Saturday, July 16, 2005

Clinton Positions Herself

I'm going out to dinner, and then I have a certain book to read, so this'll probably be it for me tonight. Hillary Clinton is calling for a probe on Rockstar Games (in)famous Grand Theft Auto: San Andreas video game. The already controversial game has re-entered the spotlight after an internet download allowed players to simulate sex acts with characters on-screen.

Clinton, in my opinion, is playing this exactly right. She is loudly condemning the explicit content of games as "spiraling out of control," while simultanously limiting the probe only to the question of whether the modification unlocks hidden code written by Rockstar, or, as Rockstar claims, "is the result of hackers disassembling and then combining, recompiling and altering the game's source code." This is an important distinction, as it determines whether Rockstar can be morally/legally liable. But this is unimportant on the political level, where Clinton will score points with the married white women who will be critical if she is to have a chance in 2008.

Friday, July 15, 2005

Here to There

A truly great post on one Englishman's political growth in the wake of the Subway Bombings, 9/11, and some time in America. Though I came to where I am from a different starting point than he did, I relate entirely to his sympathies and ultimate disenchantment with the whole "America is the root of all evil" wing of the left. In seeing all the things we do and have done wrong in the world and at home, it is easy to forget the good we've done as well. The difficulty is in criticizing without forgetting the big picture. It's a tough line to toe--lord knows I've missed it plenty.

Anyway, read. And thanks to Sullivan for the link.

Internal Critic

On my commute to work today, I had an epiphany. I decided that in my natural state, I am an "internal critic." I then spent the rest of the trip trying to figure out what that term meant.

I know where I first heard the phrase "internal critic." It was in the context of my readings on Critical Race Theory--referring to scholars who work within the overall CRT framework but then criticize how the movement denigrates, disparages, or otherwise marginalizes certain people, often the very people it purports to be helping. But presumably, an internal critic would include any person who both a) identifies with and/or supports a given cause and b) regularly attacks perceived deficiencies within that movement.

In my mind, there are two types of internal critics--whom I'll label "purists" and "skeptics." Purists are characterized by a heavy reliance on abstract principles. For example, a purist defender of color blindness might criticize Affirmative Action as relying on race-based classifications--even if s/he is aware that some form of race conscious action is necessary to remedy racial discrimination. This is also heavily deontological--disagreeable results may be unfortunate, but they don't "matter" in a normative sense.

Many hardline Democrats and Republicans fall into this category. On the positive end, purism can often be a remedy to partisanship. Justice Scalia, for example, is quite clearly a purist--he abhors the use of pragmatic, results-based analysis to reach legal decisions. This sometimes yields "surprising" results, for example, his rulings in the Hamdi and Texas v. Johnson cases. Whereas a true partisan will freely sacrifice her principles to the altar of party loyalty, a purist would never do that. In theory, liberalism is purist--it is a narrative about constant human progress and an eventual utopian state where everyone is free to guide their own life, people are treated as individuals, and discrimination does not exist (among other attributes).

On the negative side, purism often leads to wholly absurd positions. They follow the principles they believe in up to and over the edge of their logical cliffs. To pick on Scalia again, his purist view of the 1st amendment lead him to explicitly state that the constitution allows discrimination in favor of monotheistic religions (Van Orden v. Perry and McCreary County v. ACLU)--and he has argued in the past that it also let's laws that infringe on the free exercise rights of religion pass constitutional muster no matter how unimportant the government's interest in maintaining the law is.

In many ways, skeptical internal critics are the reverse of purists. Purists are so committed to their principles that they'll follow them even when they yield admittedly distasteful results. Skeptics are inherently distrustful of the principles because they see that so often they've led to bad results. I count myself amongst this group. For example, if you read my posts on democracy, e.g. here and here, you'd probably conclude that I hate democracy. Yet, as long time readers of this blog know, when presented with the choice of democracy and--well, virtually anything else, I'm a vociferous advocate for democracy. With regards to free markets, I feel the same way. I see very little other economic option besides capitalism--the history of socialism and communism makes them wholly unappealing and unrealistic alternatives. Yet, I am very disturbed by the way capitalism reifies pre-existing social inequalities, forcibly stratifies society into winners and losers, encourages actors to "go along get along" with dominant prejudiced attitudes, is destructive of the environment, and other problems.

