November 4, 2005

Alito and the Family and Medical Leave Act -- Part 4.

Look at how a commenter who tries to explain law is treated over in the DailyKos comments. This is how Armando speaks to a reader who patiently tries to explain how he's misstated the law:
STFU (none / 0)

You were dead wrong. Yiu said ALito did NOT say that Congress acted unconstitutionally. You were WRONG. Whose clients should be in fear. You were dead wrong jerk. And abused the hell outr of mcjoan when you were wrong asshole.

See, mcjoan said exactly that, that Alito said that Congress invaldfily abrogated SI. And you kust flat out lied about what the diary said and were abusive and were wrong.

Stupid ass jerk.

The SCOTUS is Extraordinary.

by Armando on Fri Nov 04, 2005 at 05:25:18 AM PDT
[ Parent ]

Correct the piles of shit you laid all over (none / 0)

Alito ruled that Congress acted unconstitutiopnally wen it expressly abrogated the Sovereign Immunity of the States.

Go learn some fucking law.

The SCOTUS is Extraordinary.

by Armando on Thu Nov 03, 2005 at 08:21:00 PM PDT
[ Parent ]
Just to be clear: Armando is one of the main writers over on DailyKos, not just some commenter. And DailyKos is the most widely read blog in the world, with traffic nearly as high as the NYT online.

Liberals, does it bother you that this is what your loudest voice on the web sounds like?

[My earlier Alito and the FMLA posts: 1, 2, 3.]

UPDATE: Here's the McJoan post that goes with those comments:
In 2000, Judge Samuel Alito authored an opinion in which he concluded that Congress did not have the power to require state employers to comply with the Family Medical Leave Act.
False. The commerce power supports the FMLA even as applied to the states, and nothing in Alito's opinion is to the contrary.
This ruling was overturned by the Supreme Court in 2003, with a 6-3 margin. Voting in dissent? That's right, everyone's favorite activist justice, Antonin Scalia.
Don't bother mentioning that the main dissent was written by the moderate Anthony Kennedy, who was distressed at the misapplication of a whole line of cases -- cases Alito, as a lower court judge, had to follow. Just throw out the name of Antonin Scalia! It's so inherently alarming.
In his ruling in Chittister v. Department of Community and Economic Development, Alito argued that the FMLA was an instance of unconstitutional congressional overreach. He also argued that the FMLA was unconstitutional because "there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave. Furthermore, he argued, the requirement that everyone be guaranteed 12 weeks of unpaid family leave was a disproportionately strong remedy":
Notably absent [from the FMLA] is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.

...Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional.
McJoan is quite wrong to say Alito found the FMLA unconstitutional. The quoted material is the reason why, following a line of recent cases, the FMLA didn't fit the Fourteenth Amendment power, which is needed to abrogate sovereign immunity (and allow an individual employee to sue the state for retrospective relief). The FMLA remains supported by the commerce power and the state is still bound by it in this analysis.
Alito's idea that women are not disadvantaged when they can not take maternity leave seems absurd, both intellectually and factually. Even William Rehnquist, who wrote the Supreme Court's 6-3 opinion in 2003 overturning Alito's ruling, found Alito's argument deeply flawed.
The question under the Fourteenth Amendment power wasn't whether women are disadvantaged, but whether the states were violating Fourteenth Amendment law: What violation of constitutional rights was the FMLA remedying? That was the question Alito faced and answered as the law required. To characterize him as not caring about women's interests is either a mistake or deliberate distortion. And by the way, the states were giving women maternity leaves. To find an equal protection violation, you need to point to the lack of paternity leaves and attribute it to stereotyping. And I'm not saying the FMLA isn't a good law and a nice benefit. The problem was that it wasn't a correction of the violation of constitutional rights. Rehnquist finessed his way around that problem, as Kennedy detailed in dissent, and so the ability of state employees to sue for back pay was preserved. But Alito just did what the case law required at the time.
Luckily for me, Rehnquist led the Supreme Court in overturning Alito's flawed decision. Let me reiterate that. Alito's ruling was too conservative for Rehnquist.
But it was quite proper according to Kennedy. Could it perhaps be that sometimes, some judges analyze legal issues?
Alito's and Scalia's hostility toward the FMLA could very well stem from the hostility of business interests, like the U.S. Chamber of Commerce.
But the issue in Hibbs and Chittister only had to do with the way the FMLA applied to the states, so the interests of private business were not at stake in the slightest.

Again, the commerce power supports the FMLA, and neither Hibbs nor Chittister had anything to do with that. And why not include Kennedy in your group of hostile justices? Doesn't fit the attempt to paint the justices as a bunch of ideologues.
The United States is the only industrialized nation in the world that doesn't provide paid family leave. Should another FMLA case come before a Supreme Court with both Alito and Scalia, we might even lose the unpaid leave we have now. That would leave millions of families, like my own, struggling to care for ourselves, our loved ones. In terms of family values, I don't know what could be more critical.
Yes, yes, let's talk about mommies and daddies and babies and families, all the emotional things only good liberals care about. Who wants to stop and talk about a difficult legal issue? But the fact is that nothing about what Alito said in Chittister and Kennedy and Scalia said in Hibbs threatens to take away the leave rights people now have. The commerce power supports the FMLA. When will the people who are demagoging this issue mention that the commerce power supports the FMLA? When they don't, you should know that they are not playing it straight (or they actually don't understand the law).

ANOTHER UPDATE: If you keep reading the comments over at Kos, you'll see this:
Typical Armando (none / 0)

So far, Armando's legal "analysis" is nothing more than name calling. The fact is that every other circuit that addressed the issue of sovereign immunity and the FMLA ruled the same as Alito, with many Democratic judges participating, except for the 9th Circuit. Most S. Ct. observers were surprised when Rehnquuist & O'Connor didn't follow their earlier "federalism" precedents when the FMLA issue came up in Hibbs. To argue now that it was somehow clear that states couldn't be sued by their employess under the ADEA & ADA, but could be under the FMLA, is absurd.

What kind of lawyer engages in name-calling rather than citing cases?

by Realist2004 on Thu Nov 03, 2005 at 10:26:48 PM PDT

[ Parent ]

Excuse me (none / 0)

Typical you - the asshole you defend engaged in name calling and was flat out werong about what the diary said and was abusive to mcoan for no good fucking reason.

Typical of you to IGNORE all that.

Typical of you and it is why you are a waste of time.

The SCOTUS is Extraordinary.

by Armando on Fri Nov 04, 2005 at 05:23:07 AM PDT

[ Parent ]

Later, Armando has this outburst, in response to commenters who keep trying to explain the law:
How in BLAZES do you enforce a law against the State then Genius? Soveriegn Immmunity. Look it the fuck up asshole.

Well, Armando, it's called Ex Parte Young. Look it up!

IN THE COMMENTS: Armando himself stops by. (Where's my link from Kos? I link to the people I argue with.) He tries to explain himself, but doesn't understand the law in this area. He does manage to avoid saying "f*ck" over here.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.


Pat said...

Ann, the top link is broken.

DNR Mom said...

Yeah it bothers my semi-liberal self. The idiocy of the typos is just part of my unease. The "reasoning" behind the content doesn't seem to shine through.

That's why I like a civil discussion. Thank you for that, Ann.

Dave said...

Ann: Kos is the most highly read blog for a variety of reasons, the most important of which is that it appeals to the lowest common denominator.

Some, I would imagine, read it for entertainment value. Others read it because they themselves are angry, irrational, misinformed liberals who vehemently and reflexively oppose anything that looks like a fair-handed approach to anything the current Administration does.

I would remind you, as well, that the invective spewed forth on Kos' blog is no different in tone than that spewed forth by angry conservatives in internet chat rooms during Slick Willie's mad reign of our fair kingdom.

A hard lesson, I suppose, for those of us who aspire to inellect and cogency: salaciousness and vincidctiveness wins the popularity contest every time.

I don't like that fact, but it is one I have to accept. There is a lot of truth to the idea that most people do not want to think critically about an issue but rather would like merely to have their own biases affirmed by like-minded people. This would be the lemming effect.

Ann Althouse said...

Pat: Thanks. Fixed.

Dave: Yes, there is a more general problem in this world of succumbing to irrationality. Those who take the lead in luring people into unreason -- who have the biggest microphones -- deserve special criticism.

Simon said...

You have to wonder if Armando is actually either an RNC plant, a parody of hysterical liberals designed to drive normal, rational human beings away from the Democratic party.

If he's on the line, he's pond scum with a serious inability to communicate with the civilized world; there's a reason why the MSM may interview bloggers, but will never invite him on, and it's because the MSM requires the ability to form a coherent sentence.

HaloJonesFan said...

I'm sure that Charles Johnson is going to appear any second now and claim that you're just "cherry-picking" unrepresentative comments in an ad hominem attack.

Oh wait--that only applies when it's Daily Kos pulling comments off LGF.

Steve Donohue said...

I have to say that these FMLA posts have been some of the most entertaining I've read on any blog in a while. It's not often when there's an expert on something who happens to be a blogger that can call people out on these lies.

