200 journalists and writers release an open letter to the NYT to raise "serious concerns about editorial bias in the newspaper’s reporting on transgender, non-binary, and gender nonconforming people.”

Hell Gate reports.

The open letter, whose signees include regular contributors to the Times and prominent writers and journalists like Ed Yong, Lucy Sante, Roxane Gay, and Rebecca Solnit, comes at a time when far-right extremist groups and their analogues in state legislatures are ramping up their attacks on trans young people....

In recent years and months, the Times has decided to play an outsized role in laundering anti-trans narratives and seeding the discourse with those narratives, publishing tens of thousands of handwringing words on trans youth—reporting that is now approvingly cited and lauded, as the letter writers note, by those who seek to ban and criminalize gender-affirming care.

Hell Gate has an interview with Jo Livingstone, "an award-winning critic and writer who helped organize the open letter."

Here's the open letter. I'll highlight what I think are important parts:

"The Battle Over Gender Therapy/More teenagers than ever are seeking transitions, but the medical community that treats them is deeply divided about why — and what to do to help them."

This is an excellent article by Emily Bazelon in The New York Times. I'm not going to try to summarize it. If you're not a subscriber, I think it's worth one of your "free reads."

Has the Court's Dobbs draft shifted the press and other partisans back to saying "women," or is "pregnant people" still something they feel disciplined to say?

The Star Tribune has a column (by lawprof Laura Hermer) titled "Pregnant people have rights. Products of conception don't. The leaked Dobbs draft opinion gets fetal rights backward." The text uses the phrase "pregnant person" 5 times and there's also one "person who gave birth" and 5 appearances. 

The word "women" does show up once at the very beginning and once at the very end — in the phrase "women's rights." If you want strong political speech on this issue, you need to say "women's rights." You invite ridicule — even if we stifle our urge to ridicule outside of the confines of our head — if you decorously substitute "pregnant people's rights."

At USA Today, there's "People of color, the poor and other marginalized people to bear the brunt if Roe v. Wade is overturned" by Nada Hassanein. Wouldn't it be stronger to write "Women of color, the poor and other marginalized women"? 

We're told: "If Roe is overturned, people may travel hundreds of miles to get to states where abortions are still allowed. Young and low-income people, who are disproportionately of color, may not be able to afford the cost of travel." Wouldn't "women" generate more empathy? But "people" is used to remember to be empathetic to trans people. 

Anyway, the word "woman" is also used repeatedly in that article, including to refer to the as-yet-not-renamed National Women’s Law Center. 

The Washington Post has "Roe to be decided in one of the worst cities to be Black and pregnant/The stakes are not evenly spread across people who become pregnant, and if the Supreme Court justices need a reminder of that, they don’t have to look far" (by Theresa Vargas). The article does use the word "women" many times, along with many appearances of "people." We're told the Court's "mulling over what protections pregnant people deserve" is occurring in a geographic location where "almost all the pregnant people dying are Black." There's a quote from a report that says "Black birthing people constitute roughly half of all births in DC." (As if the "birthing people" are the "births"!) 

There are a lot of pieces about the Dobbs draft in The Washington Post, but only one other uses "pregnant people": "Meet the Reddit ‘Aunties’ covertly helping people get abortions/The Reddit group offers a glimpse into a post-Roe era where people resort to informal networks to assist those locked out of an abortion" (by Pranshu Verma). This one is very intent on saying "people" and not "women." "People" appears 18 times and the only appearance of the word "women" (there's no "woman") is in a caption under a photo of a clinic that has the word "Women's" in its name. 

Meanwhile, in the NYT, the phrase "pregnant people" has only appeared once since the draft leaked (and there's no example of "pregnant person"). It's in a new column by Emily Bazelon, "Beware the Feminism of Justice Alito." 

So that's a little evidence that the "pregnant people" nicety is getting nixed.

I can't check every elite publication for the absence of "pregnant people" — not if I want to write in this form called blog — but I did check one more, which I regard as an exemplar of liberal elitism, The New Yorker. It has not printed "pregnant people" since last November, in "If Roe v. Wade Goes, What Next?" (by David Remnick). 

I'll stop here, so I can post, but I'll be looking at this issue.

"Granted that most of the mythologizing came later, but for RBG to decide she was indispensable in 2013-14, when there was a Democratic President and Democratic Senate majority..."

"... that could have replaced her with another liberal, was a cosmic misjudgment. (As de Gaulle is supposed to have remarked, the cemeteries are full of indispensable people.) Self-confidence is fine and good, and in her case it was fully justified. But to imagine that through sheer will power you can endlessly defy age and illness is hubris, and we know from the Greeks, hubris invites nemesis — now in the form of a court that will pick apart and discard half her legacy. This is the tragedy we are now facing."

