The Estrada filibuster, round two

Stuart Buck responds to my previous post on Estrada, arguing that there are no non-pretextual reasons for the Democrats to have filibustered Estrada but not John Roberts. Stuart definitely gets some good shots in.

We could argue these questions back and forth – Roberts’ questioning, which some of Stuart’s links imply was easy, was in fact a fairly blistering three-hour session, and furthermore it was the second time Roberts had been questioned – but lacking full transcripts, I don’t think there’s anywhere for the argument to go, on either side. Certainly, Stuart has completely failed to provide any convincing evidence that Roberts was overall as evasive as Estrada. (There seems to be no doubt that both of them were evasive, but that doesn’t establish that Estrada was not even worse than Roberts).

However, one of Stuart’s links brings up a new issue – one that I hadn’t been aware of in my previous post. From the Feminist Majority Foundation website (emphasis added by me):

Roberts was already approved by the judiciary committee in February. However, Senate Democrats asked that he be brought back for an additional hearing because his February hearing was held along with Jeffrey Sutton and Deborah Cook. Senate Republicans agreed to the second hearing if the Senate Democratic leadership agreed not to filibuster the Roberts nomination when it comes to the floor for a full vote – expected sometime next week.

Orrin Hatch confirms the existence of this “no filibuster” deal:

However, pursuant to an agreement between the Republican and Democratic Senate leadership, I have asked Mr. Roberts to return for this hearing with the clear understanding that his nomination will move to the Senate floor for an up or down vote without undue delay.

In other words, the Republicans only allowed Roberts to be questioned in exchange for a promise that he not be filibustered. No such deal could have been made for Estrada, because the Republicans were not threatening to refuse to have Estrada appear for a hearing.

(Why didn’t the Republicans make an identical effort to help Estrada – for instance, by having him initially appear in an obstructionist question-many-judges-at-once format, as they did with Roberts? That’s beyond the scope of this post to answer – but it’s important to note that this was a choice made by Republican leadership. It would be unreasonable to accuse Democrats of discriminating against Estrada because Republicans freely chose to make different efforts on Estrada’s behalf than they did on Roberts’ behalf.)

To make his case, Stuart has to show that Estrada and Roberts were in comparable circumstances; the fact that the two sides struck a “no filibuster or no questioning” deal before Roberts was questioned, however, makes Estrada’s and Roberts’ circumstances completely incomparable. The existence of a pre-existing “no filibuster” deal is a very strong, non-pretextual reason for Roberts to escape the filibuster, while Estrada did not..

Posted in Site and Admin Stuff | 3 Comments

Censorship of porn sites: Why should we care?

Jim Leitzel – normally of Vice Squad, but in this instance guest-blogging on Crescat Sententia – reports that the Federal Government is cracking down on the owners of “Extreme Associates.” According to an ABC News report from August:

One of the confiscated movies, Forced Entry, features three graphic scenes of women being spat upon, raped and murdered. Extreme Teens #24 has adult women dressed up and acting like little girls in various hard-core pornographic scenes. We can’t even tell you the title of one of the films.

Jim also links to the case of a couple in Dallas who were “found guilty of three federal obscenity charges last month.” Following the link Jim provides, we learn that

Garry Layne Ragsdale and Tamara Michelle Ragsdale conspired together, and with others, to sell and distribute obscene video tapes depicting rape scenes through the Internet and the United States mail. The Ragsdales, doing business as G Rags, Inc., owned, managed and maintained a World Wide Web site on the Internet called “geschlecht.com.” The web page was named “The Rape Video Store,” where the
Ragsdales offered obscene video tapes depicting rape scenes, which they categorized on the website as the “Real Rape Video Series” and the “Brutally Raped Video Series.”

And in an earlier post on Crecat, Jim links to “an amazing case” of “a couple in California who ran an Internet bulletin board was found guilty in Tennessee of purveying obscenity. (The same material might not have been considered to be obscene in California, which has different “community standards.”)” Following the link, it turns out that once again the material being prosecuted involved pornographic depictions of rape.