I wish I understood this area of the law better. I suppose that's what law school is for. But until then I realize that there is very little of substance I can add to this debate. I only wish others would recognize the same.

Art said...

It bothers me too.
You take the position that the law is seldom an either/or proposition. There's a lot of gray area and that gray area is constantly changing.
I was taught in civics class that the continuing adaptability of the constitution was the single greatest sign on the genius of its framers.
At some point the powers that be decided that the law is either or. We're right. You're evil.

A comment referred to Kos as "appealing to the lowest common denominator." Isn't that how George W. Bush won the election?

Every nomination becomes a battle for all the marbles.
Both sides have , at some point, referred to the Alito hearings as "Armageddon".

It makes the comments in Kos understandable, if not excusable.

HaloJonesFan said... may have posted about this already, and if so I apologize, but...

What rights did Alito uphold in relation to the FMLA? Or, to pose it a different way, what is not allowed under the Commerce Clause that would have been allowed under the Fourteenth Amendment?

You often talk about retrospective vs. prospective damages, and suggest that employees could not sue for back pay. So...this means that an employee could be fired for taking more unpaid leave than allowed, and sue to get their job back, but not sue to recover the pay from the period where they were unemployed. Right? (And this is only government employees--private employees aren't affected by the FMLA one way or another, right?)

Ann Althouse said...

Art: "A comment referred to Kos as "appealing to the lowest common denominator." Isn't that how George W. Bush won the election?"

Bush won the election by inspiring more confidence than Kerry with respect to national security. That may have been a sadly low standard, but that's the choice we were given.

Ann Althouse said...

Halojones: It only relates to state government employees, not federal or local government employees. And, unless the state consents to suit, individual employees will have to limit their relief to prospective things like reinstatement.The state can't be forced by the courts to give back pay in suits brought by individuals. The federal government could still sue the state, even for retrospective relief.

Matt said...

Speaking as a Kossack (though one who's moderate by their standards), Armando is one of those people who's absolutely convinced he's right about everything notwithstanding evidence to the contrary. Sometimes, I think he's right. Other times, I think he's wrong. (This is an example, as was his "If you're not voting for Ferrer, you're a racist!" theme.) That said, there are a lot of folks over there who have repeatedly called for him to calm down.

(Frighteningly, though, Armando is STILL more moderate than some of the folks at Kos, particularly the (quite substantial) "the only issue in the world is election fraud!" crowd.)

vnjagvet said...


Thanks for unwinding that. It takes great skill to make this stuff understandable to those who have not had the pleasure of lawschool without sacrificing accuracy or sophisticated analyisis.

You clearly have that skill.

exposinghypocrisy said...

In attempting to appear more confident than Kerry, Bush did appeal to the lowest common denominator. I remember quite clearly the day Cheney said that a vote for Kerry might lead to more serious terrorist attacks.

Although the Kerry-Edwards campaign struggled to respond, the ONION did a great satire piece on Mr. Cheney's comments.

There might be a few crazy posters on Dailykos, but no one goes lower than Miss Michelle Malkin: defending internment during World War II and advocating the internment of Muslims after 9/11 is far more disgusting than somebody misinterpreting constitutional law.

Ann, you can hide it all you want, but its evident that your addicted to Dailykos.

wildaboutharrie said...

It's much worse when people anywhere in the political spectrum say stupid or dangerous things in a reasonable manner.

As for appealing to the lowest common denominator, that's how I recall the President winning the nomination the first time around. "President McCain" sounded good to this leftish person.

Ann Althouse said...

"Addicted to DailyKos"? Actually, I hadn't seen this stuff until someone emailed me the link. And I'm going out of my way to stay on top of the FMLA discussion. I rarely read it and almost never click to the comments.

Simon said...

"A comment referred to Kos as 'appealing to the lowest common denominator.' Isn't that how George W. Bush won the election?"

No, Bush won the last election because his opponent was a joke, the lowest common denominator of the democratic party. Ann's version is more gracious, but if you guys had fielded a candidate who wasn't so utterly ineffectual, you could have won it.

Steve Donohue said...

Everybody quiet! Shhh... Can you hear that? That soft rumbling in the background? It's growing louder, isn't it...

It's the Kossacks! Somehow our people have provoked their wrath. Surely their strained logic and non-sequitors will be the end of us!

Peter Hoh said...

Ann asked: Liberals, does it bother you that this is what your loudest voice on the web sounds like?

Well, I think I'm a liberal, but when I ventured over to Kos, I was appalled. The comments section was just awful. If this is the best liberals can do, we'll be looking at one Republican victory after another.

Beth said...

Yes, this liberal is dismayed by the discourse I see in Kos, and sometimes Atrios. I don't even venture to Democratic Underground. I particularly hate snarky, sexist invective from leftist boys who think they're being ironic.

But it doesn't change my values, and my positions. And there's nothing, NOTHING, out there on any liberal blog or comments section that out-mucks the invective, lies, and general foul-mouthed, irrational hatred that went for eight years of Clinton, with the accompanying cost of millions of dollars in bogus, self-righteous investigations. If conservatives want to complain about the political climate, they can look in the mirror. They sowed the wind.

And they haven't stopped. I find just as much repulsiveness on Powerline, Little Green Footballs, the idiots Freeper mob, and any number of other right wing mob blogs.

That's why I enjoy this comments section; at the very least, the language is civil. I do sometimes wish Ann would chastise the conservative bloggers and commenters as often and as directly as she takes on the left, but that's a small quibble.

Ann Althouse said...

Elizabeth: I wasn't blogging during the Clinton adminstration, but I did not approve of the President-hating that went on there. I'm for rational discussion against overheated, emotive politics.

You have an interesting point about the very male environment over at Kos. Funny that they think they are the defenders of women.

Matt said...

There's also a substantial female contingent over at Kos that takes the position that men have NO BUSINESS whatsoever even discussing abortion, and any person who supports any sort of restriction on abortion wants to sell women into slavery for all eternity. The difficulty is that the loudest voices (on both sides of most debates) often tend to be the least reasoned. There's a good argument against the Iraq war, but that argument is not "Bush is a motherfucker, people are dying!!!!"

vnjagvet said...


I am afraid your description of Poweline is inaccurate. I read that site every day, as I do this one. There is no invective there, and it is not a "mob blog", as there are no comments, unlike Freeper and LGF. Rigorous discussion and commentary, and sometimes biting criticism is evident, but not cursing and name calling, and seldom ad hominem argument.

If you have any evidence that your description of Powerline is right and mine wrong, please provide the link.

Anonymous said...

I can't find a bio of Armando anywhere (Markos Moulitsas is a grad of Boston University Law School) but from the sounds of it, he probably has fewer credentials than Harriet Miers.

How does the Far Left respond to intellectual argument? Profanity, censorship, speech codes, stealing school newspapers, throwing oreo cookies at conservative blacks, throwing pies at conservative speakers, etc.

Pretty persuasive? Right!

What happened to the marketplace of ideas?

Coco said...

It bothers me that the most popular blogs are generally filled with knee-jerk talking points comments with no real interest in civil informed debate just as it bothers me that the most popular talk-radio and political TV shows exhibit the same tendencies. The only real difference is that radio and TV show hosts and callers can't use foul language - but that's form over substance - callers or guests with opposing viewpoints in both formats are routinely dismissed and treated poorly.

Aside: It also bothers me that USA Today is the most widely read newspaper and that certain reality TV shows are among the most watched programs in America (sorry Ann!)

Its not surprising at all though.

Luckily, there are a decent number of middle-oriented blogs that are worth reading (like this one - thanks Ann!) which unfortunately is very hard to find on radio or TV.

Pete said...

I’m really getting tired of this “both sides do it” meme. Blogging wasn’t around much, if any, during the Clinton years and sure, there was some mean spiritedness from the Right about Clinton. But the difference between now and then is that sites like Kos seem to set the tone for the Left and then that tone leaks into the mainstream discourse. Witness the “madness” of Dean and the Democratic Party electing him their leader. I’m with the poster above, if the Left keeps this up, they’ll continue to lose elections. Which is fine with me. No, in my admittedly slanted view, it seems the Left took the lessons from the Right in the Clinton years and multiplied them exponentially.

And, by the way, Ann has blogged about this before but if it seems she gets onto the Right posters in these comment sections less than the Left, it could be the overall general tone these Left posters bring to the discussion. Ann has said before its her impression that she catches less grief from the Right when she leans Leftward than the grief she gets from the Left when she leans Rightward.

Beth said...


I'll concede Powerline's not a source of bad language, but otherwise, it's not just a source of "rigorous" debate, but of bias and misleading "investigations" like their work on the GOP Shiavo Memo. Hindraker bent himself into a pretzel trying to pin that on Democrats, and was just plain wrong. It's the mark of a demogogue when one doesn't acknowledge error with the same vigor one tries to pursue a pre-determined bias, no matter what the facts say. He, like Michelle Malkin, is determined to find a jihad in every dark corner, as his disingenuous fanning of flames over the recent suicide of a college student in Oklahoma demonstrates. Malkin and Powerline often form an echo chamber, and are unreliable, biased, and willing to take shortcuts around truths to pursue political goals. Neither sufficiently owns up to mistakes.

