Saturday, July 09, 2005

It's not as hard to be a reasonable Catholic as they make out

I was a little distressed reading the sub-heading to this NYT article:
Cardinal Christoph Schönborn has suggested that Darwinian evolution might be incompatible with Catholic faith.
I thought I might have to title the post something about the Ghost of Galileo. But, no, it's all right. The Cardinal seems to endorse a version of intelligent design, but he does so because he misunderstands what evolution implies about God (Hint: nothing, one way or the other). Just having noted the 75th anniversary of the Scopes Monkey trial and knowing that a case about the teaching or not of evolution could make its way to a high court anytime now, I think it's good that people are pushing on this issue. As long as they push in the right places and end up making the proper distinctions. I think the grounds for any conflict between science and religion as such are entirely imagined. The only conflict is bad science vs. good science and bad religion vs. good religion. I am afraid the Cardinal instances a little of both of the first terms in the pairs.

Intelligent design is both bad science and bad religion. One can argue for purpose and design on at least two levels. The first level argues that the process of evolution was started, in some way, by God. God winds the watch, but after that it proceeds to tick forward in time on its own. Intelligent design is only one version of this argument. The argument as made by Michael Behe, a leading proponent, is that the theory of evolution cannot account for the biochemical complexity of the living cell. As I understand it (and don't assume that I do!), this organism is as far back as we can trace the process of natural selection. We can't say what it developed from; therefore, we can't say whether it developed from anything. But that's just an observation Behe makes. The second and more important part of his argument asserts that the cell is characterized by "irreducible complexity." In other words, each of the parts must be in place before it can work at all. Therefore, they must have been placed there already; the cell could not have evolved. The first claim is modest (though ineffective, as it depends on the coincidence that scientific research has not yet answered the question of where the cell comes from). The second claim is ambitious. Unfortunately, it's probably also wrong.

This presents a problem -- one might call it an irreducible problem -- for intelligent design, as it has been defined by Behe and his colleagues. By making irreducible complexity their lynchpin, they have argued themselves into a corner. But intelligent design is only one version of a broader argument and, as such, it's flaws don't present a problem for people who believe that God is responsible for creation. There is no reason not to assume a Prime Mover behind the entire process. The existence or non-existence of God, indeed simply the beginning of all things -- these are simply not questions for scientists any more than they are questions for mechanics, historians, or stockbrokers; and I don't know any scientist who has a problem with that. God is larger than science, and science lacks the tools to encompass those questions. Behe runs into difficulty precisely because he tries to shrink God. He makes God a matter of science and then makes poor scientific arguments. Bad religion, bad science.

Intelligent design -- again, as I understand it -- endorses the idea of evolution from the point of the living cell onwards. Cardinal Schönborn, on the other hand, appears to refute this idea, when he argues that
Evolution in the sense of common ancestry might be true, but evolution in the neo-Darwinian sense - an unguided, unplanned process of random variation and natural selection - is not.
But we need to be careful in defining and applying our terms. First, definition. 'Random' and 'unguided' are not good words -- reproductive success through natural selection is not random. Environmental pressures do push speciation in a certain direction. Biologists don't make claims about randomness on this level. The only claim they make about purpose on this level at all is a negative epistemological one: they can't demonstrate or, as scientists, know that the process is teleological -- that natural selection aims at a certain end. Which means simply that the process of natural selection is not itself endowed with intelligence. But that doesn't even address the possibility of positing an Intelligence somewhere in the system, much less rule it out. The search for a telos -- an end, a goal -- is not a scientific search. 'Teleology' came into usage through Aristotle, whom we regard as a philosopher, not a scientist. (The Cardinal, in fact, is thinking in terms of Aristotelian causality. Note his reference to "finality ... a philosophical term synonymous with final cause, purpose or design.")

Second, application. Let's get this right. While it is misleading to apply a word like 'random' to reproductive success per se, it might be appropriate to apply it to the process that enables differential reproductive success -- genetic mutation. I think biologists do assume that, within the limits of the system, mutation is random. Enzymes miscopy DNA nucleotides sometimes. As a result, offspring sometimes has DNA that its parents didn't have. This is mutation. Certain organisms are more prone to miscopying; certain kinds of miscopying (i.e., mutations) are more likely. This reduces the scope of the randomness, but it doesn't eliminate it. Biological sciences do not have an answer for why mutations happen at all or, I think, for why certain mutations happen, except to say that, well, they just do. I expect, as scientific research advances, we will actually be able to reduce the apparent randomness a lot more. And what if we can't reduce the randomness? What does randomness mean? It means precisely that we can't explain the process. Perhaps there is no answer, there is no process. But equally plausible -- or much more plausible, depending on your convictions -- is the idea that we ought to look to God for an explanation. We can posit a Prime Mover not just at the beginning of the universe but at the beginning of every instance of this process, as well.

With every question that scientists answer, they provoke new ones.
Yet all experience is an arch wherethrough
Gleams that untravell'd world whose margin fades
For ever and for ever when I move.
The ultimate questions recede at the same pace at which the scientific community seems to be progressing towards them. Why? Because they are on a different path; they can't be answered by the same query. (Please be aware that I am NOT suggesting that science is flawed as an enterprise or that its theories are inadequate to its claims -- as advocates of intelligent design incorrectly suggest with "irreducible complexity." I am making instead the simple point that, like any enterprise, science has its boundaries.) Is there a conflict between evolution and religious faith here? No. By the Prime-Mover argument, no part of natural selection is random, but nor is any claim made by the theory of evolution incorrect. Again, these are simply two sets of questions; scientists are only able to answer one of them, but they have answered that one quite well.

Nor does the Cardinal's argument, whatever he intends it to be doing, really oppose the theory of evolution. His express method is "the light of reason," not the scientific method. This is a more expansive tool capable of asking and (sometimes) answering questions scientists only think about in their off-time.

