Thursday, August 6, 2009

(Sotomayor gets confirmed today, which isn't a surprise; it's also not a surprise that the hearings played out in the way that I anticipated...well, admittedly, the Ricky Ricardo impression caught me flatfooted, but the lack of intellectual seriousness wasn't a surprise.  Note that my prediction that Republicans would completely ignore the impossibility of criticzing her as an activist while criticizing her vote in Ricci was entirely correct.  John McCain announced this week he'd be voting against her for that specific reason - that she's a judicial activist.  I'd love it if she were a judicial activist.  Just as during the campaign and now the first 6 months of the Administration, I'd love it if Obama were a wild eyed radical leftist.  That's the country I'd like to live in - the country I do live in however is one where no matter what Democrats do - Republicans will label them as socialists, which means the ideological continuum stretches from the most extreme form of right wingism to the milky moderate Democrats.  I've been making the same argument for fifteen years - the left should go as far left as it can if for no other reason than the widen the space of acceptable argument; media frames everything as "this side says this, and this side says that, so the truth must be in the middle" -- Remember when somehow CNN was the Clinton News Network, despite their employment of Pat Buchanan?  It plays into our desire for fairness, for moderation - I've been standing in front of students and teaching government for a decade, virtually every student believes "the truth is somewhere in the middle" - Republicans understood that early on, they recognized that if they moved further right - then the middle - where media and the public will seek - would then also move further right.  The more extreme they got - the more Democrats, accomodationists to the end - would move to the center.  It was the entire story of the 90s and hasn't stopped with the Obama Administration; the Sotomayor hearings, to double back to the below post, illustrated that perfectly - Republicans said "you're an activist!" and instead of Democrats saying "actually, she's not, she's in the middle - who the activists are are you guys, the radicals are the conservatives on this court" - instead they said, "nah, she's good, she locks up criminals and is pro business just like you guys like."  The result - Sotomayor becomes the limit of the acceptable left, she's defined as the outer edge of left wing judges who are able to ascend to the Court - and the left/right continuum shifts even further right.  These town hall disruptions are excellent examples - the right shouts and shouts and shouts - labeling what is going to wind up as a watered down, corporate friendly health care policy as socialized medicine - and the Democrats quietly accept that definition.  No single payer health care for us.  That's too radical.  Too extreme.  Un-american. 

Regardless, here's the Sotomayor piece - and then some torture stuff too.

An excellent piece discussing the Ricci decision is here, in Slate, by a Stanford Law professor. I'm less interested in discussing the merits of the decision (I'm with the minority - which, you know, received 4 votes as opposed to 0, despite what you might have heard on Fox) than reiterating a point I made prior to the decision in predicting this outcome (correctly).

Ricci could not possibly be a more activist decision - it is a decision that (1) substitutes the justices judgments for that of a democratically elected legislature and (2) forges brand new constitutional interpretation where law appeared to be settled.

That doesn't necessarily make it a bad decision on the merits, there are plenty of "activist" decisions that I love and think reflect the best parts of who we are, you can go to the Slate piece to read discussion about the merits, the point here is about Sotamayor and the rhetoric of the right about judicial activism. The truth is that the right labels as "activist" decisions it doesn't like in an attempt to say, "not only don't I want this result, not only don't I agree with this result, but this result is illegitimate, this result is not correctly within the purview of how judges should behave."

It's almost always a nakedly political argument; one could have a debate about the proper role of unelected judges within a democracy - but we don't have that debate, the debate we have is that conservatives criticize decisions they don't like by calling them activist.

Note that, in the Slate pieces and like minded pieces from the left to disagree with Ricci on the merits, you won't see similar demagoguery; you'll read disagreements with constitutional interpretation and notions of what justice requires, but instead of saying "only liberal judges are real judges - conservative judges just act politically" what you'll read (or should) is that all judges act politically. If I'm a judge (I won't be) I'm going to rule in ways that I feel are compelled by my understanding of what law and justice is.

The additional irony of Ricci is the opinion is loaded with (dare I say it) "empathy" for the white firefighters - which is related and also perfectly reasonable - effectively, when a court "empathizes" with a party, it isn't saying "I don't care about the merits, look how cute they are" a court is saying "there are qualities about the facts and circumstances of this party and this case of which judicial notice should be taken to serve the interests of justice."

However, none of this is likely to be understood by the US Senate in the Sotomayor hearings - conservatives will make a case against her based on her being "activist" and "empathetic" while simultaneously using the reversal in Ricci, which completely undermines their argument, as evidence to support these attacks.

