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This is worth next to nothing. I'm not generally very good at predictions (although I did correctly predict who would be the final Cylon, nine months in advance). But here's my suspicion of what will happen in the GOP primary for the 2012 race for U.S. president.

Currently Newt Gingrich has been enjoying his brief turn at the top as the non-Romney candidate, as Michelle Bachmann, Rick Perry, and Herman Cain have done. Like the others, he will soon drop. Indications are strong that Ron Paul will briefly occupy the top spot, perhaps even winning the Iowa caucuses and the NH primary. During this time, he'll finally get the exposure his fans have wanted. Moderate and mainstream conservatives will see how significantly he wants to dismantle the federal government. Libertarian Republicans will see that he isn't really one of them but is just an extreme federalist who doesn't want the federal government doing much, but his social conservatism will turn them off. Social conservatives will stop being fooled by his pro-life and other socially-conservative positions when they see that he has no backbone to stand of for such concerns on the federal level. Non-isolationists will be offended at his unwillingness to engage in any ventures of foreign policy to help around the world, and anyone concerned about national security will be scared to death of his willingness to dismiss Iran by saying we just need to be nice to them. To many, he will make Obama look like Dick Cheney. Most important, people of any moral conscience will see his willingness to pal around with racists and tolerate the use of their publications for political gain.

That will leave Jon Huntsman and Rick Santorum as the two unvetted candidates. Each will have a turn as the non-Romney, for perhaps a couple weeks each. Huntsman will probably be first. His willingness to work in the Obama Administration and his out-of-context quotes that have wrongly led many to see him as a moderate instead of the genuine conservative that he is will lead Santorum to have a brief time in the spotlight. He is mostly untested. He's known as a social conservative. The left has successfully portrayed him as an extremist, despite the fact that his views are pretty mainstream for social conservatism. That will all occur in an extreme way, and he'll be given the Sarah Palin treatment, as Bachmann was. His statements will be taken out of context. Some of his views that are quite mainstream will be made fun of as neanderthal and called beyond the pale. He does have some strange notions of the Constitution that might or might not become the main issues. I tend to think they won't, because the focus from the left will be not on his odd views but on his mainstream once, which they will portray as ridiculous. But I think his views of foreign policy will be his undoing. GOP primary-goers will dismiss the left's hand-waving on those issues and will worry about views of his that just don't sound reasonable to most Republicans. I know only a little about his views on such matters (I haven't had time to watch more than bits and pieces of the debates, and he's not getting much attention), but being in the room when one debate focusing on those issues early on happened to be playing led me to think that he was making Ron Paul sound mainstream.

What will happen after that is wide open. At this point we'll be getting to a number of bigger states, and the early states will have been all over the map, leading each one (and several are simultaneous) to go in different directions. Candidates with strengths in certain regions will win more states in those regions. It's possible there will be a consensus. The non-Romney supporters will eventually concede and go with Romney, or the Romney supporters may eventually settle on some other candidate. But I'm guessing this will go on for a while, perhaps with no candidate receiving enough delegates to have a clear candidate by the time of the convention. This may well be the first brokered convention in decades. Just four years ago, pundits were claiming that we could never have such a thing again. I'm not so sure. This year looks like a really good chance for it. My suspicion is that Romney will eventually win, although I wouldn't rule out Huntsman, and Gingrich may still have a chance. I don't think Paul, Gingrich, or Santorum will be the nominee. But I can't even really be sure of that. I'd be a little surprised if the first few states turn out to settle things as quickly as they usually do, however.

If this is all right, the GOP will have a harder time using the convention to promote their candidate, which will help Obama a bit. But at the same time he'll have a harder time crafting his own campaign with an opponent in mind, which will mean he won't be able to craft his public image or message in contrast to anyone in particular. There might be some advantage in that, because he'll continue to be able to run against the House Republicans, as he's been doing so far. But I suspect it will frustrate him greatly, and it will play to his weaknesses as a president rather than his strengths as a campaigner.

As to who will win, my prediction is that if Romney gets the nomination he'll have a strong chance of winning the presidency. I think the same is true of Hunstman. Perhaps he would have an even easier time, because he doesn't have a record of changing his mind on one big issue, like Romney has, with every other minor statement being misused out-of-context to pretend he can't take a stand on anything. Perry could pull it off but would have a much tougher time of it, and I think he would more likely lose than win. I don't think Gingrich, Paul, Bachmann, or Santorum could have much chance against Obama unless he tanks much more than he has so far (and he's just gotten a bit of a boost, actually). Gingrich would clean house in the debates, of course. But all four figures have lower positives and as-high negatives as Obama. Even Obama's negatives would, therefore, not help them.

If GOP voters want to make Obama a one-term president, their best shot will be to focus on Romney or Huntsman. They'll have to learn to be more charitable than people largely have so far in interpreting what they've said, and they'll have to settle for the inevitable conclusion that they won't like everything about their candidate. I suspect any other path is likely to lead to another term for Obama, and GOP efforts at some notion of ideological purity would end up leading to what it led to in 2010, this time with the presidency at stake rather than the control of the Senate (if Colorado, Delaware, and New Mexico had nominated more mainstream candidates we might have ended up with a Republican Senate at present).

Here are some things Herman Cain has said about abortion:

1. He's opposed to abortion in all circumstances, but it's not the government's role to make that decision.
2. The president has no authority to order people not to seek an abortion.
3. He would appoint judges who know the Constitution contains no right to abortion.
4. He would veto legislation funding Planned Parenthood.
5. In the case of rape, it comes down to a family & doctor choice. He's opposed to it morally but shouldn't tell the nation what to think, because the government shouldn't be making our decisions on social issues.
6. The government shouldn't make decisions on whether abortion should be legal.
7. People shouldn't be free to seek abortions. Abortion should not be legal. (This was said immediately after 6.)
8. He opposes abortion with exceptions.
9. He opposes abortion except when the mother's life is threatened.

Sources: Huffington Post, CNN, Wikipedia

When it comes to Herman Cain's view on abortion, we seem to have a choice among (a) the uncharitable dishonest-about-his-views interpretion, i.e. he's not consistently being honest about what he thinks (b) the uncharitable intelligence interpretation, i.e. he's holding a flatly inconsistent set of beliefs in a pretty explicit way, (c) the uncharitable dishonest flip-flopper interpretation, i.e. he's not being honest about some change of views (and one such change has to be within minutes, (d) the uncharitable misuse-of-language interpretation, i.e. he's perhaps saying someone, perhaps only some of the time, that everyone misunderstands because of a highly idiosyncratic use of terms, or (e) he's got such a nuanced set of views that I can't even figure out how to put it together, with all my training in doing so.

(e) is the most charitable, but I'm extremely skeptical that he's so finely-tuned in his language without one of the others being true. I tend to think (d) is the least uncharitable of the others. Perhaps he means "it's not the role of government" and "it's the person's choice" in odd ways. You can, after all, say the second while thinking certain options should be illegal. You just wouldn't say so in an abortion discussion without being radically misunderstood. You could, also, say the first while thinking it's the role of a legislature but not the role of the executive or legislature to countermand the wrongful decision of the courts, but again you'd be radically misunderstood. That's about as good as I can do to put this together, and if it takes something like that, I think he's politically finished. There's no way the general public is going to be willing to be that charitable. But that may well be what's going on.

So here's my proposal. I'm going to take Herman Cain to hold to the following positions, all of them compatible with all of the above statements if they might have pragmatically-odd by semantically-possible meanings, and I'm going to see if I (or a commenter) might find a statement by him that does not fit with this view. So here's the approach I have in mind:

So (1) means abortion is morally wrong in all cases, but it's not the federal legislative and executive's right to do anything on that issue anymore, given the Supreme Court's wrongful intervention on the issue. (2) means the president can't tell people what to think and has been removed from being able to have any direct influence on abortion law at least at the very general level of deciding when it is legal to have an abortion in cases when the Supreme Court takes it to be a fundamental right. (3) clearly states that the Supreme Court wrongly decided Roe v. Wade, despite several claims that he hasn't made such a statement from social conservatives, and his preference for judges who would seek to do what they could to reverse or roll back that decision. (4) signals his opposition to federal funding for abortion or for abortion providers, something a president can have some say in. (5) signals his moral opposition to abortion in rape cases but his willingness to think that (i) that's a case when the law should be less clear than he thinks morality is, (ii) he as president shouldn't dictate what Americans' views on such matters ought to be, even if he has a clear policy preference, or (iii) given the Supreme Court's dictates, it's no longer the president's position but is given to a woman and a doctor to decide, even if he would prefer that the Supreme Court hadn't done that and would undo that dictate. (6) If he means the legislative and executive branch of the federal government here, and he isn't giving his ideal preference but his understanding of the limited role the Supreme Court has given him as president, then it's consistent with his view in his immediate next statement. (7) Ideally abortion should be outlawed, even if it's not possible to do so right now on the level of the legislature and executive. (8) Abortion is almost always wrong. There are exceptions, and he's aware of at least one. (9) One of those exceptions is when the mother's life is threatened, and there may or may not be others (and from above rape is not one of them).

This does strike me as a consistent position, and it does mean taking some of his statements in odd ways, but that's clearly more charitable than taking him to be lying about what his views are, lying about some change in his views, or so confused on the issue that he can't put together meaningful back-to-back statements explaining coherent positions. He does have an Obama-like history of overstating things and having to take them back, but his clarifications don't usually have the character of stating a view he holds and then backing off to a view he doesn't hold, and they also don't usually have the character of being corrected but embarassed to admit it. They usually have the character of not realizing how he might be misinterpreted and then being more careful the second time. It's just that this would be a case where his attempts to be more careful are only partially successful.

So that's my proposal of what I think he most likely is thinking. I admit that there are a couple points where it's a little bit of a stretch, but I don't think the evidence justified being less charitable at this point, and I'm not going to support misrepresentation  even by accident, which is I think what's going on if people are legitimately convinced he's pro-choice if he really isn't. He's certainly got a problem stating his views, but I'm not sure the general-election opponent is any better at expressing his views.

I can't see why pro-life voters would want this man representing them on this issue, but a vote for a president isn't necessarily a vote for the ideal person to represent your cause. It's a vote for the candidate that you think is better than the others. In a primary, that means the person who can best balance (a) the ability to beat the other candidate and (b) the ability to be a decent enough president to be preferable to the other party's candidate. In a general election, it's almost always a choice between two candidates as to which one will be better than the other on the issues you think are most important. It may turn out that someone who isn't the best person to represent your views on an issue does satisfy these criteria. Whether that person for pro-life Republicans is Herman Cain is, at least, not yet settled by this issue, in my view (although there are other issues that might serve as possible obstacles, and I could see this issue turning into one, depending on further statements that I haven't seen or he hasn't yet made). It partly depends on other people, too, but I have a better sense of what they think, at least the ones with much chance of winning.

Henry Neufeld has a nice analysis of the Dominionismism stuff. See my comments for an analysis of Chip Berlet's weird view of what Dominionism is.

In reading Berlet's article, it occurred to me that we need a term for the conspiracy theory that George W. Bush stole the presidency in 2000 and again in 2004. Just about no one seriously entertains the idea that 2004 should have gone to Kerry if the process had been followed legally but that Bush's cronies in Ohio stole it for him. Apparently Berlet is one of those "just about no one". I say that's grounds for calling him a conspiracy theorist even apart from his Dominionismism.

I would contend, further, that thinking Bush stole the election in 2000 is even a conspiracy theory, given that the recounts done by the Florida newspapers ended up concluding that Gore could have won only if they had done a recount using the most liberal standard available, one many Democrats had been opposing.

(Not to mention that I think Bush v. Gore, while not the best opinion the Supreme Court could have produced, was generally rightly-decided. That the crucial premise of their decision was supported 7-2 indicates that there probably really is something to their concern. I'd call that bi-partisan. That the solution of the 2 who didn't join the majority but accepted that point would have violated federal law suggests that the majority were probably in the right direction, even if they weren't right on all the details. But I need not rely on that to claim that it's a conspiracy theory to think that Gore would have won but for some manipulation on the part of the Bush team. All it requires is that Gore would almost certainly not have won no matter how the Supreme Court had decided, unless they had just declared him the winner and done what the left has consistency pretended they did with Bush.)

In any case, I'm proposing a name for this conspiracy theory in the spirit of Birthers and Truthers. I call these people Stolers. It's just as bad a term as the others, and it perverts the language just as mightily, so I think it will do nicely. Besides, it's the right number of syllables. With 'Dominionismists' I failed at achieving that parallel. But if Henry is right on the different kind of mechanism producing Dominionismism, then maybe it shouldn't be parallel. (See his response to my comment on his post.)

I've determined that there's a political faction out there that needs a name, because it's a group of conspiracy theorists with a particular agenda that's becoming somewhat influential, and it's achieving its agenda fairly well. Its agenda is to discredit mainstream evangelicalism by confusing it with extremist figures who have nearly zero influence on much of any importance. I'm going to call this group the Dominionismists, because their whole agenda depends on this fictional line of thought called Dominionism [sic].

Dominionismism begins, as far as I can tell, with a sociology Ph.D. dissertation at the University of California at Berkeley, by a woman named Sara Diamond. Diamond's dissertation sought to expose a group of Christians she was calling Dominionists [sic], who held the view " that Christians alone are Biblically mandated to occupy all secular institutions until Christ returns". Dominionismists like to lump together such diverse figures as Abraham Kuyper, Francis Schaeffer, R.J. Rushdoony, James Dobson, Gary North, Greg Bahnsen, D. James Kennedy, Jerry Falwell, Tim LaHaye, Randall Terry, Pat Robertson, Charles Colson, and Nancy Pearcey as influential figures in the development of Dominionism [sic].

Now while most of these people are nearly household names to me, many people reading this might not know who any or many of them are, so let me break it down a little. Abraham Kuyper was a prime minister in the Netherlands a little more than a century ago, and his vision of a Christian interaction with politics was that Christianity includes both (a) influencing non-believers with the good news of salvation and (b) attempting to do what good we can in the world, and that involves seeking to implement policies that Christians agree with. He thought it was perfectly proper for people of any mindset to seek to implement the policies they thought would be best, and therefore Christians should implement policies that are based on principles they hold as part of their Christian worldview. He didn't think there was some biblical obligation for Christians to take over all the positions in every secular institution. He did think it was appropriate for Christians to seek a biblically-aware worldview that informs how they influence society for good, including occupying positions of influence.

Francis Schaeffer was of the same mindset, basically, and he was influential in bringing Protestants to care about the abortion issue, which before Schaeffer was mainly a Catholic issue. Schaeffer is more importantly credited with bringing evangelicals to care about theology, philosophy, and intellectual endeavor more generally, playing a large role in influencing evangelicals to go back into the academy that fundamentalists had left in the early 20th century as it was becoming more dominated by secularists and theological liberals. Schaeffer's main influence in evangelicalism is in opposing anti-intellectualism and calling on evangelicals to think through their worldview and the worldviews of those around them, considering what sorts of views are out there and influencing them and how to think more carefully for themselves whether their views fit with scripture and whether they fit together consistently. He emphasized the gospel message's importance in influencing every aspect of someone's life, with an impact on how you live, how you pursue your career, and what sorts of intellectual pursuits you engage in if you have a career that has any relation to such pursuits. Nancey Pearcey is a Schaeffer-influenced contemporary author who has published works that continue largely in the pattern of her mentor.

