Wednesday, December 21, 2011

The New Favre

I'm still holding on to shred of hope for another Brett Favre comeback. In fact, as long as he never throws another pass for the Falcons, I'm all in favor of Brett Favre continuing to retire and un-retire every year until he's dead. Is that an unpopular opinion? I'm guessing so, but I don't care. I like watching him play football, and, more importantly, when he's in the public spotlight there is a veritable planetary system of silliness and hyperbole in constant orbit around him, and I find every bit of it delightful. It's the same reason I like cable news and living in Florida.

But it's been a full year since the last time Favre took the Favre as a professional Favre,[1] and the chances of another un-retirement (which would be number five, by my count) grow slimmer each day. Someone needed to fill the void, and holy crap, did someone ever do just that, and then some.

To declare so early in his career that Tim Tebow is the new Favre would be an overreaction of Favrian proportions, so I think we should go ahead and do it. The variety and sheer mass of the nonsense drawn in by Tebow's gravitational field is greater than Favre can even dream of (and clearly Favre does dream of such things). There's the small mountain of "what if Tebow were Muslim?" commentary.[2] The actually-kind-of-plausible theory that the Broncos made Tebow their starter as part of a Major League-esque scheme to lose on purpose. This. And on and on. But my personal favorite so far is an article by's Katie Kieffer, titled "Tebow Sacks Socialism":
Tebow has All-American character. He espouses capitalistic values that are foundational to America: Competitiveness, ownership, responsibility, hard work, optimism, faith and persistence.
That's right. Tebow is a symbol of the virtues of capitalism. This is a person who, as far as I know, has never publicly weighed in on free market economics, or virtually any other political issue for that matter.[3] So, what does Tebow have to do with capitalism?
In a capitalist society, leaders—whether they are the President of the United States, the CEO of a corporation or the quarterback for a football team—take responsibility. They don’t blame Congress, their shareholders or their fans. They focus on improving themselves and working harder to compete for a winning result.

Unlike Tebow, President Obama refuses to accept responsibility for the economic destruction he has unleashed via socialist policies like ObamaCare, bailouts, net neutrality regulations and by blocking oil production.
Probably this is just poor wording, but I did wonder for a second if there was a press conference where Tebow took responsibility for the recession and somehow I missed it. It wouldn't really surprise me if he did, simply out of politeness.

Anyway, more from Kieffer:
Football is competitive. There are winners and losers. Talent and hard work win; incompetence and laziness lose. Football rewards innovative risk-takers and analytical thinkers, not sentimental whiners. By instilling capitalistic principles, football builds leaders. In contrast, by discouraging competition, socialist principles encourage people to do the bare minimum, shirk responsibility and reject leadership.

Tebow lives his life in a way that embraces capitalistic principles and he is a leader because of his strong character.
Am I reading this wrong, or is she calling Blaine Gabbert a communist? Regardless, it's fantastically twisted logic. If the point is that successful athletes personify the basic principles of capitalism, then the quarterbacks we should be exalting include Tom Brady, Aaron Rodgers, and, ahem, Ben Roethlisberger. If the point is that "innovative risk-takers" are rewarded, then that ignores a fundamental tenet of capitalism, which is that sometimes they aren't (and nevermind that much of Tebow's NFL success can be attributed to being risk-averse).

Moreover, and I realize I'm well past the point of taking this too seriously, but football really isn't capitalistic, for the simple reason that in football there will always be an equal number of winners and losers.[4] There can be no growth—average win totals are stagnant from year to year (at least, until the league goes to an 18-game schedule). Thus, playing to win is strategically identical to playing to cause your opponent to lose. In capitalism those two things are often different, and, at least in theory, you're always better off playing to win. If your competitors manage to win too, good for them.

But I'm not here to pick apart ill-conceived analogies. Well, I am, but also to say that I'm very much enjoying this, and I'm excited to see where it goes. What conservative talking point will Tebow's unconventional brand of marginally-above-average quarterbacking be shoehorned into next? Will his fearless running style be used to justify military intervention somewhere overseas? When a replay official overturns a Tebow touchdown, will Newt Gingrich cite it as further evidence of the threat judicial review poses to American values? And how long until he becomes a pawn in the ongoing War on the War on Christmas? The sky's the limit.

1. That was an homage to (or perhaps a ripoff of) this outstanding Deadspin headline: Tim Tebow Tebows 59-Yard Tebow To Force Tebowtime.
2. Answer: The amount of inexplicable animosity he generates by being openly Christian (and the counter-animosity his fans have for his detractors, and the counter-counter-animosity his detractors have for his fans) would look quaint by comparison.
3. Oh yeah, the abortion thing, when Tebow revealed that (a) he wasn't aborted, and (b) he's happy about that. These are both things that were already self-evident, but I guess when you say them out loud you're going to turn some heads.
4. Not to mention the flagrantly Marxist nature of the draft.

Monday, December 5, 2011

Newt Gingrich's Crusade Against the Courts

As I've pointed out before, politicians love issues that allow them to exploit fears and emotions without alienating large blocs of voters. Few such issues have given conservatives as much mileage in recent years as immigration, and Newt Gingrich should be commended for breaking from the ranks. Not only has he articulated a humane, reasonable immigration policy, he has also rejected one of the most reliable tools in the conservative arsenal for scoring cheap political points. So he uses the courts instead.