That's one of the most highly rated comments at "Why Ruth Bader Ginsburg Refused to Step Down/She could have had President Obama nominate her successor. But she didn’t get to the Supreme Court by letting other people tell her what she could do" by Emily Bazelon (NYT).

By the way: "Mitt Romney Supports Replacing Ruth Bader Ginsburg Before the Election/Republicans are now almost guaranteed enough votes to replace the late justice before Nov. 3" (Buzzfeed). Romney offered what has become the stock GOP explanation: "The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own."

Nemesis ("In ancient Greek religion, Nemesis... is the goddess who enacts retribution against those who succumb to hubris (arrogance before the gods)"):

The NYT "took only minutes — with assistance from publicly available information — ... to deanonymize location data and track the whereabouts of President Trump."

So we are told, in a piece titled "How to Track President Trump," in what feels to me like too much of a prod to readers to do it yourself.

Here's how the article is promoted on the front page of the NYT website (where the image is animated, giving the impression that you can follow the President around in real time if you learn this how-to advice):



Notice the title at the bottom left: "Why Is Trump Finding More Protection Than Nixon Did?" That's not an article about the personal, physical protection of the President from violence, but you don't know that until you click through to the article, and I see no good innocent reason to use the word "Protection" in that headline. Even if the potential to stimulate of violent ideation was purely accidental, it should have been noticed and changed. The "How to Track President Trump" image was already creepy (especially in the animated version, where the dot moves quickly across a GPS image).

The "Protection" article elaborates many differences between the facts relating to impeachment for the 2 Presidents.

The "How to Track" article raises an alarm that it's too easy to track the President (and anyone else). It ends with a plea for more regulation: "The sources who provided the trove of location information to Times Opinion did so to press for regulation and increased scrutiny of the location data market... So far, Washington has done virtually nothing to address the threats, and location data companies have every reason to keep refining their tracking, sucking up more data and selling it to the highest bidders."

"The conservative Roberts majority will no doubt frame future rulings on voting restrictions and gerrymandering as solidly grounded in law and the Constitution."

"And yet it could become increasingly difficult to believe the court is doing law, not politics, if a conservative majority of Republican appointees issued decision after decision that had the effect of helping Republican candidates win elections.... Elections are the only obvious, if indirect, way for the public to express its discontent with a wayward Supreme Court. Maybe a mobilized Democratic Party can somehow overcome all the barriers of Republican entrenchment.... If a new dominant national alliance emerges to the left of the Roberts Court, maybe the justices will find a way to become a part of it. Or the Republicans could remain in power because they make a persuasive case to the voters, not because the court aids in eroding the democratic process...."

From "When the Supreme Court Lurches Right/What happens when the Supreme Court becomes significantly more conservative than the public?" by Emily Bazelon in the NYT.

I have little confidence that my excerpt will be comprehensible to anyone. One key is to understand that there's a theory that the judiciary is really a political branch, and that for all its posing as operating in a completely different mode — interpreting legal texts — it's really tracking democratic preferences. There's a concern that the new majority on the Court will permit redistricting and various voting law that will help Republicans win elections, putting them in control of the overtly political branches of government. And there's an idea that the Court will notice that those supposedly democratic branches are not properly majoritarian anymore and that distortion will motivate the Court — which is covertly political — to step into the role of representing what it knows to be the true majority.

I'm trying to put the argument in blunter language than Bazelon is using. I see that Bazelon is now the Truman Capote fellow for Creative Writing and Law at Yale Law School, which sounds like a fantastic position. But I wonder, what would Truman Capote write?

ADDED: What exactly is "creative writing"? Wikipedia says:

Creative writing is any writing that goes outside the bounds of normal professional, journalistic, academic, or technical forms of literature.... Both fictional and non-fictional works fall into this category....

I'm all for jumping outside the bounds of "normal" legal writing, though I don't like the term "creative writing." First, "creative" is way overused in our culture. Everyone's child is so creative, and young people accept low-paying jobs that are portrayed as "creative." Second, if you're writing nonfiction, you shouldn't be "creating" your facts. You want to be creative in what facts you pursue and how you present them, but why invite the confusion? The use of Truman Capote's name in connection with writing about law is also interestingly confusing, since Capote — for all his excellent writing style — was known to have deviated from rigorous truthtelling in his nonfiction work, "In Cold Blood." From Wikipedia:

Writing in Esquire in 1966, Phillip K. Tompkins noted factual discrepancies after he traveled to Kansas and spoke to some of the same people interviewed by Capote... Tompkins concluded:

Capote has, in short, achieved a work of art. He has told exceedingly well a tale of high terror in his own way. But, despite the brilliance of his self-publicizing efforts, he has made both a tactical and a moral error that will hurt him in the short run. By insisting that "every word" of his book is true he has made himself vulnerable to those readers who are prepared to examine seriously such a sweeping claim.