Yes, invective and immature, hostile discourse is a big problem in blogs. But so are manipulations and blatant slanting of information.

Beth said...


How does the Far Right respond to rational argument? Get out of the glass house, stones are hurling your way.

Beth said...


That meme continues, tiring as it may be, because it's true. I'll agree heartily, though, that the Left has taken the worst lessons from the Right of the 1990s! We'd do much better to learn from its success in organizing, sticking to messages, and not being afraid to stand for something.

But saying sure, there was some mean spiritedness from the Right about Clinton is a serious understatement. Blogs may be new, but newsgroups and web sites aplenty, along with talk radio, managed to set a disgusting low in public discourse during the period. some mean spiritedness doesn't come close to capturing it.

Also, my comment wishing Ann would take on excesses of the Right more wasn't directed at comments in this blog. Her critique here is aimed at Kos, another blog. It's a valid, well-reasoned and documented critcism, and I'd be highly satisfied to see that same expertise blow holes in some of the equally egregious discourse on rightleaning blogs.

Anonymous said...


The New York Times lead editorial yesterday opened with these two words: "It's maddening."

I was going to email Gail Collins and ask her whether she meant that she was getting angry or going insane, but then I thought it would hurt my chances of getting a date with Maureen Dowd.

Anonymous said...

Anybody have a bio of Armando?

Armandoatdailykos said...

Psst, Professor Althouse:

Reading comprehension. You say--

"In 2000, Judge Samuel Alito authored an opinion in which he concluded that Congress did not have the power to require state employers to comply with the Family Medical Leave Act.

False. The commerce power supports the FMLA even as applied to the states, and nothing in Alito's opinion is to the contrary."

Er, Alito said the Congress didn't have that power because it invalidly abrogated the States' sovereign imunity.

Psst, the Commerce power itself was not at issue - but whether the Congress had properly exercised its Section 5 power of the 14th Amendment. Alito ruled the FMLA UNCONSTITUTIONAL in regard to its attempt to abrogate Sovereign Immunity.

You might want to correct this obvious error.

Or you could continue to point out what a meanie I am.

Whichever you prefer.

Kirk Parker said...

"The commerce power supports the FMLA"

Can a quibble a bit with this? There are plenty of us, both inside and outside the legal profession, who would not concur with that statement unless you amended it to read, "The egregiously-expanded beyond all warrant commerce power..."

It's the same group of people who realize that the words, "or affecting commerce", are not actually part of the relevant article of the Constitution.

Armandoatdailykos said...

BTW Professor Althouse:

Ex parte Young of course permits for enforcement by naming individual officials, not the State.

How do you propose to overcome the idea Alito forwarded that the Congress improperly wrote the FMLA to bind the States in their action?

To wit, sue a State official and then what? The law itself, as it pertain to the States, was ruled unconstitutional.

This is not a question of enforcing a Constitutional right.

The fact is ex Parte Young is of no assistance here.

See civility is nice, but substance is eminently better.

Henry said...


You haven't got the tone right.

Armandoatdailykos said...

Idaho v. Couer d'Alene is instructive-

"The Tribe's suit, accordingly, is barred by Idaho's Eleventh Amendment immunity unless it falls within the exception this Court has recognized for certain suits seeking declaratory and injunctive relief against state officers in their individual capacities. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Young exception to sovereign immunity was an important part of our jurisprudence when the Court adhered to its precedents in the face of the criticisms we have mentioned, and when the Court, overruling Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), held that Congress, in the exercise of its power to regulate commerce with Indian tribes, may not abrogate state sovereign immunity. Seminole Tribe, supra, at 71, n. 14, 116 S.Ct., at 1131, n. 14. We do not, then, question the continuing validity of the Ex parte Young doctrine. Of course, questions will arise as to its proper scope and application. In resolving these questions we must ensure that the doctrine of sovereign immunity remains meaningful, while also giving recognition to the need to prevent violations of federal law.
When suit is commenced against state officials, even if they are named and served as individuals, the State itself will have a continuing interest in the litigation whenever state policies or procedures are at stake. This commonsense observation of the State's real interest when its officers are named as individuals has not escaped notice or comment from this Court, either before or after Young. See, e.g., Osborn v. Bank of United States, 9 Wheat. 738, 846-847, 6 L.Ed. 204 (1824) (stating that the State's interest in the suit was so "direct" that "perhaps no decree ought to have been pronounced in the cause, until the State was before the court") (Marshall, C.J.); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 114, n. 25, 104 S.Ct. 900, 915, n. 25, 79 L.Ed.2d 67 (1984) (noting that Young rests on a fictional distinction between the official and the State); see also*270 Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 685, 102 S.Ct. 3304, 3315, 73 L.Ed.2d 1057 (1982) (opinion of STEVENS, J.) (recognizing the irony that a state official's conduct may be considered " 'state action' " for Fourteenth Amendment purposes yet not for purposes of the Eleventh Amendment). Indeed, the suit in Young, which sought to enjoin the state attorney general from enforcing state law, implicated substantial state interests. 209 U.S., at 174, 28 S.Ct., at 459 ("[T]he manifest, indeed the avowed and admitted, object of seeking [the requested] relief [is]to tie the hands of the State ") (Harlan, J., dissenting). We agree with these observations.
[7] Link to KeyCite Notes To interpret Young to permit a federal-court action to proceed in every case where prospective declaratory and injunctive relief is sought against an officer, named in his individual capacity, would be to adhere to an empty formalism and to undermine the principle, reaffirmed just last Term in Seminole Tribe, that Eleventh Amendment immunity represents a real limitation on a federal court's federal-question jurisdiction. The real interests served by the Eleventh Amendment are not to be sacrificed to elementary mechanics of captions and pleading. Application of the Young exception must reflect a proper understanding of its role in our federal system and respect for state courts instead of a reflexive reliance on an obvious fiction. See, e.g., Pennhurst, supra, at 102-103, 114, n. 25, 104 S.Ct., at 909, 915, n. 25 (explaining that the limitation in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), of Young to prospective relief represented a refusal to apply the fiction in every conceivable circumstance)."

Again, civility is nice. Suubstance is better.

Armandoatdailykos said...


Unforutnately this is me being civil, and substantive.

What are the chances Professor Althouse will correct her mistakes?

If I was like a commenter in my thread, I would demand she pull this error filled post from the front page, but I think that is unseemly.

Henry said...

But the typos seem legit.

Undercover Christian said...

I certainly detect some sort of substance--some foul-odored substance that Armando is full of.

Pierce Wetter said...

Just out of curiousity, how can you even stand to read dailykos?

godfodder said...

Since the topic has drifted away form the FMLA (about which I know little) and toward the differences between Leftie and Rightie blogs (about which I know much), I am now free to offer my two cents.
Like most sane people, my opinions include a smorgasbord of ideas taken from both sides of the political spectrum. I am as objective as anyone is these days, and I have to say that the rhetoric and emotion for the Left is far too crazed for my taste.

Yes, the right has its Limbaughs and Hannity's, but these people are entertainers, showmen! They are the Right's Hollywood. Need I remind you that the Left also has its Hollywood? Full of equally stupid stuff?

What is really scary about the Left is the rhetoric that comes from its mainstream figures-- its party leaders, its politicians. Has Ken Mehlman ever made statements even remotely as deranged as those that regularly flow from Howard Dean? How about the grotesque race baiting that has become the Left's stock and trade?? An equivalent accusation from the Right would be for them to accuse people of being Commies. Does it happen, hmmm? Then there are the constant distortions of people's votes/statements by the Left to suggest that they hate Women or gays or the poor, non-Christians, the non-white, etc. On top of this, there is the constant sleazy insinuations that everyone who doesn't vote "D" is greedy, selfish, closed minded, bigoted, and proto-fascist.

Deny it if you must, but you do not find those tactic used with any regularity by mainstream figures on the Right. Yes, occasionally a marginal figure like Pat Robertson says stupid stuff, but it is nothing compared to what Bill Clinton, Jimmy Carter, Julian Bond, Chuck Schumer, etc, say every day. (As an example, just watch what they do to Judge Alito. Compare it to what was done to Justice Ginsberg.)

The Democratic Party will face defeat after defeat until it cleans house. Most people do not buy into the paranoid world-view they are peddling.

Armandoatdailykos said...

Profesor Althouse:

As you can see form your commenter Alex, invective can be fomented in many ways.

Here is your commenter group ignoring the substance of my comments, my valid commenting on the errors in your post, and lo and behold, nasty invective. It is a shick to me that you have such commenters. Shocking indeed . . . not.

That they have nothing in the way of substance to repsond with is also perfectly predictable.

These are the fellows who recieve incivility from em when the pull the same stunts at daily kos.

Certainly you are within your rights to ignore trolls.

But I am within mine to respond to them.

At the end of the day, THAT has nothing to do with substance.

Undercover Christian said...

My comment was directed at your manners which are deplorable. As for your arguments, I have no training in law. I will wait for Ann's response, and then mull over both sides.

ThisSpaceForRent said...