Granted, nothing that will be said in the Senate is likely to be as, well, sad is the adjective I'm going to use because there isn't hyperbole sufficient to speak to it, as sad as Rush Limbaugh's reaction to the Ricci decision, which is that the Supreme Court ruled that Sotomayor was a racist.

I don't care if he's big or fat, and while I don't find him intellectually compelling, I don't think Rush Limbaugh is an idiot, but he's just not a serious minded individual. His role in our national discussion should be on par with Bubba the Love Sponge as opposed to William Buckley (did you hear him blame the Obama stimulus package for Sanford's "crossing the ultimate line - the sex line"?) and his place at the adult table makes the Republicans look like a dying party.

This is why I like writing about sports, and particularly using sports as a vehicle to write about everything else (the NBA Drafts have been good like that; I've been pleased with how those recaps have turned out) because you can see these same shortcomings in how the Sports Industrial Complex talks about things like chemistry.

Chemistry is bullshit, a label that sports media throws around when it wants to attribute dramatic elements to their made up narratives. Kobe wasn't a good teammate before and it fractured the Laker locker room and that's why they didn't win titles. Then Kobe won a title, so, he must be a good teammate now. Teams win not because of talent and execution that can be quantified and understood by sports fans - no, teams win because of a peculiar, mysterious alchemy that is only understood by sportswriters who are in locker rooms or at games and can look deeply in the faces of the athletes to read their body language and levels of heart and guts and moral fortitude. You know the essential position of the Catholic Church that helped lead to the Reformation was the Church was required to serve as mediator between you and god - you can't understand the holy book on your own - here is this entire structure that serves as a go-between - it will tell you what god says - the Church effectively said "there is universal truth - but you need us to tell you what it is." Conservatives claim a similar interpretive power over the Constitution - that only they are able to divine its meaning, that the framers had a clear and plain intent that must be followed - and they are the ones who are able to explain it. That it happens to line up perfectly with their political beliefs, that the same way they'd vote if they were legislators unconstrained by judicial robes, is entirely coincidental.

The self serving nature of that is evident - if you could figure out the truth yourself - if it were knowable without the church - then you don't need it.

If sports are quantifiable - if you can use statistics and your own observation to destermine who the best players are, who the best teams are - then you don't need the mysterious men in the giant robes on Around the Horn to tell you about the great chemistry of winning teams.

You should read/listen/watch sportswriters the same reason you should go to church, for the entertainment value of the stories.

But if you're looking for truth you're better off with math or science books.

Congratulations to Senator Al. Who would have thought that it would be the 20teens that would be the real Al Franken Decade? 60's a nice number, but the number of Democrats who belong to what the late Paul Wellstone used to call "the Democratic wing of the Democratic Party" is significantly smaller than that. Good to see (hopefully) one more.

A great piece from Glenn Greenwald on an interesting word choice from an obit in the NYTimes. American hypocrisy has not been so nakedly apparent on such a large scale in a very long time as it is when talking about torture.

What function do conservatives have in our national discourse? They aren't the limited government party, check the size of the military and the level of domestic surveilance they support. They aren't the personal freedom party, wanting complete state control over what you do with your body. They aren't even the "Country First" party, given the recent polls on the percentage of them that would like to secede (half of all Texas and Georgia republicans want their state to leave the union. It's 1840 all over again. I think John C Calhoun was at that pizza party they had in Virginia the other day. Calhoun/Palin would be a helluva ticket.)

But the traditional values party? Come on. If progressives definitionally want to move forward, don't conservatives have value in retaining tradition - in keeping us grounded on what makes America great?

You just can't believe that torture is okay. You just can't believe that. Not and pretend to uphold morality.

Americans have been tortured. And those who tortured Americans have been punished.

It's a moral issue. Black and white. Right and wrong. Conservatives are the people who understand the meaning of those terms, they're the party that scorns Foucault, that scoffs at the idea of "evolving standards" of "living documents" they are literalists - the Bible, the Constitution - words have fixed and unchanged meanings. Right?

So, if it was torture then, it's torture now. You break the law - you get punished.

What's more traditional than that?

LeBron walking off the court without shaking Dwight Howard's hand and the assassination of the abortion provider in Kansas struck me in a similar place.

(You: What?)

A skill that has faded from our public discourse is gradation among various levels of response. "I dislike this" doesn't need to always turn into "that person should die a painful death in the street."