True crime writer Jack Olsen also commented on the fabrications:

"I recognized it as a work of art, but I know fakery when I see it... Capote completely fabricated quotes and whole scenes.... That book did two things. It made true crime an interesting, successful, commercial genre, but it also began the process of tearing it down. I blew the whistle in my own weak way. I'd only published a couple of books at that time – but since it was such a superbly written book, nobody wanted to hear about it."

In the NYT "Lives They Lived" annual feature, Emily Bazelon writes about Antonin Scalia as a "skeptic about science."

The grand year-end summary of those who have died commemorates Justice Scalia with the thesis statement: "He claimed objectivity when it came to originalism, but he was a skeptic about science."

That sounds so wrong to me. I don't think Scalia "claimed objectivity when it came to originalism." I think he aspired to neutrality and thought originalism at least imposed a standard that would make it possible to call out a judge who'd lapsed into deciding that the Constitution means what he'd like it to mean.

And I don't know what is the basis for calling him "a skeptic about science" unless you just mean he was skeptical of a judge's ability to know science well enough to use it in a neutral way or that he thought that unscientific cultural beliefs could be a rational basis for democratic choices.

So far I've only read the title of Bazelon's piece. Let's see what she's come up with — whether it makes sense and is fair and whether it has an appropriate attitude to belong in the set of year-end tributes that is the the NYT's traditional "Lives They Lived" feature.

"The battle lines among American feminists over selling sex were drawn in the 1970s."

"On one side were radical feminists like the writer Andrea Dworkin and the lawyer and legal scholar Catherine MacKinnon. They were the early abolitionists, condemning prostitution, along with pornography and sexual violence, as the most virulent and powerful sources of women’s oppression. 'I’ve tried to voice the protest against a power that is dead weight on you, fist and penis organized to keep you quiet,' wrote Dworkin, who sold sex briefly around the age of 19, when she ran out of money on a visit to Europe. Other feminists, who called themselves 'sex positive,' saw sex workers as subverters of patriarchy, not as victims. On Mother’s Day 1973, a 35-year-old former call girl named Margo St. James founded a group in San Francisco called Coyote, for 'Call Off Your Old Tired Ethics.' Its goal was to decriminalize prostitution, as a feminist act. In its heyday, Coyote threw annual Hooker’s Balls, where drag queens and celebrities mixed with politicians and police. It was a party: In 1978, a crowd of 20,000 filled the city’s Cow Palace, and St. James entered riding an elephant. By the 1980s, Dworkin’s argument condemning prostitution moved into the feminist mainstream, with the support of Gloria Steinem, who began rejecting the term 'sex work.' St. James and the sex-positivists were relegated to the fringes....."

From a long NYT article by Emily Bazelon, "Should Prostitution Be a Crime?/A growing movement of sex workers and activists is making the decriminalization of sex work a feminist issue."

"A third-grader from St. Louis was told he couldn’t return to his elementary school next year — because he’s black."

How is this possible?, you may wonder. I know I did when I read the first reports of this boy's predicament. The explanation is that the child's family is moving out of the city school district and into a suburban school district. His city school is Gateway Science Academy, which was created as part of a desegregation effort, and he could continue to attend if he stayed in the area. But only white kids from the suburbs can cross into the city district, because the idea was to increase the proportion of white students in city schools. So when his family asked if he could still attend, they received a letter telling them that he can't because he's black.

The Missouri Department of Elementary and Secondary Education released a statement clarifying that the “unfortunate situation” is because “of the student’s change in residency.”

“Even if the family's new St. Louis County school district participated in the transfer program, the student would still not be able to transfer. This situation stems from the 1980 U.S. Court of Appeals ruling that the St. Louis City and County schools were maintaining segregated systems. In 1983, the schools reached a Desegregation Settlement Agreement allowing African-American students to transfer into primarily white suburban school districts and for non-African American students to attend St. Louis schools. The goal was to try to balance the racial makeup of the city and county schools,” the statement read.

The mother says: “The only thing I would really like out of this whole outcome are that the guidelines be revised for all children. I don’t think a factor of race should determine if a kid should be able to go to school or not, or the guidelines should have some leeway for how to deal with situations like this.... I don’t want any other families to go through what we’re going through.”

