A Grand Illusion

Watching the Federer  Soderling match (well reading the live text at work) this morning made me realize how disappointed I am that I won’t get to see a repeat of this match this year:

Here’s hoping Murray can provide us with some good Tennis and maybe get a little payback on RFed for his loose lips. Actually I agree with Federer about Murray’s  style of play but he does it so well (See Murray v. Troicki) that it probably won’t change until people start playing around it. Also, those types of complaints are always more convincing if the guy didn’t just beat you.

While Murray has a pretty significant winning record against Federer (6 – 2) they’ve only met once at a slam (US Open) and Federer took that match in straight sets. That was hard court, can Murray beat Federer on Fed’s favorite surface? The British we’ll be hoping so.

There’s always the possibility that one of them will be taken out and they won’t even meet. Stranger things have happened.

Update: Continuing my support for all the Americans out there, I’d like to recognize Melanie Oudin on advancing to the fourth round and beating Jelena Jankovic. It’s nice to see some different names out there. We need some fresh American blood in the sport.

Here’s hoping you’ll be remembered for the right reasons. Like this game.

This story in the BBC typifies how silly movie ratings can get.

What you’re trying to do when you classify movies (G, PG, PG-13 etc) is take a sort of average for what people find appropriate. Of course, this is impossible because, especially in this country, there are too many economic, regional, and social differences among the population to ever get anywhere close to a consensus. And that’s without even taking into account random personality quirks.

For example, I find convoluted plots and bad haircuts to be extremely offensive, but that doesn’t mean we should have a rating system based on that so I can avoid The Da Vinci Code.

The BBC story focuses on changes being made to the classification system mostly dude to complaints people have made. Here’s more proof  of how finicky people can be:

“Under the new guidelines, a DVD box set of US comedy series Friends has been given a 12 rating instead of a PG because of the single use of the word spastic”

Meaning that somewhere out there someone really objects to the word spastic being used.

Stanley Fish takes up the issue of empathy and Judge Sotomayor’s nomination to the Supreme Court in today’s New York Times. He brilliantly reminds us that even though the law is replete with the language of objectivity and process, that is something of a fallacy because the law, like any other enterprise, is still subject to human bias and interpretation.

Before a fact situation is presented to a court, it has been sliced and diced and served up as a (legal) dish already carved, in response to a set of standard and obligatory questions. Under what rubric is it to be placed — tort, contract, fraud, due process, duty of care — there are thousands of them and each demands different procedures and question. What level of scrutiny shall be applied — rational, intermediate, strict — that is often related to another question: Which party bears the burden of proof? And then there are the innumerable tests designed to guide inquiry. Do the plaintiff’s claims fall under the statute? Was the state action that benefits religion enacted for a secular purpose?

Neuborne’s point is that by the time all of these routines have been run, the institutional answer to the question of record has been arrived at or is clearly in sight. It is only then, when most of the work has been done by process, that something like personal predilections or empathy might kick in.

But I don’t think that’s quite right because the institutional constraints – the rubrics, levels and tests – can themselves be interpreted in different ways, and the differences may well be calibrated to the kinds of considerations included under the term empathy. If this is so, if a judge’s understanding of the nuts and bolts of the legal machinery is itself interpretive, the sympathies and allegiances she has will be in play from the very beginning of her consideration.

He goes on:

That is what Sotomayor’s critics are worried about. Sen. Jeff Sessions (R-Alabama) complains, “She seems willing to accept that a judge’s rulings may be influenced by the judge’s personal backgrounds or feelings.” But whether this is a matter of concern depends on just what Sotomayor is imagined to be accepting. Is she accepting an account of the way human beings invariably perform.? Is she endorsing a psychology? Or is she accepting a view of how judging should be done? Is she endorsing a method? Is she being descriptive or prescriptive?

If Sotomayor is being prescriptive, if she is saying, “I will actively (as opposed to involuntarily) consult the influences that have shaped me at every point of decision,” she is announcing a method of judging that invites Sessions’s criticism.