Some of the figures in the list are politically-active evangelicals of various stripes. D. James Kennedy was a Presbyterian minister who had a TV ministry that was very much not like most televangelists. His Reformed theology set him apart for one thing, compared with Baptist Jerry Falwell and Pentecostal Pat Robertson. All three spent time arguing on behalf of particular causes associated with the religious right, but Kennedy's theological background was much closer to Schaeffer's. Schaeffer spent time trying to rein them all in, according to Schaeffer's son-in-law Udo Middelmann (see his 9:52am comment here on 8-11-11), preferring to influence society with the gospel and to change people's minds with argument, rather than simply putting Christians in government positions with a disproportionate representation without changing the opinions of those whose worldviews did not support the agenda of those Christians. So here we have a further distinction among the figures in the list between those who want Christians to seek to occupy positions in government or to influence policy directly (without necessarily thinking Christians somehow have a right to all such positions, as Dominionism [sic] purportedly holds, and those who think Christians shouldn't even bother with that sort of thing but should instead seek to influence people's hearts, and then they'll vote their conscience.

Then there's a very different mindset out there called Christian Reconstructionism. R.J. Rushdoony, Gary Bahnsen, and Gary North argue that the proper Christian view of law and politics is a Christian theonomy, which means applying God's law as revealed in the Bible fairly directly in the laws of whatever society we're part of. Rushdoony argues for imposing penalties from the Torah for our day, including putting people to death for having gay sex or for getting married under false pretenses of virginity. Rushdoony also argued independently for several theses that have caught on among non-theonomists, such as the idea that the founders of the United States saw this country as a Christian nation and did not intend for the First Amendment to prohibit states from endorsing a particular Christian denomination but that it simply prevented the federal government from taking a stance among the Christian denominations. He saw the American Revolution as motivated in significant part by an orthodox Christian resistance to a secularized British government, and many in the homeschool movement have been attracted to those ideas, without necessarily buying into the whole theonomist project. He also saw the institution of slavery as relatively benevolent, opposed forced integration and interracial marriage, and bought into Holocaust deniers' claims that the number of Jews killed by Nazi Germany has been wildly exaggerated.

It's not hard to see the huge gap between standard Religious Right social conservatism and its claims of this being a Christian nation that needs to be restored to its roots and the kind of vision Rushdoony had, even apart from the racial elements I just mentioned. It strikes me as irresponsible to lump him together with Francis Schaeffer and those influenced by him, especially given Schaeffer's many recorded instances of resisting exactly the kinds of views Rushdoony developed. Indeed, it strikes me as an error of the magnitude of some of Rushdoony's own historical nonsense to consider there to be such a view called Dominionism [sic] that Rushdoony, Schaeffer, James Dobson, and all the other people in the list somehow share and that it seeks to get Christians and only Christians into all the influential positions in secular society. Those who are perpetuating this lie are conspiracy theorists, and it strikes me as irrational and contrary to the evidence as Birtherism and Trutherism.

Dominionismism is of the same sort, except for one thing. Terry Gross (most recently here but see also here) and Diane Rehm (e.g. here) of NPR regularly have these people on their shows and let them spew forth this historically inaccurate and slanderous nonsense with hardly a critical comment or request for genuine support, and then they treat it as a big secret conspiracy that no one is interested in investigating. A recent article in The New Yorker (see Ryan Lizza's hit piece on Michele Bachmann) presents this conspiracy theory as investigative reporting. Dominionismism has mainstream support among influential purveyors of information. That's the big difference between it and Birtherism and Trutherism, because prominent people have raised suggestions along Birtherist and Trutherist lines, and the mainstream media just laughs at them. Just look at how Donald Trump was treated by Fox News when he was spouting off questions suggestive of the Birther thesis. They gave him time on their shows, as they probably should do with someone of his influence claiming to run for the presidency, but it was obvious that no one who actually worked for the network thought what he was saying had anything to it.

There are figures in the Dominionismist movement who are more careful, for example Chip Berlet (and he says the work of Sara Diamond is too, but I can't testify to that, and it's obvious to me that many using her work are not very careful). Even so, some of what he says strikes me as still very problematic. For one thing, he sees Sarah Palin as a dominionist [sic]. I've seen no evidence that Palin thinks Christians and only Christians should occupy every position in secular society. I have seen evidence that she thinks it's good for Christians to seek office and to transform society for the better, with what's better determined in part (and for all I know only in part, for all I've seen) by what can be gleaned from the Bible. He thinks there's this large class of people who think the creation mandate given to Adam and Eve to have dominion over the planet is really about Christians having dominion over everything rather than the far more common (and far more plausible) interpretation that we all have an obligation to be stewards over God's creation, and it's just those with the right views who are doing so responsibly (and Christians should think their views are more in line with what's right, just as any other group would think their views are more in line with what's right, or else they obviously wouldn't happen to have those views but would have other views). Dominionismists would do well to look at Bertlet's chart showing views along the continuum between Triumphalism and Christian Reconstructionism, and I would inform them that people like Sarah Palin, Michele Bachmann, and Rick Perry are at most Triumphalists, as far as I can tell, and certainly not in the non-existent camp of Dominionists [sic] as Diamond defines the term.

I should also note a massive misuse of the term "Dominion Theology". There is actually a view called Dominion Theology, but it has nothing to do with these issues. It's associated with the Vineyard third-wave Pentecostalism and people like John Wimber and C. Peter Wagner, who see Christians' duty as not taking the government and secular institutions back from secular society but as taking the world back from Satan's control, which has been the reigning order since the fall. Christians have the right and authority, according to this view, to exercise dominion over demons and reclaim God's authority over the fallen world by prayer and confident assertion of God's reign. People who practice Wagner's methods will walk around cities proclaiming that God has reclaimed this and will speak to demons declaring them no longer to have dominion over the city. This, as should be obvious to anyone thinking about it, is such a clearly distinct phenomenon from anything to do with the relation between Christians and the government that it's amazing not only that they've been so often confused but that so many people have now attached the name of their theology to the non-existent Dominionism [sic] that it's largely taken over Google's searches for the term. It's actually hard to find any references to actual Dominion Theology by searching for that expression, and the first one I turned up was someone confusing them as a wing of Dominionism [sic] (one of three wings, according to that site, and Rick Warren has somehow managed to unite the three, as if that could make any sense; Warren is well-known as a political progressive/liberal except for some socially-conservative views).

[cross-posted at Evangel]

The usual expectation of the Justice Department when a federal law is being challenged in court is to defend the law, as long as some good-faith argument can be mustered in its defense, even if the administration in power at the moment disagrees with the law on policy grounds. The Obama Administration has chosen not to defend the Defense of Marriage Act (DOMA), a law that it had been defending with what it had taken to be good-faith arguments for most of the Obama presidency.

The president's change of heart on this issue isn't just a question of consistency between his past statements (including what he ran his campaign on) and his current views, because it's possible to change your mind on important issues. It also isn't just about whether the solicitor general always has to defend policies that the sitting president disagrees with. There are plenty of cases of other presidents choosing not to defend laws that are challenged in court.

What especially worries me about this current move is that there are people on both sides of the issue who do have good-faith arguments. They each believe there are convincing arguments. The Obama Administration acknowledged this by presenting those arguments. They seem to have gotten tired of offering arguments they no longer agree with (on the more charitable explanation: I would say "or have been politically pressured to abandon" on the less charitable explanation). Barack Obama was convinced enough by such arguments, if we take him to be remotely honest, that he defended the law during his run for the White House. He directed his solicitor general, who is now his second Supreme Court appointee, to defend the law in the courts. But if he's supposed to defend the law unless he thinks there are no good-faith arguments for it, that means he implicitly has indicated that he (no longer?) thinks there are good faith arguments for it.

I've been thinking about the implications of this, in light of one of the key themes that got him elected. He talks about putting yourself in the shoes of your political opponent, thinking how they think, coming to understand them so that you don't simply present them as evil incarnate. They differ from you on policy matters, but it's often based on core values that we all share, just applied differently (and in your own view incorrectly). In other words, he spends quite a lot of energy calling on people to do politics differently, in a way that recognizes they have good-faith arguments for their positions.

Now this isn't the first place where I see a conflict between that message, which is a major theme of his book The Audacity of Hope, and how he actually describes his political opponents when disagreeing with them, which strikes me as not abiding by his own advice. I could give numerous examples from that very book, but I don't have a hard copy from the library yet, so I'll have to come back to that at another time. (But see my discussions of his comments about Bush's Supreme Court picks for a clear example of this.)

I have to wonder if this is another example. By implicitly indicating that he doesn't think there are good-faith arguments for DOMA, is he therefore tarring all proponents of DOMA, including every member of Congress who voted for it (and it was a popular bill on the Democratic side) with having no good-faith arguments for the bill? They were all supporting it disingenuously, in other words. What would motivate them to support it if they had no good-faith reasons to support the law in principle? Presumably corruption, right? Is he asserting that of all supporters of DOMA, including the Senator Obama who ran for president in 2008 and succeeded in getting elected, who went on to instruct his Solicitor General Elena Kagan to defend the law with arguments he was claiming were good-faith arguments? The arguments often given about his inconsistency on this issue are too simplistic, given that people really can change their minds in good faith. Perhaps he has (though I admit some skepticism). But I'm not sure he can consistently claim that there's no good-faith argument without thereby admitting deception and political opportunism on his own part.

The only way out of this argument I can see is if he's going to insist that you can think there are good-faith arguments for a position but still refuse to defend it. But that does go against significant tradition, and it has him falling afoul of another problem he raises in his book, and that's the biggest criticism he thinks he has of the Republicans under Bush. He accuses them of being unwilling to abide by how things have traditionally been done. Some issues he picks on involve issues where he sees a constitutional violation. (On many of those issues, I suspect he's changed his mind and simply continued the Bush policy, since he mostly had in mind war on terrorism issues, where his policies haven't different much from Bush's.) One place he applies this is to the so-called "nuclear option" issue in the Senate, where he thought they should continue to allow the filibuster in judicial nominations, in part because it's a longstanding tradition. Now he's going against a significant tradition, if he thinks there are good-faith arguments, anyway.

So either way, he's going against a major theme in his book.

There are several different things someone might mean when they speak of imposing religious beliefs on those who don't hold them. There are two different axes to pay attention to. One is what is meant by "imposing", and the other is what is meant by "religion".

On the first axis, what is meant by "imposing", I can think of a number of things in decreasing order of severity:

1. Forcing people with threat of force or imprisonment
2. Coercing people by some manner less severe than force or threat of imprisonment (e.g. giving them incentives like a right to vote, to drive, to hold an independent job) that most Americans consider rights or close enough to it
3. Incentivizing by some manner less severe than coercion (e.g. government influencing social acceptance, giving tax credits or deductions, criminal penalties of smaller sort such as a fine)
4. Calling on people to change their mind or behavior, perhaps with strenuous argumentation
5. Explaining one's attitude on the issue
6. Simply stating what one's view happens to be

On the second axis, what is meant by "religion", I can again think of a number of things, in decreasing order of centrality to religion:
A. espousing a statement of faith or unfaith (that they might not actually agree with)
B. engaging in certain behavior that is motivated (on the part of those instituting the policy) merely by religious beliefs and not by any attempt at rational argument
C. engaging in certain behavior that is motivated (on the part of those instituting the policy) in part by religious beliefs but also by some attempt at rational argument, even if it's not a strong argument
D. engaging in certain behavior that is motivated (on the part of those instituting the policy) in part by religious beliefs but is held by most who hold it (even if controversially) by rationally-motivated arguments that, while disputed, at least are philosophically-driven in addition to or, for some, without the religious motivation
E. engaging in certain behavior that is motivated (on the part of those instituting the policy) in part by religious beliefs but is commonly held by most people, and for most people there is motivation that in their minds is on grounds entirely independent of religion

There are those who insist that even stating one's religious views counts as imposing them in an improper way, never mind preaching them. Fortunately, in the United States even 4A is protected speech by the first amendment. I'm not about to argue for 1 either, so we're really looking at 2 and 3. In the history of the world, we've certainly seen pseudo-conversions coerced at swordpoint or recantations of religious beliefs at the threat of martyrdom. In comparison with that, the idea that one is imposing one's religion merely by trying to make a case for it seems absurd. It's similar to the War on Christmas people complaining of Christians being persecuted in the United States just because schools are refusing to sing Jingle Bells in schools on the ground that the song is tied to a religious holiday. (In my experience, schools nowadays don't reduce Christian content at Christmas but simply include it alongside religious content for other religions' holidays too, so this complaint is getting even more stale than it was when I was younger, when such songs might have been excluded on the strange claim that they're somehow religious).

We do have some laws that are all the way down to 1E or sometimes 1D, however. For example, same-sex sodomy laws, bans on selling contraceptives, and bans on teaching evolution (all deemed unconstitutional now) were often religiously-motivated but did include arguments, often arguments widely accepted at the time, that didn't rely on religious premises. Evolution was thought not to be as well-supported as its proponents think. Creation science has insisted that evolution is just bad science. This isn't about whether their arguments are good but about what kind of arguments they are. Similarly, bans on same-sex sodomy were justified more by disgust at such acts than any biblical prohibition on them, and the Connecticut ban on selling contraceptives was supported by an argument about population control.

But there remain some laws at level 1E or 1D and some attempts at instituting laws at this level. Sodomy laws are deemed unconstitutional by the Supreme Court since 2004, but incest laws vary from state to state. It's not criminal in Rhode Island to have sex with a close relative, but you can't marry them unless you're Jewish (to allow for Levirate customs, I assume). In Ohio it's criminal to have sex with your children, but only the parents are criminal even if the children are adults. But in Massachusetts you can get 20 years in prison for having sex with your adult sibling, even if one of the two parties is demonstrably infertile or if it's a same-sex act, in either case removing any chance of genetic problems with offspring. Such a law is, as far as the courts have so far indicated, perfectly constitutional. Yet I can think of no easy argument against it unless you rely on beliefs that are either very controversial and often supported by religion or simply feelings of disgust. Arguments against pornography aren't all religious (see the feminist arguments), but we make distributing or producing certain kinds of pornography illegal in part because a lot of people have religious objections to it. (But I should say that this is clearly 1E and not 1D, since almost all religious people who object to pornography would agree with just about the entire feminist case against pornography, despite feminist claims to the contrary.)

In fact, 1E prohibitions occur all the time. Laws against murder or robbery fit into this category. People certainly have religious reasons for thinking such acts are wrong and ought to be given severe penalties. But the arguments for them are widely accepted by religious and non-religious people, and the secularly-accessible arguments are usually present even for religious people.