Legally, the question is whether the St. Louis City and County schools has eliminated the vestiges of de jure segregation. That's the compelling government interest that is seen as justifying the ongoing discrimination. After that, continued race discrimination, just for race balancing, violates the Equal Protection Clause, according to the 2006 Supreme Court case Parents Involved v. Seattle School District. That was a 5-4 case, and I think a new liberal majority would be eager to overrule or limit it.

As the mother says, a fix involving "some leeway" for "situations like this" could preserve the overall integration plan. The "situation like this" is a child who is already attending the school, who wants to continue, even as his family moves out of the district.

ADDED: Here's a NYT article by Emily Bazelon suggesting the perspective a new liberal majority would be likely to take on the school desegregation problem. Excerpt:

Justice Stephen Breyer sounded a sad and grim note of dissent [in Parents Involved]. Pointing out that the court was rejecting student-assignment plans that the districts had designed to stave off de facto resegregation, Breyer wrote that “to invalidate the plans under review is to threaten the promise of Brown.” By invoking Brown v. Board of Education, the court’s landmark 1954 civil rights ruling, Breyer accused the majority of abandoning a touchstone in the country’s efforts to overcome racial division. “This is a decision that the court and the nation will come to regret,” he concluded.

Breyer’s warning, along with even more dire predictions from civil rights groups, helped place the court’s ruling at the center of the liberal indictment of the Roberts court. In Louisville, too, the court’s verdict met with resentment. Last fall, I asked Pat Todd, the assignment director for the school district of Jefferson County, which encompasses Louisville and its suburbs, whether any good could come of the ruling. She shook her head so hard that strands of blond hair loosened from her bun. “No,” she said with uncharacteristic exasperation, “we’re already doing what we should be.”

"Have We Learned Anything From the Columbia Rape Case?"

This is a longish NYT Magazine article by Emily Bazelon. Is there anything new here or is this more of a summary of a problem — a conflict — that those of us who've been following the story already know?

1. How Nungesser's parents felt at graduation: It was "devastating," they say, "especially... an exhibition at a university gallery...  that included Sulkowicz’s prints of a naked man with an obscenity and of a couple having sex, inked over a copy of a Times article about Nungesser." I'm a little confused by the word "prints." Prints like etchings or lithographs? Sulkowicz — in email (I think to Bazelon) — called the "prints" "cartoons."

2. Sulkowicz's email gives some insight into the kind of rhetoric she is purveying: "What are the functions of cartoons? Do they depict the people themselves (a feat which, if you’ve done enough reading on art theory, you will realize is impossible), or do they illustrate the stories that have circulated about a person?" Suddenly, I'm thinking about the Charlie Hebdo massacre and other incidents involving cartoons depicting Muhammad. Maybe those who get murderous over cartoons just haven't read enough art theory. And I'm put off by the assertion that if only people would read the right amount of a prescribed sort of material, we'd necessarily believe a particular sort of thing. It's saying: The only reason you don't already agree with me is that you're ignorant.

3.  And I don't even understand how those 2 sentences in Sulkowicz's email addressed the pain experienced by Nungesser's parents. Aside from the parenthetical, which is an assertion, the 2 sentences are 2 questions, but the first question sets up the second question, and the second question is an either/or question, within which the first option is negated by the assertion in the parenthetical. Therefore, Sulkowicz really is saying her cartoons "illustrate the stories that have circulated about a person." So her art work is an illustration added to a NYT story that gives graphic reality to the allegations that were made about Nungesser.

4. I wrote "gives graphic reality to" because I was straining to avoid the word that normally comes to mind: depict. Not having read enough art theory to realize that it is impossible to depict Nungesser himself, I thought the use of that word might make me look ignorant to those who have done the homework. But, for the record, "depict" means "To draw, figure, or represent in colours; to paint; also, in wider sense, to portray, delineate, figure anyhow." Anyhow! As in "The solar progress is depicted by the Hindoos, by a circle of intertwining serpents." R. J. Sulivan View of Nature II. xliv. 288  (1794). (Definition and quote via the unlinkable OED.)

5. Columbia University President Lee C. Bollinger avoided shaking Sulkowicz's hand at graduation and the university has taken the position that it wasn't actual shunning but the mattress getting in the way. Bazelon doesn't come out and call bullshit, but she links to the video so we can decide for ourselves.

6. Because we don't have the transcript of Columbia's disciplinary proceedings, "even the procedural disputes between Sulkowicz and Nungesser are lost in the land of she-said-he-said." Sulkowicz says she was asked "ignorant and insensitive questions." (That's Bazelon's paraphrase.) But we're not seeing the actual context. And Sulkowicz and Nungesser are saying different things about whether their friendly Facebook conversations were admitted as evidence. It's frustrating to have this matter become so public — through Sulkowicz's performance art — and then be deprived of the transcript, but Columbia has to protect student privacy and to encourage other students to feel secure that their privacy will be protected if they need to file a complaint or if they are accused.