You still haven't addressed the core criticism, which is that you ignored what Alito found unconstitutional. He did not find the requirement for family leaves unconstitutional. He only found the application of the 14th ammendment allowing plaintiffs to sue for retroactive benefits to be unconstitutional.

The only way a state violating the FMLA before it was a law could be held responsible under the 14th amendment is if the violation infringed on someone's civil rights. Just because Congress gives us a right does not mean it is now a civil right protected by the 14th ammendment.

If Congress passed a law tomorrow saying that all employers, state and otherwise, were required to provide employees with free lunches, (and assuming it was upheald under the commerce clause) that would be a great thing for those of us who needed to eat. But it's not a civil right, and we couldn't sue states for failing to provide free lunches in the past. Nor could we sue for damages if we were fired because we had previously demanded free lunches.

You need to realize that your opinion that the FMLA was a good thing is causing you to ignore the facts in the case.

Ann Althouse said...

Nice of Armando to drop by and show he's capable of not cursing, but he's got the law wrong. The FMLA is supported independently by the commerce power and state employees can sue state officials for prospective relief using the Ex Parte Young device. Coeur d'Alene is a very unusual case. I've got a law review article about, by the way, but I don't have time right now to explain it.

And if Armando thinks the invective over here is like what goes on at Kos ... well, would he like us to judge his overall credibility based on that one assertion?

WhatsAPundit said...

Elizabeth, you say:

"It's the mark of a demogogue when one doesn't acknowledge error with the same vigor one tries to pursue a pre-determined bias, no matter what the facts say."

And yet, there was nearly absolute silence on the Left when the Rathergate memos were shown to be forgeries. And by your definition, the recent "correction" by Nicholas Kristoff over the accuracy of his original Plamegate stories puts one of the premier columnists in America firmly in the demogogue camp as well.

Why is it okay for establishment media to doggedly pursue a story or a theory and not a right-leaning blog? As far as I know, neither the PowerLine crew or Malkin have been accused of making stuff up. (Not that I think Kristoff fabricated anything, but Joe Wilson turned out to be a very unreliable source, and I'd like to see Kristoff a little more contrite about that. But maybe that's just me.)

My rule of thumb is to always assume whomever I am reading produced their material in good faith, until evidence becomes overwhelming that that's a wrong assumption. I find that provides me with more to read, and I don't waste too much time in the echo-chamber ghettos.

And Armando, civility is always better than incivility, at least when one is trying to be persuasive. If the point is to be repressive, well, that's a different story....

Ann Althouse said...

"Suubstance is better."

Spelling's kind of nice too.

So is understanding what you're talking about as opposed to cutting and pasting a block of text as if it means what you hope it means.

Very lame, Armando.

RFTR said...

I think that a lot of the commenters here don't have as much experience with Armando as I do.

I was a long-term poster at DKos. I was user number 10366 until I got banned--in care you're unaware, that makes me a fairly early-adopter in the grand scheme of things.

In the beginning, Armando and I got along really well. We'd have all kinds of great debates about grand ideals of conservatism vs. liberalism.

And then I got to watch him transform. He used to be calm, measured, well-reasoned—and then he turned into the snarling beast you see now: typing too fast to catch his myriad typos, cursing constantly instead of providing any worthwhile analysis, and completely intolerant of anyone who doesn't see eye-to-eye with his very narrow world view.

It's sad, really.

Armandoatdailykos said...

Of couse we can never test your proposition Professor Althouse since the Supreme Court disagreed with Alito, but I think a reading of the case I cited to you demostrates you to be wholly incorrect in your assertion.

Please take a closer look at how the Couer D'Alene Court dscussed the application of Ex parte Young and you will see your mistake.

Moreover, in the Alden case, the Supreme Court ruled that sovereign immunity can foreclose even resort to State Courts to enforce federal rights against states.

So we are left with determining whether Ex parte Young provides an avenue for relief.

I believe it does not here.

Can you explain to me why you do?

And would you agree with me that if a state employee is left without an Ex parte Young remedy, there is no manner in which a state employee can enforce his rights under the FMLA?

Beth said...


You shift the discussion from bloggers to mainstream politicians, and then use that position to reply to my comments on rightwing blogs. Tricksy, that move.

accusation from the Right would be for them to accuse people of being Commies. Does it happen, hmmm? Hmmmm, yes. Indeed, the "commie" label does get thrown around from the right. How can you miss it?

I guess you've overlooked the long history of mainstream conservative slander, as well: Clinton's fellow adulterer Newt Gingrich likes to call liberals the "enemy of normal Americans," while Clinton himself was called everything but a child of God by mainstream Republicans holding office. He was even warned to stay out of a Southern state by that state's U.S. senator, who might ne excused for having senile dementia. According to at least one GOP national office holder, gay people are no better than people having who have sex with dogs.

And I hold both left and right wing "entertainers" responsible for saying things like we ought not to kill all the liberals, no, but keep a few alive as museum relics. Very funny! The rightwing just loves the rhetoric of elimination--can't imagine why some folks see fit to respond by calling them fascist. Those nasty name callers!

And please, what can you possibly say to defend the likes of Ann Coulter? Or Michele Malkin, who likes to call herself a journalist?

The fantasy that the right is a big tent full of civil, reasoned discourse while the left is a bunch of foul-mouthed, unhinged, deranged Bush haters is a favorite in conservative circles. Dream on.

Doshi said...


As a liberal, it really bothers me that Armando is one of the main posters. As I described in my blog, there are essentially two types of posts by him. I guess I neglected to mention his comments. All the more reason to get rid of him.

Without him though, the site is a good source of certain types of information. And the comments just weren't meant to be read. But that's true of all huge blogs, isn't it?

Armandoatdailykos said...


I had nothing to do with your banning.

It was an automated banning.

You received too many troll ratings.

steve said...

Now Professor Althouse,
Its not fair for you to match wits with "Armando" on the FMLA. I never saw you blast a 1L like you are blasting this lightweight with a Westlaw password. Left and Right know alike that having opinions, even vehement ones, is no substitute for actual reading and analysis.

I'm tired of left and right anyway...let's move forward.

RFTR said...

Nice response, Armando. I never asserted that you had anything to do with my banning.

I'm well aware that it was automatic, and that it resulted from the massive one-way flame-wars that I always seemed to be a part of.

But you may remember that you and I once got along, and you used to often come to my defense—at least insofar as agreeing that it was my right to disagree and to express an alternative opinion outside the DKos mainstream.

And then, suddenly, your hatred for anything that does not agree with you apparently consumed you, and I got to experience your incredible hatred. It's a shame that you have so much bile inside you that it must spew forth in typo-ridden, curse-strewn tirades.

I really do feel sorry for someone with so much hate and anger. It must be painful.

Steven said...

Armando --

Since your reading comprehansion seems to be unusually low, let me explain this in bite-size chunks.

After Alito's ruling

1) The FMLA was still binding on the states.

2) States could still be sued for prospective relief under the FMLA.

3) Named state officials could still be sued under the FMLA.

4) The Federal Government could still file lawsuits against the states to under the FMLA.

Only one specific remedy was voided by Alito's ruling. Said ruling was a quite reasonable extrapolation of recent Supreme Court precedents, which bound Alito. It was the conclusion of multiple lower courts ruling on the issue, all but one interpreting the precedents the same way.

The decision accordingly merely shows Alito is well within the judicial mainstream when it comes to interpreting existing prcedent.

If the best argument against Alito is his ruling in the FMLA case, then there is no substanative argument against Alito.

Henry said...

The fantasy that the right is a big tent full of civil, reasoned discourse while the left is a bunch of foul-mouthed, unhinged, deranged Bush haters is a favorite in conservative circles. Dream on.

This is one of the stupider left-right debates out there. Both sides have their wackos and extremists. Both political parties include posturing hacks. Figuring out whose are the worst is simply pointless.

Dave pretty much nailed it with the third comment above.

Armandoatdailykos said...

Finally Professor Althouse, invective is invective, whether it comes with 4 letter words or not.

Indeed, the condescencion exihibited by your commenters, and indeed, by yourself (I mean really, snark on spelling? Accusing me on not knowing what I am talking about? Please.) is the type of BS I abhor. Speak firectly. Be a straight shooter. All of these attempts at snark are so well, weak, that is leaves little for one to feel but contempt.

But back to th substance. Apparently my quote from Couer d'Alene was too long for you, so I leaveyou this shorter one and ask what you think the import of it is:

"To interpret Young to permit a federal-court action to proceed in every case where prospective declaratory and injunctive relief is sought against an officer, named in his individual capacity, would be to adhere to an empty formalism and to undermine the principle, reaffirmed just last Term in Seminole Tribe, that Eleventh Amendment immunity represents a real limitation on a federal court's federal-question jurisdiction. The real interests served by the Eleventh Amendment are not to be sacrificed to elementary mechanics of captions and pleading. Application of the Young exception must reflect a proper understanding of its role in our federal system and respect for state courts instead of a reflexive reliance on an obvious fiction."

To say "Ex parte Young" just doesn't cut it Professor.

Armandoatdailykos said...


Since you also choose invective, making rather ridiculous Professor Althouse's complaints about daily kos, I am not sure how you extrapolate all of that.

