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Bloggingheads
04-09-2008, 08:02 PM

jh in sd
04-09-2008, 08:14 PM
re: Charleton Heston

Acting is in the family. Charleton Heston's sister, Lila Heston, who taught Interp at Northwestern, was also an excellent actress.

ohcomeon
04-09-2008, 09:04 PM
One look at the list of topics and I know this will lead to dangerously high blood pressure. And the boycott continues.

graz
04-09-2008, 09:12 PM
Jeralyn was an interesting case study of a devoted Clinton supporter who will accept the possibility and freely pull the lever for Obama.
Ann provided a much deeper analysis of the depth of the sexism that the video
purports. Her subtexts and suppositions were not taken up by Jeralyn, so they were talking but not debating.
Interestingly, Ann did concede that although all is fair in politics, sexism is easier to ply than racism. This seems about right. But I don't think agreement with that principle provides much solace for the trailing Clinton camp.

dankingbooks
04-09-2008, 09:25 PM
I guess I don't see how rape is primarily about violence, and not about sex. Of course it's about sex! How can it be otherwise. Indeed, evolutionary psychologists caused a kerfuffle by simply stating the obvious - rape is about sex. This, among many other things, is an example where feminists simply ignore reality.

www.dankingbooks.com

Jay J
04-09-2008, 10:02 PM
Umm,

It seems like the pendulum is swinging the other way a little too much.

While I don't necessarily agree with the "rape is not about sex, it's about violence" doctrine, I don't think it's ONLY about sex either.

I mean of course it's about power and domination and violence AND sex. I don't see why we have to choose which one it's about and which one it's not about.

I also think there's a way to sharpen up the disagreement between Althouse and Merritt. Merritt seemed to think that having your kneecaps broken and walking with a limp the rest of your life, or being blinded, could be worse than getting raped.

But it seemed like Althouse's question has more to do with the experience of being invaded. Would a person rather have the experience of being raped, or the experience of having you kneecaps broken? The point is, you have to come up with something very very very painful before you would prefer it to being raped. Rape has an extra element to it that non-sexual violence has.

As far as living with consequences, a woman can get VD or get pregnant from being raped. I suppose Merritt can say that being blind or walking with a limp forever is preferable, but this would not necessarily be a universal reaction. The experience of being raped is like a double invasion, while getting beat-up wouldn't carry the extra violation. I don't see how anyone could deny this in the abstract. All other things equal, being raped seems worse than getting beat up. If we're going to talk about being blinded or crippled, then we should compare apples to apples and talk about getting AIDS or HPV (which can lead to cervical cancer) from the rape.

graz
04-09-2008, 10:09 PM
Umm,

I mean of course it's about power and domination and violence AND sex. I don't see why we have to choose which one it's about and which one it's not about.


You are so right. We don't have to make that distinction. Ann and Jeralyn did us a disservice by not debating or mixing it up. They talked past each other, without offering much insight.

Globalcop
04-09-2008, 10:55 PM
Comparing victimizations gets into difficult territory. Can we just all agree that each and every violation of an innocent person is important enough to place crime at the top of our public policy agenda? Above socialized medicine; above teacher's unions; above protectionism.

Being raped, blinded, crippled or killed - it is something that is happening everyday, right now as we read this forum. I think we can also agree that most of the crime that we read about is committed by repeat offenders.

Why, I ask, then, are we letting these people out of prison?

How many of the readers of this forum need to be told more than once that if you rape or beat someone you'll spend an extended amout of time in prison to dissuade them from such crimes? What makes us so different than any others?

Beginning 1/1/2009 all Class A violent felonies will result in life in prison. Spread the word - be forewarned. No excuses now.

We debate about water-boarding, but let murderers and rapists plea-bargin and walk out in 4 years. Something is very wrong and I blame liberals.

rcocean
04-09-2008, 10:56 PM
Great diavlog! Interesting, informative, entertaining.
Good back and forth. Normally, I just listen but this was good TV - both were very animated on camera.

And Althouse refused to attack Rush Limbaugh. A first in the history of BHTV.

Cheaplazymom
04-09-2008, 11:09 PM
I think the reason that people want to separate sex from rape is that there is this notion that sex is great therefore everybody wants it therefore we don't need to believe women who say they don't want it and it shifts the responsibility somehow (always) to the victim. Whereas, we would never presume that a woman wants to be beaten, stabbed, choked, etc. Forced sex is violent. Rape is an act of brutality and humiliation. It is closer to a beating than it is to making love. Calling rape sex is like calling poison food.

