The Enlightened Despot

When John McCain’s selection of Sarah Palin was announced, there was only one sensible response: this is a joke and, barring a DGLB situation, this election is over. Of course, very few people actually responded this way. There are four reasons for this, three of which aren’t that interesting, namely:

1. There are, obviously, a lot of people who are insane, stupid, and approve of Palin’s rhetoric when they can understand it. Naturally, these people don’t recognize that running one of their own is a mistake - just about everyone thinks that doing what they themselves approve of is also, conveniently enough, a cunning and effective strategy. Over at the Daily Kos, a lot of people think running Michael Moore would be a stroke of political genius.
2. People too sane to approve of Palin but who wanted McCain to win had an obvious incentive to pretend the Empress had clothes, or at least to refrain from gawking at her.
3. A lot of liberals were desperate to find reasons to panic and despair at a time when empirical evidence was not on their side. For whatever reason, Democrats are like fans of an ill-fated sports franchise, always waiting for their guys to blow it so they can get back to grumbling.

As I said, none of these are interesting, because none of them explain why people are still debating Palin and various Palin activities. The problem is that people who think and write about politics can only agree about counterfactuals. No one will disagree with me now if I say that it’s a good thing Obama didn’t choose Jesse Jackson as his running mate, but if he had actually chosen Jackson, you’d start to see the argument that his hymie town rhetoric might help Obama’s problems in Appalachia.

Consensus is boring, and it’s more fun to be thought-provoking than it is to be right. But sometimes things happen that really aren’t that interesting or difficult to pin down. Sarah Palin is a crazy person and there is nothing fox-like about it. She is incapable of telling the truth. She is perpetually mired in scandal. All of this was clear within a few hours of her selection. Since then, there really hasn’t been anything interesting to add to that analysis.

A popular uprising in Iran couldn’t do it. A military coup(ish) in Honduras didn’t have a chance. The massive scandal over at the WaPo didn’t being to rouse me. But the Enlightened Despot cannot sit back and watch anymore. Sarah Palin is stepping down as governor of Alaska. The jury is still out on whether this is foreshadowing for a major scandal revelation or the first step in her 2012 presidential campaign. As a testament to the staggering ability of newsmakers to pretend that whatever is going on must present interesting topics for debate, people are now seriously debating whether or not this is a clever strategy.

Ninja, please. It’s conceivable that she is so far gone she thinks this is how to run for president, but it’s much more likely that a scandal even Palin can’t shrug off is about to drop. Either way, as exciting as the next few weeks might be, she is on the fast-track toward irrelevance. This makes me too sad to say I told you so. She will be missed.

A quote from John Keegan:

Unchecked, unguided, America has always risked being a Cyclops in world affairs, a blinded giant striking wildly at cunning outsiders.

Lisa Schiffren has the scoop:

If Mark Krikorian and the new conventional wisdom are right, and nominating one “Nuyorican” woman (who, as Jonah noted earlier, is not even properly the child of immigrants, as Puerto Ricans are citizens) is all it takes to allow the White House to delay indefinitely the messy, no-win issue of amnesty for 10 million illegal aliens, mostly of Hispanic origin, few of Princeton/Yale education — that is a strategy that should not be subjected to too much conservative scrutiny. Don’t look a gift horse in the mouth, as the saying goes. The less talented you think Sonia Sotomayor is, the easier a trade this should be.

If it works, the White House should consider other applications. Everyone suspects that President Obama has been fibbing about his sympathies in the gay-marriage debate (he supported it before he opposed it) because he understands the potential political fallout (not least among black voters) from advocating, or helping to advance, same-sex marriage. Gay activists are coming to suspect that they’ve been played, yet again, by a Democratic administration which they believed to be sympathetic. Can they be bought off with a SCOTUS appointment? Would the nominee have to be out? Perhaps a genuinely brilliant, prominent lesbian constitutional law scholar would be a reasonable sop. There is one on the short lists. For conservatives, of course, that is a dicier deal than the Sotomayor tradeoff — since a genuinely brilliant constitutional scholar might advance the left-wing agenda a little too effectively.

