Points For Discussion

A scatter shot of thought offered from an early Sunday eve.

  1. Ms Althouse offers that Ms Sotomayor’s remarks are not out of the pale, but are fit as a “feel good version” into a larger and widespread racial talk in the legal academy. She offers that this, among perhaps the non-bottom feeders, might be a good opportunity for discussion racially sensitive or color blind jurisprudence. Given that race is, in my opinion, a ontological travesty. Race is a fictional entity invented for (perhaps) political reasons and enforced by stereotype. It is, on examination largely meaningless. Black, White, Hispanic are meaningless tags. There is no such thing as any of those things. There are certainly ethnic affiliations which have meaning, culturally and in forming people’s outlook. It is obvious that an urban white metrosexual yuppie far far has more in common by any cultural metric you might choose with a black gang-banger than with a recent rural Serbian immigrant, even though the first and the last are “racially” both “White.”
  2. From Chantal Delsol’s second chapter of The Unlearned Lessons Of the Twentieth Century: An Essay On Late Modernity, to which I will return later in the week, “… However, today’s scientism, compared with that of the nineteenth century, has become both hypocritical and worth of disavowal. In the nineteenth century, scientism rested upon the naive yet understandable belief — since it had not yet clashed with actual experience, that once the religious mentality had been swept aside, science would be able to explain everything and to alone bring happiness to humanity. The twentieth century sufficed to show that this was hardly the case. Thus, the scientism of today is founded on the mere hatred of religion and makes use of its own resentment against good faith. […] Today’s scientism, when it claims a monopoly on truth and is used to blur the boundaries of the human species, has become virtually criminal.” I’m guessing that there will be some objections to this quote. One would wonder who and why would defend scientism, for it is likely a more pressing threat to the real practice of science than any religious attack.
  3. Apparently an late-abortion practitioner has been murdered. At least one on the left thinks this means, that an assault on the freedom of speech is the answer. For myself, I’m confused as to the motivation behind the murder. If, as I think it is, the pro-life position is one anchored in the axiomatic ontological necessity of the necessity of a belief that all men share dignity. How that then leads to justifying murder cannot be rational or reasonable. Keep that assault on free speech (and the right to assemble) in mind when I return to Ms Delsol’s essay.
  4. In part the piece linked above connects that murder to the “empathy” argument used by the President. I wonder if “empathy” would be replaced by nous, in that particular liberal (?) legal methodology (see the Eastern Orthodox entry following the nous Wiki entry). While it might be just a little change of pace to find terminology like that flowing from progressive lips when arguing that a particular justice was qualified. As an side, it seems to me that the judicial philosophy entailed in the “empathy” argument is one which assumes and supports continuing irrelevance and immaturity on the part of the Legislature. The point is, the Judiciary is not there to fix “bad” law written by the Legislature but merely ones which are contrary to the Constitution. Depending on the judiciary to fix bad laws is a bad idea, because it enables lesser legislators to pen laws which are politically expedient and “counting” on the judiciary to overturn those laws … which they are more free to do being not as dependent on the electorate. But I digress, if you want to kill the whole “empathy” in the judiciary argument, one might frequently replace “empathy” with “eye of the soul” or “mind of the heart” or similar phrases. We might be continue with a trinitarian judicial philosophy, claiming our judges should equally weigh nous (heart), logos (reason),and spirit. That will go over swimmingly in the secular liberal world. If the right takes up that as a just judicial spirit, I’d bet the left will be clamoring for textualism or originalism post haste. See how the epomynous publius quote reads now, “Anyway, this violent act also bears quite directly on the whole “eye of the heart” debate.  What’s interesting about Obama’s comments is that the eye of the soul argument doubles as both a populist argument and a high-level theoretical assault on conservative jurisprudence.” I’ll leave it as an exercise for the reader to cast Mr Obama’s argument in as a trinitarian one.

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12 comments

  1. For myself, I’m confused as to the motivation behind the murder.

    WTF? “Pro-lifers” considered him a mass-murderer of children. Or at least they pretended to for rhetorical reasons. At least one person took their rhetoric literally. If a man was literally murdering hundreds of children and the state had already refused to stop him, and indeed protected him, would you really say it’s wrong to kill him?

    Those who use the line (or argument) that “abortion is murder” without genuinely believing that have some degree of blood on their hands, in my opinion. Those who do believe it should be applauding this psychopath.

  2. Mark says:

    JA,
    I understand that your misunderstanding of the pro-life position is set in stone. I said what I said, you ignore it and state your case. Sigh, whatever.