Glaurunge
04-09-2008, 11:36 PM
Whether one agrees with Chris Matthews that Hillary Clinton is a leading presidential contender because of Bill's infidelity, it's undeniable that she owes her current position to her old status as First Lady. George W. likewise wouldn't be President without his family connections, but why is it controversial to say the same about Hillary?

That's not sexism. That's just a factual question. Are we to believe that one day an unknown lawyer from Arkansas moves to New York and six months later gets her very first job in politics as a United States Senator? Moreover, how does she become a Presidential candidate just six years later? Senators such as McCain, Kerry and Dole had to put in 20 years of service before becomming serious contenders.

As to McCain, there simply is no equivalence between his age and Obama's race and Clinton's gender. Age is fundamentally different because everyone, in theory, has the potential to become just as old as anyone else. The same isn't true for race and gender.

Jay J
04-10-2008, 12:39 AM
Far be it from me to defend liberals, but the Drug War, although unfortunately carried out by Democrats and Republicans alike, is largely a right-of-center venture. Leftists must pay lip-service to this ill-conceived venture in order to remain politically viable, so they don't get off the hook completely.

But if this country were 75-25 lefty rather than 50-50, the Drug War wouldn't have gotten ramped up the way it did.

Why am I bringing this up?

Because the Drug War is largely at fault for getting our priorities out of wack, to the point where we have stiff mandatory minimums for drug dealers and way-too-lenient penalties for violent offenders. We don't have the resources for the Drug War and to properly punish violent offenders.

I agree that we're WAY too lenient on violence, but I don't think its only a left-wing cause.

Jay J
04-10-2008, 12:53 AM
There's some ambiguity that can be cleared up I think.

It seems like you've given a good explanation for why people are concerned about calling rape sex. But it seems to me that saying that rape is at least somewhat about sex is not the same thing as saying that rape IS sex, as if there's no distinction between rape and consensual sex.

In other words, to say that rape is about sex, is not necessarily to deny that it's also about violence, domination, control, and the like. And saying rape is about sex is not the same as saying that the victim wanted it.

There is ambiguity in either view, when expressed only in one sentence. If I were to present an argument, I wouldn't be satisfied by saying "rape is about sex" and leaving it at that, since there are some ways to read that which would leave an impression I'm not trying to leave. The problem for me is, the statement, "rape is not about sex" seems to miss the mark even more widely. When we say, "rape is about sex" this at least includes some of the motive that at least the attacker might have, but when we say "rape is not about sex" this seems to needlessly deny the drives that are at play, once again, on the part of the attacker.

There doesn't seem to be any dichotomy between an attacker being driven by multiple drives or by drives which could be described in multiple ways.

This topic seems to me to be similar in form to the old argument about whether or not the Civil War was about slavery. The statement "The Civil War was about slavery" can leave an impression that the entire North was an angelic force fighting only to free the poor slaves, and that the entire South was fighting only so that they could keep enslaving human beings. So maybe more needs to be said. But the statement "The Civil War was not about slavery" misses the mark even more widely, since the economic forces and "states rights" arguments can be boiled down to arguments about slavery. So at the end of the day it seems that the incomplete statement "The Civil War was about slavery" although imperfect, is closer to the mark.

Sorry if this was a rant, I just think the form of the problem is the same.

And I think it's important to say, since we're not confined to one or two sentences, what it means to say that rape is at least partially related to sex, and I don't think it means that rape victims are somehow at fault or desirous of the rape.

scorbs
04-10-2008, 12:57 AM
Interesting parade of topics by two legal experts who counterpointed their viewpoints. The sexism issue was probably slid over, though I don't particularly want to listen to a heated exchange. Jeralyn thinks character attacks based on gender are offensive and off-point; Ann seemed to think it was fair game while acknowledging nothing comparable done on race with Obama. However, I don't see constant personal comments that's seen as okay with Clinton, done with other candidates. So I don't agree with Ann, who does represent a view I hear at times but to me coarse commentary and presentation is just that; it shouldn't be glamorized as post-feminist. It's called boorishness and I wonder about the maturity level of people who engage in it. The other topics were interesting; will have to pull up video again. Hour was worth it.

TwinSwords
04-10-2008, 02:07 AM
One look at the list of topics and I know this will lead to dangerously high blood pressure. And the boycott continues.