From Alito's opinion, which is no longer operative of coure because the Supreme Court disagreed with him:

"In this case, we must decide whether Congress validly abrogated the states' Eleventh Amendment immunity when it enacted provisions of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. SS 2601-54, that require a broad class of employers, including states, to provide their employees with 12 weeks of leave "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee" and that permit employees to sue in federal court for violations of the Act. We agree with the District Court in this case and
with the other Courts of Appeals that have considered this question that Congress did not validly abrogate the states' Eleventh Amendment immunity when it enacted these provisions."

Assuming an Ex parte Young remedy is simply not a wise course, in light of Couer d'Alene.

It surprises me that Professor Althouse believes it is a safe assumtion.

Armandoatdailykos said...


That is almost a bizarre comment.

You were not hated by me and are not.

I am astounded by that comment and wonder if it reflects your own feelings for me.

Believe it or not, words over the internet are not taken to heart by me. I don;t know you and am hardly going to worry about a few four letter words being bandied about in the heat of the moment.

Indeed, I think that is a t the heart of the problem with the commenters on this thread, the four letter word seems to discombobulate them to a state of blind anger.

Mike said...

Hey Armando, followed you here. Nice to see you again.

Anyway, a quick look at Lexis reveals several Althouse law reviews directly on point Armando:


Mom said...

Can you point me to any liberal blogs where the discourse is as intelligent as it is here and the comments are as civilized? This is not a trick question; I'm serious. I'm a moderate Independent and a former liberal Democrat. I like reading all kinds of commentary, with the exception of Armando-style obscenity-laced, irrational fulmination. I can't go anywhere near Kos; the level of thought, if you can call it that, makes me sick with shame for the people I used to agree with.

I've been able to find a number of moderate and conservative blogs -- including some very conservative blogs -- that examine ideas intelligently and that attract commenters who do the same thing. But for the life of me, I can't find a well-written liberal blog like that. If I could, I'd read it. You seem like the sort of person who might seek out and recognize such a site, or maybe you even keep such a blog yourself. Any tips? Thanks.

Mom said...

Psst, Armando --
It's rude to start out comments with the word "Psst."

Mike said...

mrswhatzit (err whatever): is pretty good. I read that site all the time.

Gordon Freece said...

Armando says,

"the condescencion exihibited by your commenters, and indeed, by yourself ... is the type of BS I abhor ...

...Apparently my quote from Couer d'Alene was too long for you..."

Thanks for clearing that up.

Anonymous said...

But for the life of me, I can't find a well-written liberal blog like that. If I could, I'd read it.

MrsWhatsit, Try the Talking Points Memo Cafe and the Political Animal at the Washington Monthly animal. Try Crooked Timber. Maxspeak, MyDD, Brad DeLong, Daou Report, Majikthise, Michael Berube, Michael Froomkin, The Mahablog.

All of these are almost always very civil with interesting arguments and civil commentators. Not the echo-chamber that is here. Certainly not the echo chamber at LGF, or Freep, or Roger L Simon.

It's a big world mrswhatsit, but you may have to go to it, it won't always just come to you.

If I could, I'd read it. So, you'll come back in two weeks with your blog report?

Henry said...

I haven't read it in a while, but Crooked Timber ( may fit the bill. I personally found that the political postings (and comments) became too predictable over time, but they are still civil and well-argued.

The Centerfield blog ( presents the views of different kinds of moderates (and there are different kinds!). It gets good comments at times, but nothing like Althouse.

Because there is nothing like Althouse.

Henry said...

quxxo -- ah you beat me to the crookedtimber punch.

It's not the echo chamber that is here. It's a far more tedious and predictable echo chamber!

But still civil and well argued.

Anonymous said...

Professor Froward said...

Armando says,

"the condescencion exihibited by your commenters, and indeed, by yourself ... is the type of BS I abhor ...

...Apparently my quote from Couer d'Alene was too long for you..."

Thanks for clearing that up.

Heh. Indeed. One of Ann's favorite tactics is to say that my posts are too long for her to read.

Mom said...

Thanks for the suggestions. I just came back from Kevin Drum's top post today -- an attempt to take a balanced look at the "Bush lied, people died" meme -- and it does look good, though the comment section gets a bit sketchy.

quxxo, my question was sincere, and there's really no need to be insulting either to me or to Professor Althouse. I wouldn't call this blog an "echo chamber" or anything like it. I'll certainly check out your sites, and I appreciate the references, but don't worry, I have no intention whatsoever of returning with a "blog report."

buffpilot said...


(I liked the book too and the kids liked the movie).

I also recommend Kevin Drum's site. Mostly even analysis, Kevin though does go off the deep end every now and then with the anti-Bush hatred. But not very often. His commenters go nuts sometimes but not as much as DKos or Atrios (where the anti-Bush and American vitrial makes it unreadable). Also try:

They are all pretty middle-of-the road. The last cut off comments due to some very racist trolls infecting the site and destroying the discussion. But his posts are good.

Beth said...


You can't condemn Rather, and then defend Powerline and Malkin. Rather resigned for publishing a report before verifying it. His public accusations caused harm, and he was held responsible. Powerline and Malking both do the same thing, only they're even more dishonest, couching the Oklahoma smear, for example, as "We're just asking questions? Why isn't the MSM asking questions? There was an explosion! This kid once sat in the same bus seat a dark-skinned person of undeterminded but probably Muslim extract sat in weeks before! He KNOWS a Pakistani!" Their "just questions" are no better than veiled smears, meant to froth up anti-immigrant fears, which of course is Malkin's bread and butter.

When their smear campaigns were debunked, they moved on to other topics, with little more than a "never mind," ala Littella. I find that shameless, and deserving of rebuke.

It's wrong to make unverified and unsupported accusations, whether as statements or "just asking [leading and inflammatory] questions," and that holds true for bloggers and MSM. Ethical MSM reporters, and editors, put stories through review before going to print. Bloggers ought to as well.

Synova said...

I don't often agree with Michelle Malkin. On the issue of defending the internment of the Japanese a person does not have to agree with her to benifit from considering some of the complexities of the question.

Can she be wrong about this without being hateful, Elizabeth?

And the Powerline guys... I can't even *imagine* how anyone could consider them among those guilty of incivility. Because they are wrong about some things and persistantly wrong about some others? Is being wrong the same as being hateful?

Sure, some ideas are repulsive. I find all sorts of things repulsive. I don't see how this is important to the idea of civil discourse. Oh, here's an example of something I found repulsive... I was reading a progressive blog (low traffic and quite civil) and one of the guys posted a bit about social justice issues in the rebuilding of NO and how business persons had been assigned to some oversight committee rather than activists... oh, and complaints that contracts were given without proper bidding. I found these things *repulisive* because I viewed both complaints as having vacuous disreguard for the real welfare of human beings above ideology. The assumptions that successful business people hate poor blacks was bad enough. The demand that emergency contracts go though normal (read extended) bid processes and prefer minority owned and local businesses in preference to getting people's needs met in as timely a manner as possible, turned my stomach. No, there wasn't malice aforethought concerning the people who would be hurt by the dithering, in fact there was apparently no awareness of this at all... simply moral outrage that measures in place to ensure fairness were being flouted.

Was this person hateful, or was he just wrong?

That's my biggest issue with "liberal" discourse. It's not possible to be wrong. Alito can't have an honest difference about the law, no, he hates women. Economic conservatives aren't simply wrong about the effects of redistribution of wealth, no, they hate poor people. Abortion isn't about babies it's all about hating women. No one *really* cares about preserving marriage, they just want to imprison and stone gays.

It's this, "You're not wrong, you're hateful" thing that gets to me.

Gordon Freece said...

quxxo, I get the feeling I didn't communicate very effectively there, and I apologize for that. What I was getting at is that Armando is remarkably condescending for a guy who abhors condescension so much.

To your credit, q, I have to say that the length of your comments isn't an issue for me, in terms of reading all the way through. Not at all.

Beth said...


You're right about the style and substance of this debate. And I regret taking the bait as often as I do. But so many topics on this blog so often generate a conservative comment on how this topic is just another example of how liberals are hysterical, deranged, uncivil, blah blah blah, and it's so hard for conservatives to advance their reasonable, fair minded, sensible positions in a world dominated by the evil liberal MSM and strewn with the invective of the inneffective and insane Democratic leadership. It hardly matters what the topic is, the self-righteous weigh in.

But again, you're right--there's no way for it to proceed but in a circle. There's evidence enough on both sides. Enough for me today.

Undercover Christian said...

Blogger should make it easier to link directly to particular comments. I would go to my blog and link to Synova's post. Very good point.

Mr. Bingley said...

synova, wonderfully put.

Beth said...


quoxxo, henry and mmmbeer (I echo chamber the sentiment in that name, by the way. It's 3:30 on Friday, and I'm ready for some mmmmbeer) covered the list well. I read crooked timber and TPM Cafe more than others listed by them, but I'll check the others more now. There was a great blog, knoxvillebubba, linked to from instapundit (check his links, too--he links to some good liberal blogs) but it went under after a conflict with a local media figure.

