As we have learned more about Harriet Miers since her nomination, we can now glean several important points from Bush's selection of Miers for the Supreme Court and his implied belief that she is qualified for the court.
It's helpful to remember that Bush is not trained as a lawyer. His main experience with lawyers has been on the receiving end of their advice, and it's no coincidence that in selecting Miers, Bush selected a person who has personally represented him. He's not trained as a lawyer, and -- being Bush and not having any intellectual curiosity about fields he doesn't have to know about -- he doesn't know what goes into forming legal reasoning. He's been a consumer of a legal product, but he has no idea how that product is produced.
What Bush is trained as is a manager, and it's clear he believes that's a suitable model for a Supreme Court justice. To him, there's no reason for a justice to have reached any particular conclusion regarding a legal issue, just as for Bush, there's no reason to have already studied and reached conclusions regarding any particular policy position. All Bush does (and is oddly proud of only doing) is consume bullet point memorandums by his aides, assure himself that the aides know what they're doing (or chew them out if he suspects otherwise), and move on.
Of course, the merits of this approach even for an executive are questionable. If the executive doesn't know any of the nuts and bolts of the respective aides' fields, he's reduced to judging other, less reliable indicators of the aides' job performance, such as loyalty and "heart." As revealed in the debacle of Michael Brown's final days at FEMA, Bush didn't know enough about what FEMA was doing to judge whether Brown was doing his job, leading Bush to famously commend Brown for doing "a heck of a job."
But a managerial approach is completely untenable for a Supreme Court justice, because a justice is judged not by the result reached in any particular opinion but by the method used to reach that result. In fact, the single task justices devote most of their time to is writing opinions, and as those of us know who have attended law school and been required to read the fruits of their labor, those opinions are considerably longer than a mere up or down verdict.
And this, to some extent, explains why many conservative thinkers have been so incensed by the Miers nomination. Conservatives thinkers believe in the importance of powerful ideas supported by forceful logic, while Bush only cares about results, and in failing to understand what being a justice is about, Bush has simultaneously undermined the position of all those who believe in the power and importance of logic, thought, and reasoning.
Even many conservatives have admitted that there were holes in Bush's reasoning leading up to the Iraq war, but Bush was able convince the American public not to look too closely. Most Americans just seized on whichever of Bush's various rationales they wanted and didn't focus on the others. Similarly, since starting the war, Bush has managed to make its execution the issue going forward, refusing to be drawn in to questions about the validity of the original rationales.
But this strategy of bait and switch is not an option for a justice. Each justice must write a lengthy explanation of how he or she arrived at a conclusion in a particular case, to be analyzed in law schools for decades to come. And a justice who aspires to increase his or her influence will write opinions not only in those cases the justice is assigned, but concurring and dissenting opinions in other cases, as well.
Like a blind person who has been led by others his entire life and doesn't understand the importance of sight, Bush not only doesn't make convincing, logical arguments himself, he doesn't understand the significance of that skill to others. To him, others just need to be led as he has. Unfortunately, the blind man has just nominated his friend to drive a bus.
Friday, October 21, 2005
Tuesday, October 18, 2005
Just nominate Arnold from Green Acres -- at least he's got personality
According to documents made public today, "Harriet E. Miers pledged support in 1989 for a constitutional amendment that would ban abortions except when necessary to save the life of the woman." Link. The conventional wisdom is now gaining traction that this means Miers would not vote to "uphold Roe." But it may mean exactly the opposite.
One of the arguments against the Equal Rights Amendment was that it wasn't needed. That is, because the Supreme Court had already held that, in most instances, gender specific language should be interpreted as gender neutral, there was no point in going through the cumbersome process of amending the Constitution.
By that rationale, if a pig had a better personality ... no, I mean if Miers supported amending the Constitution to prohibit abortion, that would leave room for an acceptance of Roe v. Wade as settled constitutional interpretation of the right to privacy.
My own guess -- pure speculation based on Miers' wishy-washiness -- is that she would probably vote to uphold the core of Roe -- the idea that the Constitution contains a right to privacy which protects a woman's right to terminate a pregnancy -- though she would be much more open than O'Connor has been to biting off pieces of Roe around the edges. For example, the Supreme Court recently ruled that a ban on dilation and extraction procedures (a/k/a partial birth abortion) was unconstitutional because it did not contain an exception for the health of the mother. O'Connor was in the majority, but I strongly suspect Miers would have voted with the minority to uphold the ban.