It was actually a great diavlog. I used to have strong feelings about Ann, mainly around the time of her shameless attacks on Jessica Valenti and, later, Garance Franke-Ruta, but apart from those episodes, she's an interesting blogger with an interesting site. And she's a great photographer. I disagree with about 97.5% of what she says, but I can take her more than any other right-wing conservative.

I also love Jeralyn, and her blog. I'm glad these two were able to disagree so amiably.

fedorovingtonboop
04-10-2008, 02:17 AM
Ann A. :
First off, you are being totally hypocritical saying others should relax when you're the one who FREAKED out over some innocuous comment made by Garance about the "boob picture." THAT was a joke. What was wrong with you that day, anyway? On the rag?;);) (<--Don't get mad, that's "progress" by your standards.)
I appreciate some of what you said about everyone fawning over Obama and how "none of it's really right but it's helping him more than her" but the reason why they're fawning is because he's black and not female. I think you're totally underestimating how insanely sexist our society is, which is surprising because you're a woman. I think you need to bug a hockey or football locker room sometime to hear how much guys actually respect women when they're not around because I got news for ya: it's not very much.
From your blog response about the video:
"Males are savaged too. It means they're taken seriously." Horrible logic.
Males are in the driver's seat, women are not. It's the same reason why it more serious to say "******" than it is to say "cracker" or "honkey." You think Hillary's damaged the feminist movement? How's she doin' now?? Maybe if you'd support her, that "damage" (I have no idea what it is) could be undone.
I can't believe, as a woman, you're trying to play it cool when a fellow woman is being discriminated against. Our society, especially males and old people, are clearly not ready to accept a woman as a leader and only recently have there been a flurry of articles, polls and studies about this. If Obama were losing because of equivalent reasons there would be a shit storm. I haven't seen many of your diavlogs but it seems you're always trying to hedge your bets by trying to be a "moderate" and for that you receive zero credit in my book. Try sticking your neck out on this subject. Nobody cares if Hillary's past situation is what got her in the running. Whatever discrimination Obama is facing is obviously not affecting him at all and it's killing Hillary and that's the issue. Personally, I am absolutely disgusted at the lack of respect fellow males (and old people) have for female leadership and clearly, it's a serious issue if the "jokes" are reflections of voting patterns. What a pussy! Stick up for her. If people were saying stuff about Obama like: "I think he's a dick." or "Is he going to be using the White House pool?" and he were losing because of this, would it be a big deal? Yes it would. You need to read some of these and stop being such a bitch. (<-- It's okay, that's just a joke you can shrug off;) Just like Hillary should do, right?
not that funny when it's you, huh?

http://www.nytimes.com/2008/04/06/opinion/06kristof.html?scp=1&sq=our+racist+sexist+selves&st=nyt
“We can make categorization by race go away, but we could never make gender categorization go away,”

http://www.washingtonmonthly.com/archives/individual/2008_04/013495.php
"This means that 26% of the respondents were angered or upset by the notion of a woman serving as president."

the video:
http://www.salon.com/opinion/walsh/?last_story=/opinion/walsh/election_2008/2008/04/09/one_last_time/

classic troglodyte old person:
"My biggest reason is she put up with her husband" after his affair with intern Monica Lewinsky, says Republican Betty Muse, 77, a retired nutrition director in New London, N.C."
http://www.usatoday.com/news/politics/election2008/2007-11-07-clinton-poll_N.htm

even Elton John notices:
http://http://www.politico.com/blogs/bensmith/0408/Elton_John_To_hell_with_them.html


they have virtually the same voting record except for the war and "progressives" didn't have any problem rooting for Edwards.
it's okay to not like her but i'm just saying, on average, the reason for not liking her, too often, is not a pretty one: sexism. this undoubtedly has an effect on the election.

otto
04-10-2008, 03:26 AM
Althouse at her best, both made a show of enjoying the conversation.

David_PA
04-10-2008, 04:56 AM
Good job, Ann, and nice back-and-forth by both.