Coercion of sorts 2 and 3 is a little more commonly thought of as imposing religion, and there are some ways that can occur today in the United States with legal sanction (although for letters further down the list than happens with Islam). You're not going to find 2A or 3A in the U.S. today, but you will find both in Islamic countries. Most debates in the political context of the U.S. about imposing religion aren't even about 2B or 3B. The kinds of things that get labeled as Taliban-like behavior in the U.S. aren't about matters that have purely religious support. They at least make an attempt at rational argumentation. But that's also true of the Islamic laws requiring women to wear veils or prohibiting girls from being educated in any formal way. The supposed rational argumentation in both cases is extremely weak and based on false views of the capabilities of women or false priorities, elevating the concern with provoking male lust to a point where it overcomes eminently reasonable considerations about freedom in how women might dress and conduct themselves in public. Even the most stringent Christian concerns about modesty in women's dress are going to allow for much more freedom than you'll find in many Islamic prohibitions on female dress.

I think most cases I'm aware of on level 2 are actually all the way down to 2E. I'm thinking of laws that prohibit minority religious behavior, such as requiring a photo ID for a driver's license (which some orthodox Jews resist and even some Muslims, or like the Florida law requiring a photo ID not to have a face covered too much, which some Muslim women won't do). The attempted ban on peyote even in Native American religious ceremonies would have fallen into this category, but Supreme Court, in an opinion by Justice Scalia, overturned that. Banning certain kinds of political protests that someone might have religious reasons for insisting on doing, e.g. perhaps an abortion protest of a certain nature, amounts to a 2C imposition.

Level 3C is much more fair game for a lot of issues in the U.S. We don't imprison people for much at level C, but we do incentivize religious charitable giving by giving tax deductions, and we recognize (so far) a privileged position for opposite-sex unions to be called marriage at the federal level and in most states. That gives government sanction for something with some secular arguments but also based on religious motivation for many supporters of that policy, and it has an effect of cultural sanction or respect for certain behavior over other behavior. If we ban a certain religious act but without criminal penalty other than a fine, that would fall under 3C. There are religious and non-religious arguments for abortion protests that cross the line into illegality to a point of a fine but not to the point of imprisonment.

In the UK and Canada in the last couple years, pastors have been carted off to prison for preaching that same-sex sexual acts are immoral. This isn't quite an expectation of having a certain view, but it's prohibiting the speaking of such a view. It's a level 1 prohibition of level 6 behavior. Americans rightly deride such policies as contrary the value of debate as a basic, fundamental component of civil society. Speech codes that prohibit even stating your religious views if such views are considered offensive to someone, while indisputably unconstitutional in the United States, somehow manage to appear at most universities anyway. Even 4A is uncontroversially protected speech under the first amendment, unless it takes it to a level of actually provoking people to a fight or to the level of panic that would result by yelling "fire" in a crowded theater. Yet I've encountered a number of people who have considered it a clear case of immorally imposing one's religion, as if trying to persuade someone of a view you happen to find true is somehow wrong. Some take it to a further extreme, considering even the reporting of your view to be inappropriate when it's a controversial view that some might find offensive. Merely indicating that one believes Jews who don't accept Christ as the Messiah will go to hell would, to some people's mind, count as imposing one's religion in an immoral way. I find such an analysis so unhealthy that I almost consider it undeserving of a reply. But if pressed I would insist on the value of philosophical debate, the importance of understanding those who disagree with you, and the moral importance to certain religions of attempting to win people over to something they consider very urgent for all humanity, which prevents them from remaining silent if they're taking their own religion seriously.

What's the moral of the story? Mostly what motivated me to work through all this is that I think we should be wary of anyone who makes blanket statements about imposing religion, whether moral statements or simply factual claims that it has happened. It should be pretty clear from all this that it's never clear what people mean by that unless the specify, and the debate that might ensure once they do specify is probably worth having. Most people who make such comments haven't thought them through and could benefit from some effort to explore precisely what they mean. The term "imposing religion" is at this point so unhelpful as to be worth avoiding whenever we can, and in its place let's clarify the particular elements that we're concerned about, since the different items in both lists above certainly do involve different moral considerations.

Pro-choicers regularly accuse pro-lifers of favoring policies that increase abortions by (a) being one-issue voters who care only about laws restricting abortion (and politicians who will appoint, confirm, or be judges who will move things back in a direction that allows more of such restrictions), (b) actively opposing laws and policies that will decrease the number of abortions, or (c) promoting policies that will actually increase the number of unwanted pregnancies.

I'm sure there are people who are inconsistent in applying their pro-life principles by doing such things, but there are plenty of unfair ways to make such arguments, particularly when they ignore other beliefs held by many pro-life people that make their position fully consistent.

For example, contraception decreases the number of unwanted pregnancies, it is argued, and therefore pro-lifers who want to decrease the number of abortions ought to promote contraception. So the charge is that pro-lifers who oppose contraception are thus inconsistent.

It doesn't take much reflection to see that this argument is patently unfair to some pro-lifers. Consider the following proposal. Let's kill everyone on the planet. That would surely decrease the number of unwanted pregnancies. But no pro-lifer would advocate it, because it would be wrong to decrease the number of unwanted pregnancies by using such a method. Now no one is offering that proposal, but consider the proposal in question. The suggestion is that by promoting contraception we would decrease the number of unwanted pregnancies, and therefore we would decrease the number of abortions. You might think that this proposal is much better than simply killing everyone on the planet, which would also produce that same goal. In fact, it is. I'd be shocked to find anyone, pro-life or not, who wouldn't agree. But a proposal doesn't have to be as bad as killing everyone on the planet to be immoral, and at least one possible view would still consistently hold to pro-life views on abortion and anti-contraception views.

Some pro-lifers are simply opposed to contraception in principle. They think it's immoral. They surely don't think it's as immoral as wiping out all human life. But they do think it would be wrong to participate in it or promote it, and supporting policies that attempt to get more people to use contraception would indeed participate in and promote contraception. To such a person, it doesn't matter if they are opposing a policy that would decrease unwanted pregnancies. Decreasing unwanted pregnancies is a good thing, since it removes the occasion in which some people will do something immoral. But we shouldn't do something immoral ourselves in order to remove the situation where someone else will be tempted to do something immoral. So such a person is consistent with pro-life principles while opposing policies that promote contraception, and it's extremely unfair to such a person's actual views to accuse them of inconsistency before exploring what views they might have for resisting the promotion of contraception.

Similarly, if someone thinks it's immoral to promote economic policies that will put more people in better situations and thus remove some of the concerns that lead to abortions, then they should oppose those policies. Suppose the person is a pro-life economic libertarian of an extreme enough sort that they think welfare amounts to stealing, for example. They won't see the good consequences of welfare for those who are tempted to have abortions as good enough to overcome the wrongness of stealing from one group of people to help others. Preventing one bad situation that prevents a temptation for an immoral act is surely a good thing, but if it means adopting an economic policy that one considers immoral, it might eliminate that method, depending on what moral theory we're working with and how one sorts through potentially conflicting moral principles.

Now the argument is much better when directed against someone who doesn't see the policy in question as being intrinsically wrong but just sees it as a bad idea. Most economic conservatives don't oppose welfare programs at any level. Many pro-lifers don't oppose contraception as intrinsically wrong. In the first case, they have to weigh the bad consequences they expect from an economic policy they disagree with against the bad consequences they should expect if something isn't done to change the unwanted pregnancy rate. A lot more factors come into play here, such as which methods will be most effective at reducing unwanted pregnancies, which methods will have better consequences in other respects, how much energy the person is already putting into attempts that they don't see as having bad consequences, and how effective restrictive laws will be as compared with simply changing people's circumstances.

What about the contraceptive issue with those who don't see contraception as intrinsically wrong? A lot of pro-lifers who don't have a problem with contraception in principle will still be extremely hesitant about efforts to promote it among teenagers (or among the unmarried in general, depending on their views about sexual morality). One reason for this hesitation, I think, is that they see such promotion as endorsement of teenage sex (or unmarried sex), and they would see that as participating in something they shouldn't. Or it might be thought of in terms of promotion of something one wants not to promote. Then the wrongness of promoting something wrong or participating in something wrong might be decisive for someone, and we don't have an inconsistent position after all.

Then there might also be bad consequences to consider. I've seen claims that promoting contraception doesn't decrease unwanted pregnancies but actually decreases them. I've never looked at the details of studies on the subject, but I think the explanation for why this might be is that people who most (but not all) of the time use contraception are more likely to feel safer in avoiding contraception than without contraception-promotion, in which case they might have been more willing to abstain from sex than to engage in contracepted-sex most (but not all) of the time. Now it doesn't actually matter to my argument whether these claims are true. Perhaps this effect isn't very strong, and the effect of promoting contraception in preventing pregnancies is much stronger. What matters is that some people believe this claim to be true, and it's not totally unreasonable, even if a closer look at facts might disabuse someone of it (if in fact it's wrong, which I'm not taking a stand on one way or the other). That means they have a consistent position of why they think the effects of contraception-promotion do not actually decrease unwanted pregnancies, and thus they can consistently hold to pro-life principles and want to reduce unwanted pregnancies without wanting to promote contraception.

I recently listened to a Bloggingheads TV diavlog between Sarah Posner and Michael Dougherty, and along the way one of them (I believe Dougherty) mentioned an argument that I don't think I've ever heard before. Apparently some people have argued against promoting contraceptives because they think such efforts will lead to a bad consequence, not just in other areas, but one that has a direct impact on abortion. It may well be, as far as this argument goes, that promoting contraception will decrease the number of unexpected pregnancies, i.e. the number of pregnancies that were not wanted before they occurred. But emphasizing contraception might at the same time reinforce the sense that pregnancy is a bad thing worth avoiding. Of those unexpected pregnancies, such an increased sense of pregnancy as bad might increase the number of unexpected pregnancies been seen as unwanted. That might then increase the number of abortions resulting from unexpected pregnancies, even if the number of unexpected pregnancies goes down because of the contraception. You'd then have to see if it's possible to figure out which effect would be more significant, and my suspicion is that such a task would be very difficult, if not impossible, which might lead one toward caution about a policy that might have a good effect but might also have a bad effect. That would then contribute toward explaining the hesitation from some pro-lifers with respect to policies that promote contraception.

There are plenty of other things that might come to play here, but this should give enough sense that it doesn't automatically follow from pro-life convictions that one ought to favor policies promoting contraception or supporting economic policies that might have the effect of helping more women at risk for unwanted pregnancies to have more economically-viable situations where they'd be less tempted to have an abortion. Perhaps when all is said and done, the best pro-life policy is to oppose abortion and favor restricting it while also promoting contraception. Provided you don't think contraception is intrinsically immoral, that's going to depend on a number of other factors, including some empirical data that I'm not sure is readily available in an indisputable form. But it's not an automatic implication of pro-life principles, and how people settle those other issues will affect what they might consistently say about efforts to promote contraception. Similarly, it's certainly possible that pro-lifers ought to support some given effort to increase the quality of life of those who might be at risk for having an abortion. But whether they should consistently do so will depend quite a bit both on their other views and on empirical data that isn't easily available to most people and may, frankly, not even exist in any understandable form.

John Hobbins has an interesting analysis of President Obama's use of scripture in his Tucson speech.

I agree with him that the use of Job is well-placed, at least on one interpretation of Job. The quotation comes from chapter 30, where Job is giving his final arguments after his "friends" have finished their attacks against him. It comes before Elihu's speech, were Elihu (rightly or wrongly) condemns much of what Job says in the preceding chapters, including chapter 30. On one interpretation, Job is righteous not just before his speeches in the book but in everything he says the entire book, and Elihu just repeats what the "friends" had said but without some of the uncharitable comments they make about Job's own words and without accusing him of particular things without evidence. On another interpretation, Job goes a bit overboard in his description of evil occurring from God's hand, and Elihu corrects him. If the former interpretation is correct, then President Obama has wisely picked a description of the evil that occurs in the world and its appearance to us without knowing the full context. If the latter interpretation is correct, then he's picked a bit from one of Job's over-the-top speeches that ignore the goodness of God in working through the bad things that occur in the world.

It's the Psalm 46 quote that gets John excited, though. He says Obama has masterfully taken the words of that psalm and applied them in a pre-critical, figural way that is very useful in civic religion. I wouldn't have put it that way. I'm not sure Obama has taken the words and applied them at all, in fact. He simply quotes a verse from the psalm and then moves on, leaving it to everyone hearing or reading his words to figure out what he might mean by it.

Read the text of his speech. He speaks of faith that Rep. Giffords will pull through and then quotes the psalm:

There is a river whose streams make glad the city of God, 
the holy place where the Most High dwells. 
God is within her, she will not fall; 
God will help her at break of day.

He then goes on to speak of what happened in Tucson, as if the psalm quotation hadn't been there at all. I'm not remotely sure what President Obama even means to be saying by quoting this psalm in his speech. He doesn't explain it at all. He doesn't later apply it to this case. None of the language of the psalm appears anywhere else in the speech. He just reads a verse out of context and then changes the subject. It's like a bad sermon, where the preacher quotes a text and then just goes on to say whatever comes to mind, as if the text has nothing to do with the point of the sermon, there in order to make it sound remotely biblical.

His intent behind including this psalm can be taken in a number of ways, if we just go by the speech itself. He could be taking the reference of the City of God the way Augustine took it, implying that she is a Christian and therefore that the promises of the psalm can be applied to her. The river here, as intended in the psalm, would be God's means of taking care of his people. If so, and if she really is a Christian, I would have no problem with Christian application of the psalm in such a way. It would be taking the greater canonical themes and applying them in this psalm. But I have no reason to think Obama would restrict this psalm to Christians, given his pluralistic approach to religion.

He could be taking the city of God to be the United States, and the river would be God's means of taking care of the people of the United States. This is how I would most naturally take the use of this passage in a civic religion context. I'd be a little surprised if Obama thought there was some special relationship between God and the United States, though. But a lot of fans of civic religion would take it this way. This would be faithful to how the psalm is using this language within itself, but it would be getting the referent wrong (and there's no argument from later scripture for doing so, as there is in the Christian interpretation above).

One thing I would not conclude from his use of the psalm, however, is that he is identifying the river with Giffords, as John does in his post. It's so strongly at odds with what the psalm is doing that it would certainly not appear to me to be a charitable interpretation. I don't generally like to attribute such poor reading skills to an intelligent person like President Obama. I'm curious why John is taking him to be doing that. I know the first two interpretations are pretty unlikely unless he's just trying deliberately to be unclear and to have people take it in many different ways as they may be inclined (I'm not sure he's deliberately this way; he just is this way because of his relativistic proclivities, I would guess). But why is the river Giffords rather than Congress, the American people, Obama himself, or even Dick Cheney? There's nothing in the speech that gives a hint as to what he thinks the river is, what he thinks the city of God is, or what he thinks the holy place where God dwells is.

I have to conclude that Obama likes the metaphor but that he has given us no particular way of taking it, whether that's deliberate for relativistic reasons (something I wouldn't put past him) or simply because he has no idea that a metaphor needs to be given a referent in the context in some way (which would just be a sign of bad speech-writing skills). In neither case would I call it a "logical and audacious" transition. It's simply a bad transition, with no sense at all of what he's doing with it and no reason given for why it's even there.