But if she is being descriptive, if she is saying only that no one can completely divest herself of the experiences life has delivered or function as an actor without a history, she is announcing no method at all. She is merely acknowledging a truth (as she sees it) about the human condition: the influences Sessions laments are unavoidable, which means that no one can be faulted for viewing things from one or another of the limited perspectives to which we are all (differently) confined.

Even though Sotomayor’s critics haven’t said so explicitly, functionally they can’t be accusing her of a bias because, as Fish points out, we’re all biased, but rather that the experiences that mediate her interpretation are different from those of Sen. Sessions, for example. This is when the racism argument really gets turned on its head. Who’s being the racist now?

Fish ends his post with a great anecdote about Herbert Wechsler, known for the formalist lecture “Toward Neutral Principles of Constitutional Law” where he argues for absolute neutrality and autonomy in the law. (Wechsler also argued on the side of the government in Korematsu v. United States.)

“In the days when I was joined with Charles Houston in a litigation in the Supreme Court before the present building was constructed, he did not suffer more than I in knowing that we had to go to Union Station to lunch together during the recess.”

One might wonder whether Houston would equate the lunchtime inconvenience suffered by his colleague with the humiliations he had to endure every day of his life. One might be amazed, as Payton was, by Wechsler’s blindness to what he is saying.

This is, of course, the kind of faux liberalism that legal realists rail against. Wechsler had no idea what Charles Houston, the Harvard-educated, African-American legal scholar, had gone through. And he couldn’t have possibly known by virtue of having to go eat lunch a couple of blocks away.

And get this done already.

A New York Times/CBS poll has some enlightening numbers on Americans and health care:

“But they clearly indicate growing confidence in the government’s ability to manage health care. Half of those questioned said they thought government would be better at providing medical coverage than private insurers, up from 30 percent in polls conducted in 2007. Nearly 60 percent said Washington would have more success in holding down costs, up from 47 percent.

Sixty-four percent said they thought the federal government should guarantee coverage, a figure that has stayed steady all decade. Nearly 6 in 10 said they would be willing to pay higher taxes to make sure that all were insured, with 4 in 10 willing to pay as much as $500 more a year”.

Got it? No more wondering about whether Americans like, need or are ready for guaranteed coverage. We are all of the above. When you’ve got Republicans saying Democrats are more likely to improve anything I think it’s time to call it quits and let the damn thing happen already.

David Rivkin and Lee Casey, a couple of Republican Justice Dept. lawyers, wax about the issue in today’s Wall Street Journal. The two lawyers point an implied finger and an accompanying ha-ha at liberals for interpreting in the constitution a right to privacy and abortion rights.

This is how they start their editorial:

Is a government-dominated health-care system unconstitutional? A strong case can be made for that proposition, based on the same “right to privacy” that underlies such landmark Supreme Court decisions as Roe v. Wade.

Haha, you stupid liberals, all these nonsense constitutional rights you’ve been making up for the last 50 years have come back to bite you in the ass. Hahahaha.

Well, they put it a little differently than that, but still:

It is, of course, difficult to imagine choices more “central to personal dignity and autonomy” than measures to be taken for the prevention and treatment of disease — measures that may be essential to preserve or extend life itself. Indeed, when the overwhelming moral issues that surround the abortion question are stripped away, what is left is a medical procedure determined to be “necessary” by an expectant mother and her physician.

If the government cannot proscribe — or even “unduly burden,” to use another of the Supreme Court’s analytical frameworks — access to abortion, how can it proscribe access to other medical procedures, including transplants, corrective or restorative surgeries, chemotherapy treatments, or a myriad of other health services that individuals may need or desire?

There are a couple of problems with their logic. One is that abortion is a right, not an entitlement–and it’s kind of scary that Republicans don’t know the difference between the two. There is a big difference between the state saying you can’t do X, and the state saying the government is not going to allocate money to pay for you to do X. You’d think Republicans would get that distinction, especially since they love passing laws refusing to have taxpayer dollars go to abortions.