Would have liked to hear more from Jeralyn about why women over 50 like Hillary so much. It's obvious to her (I think), but not to me.

ohcomeon
04-10-2008, 08:35 AM
I didn't watch the video but still wanted to make this comment. Rape may be about sex to the rapist - but it is about violence and power to the victim. After one has been raped there is no feeling that one has had sex or "made love." There is only the feeling of a violent and brutal attack. Perhaps the rapist feels like lighting up a cig. I can't speak for him.

sharkdog
04-10-2008, 09:27 AM
Rape is a sexual act. Therfore it is about sex. Of course there are other elements to it; but to say that rape isn't about sex is like saying that eating isn't about survival. At an expensive resteraunt, my attention may be fixed on the way the food tastes, but my primary reason for eating is still survival.

johnmarzan
04-10-2008, 10:00 AM
more althouse please! i want her to be paired with another right wing pundit in the next BHTV.

PaulL
04-10-2008, 01:34 PM
The 1st amendment is trumped by a Democrat loyalty oath. (http://bloggingheads.tv/diavlogs/10057?in=00:28:06&out=00:29:15)
BTW, Jeralyn I do not remember anyone of the left comdeming KOS when he promoted crossing over to vote for Romney (http://www.dailykos.com/story/2008/1/10/2713/87225/55/434206).

Here is a accurate prediction of the whole matter: (http://hotair.com/archives/2008/03/20/republicans-to-be-prosecuted-in-ohio-for-crossing-over-to-affect-democratic-primary/)
Should we expect any bipartisan outrage over this like we saw when the Virginia GOP toyed with the idea of a loyalty oath for their own primary? Or are we playing by Obama rules here, where ordinary political sins are absolved if it benefits the left to do so?

uncle ebeneezer
04-10-2008, 01:56 PM
The problem with focussing on the sex aspect of rape is that it distracts from what really drives the perptrators of these terrible crimes. The vast majority of info I have ever read on the mentality of rapists has suggested that they really get off on the violence and domination aspect of the act. They may have relationships with girlfriends/wives that offer them consensual sex, but that just doesn't "do it" for them. They want to force a woman to have sex against her will. Ultimately it's about power and force. My instinct would be that sex is the avenue of expression for their desire not because of the obvious lure of sex, but more because sex is the most valued and well protected thing that a criminal can "take" from somebody. So forcing someone to give them sex is the ultimate expression of their power, short of killing.

I wholeheartedly agree that rapists should be locked up forever, but to study the behavior and try to figure out means to prevent it or treat it (it may not be treatable) the focus should be finding the real motivation of the rapist. Sex is certainly part of the thrill that a rapist seeks, but it seems secondary to power/force/humiliation etc.

deebee
04-10-2008, 03:45 PM
I agree with Jeralyn that the tearing up incident was spontaneous. How can someone who is often referred to as stiff and unnatural suddenly be able to pull off a manipulative acting performance that many found to be genuine? The answer might be that her response was actually sincere, but I guess that those who are inclined not to like or believe Hillary will interpret it in their own way.

Media commentators aside, Obama raised a few eyebrows himself in February when he opined, “You challenge the status quo and suddenly the claws come out” and “I understand that Senator Clinton, periodically when she’s feeling down, launches attacks as a way of trying to boost her appeal.” And of course the widely circulated "You're likeable enough Hillary". I wonder if Ann would find it amusing if someone referred to her in those terms. Pardon me for being overly sensitive, but those pithy comments really turned me off.

Interesting pairing between two intelligent women.

reader_iam
04-10-2008, 04:51 PM
More, please!!!

Globalcop
04-10-2008, 07:36 PM
Jay, I absolutely agree with your sentiments on the drug war. Release the non-violent druggies and make room for the real criminals.

It is worth noting that the vast majority of rape victims are men, when one includes those incarcerated in prisons and jails. I think those count.

harkin
04-11-2008, 12:10 PM
Jeralyn,

Rush did not attack you, he ridiculed you for being a defense attorney who demonstrated no concept of the first amendment, including your suggesting investigation of peoples' online comments to gather evidence for prosecution.

http://www.rushlimbaugh.com/home/daily/site_032508/content/01125111.guest.html

I take it you have no problem with the government wiretapping program.



Listening to Jeralyn and Abrams, two attorneys who should know better, discussing throwing people in jail for merely voting the way they want to, regardless of the reason, is delicious. After The Columbus Dispatch handed Abrams his head, he dropped his witch hunt like a hot potato and I'm surprised JM still is still clueless as to the emptiness of her reasoning.

Good luck Jeralyn with your online snooping, I know you'll be watching!