It's no surprise to me that so many people had such high hopes for this president but were sorely disappointed once he had to start governing. He was the empty metaphor himself, standing for whatever the voters wanted to see in him, and when you include all the good anyone might want in a president, including several incompatible goals and hopes, there's no way to live up to it. He's doing the same thing here. I expect a number of other analyses from people who end up with completely different interpretation's from John's, all of them confident that they got him right and with no suggestion of any other ways of taking him. But perhaps that's, in a way, getting Obama right, if indeed his intent is to be so open-ended that people will take what they will (and I find that as likely as the alternative).

Cousin Danny found some guy arguing that President Obama is the leopard king of Daniel 7, with the especially convincing argument that leopards have spots of different colors, and thus they can easily symbolize someone of mixed race.

Obama's first book contains much interesting analysis of race. I took down several pages-long quotations from the library's copy in case I ever want to refer to them (since I don't own a copy and don't expect to get around to trying to find a used one anytime soon). His famous speech on race that distanced himself from his spiritual role model Jeremiah Wright also had a lot of worthwhile things to say about race. It's one of the few issues where I think he's more on the right track than not, and his background has allowed him to see things that a lot of people who are not from a mixed background will not be well-placed to notice.

Nevertheless, even he failed to latch onto the insights in the videos Danny linked to. But this makes great sense of his next-day comments on the results of the 2010 election. This explains pretty well why he prefers to read the election as a failure to explain to the ignorant voters why his policies are good, rather than admitting that so many Americans might just disagree with him on policy matters while actually being informed. But, you know, the leopard king can't easily change his spots...

Update 11/10/10: There really are a few interesting things in the second video. I hadn't noticed all of them initially.

1. This guy is a prophet, and he's not claiming that you can get all this from just reading the Bible. He's offering new revelation that this is Obama. So there's no complaining that he's speculating. He's giving a new revelation, just one that also involves the claim that no other country and leader combination best fits the leopard.

2. Keep in mind that he's a prophet, and he's revealing God's word to us in our day in addition to the scriptures. One of his arguments is that the four branches of the military and the four branches of the federal government are the four wings and four heads, and no other country has the four wings and four branches like the U.S. does today. So we should take this as divine fiat that there are now four branches of the government (the House, Senate, executive, and judiciary) as opposed to the three as declared in the Constitution (legislative, executive, and judiciary). Keep in mind that God can decree the Constitution invalid in terms of what it declares to be true of the United States government that it established, so this is entirely legitimate. It's just a huge surprise to me, and it shows that this revelation could only have come directly from God by means of a prophet like him. No one who knows just how the U.S. government works who reads this text could possibly have thought this interpretation even consistent with what Daniel 7 says and what the Constitution declares about the branches of government. We do need a prophet to know these things. So I stand corrected. The Constitution has been amended by a prophet by a method unknown to the Constitution itself.

3. Notice how he points out that Obama is the leopard as the leader of the U.S. with arguments both about the U.S. itself and Obama its leader. The leopard has skin that's both black and white, which reflects the racial makeup of the United States. Obama also has skin that's both black and white. Yes, it's not race-mixing in the sense that he is both black and white, which is what I was originally taking this to be, which would be yet another piece of evidence for my claim that the one-drop rule is on its way out, at least as applied in certain contexts. No, he says Obama's skin itself is both black and white, in the same sense at the same time. So I guess God can declare contradictions to be true after all, and his prophet is informing us of one particular contradiction that God has now declared to be true of our president. His skin is both black and white.

4. Read the comments on YouTube. You will discover a fascinating argument there against this prophet's claims. Obama can't the be leopard, because it's biologically impossible. Leopards are female, and Obama is male. The most amazing thing about that comment? No one even responded to it, and there are plenty of responses by the author of this video to claims made against him. Does this mean that he's finally encountered an argument that's making him reconsider his view? This is a pretty convincing reason not to accept the view, after all. Until I saw that, I was fully on board, but now I'm not so sure.

I received an email with the title, "How You Can Tell Obama is Not a Socialist". The basic argument is that President Obama didn't implement full-blown government ownership of the banks and industries relevant to the economic problems that it has been calling a crisis. A true socialist, so goes the argument, would have seized the opportunity to, you know, implement socialism or something. A few instances of the government seizing control of something that's belonging to the private sector, trying to control your media appearances, and painting the opposition media as illegitimate nevertheless don't amount to taking over industry and the media entirely. So President Obama isn't really a socialist.

There's certainly something to the argument in this email, but it's not as straightforward as that, and there are ways that I think it's fair to describe President Obama's views as socialist.

1. A committed socialist might think we should engage pragmatically in incremental steps to reach an eventual socialist goal. If President Obama has a socialist theory of justice (as I think he does) and a pragmatic and incrementalist approach to realizing it (as I also think he does), then he's picking his battles so he can do as much as he can to move in that direction without trying to accomplish too much in a way that will end up just frustrating his final goals too much. So this at most shows that he's at most a pragmatic, incrementalist socialist. But hardly anyone who is informed and honest is claiming that he's more than that, and lots of people are claiming exactly that.

2. There are also distinguishable components of socialism. President Obama might have a socialist theory of justice in terms of what counts as a just, equal world without having a socialist view of who should own property or the means of production. I'm not sure what his view is about the ideal government and ownership of the means of production. So I don't know if he's a socialist in that sense, although at most he'd be a pragmatist, incrementalist socialist about such matters. But he could be completely a capitalist about those issues and be a socialist about justice in thinking there's a moral imperative to equalize pay and benefits of employees to a point where complete equalization is an eventual goal. That's a socialist theory of justice, and the way he uses the term 'just' makes the most sense if he thinks merely unfair or unequal distribution is unjust (as opposed to saying that it's unjust to implement policies or practices that ensure such unequal distribution, which a much greater number of people would agree with). Since he does seem, to my mind, to hold such a view, I do think he's working from a socialist theory of justice.

Surely there's a sense in which Obama isn't a socialist, but there's also a sense in which he arguably might well be.

When Sharron Angle won the GOP Senate nomination to run against Harry Reid, the tea party movement rejoiced. Then the post-primary polls came in. Instead of the pre-primary sense that Reid would no longer be a senator as of January, it looked as if he'd hold his own against that particular candidate. I think the polls are still bearing that out, although that sort of thing can change in a few months. The tea party movement endorsed someone who may well be incapable of beating Harry Reid, whose popularity is very low right now, even in a very Republican year.

The Arizona primary produced several similar situations. Consider Scott Elliott's preview of four House GOP primary races on Monday (the primaries were held on Tuesday).

AZ-1: "Ann Kilpatrick is one of the most vulnerable Democrats in the country" but "If Dr. Gosar wins, however, there will be some from the "McCain/Establishment" side that vote against him in November out of anger. In that case, we'll have to see whether their votes will be enough to cost him the victory." Gosar won.

AZ-3: "Ben Quayle has never had any major support from any Arizona politicians. He has sold himself as the Tea Party candidate. A strong front-runner at one point, Qualye has fallen sharply after several major debacles (i.e. borrowing kids for paid media photos, admitting to writing posts for a female-bashing website) .... should Quayle win this race, his baggage will make it hard for him to keep conservative Democrat and father-of-five, John Hulburd from taking this one for the Democrats." Quayle won.

AZ-5: "David Schweikert has ran for office twice before and lost, and Susan Bitters Smith was the 2008 nominee that Mitchell easily defeated.... If either of these candidates wins the primary, it's not likely they can unseat Mitchell." Schweikert won.

AZ-8: "Kelly was an early favorite, and attempted to define Paton as the "establishment" Republican. However, Paton's record as a legislator proved him to be a strong conservative, who continually takes on the governor and the leadership of both parties. The race between Kelly and Paton is very close, and either could win the primary. However, while Paton almost certainly will defeat embattled Democrat incumbent Gabrielle Giffords in November, Kelly may have a tougher time. He'll have to prove he's about more than just border security." Kelly won.

Now not all of these are tea party victories over establishment or moderate opponents (and the Florida primaries the same day had several GOP winners who would be easier winners in November than their opponents). But all of them were the choice Scott predicted would make it harder for Republicans to win the seat, and I think the tea party movement played a big role in the win of at least three of the four. It's clear that the tea party movement, while helping Republicans regain some ground against Democrats, may also prevent them from gaining as much as they otherwise might.

Matt Skene has a very thoughtful post on the intersection of issues related to rights and obligations and recent health care debates. I disagree with a number of Matt's assumptions. I think we do have positive obligations, and I do think they simply are there without our taking them on. I don't think rights determine obligations but the other way around. Perhaps most salient, I don't think we can distinguish between obligations and moral goodness. I think we simply have an obligation to do what's morally best (and yes, I know that that means that pretty much everyone on this planet is thoroughly immoral, but that's not exactly a new view; it's historic Christian doctrine).

But I think there's a lot worth thinking about in Matt's post. His general approach is libertarian. He starts with natural negative rights and argues for no positive rights. In other words, certain things are wrong to do to me, because I have a right for you not to do them, but I have no rights for you to do positively good things on my behalf, just for you not to do bad things to me. But such a view doesn't imply that there aren't moral reasons to do positive things on behalf of other people.

In particular, there are reasons why it might be the morally best thing to do to help those who are less fortunate to obtain good medical care. Matt doesn't think I have an obligation to alleviate the suffering of people I have no other connection with, but he does think it's morally good to do so. It's also self-interestedly good for me to develop the character traits that such acts help develop in me. He's open to, but not convinced by, the argument that it would be in our best interests to contract with one another to institute such obligations by common consent, as we do with building highways. It depends on whether we'd all be better off with it.

Matt suggests an interesting possibility, though. You can donate money to your utility company to offset the costs of low-income utility customers. Presumably this goes to heating assistance aid, which is given to recipients of food stamps once a year and paid directly to the utility company. I'm not sure how else the utility companies would know who counts as low-income. But if we did a similar thing with insurance companies, there might be enough money from those who, like progressives on this issue, think they have an obligation to pay for others' insurance and from some of those who, like Matt, think it's a morally good thing to do. Could that cover everything Medicaid and other public health insurance does? It's worth seeing how much it covers.

I tend to doubt it, since most people who think the government should tax us more to pay for benefits to low-income people are not inclined to give money when it's voluntary (consider our current president as a prime example), but maybe enough people who don't share such views will give the money voluntarily while resisting it when it's government-controlled (as, apparently, Dick Cheney does with a huge percentage of his income). But it's being done with utilities. Why not try it with health insurance and see where it goes? There might even be enough votes in Congress after the 2010 election.

I received a forwarded email about the various ways Obama is increasing taxes on all the people he said he wouldn't raise taxes on, and I'm curious if someone who actually knows something about the details of this stuff could confirm or refute any of it. Some of this is from not getting the Bush tax cuts renewed, but some of it is just plain new taxes, even on some things never taxed before.

According to the email, the inheritance tax, called by its opponents the death tax (which I think is an apt name, because you're basically being taxed for dying and ceding your money to your heirs) is returning in full force. I pretty much knew that already. I didn't know any of the other things (assuming they're true).

I'm not surprised to see the top tax rate increasing from 35% to almost 40%. But increasing the lowest rate from 10% to 15%? Surely there are people who make less than $200,000 a year who are in the lowest tax bracket. In fact, many people in the lowest tax bracket struggle to make ends meet and now are being expected to carry even more of the load, something that goes against the tax philosophy of both the Republican and Democratic parties. If the current president and congressional leadership are behind tax increases for the poor, then it's almost fair to say that Obama and company are inviting the tea party to unseat the Democratic congressional leadership, even aside from his campaign promises not to raise taxes for anyone earning under $200,000 and their repeated insistence that the stimulus package could be paid for without increasing taxes.

Another item is that the so-called marriage penalty is returning. You basically pay higher taxes for being married, in effect, at least if certain conditions are also true, since there are a couple things that in some cases counterbalance the marriage penalty (e.g. if only one spouse receive income, the spouse with no income significantly lowers the taxes of the working spouse, but the conditions where the marriage penalty increases the taxes of a couple are common enough, as I understand it).

The child tax credit is being halved.

Dependent care and adoption tax credits are being removed.

Tax-free accounts for medical care or special needs children will be removed or significantly diminished. The special needs trusts we're planning to get for the boys will be capped off at $2500. According to the email I received, this will be especially cruel and onerous for parents of special needs children. We're in fact pursuing getting accounts for the boys so we can earmark tax-free money that won't count against them for qualifying for SSI.

The alternative minimum tax is expected to kick in for 28 million families next year instead of the 4 million who had to pay it last year. These are people who didn't make enough money to pay any taxes last year. In other words, it's a tax on the poor. I've seen bi-partisan complaints about this tax, insisting that it simply be removed, and yet somehow they've snuck in provisions to expand it sevenfold?

There are lots of tax hikes and removal of tax breaks on small businesses, not the big business Obama keeps saying he wants to "get" (all the while secretly giving them a lot of what they want).

Education deductions from tuition and fees will be removed, and student loan interest deductions are being cut.

You will no longer be able to pay money from and IRA to a charity and have it be a tax deduction.

Health insurance benefits paid by an employer are going to count as income and be taxable. This will be enough to bring many people up a tax bracket, but it will increase the gross income significantly even if it doesn't.

Now this is a forwarded email, so it's almost certain that not everything in it is correct, but I'm curious exactly which things are and which aren't and if I'm interpreting them correctly. I didn't expect he would even have a remote chance of keeping his campaign promises on taxes, and I never thought he intended to anyway, but this goes significantly beyond what I expected. If this is all correct, then President Obama is just asking for people who voted for him to complain that he betrayed them. His chances at another term would be nearly zero if the 2012 election were going to be in April instead of November. This may not turn out to affect the 2010 elections as much, since they conveniently delayed the effect until 2011 for most of these changes.

Our kids qualify for free lunch at school, and we submitted the city's form for that at the beginning of the year. They've all been receiving free lunches all year. But Sophia decided a couple weeks ago to start bringing her lunch most days, mostly out of peer pressure because most of her friends do that. (If you don't qualify for free lunch, then it's much less expensive to send one with your child than to pay what the school charges. Have they already established bringing a lunch as a status symbol by kindergarten?)

The first few days, we sent juice with her at her request, but then she decided she wanted to drink the school milk with her lunch brought from home. A couple days ago a note came home saying that the lunch room says she needs to pay for 40 cents for milk. I sent a note back saying the lunch room is wrong, because she qualifies for free lunch and has had no problem all year. The teacher sent another note home saying we need to take it up with the lunch room.

It turns out they won't give her the free milk unless she signs up for a free lunch. Kindergarteners don't go to the cafeteria like the older kids. They have to order a lunch, which gets brought to their room. This was never been an issue for Ethan, because he just eats whatever the school lunch is. It was never an issue for Isaiah, because they take him through the lunch line, and he selects which particular items he wants, which is usually not very much. Then they get out the lunch he brings, and he eats some of those items with whatever (if anything) he wanted from the school lunch. He just brought a lunch in kindergarten anyway, because we didn't want them to have to deal with his pickiness and lactose issues until he could actually go through the line to select items. So Sophia is the first to want to bring a lunch while just drinking the milk from the school in the kindergarten setting, and we're just discovering the policy that she has to waste a whole lunch that she won't eat if she wants to get the free milk that she qualifies for.