    Do you really think the case for vigilantism clear cut and is always justified and moral?

  3. Boonton says:

    The point is, the Judiciary is not there to fix “bad” law written by the Legislature but merely ones which are contrary to the Constitution.

    Curiously, the fire fighter case cited by the right is an example of just the opposite. The right harps not on what the law said but on what would be ‘fair’ to the men who stuided intensely for the test.

    Gives one valid reason to ask whether or not the ‘just read the law’ demand by the right is really sincere or just their way of kidding themselves into believing the laws they like are also constitutional and the laws they don’t aren’t.

    But I digress, if you want to kill the whole “empathy” in the judiciary argument, one might frequently

    replace “empathy” with “eye of the soul” or “mind of the heart” or similar phrases.

    Yawn, yawn and double yawn. ‘Empathy’ is clearly something a good judge has. The nonsense around the word is just the right’s attempt to make something out of nothing. A judge has to be aware of the human suffering that comes before his or her court. That doesn’t alter the law but the law is not simply mechanistic application of rules, in which case judges could simply be replaced by computers but actual

    judging which means applying the rules in the context of the circumstances they present themselves in. If one cannot put ones’ self in another’s shoes they cannot be a judge. A computer can apply a mechanistic rule such as determining when a racer crossed a finished line, a human needs to be a judge because to date computers lack empathy.

    Dahlia Lithwick over on slate.com had a good piece on a recent case involving a school that forced a 13 yr old to be strip searched because of amazingly flimsy ‘intelligence’ that she had drugs on her (the drugs in question, which she didn’t have, being a prescription strength ibuprophin…essentially nothing). While the justices clearly understood the importance of keeping drugs out of a school. The justices, in their questioning, displayed a remarkable amount of insensitivity on the impact of being a 13 yr old girl being strip searched (isn’t it just like changing in the locker room before gym?). One would hope having some different backgrounds, including women, on the court would allow all of the

    justices to exhibit better empathy that allows them to be better at applying the law. In the cases of searches and seizures, the law generally holds the gov’t to a higher threshold of proof for more serious

    searches (strip searches) than trivial ones (the cop seeing you’re not wearing your seat belt while you’re stopped at a red light). Spin as much philosphical drivil as you want, this is required to actually judge a case rather than attempt to pretend the law is just a set of rules to be applied with no passion.

    Given that race is, in my opinion, a ontological travesty. Race is a fictional entity invented for (perhaps) political reasons and enforced by stereotype. It is, on examination largely meaningless. Black, White, Hispanic are meaningless tags.

    Except they are not. This puts you firmly as stuck int eh 1980’s Different Strokes ere of thinking about race. Race must always be ignored unless you are confronting the racist who is a Archie Bunker type beast Stephen Colbert does a great job satirizing this POV when he interviews people and tells them he is ‘color blind’ but has been told by others he is white and has heard rumers that his interviewee might be black.

    It is obvious that an urban white metrosexual yuppie far far has more in common by any cultural metric you might choose with a black gang-banger than with a recent rural Serbian immigrant, even though the

    first and the last are “racially” both “White.”

    Except when all three go to apply for a job and the white metrosexual’s first name is ‘Marc’ and the Serbian’s name is something exotically foreign and the black’s name is ‘Lateisha’…allin the sudden thelargely meaningless fiction magically allows resumes without a picture and with no other information to get sorted in ways that have been shown over and over again to harm the black person and benefit the white.

    Tossing the Serbian into the mix, though, is a good start. A better story though is the famous ‘black/white cookie’ episode of Star Trek. As you may recall, the Enterprise comes upon two men…one side of their bodies are black, the other white who have chased each other accross the galaxy. As they return them to their home planet, they try to make sense of their dispute since they look exactly the same. Only at the end does one of them let the cat out of the bag. One ‘race’ is black on the left side, the other ‘race’ is white on the right side. The black/white men had more in common with each other than the Enterprise crew of pasty faced 70’s actors. Yet they got along reasonably well with the Enterprise crew because they were so foreign to them. It was the relatively minor difference that caused their obsession with which side they were black and white on. Racial differences are real in that they drive behavior both on a conscious and unconscious level and they do so by emphasizing small differences within a population. I’m sure if you go to Serbia you’ll find it has its own groups of ‘peoples’ who will look exactly alike to your eyes but to the residents their differences will be blatently obvious.

