state and local tax deduction with a substantial increase in the child tax credit is an excellent way to address this concern.

But Ramesh wishes for an even bigger child tax credit:

Camp missed an opportunity to rectify one serious public-policy problem in a way that would appeal to a lot of middle-class voters. Federal policy has a bias against children, and especially against large families. By expanding the child tax credit to $1,500 per child from $1,000, Camp’s plan would reduce that bias, but only very modestly. A bigger expansion would’ve required Camp to modify other elements of his plan so that it would continue to raise as much revenue as the current code: He might have had to refrain from abolishing the alternative minimum tax, for example. It would have been a better policy, and it would have been easier to make the case for it to middle-class voters.

And Ryan Ellis criticizes the proposal for raising taxes on capital:

Under tax law, when a business buys a piece of equipment or real property, they generally cannot deduct that property in the first year (small firms have an exception to this).  Rather, they are forced to deduct the expense in pieces over several to many years in a process called “depreciation.”  Ideally, all business inputs would be expensed the first year, but the tax code is not an ideal document.

The Camp draft makes the depreciation bug even worse than current law.  They move to a slower system of depreciation where business assets must be depreciated over a longer time period and at a slower rate. … There’s also a sin of omission on capital.  The tax rate on capital gains and dividends is basically kept the same at about 24 percent … .

But crunching the numbers, Joseph Rosenberg concludes that businesses would see their overall tax burden reduced:

Add it all up and the Camp proposal would raise more revenue from businesses in the ten-year window than under current law. But does he really raise their tax burdens?

Probably not. The largest revenue raisers in the budget window are provisions that affect the timing—rather than the level—of deductions, and the temporary transition tax on deferred foreign profits. The timing changes raise more revenue during the transition than in the long-run (when higher deductions from past investments partially offset lower deductions for current investments) and revenue from the transition tax will rapidly disappear beyond 2024. Combined with the phased-in corporate rate cut and other international tax changes, this suggests that, on balance, businesses will be winners from this proposal.

Philip Klein says the GOP should go after payroll taxes:

In 2012, combined payroll taxes cost more than income taxes for nearly 80 percent of middle-income Americans, according to TPC analysis, and 63 percent of all taxpayers. And this was in a year in which the rate was temporarily reduced by 2 percent as part of a short-term stimulus agreement.

Payroll taxes distort economic activity. Not only do they reduce Americans’ paychecks, but they also increase the cost to businesses of hiring and maintaining workers, thus increasing unemployment. Because traditional payroll taxes apply to only the first $113,700 of earnings, they eat up a larger percentage of the paychecks for middle-income Americans.

Should Obama embrace the Camp plan? Zachary Goldfarb thinks so:

The funny thing is the Camp tax reform proposal is a bit of mirror image to Obama’s own budget proposals — compromise offers that try to reach the other side halfway. The Camp proposal is very much in the Obama mold.

Ahead of the 2014 mid-terms, though, Obama and the Democrats are going to blow Camp’s proposal off. And that probably makes the most sense politically. But practically speaking, Camp has offered a proposal Obama probably could work with.

I don’t see why Obama has to wait. He finally has a Republican legislative proposal that is a clear basis for a solid compromise in an area long overdue for reform. Why not grasp it with both hands, prove that gridlock is not permanent, and aim for a Reagan-style bipartisan deal that can help empower economic growth?

Shorter Peggy Noonan

“I, the proposed accused, think that, well, I mean, you know, well the day in question was not a good day for me, all right? But I put it to you that I don’t see how any day could have been good the way this bloody country’s run. Well, you know, I was just trying to do my best, trying to get from A to B, do a little shopping. I was trying to take control of my life, you know, only to find that it’s actually controlled for me by petty bureaucracy and bits of bloody paper – ignorant bloody petty rules and laws that just obstruct every tiny little action until you’ve committed a crime without even knowing it!

I mean, you know, why can’t life just be made a little easier for everybody, eh? …  I mean, there has to be more to life than just being safe… Yes, Yes!… Why, oh why, do we pay taxes, hmmm? I mean, just to have bloody parking restrictions – and BUGGERY-UGLY traffic wardens, and BOLLOCKY-pedestrian-BLOODY-crossings?… and those BASTARD railings outside shops windows, making it so difficult, so you can’t even get in them! I mean, I know they’re there to stop stupid people running into the street and killing themselves! But we’re not all stupid! We don’t all need nurse-maiding. I mean, why not just have a Stupidity Tax? Just tax the stupid people!” – Edina Monsoon, Absolutely Fabulous, from Series 2 (1994), episode #11, “Poor”. For context, see here.

Should AGs Ignore Laws They Don’t Like? Ctd

A reader thinks that’s the wrong question:

The header of your post about Eric Holder’s speech to state attorneys general on the issue of defending unconstitutional laws is quite misleading. In addition to saying that an attorney general can demur from defending an unconstitutional law, Holder said that action should be extremely rare. He was not talking about laws that AGs don’t like, but laws that they can find no straight-faced way of defending. It is part of an age-old doctrine in which government attorneys have been known to “confess error” – for example, in an appeal from a lower court decision that was clearly erroneous. Assigning special counsel does not solve the problem. The issue is not that the particular AG does not think the law is unconstitutional, but as the highest legal officer of the state, he holds the opinion that the law cannot be defended under well-established constitutional law. The stand-in would be the AG’s representative.