Dr. Kenneth Miller, a professor of biology and a Catholic says that
evolution "can fall within God's providential plan ... Science cannot rule it out. Science cannot speak on this."
The simple fact is that we need different frameworks for thinking about different questions. There is no contradiction between evolution and religious belief because they exist on different planes. Another way of stating this is to endorse philosophical pluralism. The Cardinal seems worried that scientists are making claims about God. That would indeed be strange; but they're not.
Francisco Ayala, a professor of biology at the University of California, Irvine, and a former Dominican priest ... said the cardinal seemed to be drawing a line between the theory of evolution and religious faith, and "seeing a conflict that does not exist."
The troubling aspect about this false controversy is not what science says about God; it is what those people who represent themselves as speaking for God say about science. We need good science, and we need people to respect and understand good science. There does need to be philosophical pluralism. We must allow each part of our society to pursue its own project according to its own rules; the production of the full knowledge of the world, ourselves, and what lies before and beyond us depends on a division of labor. I suspect the Cardinal doesn't sufficiently appreciate this.

There is a sad irony here. The Cardinal misunderstands what science is and what science does. He misunderstands its limits, its purpose, and the nature of its claims. Perhaps this is a willful misunderstanding, that he would perceive a contradiction where there is none. In any case, it is precisely this misunderstanding that causes him problems. Despite his bold claims about the inaccuracy of science, it is clear that he feels Catholic doctrine is threatened by scientific theories. There is no need for this insecurity; the insecurity itself does more damage to religion than a million Darwins on a million typewriters. The solution? He needs to understand science better. The better citizens understand the theory of evolution, the better they will be able to see that it presents no challenge to their religious convictions. To perceive a challenge gives science more credit for having the answers than it deserves, more credit than scientists themselves claim. One good reason to make sure people of faith really do learn science is so they can understand its limits as well as its contributions. The sadness comes when misunderstanding of science results in people trying to prevent science being taught in schools. That is the surest way to promote a conflict that doesn't exist and, in so doing, sow false doubt about both sides of the picture of reality.

I don't believe that this so-called conflict is really about knowledge or belief as such. It is about authority. The Cardinal intended to make clear above all that the church did not "acquiesce" to the theory of evolution. Despite the fact that no one is asking the Cardinal to give up anything he thinks about God, he clearly feels challenged. His op-ed piece, intentionally provocative, pushes back. When an evolution/intelligent design/creationism case reaches the courts next, it will not really be about knowledge or belief either. It will be about authority or recognition of personal identity. It will be about resentment and prejudice on both sides. It will be not about understanding the world, but misunderstanding each other.

UPDATE in the comments. I think it's going to be a long one.

Friday, July 08, 2005

Professors for the Judiciary

Jack Balkin has an excellent post on O'Connor. It is not simply in starting out with Holmes that his argument is similar to Jon's from the other day on this blog.

Reading both pieces, you realize more urgently how the politics that surrounds our constitution needs to reflect the principles of that constitution.

UPDATE: Professor Balkin expands his argument in this op-ed

A new kind of Senator for a new kind of Nomination Process

The New York Times observes that many of the Senators, preparing to participate in the confirmation hearings for a new Supreme Court Justice, have never had this experience before -- 56 out of 100, in fact. A lot of the arguments that we have treated on this blog recently -- how many, what kind of questions can Senators ask nominees -- depend on citing Senate tradition that many of the Senators and their aides lack. The Times' article is interesting, but I wonder if it is important. At least, there is something else that seems more important. Before deciding what arguments to make, Senators have to decide upon what they want their arguments to acheive. Ends dictate means. The goal of many Senators seems to be confrontation rather than compromise. Why is this? What the NYT raises about lack of experience points us toward a broader picture.

We have a lot of new Senators, yes. But, more important, we have a new breed of Senators. Many of the Senators recently elected regard the Senate in a different manner than did their predecessors. Two examples that come to mind are Rick Santorum (R-PA) and John Thune (R-SD). They feel less obligated to the institution as such. They feel closer to other members of their party, even in different branches of the government, than they do to their colleagues in the Senate. There has been partisan alliance since before there were parties, of course, but this new attitude is different -- different not just in degree but almost, it seems to me, in kind. Their willingness to employ the nuclear option, for example. Putting aside arguments for and against its legality, such an unprecedented attack on minority rights in the Senate would liquidate any comity or colleagiality in the Senate. It would destroy the culture of the Senate as (i) a deliberative body and (ii) a body that can work together to forge consensus. Right or wrong, the nuclear option does signal a new attitude towards the institution.

Part of this difference derives from the fact that, as recently-elected individuals, they have spent little time in the chamber with their colleagues. But part of it is because they represent a new kind of politician. The new politician differs from the old for reasons both new and even newer.

First, the change in transportation technology and in campaign finance allows Congresspeople to spend much more time in their home states, interacting with their constituents. This is a good thing, of course, by itself, all else being equal. But all else is never equal. Spending more time at home means spending less time with their colleagues in Washington. Less tennis games, less dinners, less interaction in the halls of the Hart Senate Building. As a result, Senators simply don't know each other as well as they used to. Lacking a thick or deep relationship, they find it harder to trust one another and easier to view each other as shallow caricatures or symbols, as ideological/partisan bogeymen. Political affiliations in Washington pressure members to regard those with opposing affiliations as enemies. The best way to resist this pressure is to get to know one another, become friends. This is a bulwark against unthinking and untrusting partisanship. This change began, I think, in the 60s and 70s. It has accelerated since then.

Yet more recent developments depend on the above conditions, but are the direct result of the more vicious partisanship that began in the mid 90s. It is easy to point to the Gingrich house and the Contract for America, which really does represent the beginning of this, but President Clinton has his fair share of responsibility too. Today's Senators are the children of that period. They were elected in on the basis of viciously partisan campaigns, during which they relied for votes on a distinct ideological bloc, itself divided deeply from ideological blocks represented by other voters. They were often elected, in fact, because of their expressed antipathy toward the Senate (or, more broadly, government). It should not be a surprise to find them antipathetic to their colleagues or to the Senate as an institution.

If this does become the most traumatic confirmation hearing in the history of confirmation hearings, the new kind of politician will bear a lot of responsibility for it.

Those Misers!

We're selling a lifetime of jurisprudence and a seat on the Supreme Court for upwards of only a 100 million? Seems like a pittance. And a plunder.