Now I know they can make room for kids to get free milk without the lunch, because there are some kids who qualify for free milk but not free lunch. Since she qualifies for free lunch, she apparently can't get the free milk without ordering the whole tray of lunch (and she can't select just the items she wants, because kindergarteners don't go through the lunch line). It turns out one of the staff at the school is happy to eat her lunch when she doesn't want it, so maybe it's not so bad in the end, but this is a truly crazy policy. Why would they insist on a policy that requires a free-lunch student to waste a whole lunch to get the free milk she qualifies for on the days when she's brought her own lunch?

I recently encountered the claim (that I see often enough) that the U.S. Constitution defined slaves as 3/5 of a person. That claim is actually false. The Constitution did no such thing. What it did is count them as 3/5 toward representation, which was a compromise between those who didn't want them represented and those who thought they should count fully. Here is what the actual wording said:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The wording actually assumes they are full persons. It distinguishes between the contribution to the census from free persons and the contribution from other persons. It's 3/5 of the number of other persons that gets added to the number of free persons. It's not that slaves are 3/5 of a person.

And for the record, it was those who opposed slavery who didn't want them counted and those who favored it who did, because counting them as full persons would mean more representation in Congress for their states (and yet the voting for those states wouldn't involve the slaves voting, of course, so it's even more influence for the slave-holders if they counted fully).

If we take the constitutional wording to imply that slaves were only viewed as 3/5 of a person, we should also conclude that abolitionists must not have thought slaves were real people, because they wanted them counted as zero, and slaveowners must have thought they were indeed real people, because they wanted them counted as full persons. It's not as if those who favored slavery were defining slaves as less than full persons. It was those who opposed slavery who didn't want their slaves counting toward representation when they didn't have representation who were behind this.

Interestingly, the roles had been reversed for the debate over an amendment on this for the Articles of Confederation, because that debate was over how much in taxes the states had to pay, where the non-slave states wanted slave states to pay more due to their higher population. You would have more success making that argument in this case, because at least the roles line up that way, but that would misunderstand what the issues were.

It had nothing to do with their actual view of the moral status or personhood status of slaves but was about how much political influence states would have, and the Articles of Confederation debate about the same exact issue had been about how much in taxes they would have to pay. Which issue it was about determined which stance each side took, and they completely reversed their positions when the issue changed to make the opposite view favor them. So there's simply no claiming that this was about defining the personhood of slaves or anything. It was simply about how to calculate populations for political results, and those who argued for each side compromised between counting them for certain purposes and not counting them for those purposes by proposing the 3/5 count.

There are plenty of things you might disagree with about how slaves were treated, and it is indeed unfair to be counted at all for representation but not being represented (but we do that with children still). Nevertheless, it's simply false that the Constitution defined them as 3/5 of a person, as if that judgment in particular reveals a view that slaves were viewed as not fully persons. It does no such thing, because it's not about that issue at all. To find evidence that people believed such a thing (and I'm not saying there is no such evidence), it doesn't do to cite what the Constitution says about this issue.

I received an email this week from someone who criticized some conservative responses to a Democratic talking point about the health insurance debate. Politicians often like to draw attention to real examples of people struggling with some issue in order to pull on the heart strings of their constituents, which can (a) serve to illustrate that there really is a problem, a problem their own proposal is supposed to address and (b) provide an emotionally-moving draw to get people to care about it more and perhaps mobilize them to help get it done.

I found an insightful analysis of this sort of thing in Aristotle's treatment of emotions in the Rhetoric. Aristotle points out at one point that this is perfectly fine, in the cases where (a) is basically true. Adding the emotional component is a good thing when you can draw the person in to something they already ought to be doing. On the other hand, when (a) involves some kind of false analogy, misleading facts about the case, or a proposal that wouldn't help or would cause other problems that the case obscures by distracting people away from them, then the emotional element is manipulation rather than illustration, deception toward the wrong result rather than motivation toward moral action.

Where you stand on such a question depends ultimately on whether you agree with President Obama's agenda and the health insurance proposals that Democrats have been putting forward. It's understandable that those who disagree are going to see such emotional appeals as mere emotional appeals that don't have any basis in the facts, and they'll try to find ways that the use of such cases by Democrats involve some kind of error or false statement. So should it be surprising if people like Glenn Beck, Rush Limbaugh, and Michelle Malkin dismiss an example of someone President Obama uses in this way? It shouldn't be, and you shouldn't attribute their motivations to anything other than their opposition to his proposal, because that's the simplest explanation, and it makes perfect sense given their views. This should be so even if you find their views loathsome, as many do.

[I should say, for the record, that I think it's crazy to put Michelle Malkin in the same category as Glenn Beck and Rush Limbaugh. She's purely a pundit. They're as much entertainers as political influencers, and they're both offensive in a much greater way than she could ever hope to be. She's much more inclined to focus on arguments than they are, and they're much more inclined to make fun of people.]

The email I received made a very different sort of claim. The author pointed out that the family in this particular case was black. That was the basis of his conclusion that they would not have made the same arguments if the family in question had been white. Actually, what he said is that they wouldn't have criticized a white southern family's situation in the same way. I'm not sure where the evidence for that is, and whether it's true is actually irrelevant. I'm pretty sure all three of them have criticized things this president has said about white people's cases, and there's no reason to think they wouldn't have in this case if it had been a different sort of family.

In any case, it was President Obama who chose this case, not them, and they were responding to it in exactly the way you'd expect given how I described the issue above, when I hadn't yet said anything about race. I have no idea about the details of this case, and I have no idea whether what any of them said is true. But I think it's terribly unreasonable to assume that this is purely because of race when those three have consistently criticized the President's statements about this issue in ways that make it utterly clear and public what their motivation is for such criticism. It has nothing to do with race. It's an ideological disagreement.

I've seen several references to this story that imply or assert that Sarah Palin is a hypocrite for being a very vocal critic of the Canadian health care system, when it turns out she used to go with her family across the border to receive services from Canadian medical professionals instead of those in Alaska. (See here for an example.)

But then I read the article. It turns out there are two huge facts obscured by such an analysis, and they're both whoppers.

1. This wasn't something she did with her family as an adult. This is something her parents did with her until she was six. Yes, people are calling Sarah Palin a hypocrite because of what her parents chose to do, while bringing her along, when she was in kindergarten. I guess if you've run out of ways to attack her involving her own kids, you turn to attacking her for what happened to her when she was a kid herself. I suppose this is hypocrisy by proxy. Find something someone else did that seems to conflict with what Palin is saying, and then call her a hypocrite for someone else doing what she thinks is problematic.

2. They lived during that period in a very rural town near the Canadian border. The closest city was across that border. Most people in very rural towns drive to the nearest city for some of their health care concerns. It just happened that they had to go to another country in this case. If Sarah Palin had lived in that town and taken her own children to Canada, that's perfectly consistent with saying the Canadian health care system is inferior to the American health care system, because no one thinks the American health care system is equally available in every small rural town. The closest thing that's of good enough quality might be in the Canadian system that does things in a way that's less ideal. Being less ideal than the American system is compatible with being the best thing in the area. So there's no inconsistency here anyway.

I noticed an argument here that Juneau, AK is just as close to Skagway, AK where they lived as Whitehorse, YT, where they occasionally sent someone for medical aid in emergencies. So I checked Mapquest. It took 6 hours to get to Juneau and 3 hours to get to Whitehorse.

Then the comments there indicate that you would usually go to Juneau by ferry in those days, and that takes several hours also, where the train ride to Whitehorse is only two. So it does seem that Skagway's closest city is Whitehorse, YT. Juneau has a slightly larger population but not enough to make a huge distinction. They're both big enough cities to have the emergency care facilities that her small town didn't.

Also, the Associated Press interviewed Chuck Heath, Palin's father, about this:

Palin's father said Monday they had little choice, given their location in Skagway. "There was no road out of there at that time," said retired teacher Chuck Heath, reached by phone in Wasilla. "The ferry schedule was very erratic. We had no doctor in Skagway. The plane schedule was very erratic. The winds dictated whether the planes could come in or not."

Here is what President Obama said:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests - including foreign corporations - to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities.

The most natural way to read that first sentence is that he's accusing the Supreme Court of doing this in order to give the special interests a chance to spend without limit. It's not just that it has that result but that such a result is the very reason they did it. He said they "reversed a century of law to open the floodgates for special interests". I don't know if he really meant to imply that the reasons they gave in the opinion are not their real reasons or if he was just uncareful in what he said, but what he said does seem to me to imply that they didn't really do it because they think the Constitution requires giving corporations and unions free speech rights that don't allow for these limits. Instead, it was because they wanted special interests in particular to have no limits.

That strikes me as a pretty uncharitable reading of their motives, especially given that this isn't all that surprising a decision for most of these justices. Justice Kennedy in particular is a free speech absolutist. He thinks hardly any limits on free speech are constitutionally allowable. Justices Thomas, Alito, and Scalia along with Chief Justice Roberts are more willing to allow exceptions for freedom of speech than Justice Kennedy is, but they've tended to oppose campaign finance restrictions on free speech grounds. The fact that some special interest groups will benefit from this is a mere effect. Accusing the Supreme Court of voting merely to get a political result can make sense if the argument they give in the opinion is extremely out of character for the kind of reasoning the justices in question usually give, but that's no so with this decision. It's extremely unlikely that this was motivated by some tie to special interests (as if special interests are only on one side of the aisle anyway; such a decision would go both ways, and given that Obama got more support from corporations than McCain it's also unlikely that this was motivated by a desire to get the Republican Party more money, as some conspiracy theorists have claimed).

But then this president, not very long ago, was a senator who made some pretty uncharitable comments to both Roberts and Alito when explaining his votes not to confirm them (and his vote to filibuster Alito). I'll quote one of my comments on a previous discussion:

I don't think what he said about Bush's Supreme Court nominees was all that respectful. He basically accused Roberts of having a callous heart toward the weak and being dismissive of attempts to eradicate discrimination. Then two paragraphs later he complained that Democrats were attacking Senator Leahy's motivations for supporting Roberts, as if it's bad to attack people's motives, something he'd just spent a couple paragraphs doing with Roberts.

He did something similar with Alito. He spoke about how civility is a good thing. He did say that Alito is a man of great character, which is at least better than how he treated Roberts. But then he went on to accuse him of siding with the strong, the state, and corporations in every case where he didn't have to follow Supreme Court precedent, as if it weren't about what he viewed the Constitution as requiring but were just about seeking to get certain results that favored the strong, the state, and corporations.

Senator Harry Reid (D-NV) has come under fire for some race-related comments he made a while back about President Obama's election that have recently come to light:

He [Reid] was wowed by Obama's oratorical gifts and believed that the country was ready to embrace a black presidential candidate, especially one such as Obama -- a 'light-skinned' African American 'with no Negro dialect, unless he wanted to have one,'

I wouldn't say that there's no problem with Reid's words, but I'm wondering how it amounts to what a lot of critics have been saying. The comments from a number of politicians make fascinating reading. Republicans want to say that the remarks are racist or at least inappropriate, and they point to a double standard by Democrats, who find little problem with Reid but were calling for Trent Lott's resignation for speaking off-the-cuff at a birthday party for Senator Strom Thurmond (R-SC) to say that if he'd been elected president we wouldn't have some of the problems we have. Of course, the same could be said for those who defended Lott but have now attacked Reid.

What Trent Lott said was totally unproblematic in its actual content. It's the context that made people think he meant something more. He was talking about someone who has long been hailed as a stalwart conservative, and if he'd been president we surely would have had more conservative policies than the ones we actually got with President Truman. So a conservative senator could indeed have said what he said and not meant anything even racially-related.

But he was also talking about someone with a history of supporting segregation, who was actually running with a segregationist party on the occasion Lott was referring to. He was speaking at an event in the South, and there were almost certainly people present who fully agreed with Thurmond's former views who would have heard such a statement as support for such views. I doubt Lott was even thinking of that. He was probably just trying to be nice to a very elderly colleague celebrating a birthday, and I find it unlikely that the racial issue was even on his mind. It doesn't amount to racism, but it amounts to racial insensitivity and ignorance, and it perpetuates patterns of such behavior that are worth calling attention to and seeking to undermine. So I do think it was good for people to call attention to it, even if it does seem a bit much to me to insist that he resign from a Senate leadership position over it.

On the other hand, Harry Reid's problem is not in the content of what he said but in his choice of actual words. What he said is actually either true or at least certainly arguably so. He made two claims: (1) that Obama couldn't have been elected as easily if he seemed "more black" to more people and (2) the reason he seems "less black" to some people is that he has lighter skin and doesn't naturally speak the way a lot of black people do.

The second claim is certainly true. Linguists study the language patterns of sub-communities with particular dialects, and one common dialect occurs among black people across the country, with similar traits no matter what part of the country they're in. This isn't another language. It's English. But it has some different grammatical rules and pronunciations from standard American English. It's usually associated with inner city or poor and very rural blacks. A lot of black Americans speak more standard English most of the time and occasionally take on an affect of what some linguists call Black English. The rest of the time their grammar and pronunciation are pretty standard. There is also a southern-like element to some word pronunciations for a lot of black Americans even if they don't ever use the dialectical elements unique to Black English, and this is true no matter what region of the country the person is from. That accent is sometimes detectable over the phone, and people often associate it with race, sometimes looking down on people for speaking that way. This is all just a matter of linguistic and sociological fact. Acknowledging it is neither racist nor succumbing to pressure to cater to racists. Knowing the facts about how race works in this country does not amount to liking those facts or wanting them to be that way. It seems to me to be simply true that President Obama does not speak the way a lot of people who have negative stereotypes about how black people speak would expect a black man to speak, except when he chooses to do so.

As for the first claim, I think it's at least arguable that Obama would have had a harder time getting elected if people with negative stereotypes about black people had seen him as "more black". With a white mother, lighter than average skin for a black man, and speech patterns that are more ambiguous, a lot of people who might hesitate to identify with him could more easily do so. A lot of people who might have a harder time respecting him might more easily do so. I don't want to minimize how far this country has come with race in being able to elect him. Nevertheless, interviews showed that people with racial animus or some resistance to voting for a black candidate were able to pull the lever for Obama. One possible explanation that's certainly not obviously false is that they saw him as "less black". Would someone who looks and talks like Chris Rock have as easy a time getting elected president? I don't think so. Could someone who looks and talks like Chris Rock do it? Maybe. I'm not as sure as Reid. But the claim he was making doesn't seem ridiculous. I've heard a number of black academics make exactly that claim in meetings at the American Philosophical Association where his becoming president has come up.