    It’s quite easy to shrug and say this is a fiction that we should ignore them while they usually (but notalways) benefit you indirectly. I think the answers of the 80’s were a dead end. Those answers were either a faux racial blindness (“I don’t see color, I just happened by chance to choose a black SC justice to replace the black one who just retired”) or an obsession with racial bulkanization. I think the newer synthesis is allowing race to be recognized but not to dominate one’s mindset…ultimately a more healthy approach IMO.

  4. Boonton says:

    Do you really think the case for vigilantism clear cut and is always justified and moral?

    I don’t but JA’s point is valid. If abortion is equated to murder then arguments in favor of violence become more justified. Imagine a debate on whether we should invade a foreign country that was violating human rights. If the country was hurding people into death camps, many would say such behavior justified the use of violence including precision strikes to take out those directly involved. If the country was simply refusing to recognize intellectual property laws, it would be hard to imagine that justifying violence even if IP is seen as a type of human right.

    Pro-lifers can’t have their cake and eat it too. Abortion can’t equal murder only when it is rhetorically useful.

  5. Mark says:

    Boonton,
    You’re ignoring my question. The pro-life argument is that human dignity is an ontological axiom. Murder rejects that.

    Your notions of herding people to death camps … reminds me again of the non-violent reactions of the Jews in Germany (and the majority of the objectors). Vigilantism is strongly rejected by the German culture, less so by ours. Himmler was assassinated (murdered?). Those objecting to his actions reacted in approval. Do you have *any* sense that the “Christian right” views this killing in that way? If not, don’t you have to recant the notion that this is in any way viewed as vigilantism, and perhaps the more common notion is the confusion I express above?

    Fine, you think race should be “recognized” but not to dominate. I think race is an ontological error and should be replaced with notions of tribe and sub-ethnic and cultural ties, which reflect our real differences and not false ones. Ms Sotomayor for example, is not “Hispanic” or “a ‘wise’ Latina”, she’s a middle class Princeton/Yale Peurto-Rican (and her parents were not “immigrants” but American citizens from birth). Mexican, Cuban, Argentinian, Brazilian, Guatemalan, Spanish cultures are differ and should not be grouped together. I’m not suggesting race should be ignored, but replaced with something that has a foundation in actual real differences.

    A computer cannot replace a judge because it cannot scale the semantic bootstrap and attach meaning to symbol. That bootstrap does not require empathy (or does it? That in itself might be an interesting question). I think you could well argue that the judges (for example in the case of the 13 y/o) was not the problem, either way they judged. It was the Legislature at whom the blame should be lain for bad law. The question(s) for the high court are of Constitutionality not of “good vs bad” law. Take the Kelo case. It immediately provoked a lot of re-writing of laws as a result of outrage from not turning it down.

  6. Mark:

    I understand that your misunderstanding of the pro-life position is set in stone. I said what I said, you ignore it and state your case. Sigh, whatever.

    I don’t think I have a misunderstanding. I think you’re being naive or disingenuous. Surely there are some “dignity of life” people who oppose abortion, the death penalty, torture, etc. But I also think there are plenty of “pro-lifers” who are, e.g., for the death penalty. So it’s not about dignity of life, it’s about something else.

    Do you really think the case for vigilantism clear cut and is always justified and moral?

    Why generalize? We’re talking about a specific case. If I believed that a man was literally murdering hundreds of (actual) babies and the government refused to do anything about it, I do think it would be moral to stop him by assassination if that were the only way. Is that so out there?

    And his “Dr.” isn’t honorary. It’s the reason he was even involved.

  7. Boonton says:

    You’re ignoring my question. The pro-life argument is that human dignity is an ontological axiom. Murder rejects that.

    Murder is unlawful killing. It is not accepted by most that killing to prevent or frustrate murder is unlawful.

    Your notions of herding people to death camps … reminds me again of the non-violent reactions of the Jews in Germany (and the majority of the objectors)…Do you have *any* sense that the “Christian right” views this killing in that way? If not, don’t you have to recant the notion that this is in any way viewed as vigilantism, and perhaps the more common notion is the confusion I express above?

    No I don’t sense that the Christian right accepts killing abortion doctors. But therein is the problem, why not? A Jewish person who killed a German trying to resist the death camps wouldn’t be a murderer IMO. Nor would a non-Jew who did likewise to help him.