Thursday, July 07, 2005

A bit more on the future and character judgments

Just to add a bit of my own thoughts onto Meredith's outstanding piece below, I think that emotional evaluations and character judgments based on personality of candidates is simply an absurd claim for anyone who calls themselves a lawyer to make. Besides, when did the Senate get to decide who the kool kids are and who aren't?

I understand that as either a prosecutor or defense attorney, playing the emotional or personality or character card makes winning easier because you move the jury away from the actual objective evidence to the more circumstantial and subjective 'evidence' that is personal judgments. It is that move that often creates the doubt in the jurors mind (which may explain how Michael Jackson got acquitted, but I digress).

As a judge, however, you should be held to a higher standard--one that doesn't only answer to the bar assocation or your personal ethics beliefs--but to the law itself. And when the Constitution tells Senators to "advice and consent" on nominees, your judicial philosophy and past jurisprudence are fair game. Moreover, when they ask you about precedent you have the obligation to tell them whether or not you support that precedent--and in turn the principle of stare decisis.

Oh, the indeterminacy of the future!

My proverbial antennae are picking up a potential rhetorical trend in Republican-speak. As Chris posted below, the NY Times has Jeff Sessions (R-AL, and former boss of recently confirmed judge William Pryor, from their state attorney general days) pooh-poohing other senators' requests for detailed information about nominees. On what basis? "You cannot ask a judge to prejudge a specific matter."

This logic, such as it is, is reminiscent of the editorial written by Professor Gerald F. Uelmen of Santa Clara [CA] Law School, in support of Janice Rogers Brown's nomination to the federal appeals court, in which he also waves off those who would question Brown's track record as a reasonable indication of what kind of justice she would be: "...It's time to refocus the judicial confirmation process on the personal qualities of the candidates, rather than the 'hot button' issues of the past. We have no way of predicting where the hot buttons will be in years to come..." This editorial originally appeared in The Record, 8/9/2003 but it was also posted as the sole letter of support on the Department of Justice website devoted to Rogers Brown's nomination. (See my Monday, June 13 post, "Deliver us from rhetorical smokescreens" for more on Uelmen's piece)

Now, if these two were not people who had arguably "arrived" in their chosen careers, having gained public standing within their own communities, we might just dub them "masters of the obvious" and leave it at that. Unfortunately, this pat dismissal will not do, for we should all expect better argumentation than this from two lawyers. Yes, the future is indeterminate, by definition. However, that does not mean that it is completely detached from the past, either--can anyone seriously say that we have no idea what kind of cases the current Supreme Court will be asked to rule on, or that past judicial practice is a worthless indicator of future thinking? Nor should anyone actively dissuade people from engaging in enquiry about public matters this important by deriding the people's duly-elected Senators, those who think that investigation necessarily precedes "advice and consent", as Chris notes below.

The very idea of any Senator presuming to dispel concerns by simply waving his or her hands in front of the public's face and saying "Nothing to see here, folks, just move along into the wondrous and inscrutable mystery that we call THE FUTURE" is pretty disturbing, especially because it bespeaks their low opinion of the public and their discounting of our responsibility as citizens of a constitutional democracy to be informed, and to expect our elected representatives to hold federal nominees to a higher standard than just "Gee whiz, fellas, wontcha just take our word for it? He's a good man! (Or, She's a good woman!)"

In this case, I don't care about emotional valuations (what does "good" mean, exactly?), or if a person shared a cradle with a nominee. In fact, it might be better if s/he hadn't, because then the mind would not be clouded by the kind of sentimentality that naturally develops around friendships, but which is deadly for the integrity of governance. One of the heaviest burdens that a public servant has to carry is the responsibility to separate personal/private from professional/public relationships, and to be able to say "I'm sorry, but no" when a friend asks, explicitly or implicitly, to cross that line--and to recuse oneself when the conflict of interest is too great or risks setting propriety at nought. It takes incredible strength of character--it's no easy task, and the testing is constant. But that is part of why these public offices (and if they live up to it, the men and women who hold them) command respect: they demand a level of self-restraint in the use of power at one's disposal, in order to prevent corruption. It is up to us, the public, to see it done. (May I direct to the fracas in the House over the changes to the rules of the Ethics Committee--namely, that the Republican caucus decided to disable some key provisions and were publicly shamed into restoring them?)

If Democrats engage in the kind of reasoning that I perceive to be a common thread in both Sessions' and Uelmen's remarks, then shame on them, as well. In general, the kind of people who want trust (to go about business as they personally see fit) without the appropriate level of accountability tend to be oligarchs, not democrats--self-appointed aristocrats (since a democracy should have none who consider themselves the best with respect to power, which is what "aristo-crat" means) who shun the transparency that spurs questions. In our democracy, fortunately for us, certain kinds of safeguards with respect to transparency in government exist, and even aspiring oligarchs must make some gestures toward the public's right to be informed. But it is up to us to exercise it, because such rights fall into the "use it or lose it" category faster than you might think. For example, may I direct your attention back to a previous post on the enormous increase in executive privilege that Bush has built for himself and Cheney--with the aid of another nominee in the waiting pen, Brett Kavanaugh? (Tuesday, June 14: "Partisans and privilege")

Questioning the SCOTUS nominee

I don't understand how Washington Republicans don't understand the 'advise and consent' clause in the United States Constitution. Evidently they don't think asking questions about ideology or judicial philosophy would be appropriate questions for potential life-time appointments of Supreme Court justices.

From the 4th's New York Times:
"But Senator Jeff Sessions, an Alabama Republican who sits on the Judiciary Committee as well, said the push for such detailed positions was highly objectionable and suggested that Democrats might be forming a strategy of trying to derail a nomination on the ground of withholding information.

"You cannot ask a judge to prejudge a specific matter," Mr. Sessions said. He pointed to other cases in which Democrats had raised objections to Bush administration nominees in part on the ground that information was being withheld, including the nomination of John R. Bolton to be ambassador to the United Nations. "If the Democrats are pushing that, then they are trying to create an issue," he said.

And Senator Orrin G. Hatch, Republican of Utah and former chairman of the Judiciary Committee, said in an interview: "Any member of the committee can ask whatever they want, no matter how stupid. But I don't think nominees have to answer certain questions. They don't have to answer questions about how they are going to vote in the future. They don't have to answer stupid questions. They don't have to answer argumentative cases."