It bears remembering, though, that from a Bush nominee, this is about the most we can expect.
One of the arguments against the Equal Rights Amendment was that it wasn't needed. That is, because the Supreme Court had already held that, in most instances, gender specific language should be interpreted as gender neutral, there was no point in going through the cumbersome process of amending the Constitution.
By that rationale, if a pig had a better personality ... no, I mean if Miers supported amending the Constitution to prohibit abortion, that would leave room for an acceptance of Roe v. Wade as settled constitutional interpretation of the right to privacy.
My own guess -- pure speculation based on Miers' wishy-washiness -- is that she would probably vote to uphold the core of Roe -- the idea that the Constitution contains a right to privacy which protects a woman's right to terminate a pregnancy -- though she would be much more open than O'Connor has been to biting off pieces of Roe around the edges. For example, the Supreme Court recently ruled that a ban on dilation and extraction procedures (a/k/a partial birth abortion) was unconstitutional because it did not contain an exception for the health of the mother. O'Connor was in the majority, but I strongly suspect Miers would have voted with the minority to uphold the ban.
It bears remembering, though, that from a Bush nominee, this is about the most we can expect.
Saturday, October 15, 2005
For Bennett and supporters, the grass is always whiter
While President Bush and his team have had a rough time since the nomination of Harriet Miers to the U.S. Supreme Court, the one, perhaps only, conservative who seems to have fared well is Bill Bennett. The nomination of Miers has hijacked much of the public discourse since it was announced and taken the heat off Bennett for comments he made on his call-in radio show. However, it seems worthwhile to return for a moment to those comments. It's not that it matters so much that Bennett was prematurely off the hook; it's more that the underlying presumptions of those comments comes up repeatedly among conservatives and deserve to be rebutted head on.
Bennett, you'll remember, commented that one way to lower the crime rate in the United States, albeit a "morally reprehensible" way, would be to abort every black fetus in the country, and in response to the public outcry, his defenders made two points. First, they pointed out that he wasn't endorsing the mass abortion he posited, merely making a rhetorical point about the inappropriateness of one caller's utilitarian arguments to support abortion. Second, the defenders invariably added, Bennett's assertion was factually correct, which, in the words of Andrew C. McCarthy, a former federal prosecutor in a post on the National Review website, "ought to count for something."
I suppose the defenders' first point is correct. We should give Bill Bennett credit for not actually endorsing mass abortions to carry out the genocide of what he sees as a crime-prone race.
But as to the second point, the idea that crime would go down if all pregnancies of black Americans were terminated simply isn't supported by the facts. And criticizing Bill Bennett's comment is not merely another example of political correctness unfairly seizing on uncomfortable candor, as his defenders' would depict it. Instead, it's pointing out the errors of logic that conservatives consistently make in discussing matters of race.
The proposition that crime would go down if African-Americans were eliminated has its basis in the statistic that African-Americans are reported to commit crimes at a higher rate than white Americans, relative to their respective populations. For example, in 2003, victims of violent crime reported that 63% of those offenses were perpetrated by white persons compared with 21.3% by black persons. Link. Meanwhile, in 2003, 76% of the population was white and 12% was black. Link
However, this statistic is not self-explanatory, as conservatives believe it to be. The threshold observation we should make is that whites still commit most crime in America. Instead, what we are talking about is the frequency of conviction and incarceration relative to respective population figures.
Presumably, Bennett was predicting that because blacks commit crimes at a higher rate than whites, the removal of blacks from the population would shift the overall crime rate closer to the lower rate at which whites commit crime. But in jumping from the factual observation that blacks commit crimes at a disproportionately high rate to the prediction that removal of the blacks would lower the crime rate, Bennett made a series of logical blunders.
First, such an assumption makes the same error as assertions that blacks are better athletes or more disease-prone compared to their white counterparts. In a May 19, 1997, article in The New Yorker, Malcolm Gladwell pointed out that these statements about respective athletic ability or health are probably true but only half of the picture, that it is also the case that blacks are worse athletes and more healthy. That is, that these are issues of increased variability among the black population compared with the white population with respect to these attributes.
For example, it may be the case that while African-Americans are reported to commit crimes at a higher rate than white Americans (a relatively easy statistic to determine), it may also be the case the African-Americans are also more active in preventing crime that white Americans (a difficult statistic to determine), but because the half of the picture that is easy to determine coincides with the pre-existing stereotype of the crime-prone African-American, that's the only half of the picture that makes it into the public consciousness.