I wonder, is there a pattern here?

First Amendment lawyer Lawrence Walters, discussing the Extreme Associates case, fails to provide any independent reason we should care if Extreme’s customers are deprived of the chance to jack off to images of women being brutalized and raped. Instead, Lawrence suggests a “slippery slope” argument: we must defend Extreme Associates or Playboy magazine will be next! This argument assumes two things: first, that censorship of Extreme Associates will reliably (or even probably) lead to the censorship of Playboy, and second, that it would be an unbearable loss to culture if Playboy was unavailable.

Putting aside the question of why we should care if Playboy ceases to exist, I have to wonder – is there any evidence to support the theory that censorship of extreme rape porn will inevitably lead to the censorship of soft porn? After all, child pornography has been aggressively censored for decades, without any apparent “slippery slope” effect completely destroying our other free speech rights. If child pornography is any example, it should be possible to aggressively censor rape pornography without suffering any unbearable slippery slope effects..

Posted in Free speech, censorship, copyright law, etc., Sex work, porn, etc | 134 Comments

Is the rejection of Estrada racial discrimination?

Stuart Buck argues that the Democrat’s rejection of Estrada is probably an example of racial discrimination, under the legal standards used by the federal goverment (if federal anti-discrimination law applied to judicial nominees, which it does not).

This issue initially came up in a post by Jane Galt. Since Jane’s initial post, other bloggers have pointed out that the overwhelming majority of Bush’s non-white judicial nominees have not been blocked by Democrats in the Senate (see these posts by Ted Barlow, Dwight Meredith, and Nathan Newman).

Stuart responds:

But if we are talking about the requirements of federal anti-discrimination law, the critics’ point would be valid only if Estrada were raising either a “disparate impact” claim or a so-called “pattern or practice” claim. In some cases, the plaintiff attempts to prove a “pattern or practice” of discrimination by showing that the employer systematically hires fewer people of one race. […] But disparate impact and “pattern or practice” claims aren’t the only types of discrimination claims. Any individual who thinks that he or she was treated differently on account of race can sue for that individual instance of discrimination. And in such lawsuits, the employer cannot get the case dismissed simply by pointing to other racial minorities who haven’t been mistreated.

In order to make his case, Stuart must show that every reason Democrats gave to reject Estrada were pretexts, and thus possibly covering up racial discrimination.

For instance, Stuart writes:

Another reason offered by some Democrats was that Estrada wasn’t forthcoming enough in answering questions from Senators during his confirmation hearing. (This claim was made by Leahy in his press releases on February 22, March 6, and September 15; by Kennedy in his floor statement from March 4, and by Daschle in his press releases of February 5 and May 13.) Estrada’s answers to certain questions were somewhat evasive, but on the other hand, Estrada offered to answer more questions from Senators, and few Democratic Senators took him up on the offer. Given their refusal to ask further questions, their claim that he wasn’t forthcoming enough seems to be pretextual.

What wonderful sophistry! Stuart is to be congratulated on his chuzpah, although not on his logic. To understand why Stuart’s argument is nonsense, consider this dialog between me and a job applicant:

AMP: So, Ms. Applicant, would you be available to work weekends?

APPLICANT: I have not considered that question, so I cannot answer it at this time..

AMP: I’m sorry, I really need to know if you can work weekends.

APPLICANT: It’s not appropriate for me to say.

AMP: It’s not?

APPLICANT: But I’m willing to meet one-on-one with you to answer appropriate questions.

AMP: But will you tell me if you’ll work weekends?

APPLICANT: As I said, I’m willing to meet one-on-one with you to answer appropriate questions.

What would happen if I decided not to hire Ms. Applicant, on the grounds that she was evading answering my questions? Any normal person – or court – would think I had acted appropriately. Yet according to Stuart, I’ve probably committed sex discrimination against Ms. Applicant, since by Stuart’s standards, she has been perfectly forthcoming to me.