Mr. Hatch said senators in past confirmation hearings had tried, with varying degrees of success, to divine the views of potential justices on critical cases facing the court. "But never has it been to the degree that Senator Schumer is suggesting," he said.

A senior White House official, who insisted on anonymity in discussing the early phases of the nomination, echoed Mr. Sessions and other Republicans on the Judiciary Committee, saying, "There has been a long-term standard that the appropriateness of questioning does not include asking judges to take specific sides or positions regarding cases they may hear one day.""
Look, the Senate has the duty to 'advise and consent.'

Interpret that as you may, it still involves questioning previous decisions, asking about your jurisprudence, and setting certain standards to consent on the nominee.

If the Washington Republicans were in the Democrats shoes, they'd want to do the same thing that we're doing. We don't want justices to be a surprise once they get to the bench--just like David Souter ended up being for Bush I. Just because they're in power doesn't mean they can circumvent decades of procedural tradition just to expedite their own power-grabbing desires.

And don't forget the Specter standard from his 2000 auto-biography:
"[T]he Senate should resist, if not refuse to confirm Supreme Court nominees who refuse to answer questions on fundamental issues. In voting on whether or not to confirm a nominee, senators should not have to gamble or guess about a candidate's philosophy, but should be able to judge on the basis of the candidate's expressed views."
It is obvious--any politician has the right to question the nominee.

And if anyone doesn't like it, they can get over it.

NB: The WaPo took on a similar article on Monday, but it is effectively shot down by Kevin Drum and MediaMatters. Essentially, just because one 'moderate' Washington Republican says that you can't question doesn't mean that you should listen to him.

Also, this was posted previous at my personal weblog, The Political Forecast.

The Scopes Trial

We just celebrated (or not) the 75th anniversary of the Scopes Monkey Trial, argued by Clarence Darrow and William Jennings Bryan. The latter was one of the great American orators at the turn of the century (his "Cross of Gold" ranks among the greatest of political convention speeches). I thought it might be fun for people to read a transcript of some of the highlights of the trial. .

Stare decisis and maintaining balance on the Court

On Monday, the Washington Post published a fascinating article detailing what they described as Associate Justice Anthony Kennedy's recent "move to the center" in the 2004 term of the United States Supreme Court.

Reporter Charles Lane writes:
"In three crucial cases this term, Kennedy, a 1988 appointee of President Ronald Reagan, defected from the five-member right-of-center bloc that Chief Justice William H. Rehnquist nominally leads.

Kennedy joined with the court's liberals to abolish the death penalty for juvenile offenders, to give local governments a green light to take private property for economic development and to endorse a broad theory of federal regulatory power that denied states the right to override a federal law against homegrown medical marijuana."
Because of the juvenile death penalty case and eminent domain case, Kennedy is now public enemy number one for right-wing judicial interest groups.

Now, it should come as no surprise to most Court followers and aficionados, like myself, that Kennedy is being classified as a Centrist. There is nothing new about that assignment. In my spring semester class on Supreme Courts and Elections at Drake University, my professor made sure to break down the court into distinct voting blocs.

On the Right, of course, were Scalia, Thomas, and Rehnquist. On the Left were Souter (appointed by Bush I), Ginsberg, Breyer, and Stevens. Some in the class immediately tried to call Kennedy a conservative judge and arguing with my professor. It seems he had run into this argument before. He pulled a packet out from his lectern, silenced the class, and read off a long list of cases where Kennedy either: 1) sided with the liberals on the Court; or 2) dissented from the majority (the Conservative bloc plus O'Connor and Souter) but would not agree with the dissent from other justices. O’Connor and Kennedy are always considered the swing votes. If you can get one of them to your side, then you’ve got a pretty good chance of winning.

That centrist nature comes from the pragmatic nature of the two judges. While they may be some of the most activist judges (when activist is defined in terms of overturning bills that Congress has passed), they hold a clear love and respect for the principle of stare decisis--let the decision stand.

In my mind, stare decisis must be the overarching legal principle that any potential nominee must adhere to--before ideology or anything else. A simple faith in the jurisprudence of your predecessors is something that any appointee to the Court should have. Overturning precedent must be justified clearly and flatly. Room for confusion must not be allowed.

As for the balance of the Court, I see O'Connor's position being securely squared away by an independent Justice Kennedy. One of the joys and reliefs of being a lifetime appointee is that you're no longer beholden to partisan interest groups the way most politicians today are.

Later today, I'll write about questioning the nominee and what defines "extraordinary circumstances."

Tuesday, July 05, 2005

Aristotle for a Consensus Nominee

The great problem for the ancient Greek polis was stasis, civil conflict within a community. The great political thinkers made solving the problem of stasis one of their priorities -- Thucydides, Plato and, of course, Aristotle in the Politics and Ethics.

Aristotle (A.) concerned himself especially with distributive justice, the attempt to ensure that everyone in the community receive an equitable share. This is known as proportional equality; it dictates that each get social goods according to his social worth or contribution. A social good might be wealth, status, a vote, political office, or any number of other things; the kinds of social worth that justifies receipt of a social good might include wealth, noble birth, free-born/citizen status, or virtue (aretê). A.'s preference is for the last (which is why he also uses simply axia, 'worthiness', to denote virtue; they are synonymous). A. also thinks he has an answer to what virtue is, but he also recognizes that grounds for social worth are disputed between and among communities. In practical politics -- A.'s real concern -- social worth, as well as the morality that grounds it, is as much an ideological as a philosophical truth. That is to say, there is a true answer -- virtue -- but (a) it is hard to recognize virtue and (b) people will disagree about what it consists .

There are three causes for stasis.
1. A group's feeling that it is suffering injustice at the hands of others, either because institutional arrangements are unfair or because power is being abused within an otherwise equitable institutional framework.
2. The pursuit of gain (kerdos) or social esteem/political power ('honor', timê) or a desire to avoid loss of that material wealth or honor. A. means by this, mostly, that some people cause stasis by pursuing or attempting to keep these social goods in a measure that goes beyond their equitable claim to them.
3. A variety of different causes -- gain, honor, insulting arrogance (hubris), fear of one's political opponents, overweeing preeminence (huperokhê), etc. A. means by this that people react against a system that supports the unjust acquisition of social goods by others, even if they are not interested in claiming these goods for themselves.