Second, Bennett's statement assumes that the factors that contribute to a higher crime rate among blacks are self-contained within the black community, such that the elimination of that entire community would eliminate those factors, as well. But not only is there no evidence to support this assumption, but most evidence indicates otherwise.
An illustration from the context of single sex education is helpful. According to several studies, (see, e.g., Dale Spender's book, Invisible Women: The Schooling Scandal (1983)), girls thrive in a single sex environment. Freed from quicker responding boys, an individual girl will participate more in class, take more leadership, and generally have a better educational experience. But the the converse is not true. Boys do not do better in single sex education; most boys do the same, and some boys do worse. This is because without girls, a group of boys will single out several boys for ridicule and treat them as the surrogate girls.
For an even more common example, think of the friend we all have who complains about his or her boss, and yet, even after changing jobs, the friend will often make the same complaints about the new boss that were formerly made about the old one. It's easy to externalize our problems; it's far more difficult to understand that we often create our own problems, regardless of environment.
And perhaps the strongest evidence that the problems of many in the black community are not endemic to the black community is the fact that blacks in other countries consistently perform higher on standardized tests than blacks in this countries.
As Shakespeare said, "The fault, dear Brutus, lies not in our stars, but in ourselves," and many of the problems within the black community originate not within the black community, but within our society as a whole, and quite probably, were all blacks immediately removed from this country, the problems of the black community would simply recreate themselves within another population.
So no, Bill Bennett, if all black pregnancies were aborted, the crime rate would not go down. Many of the same crimes (and probably some new ones) that are currently being committed by blacks would simply be committed by someone else.
Bennett, you'll remember, commented that one way to lower the crime rate in the United States, albeit a "morally reprehensible" way, would be to abort every black fetus in the country, and in response to the public outcry, his defenders made two points. First, they pointed out that he wasn't endorsing the mass abortion he posited, merely making a rhetorical point about the inappropriateness of one caller's utilitarian arguments to support abortion. Second, the defenders invariably added, Bennett's assertion was factually correct, which, in the words of Andrew C. McCarthy, a former federal prosecutor in a post on the National Review website, "ought to count for something."
I suppose the defenders' first point is correct. We should give Bill Bennett credit for not actually endorsing mass abortions to carry out the genocide of what he sees as a crime-prone race.
But as to the second point, the idea that crime would go down if all pregnancies of black Americans were terminated simply isn't supported by the facts. And criticizing Bill Bennett's comment is not merely another example of political correctness unfairly seizing on uncomfortable candor, as his defenders' would depict it. Instead, it's pointing out the errors of logic that conservatives consistently make in discussing matters of race.
The proposition that crime would go down if African-Americans were eliminated has its basis in the statistic that African-Americans are reported to commit crimes at a higher rate than white Americans, relative to their respective populations. For example, in 2003, victims of violent crime reported that 63% of those offenses were perpetrated by white persons compared with 21.3% by black persons. Link. Meanwhile, in 2003, 76% of the population was white and 12% was black. Link
However, this statistic is not self-explanatory, as conservatives believe it to be. The threshold observation we should make is that whites still commit most crime in America. Instead, what we are talking about is the frequency of conviction and incarceration relative to respective population figures.
Presumably, Bennett was predicting that because blacks commit crimes at a higher rate than whites, the removal of blacks from the population would shift the overall crime rate closer to the lower rate at which whites commit crime. But in jumping from the factual observation that blacks commit crimes at a disproportionately high rate to the prediction that removal of the blacks would lower the crime rate, Bennett made a series of logical blunders.
First, such an assumption makes the same error as assertions that blacks are better athletes or more disease-prone compared to their white counterparts. In a May 19, 1997, article in The New Yorker, Malcolm Gladwell pointed out that these statements about respective athletic ability or health are probably true but only half of the picture, that it is also the case that blacks are worse athletes and more healthy. That is, that these are issues of increased variability among the black population compared with the white population with respect to these attributes.
For example, it may be the case that while African-Americans are reported to commit crimes at a higher rate than white Americans (a relatively easy statistic to determine), it may also be the case the African-Americans are also more active in preventing crime that white Americans (a difficult statistic to determine), but because the half of the picture that is easy to determine coincides with the pre-existing stereotype of the crime-prone African-American, that's the only half of the picture that makes it into the public consciousness.