Bottom line: Estrada flat-out refused to answer questions that the Democrats considered relevant. That he offered to answer different questions from those the Democrats asked is irrelevant. And for Stuart to pretend that offering to answer different questions magically means Estrada was being forthcoming is ridiculous.

So at least one reason the Democrats gave for rejecting Estrada has not been shown to be pretextual.

More from Stuart Buck:

The reason most often put forward by Democrats was that Estrada failed to turn over confidential memoes that he wrote when he worked for the Solicitor General’s office under the Clinton administration. (See Pat Leahy’s press releases from March 18 and May 5, Kennedy’s floor statement from March 4, and Daschle’s press release of February 5.) But Democrats did not demand the identical memoes that John Roberts wrote when he worked for the Solicitor General’s office. So that reason appears to be utterly pretextual.

This would only be true if John Roberts and Estrada were identical candidates (aside from race). But there is at least one substantive difference between the two candidates – Roberts did not evade answering questions to anywhere near the same degree. The Senate Democrats thus had a non-pretextual reason to ask for Estrada’s memos but not Roberts’ – given Estrada’s refusal to answer questions in a forthcoming manner, the Democrats had to seek alternative ways of judging Estrada’s views. (Some Democrats stated this explicitly: “Because Mr. Estrada has – arguably – the thinnest record of anyone ever to be nominated for a circuit court judgeship, and because he declined to answer so many basic questions – the committee asked for him to provide the legal memoranda he wrote while serving at the Department of Justice.” – Tom Daschle). Because Roberts was apparently more forthcoming (or maybe he had a fatter record), there was no need to ask for memos in his case.

Finally, Stuart ignores a major non-pretextual reason Democrats rejected Estrada. Rightly or wrongly, many Democrats believe that “the White House and the Republican Congress have adopted a steamroller strategy to carry out their court-packing plan to stack as many of the federal courts as possible with right-wing judges who will roll back basic rights…” (That was Senator Kennedy). Similarly, Senator Leahy worries that the Republicans are “seeking to pack our courts with ideologues,” and contrasts Estrada’s case to the more “mainstream” Judge Prado, whose nomination proceeded with relative ease. Even President Bush said that “they’re blocking the vote on this good man [Estrada] for purely political reasons.”

If the Democrats in good faith believe that Estrada is, or (in light of his refusal to answer questions, might be) a non-mainstream, far-right ideologue – and in fact treat Estrada no differently than white nominees who are (allegedly) far-right ideologues, such as Charles Pickering – then that would be a non-pretextual, non-racial reason for Democrats to reject Estrada but not John Roberts.

All links via Stuart Buck, except for Stuart’s own link, which was via Crescat Sententia..

Posted in Race, racism and related issues | 3 Comments

What is Ampersand reading today?