7. Columbia is trying to improve its procedure: "Students are now permitted to bring a lawyer to their hearings, and if they can’t afford an attorney, the university will provide one. The university also hired new investigators and other staff members and gave training on how to hear cases to the administrators who serve as panelists."

8. Sulkowicz says "the system is broken because it is so much based on proof that a lot of rape survivors don’t have." And: "Even if you have physical evidence, you can prove that violence occurred but not that someone didn’t want the sex to be violent." Presumably, she wants to fix the system by avoiding the need to prove things that are too hard to prove. Here, that would be the mental element that accompanies the sexual act. But how can you possibly get rid of the need for that evidence?

9. Some people say, get rape cases out of university proceedings and into the criminal justice system. Bazelon's response to that is: "[I]n the eyes of the government, universities have this responsibility because of an important principle rooted in the federal law, Title IX: If a rape prevents a victim from taking full advantage of her education, then it is a civil rights violation as well as a crime." Quite aside from what statutory law requires, universities may properly see themselves as having a role in making the campus environment a safer and friendlier place. Bazelon refers to counseling, academic accommodations, assurances that alleged assailants won’t contact complainants, and education about prevention of sexual assaults.

10. Bazelon mentions early on that Nungesser is suing Columbia, but she doesn't connect that to other issues she discusses. She doesn't say that his lawsuit is based on Title IX (though, as you see in point #9, she says that Title IX causes universities to want to remain involved in providing remedies to victims). And she talks about Bollinger's avoidance of Sulkowicz at graduation (point #5, above) without saying that Bollinger is a named defendant in Nungesser's lawsuit.

Emily Bazelon is critical of Jon Krakauer's book about campus rape.

A review in the NYT of "Missoula: Rape and the Justice System in a College Town":

The university had used the standard of “preponderance of the evidence” (or more likely than not) to find Johnson culpable, but the standard for a criminal conviction is higher — beyond a reasonable doubt.... Krakauer presents [the acquittal] not as a reflection of the differing evidentiary standard, and a jury’s best effort to resolve a difficult and confusing set of facts, but as a bitter failure of the adversarial process....

"The affirmative-action case liberals deserve to lose."

By Emily Bazelon, who is a liberal, at Slate, which is liberal (so this isn't some conservative fakely "helping" liberals see the light, in the style of articles like "Do Yourselves a Favor, Republican/Raise the debt limit high enough that we don't have to debate it again until after your primaries," a teaser on the front page of Slate right now).

I'm very interested to hear about this morning's argument in the case Bazelon is previewing, Schuette v. Coalition to Defend Affirmative Action. The argument against the Michigan constitution's ban on affirmative action in education is so abstruse that no article aimed at laypersons can explain it. Bazelon does a creditable job — at paragraphs 4-6 at the link — but I've repeatedly read (and taught) the strange cases that the argument is based on, and I've seen year after year of law students struggling just to see what the Court was saying in those cases, which must be further extended to reject the Michigan ban. If the Supreme Court embraces that argument, people won't understand why, and it will help conservatives in 2014 and 2016.

Which is why I read Bazelon's "liberals deserve to lose" as "liberals should want to lose."

Googling in the theater.

Remember when Pee Wee Herman got arrested for masturbating in a movie theater? That was long ago. It must have been before home video, because why go to a theater to masturbate? Exposure? The thrill of potential discovery? A need for just the right degree of intimacy with others? Because once pornography is subject only to boring disapproval from bland people, one must look for another way to feel that you're doing something titillatingly wrong?

But today, the transgression is Googling in the theater. Googling, long ago, could have been a slang term for masturbating. (Are you googling again?!) But those days are past. Googling is research, and research in the theater is a subversive activity.

From Professor Meltsner's essay about the play "Arguendo," discussed in the previous post:

[The play] is replete with jargon and enough insider's free expression law that even many lawyers in the audience were grabbing smart phones to do some instant Googling.

"Was the problem that had no name possibly the lack of Wi-Fi?"

Noreen Malone gets a grip on what Betty Friedan — on behalf of suburban women in general — was bellyaching about in "The Feminine Mystique." She's responding to a piece by Emily Bazelon, which we talked about in a long comments thread yesterday. Malone says:

I grew up with a whip-smart mom who stayed at home with us, and so I always approach discussions like these with a bit of a chip on my shoulder, alert to any slights whatsoever against the choices and life mission of someone I so love and admire — even if I don’t plan to make precisely the same ones. But more of it is probably generational. For recession-scarred twentysomethings, staying at home or taking menial jobs is involuntary, but not because social mores dictate that women can’t achieve: It’s because so few of us, regardless of gender, have gotten hired at jobs Friedan might consider fulfilling...