The first cause is a very general one, but we need it to understand the second and third. A. believes that there is an objective standard for correct distribution, virtue, which we can use to measure people's worth and therefore their just dessert of social goods. But A. also knows people well enough to recognize that they tend to be self-interested and self-aggrandizing. In other words, their interpretation of their own just desserts tends to overstate what they are actually owed. As a result, people perceive injustice; they perceive that they are not getting their due, whether in terms of material gain, social esteem, or political power -- even when they actually do possess a fair share of social goods. When this happens, they will act to overthrow or alter the political system. That is, people who possess the power they need to acquire the goods they want will institute a particular set of political arrangements that will gratify their desire for money, honor, or power. To them, setting up such a system will seem just, because they will claim that they possess the relevant social worth, be it noble birth or (their idea of) virtue or any other. If they are able to acquire the disproportionate amount of social goods that they want, however, others will resent this fact and act themselves to overthrow the system. These others will claim that the standard of social worth the powerful use to justify their power is mistaken or it is insincere (i.e., propaganda). This is a real bind; stasis results from either circumstance.

The common element in the two situations is greed. The Greek word for this is pleonexia. In fact, it has a much broader meaning than simply 'greed'; it means, in an etymological sense, 'overreaching' or 'having too much,' and its object can be any of the social goods we have been referring to. Greed causes civil strife.

Aristotle, as it happens, is important to thinkers like the philosopher, Alisdair MacIntyre and the theologian, Stanley Hauerwas, who are the foremost critics of Rawlsian pluralist liberalism taught in seminaries in the United States. They trace from him an alternative way of talking about ethics and politics. Sometimes they focus on virtue (rather than moral problems, "quandry ethics"); sometimes they emphasize their belief that ethics and politics don't work unless embedded in a tradition (and they see in the universalizing impulse of liberalism the absence of such a tradition). As such, A. is important, at least genealogically, to Christian approaches to judicial rulings, which seek to ground moral decisions in an ideologically (or theologically) coherent community.

It is worthwhile, however, to read A. also for his warnings about what causes communities to fragment, and one can readily do this from an Augustinian (Christian) perspective. First, A. warns that one's conception of virtue may well be flawed; this accords well with the Christian humility that comes from the full knowledge of human imperfection as measured against the standard set by Christ. Second, Aristotle warns that overreaching based on any conception of virtue, when you do not have the consent of your fellow citizens, will prompt in them the alienation and resentment that results in civil strife, even civil war. This corresponds with the Christian conception of charity. (For an example of this logic applied to judicial controversy, see Bill Stuntz [hat tip: Jack Balkin].)

Many so-called secularists argue from or implicitly accept the principles of Rawlsian liberalism. This demands of them that they do not make public arguments without ascertaining general premises that can be accepted by their fellows. Their hope is that this should result in persuadability and consensus. Christian thinkers (rightly, in my view) reject the Rawlsian principle as limiting, even tyrannical. But some of their own most important philosophical forebears provide independent and compelling grounds for consensus.

We can see clearly the danger that the power now enjoyed by the Republican leadership will cause them, in their political greed, to overeach their proper social dues (stasis cause #2). So too the Democrats may demand too much out of a judicial nominee (#2) or rebel against what they perceive as oppressive Republican domination of the government (#3). Civil strife would result in any of these scenarios. The solution is to limit one's ambitions, avoid pleonexia. In choosing or responding to a judicial nominee, don't be greedy.

For Aristotle's discussion of justice, including distributive justice, see the Nichomachean Ethics, book 5.
For his discussion of stasis, see the Politics, book 5.
Much of this analysis, some of it lifted word for word, comes from Ryan Balot, Greed and Injustice in Classical Athens (Princeton: Princeton University Press), 44ff.

Red, white, and blue--or imperial purple?

Continuing on the theme of "color" that I see in the blog posts recently, we've caught another glimpse of the president blithely muddying the distinct red, white, and blue of the American flag into a royal purple. The occasion? Preemptive criticism of Alberto Gonzales as W's choice to replace O'Connor on the Supreme Court. I had mused in an earlier post on the rationale behind the strident defense of candidates for the appellate courts, which seemed tinged with the purple bruise of patronage--a black eye to the very tenets of a constitutional democracy that claims to provide equal protection and equal opportunity. And now, how does W defend Gonzales? According to a Q&A with USA Today, "Al Gonzales is a great friend of mine. I'm the kind of person, when a friend gets attacked, I don't like it. We're lucky to have him as the attorney general, and I'm lucky to have him as a friend."

Sounds reasonable enough--if the speaker were anyone BUT an elected public official! It's one thing for you or I to do a favor for a friend, so long as we wield no special power or influence within our national system of merit and punishment. The parallelism between the nation being fortunate to have such a public servant and W being fortunate to have someone as a private friend is also disturbing, as if there is little or no separation between the public and private worlds of George W Bush.

As a private citizen, it's all well and good to stick up for your personal friends, and to act on the implication that you'll do something to protect that friend, as s/he would you. However, it is wholly unreasonable for the president of the country to level such latent threats at those who would oppose "his friend" on other than personal charges. In fact, difficult as it may be, it is incumbent upon a president to check his own abuse of power and influence. The emperor Augustus--while trying to make Rome live under the public fiction that the Republic had been restored, when it was still under his effective personal rule-- found it necessary to stay out of court in order to not prejudice the jurors' decision, even and especially when the case involved a friend of his. Because Bush's message here is: "Back down, people, that's my private, personal friend you're talking about. Or else you're going to find out what I mean when I say 'I don't like it' when a friend of mine is attacked." Well, when you seek to enter the highest sphere of power, any candidate must be prepared to run the gauntlet of criticism, whether deserved or not (and 'deserved' according to whom?), because it is the right of any citizen in our democracy to speak freely. And if the criticism is total crap, then other people will ignore it.