  • Janice Raymond’s 10 Reasons for Not Legalizing Prostitution. I tend to favor legalization myself, and furthermore Raymond has a well-earned reputation as a bigot (towards transsexuals). Nonetheless, she makes some good arguments against legalization here.
  • The Rhubarb Patch presents a good same-sex-marriage debate, although in my opinion the pro-gay-marriage side of the argument wins. There are other entertaining debates available in the patch, too. I’m not sure where I saw this link – Diotima, maybe?
  • CicerosGhost was momentarily falsely accused of rape, and so experienced “conflicting views on what it means to actually rape someone.” What happened to him was wrong, but why is only rape written about this way? I mean, I know people who have been falsely accused of stealing cars they had legitimately borrowed. People are falsely accused of using drugs, of child abuse, of all sorts of things. Yet only false accusations of rape seem to move people to rethinking the validity of the crime.
  • Excellent post from Easily Distracted: Please Touch. The writer brings his daughter to two museums – one public and mobbed by those rude lower-class kids, one private and relatively free of rudeness (one bullying kid aside). Private/public conflicts, middle-class guilt complexes, and everything else that makes the world spin round.
  • Hey, right now a google search for “reclining cucumbers” doesn’t lead to any entries. But maybe soon it’ll point to this blog. Then I’ll be able to corner the blog market in readers interested in reclining cucumbers. And after that, the universe itself.
  • Good “Findlaw” article on the new partial-birth abortion ban.
  • Robot Jenny describes her top ten childhood frights.
  • Nathan Newman argues that the democratic primary race is all over but the shouting. With his fundraising advantage and now the major union endorsements, Dean (Nathan argues) is unbeatable. If he’s right, Emma will be in beer a year from now.
  • Speaking of Howard Dean, Mark Kleiman dissects the “guys with confederate flags” controversy and finds it wanting.
  • I’ll probably still vote for Kucinich, though. Here’s why, in a nutshell.
  • CNN reports on the stupidest lawsuit of the year: Merriam-Webster is being sued by McDonalds for copyright violation for including the word “McJob” in their dictionary. Via Boing Boing.
  • New additions to the blogroll: MidEastWeb blog, an excellent lefty blog on Israeli news. And also Curmudgeonly Clerk, a good right-wing law blog. And also Easily Distracted, a good lefty academic blog. And Dan Drezner, another good righty blog.
  • Making Light has a great post discussing pro-woman, pro-gun, and the NRA.
    I’d also like to see them get into some earnest discussions of what firearm strategies are best suited to the kind of violence women most frequently encounter: up close and personal, involving someone who isn’t a stranger. If they’re serious about self-defense for women, they have to consider which guns are best for prostitutes to carry, and what kind of muzzle velocity it takes to stop a berserk ex-husband.
  • PETA’s usually flat-footed publicity department scores a hit with this animated piece, The Meatrix. Via Crooked Timber.
  • Dan Drezner and Robert Reich agree: manufacturing jobs are disappearing the world over, not just in the USA. Extremely interesting, if true. (Via Prometheus 6)

    As an aside, Peter Parker is a superhero. So is Scott Summers. So are Reed Richards, Bruce Banner, Clark Kent, Matt Murdock, and Billy Batson. Does this tell us anything about Dan Drezner and Robert Reich?

  • Has Lovecraft taken up gardening, or is it Lemon Porn? Then again, maybe you’d rather read a story summed up by the quote “Lucy had a great sense of humor and I’m sure she would appreciate being my coffee table.” Be sure to visit these and other results of the Boing Boing Link Fu contest.

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Posted in Link farms, Rape, intimate violence, & related issues, Same-Sex Marriage, Sex work, porn, etc | 9 Comments

A joke someone just emailed me

While in Israel, a reporter sees an old man praying at the Western Wall. As the man leaves, the reporter interviews him:

“How long have you been coming to the Wall?”

“Fifty years.”

“And what do you pray for?”

“For fifty years, I have been praying for peace between the Jews and the Arabs.”

“And after fifty years, how do you feel about the effect of your
prayers?”

“Like I’m talking to a fucking wall!”.

Posted in Palestine & Israel | 4 Comments

Couldn't he even find a token woman?

bush_abortion.jpg

Bush signs the “partial birth” abortion ban. Via Nathan Newman..

Posted in \"Partial Birth\" Abortion, Abortion & reproductive rights | 5 Comments

Oberlin Orgies

Oberlin, one of the colleges I’ve attended, was given a spanking in the far-right Frontpage Magazine. Frontpage’s problem? Oberlin is a left-wing school. Well, duh! In addition, the writer seems really bothered by Oberlin’s acceptance of queers and transsexuals:

None of this is surprising when you consider that Dye, the school’s president, has vocally supported students’ efforts to officially charter a BDSM (Bondage, Discipline and Sadomasochism) Club at the school, which would qualify the group to receive school funds like other campus clubs. Dye considered chartering the club to be a “free speech” issue.

At Oberlin, gay faculty wear their homosexuality as a badge of honor, championing their commitment to adding a “queer focus” to their subject matter in their personal biographies, which are displayed on the college’s official website for all to read.

Many of the paid, on-campus speakers at the school in recent years have been gay or transgendered and/or promoted promiscuous sex in some fashion.