Gingrich describes his attitude toward the courts in section nine of his 21st Century Contract with America, which begins with the intriguing proposition that the Constitution serves as both the framework for the federal government and a set of power rankings:
The Judicial Branch did not come until Article III because the Founders wanted it to be the weakest of the three branches.
Thus, the Legislative and Executive branches get to square off for the championship, while the Judiciary will take on the Ratification Clause in the Fiesta Bowl.

Anyway, back to Newt:
The Federalist Papers explicitly recognized that the Judicial Branch would be weaker than the Legislative and Executive Branches. In Federalist 78, Alexander Hamilton wrote reassuringly that the Judicial Branch would lose any confrontation with the two elected branches:

“the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two.”

The Founding Fathers felt strongly about limiting the power of judges because they had dealt with tyrannical and dictatorial British judges.
A good rule of thumb: Never take a 25-word excerpt from a 223-year-old essay at face value. Short and to the point? Just one semicolon? No pointlessly elaborate double- or triple-negations? That's not the Alexander Hamilton I know. Here's the whole sentence (and here's a link to the full text):
It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.
Something tells me Newt didn't omit that last clause for the sake of brevity. It seems Hamilton's point wasn't that the judiciary should be weak, but that because it neither writes laws nor commands armies it is inherently weak, and therefore additional protections must be in place to ensure its equality with the other branches.

Newt's insistence that the judiciary was intended to be the weakest branch is, at best, dubious, but even more dubious is his insistence that the judiciary is now the strongest:
Since the New Deal of the 1930s, however, the power of the American judiciary has increased exponentially at the expense of elected representatives of the people in the other two branches. The judiciary began to act on the premise of “judicial supremacy,” where courts not only review laws, but also actively seek to modify and create new law from the bench. The result is that courts have become more politicized, intervening in areas of American life never before imaginable.
Really? The power of the judiciary has increased at the expense of the other two branches? We are talking about the same legislative branch that now uses the Commerce Clause to do any damn thing it wants, right? And the same executive branch that has decided it can unilaterally go to war? If anything, the courts have struggled to keep up.

But that's not how Newt sees it, obviously, and his campaign recently released an issue paper detailing his fears. From the introduction:
If the Supreme Court ruled that 2+2=5, would the executive and legislative branches have to agree? Would we have to pass a Constitutional amendment to overrule the Court and reassert that 2+2=4?
Yes, we would. And while we're at it, we should also pass an amendment prohibiting toddlers from serving on the Supreme Court.[1]

Still, Newt's right that it can be scary to think about how much power is held by just nine people. And they aren't even elected, so those seats can be held by anyone! Well, anyone who can secure the nomination of the President, who is elected by a college of 538 citizens, who are in turn elected by the voters of each state, and who can then secure the approval of the Senate Judiciary Committee and at least 51 members (60 if the filibuster's in play) of the full Senate, each of whom are elected by the voters of their states.

Honestly, the more I think about it, the scariest thing about the Supreme Court isn't that the Justices are unelected; it's that they're chosen by the people who are.[2]

But that's a discussion for another time. Much of the issue paper (which, at 54 pages, could really use a table of contents) is devoted to making the case that on issues like national security and marriage (and probably others—seriously Newt, table of contents next time) the courts have abrogated their duty to uphold the Constitution. These are, of course, among the most controversial issues of our time. Legal scholars have written thousands of pages in support of a variety of approaches to the constitutional questions they present. So when Newt says "[w]ere the federal courts to recognize such a right [to same sex marriage], it would be completely without constitutional basis," he's stating an opinion, not a universally-accepted truth. 2+2=4 is an accepted truth. That the Fourteenth Amendment's guarantee of equal protection doesn't extend to discrimination based on sexual orientation is not.

And that's what this all comes down to. The problem he's describing—judges usurping the other branches, creating their own laws, ignoring the Constitution, etc.—is very serious. It just isn't real.[3] Clearly, Newt doesn't like some of the interpretations courts have applied to the Constitution, and in many cases neither do I, but I remain unconvinced that there's an epidemic of judicial roguery going on. There is, perhaps, an epidemic of judges interpreting the Constitution in ways Newt Gingrich disagrees with, but the solution to that is not to launch a crusade against the judiciary. The solutions are to (a) become President and appoint judges you like, and (b) calm the hell down, because there will always be people in positions of power who disagree about things.

But then he'd have to find something else to get people riled up about.

1. Of course, the Court doesn't have jurisdiction over disputes of simple arithmetic, but you wouldn't expect a toddler to know that.
2. Interesting that the officials who play a role in the judicial nominating process—the President and the members of the Senate—originally weren't elected by the people. Senators, of course, were chosen by state legislatures until 1913. The President is elected via the intermediary of the Electoral College, and a state's Electoral College delegation was, and still is, selected by a method of each state's choosing. Until around the 1820s a lot of states let their legislatures make that decision as well.
3. Well, some of it is real, but the severity is vastly overstated. Aside from the preposterous 2+2 hypothetical, the most absurd judicial overreach I've seen Newt talk about is that story out of San Antonio, where Judge Fred Biery ruled that a high school valedictorian couldn't include a prayer in her speech and that the school couldn't use terms with religious connotations like "amen" or "benediction". The ruling was overturned by a higher court two days later.
    So now Newt wants that judge impeached, which is fine, I guess—I suspect there's more to the story that we aren't hearing, but I don't care enough to find out—but how is that a major issue? (Answer: It's not. But the more Newt talks about it, the stronger the implication that this is a widespread problem, rather than a few isolated events.)