I’m sure Betty wouldn’t be happy to see all the expensively educated young women of Brooklyn, where I live, spending their free time taking floral-arranging classes and knitting and fussily setting up their living rooms just so....

What's so wrong about paying close attention to the details of the beauty of your environment? Fussy... there's a word. When is intense, attentive work deemed fussy? This is a word that has long been used against women and against gay men. Is a person supposed to be interested in something other than what he or she finds interesting? Why? Who says what the proper foci of interest are in this world? Some people are more sensitive to the visual specifics of their environment. It's not as if the people who aren't spend their lives plumbing the meaning of the universe. Perhaps the interior decorator is closer to the core of what truly matters than the corporate lawyer. 

"My name is Emily Bazelon. I’m a feminist. I’ve never read Betty Friedan’s book—until now."

Says Emily Bazelon (on the occasion of the 50-year anniversary of "The Feminine Mystique").

I'd never read the book myself until recently. My reason for not reading it was that I'd regarded it as something that addressed the troubles of my parents' generation. I went to college in 1969, when everyone was reading "Sexual Politics" and "The Female Eunuch." "The Feminine Mystique" seemed really old fashioned — about June Cleaver and her cohort.

Here's Bazelon:

[W]hat hit me was Betty’s howl of frustration. It’s primal, and you feel its desperate force on almost every page. God, did she feel trapped among the slipcovers of the suburbs and in the pages of the women’s magazines she wrote for, where big ideas and questions were entirely unwelcome. The only way to escape was to pulverize the image of the Happy Housewife Heroine who is the title of Chapter 2. Betty’s fiercest critique in this book is of the “mistaken choice” she thinks traditional gender roles forced middle-class women and their husbands to make....

What made me dislike the book — when I finally read it — was that Freidan was not in the role of the housewives she purported to understand so well. She was in the role of writing for women's magazines. She didn't like the limited topics that were the stuff of that kind of magazine. She makes an assumption that women who buy a magazine are only interested in the topics covered by that magazine. But that's absurd! If you bought a magazine about cooking/childcare/fashion, that wouldn't mean you aren't interested in politics or science or whatever else is supposed to be more important. You might have other magazines — or books — for that.

Why the assumption? It might be frustrating for a journalist who's interested in politics to crank out material about topics she doesn't care about, but it was wrong to project those frustrations onto the unknown women who bought the magazines for their own purposes and used the information in those magazines in their individual private lives — perhaps to make a nice dinner efficiently so there would be time to read a good book in the extra time one can make in a day when you don't have a job. The notion that A Job belongs at the center of everyone's life is a huge scam, and the blithe rejection of the 1-earner marriage was an amazing, tragic shift in American culture. The equality of women — the ambition and the fulfilment of women — did not demand that we all get a job.

When Roe v. Wade came out, Justice Ginsburg believed the motivation behind it was fighting overpopulation.

Emily Bazelon gets clarification directly from the Justice about a remark she made in 2009 that seemed perhaps to favor abortion for population control. Justice Ginsburg reframed her point this way:

“I was surprised that the court went as far as it did in Roe v. Wade, and I did think that with the Medicaid reimbursement cases down the road that perhaps the court was thinking it did want more women to have access to reproductive choice. At the time, there was a concern about too many people inhabiting our planet. There was an organization called Zero Population Growth.... In the press, there were articles about the danger of crowding our planet. So there was at the time of Roe v. Wade considerable concern about overpopulation.”

That is, she intuited the Court's motivation, which she says she was wrong about — as she observed in the old remark and repeats now — because the Supreme Court later, in 1980, upheld the political decision to exclude Medicaid funding for abortion, in Harris v. McRae. Ginsburg's 2009 quote was:

[Roe v. Wade] surprised me. Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion.

These remarks conflate the Supreme Court and Congress. It could have been that concern about overpopulation motivated the Court in Roe, as it pushed back the states' power to ban abortion and put abortion in a relatively positive light as something women had a right to do. That created the political space within which Congress might have opted to fund abortions for poor women. All that happened in Harris v. McRae was acceptance of the political reality that did ensue, the decision not to pay for abortions. The Supreme Court failed to predict the political fallout from Roe. The Court could still, at the time of Roe, have believed that it was enabling Congress to undertake population-control policy. When Harris v. McRae arose, the Court had new information and a new question to answer. It declined to extend Roe to mean that Congress was obligated to fund abortions as part of Medicaid.