If a candidate can't defend himself or weather the storm, then arguably he or she does not have a strong enough sense of self to hold the reins of power within a democracy, or any branch of its governing apparatus. Does Bush really want to create the image of Gonzales hiding behind the president's proverbial apron from those mean, mean critics and their words? Yeah, that'd make quite an image for a Supreme Court justice--especially if W's personal friend should ever be called upon to decide on a case of, say, executive privilege concerning, oh, say, the alleged manipulation of intelligence leading up to the war in Iraq, or Cheney's meetings with Enron over national energy policy, or even the recent allegations that it was Karl Rove who was behind the leaking of covert CIA agent Valerie Plame's name all along.

Color me slightly pleased

Bush is defending Alberto Gonzalez from attacks from the far-right. Now, I think there have been real problems with Gonzalez's work in Texas and in the White House. Still, Gonzalez is still clearly a more thoughtful and moderate man than some of the people whose names are being bandied about.

Credit where credit is due.

Defining the Extraordinary

The Memorandum of Understanding (MOU) that defined the filibuster compromise laid out this guideline for future judicial filibusters: "Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist."

The filibuster compromise attempted to restore ordinariness to the Senate. But the fact that a compromise resulted only in the 'ordinary' indicates how far beyond the ordinary the situation had moved ('extra' is Latin for 'beyond'). In other words, the filibuster controversy demonstrates the process of shifting baselines, by which one side makes bolder and bolder claims for itself, and by the very extremity of those claims, succeeds in establishing a new and self-interested definition of what is normal. The Filibuster for Democracy group recognized this at the time of the compromise. Even while hailing it, we asked
That having been said, it is a strange sort of victory, isn't it? If you believe that Senator Frist's nuclear option would have been illegal and unprecedented - as we do, along with many constitutional scholars and political analysts - then the Republican leadership should not have considered it in the first place. Is it a victory when the world is returned to what it should be? Do we celebrate normalcy?
(This strategy is typical of much of the political logic employed under the tutelage of Karl Rove: it has become common for the right-wing punditry base of the Republican party, from Rush Limbaugh to Tony Perkins, to issue outrageous statements such as calling Justice O'Connor a traitor. The politicians, who represent these voices, can then disown the outrageous statements and appear moderate in contrast. The statements themselves, however, have already shifted expectations so far out of the norm that they leave room for the politicians to endorse still-extreme positions, which now look reasonable. That is, the unbelievable ideological wackiness of the right-wing base cause the standards for calling something extreme to rise dramatically.)

I would suggest that we are still far beyond the ordinary. I had written at the time of the compromise that the MOU
has shifted the grounds on which future similar controversies will be argued. The great problem with this controversy, as I said above, is that the baselines shifted to embrace the inconceivable, making the conceivable-yet-extreme look palatable, even normal. The great victory is that the compromise shifts the baselines back. It grants the essential legitimacy of the filibuster in the Senate. In the future, the debate will be about extraordinary circumstances, not the filibuster itself. That is, the debate will be about the controversial nominees. This is what the minority party wants. The compromise had to happen first, in order to reassert the proper field of discussion.
I assumed that at least the participating Senators would honor the compromise. I have reconsidered my position since, and it seems sadly naive. Senator Orrin Hatch (R-UT) for example, denied on Sunday that there could be "any circumstances where a filibuster would be appropriate." Any? Ever? At all? This is an extraordinary statement, and we should not let it shift our expectations away from what's properly normal. The very fact of this statement indicates just how extraordinary this confirmation situation is. People limit themselves overmuch in discussing the possibilities of defining extraordinary circumstances. Some Republicans argue that only an ethical or personal failure could constitute extraordinary circumstances (though this begs the question of why they think it appropriate to deny Democrats acess to FBI files on nominees). There is no room to consider ideological extremism extraordinary, they assert, even when personal ideology has profoundly affected a nominee's jurisprudence. That is ridiculous on its face. Why shouldn't we consider this extraordinary?

One argument might be that Janice Rogers Brown and Priscilla Owen were confirmed under the filibuster compromise. Both are ideological extremists, especially the former, and their decisions have reflected this. If anyone should be filibustered for ideological extremism, it is these two. Therefore, one could claim, that their confirmation to the Circuit courts has defined extraordinary in such a way as to rule out ideological inclinations entirely. Putting aside the fact that this argument in fact concedes their extremism, it should be clear that this was a practical decision on the part of the Democrat compromisers: they allowed through the nominees in order to secure the compromise in advance. I see no reason this should define the compromise in hindsight. This is another case of shifting baselines, in this instance moving so far to the right that ideological distinctions lose all meaning. Moreover, as Mark Scmitt argued,
If Bush appoints anyone other than Gonzalez, the nomination will be the product of a blatant litmus test on ideology. It would be outrageous for any Senator to refrain from asking questions about ideology, or opposing a nominee based on ideology, when the entire nomination is based on ideology. [I don't think Gonzales is the only nominee, who could fill the non-ideological criterion -- this is baseline-shifting in the other direction -- but the greater point is entirely correct -- Peter. Hat tip: the always politic Matt Langer.]
There are, in fact, good grounds, then, for defining extraordinary in such a way as to allow Senators to ask whether candidates' ideological commitments disqualify them from interpreting American law as part of an independent judiciary.