AemJeff
04-11-2008, 12:10 PM
I think the root of Ann Althouse's deep obnoxiousness can be traced directly to her feelings about Bill Clinton, and some projection onto his wife. I’m not sure, but since she self-identifies as, at least, a former Democrat, I would assume that she voted for Clinton in ’91 and probably again in ’95. Somewhere along the line she decided she’d been betrayed by Bill Clinton. I don’t have much of a problem with that in broad outline, except for the disproportionate way in which she projects her dislike onto people with the slimmest of connections (Jessica Valenti, Garance Francke-Ruta, e.g.) and erupts, spewing the some of the bile she’s apparently held in reserve for such occasions.

One of the ironies of the position taken by people like Althouse is that Bill Clinton probably did more to advance the cause of feminism than almost any other person – certainly, as a matter of policy he was aligned with that set of goals, and his presidency occurred at an opportune moment in history. And the reasons for her dislike seem mostly bogus. Bill Clinton had affairs and obviously cheated on his wife. He lacked the self-control to avoid temptations that were obviously flaunted in his face, e.g. Monica Lewinski. All the rest of the bullshit allegations remain just that: bullshit. Accusations of groping and rape became news at politically opportune times and remain unproven. I’m not surprised that the Clintons pushed back hard against people who were a threat in some way. I don’t particularly like the way they pushed back. If anybody thinks that doing so, or the way they did so, distinguishes them from other powerful politicians, past or present, they’re kidding themselves.

The ultimate irony is that Ann’s so-called feminist feelings allow her to feel justified in supporting silly right-wing memes attacking the first woman to legitimately find herself with a real chance of achieving the presidency. There are plenty of good reasons to prefer somebody over Hillary in this election. Althouse hasn’t elucidated a single one.

This might be the stupidest attack (http://bloggingheads.tv/diavlogs/10057?in=00:11:18&out=00:11:26) of all on Hillary – she defended her husband when he was being attacked!

bjkeefe
04-11-2008, 01:58 PM
AemJeff:

Interesting and plausible thoughts. I have to say, though, that there appears to be a lot more to AA's obnoxiousness than just overreaction to the Clenis. She presents, both on her blog and here on BH.tv, as a disturbingly self-centered and immature person. In particular, she seems to have a capacity for carrying grudges, perceiving slights, and personalizing random happenings that puts to shame even the most ornery of my Irish forebears.

I don't know why she so rubs me the wrong way, but she does. I could go on for pages itemizing the things about her personality that bug me, but I keep trying to swear off such behavior, so I'll end it here. Just wanted to say that I think there is more at work than that one cause.

AemJeff
04-11-2008, 02:53 PM
Listening to the first ten or so minutes of this diavlog, I was thinking "Althouse doesn't seem too far out of bounds, she can make some sense, sometimes." And she really can make some sense sometimes. She's not dumb and she isn't completely lacking in insight. She is often irritating but so are a lot of people, me included. Then the topic became Hillary, and immediately she jumped the shark. I don't like feeling the need to defend the Clintons. My overall impression of Bill during his administration was generally, "he's ok," but on some specific issues, particularly those involving privacy (http://en.wikipedia.org/wiki/Clipper_chip), I was adamantly opposed to his policies. My feelings softened quite a bit in the wake of the ridiculous attacks mounted against him by the VRWC (http://en.wikipedia.org/wiki/VRWC), but I've never felt particularly aligned with him. Nor is Hillary someone I have warm and fuzzy feelings about, but she is the one person on the planet who can plausibly claim to have been hurt by Bill's infidelities. The very first thing Althouse had to say here was the nasty jujitsu of taking an insult against her and trying to define it as a negative.

This has been somewhat rambling, but my overall point is that while Althouse might be somewhat irritating, regardless; it's this topic that raises her to world-class status.

bjkeefe
04-11-2008, 02:59 PM
AemJeff:

Your case has a lot of merit, especially if we only consider this one diavlog. I'd also say that I don't disagree with you that her obsession with the Clintons is one of the more notable aspects of her unhingedness.

However, there are other things that are just as whacked about her, and i claim that if you lobotomized out the Clinton portion of her brain, she'd still be a wingnut.

I don't say she's completely stupid, and never has anything thoughtful to say, but her signal-to-noise ration is among the lowest of any of the people who have ever appeared on BH.tv.

AemJeff
04-11-2008, 03:07 PM
I don't say she's completely stupid, and never has anything thoughtful to say, but her signal-to-noise ration is among the lowest of any of the people who have ever appeared on BH.tv.

