Qualified Immunity Rap Battles
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David and Sarah have Super Tuesday numbers to dive into, oral arguments in Louisiana's Supreme Court abortion case, FISA reform, qualified immunity, and is it okay to arrest six-year-olds?
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Good pod, as usual. But I am puzzled by Sarah’s almost off-handed assertion that E. Warren suffered significant sexism, especially from conservatives. This emerges from her stated rejection of many conservatives citing acceptance of Klobuchar as a “defense” against sexism being the origin of opposition to Warren. She and David acknowledged both policy reasons and tactical mistakes which hurt Warren, and I didn’t hear any evidence of sexism at play, except a gender gap in support in Massachusetts. Of course, there are often gender gaps between candidates of the same sex. Is this a disparate impact point? If someone opposes Warren more strongly that Kloubuchar, must we assume sexism is part of it? Sarah states that K. is a more “tradtional” woman that W., adding that the latter has an unusual haircut (?) seemingly implying this shows sexism. What have the conservatives Sarah talks about done to make us assume they need to defend themselves against charges of sexism vs. Warren? I’m not on Twitter, so perhaps this issue is clarified there, but I am conservative, voted for Hillary, and dislike W. Far more than K. for policy and honesty issues. Why must I be suspected of sexism? What am I missing?
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Love the Dispatch and love this podcast. But Sarah is seriously confused when she says that if conservatives react with rage if/when Roberts or other conservative justices vote to uphold June, that it proves they were lying about their commitment to textualism. It proves nothing of the sort. Likewise her comparison of the gun issue for the left and the abortion issue for the right is superficially plausible but only superficially. Roe is a constitutional travesty and so is Casey. It is tied to nothing in the text of the Constitution or our history (unless you count our racist eugenics movement, which should give its cheerleaders pause). By contrast, Heller and McDonald are tied to both explicit guarantees in the Constitution and supported by our history from before we were a country. If the justices rule the wrong way on these, conservatives will be right to be enraged; not because they were lying but because they were lied to. They were told the text and history matter. Upholding egregious decisions like Roe means that all that matters is that progressives and their movement must get what they want. Conservatives care about outcomes precisely because they think the justices are not free to ignore the text and its original public meaning. Ignoring it is what got us here in the first place. So count me among the justly enraged if June goes wrong. Furthermore, I find Sarah’s flippant attitude toward qualified immunity disturbing. It’s as if she believes that “Blame the Warren Court” is a sufficient answer to a family one of whose members was shot dead in his own house after committing no crime and when the police had no good reason to be there. Sorry, the minimum that should happen is a finding if civil liability. I’d also be in favor of criminal negligence penalties being applied in such cases in addition to the civil penalties. But nothing? Impunity? Come on. You cannot be serious. Fixing the Warren Court might be hard, but it’s necessary and way overdue.
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