The Enlightened Despot

• 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.

• 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?

This amazing photograph comes via Michael Crowley. I’m speechless, so on to the links:

• Marc Ambinder reports that Obama will announce his nominee to replace Justice Souter sometime next week, probably toward the end of the week. I predict a week and a half of baseless speculation, followed by widespread outrage.
• Bill Clinton is being sent to Haiti, as good a place as any to keep him.
• His wife, meanwhile, is one of the subjects of a new J-Mart story. Supposedly, John Coale - Hillary in the primaries, Palin aide in the general, and Fox News in-law until death do them part - attempted to broker a deal in which Sarah Palin’s PAC (SarahPAC! Really!) would help out with Hillary Clinton’s campaign debt in exchange for which the Clintons would become her friends in a high-profile way, or make left wing Palin critics back off, or… something. Chalk full of sources-close-to-so-and-so, it’s the sort of piece that inspires outrage in the sorts of people who get outraged about journalistic practices.
• Speaking of Sarah Palin, over at the Mudflats, the results are in for the Name Sarah Palin’s Book competition. How Winkin’, Blinkin’, and Todd failed to win is beyond me. Carpe per Diem is also pretty clever.
• Maureen Dowd was busted stealing a paragraph from Talking Point’s Memo. Inexplicably, rather than going with the tried-and-true excuse that she meant to provide a citation, she claimed that she’d never seen the TPM post, and that she got the idea for the “line” from a friend who must have read it, which is a curious explanation for the near-verbatim reproduction of an over 40-word sentence.
• Jerry Taylor continued to be savaged by the rank-and-file over at the National Review. Today he is guilty of “pseudo-principled indifference to public opinion”, the eigth deadly sin.
• Ending two decades of civil war, and proving that these bullet points aren’t ordered by importance, the Tamil Tigers have been defeated, supposedly for good. Here’s hoping.

And, finally, our quote of the day, which is actually quite a few days old, from Matt Yglesias:

I’m actually 100 percent positive that were Oprah on the Supreme Court she would do a good job. In a lot of ways, it’s just not that difficult a job.

More effort is put into rebutting this notion than it deserves here.

First they took the joy out of disliking the French. Now, it seems, Dick Cheney fans have made me into a leftist. Commenter Dan challenges me:

It would be interesting to hear you mention, if not discuss, your crazy right-wing views. Your common ground with lefty intellectuals, which you mention above, is much more apparent in many of your posts. Getting a sense of where you differ would help put things in perspective.

It’s true, much of what I feel the need to write about these days is more in tune with the left than the right, but I have been considered a right-wing extremist by most of the people around me for most of my life, and my views haven’t changed all that much. In the most abbreviated manner possible, here’s why I think I still deserve my conservative card:

• Many people all over the political spectrum think that it is absurd that someone can be old enough to die for his country, but not old enough to drink alchohol. I agree, but I think this understates the problem: an eighteen year-old is also old enough to chose whether or not to wear a seatbelt while driving with an AK-47 across his lap to the corner store to pick up a few crack rocks to pay the hookers at his favorite local casino.
• Some of the activities described above might be hazardous to the practitioner’s health. I don’t think this constitutes even a prima facie case for making them illegal. It is, however, a serious problem for nationalized healthcare, because creating a fiscal obligation for the government to care about how its citizens treat themselves is a very, very bad thing.
• As I’ve said before, the facts that we don’t have anything like a free market in healthcare, that there is no serious movement to create one, and that the current system is a fiscal disaster constitute sufficient reason to embrace a reform along the lines envisioned by Democrats. But that doesn’t change the fact that I deem the notion that the wealthy shouldn’t be able to pay for better healthcare than is available to the rest of the population to be thoroughly evil. I also think absolutely everyone stands to suffer from the (very popular) impulse to reduce profit margins for the pharmeceuticals industry.
• As delighted as I am by Barack Obama’s victory, I am constantly depressed by reminders that he wants Supreme Court justices “who [understand] justice is not just about some abstract legal theory, but about how laws affect Americans’ daily lives.” I’m not sure what justice is, but if it has to do with Americans’ daily lives, the SCOTUS shouldn’t have anything to do with it. The rule of law would be a much more serious force in the world if we had judges who had never met any Americans and didn’t know anything about their daily lives. Sadly, the fields of linguistics and artificial intelligence are not yet advanced enough to do away with these people altogether, but I wish they were.
• I recognize that if people took the Constitution seriously, there would be a lot of changes to the law of which I wouldn’t approve, and I have no problem with that. On the other hand, even on the issues over which I agree with the left, I wouldn’t really share their pain. Laws against abortion are a bad, bad thing, but thankfully I like federalism every bit as much as I like the Constitution - that is, as much as Republicans pretend to. If Constitutional law were a serious enterprise, Kansas would be allowed to ban abortions, which is too bad, but not all that much worse than the fact that Iran doesn’t allow them.
• It seems fairly clear to me that the recent spike in inequality in the US is in part due to legal and regulatory failings that benefit the wealthy, and that should be addressed. But inequality, in and of itself, doesn’t keep me up at night.
• I hate to see people slaughtered in Darfur or Rwanda as much as the next guy, but I’m not convinced that using military force for purely humanitarian reasons is ever such a hot idea.
• I don’t even know who Terry McAuliffe is running against, because I find his continued existing too depressing to think about for more than a few minutes at a time. Assuming it isn’t David Duke, I would vote for whomever it is if I were a Virginian.
• Worries about the environmental and labor policies of third world countries are nothing but window-dressing for protectionism to curry favor with labor unions. Sweat shops don’t say much for the moral compasses of the people who operate them, but on the whole, they are a good thing for the countries in which they operate, and for the people who get to work in them. That is, after all, how they recruit workers. Furthermore, pretending that farmers are so awesomely American that we should pay them for their trouble is not just stupid, it’s evil.
• I do not believe in a supreme being, but I suppose I must believe in hell, because I am absolutely certain that there is a special place in it reserved for the folks who have inflicted upon the owners of bars and restaurants in major American cities the requirement that they ban smoking and transfats

There’s more, but I hope this is sufficient. I don’t approve of torture and I don’t hate gay people or science. I realize those are all deep red sentiments these days, but I suspect it won’t be more than a decade or so before the Republicans once again strike me as the less loathesome party.

Megan McArdle moves past the specifics of the Citi bailout, which just about everyone seems to think are awful, to a more general worry that the entire bailout project may have failed:

But I’m becoming increasingly convinced that the original theory of the bailout–that it would step in and provide a firewall to prevent future failures–has been proven wrong.  I still think it was worth trying, prospectively; there seemed to be at the time, a reasonable prospect that it would save money in the long run by forestalling the need for future bailouts.  But in hindsight, it hasn’t worked.

(I’m well aware that I am about to be slammed for supporting the bailout by a large number of people with shaky command of the concept of “uncertainty”.  Hopefully, at least a few of them will pause to consider that confusing getting good results with having a good decision making process is exactly the cognitive error that brought us to this disaster in the first place.)

Her point about evaluating the decision is well taken. As to the specific conclusion that the bailout hasn’t worked, I won’t claim to have an opinion. What would it mean if she were right? Should we stop with bailouts altogether? A weighted average of the smart and informed still seems to favor a limited bailout of GM that involves serious down-sizing and restructuring, possibly via Chapter 11 bankruptcy, so I’m tentatively behind that, but it’s all pretty theoretical, as almost everyone seems to agree that what we will in fact do is give GM a lot of money without substantive strings attached.

Megan also has a nice rundown on things that did and didn’t work for FDR, as a guide to more drastic action if things worsen:

What does actually seem to have worked in the Great Depression is not the second banking holiday, which was arguably something of a disaster on many levels, but what the Roosevelt administration did with the second banking panic:  sent auditors out to every bank in the country to ascertain whether they were solvent or not.

This process is more difficult now, because it seems to me that the instruments that 1930 banks were dealing with were basically understood.

…

Nonetheless, I think it would make sense to take some of those laid-off bankers and put them to work under more experienced regulators, and try to develop some metrics for communicating the creditworthyness of the banks.  The ad-hoc nature of the response may have initially meant flexibility, but now it just means panic.

What else are we pretty sure worked?  The FDIC, which eased peoples’ fears and stopped bank runs from taking down solvent banks.  Monetary stimulus seems to have worked somewhat, although less effectively than is usual.

All else is more controversial.  Things like work relief programs may have done a good job at alleviating misery–and I find myself annoyed that palliative measures are being sold virtually exclusively as fiscal stimulus.  The stimulative virtues of extended unemployment benefits are not particularly exciting, but they are an excellent way to ensure that families hit hard by a recession do not suffer from want.  This is important–and so affordable, too!

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