Bazelon blithely concludes:

The history lesson is this: There was a feminist women’s rights argument for legal abortion in the 1970s, which the Supreme Court accepted in Roe v. Wade. And there was a separate and distinct argument about preventing population growth by being pro-abortion, made by groups like Zero Population Growth, which the court did not accept, not in Roe and not later.

The women's rights argument is presentable and defensible. Abortion for population control was and is too ugly — and too close to racism — for comfort. What is uncomfortable is suppressed. In that sense the denial is admirable. But Bazelon's instruction on the "history lesson" is too pat and too sanitized to be taken uncritically.

"Have I mentioned that David Plotz constantly tells me that Paul Ryan bears a resemblance to my husband?"

Says Emily Bazelon, as she tries to cast Paul Ryan as another Sarah Palin. He's "a cute young thing with bright blue eyes." Good looks... must be like Sarah Palin...??? And her husband... says one Plotz. (To plotz is to faint from excitement.)

Of course, Ryan's deep grip of the specifics is not at all Palin-like. No one will be worrying about whether he knows how far away Russia is, even though he has no foreign policy experience, or can handling the prep for his debate with Joe Biden. Come to think of it, odds are that he will ice Biden, right? 

It's so hard to say what you want to say! Oh, well, my husband's really cute!

Hey, imagine if Sarah Palin had written a post as flighty and disconnected as Bazelon's.

How did the jury find Dharun Ravi guilty of "bias intimidation"?

Ravi had spied on his Rutgers College roommate, Tyler Clementi, who proceeded to jump off the George Washington Bridge:

“It was pretty hard to think about Tyler, because he wasn’t present to give his thoughts,” said Kashad Leverett, 20, of South Amboy, N.J., after he and 11 other jurors delivered a guilty verdict on all charges, including invasion of privacy and bias intimidation, on Friday. “But in the evidence that was provided, it showed that he believed he was being intimidated because of his sexual orientation.”...

Clementi believed. But how does that reflect on Ravi?

The bias intimidation charges were the most difficult to agree upon, jurors said. And what tipped the scales there, they said, was that Mr. Ravi had discussed spying on Mr. Clementi not just once, but repeatedly, even inviting his online friends to watch Mr. Clementi and the other man in a second encounter.

That, said Ms. Audet, is what elevated the case from one of teenagers behaving cruelly and insensitively to a crime.

“To attempt a second time, is what changed my mind,” she said. “A reasonable person would have closed it and ended it there, not tweeted about it.”

Cruel and unreasonable, but why is it bias intimidation?

An important component of the bias intimidation charges was whether Mr. Clementi felt bullied. Jurors said he left ample evidence that he did: he complained to his resident assistant, he went online to request a room change, he saved screen shots of Mr. Ravi’s more offensive online posts, and he viewed his roommate’s Twitter feed 38 times in the two days before he killed himself by jumping off the George Washington Bridge.

“We’ll never know exactly what he was feeling,” Ms. Audet said. “I can only assume.”

Obviously, Clementi could not be cross-examined.

Mr. Ravi’s lawyer pointed to apologetic texts that Mr. Ravi sent Mr. Clementi, in which he said he had no problem with homosexuality and even had a close friend who was gay....

Mr. Leverett, a student and Twitter user himself, was unmoved. “I can’t speak for everyone on the jury, but me, personally, I believe it was something where he realized what he did was wrong, and it was just too late to amend for what he did.”

Of the apology, Ms. Audet said: “My first impression was to believe what he said. Then, as we started reading stuff, we found things in there that I interpreted more as covering. The friend he claimed was a good friend in high school, that person was never presented as a defense witness. If that person had come forward and said, ‘Hey, we’ve been good friends, and he knows I’m gay and he doesn’t have a problem with it,’ that might have swayed me in the other direction.”

That sounds like Ravi was found guilty because he couldn't disprove a motivation that was inferred based on Clementi's subjective perception. And yet the defense was deprived of much of the evidence of Clementi's subjective state of mind. Emily Bazelon writes:

The suicide note he left behind, along with three Word documents with telltale names—“Gah.docx,” “sorry.docx,” and “Why is everything so painful.docx”—weren’t turned over to the defense or made public. (According to the judge, they weren’t directly relevant to the case against Ravi.)

Not directly relevant? But indirection, coming from Clementi, is what convicted Ravi.

In an earlier article, before the conviction, Bazelon wrote:

If I was on that jury..., I’d want to know what he has to say for himself all these months later. How should we think about the spying from his point of view? Ravi has said he was concerned about M.B.’s scruffy appearance because he’d left his iPad in his room. Maybe, but it’s pretty unconvincing that’s the entire explanation. He was clearly both freaked out and titillated by the idea that gay sex was going on in his bedroom. And if that’s an understandable reaction from an 18-year-old, I’d like to hear Ravi parse out why in his own words.