Obama isn't just a President whose policies the right disagrees with, he's a Marxist/Communist/Fascist preparing re-education camps. The Texas (Edit, this was Rush Limbaugh from Wednesday June 3: "If al Qaeda wants to demolish the America we know and love, they better hurry, because Obama's beating them to it," That's kinda exactly what I'm talking about.) governor didn't just disagree with the bailout proposals, he raised the idea of secession. Sonia Sotomayor, whose judicial record, if anything, lacks the level of overarching progressive philosophy that I really, in a hard way, want to see from this first nominee (and she's 55 and diabetic, just saying) somehow became David Duke mixed with Bill Brennan on a bender.

There's probably some distance we should travel before we get to that spot.

LeBron James didn't show a lot of the "sportsmanship" that we've collectively decided is required of athletes following close out games of playoff series'. The reaction of sports radio was as if he had raped some teenage chambermaid in Colorado.

Yeah, you, for whatever reason, want to see LeBron shake hands. That's weird to me, but okay. And if he doesn't, maybe the proper response should be "that's too bad, he showed some immaturity" as opposed to "goddamn disrespectful punk - Magic woulda never done that."

Barry Bonds (here we go again) used steroids (along, clearly, with everyone else) and to some extent that aided in his performance. Sports Illustrated conducted a jihad against him. The level of rhetoric associated with Bonds at the height of the scandal far surpassed, say, what was hurled at Ray Lewis. If you did a survey of US sports fans attitudes toward athletes a year ago, I would guess Bonds's favorability rating would approximate OJ Simpson's.

Yeah, you, for whatever reason, think that Bonds's records are tainted. I'd point to innumerable conditions that made his pursuit more, as opposed to less, challenging than the nearest contenders, but okay. Maybe you react a little less harshly than "blackball him from the game, no Hall of Fame, tear down any sign of him at the Giants ballpark, throw a needle at him when he's on the field."

A student, not too far back, was upset with a professor of my acquaintance about something which blew away pretty easily. His first step was neither to bring it to the professor's attention, nor to make an appointment to see a supervisor, but instead to storm from class, demand that the other students follow him to the administrative offices, and demand that the professor be fired.

It was the second class meeting of the term.

Maybe, you know, a "can I see you for a second" request after class might have been a more appropriate response than "he must be fired immediately!"

I don't have a moral problem with abortion (or steroids, or LeBron, etc..) I could see where others might, and where the aborting of a fetus might be disturbing to some.

But we've created a debate where fetus is used interchangeably with baby - hell, we've got a debate where blastocysts and zygotes are used interchangeably with baby. It's not much of a leap, if you're going to say zygote = baby to say abortion = murder to say abortion doctors = Nazis to say "well, what would your moral obligation be if it were 1935 and you could kill Hitler?"

I've had, multiple times, conversations with students who make absolutely no moral distinction between a blastocyst and their Uncle Bill. None. They've seen the blown up pictures after all. They look like babies!

Sure, sperm are swimming around too. Blow them up (that's a photographic reference) and sperm sure look like subjects for moral consideration.

But those aren't thoughts they've ever had. They were taught that fertilization = person. The same way they were taught the earth's 6,000 year's old.

I'm not arguing for moderation or even civility. Sometimes, extreme language (and action) is needed. But you can't Chicken Little every proposed top marginal tax increase of 3%. Every moderate judge isn't a threat to the republic. Every poor display of athlete's behavior isn't Rae Carruth. Every OBGYN isn't Mengele. Our ability to determine when we are actually being threatened, when we are actually in peril, when we should actually be shouting from the rooftops, taking dramatic action, stopping normal behavior because normal behavior is taking us on a bullet train to hell is impaired when we're constantly barraged with hyperbole.

Which is probably the point. A little misdirection paints the extreme with the same bad brush. If the right yells "Obama's a secret Muslim, he's a sleeper agent, it's the Manchurian Candidate" and the left says "waterboarding is torture" the easiest thing for people to do is say "pah! look at how partisan both sides are."

Everything winds up funneled in the "truth is somewhere in the middle" place that we comfortably go to. Feels fair. We like things that feel fair. "Teach both sides" of how humans got here feels fair. That's how it was taught to me as an undergrad taking a freshman level Biology course "either, the collected body of science is correct and we've evolved from simpler life forms, a theory that has approximately the same strength of support as gravity -- or, Adam and Eve were placed here and lived at the same time as dinosaurs and all people came from their loins. Both are views. You can make up your own mind. Equal time for everyone."

Feels fair. You go into math class and say, "8x7 isn't 56, my religion says it's actually 52. Teach the controversy!" and presumably no one would pay attention to your demand of equal time, but maybe. Try it kids!

Abortion's either a fundamentally recognized right that women have dominion over their own bodies - or we're Nazis. That's the frame in which the debate sits. The rhetorical box in which we're stuck.

Well, not George Tiller. He's not in any rhetorical box. The box he's in is real.

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