    If abortion is equal to the death camps, then violence is not to be ruled out as a solution. But is it? Michael Kinsley had an interesting point on stem cell research:

    … If you wish to believe that every fertilized egg is a human being with full human rights, that is your privilege. I disagree, which makes it a controversy. If I felt you were serious, we would have a quandary as well. But there’s no quandary because you’re not serious. Your actions are too different from your words. You are doing absolutely nothing about the millions of fertilized eggs that are destroyed naturally every year (in miscarriages so early that the potential mother is not even aware of them), or the thousands that are produced and unused by fertility clinics going about their normal work (which are either discarded or pointlessly frozen in the hope of some miraculous ethical breakthrough)

    Let’s not, if we can, get bogged down in the debate about stem-cell research and IVF clinics. Let’s distill from this what I’d like to call “Kinsley’s rule”

    Moral sincerity is not impressive if it depends on willful ignorance and indifference to logic. http://www.washingtonpost.com/wp-dyn/content/article/2006/07/06/AR2006070601554.html

    There’s a logic to calling abortion murder and abortion clinics death camps. The logical implication is that abortionists and women who get abortion are murders and clinics should be dealt with as we would deal with death camps. Now if you want to take an extreme pacifist stance, then feel free. But few pro-lifers who assert violence against abortionists/clinics is wrong would also say the US was wrong to engage Germany and Japan in WWII and even fewer still would assert that it was morally wrong for those Jews and others who did use violence to resist the Nazis.

    So here the charge is that many pro-lifers are not to be taken seriously. They would equate abortion to death camps on one hand, then take a pacifist stance on abortion that if they applied everywhere would put them in league with Ghandi or the Dali Lama. I’m sure there are some pro-lifers who do have a Ghandian/Lamian outlook on violence…but keep it real, that’s a trivial minority and almost certainly none of its leadership.

  8. Boonton says:

    Fine, you think race should be “recognized” but not to dominate. I think race is an ontological error and should be replaced with notions of tribe and sub-ethnic and cultural ties, which reflect our real differences and not false ones. Ms Sotomayor for example, is not “Hispanic” or “a ‘wise’ Latina”, she’s a middle class Princeton/Yale Peurto-Rican (and her parents were not “immigrants” but American citizens from birth). Mexican, Cuban, Argentinian, Brazilian, Guatemalan, Spanish cultures are differ and should not be grouped together. I’m not suggesting race should be ignored, but replaced with something that has a foundation in actual real differences.

    Yet in numerous studies where race does impact outcome where it shouldn’t (say resume studies where identical resumes are given to different races) what you say is not real is in fact real.

    Your ‘blindness’ is likewise showing. Why can’t we group together Mexican, Cuban, Argentinian cultures under ‘Hispanic’? Amazingly you grouped together diverse cultures as Hispanic yet you didn’t include non-Hispanic cultures like Canada, Ireland and Italy. Why not? Because while diverse there are comonalities and the human mind picks up on that. One ‘answer’ is to try to force the mind to do the unnatural and not pick up on that. The other answer is to push the mind to use such relationships in a positive way and beware of the temptation to use them negativity.

    I think you could well argue that the judges (for example in the case of the 13 y/o) was not the problem, either way they judged. It was the Legislature at whom the blame should be lain for bad law.

    The law as written requires a balancing between the severity of the search with the cause of the search. An ability to empathize, would hopefully inform that judge that a strip search of a 13 yr old girl in her school is a pretty serious search as compared to, say, a strip search of a 35 yr old adult who is serving time in jail.

    Now you’re right. The legislature could write a law saying 13 yr olds can be strip searched at will….or could write a law saying they could never be so searched. In that situation the case would have been easy and would have never went beyond the lower courts, if it even made it into court. But as lenghty as the written law is it will never be so comprehensive as to cover all situations with perfect clarity so as not to require judgement and that is why judges require the ability to judge of which empathy is unquestionably a major element.

  9. Mark says:

    Boonton,

    Because while diverse there are comonalities and the human mind picks up on that.

    One commonality, language from the Iberian peninsula.

    Yet in numerous studies where race does impact outcome where it shouldn’t (say resume studies where identical resumes are given to different races) what you say is not real is in fact real.

    Yet in the cases where ethnic or gender phenotypical differences actually do mean real differences in talents and norms that is verboten, e.g., Mr Summers remarks at Harvard regarding women.

    Look. Tell me what “white” means ethnically, i.e., Whites believe position X about issue Y. That cannot be done. Define a cultural norm of any sort that encompasses a Georgian immigrant (Tbilisi Georgian, i.e., from the Caucasus mountains and not Southern US), a DAR member, and a West Virginian Appalachian resident in any meaningful way. White is not a race. Neither is “Black”, for the same argument could be done there. And so on down the line.