One impact of this position is that I don't have many overarching principles I'd adhere to at any cost--because I believe that to do so is inherently destructive and potentially genocidal (fundamental opposition to genocide is perhaps the one exception I make). Every theory, it is said, breaks down at the margins--at some extreme it just stops making sense. Nazism resulted from a radical belief in human perfectibility--and the corresponding belief that anybody not "perfect" (or who didn't subscribe to the Nazis view of "perfection") was clearly inferior and worthy of extermination. This risk is not unique to the Nazis. As I have blogged before, any theory asserting perfectibility and universality carries within it the seeds of oppression. While Nazism explicitly valued this, it has manifested itself in theories more facially benign. A blind faith in capitalism requires one to ignore the starving homeless man, ignored by the system and individuals individually deciding that he "deserves" his wretched state. And certainly, the universalist element in religions has time and time again resulted in faiths with good messages engaging in the most horrific of atrocities. Simply put, there is no and never will be any "perfect faith." The trick, then, is balance--to place values to support and simultaneously undermine each other--rather than place one above all on the pantheon and then turn away as the babies begin to get sacrificed upon the altar.

As a result of this, instead of building theories up, I prefer to break them down--probing for weaknesses, potential improvements, and structural blindspots. Indeed, the skepticism I hold toward overarching metatheories helps root my support for democracy--a governmental system which definitionally is undecided about its end goals. Yet, this same deconstructive impulse leads me to critique the aspects of democracy which seem imperial or distorted--for example, politicians acting out of self-interest rather than national interest or coalitions forming with the explicit aim to subordinate a stigmatized minority. Indeed, I would argue that like all systems, democracy ultimately is not self-contained--what would happen if 51% of the people voted to deprive the other 49% of their right to vote? In democracy, like every other system, some outside influence that is "beyond" democracy is necessary to maintain democracy.

In a way, this perspective is liberating, because I can work both inside and outside dominant systems and schema to build a better world. But on the other hand, this philosophy is quite dizzying, because it cannot have an anchor. It is unstable and always in flux. There is no end to the critique, no safe harbor at which point I can say I've "succeeded." It's exhausting at times.

Anyway, that's where I'm at, and that's why you get my oft peculiar mix of political belief and rhetoric.

Thursday, July 14, 2005

Balancing Act

Over at Pseudo-Polymath, Mark Olsen disputes my argument that Supreme Court nominees should be aggressively questioned on Hamiltonian grounds (specifically, Federalist #76). Mark is someone I highly respect, and his opinions deserve to be taken seriously. Still, I disagree with him here.

Ultimately, his (Hamilton's) argument boils down to the claim that having Senators query into the background, leanings, tendencies, etc. of judicial candidates will lead them to interject their personal grievances or biases, which leads to malicious attacks and fights. Empirically, this is proven by the current state of affairs in the Senate--the rancor over judicial nominees can be directly traced to the newly active role Senators have been taking in judicial nominations. Hence, Mark argues, Senators should show more deference to the President so that the process becomes more cordial and less polarized (since the president can't polarize himself, leaving it to him ends polarization).

In a way, this is parallel to my generic critique of Democracy. To recap, the "dream" of Democracy, at least for all of us politically attuned folk, is for a nice, deliberative Republic in which all citizens rationally discuss the issues presented, fairly consider opposing views, then faithfully elect similar-minded representatives who will implement these views into law without trying to settle political scores or pander for votes. The reality, as we know, is far different--issues aren't rationally discussed, politicians nakedly pursue personal influence over the national interest, and most citizens are entirely disengaged from the process--stopping only so long to see the latest "Swift Boats" ad. At times, it's enough for the politically aware among us to despair entirely, and say
"Enough! If I was dictator, none of these problems would exist."

And perhaps they wouldn't. A dictatorship of me might (emphasized) be rational, empathetic, deliberative, and open-minded--precisely those characteristics Democracy isn't. It also would be elitist, exclusivist, unaccountable, and wholly illegitimate. So I push my megalomaniac ambitions to the side, and recognize that for all its problems, Democracy remains the best of admittedly flawed options.