Agreed. I hope the characterization "not completely stupid" didn't read as if I were trying to attribute that sentiment to you. I was looking for a way to frame my own reaction to her.

bjkeefe
04-11-2008, 05:16 PM
Agreed. I hope the characterization "not completely stupid" didn't read as if I were trying to attribute that sentiment to you.

Not to worry. I am entirely too stupid to recognize subtle insults even if intended.

basman
04-11-2008, 05:37 PM
I liked this diavlog. There was to me an interesting contrast in the mind workings of the trial lawyer--down to earth, practical, go straight at the issue, be direct, and of the law professor--supple, theoretical, more willing to contemplate complexities and see more sides of things, more subtle and nuanced, as seen for example in their disagreement on how to charactrize rape, and as seen in Merritt's dismissal of the Chait piece as too pointy headed for her with her nice word "esoteric", and the sly, gentle bit of faux self-deprecation in her comment. Plus she had the best argument to be put against the pointy-headedness--let the follks vote; it'll be fine, and the race will be better for it.

I liked the discussion about issue of presenting sentencing liability to the jury as relates to jury nullification. My heart and head are split on this one. My heart intuitively leans towards jury nullification on the sentiment of the jury as the conscience of the community. But then I think of a bigots in the deep south who used to get let off by the jury votes of that conscience. And my head specifically thinks that the jury is to determine guilt on the evidence and letting in sentencing information is a conflation that obstructs that pure task.

If the sentences are too harsh as written, there are other proper avenues to deal with them. The harsh sentences reflect the will of the people as expressed by their elected representatives and it is not for juries to nullify law.

As well the aiming at jury nullification as a matter of defence strategy risks badly distorting criminal trials with things like race cards and such.

bjkeefe
04-11-2008, 06:12 PM
basman:

And my head specifically thinks that the jury is to determine guilt on the evidence and letting in sentencing information is a conflation that obstructs that pure task.

That's a good way of putting it. I have to say, though, that I'm still strongly in favor of letting the jury know what's at stake. I agree that there are other mechanisms besides jury nullification to deal with excessive mandatory sentences, but there is no doubt that there are a lot of bad laws snuck onto the books by politicians in thrall to a special interest group that in no way represents the view of the majority. Given a case in which some nearly innocent person faces years in prison, I believe the jury should be able to say, in effect, "Guilty, but not that guilty." The choice shouldn't be binary in the first place, and information shouldn't be restricted to compound the problem.

As an example of "nearly innocent," I am thinking of people like this (http://www.nytimes.com/2007/12/04/us/04felony.html).

AemJeff
04-11-2008, 06:22 PM
And my head specifically thinks that the jury is to determine guilt on the evidence and letting in sentencing information is a conflation that obstructs that pure task.

I think I'll add my two cents here as well.

The way I understand the idea of jury is that it's a way to insert a judgment other than that of the state into a court proceeding. I think that the narrower interpretation you're giving it might have some currency, but I doubt that it's as fundamentally true.

I should add: I am not a lawyer.

bjkeefe
04-11-2008, 06:25 PM
I should add: I am not a lawyer.

Never mind the law. We're talking about justice here.

basman
04-11-2008, 08:05 PM
aemjeff and bjkeefe:

I am a Canadian lawyer (rather conflicted about this issue) but don’t practice in front of juries, and in Canada juries do not play the pervasive and hallowed role they do in the United States. As I understand it, and only a little, there is some debate in the U.S. about jury nullification, with it getting some judicial support here and there but preponderantly is judicially frowned on.

But frowned on or not, the issue is obviously fair game for general principled discussion and the reply posts have sharpened the issue and have even made me more conflicted.

It seems to me that whether the jury’s choice should or should not be binary as between guilt or innocence—ie not that guilty—flows from the legislative options provided for charging and sentencing and the exercise of prosecutorial discretion in charging as manifest in the liability and sentencing options provided to the jury. There is, I don’t think, no need for the issue to be *so binary* in most cases.

That said, the felony murder rule case linked to is a horror show and itself, given the existence of such anomalous rules, makes a good argument in favour of providing juries with sentencing information. Added to that point is that fact that Americans elect certain judges and certain district attorneys, whereas in Canada we do not. Electing them raises the risk of pandering to the electorate, sometimes a law and order electorate, sometimes a race based electorate, and other segmentations as well, by sensationalizing cases and proceeding in bad faith as Nifong did in North Carolina. Seen in these lights, the argument that providing the jury with sentencing information as one way of preventing both systemic and prosecutorial abuse, or, put another way, as one way of giving the jury all relevant information, is rather compelling.