The only thing I see that's seriously wrong with Reid's statement is the expression "Negro dialect". I haven't encountered that exact expression before ever, but I suspect it's a relic of Reid's growing up with "Negro" as the preferred term for black people, and he's not so heavily involved with the black community or racial issues to have gotten the immediate sense of its inappropriateness the way anyone with any racial sensitivity nowadays would have. So, like Lott, it shows that he's racially out of touch. It's not about referencing a racist or racially-harmful ideology as good, which I think Lott did unintentionally and lots of people claimed he did intentionally. It's about overt language that's usually offensive nowadays but used to be fine. The result is the same, though. He showed some racial insensitivity, even if the Democrats defending him are right that he's voted the right way all along. Voting the right way is compatible with being extremely insensitive. Democrats generally take Ted Kennedy to have voted the right way with women's issues, but there's no arguing that his attitude toward women was always wonderful. The same goes for Bill Clinton.

So that makes me conclude the following two things. First, the nature of the offense is different in the two cases. One involves overt language without ill intent in one case and potential implicatures that probably weren't but could have been meant in the other. Second, the real problem this analysis reveals is that both senators showed serious insensitivity and ignorance about race issues. So I do wonder if calls for Lott to resign should consistently be made against Reid and if those who thought Lott's statement shouldn't require a resignation should apply the same reasoning to Reid. I don't think either requires a resignation, but both should lead us to consider how ignorant and insensitive those who lead us are about race issues, and the most important fact about racial ignorance is that it's an unknown unknown. You don't know you have it until someone points it out. We should use moments like this to raise understanding to a higher level, not for political points or to try to remove someone in an influential position from that position merely because the person's ignorance is now known (as if the ones who haven't happened to reveal it are just fine). I'm therefore much more inclined to direct my criticism to those who don't recognize the parity between these cases than I am to direct it toward the two senators in question.

Recently several seemingly-independent sources came up with a series of new recommendations for cancer screenings, saying that new research shows that we should no longer be screening for certain kinds of cancer at the ages we've been doing so, that it should be fine to wait until later on and save the expense that earlier screenings cost.

These recommendations have led to an interesting debate between those who think the cost of prevention is worth it even if more money gets paid than would otherwise happen and those who think cost-cutting is more important than the number of lives saved, because the number of lives saved isn't worth the cost.

A number of voices on one side in the debate, though, has repeatedly made what seems to me to be a terrible argument. They complain that those who object to the new recommendations are simply ignoring the new data. It's as if they stomp their foot and say that the numbers support their position, so the other side should back off. As I said, this is a terrible argument. If this were an empirical debate, that would settle it, but that's not what the dispute is over, so that argument is simply irrelevant. The very interesting debate that I've seen play itself out, as I pointed out above, is between the following two groups:

A. those who think that, even though it might cost more money in the long run, it's still worth screening earlier because it saves enough lives to be worth the extra cost even if it costs more than it would to catch the cancer later and not pay the cost for a lot of people who didn't need the screenings

B. those who think that the cost of screening all these people who didn't need it isn't going to be worth it in the long run, even if it means some people who would have found their cancer and been able to treat it will die because they didn't catch it soon enough

That's a moral debate, not an empirical one. View A places more value on people's lives (which they insist is still enough, even if smaller than we thought) than the financial cost (and that cost's effect on society). View B places more value on the financial cost (and its effects on society) than the number of lives that would be saved (which they say is too low to be a huge factor). Both views can agree on all the facts and still disagree on what we should do. So it doesn't help to keep insisting that the change in recommendations comes from new data from new studies with hard numbers to back it up. The disagreement still occurs even given the new data.

Pro-lifers are trying to pass an initiative defining human organisms as persons all the way back to conception. Opponents of the initiative apparently can't think of a better way to oppose this than to call it the "eggs-as-persons" initiative. I would have thought they'd be smart enough to know the biological difference between a conceptus and a mere egg. Or maybe they just think the voting public is stupid enough not to know the difference.

I also have to note that it amazes me completely that one of their arguments against this is that it now becomes child endangerment for a pregnant woman to drink too much or do something that seriously threatens the health of the fetus. Let me say that again. They think it shows how bad this proposal is that the proposal entails treating someone as engangering a child's health by drinking too much or engaging in wrestling matches while pregnant. Do they think the average voter approves of moms damaging their children by drinking heavily or by abusing their bodies in other ways while pregnant?

But then when you look at the articles from this paper (and the other papers affiliated with it) at any length, it doesn't take too long to realize that they don't have any sense at all of how to convince those who disagree, even though they seem to have a fondness for sending unsolicited email to people who disagree. This is entirely typical of the kind of story they send (several times a week at least) to my university email account. I guess you could call them independent, but it doesn't strike me as the kind of independence I expect when I think of the independent media who are supposed to raise a critical eye to those who hold the central reigns of political power.

President Obama is putting aside politics-as-usual to honor a black Republican former senator today. Edward Brooke was the first popularly-elected black Senator (Reconstruction doesn't count) and the only black Senator since Reconstruction from a state other than Illinois (the others have been Carol Mosely-Braun, Barack Obama, and Roland Burris). He was elected as a black Republican in an overwhelmingly white and overwhelmingly Democratic state and was reelected to a second term, allowing him to serve in the Senate for over a decade. Today he's receiving the Congressional Gold Medal.

Redistricting in favor of majority-black districts has effectively created an environment that makes black senators much more rare than we would expect, since it tends to produce candidates who are focused on issues that energize black voters but who seem out of the mainstream enough to be much harder to win elections in statewide races. Democratic redistricting that relies on artificial lines to ensure majority black districts has ironically made it much more difficult for black politicians who are more electable statewide (and thus get into the Senate) from getting into the positions that very much help you to make such a statewide run. I've even seen conservative pundits (e.g. Abigail Thernstrom) claim that Republicans have gone along with this kind of gerrymandering because they knew it would ultimately favor their own party.

See Nate Silver's Why Are There No Black Senators? for a more substantial argument for the claim that gerrymandering of this sort is counterproductive to racial progress in the U.S. Senate. I think he's right.

In a post mostly about how to argue with those who disagree in a way that doesn't shut down discussion (which would be good for anyone to pay heed to), Jay Watts points to two documents I was unaware of. Both have to do with the common pro-choice argument that if abortion is made illegal again it will lead to lots of deaths from back-alley abortions.

The first document is an excerpt from material written by the Medical Director of Planned Parenthood in 1960, stating quite plainly that 90% of illegal abortions at the time were done by physicians in their offices in a way that was as safe for the mother as it would have been if it were legal. [The Wikipedia entry for "Unsafe Abortion" includes a key quote from this excerpt also, for those who don't want to trust the PDF. So this is out there for those who know what to look for, but I'd never been directed toward it before.]

The second is from NARAL founder Bernard Nathanson, admitting that the pro-choice arguments before Roe v. Wadeabout the numbers of deaths from illegal abortions were simply fabrications on the order of 10-20 times the amount that an accurate assessment could have produced.

I've always thought this argument was pretty ineffective anyway except for someone who is already pro-choice, for reasons Jay mentions at the end of the post. If you're open to the possibility that the fetus has significant moral status, then the fact that killing a fetus illegally might also produce a death of the mother is irrelevant. If you're going to legalize a particular kind of murder (or even something that, for all you know, might turn out to be murder but you're not sure) then legalizing it just because it produces a second death when illegal turns out to justify a lot of acts that are unquestionably murder by anyone's standards.

It's one thing to offer an argument that should only convince those who are already on your side but is a little deceptive because it makes an emotional appeal that isn't really all that rational on pro-life premises. It's quite another to use deliberate deception just the get the political result you want. A lot of misrepresentation happens in politics, and that includes misrepresentations of those who hold contrary views, abortion included. That's politics as usual. I try to resist it, and I hope I'm better than most at stopping it, but it's not the worst kind of dishonesty, since most of the people who do it simply assume the worst of their political opposition or of those who take contrary moral stands, and they at least think what they're saying is true, even if their standard of proof is pretty low in many cases. But simply making up numbers to argue for a policy change is much worse than politics as usual, and that's what these two leaders of the pro-choice movement admitted that the movement had done to get abortion legalized.

Like politics as usual, this happens on both sides of the aisle. But I think we have a much more significant duty to point it out and criticize it when it's this sort of deception, because this is a knowing twisting of the truth merely to get a certain result rather than simply assuming the worst of your opponent. We should avoid both, but it's worth distinguishing between the two and placing an even stronger emphasis on the avoiding the second. I will sometimes point out when I think one side misstates the other's position or ignores how an argument will fail given the assumptions of the other side. It's a lot less common when we can be sure that they're outright lying, though, and it's even more rare to find someone admitting it after the fact. It's kind of sad that this outright lie has become the basis of a fairly common pro-choice argument for retaining the status quo in abortion laws.

[cross-posted at Evangel]

The District of Columbia was ticketing people for parking in their own driveways, and apparently this was actually legal (at least there was a law that provided for this; I'm not sure whether the courts would find it constitutional). I don't know if this is still going on, but it sounded like a hoax when I first heard of it.

David Boies, Al Gore's lawyer in Bush v. Gore, and Ted Olsen, George Bush's lawyer from the same case (who was also Bush's first Solicitor General) are working together to try to get judicial declaration of same-sex marriage at the federal level. Olson, to be fair, is not advocating the kind of policy-preference right that more liberal lawyers and judges often see in the Constitution and that he has consistently argued against his entire career. His argument doesn't even assume that there is a right to marry. It just relies on the fact that our court system recognizes a right to marry and concludes that it ought to be applied to gay couples as well as straight couples if we're going to be in the business of applying such rights. (However, their argument does seem to assume that couples as couples and not just individuals have rights, or else it assumes what an Equal Rights Amendment would have provided but didn't when it never passed.)

Rep. Charles Rangel (D-NY) introduced a bill in the U.S. House of Representatives to reinstate the draft during the Bush Administration and then voted against the bill (almost no one actually voted for it, which was what he had expected). I thought it was strange when Republicans kept pushing a marriage amendment that they knew they didn't have enough votes to pass, but it's well beyond that to waste government time and money by pushing something you don't even want passing to begin with.

Jeff Bridges and Beau Bridges are brothers, and Lloyd Bridges was their father. Beau I can understand. But Jeff? I wouldn't have expected it.

All the miscreants who linked the phrase "miserable failure" to President Bush's biography had succeeded in making it the top website in Google for that expression. I was sure this was a joke when I first heard about it. It was pretty quick to verify, though. It had less skepticism when I heard that miscreants on the right had done the same with getting John Kerry's senate bio at the top of searches for "waffles".

Jeremiah Wright, whose heterodox, anti-white language makes him sound as if he doesn't think white people can be genuine Christians, actually has white members actively ministering in his congregation, sometimes even occupying leadership roles. (I don't think that excuses his rhetoric, which I think still counts as heterodox divisiveness, but he seems not to mean what he says.)

Philip Pullman wrote an entire scifi/fantasy series (His Dark Materials, whose first novel is The Golden Compass) out of an anti-religion and particularly anti-Christian agenda. When I first heard this, I thought it must be an exaggeration and that it probably just had some anti-religious elements throughout, but it turns out as the series develops that the agenda is far more central to the books than at first it appears. Pullman has even portrayed it as his remedy to the Narnia Chronicles, which he thinks call good evil and evil good. (I happen to think he failed in some crucial ways at what he was seeking to accomplish, but I wanted to post on that at some point separately, and I just haven't gotten around to it. Finishing up this post, which I started weeks ago but didn't have enough items to finish, has reminded me that I had wanted to do this, so maybe I'll get to it soon.)

Two days after his big announcement revoking President Bush's stem-cell policy, President Obama signed into law the big budget bill for the year, including a provision that prevented any funding from being used for embryonic stem cell research. I was especially skeptical about this, and it took me a long time and some hard Googling to find enough information to confirm it, but it does seem to have happened.

The Obama Administration's original discussion suggestions for his speech to school kids on September 8, 2009 really did ask kids to write about how they could help Obama, but they later changed it to ask about how they could be responsible. This was especially surprising given the actual content of the speech, which was mostly politically neutral. Why would they then ask how kids could help Obama when the thrust of the speech was just calling them to work harder in school and to be responsible? The original question therefore puzzles me a little unless he changed the speech too, which we have no evidence of (and the official explanation that the revision was what they had meant all along is completely implausible).

You can't help out your neighbor in Michigan by putting their kids on the bus for them every morning without a license to operate a daycare business.

The following two claims are clearly and obviously compatible:

(1) There are people who oppose President Obama and everything he does, in part because they can't stand the idea of a black president.
(2) The vast majority of opposition to President Obama's policies is because people simply oppose his policies.

I'm not entirely sure why so many people, including a former President of the United States and the current Speaker of the House, should think the first fact implies the denial of the second.

I've long argued that it's counter-productive for those who oppose racism to throw racism charges around when there's no good evidence of racism, especially when there's plenty of reason against it. If a particular racism charge is incorrect, it does no good to make it and causes much harm. People who regularly get accused of racism when they know full well that it's not remotely true are right to get upset and to think those who are making the charge have no good reasons to make it. They will tend to assume, then, that whenever there's a racism charge it must be manufactured. They'll be likely to think genuine charges of racism are similarly invented. They'll think we've moved beyond racism and that we no longer need to worry about racial problems.

This is in fact what many conservatives have wrongly concluded from the election of President Obama. If Democratic leaders insist on making obviously false charges of racism against a very large group of people (those who oppose the president's policies, when something like 46% of voters voted against him), it won't be surprising if it just feeds into the false picture many are trying to present that there's no more racism to fight against except the racism of the left accusing so many white people of being racists merely because they happen to be white but oppose someone who happens to be black. In other words, it feeds into the false narrative that the only racism that remains is anti-white racism.

People who voted for President Obama who have since decided that they did not get what they thought they were going to get (as is true of many of the protesters) are not the sort of racist who will oppose him for his being black, no matter what he does. Yet that's exactly what's being claimed by President Carter and Speaker Pelosi.

There are plenty of people who would oppose anyone who would expand the federal government at such massive levels and at a cost that will be impossible to pay for who then attempts to transform the health insurance industry in significant ways that will have unpredictable effects while denying that the effects reasonable people might worry about are at all possible. Yet President Carter and Speaker Pelosi are again insistent that there cannot be such people, because the only motivation anyone could possibly have for resisting such a reworking of the private enterprise of health insurance is because of racist opposition to the person proposing it, who happens to be black.

On March 11, President Obama held a press conference that got much attention, during which he announced his executive order that he claimed rescinded Bush's so-called ban on embryonic stem cell research. The discerning knew that there was quite a bit of dishonesty in that press conference, including how the media described it. I discussed several problems in his announcement at the time, so I won't repeat all that. It did seem to me to be excessively unfair and insulting to pro-lifers, and he engaged in several instances of historical revisionism at Bush's expense that struck me as underhanded and deceptive.