So, yes, there's good, civil, reasonable left/liberal blogging and commenting out there. Thanks for presenting the opportunity to talk about it.

Anonymous said... -- yes, moderate if you consider ayn rand to be moderate. -- hmm, nope. -- hmm, nope. (frequent banninator, and threatener of banninations, one of the "rogerlsimon" TM'd the dem's have left me behind keiretsu of dinos. If you like totten, you'll love rogerlsimon and jeff jarvis.)

Undercover Christian said...

Yes, thank you for the list of better liberal blogs. I am a pretty hardcore libertarian Republican, but I like to hear the other side, and I didn't know where to look in the blogosphere. (I had looked at some of the more popular liberal sites, like DKos, but they all seemed to be too emotionally based.) I'll check out the ones people listed this weekend. Thanks!

Mom said...

great suggestions, thanks all. (and Elizabeth, I agree about mmmbeer!)

TallDave said...

Very amusing, thanks for sharing. I wonder if Armando is ever going to admit Alito was following precedent.

Has Ken Mehlman ever made statements even remotely as deranged as those that regularly flow from Howard Dean?


I would like the GOP a lot less if they made Ann Coulter the RNC chair, or Dan Quayle started stomping around yelling "Bill Clinton betrayed America!" or Bill Frist was saying "We now know Slobodan Milosevic's death camps were reopened under U.S. management." Sadly, that Dkos attitude seems to be driving Dem talking points. Losing power seems to have really unhinged the Left.

Beth said...


I have to agree substantively with you that being wrong is not the same as being hateful. But I haven't equated the two. Malkin can certainly be wrong without being hateful. I am disgusted by how often she is wrong, how seldom she admits it, and how frequently she jumps to conclusions, particularly about immigrants, and particularly Islamic immigrants. I think she's little better than a gadfly. That's saying a bit more than "Malkin is hateful."

Your example from New Orleans is intriguing. I wouldn't conclude that criticizing the process for including business owners only on the panels, and no activists, presumes that the critics think business owners hate black people. That's a very strange assumption you come to. Alot of those business owners are black, but maybe you were unaware of that. Perhaps it's a legitimate concern that having only one perspective on the panel is a bad idea. I bet business owners would be complaining if a bunch of community activists shut them out from the planning process, and they'd be right to do so.

The complaints about the recovery process are not so shallow as you paint them. The defense you make of offering no bid contracts covers up the real problems; no one's arguing for months-long review processes in a bureaucratic mess. But Louisiana and New Orleans companies, local contractors, local people who desperately need to make a living after Katrina, local builders who are capable and are ready to work, are being overlooked while contracts get handed out to Bush cronies. Why is that okay, but it's not okay to say locals, and minority business owners, ought to be involved too? There's a lot of work to do. Why should New Orleanians, black and white, be shut out of doing it? Why shouldn't community activists have a role alongside community business owners in planning and working for the restoration of the New Orleans business and social community? I am not repulsed by valid question, but by questions meant to imply an accusation, without having to offer support for it.

Anonymous said...

Professor Froward

thank you, I appreciate that.

Doshi said...

Just one suggestion for mrswhatsit:

He's a very reasonable columnist for the Chicago Tribune. It's usually local, but does touch on a lot of national issues.

Armandoatdailykos said...


Thank you for the cites.

I ran across this very interesting footnote in Professor Althouse' Rutgers article:

"It should be noted that Justice Kennedy has previously undertaken a quite pragmatic approach to sovereign immunity analysis, similar to Justice Powell's in Pennhurst. In Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997), seeking to establish its exclusive right to land, the Coeur d'Alene tribe had sued the state and various state officials in federal court. Because it sought prospective relief, the tribe must have assumed that the rule of Edelman v. Jordan would permit it to proceed against the officials by using the device recognized in Ex parte Young. Justice Kennedy wrote an opinion that Justices O'Connor, Scalia, and Thomas only accepted in part. (Chief Justice Rehnquist stayed with Justice Kennedy throughout his opinion.) In the controversial portion of the opinion, Justice Kennedy justified denying the use of the Young device by characterizing Edelman as establishing only a presumption in favor of federal court access, but allowing that presumption to be overcome, depending on "the particular context." Coeur d'Alene, 521 U.S. at 277. He would look at the "background principles of federalism and comity," and bar the use of Young where it would "'upset the balance of federal and state interests that it embodies."' Id. (quoting Papasan v. Allain, 478 U.S. 265, 277 (1986)). The state interests outweighed the federal interest in vindicating federal law. The three Justices whose votes were needed to constitute a majority added a concurring opinion, written by Justice O'Connor, to explain their disagreement. See id. at 288 (O'Connor, J., concurring in part and concurring in the judgment). They emphasized the special nature of this particular lawsuit, in which the state's sovereignty over territory was at stake, thus making the fiction of Young--that the lawsuit is not really against the state--more unbelievable than in the usual Young case. Id. at 291-94. Paradoxically, the O'Connor opinion calls Young a fiction yet tries to analyze its applicability in terms of how believable it is in a particular context. Justice Kennedy is more forthright to admit that it is a matter of balancing and to try to give the best meaning to federalism. He did not, however, garner critical praise for his efforts at frankness. See Vicki C. Jackson, Coeur d'Alene, Federal Courts and the Supremacy of Federal Law: The Competing Paradigms of Chief Justices Marshall and Rehnquist, 15 CONST. COMMENTARY 301, 312 (1998); Carlos Manuel Vazquez, Night and Day: Coeur d'Alene, Breard, and the Unraveling of the Prospective-Retrospective Distinction in Eleventh Amendment Doctrine, 87 GEO. L.J. 1 (1998) (arguing that Young should apply except in suits by individuals for retrospective money damages, criticizing Justice Kennedy's "unmoored case-by-case" balancing). Perhaps Justice Kennedy, his moderation underappreciated, has decided to reposition himself by writing in the ostentatiously scholarly style that impresses admirers of Justice Thomas's opinions in Lopez and U.S. Term Limits. Steven G. Calebresi, Out of Order, J. OF AM. CITIZENSHIP POL'Y REV., Sept.-Oct. 1996, at 14 (referring to "Thomas's elegant and brilliant dissent" in U.S. Term Limits); John O. McGinnis, Original Thomas, Conventional Souter, 74 POL'Y REV. 25 (1995) (citing admiration for Justice Thomas from "[l]iberal and conservative commentators alike"); William H. Freivogel, Thomas Becomes a Major Voice on High Court; Promotes Strict Interpretation of Constitution, THE PLAIN DEALER, June 4, 1995, at 10A ("Clarence Thomas has emerged as a significant voice on the U.S. Supreme Court, where he is the strongest advocate for interpreting the Constitution the way the framers meant it.")."

Indeed, I blieve this footnote 97 from that article makes my point extremely well. It makes Professor Althouse's absolute confidence in Ex Parte Young simply untenable.

Armandoatdailykos said...


There was no precedent. It was a case of first impression.

Other circuit opinions do not constitute precedent.

Anonymous said...

Obsidian Wing's Hilzoy on Power Line: Hatred Is A Poison


Example 2: Hindrocket's claim that "Jimmy Carter isn't just misguided or ill-informed. He's on the other side." It's pretty clear who he's talking about. And it's pretty clear what he's saying about him: that Jimmy Carter is a traitor.

Now: Jimmy Carter is not on my list of favorite ever Presidents. But the idea that he is a traitor is insane. And Hindrocket made clear, in a followup post, that he really believes this: "We've been pretty tough on Jimmy Carter, but with hindsight, probably not tough enough." His main piece of evidence is from an article in Front Page: "In the waning days of the 1980 campaign, the Carter White House dispatched businessman Armand Hammer to the Soviet Embassy. ... Hammer pleaded with the Russians for help. He asked if the Kremlin could expand Jewish emigration to bolster Carter's standing in the polls." To which Hindrocket adds: "Conspiring with our chief enemy to try to influence an American Presidential election: We could have called that treason, but we didn't. You can form your own opinion."


It really has to be seen to be believed, especially so that you can see the calm and reasonable tone in which Hindrocket says things that are, again, just insane. For those of you with a slow connection, I've transcribed it:

"I mean, as far as I can tell, the left doesn't care about terrorism, doesn't care about the Islamofascists, doesn't care about hundreds of thousands of people being murdered. All they care about is their own power. All they care about is regaining the presidency. All they care about is defeating President Bush. And, I think that the left, and by "the left" I'm including now almost the entire Democratic Party, you can count exceptions on your fingers, Zell Miller, Joe Lieberman, you can name the exceptions. The whole mainstream of the Democratic party, I would say, is engaged in an effort that really is a betrayal of America. What they care about is not winning the war on terror. What they care about is defeating President Bush. And I think that the positions that they're taking, the things that they're doing and saying, are significantly impeding the progress of the war, and give great encouragement to our enemies. And I indict them for that. I don't think they care about the danger to us as Americans nor do they care about the danger to people in other countries. They care about power."