I feel roughly the same way about judicial nominations. Presumably, if we lived in some Habermasian utopia where politicians didn't make attacks just for the sake of politics and people could and would have rational political conversations, Mark would not mind Senators chipping in on judicial nominations. Indeed, he might favor it, since it is generally better to get more opinions and perspectives on weighty matters than less. But since we don't live in that world, Mark would argue that we must regrettably abandon that noble dream. This is an understandable reaction, but it is as wrong as the impulse to chuck out democracy because so many of its participants present (to quote Hamilton) "a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly." Ultimately, our system is premised on the presentation, analysis, debate, and refutation of a wide range of viewpoints and ideas. It cannot function otherwise, and the convenience (and cordialness) of replacing that debate (the sin qua non of "advise and consent") with an executive "trust me" does not outweigh that value.

What you have to remember about Hamilton is that he was an unabashed advocate for extreme executive power. He did not trust assemblies and he did not trust the people. This view has some merit. But it is not the view either our constitution or our republic has adopted. The proper response to a damaged democratic process is not to abandon the process, it is to commit oneself to healing it. Judicial nominations, like any other policy issue of import and weight, requires a diverse array of voices to be heard. Pluralism is if anything more important in high stakes situations such as this. And so I defend debate--warts and all. There is no other way consistent with our traditions, with our constitution, with our democracy.

Wednesday, July 13, 2005

They're Boycotting WHAT? And Other Thoughts on Reparations

Over at The Moderate Voice, Joe Gandelman notes the revival of slave reparations by American companies. Though these aren't your stereotypical reparations--they're offering scholarships and education funds, not blanket checks--TMV still believes that any effort by groups like the NAACP to boycott companies who refuse to pay will be met by "a boycott by a counter group (or two) to get businesses not to participate."

I don't think that will happen, especially since the reparations are not in the form of plain cash. It's easy for commentators to grumble about reparations in the abstract. They can recite tired old arguments like "it assigns blame to innocent parties" and "it isn't what we should focus on today" (see below for more). But opposing a real-life policy of scholarship funds for minorities--and taking it to the extreme of boycotting companies that provide them? I'm cynical about racial relations in America, and I can't imagine any group stupid enough to invite that much bad press. Because, let's be honest--they're boycotting a company because said company is giving scholarships to blacks. That's how it will be reported in the media, and that's how the casual American will see it. Gee, how could that ever be taken the wrong way?

Of course, the issue of reparations as a normative matter is entirely separate. Yet, after a fair bit of the thought on the issue, I've concluded that reparations are a moral obligation for a country which too long has shirked it's obligations to remedy systematic white supremacy, both past (de jure) and present (de facto). Larry Bernard argues that reparations are wrong because
Reparations ignores [sic] the fact that the US government/Colonial government was a force that freed many slaves.
the role of abolitionists to the freedom of slaves.
the role of Africans in selling them into slavery.

The blame can go back to multiple countries that don't even have the capacity to pay for reparations.

Arguments which, themselves, miss the point. First of all, Bernard's history is way too rosy. In some cases at some times, the US government was a force for abolition. At other times, it was a force for enslavement. For the vast majority of the time (at least up until Brown in 1954), American governments were nearly universally a force for racial subordination, slavery or no. I think it's historically undeniable that America, as a nation, is still well in the negative in terms of its racial debts--a fact that exists independent of whatever blame specific African tribes had in the slave trade (this issue is also severable--as Bernard admits, most African nations couldn't even afford to pay reparations, so that "solution" is inapplicable. But while they can't, we can). But even if you don't believe that, the narrative he tells has absolutely nothing to do with corporations that benefited from slavery, which is where the NAACP is pressing the issue.

