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Monday, October 31, 2005

not a mind-blowing prediction

The Nuclear option will not be used. This is what the Senate has whips for: if the Dems filibuster when the Republicans have the votes to drop the "constitutional" bomb, the cloture vote will surely succeed. And if push comes to shove and the Republicans can't pull it off, the option will be tabled. Using or inviting the Nuclear option when you don't have the votes is a dominated strategy for either side.

The only case where the option will ever see daylight is if one side has a political incentive to lose. E.g., if the Democrats really want to paint the Republicans as strong-arming thugs, they might sacrifice the tactic for the P.R. advantage. Or, more cynically, if it ever looks like a Democrat is about to be elected President, they may sacrifice the P.R. for the tactical advantage.

For now, however, Alito is too temperate, and elections are too distant. For anything but conventional warfare, we'll have to wait for JRB's nom in '08.

a "duh" semi-bluff

Was Miers a stalking horse for the "real" candidate -- a way to soften up the situation for the nomination of a highly credentialed conservative? Most commentators quite reasonably have rejected this possibility, largely on the grounds that the stakes are too high and that Bush is probably not that sophisticated. Anyone who said "hey, let's nominate someone we don't want on the court in hopes that they will be rejected" would probably be laughed out of the room.

Far more sensible, however, is the idea that this was a classic "semi-bluff" -- i.e., that Bush nominated Miers with the hope that the Senate would "fold" and she would be confirmed easily, but knowing that if they "called," and she were rejected, he would have a strong "draw" in a big pot to back it up. Thus the "expected value" of her selection could be much higher than that of far superior nominees.*

This, too, may seem overly game-theoretical for the "simple-minded" Bush, but I don't think you need to be a genius to be influenced by the efficacy of this strategy. The back-room reasoning goes something like this: "Mr. President, we can hopefully avoid a costly confrontation and get a pretty good Justice on the Court by nominating Miers, but if she gets rejected for any reason other than for being too conservative (which is highly unlikely considering she has no paper trail), we will be able to fight The Big One on more favorable terms."

Saavy, yes, but hardly a masterstroke. This is a classic scenario where an elementary understanding of gambling makes "sophisticated" tactics seem practically obvious.

* Note for poker geeks: I am aware of the superficial imperfections of this analogy, but the situation is suprisingly parallel when formalized properly. I'll spare the general audience, but email me if you are interested.

Thursday, October 13, 2005

David Brooks is My Bitch

Clearly he has been reading this blog:

"The conservative movement was founded upon the supposition that ideas have consequences. Conservatives have founded so many think tanks, magazines and organizations, like the Federalist Society, because they believe that you have to win arguments to win political power. They dream of Supreme Court justices capable of writing brilliant opinions that will reshape the battle of ideas."
- N.Y. Times, October 13

I would link, but of course the N.Y. Times is too hoity-toity to let the masses read their op-eds for free.

Trendline?

From Tradesports. This is probably a bit misleading, since 2/3 of the drop came on the first day of trading, but geez:



Update: A number of blogs have been linking to this post. Ok, most of them have been linking to Professor Bainbridge, who has been linking to this post. No matter how you got here, I want to clarify that the "?" in "Trendline?" is meant to connote that trendlines are largely bullshit.

Wednesday, October 12, 2005

Order of Magnitude

Laura Ingraham made a strong argument on Hannity and Colmes tonight: that there is more at stake than just whether Miers is "reliably conservative." Specifically, there are future generations of law students to worry about.

I completely agree. Supreme Court Justices are not just for life, they are for ever. While Harriet Miers may sit on the court for 15-20 years, her opinions could be read for 150-200 years. If we want conservative jurisprudence to win the battle against liberal juristyrrany, it will take more than just giving Scalia another vote. Even the 'holy grail' -- a conservative majority on the Court -- will be for naught if the justices can't back it up with persuasive arguments and opinions. This is not just a war of outcomes, it is a war of ideas. The legal conservative canon will suffer if Miers is confirmed.

Monday, October 03, 2005

Pop Quiz, Asshole

Who said the following:

"At the end of the day, other than conscience, it is only analytical
rigor, and the accountability that such renders possible, that can
restrain a judiciary that serves for life and is at the pleasure of no
one."

Was it -
A) Harriet Miers, or
B) Some schlump that got passed over for Harriet Miers?

No googling!

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