The issue of defending laws that outlaw same-sex marriage may be too much of a yet unsettled legal issue to justify failing to defend such a law, but imagine if a legislature passed a law similar to the one passed in Uganda. Would anybody question an AG’s refusal to defend such a law?

Another is on the same page:

No, of course an AG should not refuse to enforce a law he does not like simply because he does not like it. But as for the actual question, whether an AG should enforce a law he thinks might very well be unconstitutional, there is no right answer except that the AG has to do what he thinks is the better execution of his sworn duty.

Like pretty much every other official elected to statewide office in this country, an AG takes an oath to support the laws and Constitution of the United States and the laws and constitution of his state. The US Constitution is supreme to a state’s laws; where they conflict, state law loses. It’s an AG’s job to say when he thinks the supremacy of the Constitution has won the day and to protect the state, to the extent he can, from liability for having violated the Constitution. That duty is no different from a corporate lawyer’s job to advise his client what it can and cannot do within the law. An AG who blindly defends a law that he believes in unconstitutional is not protecting his client; he’s doing one of the worst things a lawyer can do: he’s telling his client what it wants to hear.

Another addresses the issue in depth:

As a voter in Virginia, one of those who “hired” Mark Herring to be the lawyer for the state of Virginia, I have no problem with his decision not to defend the commonwealth’s constitutional ban on gay marriage. While I found the comments you presented interesting and thoughtful, there are a few things they did not address.

First, I’ve spent my career as a government attorney. While I represent my agency and am bound to defend its actions zealously, I not only have to follow the rules of professional responsibility and ethics that apply to all attorneys, but also consider the public interest and basic fairness in a way that a private attorney, who is representing only private interests, is not. Just because a government agency can do something does not always mean that it should do it, and that attorneys should, without question, defend it. I think the state AGs who are not defending their states’ gay marriage bans are, in part, following the obligation to be more than just a hired gun. Moreover, to the degree the state has an interest in the ban being defended, parties with standing, such as the state General Assembly, are representing that interest.

Second, state AGs are not, in most states, hired; they are elected. I voted for Mark Herring – knowing full well that he supports gay marriage – so I feel that he is, in fact, properly representing the interests of the constituency he is charged to serve as state AG. A client can change his mind, and the people of Virginia, who are the real clients here, have. The homophobic bigots who pushed this amendment think they represent the people, but the people have abandoned them. I have no problem with my elected AG doing the same.

Third, this is a very unusual situation. The sea change on gay marriage that has emerged over the last several years is one of the great cultural and political shifts in our nation’s history. It is now clear that the bans on gay marriage voted on in many states during the first decade of this century were the last gasp of those opposed to gay marriage, who wanted bans on gay marriage in state constitutions to make it more difficult for ordinary voter and legislative majorities to overturn gay marriage. Indeed, the constitutional prohibitions on gay marriage that exist in a number of states do not play the usual role of constitutional provisions – establishing protections for minorities that can be overcome by transitory majorities – but instead establish publicly sanctioned discrimination against a minority that a growing majority of citizens would now like to eliminate. This is not just a once-in-a-lifetime event; it is a once-in-a-century event. AG Herring himself voted for the ban as a member of the state senate. There are few people who understand as well how rapidly views on this issue have evolved over the last several years. There are very clear limiting principles in play here. No need to worry about a dictatorship of the AGs who refuse to defend laws they don’t “like.”

Fourth, while it is true that there is no Supreme Court decision on point – and there could hardly be any case to defend if there were binding precedent that clearly defined gay marriage bans as unconstitutional. The inexorable logic of the Windsor decision, ironically aided and abetted by Justice Scalia’s over the top dissent, is pointing in one direction. I was living in Virginia in 2006, know one of the sponsors of the ban on gay marriage, and fully understand – as you do much better than I – the bigotry and discriminatory intent behind that and these other state constitutional amendments. In fact, it is entirely possible that the sheer number of these referendums and the animus behind them exposed to the vast majority of straight Americans, who may not have thought that much about their impact on real people. Over time, I think straight Americans who voted against gay marriage came to see that they were aiding and abetting bullies and hurting real people. While it took a while, the basic sense of fair play and decency of the majority was aroused and they have no come to realize that bans on gay marriage, even if they received majority voter support several years, were a mistake.

When you make a mistake, you admit it and try to make amends for it. I view what Mark Herring has done as exactly that. He shouldn’t do it that often, but if ever there was a case for a lawyer not defending his client, this is it.

“Charm It With The Beauty Of Love”

Another day, another breath of fresh air from Pope Francis:

In a nearly 3,000-word text to the Vatican’s Congregation for Bishops, Francis tells the office they should not look for bishops based on any “preferences, likes, or trends” and likewise should not seek prelates who are mainly concerned with doctrinal matters.

The church, writes Francis, does not need “guardians of doctrine” but those who “appeal to the world to charm it with the beauty of love [and] to seduce it with the freedom bestowed by the Gospel … The church does not need apologists of its causes nor crusaders of its battles, but sowers humble and confident of the truth, who … trust of its power,” the pontiff continues.

Who did Francis succeed? A theologian who policed orthodoxy as meticulously as he chose his slippers.

(Photo: The hand of Pope Francis is pictured as he waves during his general audience in St Peter’s square at the Vatican on February 26, 2014 . By Vincenzo Pinto/AFP/Getty Images.)