That sounds like a presumption of guilt, based on a failure of the defendant to testify. Do the liberal values about the rights of the accused evaporate when there's an opportunity to take a stand against homophobia?

Bazelon doesn't mention it, but the "scruffy" M.B. was a 32-year-old man. I could see being freaked out that a scruffy, much older man kept coming to your dorm room to have sex with your roommate, whether the sex was gay or straight. It wasn't just gay sex in the abstract, but a particular sexual situation, involving a specific person who really did not belong in Ravi's private space.

And what did that that specific person, M.B., have to do with the suicide, the suicide that inflamed the jury with pity? Shouldn't the jury have read the suicide note and “Gah.docx,” “sorry.docx,” and “Why is everything so painful.docx”? But the judge excluded that evidence.

Appeal.

Obama's position on the Guantanamo detainees will forever be to have no position.

Obviously, the man is trying to get reelected, but it's so absurd to pose as if standing on principle, when you're not willing to say or do anything at all. Here's the news story about Obama — from his vacation outpost in Hawaii — signing a military spending bill and saying "I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists.”

The White House had said that the legislation could lead to an improper military role in overseeing detention and court proceedings and could infringe on the president’s authority in dealing with terrorism suspects. But it said that Mr. Obama could interpret the statute in a way that would preserve his authority.

The president, for example, said that he would never authorize the indefinite military detention of American citizens, because “doing so would break with our most important traditions and values as a nation.” 

But isn't that what he's been doing with his authority — holding the detainees indefinitely? Or is he somehow not authorizing it. It's just happening, because he's not affirmatively acting to end the indefinite detention. Is passivity and wishy-washiness consistent with "our most important traditions and values as a nation"? Or is emitting pompous blather like "our most important traditions and values as a nation" the really important tradition he's upholding?

He also said he would reject a “rigid across-the-board requirement” that suspects be tried in military courts rather than civilian courts.

So, you don't seem to have a plan to try the detainees, and you won't reject the notion of military courts or embrace the lofty but impractical idea of civilian courts. You just reject a "rigid across-the-board requirement" of military courts. It's fine to want to preserve the presidential discretion here, but it's another example of Obama's policy of no policy. He does not want to be pinned down about having to do anything at all, which makes it look like he's going to hold the detainees without trial indefinitely — i.e., until the end of his presidency — and he wants to be able to do that without admitting that it's an actual policy of his. Because it's not. It "would break with our most important traditions and values as a nation." So he can't be doing that. But he is, but he's not authorizing doing that. So he won't defend it. In fact, he wants to be in a position to rail against the very policy that he is... not authorizing... just following.

You mean "leading from behind," as they say?

No, no, that would be too bold. Leading from behind! Oh, no, not me. I'm just biding my time, out here on my island, waiting for my limited term to expire, while you folks over there on your island bide your time, indefinitely....

ADDED: Let's go back to January 27, 2009, one week into the Obama presidency. I'm talking with Slate's Emily Bazelon, and she's certain Obama is about to close Guantanamo, and I feel that I can detect in his statements that he's giving a sop to people like her and he's not going to do anything:



Now, it's 3 years later. Obama's first and probably only presidential term is rolling to a close, and he hasn't done anything with the detainees. (And if you're about to slam me in the comments, once again, for voting for Obama, let me say: Imagine if John McCain had become President and Guantanamo were still open, how thoroughly steamed Emily and her ilk would be now.)

"On Justice Samuel Alito: Conservatives Can Have Empathy Too!"

The Wall Street Journal law blog acknowledges this Emily Bazelon piece.

This reminds me of what I wrote (in a NYT op-ed) when Bush first nominated Alito. Describing 2 cases in which he "displayed a sensitivity to the needs of adherents of minority religions" that was missing from the Supreme Court decision that, as a lower court judge, he had to apply, I went on to say:

Yes, chances are that a Justice Alito will please conservatives more often than liberals.... Still, [liberals] should give serious study to his record; they may discover that there are varieties of judicial conservatives, just as there are varieties of political conservatives, and that Samuel Alito is not Antonin Scalia.

Speaking of conservatives and empathy, Rush Limbaugh monologued about that last week:

By itself, what does sitting around caring about something accomplish? Now, if it motivates you to do something that's an entirely different thing. I find that most people, particularly people on the left, want plaudits, they want gold stars, they think of themselves as superior people just because they care....

I don't worry about things that I have no control over. I used to, big time. I can't tell you the shackles I had on myself worrying about all kinds of stuff. I was worrying about what might happen next year if I did this or did that. There was nothing more paralyzing in my life than to worry about stuff I had no control over. And in the process, I actually limited what I could control.