Monday, September 24, 2007

Dinosaurs and Thunder

My FindLaw column today is about the "butterfly effect" of Supreme Court decisions. You know, a butterfly beats its wings, affecting the wind ever so slightly, and because of the chaotic nature of weather, this changes the course of history. In the course of introducing the phenomenon I refer to a time travel story called "A Gun For Dinosaur." A couple of astute readers (proving themselves even nerdier than I!) noted that a better reference would have been the Ray Bradbury story "A Sound of Thunder." I agree and in fact I read "A Sound of Thunder" as a boy. I referred to "A Gun for Dinosaur," which is also a time travel story and works for the point I was making in the essay though admittedly not as well, because I took part in a symposium a few years ago that used "A Gun for Dinosaur" as the jumping-off point. Thus it was the story title that came to mind. Apologies to Bradbury and his fans.


Sally said...

I have a comment on the article itself.

Why do you assume that a potential Democratic nominee is truly going to want the court to rule against the current administration the "Boumediene" case? Doesn't this case go, at least in part, to the issue of executive power? And that either party's nominee would want to preserve that power to the fullest extent, especially in this situation.

I know that the Democratic nominee may have more of a need to play to a certain base on this issue but among the mainstream Democratic candidates right now I don't see them putting Gitmo on the top of their priority lists, at least when they can avoid it.

And as to the Parker case, why do you assume that a ruling in favor of D.C. would be "broadly popular"?

Moreover, you seem to think that the Democratic nominee would be in favor of such a ruling but as has been shown by their campaigns the last couple of cycles, Democrats have pretty much given up gun control as a winning issue and have attempted to allay fears about their intentions in this regard (hence the pictures of John Kerry out duck hunting).

I think it's likely that both Democratic and Republican nominees would come out against the ruling or at least dance away from it as much as possible.

Michael C. Dorf said...

Good questions. As I tried to suggest in the column, a Democratic NOMINEE, playing to the center, would try to downplay whatever civil libertarian streak (or impulse to pander) that led him or her to criticize the detention policies in the primary. With respect to guns, I agree that Democratic Presidential candidates have largely run away from gun control on the campaign trail. (Not just Dems. See the pretty weak efforts by Romney and Giuliani to reinvent themselves on this issue.) But I think that this has more to do with the fact that swing voters in swing states--read Ohio, Michigan, Pennsylvania, and Florida--are seen as more pro-gun and more single-issue oriented than the general public. My very quick literature survey confirms that a majority of Americans support some form of gun control, although the issue is less salient now than it was 10-15 years ago, due, I strongly suspect, to the dramatic drop in violent crime (until the last couple of years) and to the emergence of other fears (especially terrorism).

As to Sally's first point, I agree that Democratic as well as Republican Presidents would like to maximize their power, but the issue in Boumediene is one of Congressional power. It's a constitutional challenge to the Military Commissions Act, not a challenge to any allegedly unilateral action by President Bush.

Sally said...

Thanks for answering my questions. I know that the Act allowing for the suspension of habeus corpus was obviously passed by Congress (presumably on some kind of bipartisan vote, I'd have to look it up) but wouldn't the power it grants be exercised by the executive branch? That it's an arrow in the executive branch's quiver for fighting terrorism and that whichever party's nominee wins the election, that fight's not going away so either side would want that power.

I think Hillary Clinton, for example, has tried very hard to make herself appealing on this issue, fighting the GWOT.

On another note, I think there are conservatives who are as concerned about government overreach on civil liberties as are liberals (for different reasons maybe). The problem for conservatives is that national security and defense are supposed to be winning issues for the Republican party --which they support generally-- and they've had to stifle their concerns here.

It cuts the other way for the Democrats. They need to seem tougher on these issues but have the drag of the far left base who are radically opposed to many of the Bush administration's policies in this area.

This is probably off topic but it would be really great if there could be debate on these issues that didn't get tangled up in partisan politics.

fsilber said...

About your FindLaw article on the butterfly effect, I question your assertion that Nixon's "Southern Strategy" used racism to break apart the New Deal coalition. On the contrary, it was George Wallace who broke up that coalition in 1968. What allowed Nixon to pick up the pieces -- without pandering to racism -- was the continued leftward trend of the Democratic Party (as seen by its nomination of George McGovern in 1972).

In short, southern conservatives swallowed the Republican Party's absence of racism simply because they had nowhere else to go.

egarber said...

About your FindLaw article on the butterfly effect, I question your assertion that Nixon's "Southern Strategy" used racism to break apart the New Deal coalition.

I don't think there can be much doubt that the appeal to racism was behind the Southern Strategy,

Back in 1970, Nixon strategist Kevin Phillips said this in an interview:

"From now on, the Republicans are never going to get more than 10 to 20 percent of the Negro vote and they don't need any more than that... but Republicans would be shortsighted if they weakened enforcement of the Voting Rights Act. The more Negroes who register as Democrats in the South, the sooner the Negrophobe whites will quit the Democrats and become Republicans. That's where the votes are. Without that prodding from the blacks, the whites will backslide into their old comfortable arrangement with the local Democrats."

It might not have started with Nixon's strategy, but he clearly gave it a shot in the arm.

It also explains why black voters are often turned off by advocacy of "states' rights". "States' rights" was code in those days -- it stood for hampering federal efforts to protect minority rights.

That's a shame of course, because there is a wholly legitimate states' rights category of legal thought.

AMD said...

I know I am really not touching the heart of your comment, but can somebody please explain to me why we are still talking about how the Supreme Court gave the election to George Bush?

First, it was a travesty that the Florida Supreme Court took the case in the first place. The democrats proved nothing in the lower courts. Remember their argument that chads would be stuck in the areas where there are a lot of votes in between elections and then the witness carried the voting machine out of the courtroom under his arm which moved all the chads to the other side of machine. They had nothing to base their recount claims on and the Supreme Court took it up because it was close without a basis. The democrats wanted to cherry pick the districts that they already won in an effort to farm more votes. Simple logic states that if you count more questionable votes in districts you won, you will get more votes. A strict reading of the Florida election law would have stated that Gore could only ask for the whole state to be counted as he was the "loser" of the state. He was the "winner" of the districts where he wanted recounts. Therefore, he would not have the right to ask for recounts if you followed his logic that he could get recounts based on a close vote.

Also, it always goes unsaid that Bush lost thousands of votes in the Florida panhandle when the Voter News Service manipulated the calling of election results and gave Florida to Gore despite the fact that they projected him to win by the slimmest of margins while they refused to call states that Bush won by 8 percent and more. Every study that I know of, including some that have a far left leaning indicate that Bush lost atleast 8,000 votes due to the early call of the election.

I would appreciate your thoughts even though I understand that you were not implying that the court rightly or wrongly gave the election to Bush.

Thank you.

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