My god, students exercise free speech! (Why does FrontPage put free speech in scare quotes?) That some faculty members are gay is acknowledged where all can read it! And they pay on-campus speakers even when those speakers are trans or queer! Oh, the humanity!

The article goes on to be appalled that students at college have sex. I was reminded of a year ago, when certain right-wing bloggers gloated that leftists don’t have any fun. I mean, which would you rather have, wild sex and high living at Oberlin College, or FrontPage Magazine’s spare lifestyle relieved only by anti-queer, anti-trans bigotry disguised as moral superiority?

Meanwhile, the Curmudgeonly Clerk curmudgeons:

I doubt very much that anyone requires institutional assistance with his or her sex life. One of the featured activities at Safer Sex Night was a live demonstration of homosexual oral sex. Funny, I seem to recall that homosexuals were successfully engaging in oral sex before Oberlin appointed itself their mentor.

What Curmudgeonly misunderstands is that this was a demonstration of safe sex techniques, something that might not come so naturally without instruction. And apparently, students – even the homosexual ones – do learn from the demonstration. As Oberlin student The Bitter Gay Grinch reports, “I was introduced to uses of rubber and other synthetic materials that I didn’t know to exist.”

* * *

I’m sorry to report that I didn’t have loads of sex as a college student (shy, conventionally unattractive folks generally don’t, even at Oberlin), although I certainly had more sex at Oberlin than I did in high school. Still, my (relative) lack of sex seemed to me a grevious injustice (hey, I was 18). Under the circumstances, my friends who talked about having a lot of sex quickly became tiresome.

Even at the time, the people who did have lots of sex seemed to be having a lot of soap opera, as well – the emotional baggage did not fit under the seat. I admit, I took some satisifaction in this where a better person would not have.

In retrospect, I don’t think it matters much; having lots of sex can be a good college experience, like traveling to Rome or taking lots of LSD. But in the long run, the Obies I know who had lots of sex (or at least talked as if they did) don’t seem any happier or wiser than those who didn’t.

* * *

The FrontPage article did raise one sex-related issue that’s of interest even to those of us who aren’t prudes or bigots:

While the school’s administration likes to present itself as promoting Oberlin as a “safe and tolerant space,” it has done little more than brush aside increased reports of sexual assault connected with the two events by the campus’ Sexual Assault Prevention Team and local law enforcement authorities.

After an alleged staff-on-staff rape outside the 2001 “Drag Ball,” even students protested what they saw as a dismissive attitude on the issue by the administration, which is very protective of the two events. Rather than ban the parties entirely, administrators backed the Student Union’s decision to ban alcohol at the events, under the assumption that those who attend the parties couldn’t legally or morally “consent” to sexual activity if they were drunk.

But it’s not clear that the administration has brushed aside these concerns. The Oberlin Review reports that the organizers have added “peacekeepers” to patrol the event. And, given the number of studies (including FBI statistics and studies by feminists such as Mary Koss) showing a correlation between alcohol and rape, eliminating the alcohol seems like a serious and appropriate response.

Banning popular campus events (and no party at Oberlin is more popular than the drag ball), on the other hand, would be a stupid response. Oberlin students are quite capable of organizing their own parties; it’s better that the party remain above-ground, since the underground version would doubtless include drinking and exclude the peacekeepers.

Finally, even if there are increased calls to the campus rape crisis center following an educational party about safe sex and consent, it doesn’t follow that the party causes rape. It’s plausible, for example, that there are increased calls because the parties succeed in making students more aware of the rape crisis line’s existence.

I’m not saying that Oberlin has necessarily done enough to combat rape on campus. However, I’m not silly enough to think that “banning parties” is a serious anti-rape measure; nor am I convinced that FrontPage would have any concern with rape at all if they weren’t able to use anti-rape concern as a front for homo- and trans- phobia.

Anyhow, I much prefer Oberlin’s “orgies” – emphasizing as they do safe sex, consent and screwing with gender conventions – to the drunken frat house moron-fests that are found on more conventional campuses.