    Judges exercising “judgement” in particular cases such as the above are cases not placed before the SCOTUS. That particular court is to test Constitutionality of law. That is the mandate and purpose of that court.

    The legislature could write a law saying 13 yr olds can be strip searched at will

    And apparently they must have or this wouldn’t have come up. One approach a judge might take is to say, this law is Constitutional But to make it clear that these particular legislators passed this law which says your daughters can be strip searched at school and make that perfectly clear to the voters who and when that was made law. Those particular law-makers need to be held accountable.

    Look at Rome. The rise of the Imperial Rome can be directly traced to the loss of accountability and seriousness in its Senatorial body. We are seeing the same thing here. Giving our Legislature more ways to duck their responsibilities is yet another whole in the dike that is undermining our ability to hold of the coming storm. Your suggestion that nine unelected men (and/or women) take up that burden in their place is distinctly unhelpful.

  10. Boonton says:

    One commonality, language from the Iberian peninsula.

    Last I checked, language is a big deal. Your thoughts on race are pretty mushy. On one hand you want to pretend it’s a social fiction, on the other hand you hint that resume studies may imply non-trivial genetic differences between races which will cease to make it a fiction….

    The reality is race is socially constructed but real. As a social construction it does not have to be bound by any particular rules of hard core reality (Obama is considered black, but his father was from Africa…John McCain’s family having lived in the US for multiple generations could very well share more DNA with the ‘average black American). But social constructions are real since they shape how society behaves. Trying to pretend they don’t exist doesn’t make them disappear. Recognizing their reality but also recognizing how mallable they are is, I think, the new synthesis on race in the age of Obama.

    Judges exercising “judgement” in particular cases such as the above are cases not placed before the SCOTUS. That particular court is to test Constitutionality of law. That is the mandate and purpose of that court.

    The Constitutionality rests on the reasonableness of the search. Granted the legislature could have passed a law banning strip searches but that wouldn’t really address the Constitutional question. If the Principal went ahead anyway and ordered the search, would he simply be in violation of a state law….as if he let the kids out on an extra holiday without getting board of ed approval….or can the child sue on the grounds that her Constitutional rights were violated?

    The reasonableness question requires the judge to be connected with actual humans and the time they are living in. The legislature does have a duty to write clear laws but that is not sufficient. No matter how well written, a law will never cover all possiblities. For example, say the school monitors emails sent and received on their computers? OK what if they capture the passwords for web based email and use it to snoop at what students write off school grounds?

  11. Mark says:

    Boonton,
    Yes, language is a big deal … a cultural and ethnic deal, i.e., it is not however what we call “race”. The Mediterranean was not dominated in the first centuries by the Roman “race”.

    My (main) point is that racial categories like Latin, Black, White are meaningless especially from a policy standpoint and might better be replaced (if not with color blind policy) with ones which are cognizant not of the larger categories like “Black” but ones of small ethnic or tribal units.

    And yes, I understand that race as such is a socially constructed idea. It is however a blatant ontological category error. Recognizing its reality is akin to recognizing the reality that people today think that in Columbus day the “expert opinion” thought the world was flat. Why do you insist that it is useful to perpetuate a harmful, facially preposterous idea.

  12. Boonton says:

    Yes, language is a big deal … a cultural and ethnic deal, i.e., it is not however what we call “race”. The Mediterranean was not dominated in the first centuries by the Roman “race”.

    Ok so your point is only that race should be limited to biologically similiar traits? That’s fine. La Raza feels the same way, you should read what they say about their name. While one acceptable translation from Spanish is ‘the race’ another translation is ‘the people’ or ‘the community’ which would not be racially specific.

    My (main) point is that racial categories like Latin, Black, White are meaningless especially from a policy standpoint and might better be replaced (if not with color blind policy) with ones which are cognizant not of the larger categories like “Black” but ones of small ethnic or tribal units.

    I suspect the human mind practices an economy of categories. When dealing with a large context it breaks groups into a set number of categories (say black, white, hispanic). When dealing with a smaller group it does the same thing but adjusts the context (say in Chinatown Cantonese, Manderine, and ‘non-Chinese’).

    And yes, I understand that race as such is a socially constructed idea. It is however a blatant ontological category error…. Why do you insist that it is useful to perpetuate a harmful, facially preposterous idea.

    You’ve only made the case that its a labelling error. It appears to be human nature to divide into groups and this has both harmful and beneficial effects. It’s not a question of deciding to perpetuate an aspect of human nature, it’s a decision to perpetuate the positive aspects of this human trait and inhibit the negative.