Second, Bennett's statement assumes that the factors that contribute to a higher crime rate among blacks are self-contained within the black community, such that the elimination of that entire community would eliminate those factors, as well. But not only is there no evidence to support this assumption, but most evidence indicates otherwise.
An illustration from the context of single sex education is helpful. According to several studies, (see, e.g., Dale Spender's book, Invisible Women: The Schooling Scandal (1983)), girls thrive in a single sex environment. Freed from quicker responding boys, an individual girl will participate more in class, take more leadership, and generally have a better educational experience. But the the converse is not true. Boys do not do better in single sex education; most boys do the same, and some boys do worse. This is because without girls, a group of boys will single out several boys for ridicule and treat them as the surrogate girls.
For an even more common example, think of the friend we all have who complains about his or her boss, and yet, even after changing jobs, the friend will often make the same complaints about the new boss that were formerly made about the old one. It's easy to externalize our problems; it's far more difficult to understand that we often create our own problems, regardless of environment.
And perhaps the strongest evidence that the problems of many in the black community are not endemic to the black community is the fact that blacks in other countries consistently perform higher on standardized tests than blacks in this countries.
As Shakespeare said, "The fault, dear Brutus, lies not in our stars, but in ourselves," and many of the problems within the black community originate not within the black community, but within our society as a whole, and quite probably, were all blacks immediately removed from this country, the problems of the black community would simply recreate themselves within another population.
So no, Bill Bennett, if all black pregnancies were aborted, the crime rate would not go down. Many of the same crimes (and probably some new ones) that are currently being committed by blacks would simply be committed by someone else.
Monday, October 03, 2005
Is it /meers/ like "piers", or /my'-ers/ like "friars"? (Yes, I know the answer.)
- After all, it's the logic that brought us Dick Cheney, and that worked out great, right? Just pick the chair of the search process to fill the seat! Honestly, why would anyone interview with a search chair in the Bush White House? Isn't it appropriate for the person leading a search process to recuse him- or herself from consideration for the position? I heard that, among others, Dick Cheney was on the search committee for the nominee. With him in the room, was anybody else really going to suggest that maybe it would look bad to nominate the person in charge of the process?
- To back up for a moment, the conventional wisdom this past week in Washington regarding Chief Justice Roberts is that he is a conservative like Chief Justice Rehnquist, whereas Justice O'Connor is regarded as a moderate, and therefore, if the President replaces her with a conservative, it would shift the balance of power in the Supreme Court away from the center. However, I don't believe the premise of this line of thinking, that Roberts is the judicial reincarnation of Rehnquist. While it is clear that Roberts, in his younger days in the White House was a Rehnquist-type conservative, his views and positions seem to have moderated considerably, and so I see him more as an O'Connor-type moderate conservative -- conservative, to be sure, as O'Connor herself surely is, but also pragmatic and not ideological. So if I'm right (which I'm probably not), then there is some leeway for O'Connor's replacement to be a Rehnquist-type conservative -- it would just be the flip of what it was before. And that's what I think we probably got with the Miers nomination this morning.
- Yes, Bush promised conservatives he would deliver another Thomalia to the Supreme Court, but did they really think that he ever bothered to brush up on the legal doctrines that Thomalia so stridently promote? This was, after all, the same p.r. department that advertised a "Reformer with Results" and a "Compassionate Conservative," so I'm shocked, shocked to discover that his promise to deliver another firebrand to the Supreme Court was an applause line and nothing more. I'm sure if you read through the transcripts of his campaign speeches, you'd also find a promise to move the American embassy in Israel from Tel Aviv to Jerusalem, just like every Republican since Reagan has promised, and he's delivered on that, too, right? (And I don't think that even requires Senate approval.)
- Democrats should do everything in their power to get this woman confirmed by the Senate as quickly as possible -- as a matter of fact, I don't think they're doing anything important tomorrow. And forget about pressing the White House to provide her old memos. I mean, if something happens to derail Miers' confirmation, after the reaction by the right today, there's no way the next nomination wouldn't be of a firebrand -- it might even be John Bolton or his predecessor in the charm department, Robert Bork himself. (We know Bush isn't above re-nominating previous rejectees, or even giving them recess appointments. Imagine a recess appointment of Robert Bork! And don't think Bush is above it -- this is the same guy who went to war in Iraq over, uh what was it again? Oh yeah, w.m.d.'s, right? Or was it to bring democracy to the Middle East?) In fact, I think Democrats need to arrange a nice long vacation for Nina Totenberg right about now, just in case Nina were to let her journalist's instincts momentarily trump her liberal feminist ones.