* * *

For more discussion of Oberlin Orgies, check out Begging to Differ, Crescat Sententia (here and again here), The Curmudgeonly Clerk, The Bitter Gay Grinch and Naked House..

Posted in Lesbian, Gay, Bi, Trans and Queer issues | 14 Comments

Amy Phillips on Abortion

Good pro-choice post from The Fifty Minute Hour:

Even if we were to accept the premise that a fetus is a person, it may have a right to life, but it doesn’t have the right to subject another person against her will to painful and dangerous medical consequences. If I needed a kidney transplant, I might be able to get the organ I needed to survive by stabbing someone and forcibly removing one of theirs. But even if they recovered with no ill health effects after the attack, I’d be guilty of a moral (and legal) wrong for subjecting them to it in the first place. Those people who want to consider fetuses person must remember that even another person with a right to life doesn’t have the right to that life at the expense of another person, not even if that person is the child’s parent.

Read the whole thing..

Posted in Site and Admin Stuff | 61 Comments

A few good Terri Schiavo links

  • Understanding Terri Schiavo, from the St. Petersburg Times. A decent one-stop summary of the conflict, with a lot of focus on the videos that Terri’s parents have released.
  • The Terri Schiavo Information Page, a sub-project of the Abstract Appeal blog. Absolutely the best source of information about Terri Schiavo, including a timeline and links to the relevant court decisions. Abstract Appeal itself is the best blog to check for breaking news on this story.
  • The Lost Lesson of Terri Schiavo points out that Terri’s condition was brought on by her bulimia, which in turn was brought on (or at least encouraged) by an appearance-obsessed society.
  • To read what “the other side” says, visit TerrisFight.org.

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Posted in Terri Schiavo | 17 Comments

Terri Schiavo is Dead

Amy Welborn quotes a newspaper columnist:

I have to admit my own ulterior motives here. I have a 20-year old sister who has severe cerebral palsy. She cannot walk, or talk, or sit up on her own. In many ways, she resembles Terri Schiavo. Doctors don’t call it a “persistent vegetative state” (because there is no incentive in my sister’s case to do so), but it has much the same effect.

I’ve seen this going around lately: the right-wing is glooming onto the arguments of disabled rights activists in order to argue that Terri Schiavo’s body must be kept alive at any cost. Allowing Terri Schiavo to die, we are told, is the equivalent of murdering Stephen Hawking, or that newspaper columnist’s little sister.

As it happens, the disabled activists have a good point, especially when it comes to media coverage of the case. It’s degrading when reporters bring up Terri Schiavo’s inability to talk, or to feed and care for herself, as if these things determined the worth or lack of worth of a human life. That’s ridiculous: there is infinitely more to existence than the ability to wipe one’s own rear end.

However, as applied to Terri Schiavo, the argument is nonsense.

Look, I’m convinced that people can have meaningful, great lives without talking, walking, eating unassisted or controlling one’s bowels. What I’m not convinced of is that Terri Schiavo can have a meaningful existence if she can’t think. Here’s how Florida’s 2nd court of appeals described Terri’s medical condition:

Although the physicians were not in complete agreement concerning the extent of the daughter’s brain damage, they all agreed that the brain scans showed extensive permanent damage to her brain. They only debate between the doctors was whether she had a small amount of isolated living tissue in her cerebral cortex or whether she had no living tissue in her cerebral cortex.

Without a cerebral cortex, Terri Schiavo cannot think. She cannot feel. She cannot experience.

There’s a huge gulf between being disabled and being unable to think, feel, or experience. It’s the gulf between being alive and being dead. Terri Schiavo is dead, and has been dead for years; to compare her condition to folks who are alive and disabled is, it seems to be, an insult to disabled people everywhere. (Obviously, many disabled activists disagree with me).

How can anyone say that Terri Schiavo can still lead a fulfilling life, when “fulfillment” itself can’t be experienced without a cerebral cortex?.

Posted in Disabled Rights & Issues, Terri Schiavo | 37 Comments