Yesterday I discovered an excellent summary of the timeline on the general issue of stem cell research. A couple facts stand out as too-often ignored. It was actually President Clinton in 1996, not President Bush in 2001, who began the ban on federal funding for embryonic stem cell research (there was never a ban on the research, just federal funding of it). It's true that Clinton did announce at the end of his second term that he wanted to change that and was expecting soon-to-be-president Gore to change that policy, but there was never actually any funding during Clinton's presidency that Bush did away with, as the common myth usually has it. Bush didn't restrict funding that was already there. He actually loosened the restrictions by providing funding for the 21 lines of existing stem cells from already-destroyed embryos, funding that had not been available under Clinton. There was never any ban on embryonic stem cell research or on destroying embryos, but Clinton did ban federal funding on any such research, and Bush weakened that ban by allowing some funding for already-existing stem cell lines.

That was all just a fact-checking reminder, since none of it was really news to me. But there was one piece of information that completely surprised me. After this much-touted press conference that the White House and the media had presented as a return to the 21st century after eight years in the stone age, President Obama did indeed sign the executive order that opened up funding for new lines of embryonic stem cells. However, he signed a bill two days later that undid his own executive order, at least with respect to this year's funding from the main spending bill Congress passed.

When I first read this, I immediately wanted to find something to verify it. It was incredibly difficult to find an actual news story on it, since the mainstream media either suppressed it or never got the information on it. The one news story I could find was from a partisan organization, but it does give chapter and verse for where to find the language in the bill that does indeed do exactly what the story says it does. It's in Title V, section 509 of the Omnibus spending bill (page 128 of this PDF; it appears in full here). It repeats verbatim exactly the section that since 1996 has appeared in every such spending bill under President Clinton and President Bush. This bill therefore does seem to prohibit what Obama's executive order sought to do, and the president signed the bill into law a mere two days after issuing the executive order with such fanfare. Of course, since it appeared in spending bills during Bush's administration, I'm not sure how he got away with the stem-cell funding that he implemented. Wasn't that therefore illegal? Or was the money provided by a separate act of Congress?

I'm not going to speculate on whether President Obama knew what he was doing and if so why he did it. It may have been an instance of negligence in knowing what he was signing, or it may have been an instance of incredible deceit in making a big deal about a big change that he knew he was going to undermine almost immediately. The former seems much more likely to me given the president's officially-stated views and other actions related to this. But it does seem to be true that it happened, despite my initial skepticism upon reading this, and it does raise similar issues for Bush's executive order permitting more limited funding for embryonic stem cell research, although for all I know he never intended funding to come from the big spending bill each year and so signed it willingly. (I know that's not true of Obama, who did seem to expect this bill to provide funding for embryonic stem cell research. His statements that very week did give that impression.) This one's going in my upcoming post on truths that I at first thought must be myths.

Update: On second thought, this probably wasn't an issue for Bush, since it doesn't prohibit funding for stem cell research on already-existing lines of embryonic stem cells or on stem cells derived from other methods. I believe Obama has revoked the funding for both of those, so it's more of a problem for him, who only wanted to fund research that actually destroyed embryos in the process, and this bill prevents any of these funds from being used for such research.

President Obama and a lot of other fans of the legislation Congress has been working on for health-insurance reform have consistently insisted that there's no plan in the works to have abortions paid for by federal tax money. In his latest volley, the president called pro-lifers' claims to the contrary not true, even a fabrication intended to "discourage people from meeting ... a core ethical and moral obligation."

It's taken them too long, but Factcheck.org has finally chimed in on this issue to confirm almost everything the pro-life side has been saying. Just because it doesn't say the word 'abortion' in the bill doesn't mean it won't cover abortion as part of reproductive health. Given the history of what that term has been used to mean, it almost certainly would be used for that and certainly could be used for that. It doesn't technically mandate such coverage, at least in current forms, but it's hard for me to believe that the people who keep calling this charge a lie are telling the truth when their main argument is the absence of the word 'abortion'. It took the Hyde Amendment to prevent government funding for abortion in the current system. Why wouldn't it take something similar in a new plan that has no such ban?

Now those who think there is a moral obligation for a government health care program to cover abortions should have the freedom to pursue such a policy. But in our political system the way to do that is to propose it openly and not deceive people into thinking something they might support is something other than what it really is. I suspect those who see that as a moral obligation have realized that they can't get it passed if they're honest. So they think the obligation to do it outweighs the obligation to be honest with the voters about what they're doing.

Update: Serge observes something else that's important here. Unless we're going to be so anti-feminist as to define pregnancy as unhealth, the explicit motivation for this bill doesn't support including abortion and indeed undermines it. Starting from the premise that we have a moral obligation as a society to provide basic health care for everyone, then you might think it follows that we ought to treat all illnesses and have the top 10% of earners pay for most of it. But it doesn't follow that such a moral obligation could include something that isn't about health at all. Some do see such a moral obligation with abortion, but if so then it isn't about health care. You don't generally make a pregnant woman more healthy by aborting her pregnancy, even if you might want to argue that it has other benefits. So health insurance reform should not make it even possible that money earmarked for health care should go to something that isn't about providing for someone's health.

So I've listed ten myths that I at one point just believed when I first heard them, even if in some cases it was only when I was pretty young. I also wanted to put together a list of myths that never sounded plausible to me, even the ones I heard as a kid, but that somehow get passed around as if true (and in some cases even get trotted out as if any serious scholar must believe such a thing).

1. KFC changed its name from Kentucky Fried Chicken because they don't use chicken anymore. They use clones of chickens grown without heads, and the U.S. government won't allow them to call that chicken.

2. There's such a person as Santa Claus.

3. The Bush Administration orchestrated 9-11.

4. Barack Obama wasn't born in the U.S.

5. The Pentateuch was compiled over several generations by people with different and conflicting ideologies, and we can reconstruct which ideology is behind which verses or even partial verses with pinpoint precision, according to such tell-tale signs as which name is used for God or whether it happens to involve a negative or positive assumption or conclusion about a certain tribe of Israel. It amazes me how confident scholars can be of this even though no sources have ever been found for such texts, no textual statements in the text we have indicate anything about any such sources, and no two scholars can even agree on which parts come from which sources.

6. J.K. Rowling, author of the Harry Potter novels, is a practitioner of Wicca who sought to convert Christians to Wicca by writing novels about magic.

7. Sarah Palin cut funding for teen mothers because of pro-life convictions.

8. George W. Bush attacked Iraq because he believed God told him to.

9. Sarah Palin thinks God directed the U.S. to attack Iraq.

10. Divine foreknowledge and predetermination are incompatible with human freedom and responsbility. Sorry, I suppose I should find something less controversial. How about the commonly-heard line about how Jesus' statement that it's easier for a camel to get through an eye of a needle than for the rich to enter God's kingdom once you know that there's a gate in Jerusalem called the eye of the needle, and camels can get through it, but it's hard. (I once heard someone repeat that false background to Jesus's statement and then say that knowing that changed her life. Somehow. She never explained any further and probably couldn't have done so even at gunpoint.)

I've been minimizing the discussion of race in my most recent posts about Judge Sotomayor's cases and statements about race, because I wanted to treat those issues together in one place, and it does involve both her speeches and her decisions, which would have required splitting up the discussion if I included it in those posts. So here are some thoughts on her speeches, judicial decisions, and recent statements about race and related issues.

As I've said before, I don't think there's any problem with thinking different people bring different things to interpretation of the law, and I don't think ethnic and racial differences are exempt from this. Someone who has been followed around in the store because of race understands discrimination and racism in different ways from how I do, since that hasn't happened to me that I'm aware of (and it hasn't happened to Sam when I've been around). But to assume that such a person will be a better judge goes too far, and that's exactly what the Sotomayor of the speeches claimed, even if she distanced herself from this in her testimony. What's odd about that is that she seems obviously right about some of the things she distanced herself from and yet wasn't willing to defend herself despite several senators attempting to do so.

There are ways she understands race and racism better than I do, because she's experienced it more from the perspective of someone being discriminated against or who has been followed around in a store. That might impact judging, because it allows someone to have a better understanding than someone who hasn't experienced such things. But what isn't often acknowledged by those making this point is that there are ways I understand racism and discrimination that someone who has more often been discriminated against might not understand. (I've made this kind of point before in a different context here.) For one thing, I've been around white people sometimes when no black people are around, and I know what white people talk about when only white people are around (it usually has nothing to do with race, but occasionally I have heard white people tell racist jokes and such things that they wouldn't say if they thought a black person might overhear). That's part of my experience, and it affects how I see racism and discrimination. Someone who is not white doesn't have that experience and has no first-hand knowledge of such facts.

I also have a third kind of experience from being in a mixed-race family, which includes experiences that most people of only one race don't have. For example, most same-race couples aren't going to have grocery store clerks assume they're not with each other. Most white people don't have family who aren't white, and thus they lack experiences of non-whites that I might have some understanding of. They don't have much experience attending black churches as family of one of the pastors, for instance. There are certain racial experiences that some white people can have that most white people don't have. That makes it hard to assume certain experiences just because of someone's race, which her statement does.

Which set of facts makes someone a better judge? The answer is neither. Both sets of facts could inform judges more about what our society is like, and a good, well-informed judge would welcome both sets of data. So I don't find her claim problematic when she says that a Latina judge's experience would provide experience relevant to judging and thus improve her judging in some ways from what it might otherwise be. I would also go as far as saying that, when a certain qualified judge comes from an underrepresented background, that background is likely to increase the quality of judging by adding the experiences of that underrepresented group to the data set the judges will consider. So having more Latina judges will make the judiciary better in one respect as compared with having one more white man on the judiciary, whose experiences may not (at least insofar as the person is a white man) add any further diversity to the pool of relevant experiences to inform interpretation of the facts that judges will hear.

But I don't think it follows that a Latina judge will be a better judge as an individual than a white man, merely because she is Latina, even holding all other things constant. That's what Sotomayor's statement actually says. I do find that inference troubling.

Since the Senate is going to be voting on Judge Sonia Sotomayor's nomination to the Supreme Court, I thought I might as well post my remaining thoughts on her. As I see it, there are three issues for senators to be considering in deciding how to vote in whether confirm her nomination. The first issue is to what extent they should consider ideology and to what extent they should defer to the president's choice. The second is the disconnect between some things she's said in the past and some things she's saying now and how we should think that will affect her decisions once she's on the Supreme Court. The one remaining kind of issue is simply what kinds of decisions she's made as a judge. [I should say that I left the race issue out of the last post, and I'm also not going to say much about it in this one, because I'm working on a separate post on that issue, covering both the speeches and decisions.]

One thing to keep in mind is what President Obama has repeatedly said in his discussions of judicial nominations. He estimates the percentage of cases where judges just apply the law to be 95% and then speaks of the other 5% as the ones to pay attention to. I think he's got his numbers way off about which cases are easy and would be unanimous, but he's right that it's the most difficult cases, particularly those involving constitutional issues, where we'll get a better idea of what's distinctive about a judge, and we need to look at those cases to get a good sense of how a judge will be on issues of tremendous importance. A lot of people have emphasized that the bulk of Judge Sotomayor's decisions are pretty moderate, but they don't acknowledge that the same was true of Chief Justice Roberts and Justice Alito when they were appellate judges, and senators in the Democratic Party didn't let that stop them from pointing to the few decisions they could find that they considered problematic. It's those controversial decisions that give some sense of how a judge might decide the controversial Supreme Court decisions that most people are most likely to care about.

I think her record does include some bothersome decisions about constitutional rights. For example, there's a worrisome opinion about free speech (see also the 1st update here). She ruled that a public school can punish a student for a blog post written off school grounds and not during school hours.

Her record also includes a number of cases where she has refused to consider constitutional objections against a law or government practice when a large number of people in looking at it have thought such an argument is at least worth discussing and many would argue is decisive. These involve (at least) the Second, Fifth, and Fourteenth Amendments with regard to gun rights (discussed below), property rights (i.e. search and seizure, also discussed below), and equal protection (which I'll discuss in more detail in a subsequent post). It's a serious worry that she thinks these issues are not worth an argument, as if there's no real issue to discuss, when a large majority of her critics, including several people on the Supreme Court in each case, would think there is indeed an issue. Her dissent in the voting rights case about felons (see below) is similarly brief and dismissive, but that's not a constitutional issue. I've heard people say that she's especially thorough in most of her opinions, so this does tell you something about her view on these issues. She doesn't think there's much room for debate on such straightforward issues that lots of people don't think are so straightforward or think are straightforward in the other direction.

The Senate Judiciary Committee voted almost along party lines yesterday to send Judge Sonia Sotomayor's nomination to the full Senate for a confirmation vote. Senator Lindsey Graham (R-SC) was the only Republican to vote in favor of her nomination. Two other senators, Senator Orrin Hatch (R-UT) and Senator Charles Grassley (R-IA), voted for the very first time in fairly lengthy Senate careers against a Supreme Court nominee. What's interesting about this is that this nominee's actual judicial record is probably more moderate than anyone else on President Obama's shortlist, and her decisions have been more moderate than several nominees Senators Hatch and Grassley have confirmed. So what's going on here?

I think there are two explanations. One has to do with our location in the history of the judicial confirmation process. The other has to do with the Two Sotomayors narrative that the Republican senators have been crafting. I've talked about the judicial confirmation process before (most recently here). I do think Republicans are getting frustrated that they've been letting Democratic judicial nominees sail through because of their commitment to give presidents deference, while Democrats have been blocking, filibustering, and voting against nominees who are as qualified and as ideologically-mainstream as the nominees Republicans have not opposed. Even some who are committed to showing presidents deference are going to moderate that commitment in such a setting if they think the judiciary is at stake because of the practical consequences of the two parties having different approaches to the amount of deference senators should give the president. This probably gives the second issue more weight than it might otherwise have, but I think it's at least a significant driving force in Republican resistance to Judge Sotomayor's nomination, even if they're not saying this in their explanations for their votes.

The explicit reason most of the Republican senators are giving depends on a running narrative from the Republican senators on the judiciary committee about the Sonia Sotomayor of her speeches and the Sonia Sotomayor of her decisions, and they want to know which one will appear on the Supreme Court if she's confirmed. Some of these differences are overstated, but some issues do raise a concern for many people. We might assume that a judge who has consistently ruled in an unbiased way in the majority of cases (which all sides agree is true of her) will continue to do so on the Supreme Court, even if she has expressed views in speeches that might seem at odds with that. It's been interesting to see some of the Democratic senators defending the speeches outright, while others have insisted on standing by her judicial record as a way of creating distance between her judicial decisions and her public statements.

Sotomayor herself has notably taken the second approach and backtracked from a number of things that she seems to have clearly endorsed in those speeches, emphasizing that her decisions have consistently applied the law and not interpreted it in light of the things the speeches seem to involve. She has articulated a view in her hearings on the relevance of foreign law to judging that sounds more like Chief Justice Roberts and Justices Scalia, Thomas, and Alito in their resistance to use of foreign law for interpreting U.S. law and the U.S. Constitution. Consider her written response to Senator Sessions' questions:

In my view, American courts should not rely on decisions of foreign courts as binding or controlling precedent, except when American law requires a court to do so. In some limited circumstances, decisions of foreign courts can be a source of ideas, just as law review articles or treatises can be sources of ideas. The Supreme Court's Eighth Amendment cases establish how the Court considers constitutional challenges to the death penalty, and I accept those decisions.