(In Canada a couple of decades ago our own “abortion doctor” Dr. Morganthaler was acquitted by about 3 or 4 juries in different provinces largely, the thinking went, due to jury nullification, the community writ small objecting to Canada’s abortion laws on principle.)

In these regards, Althouse made a fascinating point about how the case in question is being framed for the Supreme Court’s originalists in noting that historically and in less complex times the community generally knew what sentences went with what crimes, whereas these days with the complexity of defined crimes and sentencing, that information is simply not analogously in the community’s mind.

But I keep getting stuck on the problem I first mentioned that sentencing information confuses the question of finding guilt on the evidence as properly led and I guess for now that is where I park, though it is a very small space and I barely can squeeze in.

To me it is a very close question.

bjkeefe
04-11-2008, 09:24 PM
basman:

Thanks for your thoughtful reply.

I'm glad to see that you have some flexibility about our main issue -- whether or not a jury should be allowed to know the sentence that the defendant faces. I am not going to be able to match you in this regard; I will continue to believe that more information is a good thing, and that the very idea that someone should consider such information too volatile for the jury to hear suggests that there's something wrong with the entire proceedings.

I have to say that I'm no expert in law, so I don't know if it's always the case that a jury has only the binary choice of guilty or not guilty on a serious charge. I have the sense that it's up to the prosecution whether to allow a sheaf of charges to be brought at the same time. This offers the possibility that a jury might convict on a lesser charge only, which on the surface seems like better than nothing. On the other hand, advocates for the defense will point out that such a scenario greatly increases the chances that the defendant will be found guilty of something, since juries often tend to think, "If he didn't do anything, how'd he make it all the way to court?"

Anyway, the bottom line for me on this issue is that there ought to be some ways to deal with cases that are in the proverbial gray area. Mandatory sentencing is a plank that politicians love to campaign on, but it's gotten way out of control. Until that aspect of the law is rectified, and judges get back some of the power of discretion they used to have, I'm all for jury nullification. Ain't perfect, but it's what we got.

Let me also add that for all of its hallowed image, there is a lot not to like about the jury system, in and of itself. For one thing, it's not often the case that a defendant is tried by a "jury of his peers." For another, the complexities of many cases these days make it a howler to think that average citizens have any hope of making an informed judgment. Of course, the only option is a professional class of jurors, and almost no one wants to pay for that. (In my fantasy world where I get to reform America unilaterally, one thing I'd do would be to mandate national service for every citizen, and one of the ways to fulfill this obligation would be for law students to serve as professional jurors. Topic for another day.)

So, I am unhappily forced to agree with you that Ann Althouse made a smart point (man, that hurt to type): It certainly was a lot more plausible back when the Constitution was being drawn up to expect that a jury would be adequate to the task of hearing most cases. (My unhappiness about this forced admission is alleviated by patting myself on the back for a sudden opportunity to appear flexible.)

Last topic: I take your point about the evils of electing judges. On the other hand, appointing them carries its own risks, too. Patronage is a real problem any time an office is appointment-based, and there is also the risk of an outlier of an officeholder appointing a like-minded judge who is then nearly impervious to removal. I have no idea which system is worse. Off the top of my head, I guess I'd go for accountability to the public, but it must be admitted that this often tends to favor "hanging judges," to the extent that the voting public thinks about it at all.

basman
04-12-2008, 12:12 AM
Good reply Brendan. Lts of food for thought. But let's leave it there for now: tough week and I'm too pooped to pucker. No doubt many of these issues will resurface in one form or another in due course. I'll just say, walking away, maybe just become I'm used to it and it's my tradition, I'm aghast at the thought of electing judges, especially now that there is at least in Canada federally, and in Ontario provincially, where I live, really sophisticated and careful processes for judge selection. In my experience judicial appointments over the last generation or so have been quite good on the whole.

But as you say this is a topic for another day.

See you round the cyber bend.

bjkeefe
04-12-2008, 12:35 AM
basman:

Thanks for the conversation. I understand about being pooped.

I will take you at your word that the process for appointing judges in Canada is robust. When you have more energy, though, I'd like to hear more about it.