- One of the reasons it's hard to get campaign finance or election reform passed is that the legislators think to themselves, "Well, the current system is the one that got me elected, so it can't be all bad." George Bush has a similar weakness from croneyism: it's the system that made him a successful businessman and politician, so it can't be all bad.
- In addition to being a diversity pick by being a woman, this nomination was a diversity pick in the only way that really matters to George Bush: Miers is not the product of an East Coast "liberal" education.
- I was reading the profile of Miers that appeared in the Times upon her appointment a year ago as White House counsel, and this sentence jumped out at me: "Ms. Miers is a regular guest at Camp David and is often the only woman who accompanies Mr. Bush and male staff members in long brush-cutting and cedar-clearing sessions at the president's ranch." (Link) And of course we know from previous reports that what gave John Roberts the edge over Harvie Wilkinson is that Roberts, like Bush, appreciates the virtures of cross-training, as opposed to just running. Is this a President selecting a Supreme Court nominee or a fraternity chairman evaluating rushees?
- To back up for a moment, the conventional wisdom this past week in Washington regarding Chief Justice Roberts is that he is a conservative like Chief Justice Rehnquist, whereas Justice O'Connor is regarded as a moderate, and therefore, if the President replaces her with a conservative, it would shift the balance of power in the Supreme Court away from the center. However, I don't believe the premise of this line of thinking, that Roberts is the judicial reincarnation of Rehnquist. While it is clear that Roberts, in his younger days in the White House was a Rehnquist-type conservative, his views and positions seem to have moderated considerably, and so I see him more as an O'Connor-type moderate conservative -- conservative, to be sure, as O'Connor herself surely is, but also pragmatic and not ideological. So if I'm right (which I'm probably not), then there is some leeway for O'Connor's replacement to be a Rehnquist-type conservative -- it would just be the flip of what it was before. And that's what I think we probably got with the Miers nomination this morning.
- Yes, Bush promised conservatives he would deliver another Thomalia to the Supreme Court, but did they really think that he ever bothered to brush up on the legal doctrines that Thomalia so stridently promote? This was, after all, the same p.r. department that advertised a "Reformer with Results" and a "Compassionate Conservative," so I'm shocked, shocked to discover that his promise to deliver another firebrand to the Supreme Court was an applause line and nothing more. I'm sure if you read through the transcripts of his campaign speeches, you'd also find a promise to move the American embassy in Israel from Tel Aviv to Jerusalem, just like every Republican since Reagan has promised, and he's delivered on that, too, right? (And I don't think that even requires Senate approval.)
- Democrats should do everything in their power to get this woman confirmed by the Senate as quickly as possible -- as a matter of fact, I don't think they're doing anything important tomorrow. And forget about pressing the White House to provide her old memos. I mean, if something happens to derail Miers' confirmation, after the reaction by the right today, there's no way the next nomination wouldn't be of a firebrand -- it might even be John Bolton or his predecessor in the charm department, Robert Bork himself. (We know Bush isn't above re-nominating previous rejectees, or even giving them recess appointments. Imagine a recess appointment of Robert Bork! And don't think Bush is above it -- this is the same guy who went to war in Iraq over, uh what was it again? Oh yeah, w.m.d.'s, right? Or was it to bring democracy to the Middle East?) In fact, I think Democrats need to arrange a nice long vacation for Nina Totenberg right about now, just in case Nina were to let her journalist's instincts momentarily trump her liberal feminist ones.
- One of the reasons it's hard to get campaign finance or election reform passed is that the legislators think to themselves, "Well, the current system is the one that got me elected, so it can't be all bad." George Bush has a similar weakness from croneyism: it's the system that made him a successful businessman and politician, so it can't be all bad.
- In addition to being a diversity pick by being a woman, this nomination was a diversity pick in the only way that really matters to George Bush: Miers is not the product of an East Coast "liberal" education.
- I was reading the profile of Miers that appeared in the Times upon her appointment a year ago as White House counsel, and this sentence jumped out at me: "Ms. Miers is a regular guest at Camp David and is often the only woman who accompanies Mr. Bush and male staff members in long brush-cutting and cedar-clearing sessions at the president's ranch." (Link) And of course we know from previous reports that what gave John Roberts the edge over Harvie Wilkinson is that Roberts, like Bush, appreciates the virtures of cross-training, as opposed to just running. Is this a President selecting a Supreme Court nominee or a fraternity chairman evaluating rushees?
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