...this email is a bit on the snarky side, but not abusive or over the line. Hindrocket wrote him this reply*:

"You dumb shit, he didn't get access using a fake name, he used his real name. You lefties' concern for White House security is really touching, but you know what, you stupid asshole, I think the Secret Service has it covered. Go crawl back into your hole, you stupid left-wing shithead. And don't bother us anymore. You have to have an IQ over 50 to correspond with us. You don't qualify, you stupid shit."

P_J said...

Alex Harrsion:

Blogger should make it easier to link directly to particular comments. I would go to my blog and link to Synova's post. Very good point.

Under each comment there is a time and date stamp which has a URL for permanent linking. You can simply right-click and copy shortcut then paste wherever.

Anonymous said...

Synova said...

And the Powerline guys... I can't even *imagine* how anyone could consider them among those guilty of incivility. Because they are wrong about some things and persistantly wrong about some others? Is being wrong the same as being hateful?

Davidwarner said...

Armando: You insist on challenging Professor Althouse by pasting a section of text and asking her to write what it means in the context of the discussion. You also did this over at Kos in the similar discussion. This strikes me as intellectually lazy on your part. I can paste all manner of text into a box and defy others to challenge the arguments contained therein. That does nothing to make others comfortable that I understand those arguments. I have seen people, many opposed to Alito, others who likely support him, point out to you precisely how you have misread or misunderstood the cases you have cited. However, I have not seen you adequately address those civil critiques other than to resort to name calling.

Gordon Freece said...

Elizabeth, how could "community activists" have any legitimate role in anything? Why listen to a "community activist" rather than to his neighbor, or his barber? If they speak for "the community", why did the community elect somebody else? If two community activists, both of whom by definition speak for the community, say mutually contradictory things, how do you decide which one to believe? Do you find a higher-ranking community activist and ask him, or do you just flip a coin?

This isn't meant to sound snide, but it's really a mystery to me why these folks are so sacred.

Ken Pierce said...

I don't see much point in the "which side is worse" game. As far as I can tell, whichever side is losing gets bitchy. It's easy to be magnanimous when you keep getting your own way...but boy, did you see how fast the conservative blogosphere turned on itself over Miers? At any rate, the Republicans were nasty when Clinton was in charge, and right now the poisonous bile is disproportionately on the Democratic side of the aisle, and should Hillary win in '08 then the Democrats will get all polite and gracious and the Republicans will start spewing profanities...and who really cares, anyway? You just avoid the people who can't get a grip.

But there's a whole bunch of value in passing around URL's of people who generally keep their tempers under control and deal graciously with disagreement.

Beth said...

Oh thanks! I'd forgotten Hindracker's "you stupid left-wing shithead" breakdown. Funny, none of the commenters talking about what a model of civility is Powerline mentioned it either. I'm sure they never saw it, or certainly they would have acknowledged it, as I have acknowledged and condemned invective in leftwing blogs. Thanks for bringing it to their attention, so they can cite it in the future.

Beth said...


You are confused. There's nothing sacred about community activists. You bring up elected officials, but they're not involved in this dispute at all. Business owners aren't elected, but they're on the panels planning policy and actions for revitalizing New Orleans. Community activists have just as much a role there as they do. How do you decide between one activist's views and another's? Well, how will these panels resolve conflicts of views between any two members? What does it matter whether the disagreement is between two activists or two bagel shop owners? Panels have rules of order, and will use those to come to conclusions.

You have a glib view of community activists. I find that odd for someone who might consider himself conservative. An activist doesn't depend on government to make things happen, but instead acts, and gets other citizens involved. What's bad about that? They can't legistlate, so they hold no undue power. Do you really trust goverment so much what you see no need for citizens to be involved? Hmm, the more I think about it, maybe there is something sacred about being active in your community.

Undercover Christian said...

Under each comment there is a time and date stamp which has a URL for permanent linking. You can simply right-click and copy shortcut then paste wherever.

When I click those, it brings up the whole comments thread and doesn't take me to the specific comment. Maybe it is just a compatibility issue with my browser.

Elizabeth, a one time melt down on Powerline really isn't the same thing as day after day melt downs elsewhere.

TallDave said...


To be fair, I think Hinderaker actually apologized for that, and changed his email policy, whereas that thing seems to be par for the course on DKos.


It makes Professor Althouse's absolute confidence in Ex Parte Young simply untenable.
Where does she say she's "absolutely confident" in it?

There was no precedent. It was a case of first impression. Other circuit opinions do not constitute precedent
I wasn't referring to those, but to previous 14th Amendment decisions.

P_J said...
This comment has been removed by a blog administrator.
Beth said...


He gave more than one example of uncivil, over the top and nasty discourse on Powerline. I read a lot of blogs, including conservative ones, and over time I just lost the ability to read that one. I think the examples posted offer good support for why. I'm not willing to troll through the biased, loaded, half-baked stuff for whatever little gems might be within day by day.

Anonymous said...
This comment has been removed by a blog administrator.
Beth said...


That was a good choice for Hindracker. But I note you mention kos again, and I've already said I don't like the level of discourse in the comments section of that and some other lefty blogs. Most-not all, but most-- of the responses to my post have been aimed at showing why I mischaracterized Powerline, but other statements I made, about my views on sexist and vile language from lefty blogs, valuing civil blogs like this one, about other rightwing blogs just as nasty as Kos, go unremarked. Why is that? It seems awfully hard for conservative commenters to own up to the excess on their side.

Anonymous said...

Liberals, does it bother you that this is what your loudest voice on the web sounds like?

Shorter Alex and Talldave. No, it does not bother us that our loudest conservatice voices sound like this.

Shorter Shorter Alex and Talldave. IOKIYAR

Armandoatdailykos said...

David Warner:

My quotes are to the pertinent material being discussed. For example, I quote footnote 97 to Professor Althouse's article in the Rutgers Law Journal where she details the view in Couer d'Alene that strictly limits the applicability of Ex Parte Young.

That seems a contradiction to her blanket assertion that the FMLA could be vindicated by state employees via use of Ex Parte Young.

Do you object to the length of the quote or my not explaining its significance? In any event, I explainits significance now and ask for your reaction to that contradiction on the part of Professor Althouse.

As for the question of namecalling. I've done none here and see that it is no better for discussion.

Echo chambers exist at almost all popular blogs. I think it is clear that this blog is no different in that regard.

No profanity of course making it better and more civil in the eyes of some.

Armandoatdailykos said...


"Later, Armando has this outburst, in response to commenters who keep trying to explain the law:

How in BLAZES do you enforce a law against the State then Genius? Soveriegn Immmunity. Look it the fuck up asshole.

Well, Armando, it's called Ex Parte Young. Look it up!"

I looked it up (not really.) But I do cite Couer d'Alene to Professor Althouse and footnote 97 to her Rutgers article and I see she plans to fisk me.

Will she explain her footnote 97 in the fisking? Will she fisk herself?

We'll see.

Undercover Christian said...

It seems awfully hard for conservative commenters to own up to the excess on their side.

I've never claimed that there aren't excesses on the right. I do take issue with the presumption that Powerline and DKos are equivalent in terms of excesses. I read neither one of those blogs regularly, but of what I have read, there is a vast difference in civility between the two.

Armandoatdailykos said...

Professor Althouse:

I will happily link to you. But I do want to understand your argument first.

Let's see what we agree on - that Congress' express abrogation of sovereign immunity was ruled invalid by Alito. To wit, the State could not be sued by the state employees.

You posit that Ex Parte Young provides the enforcement mechanism for prospective relief by state employees.

I question whether this is necesarily true in light of Couer d'Alene.

In your Rutgers article, you acknowledge the Ex Parte Young's applicability was limited by Couer d'Alene.

What are the contours of Ex Parte Young today and how would they be applied in the hypothetical FMLA case had Alito's view prevailed at the SCOTUS?

SWBarns said...

Check for Mr. Hinderaker’s post about his comments:
The next day, one of these emailers responded that he thought my reply was disproportionate to the offensiveness of his email; I agreed and apologized for having reacted inappropriately. I would have done the same with the "Minnesota Politics" guy if he had contacted me rather than posting my email--which obviously wasn't intended for publication--on his site.
Our usual practice is not to respond to hate mail. Occasionally we send courteous replies, on rare occasions we've responded angrily. But in all the years I've been writing emails, I'd never before sent a message that I realized afterward should have been deleted rather than sent. I acknowledge that I made a mistake; I intend not to make the same mistake twice.

Anonymous said...

and with respect to calling Jimmy Carter a traitor....?

vnjagvet said...


My compliments on your talent for stimulating comment and attracting readership.

But if you are trying to demonstrate that Alito is "outside the mainstream" of judges on the Courts of Appeals, you have not succeeded. Neither Coeur D'Alene nor Prof. Althouse's footnote 97 gets you there.

Nor does CJ Rehnquist's opinion which disagreed with Alito and the majority of C of A judges who agreed with his analyis of the esoteric 11th Amendment jurispridence being considered.

Even you must admit that pretty "mainstream" judges agreed with Alito on this issue.

Or must you?

Armandoatdailykos said...


Indeed, in the thread at dailykos, I accepted that, to the degree that the post in question implied that Alito's decision was out of the mainstream, it was misleading. That was not my intention. it was cearly a mainstream position.