On the other hand, her speeches on the subject sounded more like Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer, who have on several occasions used foreign law as a reason to consider evolving standards of decency or a new national consensus of policy preferences as reasons to take the U.S. Constitution and U.S. laws to mean something very different from what they originally meant and have meant for the entire history of interpretation (e.g. on what constitutes cruel and unusual punishment or how to interpret due process in the 14th Amendment).

In these cases she's right to say that there were other issues, so the appeal to foreign law doesn't determine the outcome by itself, but a lot of readers have come away from the opinions with the impression that foreign law was driving it to begin with, and the justices had to find some way to justify their policy preference rather than simply deciding things according to precedent or what the text of the Constitution requires. So what she says here seems to me to be at odds with what it seems to me that these decisions she cites favorably actually do. Also, her speech on this question expressed concerns about how the United States would be viewed if we were significantly at odds with international law on important issues. A judge could be concerned about how our laws are viewed as a step toward arguing for changes in the laws via legislative process, but this statement wasn't in a speech advocating that. It was in a speech advocating the use of foreign law to get ideas for what judges in the U.S. can do.

Given a difference between her opinions as a judge and her speeches as a private citizen, the distinction between appellate judges and Supreme Court justices might make all the difference in which one of those would appear on the Supreme Court. If her views from her speeches really are worrisome, and the only thing keeping her from enacting them is that she's bound by Supreme Court precedent and Second Circuit precedent in her current role, with a Supreme Court review always possible for any decision she renders, then she will be freed from those constraints on the Supreme Court. That's why the narrative of the Two Sotomayors is still compelling for many people as an argument against her nomination. It's no defense, if this is right, to point out that most of her decisions have been in terms of legal rather than policy arguments or to point out that she hasn't based her decisions on empathy but on the law.

I totally missed this. According to Dale Carpenter, the Obama Administration has endorsed all the conservative arguments against same-sex marriage. I wonder if that's a bit of an exaggeration, but it does seem as if one important argument that's roundly derided by most of my philosopher friends is present in the DOJ brief, and it's an argument that I think is exactly right (even if very unpopular among those who favor same-sex marriage).

The DOJ argues that it doesn't violate equal protection on sexual orientation grounds to fail to recognize same-sex marriage, because gay and straight people aren't getting different marriage rights as each other. Gay men are free to marry anyone of the same group that straight men are free to marry -- women. It's true that gay men can't marry other gay men, but neither can straight men. So any discrimination that's taking place isn't according to sexual orientation. Men of both orientations (gay and straight) are being treated equally. You might argue that it's unfair because one is able to marry according to their preference and the other isn't, but they are strictly speaking given the same marriage rights, and it isn't discrimination along sexual-orientation lines. There's a much better explanation of what's going on, which I'll get to in a moment. But I wanted to say that I'm glad someone left-of-center is acknowledging this, because it seems obviously true to me and seems completely the wrong way to argue that this is discrimination. (The DOJ apparently doesn't intend to argue that right now about marriage, though. The Obama position is pretty clear that there shouldn't be a federal-level recognition of same-sex marriage but that there should be a federal-level recognition of civil unions with all the civil rights that marriage would convey.)

I've seen all manner of twists of logic to try to resist this conclusion, but I don't know how you could get around it. It's not sexual-orientation discrimination to treat all gay men and straight men equally any more than Prohibition was discrimination against drinkers of alcohol. It simply wasn't. Everyone was prohibited from alcohol, not just drinkers. It certainly affects those who drink in a way that it doesn't affect those who don't, but that doesn't mean that drinkers were being discriminated against, since that would involve being singled out with a law that doesn't apply to others. Being singled out with a law that others don't care about isn't the same thing as being singled out with a law that only would apply to some people. Requiring people to wear motorcycle helmets doesn't affect me because I don't ride a motorcycle, but I'd have to wear a helmet if I were to ride one, so it's not discrimination against motorcycle riders.

Nevertheless, there's a discrimination argument that the DOJ brief doesn't acknowledge. In fact, there are two. I think these arguments are both also very obvious once you consider them, so it surprises me that they don't deal with them at all. Most people on the right on this issue don't accept these arguments, and I think there are things they can say in order to justify such resistance, but the claim in both cases does seem at least initially plausible to me.

One kind of discrimination involved with not allowing same-sex marriage is discrimination against couples on the basis of their being same-sex. The above argument is only about individuals. I don't think this would be discrimination against a gay individual, but you could much more easily argue that a couple who is same-sex is being discriminated against on the basis of their sexual orientation. Technically speaking, that's not right either. Two straight men could, in principle, decide to go against their sexual orientation and seek civil marriage. The discrimination here isn't really according to sexual orientation, then, but according to same-sex pairings vs. opposite-sex pairings. Treating a same-sex couple and an opposite-sex couple differently is discriminating against the couple who is being denied a privilege or right that the other couple is given.

(This gets immensely complicated in terms of the logic of it once you accept intersexual, transgender, or transsexual members of pairings, so I'm ignoring that for the sake of this argument. I don't think it affects what I'm trying to argue in any significant way, so I think for simplicity's sake it's not problematic to do so.)

The other argument is still about individuals but is not about sexual orientation at all. Denying a man the right to marry another man is discrimination if women are allowed that right. The same is true of denying a woman the right to marry another woman when a man can do so. But this isn't sexual-orientation discrimination. It's sex-discrimination. Men are given certain rights or privileges not given to women, and women have rights or privileges men don't have. This argument seems to me that it should be utterly obvious once it's made clear.

A friend of mine on Facebook left a comment in response to a status update to the effect that there's an inconsistency in much of the rhetoric from the left when it comes to our attitude toward the next generation. I think this is a problem for both sides, actually. You can often find people who will issue very harsh criticisms of those on the other side for ignoring the devastating consequences of either inaction or a particular course of action on a certain issue, while the same people will ignore the devastating consequences of inaction or a certain course of action on a different issue.

You hear a lot about how we're failing in our responsibilities to the next generation if we allow climate change to continue at the rate it's going. Yet the same people who make these urgent calls to think about the next generation are happy to spend massive amounts of money that we couldn't hope to pay for in several generations, even if (as is likely) President Obama has to settle for significant departures from his campaign promises about taxes. (See note 1 below for more on this, which I decided was too intrusive to my argument to keep here.)

I would add that they're also happy to impose regulations that will almost certainly generate hardships for lower-earning wage-earners both in making it more difficult to buy new houses and cars with something like the cap-and-trade proposal currently at work or providing health insurance for people who don't have it, at the cost of making health care much worse on the whole for many people, including lower wage-earners whose employer currently does provide health insurance but who will be forced to move to worse health insurance as a result. (See note 2 for my own situation with respect to this, which I wanted to say something about but was also becoming too intrusive to my argument.)

But on the right, you can have similar inconsistencies. Some conservatives favor significant environmental regulation, but most want it limited. Some reject it entirely. Some of those who reject it are nevertheless environmentally conscious, taking it to be a problem we should do something about. For example, Dick Cheney, who is very generous with his money with regard to charitable donations, gives quite a lot of money every year to conservation-related charities, a good portion of of which (I believe) goes toward exploring technologies that will help deal with environmental problems more effectively than regulation could ever do. But there are conservatives who are simply not interested in environmental concerns, who nevertheless put a lot of effort into criticizing the Obama Administration and the current Democratic-led Congress for not caring about the future generations with their ridiculous levels of spending and regulation that will certainly have a negative impact on the next generation.

There's an ongoing debate about exactly what role senators should have in the process of confirming judicial nominees. The Constitution gives the President the role of appointing people to certain positions, including "Judges of the Supreme Court", but this role is qualified. It is to be done "by and with the Advice and Consent of the Senate".

At this point there are two main views about what that advice and consent is supposed to be. Some senators have consistently maintained that ideology can play a role. If a senator disapproves of the ideology or perceived ideology of the nominee, it's perfectly fine to vote against the person's confirmation. Other senators have consistently maintained the view that senators should give significant deference to the president, voting to confirm any mainstream nominee who is qualified enough, even if the person tends significantly to the other side of the political spectrum or to a contrary judicial philosophy.

There are reasons for each view. Deference to the president makes some sense. When we vote for president, we do so while knowing what sort of judges the candidate is likely to appoint. Anyone who voted for Barack Obama while thinking he would appoint judicial conservatives to the bench is an idiot. Anyone who voted for George W. Bush while expecting him to appoint liberal justices to the Supreme Court wasn't paying attention to the kinds of justices he said he admired and would appoint. Mistakes can happen (as with Justice Souter with Bush's father), but you shouldn't expect your preferences to be fulfilled with judicial appointments if you vote for someone for president who has opposite preferences. Senators on the other side might say that elections have consequences and that presidents are owed some deference due to the political process. On the other hand, elections have consequences. Senators are elected. They represent the preferences of their constituents, and isn't the function of senators in judicial appointments part of what you should consider when you vote for someone for that office? So even on the democratic process argument, you might think it cuts both ways.

But other considerations have been offered against giving presidents a lot of deference on judicial nominations. One problem is that you still need to decide when to defer and when not to defer. How far outside the mainstream counts as sufficiently outside? Chief Justice Roberts and Justice Alito were both presented by Democratic senators as being outside the mainstream of conservative thought on evidence that's actually pretty similar to the evidence being used to argue that Judge Sotomayor is not outside the mainstream of judicial thought. It turns out, then, that this view isn't really a coherent, unified position. It's not about whether to give the president deference but about how much deference to give the president.

No one wants the Senate to rubber-stamp whoever the nominee is no matter what, so qualifications must matter, but it's not clear the ideological considerations are really separate from qualifications. Some would argue that an ideology that's very extreme actually disqualifies someone from being a good judge, because a good judge would interpret the law accurately and fairly, and extremist judges of certain sorts do not. But according to a judicial conservative, liberal jurisprudence then counts as a lack of qualifications. Any nominee who is ideologically liberal in terms of judicial philosophy is not a qualified nominee, and senators can vote against them on that basis and call it a matter of the nominee not being qualified.

So I'm no longer sure that the distinction between qualifications and ideology really explains much in terms of what senators should pay attention to, at least not in any way that will be agreed upon by a significant number of senators. Several other considerations also might favor looking to ideology. Some have argued that too much deference to the president leads to extremist judges on both sides, since presidents will get away with as much as they can if the Senate just defers.

We start off with Senator Jon Kyl (R-AZ) today. The senators are going through their second round, limited to 20 minutes each instead of 30 (and most aren't using the full time either).

I'm only going to comment if anything new occurs. A lot of these second-round questions are simply rehashing what they've talked about before.

Kyl challenges her on Ricci. She says she decided the case based on Second Circuit precedent. That applies in the original hearing of the case. She voted on the case the same way in the en banc review, when the whole Second Circuit heard it. He wants to know why she voted not to hear it en banc, given that precedent wouldn't bind her at that point. The district court decision doesn't bind her, and the Second Circuit precedent doesn't apply. So he wants to know what bound her to decide the same way then.

She says the three-judge panel opinion she issued was now precedent, making the district court opinion precedent. He says the Supreme Court said there was no precedent. She says that was on whether the circuit court decision used the right standard. Two provisions of Title VII need to be assured to be consistent with each other. That issue was raised with them but not with her panel. The outcome she came to wasn't based on that. He's trying to get her to admit that she wasn't bound by precedent when it came to voting to hear the Ricci case en banc but did so vote, and he wants her to explain why in terms other than precedent, because precedent doesn't bind her at that point. She won't admit that, but as far as I can tell it's true.

He reads from Judge Cabranes saying that cases are not typically dismissed with summary judgments when they are of this import. She doesn't seem to have anything to say about that either. He says the nine Supreme Court justices all said it shouldn't have been a summary judgment. He says there were three tests: the one the appellate court used, the one the Supreme Court went with, and the one the dissent went with. But all nine of them said it shouldn't have been a summary judgment. She says she doesn't read the opinion that way.

Kyl turns to a speech discussed by Senator Hatch yesterday about justice for an individual in a district court and justice for society in an appeals court. But in the appeals court, it's still supposed to be about justice for the individual. It might have the effect of building reliance on rule of law and creating precedent, but the decision is supposed to evaluate based on the law on this case. She agrees. The legislature's contribution to policy is making law. When judges follow the rule of law, they create precedent that then have a policy impact, but it's not in the sense of making law the way Congress does.

Senator John Cornyn (R-TX) starts things off today. He's rehearsing the same worry about the different picture painted by her decisions as a judge and her public speeches, where the worry is that being less constrained on the Supreme Court would move her away from judging the way she has done on the Second Circuit and more like the picture she's presented in her speeches.

She says she stands by her words as she intended them but understands how people have taken them in a different way.

Cornyn moves on to the issue of the law being in flux. Why is the law indefinite? She says it's a matter of which legal cases apply. People bring cases because they believe precedents don't clearly answer the question at hand. They present facts that they say entitle them to relief under the law. Indefiniteness isn't about what the law is but how it's applied, and it leads people to believe it's unpredictable. Judges don't make law the way Congress does, but they apply law in new ways, as initiated by arguments of lawyers and not by judges themselves. Judges ensure the law applies to the facts, interpreted according to Congress's intent, being informed by precedents as applied to new facts.

A life experience as a prosecutor may help her understand things in a criminal case but not much in an anti-trust suit. Judges from a variety of backgrounds should increase public confidence because more issues will be addressed. It's not better addressed but it helps public confidence that all issues will be considered properly. She says in the particular paragraph she said we should ask the question as a possibility to think about. She wasn't answering it. She wasn't suggesting a difference in outcome, just a difference in process.

He keeps focusing on how physiological differences could do this. He's missing the point. She wasn't talking about physiological differences but different experiences. If he thinks men and women or whites and blacks have the same experiences, there's not much hope for her to convince him of this.

He asks if anyone asked her about views on abortion, and she says no one asked her anything about any specific issue. He asks why the White House would then assure abortion rights groups not to worry, and she says she knows no reason. She follows the law on all issues she addresses, and her record shows it.

He asks about the head partner of her firm saying she'd be clearly on the pro-choice side, and she says she never talked to him about that issue or any other social issue. She's upheld the law as it stands in every case she looked at. She upheld the Mexico City policy that prohibited federal funds for foreign abortions. She doesn't think he's read her 17-year judicial history, because he's a corporate litigator, and corporate litigators only read cases relevant to their current cases. He said she had liberal instincts, and she thinks he must be thinking equal opportunity is a liberal view, and she had pursued that as a board member of the Puerto Rican Legal Defense Fund.

He wants to know why the court's opinion in Ricci was unpublished, denying the firefighters' claims without discussing them. She says the briefs were available to the other judges when they considered whether to review it en banc, so Judge Cabranes had access to that. She can't speak for his reasons why he chose to reconsider the case. The issues of the case weren't hidden from the other judges, though. 75% of circuit court judgments are by summary order. (Right, but this is a much more major question than most.) She cites the district court's long opinion as a need not to repeat all that.