But I would like to point out another aspect of 'extraordinary circumstances,' which I believe has gone unremarked. The above definitions of extraordinary focus solely on the candidate in question. Can we not consider that the circumstances of the nomination process itself be extraordinary? Lyle Denniston of SCOTUSblog reminds us that
There has never been a Supreme Court opening amid the circumstances that now prevail in the Senate, where gridlock is almost a predictable development if a consensus nominee is not put forward. So, past experience with the nomination process, at least as it applies to the Supreme Court, may not be a reliable indicator of the conditions that may prevail as the process unfolds over the summer.
Remind yourself of what you have read in the newspapers over the last couple of weeks. This confirmation battle has the potential to be the most fierce and divisive such process ever. Ever. In American history. This is something that all politicians and activists, from all sides, agree on. Is that not extraordinary? This nomination will be for the Supreme Court (another difference between this process and the confirmation of, say, Owen to the 5th Circuit). The Supreme Court has especial importance simply because it is our high court. The fact that we will be replacing the moderate justice who provided the swing vote on several major statutory and constitutional decisions edges the importance farther toward the sky. But the real point: in this political and culture climate, what is especially important becomes also extraordinarily divisive. We know that one of the driving causes of contemporary division is the conviction, on both sides, that the country is engaged in a culture war; some are hyperbolically calling it a civil war. The judiciary plays a major role in deciding several questions, to whose answers both sides have fundamental and intractable commitments. (I think the metaphor of war is inaccurate and, worse, counterproductive, but I will follow it for the time being.) One of the major battlefields in this war is the arena in which (so-called) religion and (so-called) secularism clash. The Supreme Court itself in its 10 Commandments rulings lamented the consequences of the resulting bitterness and mistrust for civic culture. All the Justices seem to feel this is a major problem, even if they have different solutions to it. What makes the situation worse -- even more extraordinary -- is that the majority party, controlling both the legislature and the executive branch, considers itself beholden to one of the armies. I don't mean to suggest as part of my argument here that the Republicans ought not act to implement the commitments of these citizens. But the simple fact that they do can only further polarize the country, increasing the sense of resentment and persecution in each camp, solidifying mistrust of the other side. The nuclear option itself, which would be not only illegal but oh-so-destructive to the very culture that sustains the Senate, proves the extraordinary character of the present circumstances.

If the President does not put forward a consensus candidate, he will be doing so (a) in violation of the MOU's stipulation that the Constitution requires him to consult with the Senate in the act of choosing his nominee and (b) with clear knowledge that he will be widening and worsening the chasm that separates citizen from citizen, neighbor from neighbor, red state from blue. The President famously claimed that he wished to be a uniter, not a divider. To generate further division would, in these circumstances, be extraordinary indeed.

UPDATE: I wish also to draw your attention to Think Progress, which has a lot of very smart observations about consenus in this process.

Monday, July 04, 2005

Wheels within wheels

A lot of people will have read Ed Kilgore over at TPM, who argues that the President will nominate a judge sought after by his social conservative, pro-life base. Say, Emilio Garza. They may not have read the astute nuancing of the political situation by Matt Langer, however. There's more to this political machine than Bush and Dobson, and factoring in the other levers, ropes, and pullies is a desideratum.

Also: always happy to see a progressive, who doesn't think reproductive rights is the alpha and omega of the policy world.

Senatorial Precedent

The most important issue for the Senate right now is the argument between Republicans and Democrats about what should be considered proper behavior in evaluating a judicial nominee. Democrats argue, more or less, that Senators have the right to learn about a nominee's inclinations and commitments. An anonymous senior White House official interprets the Democrats' position more narrowly and argues, "There has been a long-term standard that the appropriateness of questioning does not include asking judges to take specific sides or positions regarding cases they may hear one day."

The parties are debating the extent of Senatorial power and the appropriateness of its use. The debate turns in part on how we understand the limits accepted and the powers claimed by the Senate in past confirmation hearings. Is the Republican tactic to limit Senatorial privilege self-serving or insincere, as I suggested yesterday about some of the rhetorical identity-politics played around female judicial nominees? Certainly the tactic is designed to bolster the strategy, designed in turn to make it possible for the President to appoint a judge with as little input from Democrats as possible: "shrink the target of attack on any nominee by limiting both the questions that may be posed and the time between the nomination and the hearings." But the fact that the argument serves political ends doesn't mean that it is not also fair.

How do we determine what constitutes appropriate review of the nominee? I have a few thoughts on the question.

1. Senators do have the right to filibuster a nominee, whom they determine is woefully inadequate for the seat. This right was accorded to them in the Memorandum of Understanding (MOU) that defined the filibuster compromise. The right to filibuster is therefore an explicit part of the tradition of Senatorial conduct. Orrin Hatch (R-UT) said that he could not see "any circumstances where a filibuster would be appropriate." In making this assertion, Senator Hatch is repudiating the MOU, which allows for the filibuster in extraordinary circumstances; he is repudiating the very tradition that his political allies seek to use to define Senatorial conduct. This is hypocritical.

The filibuster is to be used in extraordinary circumstances. How do we recognize extraordinary circumstances? It is not up to us. The Filibuster for Democracy group argued
It is the constitutional responsibility of each United States Senator to decide what constitutes extraordinary circumstances. The procedural mechanism of the filibuster is designed for extraordinary circumstances. If the circumstances are not extraordinary, the laws or nominees in question will be able to win the supermajority needed for cloture.
This is not to claim that the simple fact of a successful filibuster would define the circumstances as extraordinary after the fact. That would be unfair. It simply means that the filibuster is appropriate to extraordinary circumstances, and that each Senator must decide herself when it becomes proper to use the procedure. Anyone who denies outright the possibility of the filibuster fails to follow traditional and time-honored Senate conduct.

2. Any debate over Senatorial conduct should not obscure the President's responsibility to conduct himself in the appropriate fashion, as well. The MOU also made explicit that he should consult with the Senate in the act of choosing his nominee; this simply recognizes the advise and consent clause as it is written in Article II, Section 2 of the US Constitution. The headlines in all the papers indicate the extent to which the administration is keeping its selection process secret. If the President does not consult with the Senate -- and we should recall that President Clinton, in selecting his nominees, did -- then the Senate needs to be able to assert its constitutional authority by other means. An open and thorough examination of the nominee seems the proper way to do it.

3. There is something to the idea of precedent and understood rules of behavior -- how the Senate has conducted itself in past hearings should set general lines for its conduct now. That would provide a common understanding, a framework that allows political opponents to work together to do their job. But there is also something to disclosure and examination. Senate Democrats should restrain their inquiry, in my opinion, and literally asking a nominee to prejudge an issue would be inappropriate. In fact, it would be asking for an answer that only a judicial activist like Clarence Thomas could give, whose decisions stem not from the law but from personal conviction. A reasonable judge would want to consider the specifics of the case in question, what precedents bore on it, what scope the case suggested for a decision, etc. But, by the same logic, that line between what is appropriate and not has to be drawn in practice, during the hearings. To set general and theoretical limits on the advise and consent clause before knowing who the nominee is would be to prejudge a particular confirmation situation in exactly the same way.