Second, Bernard mentions the role of abolitionists in freeing the slaves. I do not deny their role, but I question the relevancy to the debate at hand. The implicit argument Bernard is making is that "reparations damage white people, which is unfair because not only is it untrue that all whites were slave owners, but some whites affirmatively opposed slavery." The problem is twofold. First, again, the NAACP is specifically focusing on companies which benefited from slavery--not whites in general. Second and more importantly, however, it misconstrues the purpose of reparations. It isn't to "get back at Whitey." Rather, it is to remedy inadequacies and inequalities that have resulted from the slave system--inequalities in which all whites benefit. In a system which structurally advantages whites, all whites are advantaged, at least to some degree. A company which utilized slaves gained profits it would not have gained, which is then passed on to its (white) executives and its (white) shareholders. Those gains are illegitimately taken. While it is true that today there are some black shareholders and executives sharing the wealth, they are in a distinct minority (well behind the proportion you'd expect given their numbers in American society). The benefit to them is incidental and de minimis, about as relevant as saying that our obligations to slaves were fulfilled because we gave them housing and food.

Of course, most white beneficiaries of slavery have no racist motivations in their behavior--indeed, they probably aren't even aware of the racial dimensions. And no white alive today had a direct hand in creating the unjust system. That's all well and good, and it explains why reparations doesn't and shouldn't consist of reaching into white bank accounts and drawing out enough money until the "debt is paid." In this respect, reparations in the form of scholarships and education funds satisfy both interests at stake--not punishing whites for being unwitting beneficiaries of a system they had no role in creating, while still providing compensation for Blacks who to this day are harmed by racial subordination.

Bernard continues with a political critique of the NAACP's advocacy focus:
When black kids are getting poor educations in the inner cities, the NAACP isn't going out there and pressing on that issue.
When black parents are not just allowing, but encouraging their children to fail in this society the NAACP is silent on this issue.

But when a company can be shook down for cash, the NAACP has their hands out.

This is simply repugnant.

No, this is simply wrong. A cursory check of the NAACP's website shows that education advocacy is one of their core issues, as well as their youth and college department. These departments are two of just five issue-specific categories in which the NAACP specifically advocates (the others being Health, Development, and Legal). To say that they are "silent" on the sub-par education received by many black Americans is false, plain and simple. Perhaps we don't hear the calls of the NAACP for improved educational access for minorities, but that I think says more about how race relations is descriptively portrayed in America today (a bunch of whiny leftist radicals complaining about ridiculous things like 100 year old wrongs and too few minorities in TV shows) rather than how most minority advocacy groups would like to hear it discussed.

But perhaps what's most distressing about Bernard's argument is that it entails a wholesale reversal of virtually every standard American legal principle. If entity A illegitimately harms entity B, and gains from it, B has a valid tort claim against A and A's ill-begotten gains. This is axiomatic in American law, and on every other issue but reparations, it is also completely uncontroversial. What is the difference here? Possibly the time elapsed (though that incorrectly assumes that the racial subordination traceable to slavery (and in general, for that matter) is something "in the past," see Delgado below), I guess. But think of the precedent we're setting: that if you can dodge liability for massive injustices for X amount of years, then you're home free. In cases of massive wrongs (and in civil claims in general), this "modified statute of limitations" argument simply doesn't fly--especially since it was our legal system which prevented Blacks from pursuing slavery reparation claims when it would have been timely. For America to a) enslave people, b) prevent newly freed slaves from recovering damages for their unjust treatment for well over a century, and then c) say they can't be compensated because too much time has elapsed is a mockery of justice.

Arguing from a different position, Senor C over at Restless Mania thinks that (in a nutshell) reparations would deprive Blacks of any future ability to claim disadvantage due to their race (a sort of "we covered that already"). Senor C implies that this would be a bad thing, so reparations should be avoided.

First off, this same argument could be used to attack any program which sought to aid blacks for past injustices. Indeed, the argument has parallels to the "backlash" attack on Affirmative Action (roughly, that affirmative action will make whites resentful of blacks and thus will ultimately be a step back in their quest for equality). Likewise, Senor C believes that actions which remedy racial subordination will remove whatever sympathy whites had for their plight--ending in "a complete reversal in the treatment of blacks at all levels of society." However, we can use the example of Affirmative Action to prove this won't happen. As University of Pittsburgh Law Professor Richard Delgado notes:
The [backlash] argument is empirical. It holds that if you do X, something bad will happen. But stigmatization and negative stereotyping of people of color in the media and movies, and as reflected in public opinion polls, has either held constant or decreased in the roughly thirty-year period that affirmative action has been in place. Before this time, stereotyping of blacks and other minorities was rampant -- groveling maids and Aunt Jemimas, shoot-you-in-the-back Mexicans, "ugh-want-um" Indians, and more....Stigma is in plentiful supply still, but it predates and operates independently of affirmative action. [Richard Delgado, 10 Arguments Against Affirmative Action--How Valid?, 50 Ala. L. Rev. 135, 139 (1998)]