However, the point I thought was a different one. It was to compare what a ScAlito Court will look like as compared to an O'Connor Court.

Another thing that is misuderstood is that daily kos is not a legal blog, every legal nuance is not fleshed out. It is a partisan Democratic blog.

I don't write for lawyers. I write for laypersons.

But I have a more scholarly piece bubbling in my head as a result of this and am eager to read Professor Althouse's "fisking."

Karl Llewellyn will figure heavily.

Ann Althouse said...

I would like to assure you all that when I wrote that footnote 97, I though it was just fascinating! It kind of is, compared to a lot of things published in law review articles. I mean, if you think sovereign immunity is at all interesting.

Anyway, Armando, the reason Coeur d'Alene is an unusual situation is because even though it was a claim for prospective relief, which under the well-established doctrine would have made Young available, "the state's sovereignty over territory was at stake." The O'Connor three made a special case out of that. The Kennedy/Rehnquist opinion had a slightly different way of articulating why the situation was exceptional. Basically, the state stood to lose sovereignty over its territory to the Indian Tribe that was suing, and that was a special area of state sovereignty, which is certainly nothing like the case of an individual worker suing to get his job back.

Gordon Freece said...

Elizabeth, about the activists, yeah, it was glib, but at least it was civil. Har har. I'm sure there are good ones, but where I live you see mostly the Cotton-Mather-in-a-Volvo types.

quxxo, apologizing doesn't "make it okay", but it sure beats not apologizing. Likewise, doing it once isn't the same as doing it compulsively, day in and day out. It's the difference between a normally imperfect adult, and somebody with a problem.

But your point is taken: If a conservative acts like a lefty just once, people remember it forever. "Man bites dog"!

Maybe that was a bit glib, too.

Armando, don't try so hard to sound "smart" and "superior". If you have to try, it's not working.

vnjagvet said...


Fair enough. It's tough writing for that audience on the 11th Amendment. I have had enough trouble trying to 'splain it to some federal judges, and to state attorneys general.

Re your book, Llewellyn would be proud. But would Hart or Wechsler agree?

BTW, wasn't Llewellyn married to Soia Mentschikoff, one of his students? He also fought for Germany in WWI and won an Iron Cross. No wonder he was a "Realist".

Armandoatdailykos said...

Professor Althouse:

When one considers the marriage of the 10th and the 11th Amendments in Alden, the market participant exception to the Commerce Clause, and the whole 'States as States'line of reaosning that unerlies the federalism jurisprudence, I am much more sanguine about this than you.

As I mentioned in a comment above, Karl Llewellyn was revered where I went to law school, and we are taught to be skeptical of stated rationales.

As you appear to havepointed out in some law review articles, a federalism with an Ex Parte Young out is a pretty empty sort of federalism.

Couer d'Alene opens a door that had been closed previously.

I find it hard to believe that the federalism adherents on the Court will not try to widen that door.

It becomes especially critical then to try and discern Alito's true views on this.

Armandoatdailykos said...


I smell someone who spent some time in Morningside Heights.

Hart and Wechsler would decidedly NOT agree with me on this.

nunzio said...

Prof. Althouse and Armando:

I think Justice Kennedy's foray into a sort of case-by-case Ex Parte Young analysis for each prospective relief case was put to rest in Verizon v. Public Service Cmmn of Maryland (2002).

I'm wondering, however, if you think someone could sue a state actor under Section 1983 for violation of the ADEA (or similar SI suit) under the principle of Maine v. Thiboutot (and Wilder v. Virginia Hospital Ass'n)? My guess is yes, which would be another way around the SI problem.

Synova said...

I recall Hindrocket's civility breakdown and I recall his apologizing for indulging in it.

As for the intemperate criticism of "Democrats" as traitors... I'm so often utterly appalled by some of the official statements made... Oh, by Gore in Sweden and Kerry on the campaign trail (couldn't say a word about Carter other than that I would simply feel mean to pick on him about anything) that simply *are* damaging to the US that, while I'm not fond of tossing around the word "traitor" I am sympathetic to the urge.

Gore telling the Swedes that we torture people reminds me of junior high girls ready to tear up a best friend to impress the popularity high priestess. Gore doesn't have any proof of his allegation or he'd (rightfully) make it in court. This is just what he believes. Yet, being who he *is*, anyone would be quite justified to consider his opinion authoritative. He doesn't have proof... but his word *is* proof. His pandering to people who would praise him for his boldness hurts our reputation, it undermines our efforts in a *real* and *substantial* manner. It has consequences.

I'm not sure what to call this other than shameful. Is concluding that his highest priority is *not* the well being of the United States really all that much of a stretch (if a stretch at all?)

And Kerry publicly refering to Allawi as a US *puppet*? If that was the only stupid thing he had done during the campaign it would have been enough for me to vote for Bush. Could he have been unaware of the connotations of the word "puppet?" Could he have been unaware of how important it was (and is) to support the *reality* AND the *appearance* of Iraqi self-rule? Unaware of those things he's too dumb to be President. *Aware* of those things, he's too self-interested, not caring in the least what he breaks if he can just bring down Bush. Or maybe he just figured that it didn't matter what he said because his opinion didn't matter or have real world consequences... in that case he announced his own self as not worthy of the presidency.

Yes. Several conservative bloggers (and military ones, who understand that undermining the leadership in these ways means they are in greater physical danger) do take exception to the blatant irresponsibility involved. Some of them have said to heck with sugar-coating the issue, this isn't dissent, it's actively working for our *failure*.

And elected Democrats that *do* support the US and want us to win suffer for it.

TallDave said...


Right, I'm familiar with all that. She doesn't say she has absolute confidence in it, just that it's a vehicle by which a state could be compelled to comply despite sovereign immunity. The fact it doesn't (or shouldn't) apply in every possible case doesn't weaken her assertion that it could be used that way in this case. You asked (or if you were being rhetorical, implied it was impossible), she gave an eminently reasonable answer.

That's in addition to the other substantive points Ann raised.

I think ultimately all this just tends (and was intended) to illustrate that real substance usually accompanies civility, and where you cannot find one the other is generally scarce as well.

Ann Althouse said...

Quxxo: "One of Ann's favorite tactics is to say that my posts are too long for her to read." You don't recognize tact when you see it.

vbspurs said...

I'm coming to this discussion late (with over 116 comments posted already), and I haven't read them all, but here is an excerpt of what I posted on in my blog, when Judge Alito's name was announced.

It was from a Kos Kid named Hunter, who took exception to Alito's Italian ethnicity being the subject of commentary:

"[...]but check this well-named rant against Alito's Italian origins.

Maybe it's me. Maybe I have plain bad luck to go on Daily Kos and find the filthiest-languaged posts ever written on blogosphere by a well-known political blogger, but I SWEAR TO YOU, whenever I go there, I have the misfortune of coming across such demented drivel."

This latest post by Armando, who deigned Althouse with a non-expletive ridden appearance, simply confirms my view of that site.

I read Daily Kos and Wonkette on occasion, because pigeonholing yourself so tightly to one viewpoint, is regressive.

But what a difference those two bloggers from say, an Althouse, or an Instapundit, or a Volokh...

I know which bloggers I'd be prouder to align myself to.


vbspurs said...

(Where's my link from Kos? I link to the people I argue with.)

What, an give your site traffic? Heaven forfend.

It reminds me of when the TTLB Katrina Blog-a-thon was going on, when someone posted that if he could participate, without linking to Instapundit's round-up post.

Because, you know, Glenn has Republican cooties.


reader_iam said...

Kos readers trend young. It disturbs me that so many may get the impression that the comments section there represents actual informed discourse, much less civilized. So that's my biggest problem with reading it, although I do so as often as my stomach can tolerate it. (And I typically have a strong, STRONG stomach for what most would consider offensive, profane language--though I avoid using it myself. But Kos IS over the top--and NO, those commenters are not alone.)

Interestingly, a dear friend of mine who is very progressive left not all that long ago apologized for going over the top unnecessarily and insulting several people needlessly and unfairly in a public setting. (She normally doesn't go TOO far.) Part of her comment was, "I really have been reading too much Kos lately."

See, here's the bottom line: incivility is CATCHING, and the quality and--yes--SUBSTANCE of the facts and arguments seem to degrade in a correlated fashion.

And to repeat: I think that applies to the extremes of BOTH sides.

Anonymous said...

Ann Althouse said... Quxxo: "One of Ann's favorite tactics is to say that my posts are too long for her to read." You don't recognize tact when you see it.

Apology accepted. This time. But work on it.

Armandoatdailykos said...

Instapundit and Powerline as models?

Geez. Sorry for getting the impression that this is a Right leaning blog.


What is hilarious is that NEITHER take comments.

Yes, civility is easy in that setting.


vnjagvet said...


Compliments on your change of "voice" for this thread.


Paul Mishkin was my Fed Courts Prof at PennLaw many years ago. The Bramble Bush and Hart and Wechsler were the texts. Best course I ever had. Columbia influence for sure, since that's where Mishkin studied law.

Great stuff.

Beth said...


I just spent the weekend in Boston and Salem, so Cotton-Mather-in-a-Volvo made me laugh out loud. Cheers.