There are a couple of remote scenarios in which Rivkin and Casey’s argument might hold a minimal amount of water. These are the boogeyman circumstances the Republicans have been trying to scare people with for the past few months. One is the nearly impossible chance that the healthcare reform bill establishes a national healthcare system and outlaws private options. Regardless of what Republicans say, that’s not on the table right now, and it has no chance of actually happening.

The second is another Republican favorite whereby a public option in the bill–allowing for private citizens or businesses to opt to purchase a public healthcare option over a private one–will eventually price out the private options. Eventually, say the Republicans the public option would eventually become the de facto national healthcare system because no private actor could compete. That scenario is also very unlikely. All you have to do is look at the medicare supplement insurance staple industry. Medicare may have priced some private actors, but it certainly hasn’t completely taken over that market. Remember, Rivkin and Casey’s doomsday scenario only works if the government’s is your only option, and its limitations become a de facto prohibition.

But even if Republicans are right, even if the public option becomes so pervasive that it’s no longer an option, but your only choice, a potential constitutional issue is hardly an argument against it.

We have far more rights vis-a-vis our governments than we do when dealing with private insurance companies. This is where Republicans usually chime in and inform us that when you have private actors providing healthcare, the marketplace usually sorts everything out. But they don’t tell you that when you have five HMO providers refusing to cover the same service, there is nothing you or the marketplace can do about it. And, according to the landmark Supreme Court case, Blue Cross Blue Shield’s Boot v. Your Ass, there is nothing you, the marketplace, the Constitution, or the Supreme Court can do about it.

All of the sudden that mythological constitutional issue is looking pretty good, isn’t it?

I really don’t like the Herald’s comments section. I don’t think this the fault of the newspaper. But the comments are usually stupid or reactionary, sometimes racist, and never remotely funny. They really don’t say much of the collective intelligence of our community.

(Yeah, I know it’s a little unfair to judge Miami by the intelligence of the comments on Herald stories. The intelligent people in Miami generally have jobs and don’t comment on newspaper articles–though I’d like to think they comment on this blog–or they just don’t read the Miami Herald.)

Every time I venture into the comments section, I get the same feeling I did that one time I watched a video of a beheading by Muslim extremists. I felt angry at myself because I knew exactly how the video was going to make me feel, but I still watched it.

All of that changed today.

Earlier today the Herald put up a tragic, wire story about a Continental pilot who died midflight over the Atlantic while piloting a plane going from Brussels to Newark. The story is sad, but it comes with the silver lining that the copilots were able to land the plane safely and save the lives of 247 passengers.

However, “roger”, commenting on the Herald website, saw things a little differently:

And apparently turning into a Banana Republic.

Read the article by Simon Johnson, a former chief economist for the IMF. It’s very interesting and introduces a concept I hadn’t thought about before. That is that if something is too big to fail then it is too big to exist. Basically, if a financial institution is so large and influential that it’s failure leads to our demise then we probably should not have it around in the first place. A bit like the argument against nuclear weapons.

Another thing it brought to mind is that I don’t think I’ve yet heard anyone explain what too big to fail actually means. I mean that I haven’t read one article clearly explaining what the consequences of one of these institutions failing would be (if you have one please send it to me). I’ve heard that if we do too little we’ll have economic stagnation like Japan in the 90s. If we do too much then we have crippling debt that our children’s children will have to pay. But what exactly happens if these too-large institutions fail?

This is one of the scenarios Johnson thinks we have to look forward to:

“The global economy continues to deteriorate, the banking system in east-central Europe collapses, and—because eastern Europe’s banks are mostly owned by western European banks—justifiable fears of government insolvency spread throughout the Continent. Creditors take further hits and confidence falls further. The Asian economies that export manufactured goods are devastated, and the commodity producers in Latin America and Africa are not much better off. A dramatic worsening of the global environment forces the U.S. economy, already staggering, down onto both knees. The baseline growth rates used in the administration’s current budget are increasingly seen as unrealistic, and the rosy “stress scenario” that the U.S. Treasury is currently using to evaluate banks’ balance sheets becomes a source of great embarrassment.”

So if this is what we have to look forward to, could letting these institutions fail be much worse?

Ode to the cute blonde.