Did I say, “if it works”? We know this strategy works — at least with the rank and file. Case in point: President Obama regularly makes plain his disdain for Israel’s democratically elected leaders; his almost visceral desire to force Israel to bend to his vision of an accommodation with the Palestinians; and his clear indifference to Israel’s existential security from threats of nuclear annihilation. Yet large numbers of liberal American Jews, who in many respects are quite intelligent, continue to point to Rahm Emanuel and David Axelrod — two high-level political advisor/enforcers lacking in tenure or the ability to make law or interpret the constitution (not yet a redundant statement) — and smile about how much they love the president and believe that he loves them back.

My kingdom for a horse? My huge, game-changing cultural issue for a seat on the court? The Obama version of “triangulation”? Whatever.

That’s how you crazy!

He’s no Danny MacAskill, but he sure can move:

(h/t Crapweasel)

• How about that? An enthusiastic reception and the most flattering picture I’ve seen of her from the New York Post. Hometown love trumps ideology. Incidentally, you can count on seeing a headline reading ‘SOTOMAJORITY’ the first time she writes an important majority opinion. It’s not quite as obvious in advance as the ‘Exit Sandman‘ headline we’ll see in 2010, but it’s close.
• The controversy over Sotomayor’s ‘wise Latina’ comments doesn’t, I think, have legs. It really is superficially offensive, pace the counter-outrage on the left, and I’m still not wild about it in context. At the very least, she could have been more careful with her words. But it’s pretty clear that she was referring to judgement on issues concerning women and minorities. She didn’t mean that a wise Latina will just be a better judge than a white man in general, though that is what she said. She will no doubt get grilled about this, but it won’t change the fact that she is a shoo-in.
• All the griping about identity politics and affirmative action is ugly. It’s all well and good to argue against preferential treatment and lowered standards on the basis of race as a general practice, but if you really think Sotomayor is a mediocre talent who got the nod because she is hispanic, then clearly the part to focus on is that she is a mediocre talent. Your empirical evidence for this fact is what lead you to conclude that racial preferences are afoot, right? The theory about Obama’s motivations is really just a side show, not particularly germane to the discussion. Of course, it’s a lot easier to demonstrate that someone is a Latina than that she is incompetent. But laziness is no defense for racism.
• You will hear a lot about how Sotomayor’s decisions are overturned at a high rate. Nate Silver points out that this is based on a very small sample, and that the sample actually shows the opposite. So you can put that in the straightforward lie file. The Volokh Conspiracy tries to plug Sotomayor into the results of a more rigorous statistical study, which shows her to be more or less in the middle of the pack. The methodology is murky at best, though. I doubt that there is any statistical shortcut here - if you want to figure out how smart and capable a judge is, you just have to read some of her opinions. Alternatively, you could acknowledge that she will be confirmed, for good or ill, and change the channel.

In Afghanistan, as it is everywhere, war is green, noisy, and difficult to follow:

UPDATE: The video seems to have disappeared. If a find a working link, I’ll fix it.

• President Barack Obama announced his nominee to replace David Souter: Sonia Sotomayor. Jeffery Rosen wishes conservatives wouldn’t use his critical article about her from a few days ago as a source for criticism of her now. He won’t get his wish.
• California’s highest court upheld Proposition 8, but maintained that existing same-sex marriages were still recognized.
• Rumblings that North Korea is only getting warmed up in its latest campaign to bum the rest of the world out.
• Everything you learned in sex-ed was a lie.

Law professor John Culhane responds to my earlier post thus:

Your vituperative post (”this man is a law professor”) overlooks the possibility that I’d read and digested the briefs, heard the three hours of oral argument, and understood the legal issues on both sides before the ruling was handed down. In fact, though, all of these things are true. My reaction was based on what I knew the court to have done, and I had a pretty good sense of the reasons it might have given for doing so. Mostly, I was right. (I’ve since done a sort of long legal analysis, but one geared for the “lay” audience.)