Second, it rather weirdly assumes that Blacks don't want a "complete reversal" of their treatment in society. Given the state of our racial condition in America today, I'd imagine this would be a benefit. People often underestimate the plight of minorities in America today--with anti-discrimination laws in place, everything is assumed to be made "right" (and such things as AA and reparations give blacks an out and out advantage!). They are unaware of or ignore evidence which notes that black poverty tends to last longer than whites (Delgado, at 140), that middle class blacks face more economic instability than comparable white families (Id.), that the children of middle-income blacks typically have worse life prospects than those of poor whites (Id., at 141), and other similar issues. A wholesale shift in the racial mapping of our society could very well be exactly what we need.

Third, if blacks aren't allowed to use their disadvantaged status for anything, what good does it do them to have it? Senor C seems to think it has some value (after all, losing it would "catalyze[]...economic, social, and political marginalization"), but the only semi-tangible benefit blacks are allowed to draw from it, apparently, is white sympathy. If I were Black, I'd say "thanks for the sympathy, but what I'd really like is some concrete action to rectify the systemic racial injustices that still exist in American society today." 140 years after abolition, with racial equality still barely on the horizon, I think African-Americans can justly cash in some of their chips. And I think that even an obligation as massive as reparations for slavery only makes a dent in what America as a nation owes the victims of its racially destructive policy. Extreme wrongs require extreme remedies.

The Blues

What is going on in the Blue States? SurveyUSA ranks all 50 governors by popularity (hat tip: Kos). The top four most popular are all Republicans: John Hoeven (ND), Jodi Rell (CT), Mike Rounds (SD), and Jon Huntsman (UT). The next four are all Democrats: Joe Manchin (WV), Mark Warner (VA), Dave Freudenthal (WY), and John Lynch (NH).

Notice anything?

Of the Republicans, three of the top four are in solid red states, which isn't surprising, and one (Rell) is in a solid blue state. For Democrats, though, none of the popular governors are in solid blue states--Lynch and to a lesser extent Manchin are in swing states and Warner and Freudenthal are clearly in the heart of red.

Indeed, after New Hampshire (which voted Bush in 2000 but Kerry in 2004), the next blue state in line on the list is New Jersey, with Governor Richard Codey clocking in at a whopping 48% approval rating, tying him for 28th place. This isn't to say that there aren't popular Democrats, but they're all in red or swing states--Oklahoma, Montana, Arizona, Kansas, Iowa, Louisiana, New Mexico, and North Carolina (plus the four I named above) all have more popular Democratic governors than New Jersey (and all have approval ratings above 50%), and yet not one of them voted Democrat in the election 2004.

Though the problem is more pronounced for Democrats, Republicans see it too. The five least popular governors are all GOPers: Arnold Schwarzenegger (CA), Matt Blunt (MO), Ernie Fletcher (KY), Frank Murkowski (AK), and Bob Taft (OH), who bottoms the list with an appalling 17% approval rating (I almost think that's a typo). Except for Schwarzenegger, the most "popular" of the five with 36% approvals, all come from states that went red in both 2000 and 2004.

I suppose that to "buck the trend," one must be a very popular Democrat/Republican to get voted into office in a Republican/Democratic state. But that doesn't explain why the locales who have governors matching their theoretical partisan affiliation are so gosh darn unhappy with them.

What gives?

Tuesday, July 12, 2005

Duck and Cover

Ann Althouse comments that the lesson we draw from the failed Bork nomination is that nominees should dodge every question they can:
The one recent nominee who did engage with the committee on substantive issues was Robert Bork, who is also the one recent nominee to be voted down.
He chose to debate, and -- I think -- he chose it because he seriously believed he knew constitutional law far better than the Senators. But they knew TV better, and he was pompous and professorial. His belief in his own superiority showed. And people do not like the look of that on television. His notion that only people with thin records can survive the questions is another example of Bork displaying a superior attitude. If he'd just reined in that attitude and "taken the judicial Fifth" like everyone else, he'd have made it.