This argument recalls another distinction that needs to be made clear. It would be inappropriate for a judge to decide how to rule before hearing the case, on which they would be ruling. It is not inappropriate, however, for the Senate to try to divine a judge's pre-legal, as it were, inclinations. This is a necessary part of advise and consent. If issues like abortion and gay marriage are hugely important to their constituents -- and they are -- Senators have a responsibility to find a judge whose decisions are not likely to be offensive to the citizenry. Judges and Senators play different roles in the process. The right of the Senate to develop a sense of the commitments of a nominee is a corollary of the separation of powers that distinguishes the responsibility of Senators and judges.

4. The final consideration is this: given the shadow the secrecy of the Bush administration casts over this process, it seems proper to err on the side of providing the Senate with more information. We need to right the balance in the general area of excecutive power. An independent judiciary seems like a good place to start.

UPDATE: Here's the WaPo on the potential effects of the filibuster compromise on the upcoming confirmation hearing. I think the headline is misleading. Look for the remarks by Senator's Nelson and Biden in the text of the article. I find them reasonable. The upshot is that an ideologically extreme nominee could be filibustered. What people are forgetting also is that, whether the filibuster is used appropriately or not, the nuclear option is simply an illegal remedy. (Am I allowed to update an update? Let's assume so, and let me point you to a well-balanced analysis by Steve Soto, which concludes that the Republican leadership lacks the political capital to implement the nuclear option. Hat tip: Matt Langer.)

UPDATE 2: I just re-read the NYT article I linked to above with the phrase"keeping its selection process secret." This is something I somehow, er, missed on the first skim:
Mr. Bush is to consult with a bipartisan group of senators about the Supreme Court vacancy at the White House on July 11, and Republicans said the president was unlikely to nominate someone in the first few days after that.
My bad. The President's good.

Sunday, July 03, 2005

What do we want from the new O'Connor

This article gives brief background summaries on some of the potential Court candidates, about whom you haven't heard as much. Not much information here, just something that allows you to add to your list. What strikes me most, however, is the logic of this section:
Unlike Rehnquist, a reliable member of the court's conservative wing, O'Connor was a swing vote, casting the deciding ballot in a large number of cases across a spectrum of issues including college admissions, abortion, prayer in schools and medical care by HMOs.

On many of these issues, O'Connor, who announced her retirement Friday, voted with the court's liberal wing.

Depending on whom he appoints, President Bush could give the court a firm shove to the right. At the same time, the president will be under pressure to acknowledge O'Connor's legacy as the first female justice and maintain a sense of gender or ethnic diversity with her replacement.
It is not as simple as just finding a good judge, who can sustain the professional progress of women that O'Connor has come to symbolize. Anyone who followed the debate in April and May over the Appelate Court appointments will be familiar with the rhetoric the Republican Leadership used to argue for such judges as Janice Rogers Brown and Priscilla Owen. The centrally-coordinated strategy was to stress their life histories and social identities. Brown, for example, has a truly inspiring story -- the daughter of an Alabama sharecropper, she would be the first black woman on the Supreme Court. That really is exciting. In contrast, however, those Senators, who opposed her appointment, expressed substantial doubts about her record on the bench. This side of the argument doesn't make nearly as a good a tv-movie, but it does speak more directly to the issues involved in selecting a judge.

The two types of arguments exist on entirely different planes and choosing a woman does not -- it hardly needs saying -- necessitate choosing a bad judge. O'Connors tenure demonstrates exactly that. But, of course, O'Connor was a good judge not because she was a woman but, in part, because she was a moderate. Her swing-voter role kept the Court from moving too far away, in general, from mainstream American expectations of what the judiciary should be, do and say. A far-right or far-left judge would have pushed the court towards extremism. It is certainly possible that President Bush will choose to replace the moderate O'Connor with a judge endorsed by right-wing extremists. Brown, for example,
is seen by some as a judicial activist, meaning she will stray from a strict interpretation of the Constitution to make a point. That could make her anathema to some conservative purists, who insist the job of a justice is to render decisions based on a close reading of the Constitution.
Similarly, Alberto Gonzales himself has found in Owen's record "an unconscionable act of judicial activism." This sort of nomination would give rise to the same rhetorical disengagement as characterized the appelate nominations. If, say, Owen or Brown were to be nominated for the SCOTUS seat, however, the right-wing talking points will certainly attempt to portray any objections to their candidacy as somehow discriminatory. They will ratchet up the rhetoric on this point in an attempt to make the issue heroic personal qualities and to obscure any straightforward evaluation of jurisprudence.

This tactic obviously just latches onto the nearest political selling point. The real reason Brown finds support in the Republican leadership is her radical feelings about the role of government in public life -- her opposition, for example, to zoning laws, on the grounds that putting a strip club next to an elementary school is only the correct interpretation of the scope of property rights. Owen finds support because she is seen as likely always to rule in favor of corporate privileges. That is, these nominees appeal to the Republican leadership for ideological reasons. Fair enough, but let's have that debate, rather than pretending people who object to judicial records on substantive grounds are simply sexists or racists.

In fact, it is ironic well past the point of hypocrisy for the Republican leadership to make this argument.

1. The right-wing base defiles O'Connor because they see her as a liberal. (It is ridiculous to claim that O'Connor is a liberal. The assertion shows just how extreme their political views can be and how far to the right the baselines have shifted. It is itself a symptom of the take-no-prisoners approach to ideological warfare that characterizes the dominant voice of the right-wing. Note also the use of the word 'traitor'.) The hypocrisy comes in evaluating one woman Justice on her ideology and evaluating another woman nominee on her personal story.

2. One of the issues on which right and left disagree most prominently is affirmative action. Opposition to affirmative action is one of the litmus tests that conservatives are likely to apply to judicial nominees. I heard a conservative commentator on the radio last night object to a Gonzales nomination because the Attorney General is "wrong on affirmative action." Yet Republicans are essentially adopting the rhetoric of affirmative action in arguing for some of these nominees. Whatever your position on affirmative action (and mine is ambivalent), this particular contextual dissonance should demonstrate the extent to which the rhetoric is self-serving and insincere.