Admittedly, I could have been clearer about what I meant by “blinking”; it’s not surprising you were at a loss. What I meant, and should have conveyed more clearly, is that the court, with at least a couple of key justices soon up for retention, was intimidated by the populist rhetoric to the extent that its judgment was occluded; a judgment that I thought should have gone the other way, pretty much along the lines expressed in Justice Moreno’s dissent.

I confess freely that I was writing with a good deal of vituperativity. Public discourse on matters of jurisprudence have a way of filling me with mind-numbing despair, so perhaps I was lobbing criticisms a bit too erratically, rather than inflicting targeted scorn on the world, as per usual. But I would have hoped it was clear that Culhane’s understanding of the law wasn’t my target here. I was highlighting the post he actually wrote as an example of the way we think and talk about judicial review.

I suppose I did “overlook[] the possibility” that he had been through the briefs already, but not out of nastiness, but simply because it didn’t matter much to the point I was making, which is that the response of a law professor to this news was a condemnation of the court that made no reference to the legal merits of the case. I also pointed out, and was much nastier about, a post from an opponent of gay marriage, which also ignored the legal questions at hand.

The clarification over the “blinking” business is helpful. That was certainly the heart of my complaint, so I’m happy it was merely a misunderstanding on my part. But I do think that the order of operations here - a post reacting to the awful news, with a legal explanation for the lay audience to follow - reinforces my point that the nuts and bolts of legal reasoning are essentially epiphenomenal to the process through which people make up their minds about these issues. (Culhane’s charge that my post was ‘vituperative’ clearly establishes that it is Vocabulary Day, thus licensing my use of ‘epiphenomenal’. There’s  precedent here.) There’s nothing particularly original or groundbreaking about that observation, but that doesn’t make it any less accurate.

So, John Culhane, I’m sorry I spilled my vituperation on you, it was to a large extent unwarranted. I still think the fact that you can blog about the tragedy of a decision to an audience that you assume does not yet have enough information to know what is wrong with that decision is a pretty good example of the cognitive dissonance our society maintains regarding judicial matters. But I also realize that actually being bothered by this puts me in a small, crazy minority. And, as should go without saying at this point, on the actual substance at issue here I am firmly on your side, not Maggie Gallagher’s.

As was widely expected, California’s Supreme Court has upheld Proposition 8, which amended the state’s constitution to ban gay marriage, but held that existing gay marriages were still legally valid. Here are two reactions that sum up why I find constitutional law so depressing. First, John Culhane:

Yet I’m overcome by a profound sense of grief. The courts are supposed to be on the side of justice and protection of the rights of minorities. This time, the California Supreme Court — admittedly with precedential justification — blinked.

They blinked! Now, we all know from our dear friend Sarah Palin that blinking is a terrible thing to do, but I’m at a loss as to what constitutes judicial blinking. Culhane notes that he hasn’t read the decision yet, and legal analysis will follow. But he already knows the court did wrong. Not based on the merits of the case, mind you, but because courts are supposed to stick up for minorities. This man is a law professor.

Now, here’s Maggie Gallagher, who is thrilled, because she doesn’t like gay people, but cautious, because she doesn’t like Californians or judges either:

Six to one. Even in California there is only one justice willing to strip 7 million voters of their core civil right, expressly guaranteed, to amend their own constitution. I should be grateful, right?

Amending one’s constitution by a direct majority vote of the electorate is a core civil right? That’s bad news for anyone who lives in, say, the United States of America where no such right exists. True, Californians are expressly granted that right in regards to their Constitution. But the bar for revising the Constitution is different. The legality of Prop 8 comes down to whether it constitutes and amendment or a revision. Perhaps Gallagher is aware of this, but the argument she actually puts forward is that amending constitutions is a core civil right. Neat.

For what it’s worth, ‘revision’ - as opposed to ‘amendment’ - refers to a “substantial alteration of the entire constitution rather than to a less extensive change in one or more of its provisions.” That’s pretty vague, but it’s as good as it gets. You might think that the treatment of marriage is pretty obviously just a set of provisions within the document. On the other hand, you might think changing the Constitution froma document that doesn’t draw distinctions between the union of men and women and the union of men and men or women and women to one that does is a pretty substantial, overarching disaster. I’m not really sure, but I am sure that just about nobody cares.