Descriptively, Althouse is probably right. But normatively, I think this is problematic. I'm not a Bork fan (I'm sure a lot of folks lost money on that bet), but I'd still wager that, yes, he really does know more about constitutional law than your average senator. They know TV--a useful skill, I guess, but one wholly unrelated (if not diametrically opposed) to getting an intelligent and qualified person into our judiciary.

Americans deserve to know who they are putting on the court. Questions on substantive areas of law matter, for the simple reason that no judge is a robot and all come in with preconceived biases and theories. A well-balanced judiciary thus let's these differing theories and ideas, the "jarring and discordant judgments" that "[j]udges of equal learning and integrity" might bring, be debated, argued over, hashed out, and balanced [Martin v. Hunter's Lessee, 14 U.S. 304, 348 (1816)]. In this context, asking and answering questions is essentially, but not if the very act of honestly representing your record becomes a political death sentence. Our judiciary (indeed, our whole political system) is not served well if to make it good a candidate has to do the Q&A version of "duck and cover."

I'm not sure that Bork should have been put on the Supreme Court, at least not so sure that I'd call his rejection a mistake. But the "lesson" we're learning from Bork may be worse than whatever he could have dished out as a Justice. It was the last to go, but now judicial candidacies join every other political office in that honesty is a liability.

Reasonable candidates, tough questions, fair consideration. Is that really too much to ask?

Ho-hum, Another One

Unlike the Britain subway bombings or the Madrid train attack, this undoubtedly will get next to no attention. When terrorism becomes routine, it becomes invisible. Except, of course, to the terrorized.

The Latest on Gay Marriage

Hillel Levin has put up a self-described "big post" on gay marriage. An excellent post, all around (but see the post of Prof. Ribstein as well!). Kind of reminds me of my own uber-post on gay marriage, though Prof. Levin takes it from more of a legal standpoint while I operate on the normative side of things.

Also, if you're in the market for a breadbasket of gay marriage cases, I've got 'em here, with analysis and opinions out of New York, Washington, Massachusetts, Indiana, Federal District Court (M.D. Fla.) and the US Bankruptcy Court. Makes a great gift for the law geek in your family (who, if you're reading this site, is probably you. So treat yourself.).

Monday, July 11, 2005

Memory Lapse

The Family Research Council, one of the pointmen for the Christian Right on the upcoming Supreme Court battle, appears to be suffering from a bit of short term memory loss.
Senator Chuck Schumer (D-NY), who last week called for war on ANY nominee President Bush might appoint to the Supreme Court, now wishes to negotiate at Camp David with the President on picking a "consensus" judicial nominee. Merriam-Webster Online defines consensus as the judgment arrived at by most of those concerned. The U.S. Constitution grants the sole power of nominating a Supreme Court justice to the President and allows the Senate (currently being controlled by the President's own party) to then vote on that nominee. Any effort by the President to include the Senate's minority party, the Democrats, is done out of President Bush's goodwill.

Of course, this isn't really true at all. The constitution specifically says that President nominates his picks, and they are confirmed "with the advice and consent" of the senate. Schumer's proposal seems to clearly fall within the realm of proposing "advice."

Now, normally, I'd just assume that FRC, like on so many other issues, is simply unaware of the particularly constitutional provisions implicated here. As a wise man once said, I never assume malice when mere ignorance will suffice. But, as it happens, the FRC used to make quite a bit of hay over the constitutional clause they've now "forgotten."
"The Pittsburgh Post-Gazette endorsed Sen. Specter this year because "he would be in a position to block some of the ideologically extreme federal judges likely to be nominated by President Bush in a second term, some of them for the Supreme Court." With all due respect to Sen. Specter's journalist pals, but the Constitution makes it clear that the Senate's role is to "advise and consent" when it comes to judges, not "block and dissent."

In the latter statement, Mr. Perkins essentially removed the "consent" qualifier. In the former, he omitted the "advice" clause. Two wrongs--make a bigger wrong. Who knew?