Born-again Christian Republican John Ensign admitted he had an affair with a woman on his campaign staff, who was also married. I don’t believe that having an extramarital affair affects a politician’s capacity to carry out his job, however, since then-Congressman Ensign voted to impeach President Bill Clinton in 1998, he disagrees with me. Any minute now, I’m expecting Ensign to hold himself to his own high standards and resign his office.

We’re waiting, John.

My favorite argument used by judges has to be the claim that they personally think a law they’re reviewing for its constitutionality is absurd, but that it’s outside their power to overturn it. An excellent example is Justice Stewart referring to the law in Griswold banning contraceptives as an “uncommonly silly law,” but then refusing to overturn the law because he didn’t share the majority’s view that the Constitution created some degree of privacy protection. I think either Scalia or Thomas, or both, used the device in the sodomy case, Lawrence v. Texas, as well as in several other cases.

This is a very useful tool for judges because they can seemingly uphold very stupid laws and build up their liberalism street cred in the process. And in that, it is extremely self serving. What’s more emblematic of the liberal judge than someone who can cooly put aside his political preferences, especially when they’re in direct opposition to his legal instincts? Or as Duncan Kennedy puts it,

The essence of individualism is the making of a sharp distinction between one’s interests and those of others, combined with the belief that a preference in conduct for one’s own interests is legitimate, but that one should be willing to respect the rules that make it possible to coexist with others similarly self-interested.

The judge, as the agent of the state, must be able to not only respect “the rules that make it possible to coexist with other similarly self-interested,” and tolerate views that are jurisprudentially opposed to his, he must also neglect his or her individualism and have no preference at all.

But we know that this is an unattainable goal. To perceive is to judge, and no judge is really unbiased. We know that everything is subjective, including judges’ “objectivity.”

(For the most part, modern journalism worships a similar false idol, often by sacrificing quality for the sake of “objectivity“.)

Even though liberalism sees itself as having no orthodoxy, except the freedom of each person to choose his/her version of the good life, that in itself is an orthodoxy. The claim that liberalism makes no distinction is simply false because liberalism prefers liberalism, and that is a substantive judgment.

This is I suppose my–admittedly late–response to those who seek to seek to gain politically by highlighting Supreme Court nominee Sonia Sotomayor’s biases. Of course, Sonia Sotomayor is no more biased than any other judge.

However, the claim that everything is political doesn’t get us very far. When the Critical Legal Studies devotees say “everything is political” they mean “everything is political.” So what follows from this? “The ultimate goal is to break down the sense that legal argument is autonomous from moral, economic, and political discourse in general,” says Kennedy. But this is merely a descriptive goal—a call to some degree of awareness—even if some CLS academics would not agree. Critical Legal Studies basic disdain for current institutions has not been followed up with any normative proposals.

The awareness is an important one, especially because it immediately makes us suspicious of societies or enterprises that proclaim themselves to be above politics. I say societies specifically because the story that sent me on this whole rant was the response of the Cuban national assembly to the U.S. Supreme Court’s refusal to review the case of five Cuban spies convicted in Federal Court. (Ever since the spies were captured and tried, Cuba has used them in an aggressive anti-American political campaign, and refers to the them as the “five heroes.”)

Reacting to the Supreme Court denying review of the spies’ case, the Cuban Assembly said, “The judges did what the Obama administration asked them to do.” The Cuban national assembly knows that the president of the United States has no influence over the cert process, just like the Justices above knew those laws were stupid. But the Cubans are playing a different game–politics.

The official line of the Cuban government is that Cuba is a society above politics, above the bickering, and the culture wars. But of course it isn’t. If anything, the Cuban government is more political than most governments, and certainly more political than democratic governments. It thrives on conflict and enmity. The difference between Cuba and societies with overt political attitudes is a healthy system of critical review, where generally only those with fringe followers, like the Glenn Becks and the Rush Limbaughs say stuff so outside the norm.

So, don’t believe it when they tell you politics shouldn’t factor into an enterprise because, really, everything is political. And whoever tells you otherwise is probably just playing politics.