Which is fine, so far as it goes. I’m not wild about giving practically unlimited legislative authority to unelected lawyers, but it’s a system that’s worked well enough for us so far, and it’s not going anywhere. What is frustrating is the near-universal denial about what is going on. As far as I can tell, these three things are true of almost everyone:

1.) They believe that legislators should interpret the law, rather than read into it what they want. ‘Legislating from the bench’ is a bad thing.

2.) The right decision for the courts to make on the major Constitutional issues of contention (abortion, affirmative action, gay rights, abortion, abortion, etc.) is - happily! - the decision whose outcome lines up most closely with what they think the law should be.

3.) They have absolutely no idea what the legal arguments on which these questions balance are. Not a clue. There are core, Constitutionally guarunteed rights that people are certain are in there, but they wouldn’t know what Article to open to to find them.

This is a fairly ludicrous combination, but I find it to be true even of most well-educated people. There are some differences of degree, especially with regard to item 1. Conservatives will talk about strict, literal interpretations, whereas liberals are generally more happy with talk about ‘the spirit of the law’, whatever that might be. But this is nonsense. Conservatives want the courts to do conservative things and liberals want them to do liberal things. How many conservatives had to look at precedents on the distinction between ‘amendment’ and ‘revision’ in Californian Constitutional Law?

There are some lefties - especially younger ones, it seems to me - who are pretty openly happy about saying they think Justices should make stuff up to justify decisions that will help people. But for the most part, conversation about the Supreme Court is located firmly within a collective fantasy about what it does. And it hurts my head.

On the other hand, I note with some satisfaction that Sotomayor is - according to our president, anyway - a life-long Yankees fan. So her heart is in the right place. And that’s what matters, isn’t it?

Tom Goldstein has a good primer on what to expect in the coming nomination fight. He goes over four lines of attack that we’re likely to see from right-wing ideologues. Here’s the first:

Opponents’ first claim – likely stated obliquely and only on background – will be that Judge Sotomayor is not smart enough for the job. This is a critical ground for the White House to capture. The public expects Supreme Court Justices to be brilliant.

Obliquely, eh? Only on background, you say? Rick Brookhiser, moments after the announcement, responding to Sotomayor’s claim that “a wise Latina woman” could come to a more informed conclusion on some issues than a white man:

It might be that we need a wise Latina, but doesn’t saying so qualify you as a dumb Latina?

That didn’t take long.

… is that we’ll have a SCOTUS announcement within the next couple of hours. If I’ve been vetted, they’ve been subtle.

UPDATE: Just about everyone on earth is reporting that it will be Sotomayor, which makes one wonder why they have to bother with the actual announcement. Does saying the word ‘historic’ at press conferences never get old?

A long weekend, but a short roundup due to limited activity around the blogosphere and in the world of politics over the holiday - though Kim Jong Il apparently didn’t get the memo…

• … as he decided to carry out a nuclear test today. As symbolic gestures go, making a fuss when failed states run by crazy people play with nuclear weapons is a pretty good use of outrage, but the big picture isn’t all that different from what it was yesterday. The DPRK has a much more advanced nuclear program than we’d like, but is in no position to threaten us directly at any time in the near- or medium-term.
• Speaking of nuclear weapons and the crazy people that want them, Fareed Zakaria is arguing that Iran might not want to be a nuclear power after all. His evidence: statements by Iranian politicians. If that sounds pretty naive to you, I’m not unsympathetic, but his argument - that an Islamist government that thought it was about to go nuclear would have to be pretty stupid to keep calling the Bomb un-Islamic - has some teeth to it. I wouldn’t sell your stock in BunkerBuilders just yet, though.
• I have a guest internet clogging up Alaska’s tubes.

This has been a very video-heavy few days, but I can’t resist posting this. I promise there will be real posts with words in them again soon: