Politics: June 2009 Archives

Perhaps future-Justice Sotomayor's judicial inclinations on abortion will be tested relatively soon once she assumes Justice Souter's now-vacated (as of today) seat on the Supreme Court (pending her all-but-assured confirmation by the heavily-Democratic Senate). The 4th Circuit decided a case last week that considers the constitutionality of a Virginia abortion ban that in almost every respect is just like the federal law that the Supreme Court narrowly upheld in an opinion written by abortion swing-voter Justice Anthony Kennedy.

The federal law and the Virginia law differ in one respect. The federal law bans deliberate partial-births (defined by delivery up to a certain biological point) in order to kill the fetus. That procedure is outlawed as a method of abortion. The Virgina law bans one further thing. If a doctor is carrying out an abortion by another method, and the fetus happens to get past that point of delivery defined by the law as a partial-birth, it is a crime to kill it via any method. In other words, once the fetus reaches the point defined by the federal law as a partial-birth (whereby it's a crime to deliver the fetus to that point in order to kill it), it counts in Virginia as a crime of a similar level if the doctor goes ahead and kills the fetus whether the intention was to abort it that way or another way earlier in the process.

In other words, the difference between these two laws is that one does not criminalize deliberate attempts to kill the fetus after it reaches the relevant partial-birth stage as long as the doctor had planned to kill the fetus earlier but failed to do so. The other does criminalize that. Which law is more consistent? Surely the Virgina one. It criminalizes any killing past that point, whether there was an intention of killing beforehand or not. Compare the laws against disposing of an infant born from a failed abortion. The U.S. Senate unanimously supported such a law. It doesn't matter if the doctor intended to abort the fetus. If it got to the point where it would normally be illegal to kill it, the fact that it was born as a result of a failed abortion doesn't make it legal to kill it. This just extends the same sort of reasoning to the partial-birth abortion ban the federal government passed that the Supreme Court has declared constitutional. So it seems as if it's actually the logical implication of the federal law, even if the federal law didn't go this far. It basically relies on the principle, found in Judith Jarvis Thomson's famous 1972 paper defending abortion, that a woman doesn't have a right to the death of the fetus just because she has a right to be rid of it from her body.

The 4th Circuit vote was narrowly-divided 6-5 along lines that happen to correspond with the party of the presidents who appointed them. Judges don't often follow a narrow ideology reflecting exactly that of the president who nominated them, but in this case it did work out that way. One judge was appointed by President Clinton as a recess appointment and renominated by President George W. Bush as a courtesy (as presidents do from time to time for previous presidents of another party), but he really counts as a Clinton appointment, since Clinton appointed him initially. Those appointed by Presidents Reagan, Bush, and Bush signed the opinion that upheld the law. Those appointed by President Clinton signed the dissent (none remain from Carter and Obama's one nominee to that court hasn't been confirmed yet).

In effect, the Democratic appointees on the 4th Circuit Court of Appeals have endorsed the view that a woman not only has a right to be rid of the fetus but also has a right to its death if being rid of it most of the way doesn't kill it. Otherwise they have nothing to complain about if they're really following Supreme Court precedent (which does bind them). The dissent here strikes me as a pretty obvious case of ideology trumping the law, even granting all Supreme Court precedent as the law. I really hope that if the Supreme Court hears this case it will affirm the 4th Circuit judgment by a 6-3 margin. It will likely not get more than that since three justices remain who will likely seek to continue their opposition to laws like this, but I suppose it's barely possible even if extremely unlikely that Justices Stevens or Breyer will defer to precedent they didn't original support. But no one has any clue about Judge Sotomayor's views on this sort of issue. She could be well to the left of anyone on the Supreme Court for all I know, but it's certainly possible that she's even to the right of Justice Kennedy for all that she's written about the issue (which is basically nothing besides issues relating to the free speech of abortion protesters).

I came across a pretty good discussion of several of the bad arguments for and against Judge Sotomayor's nomination by Jonathan Turley. I recommend the whole thing, but one statement by him got my attention.

He says something that led me to compare an interesting phenomenon that arises with both Justice Thomas and Judge Sotomayor involving race. There are those who are happy that Judge Sotomayor is a Latina and will support her nomination for that reason alone, ignoring anything else. Then there are those on the left like Turley who would have preferred someone with more intellectual heft. On the right, there are those like me who are happy enough that Obama has nominated someone who by most reports will do little to move the Court to the left from where it currently is (and on some issues may well move it somewhat to the right, although on some issues we don't have any clue, and she could be far left for all we know). Then there are those on the right who have also pointed out that she's gotten some negative reviews in terms of her intellect, claiming that she's an affirmative action pick who is being chosen not because she's qualified but because she's Latina, sometimes even with the suggestion that she's unqualified.

So on both sides of the political spectrum we get objections that she's not an intellectual heavyweight. Turley is right to point out that this is not the same as saying she's stupid, as some have claimed these critics to be saying. Maybe some of them are, but Turley thinks she's quite smart but just not an intellectual heavyweight whose depth of understanding of the law and the historical background of the legal questions would shift legal opinion in significant ways, e.g. as Justice Scalia has done on the right and as Justice Brennan did on the left in the latter half of the 20th century. Such a statement is consistent with recognizing her intelligence as pretty high.

Then there's a third category. There are those who claim the statements about her intelligence are due to racism. She's Latina, so they must be assuming she's dumb. You find this on the right too, particularly when people criticize Justice Thomas. Senator Harry Reid, for instance, despite admitting to never having read an opinion by Jusice Thomas, was happy to spout off the general wisdom of the left that his opinions aren't very well-written, and I regularly see and hear comments about how he's not all that smart and just looks to Justice Scalia for guidance about what to do. Anyone who has spent much time looking at his opinions and anyone who has heard him speak would never hesitate to consider him to be a pretty intelligent person.

So what about the racist charge? Is it racist to say that someone is dumb when the person happens to be non-white? Of course not. Your reasons for thinking someone is unintelligent may be despite great reluctance to say such a thing of a non-white person in the public eye. You might genuinely think the evidence supports it, or you may trust the opinion of someone else who reported to you that someone is unintelligent. I think it's pretty immoral to call someone a racist merely because they happen to think someone who is non-white isn't very bright. There are, after all, people who aren't white who aren't that bright. I've tutored for some of the athletic teams at my university. Some of the students on those teams are very good academically, and others should never have made it into college. Some of those who never should have been accepted happen not to be white. They struggle to understand pretty basic philosophical concepts that most freshmen pick up pretty readily. It's racist to assume someone is dumb just because the person is black or Hispanic, but it isn't racist to conclude that someone who happens to be black or Hispanic is of low intelligence after becoming aware of actual evidence that the person is of low intellifence.

Nevertheless, I think there's something that these critics have right. I think there's a very strong presumption in individual cases of not accusing someone of wrongdoing or evil motives when there isn't strong evidence that they are ill-intentioned or doing wrong. Therefore, I think it's wrong to throw around racism charges for everyone who, for all you know, might be operating based on racist assumptions. Racist assumptions would explain how someone might conclude that someone who managed to graduate top of her class at Princeton University might be stupid. Racist assumptions similarly would explain how someone might say the same about the justice who managed to convince Justice Scalia to become more judicially conservative than he already was because of some pretty innovative and out-of-favor reasons that it hadn't even occurred to Scalia to consider. But to assume that racism is at work in any particular case violates the principle of charity that we ought to take in cases where we don't really know if someone is being downright evil in the way we're inclined to accuse them of being.

Such a strong presumption is for individual cases when we're ignorant of the details, perhaps even relevant ones about a person's inner life. That's consistent with recognizing that a claim is too ludicrous to be perpetuated so easily and frequently by people who should know better when we rarely see such claims about men who are nominated or serving on the Supreme Court. That might lead us to wonder if there is some kind of racist stereotype being perpetuated. In this case, I don't think it would be that Judge Sotomayor is being assumed by anyone to be unintelligent because she's Latina, but I wonder if some people among those who say this are more likely to believe such a claim when made about a Latina than they would if it were made about a man, especially a white man.

I've been pretty busy teaching two intensive summer courses for the last few weeks, and I didn't have easy access to a computer for a good part of that time because Dell's next-day contract isn't exactly giving me next-day service due to some backlog problems (I still don't have full resolution from a problem that began something like 13 days ago.) But I did catch some people commenting that President Obama said that the U.S. would be one of the largest Muslim countries in the world if you just counted all the Muslims in the U.S., and I did see some people juxtaposing that comment with his claim during the election that the U.S. isn't a Christian country, claiming that he had contradicted himself.

There is a real tension between what he's doing with those two statements, but I don't think he contradicted himself. It turns out that one of his statements is hopelessly false. According to a Pew study, Muslims are about .6% of the U.S. population, which brings the total to less than 2 million. It seems France and Germany have more Muslims than the U.S. does, and most Muslim states are higher than that also. See Mollie Hemingway for some sources and some graphical presentations of the information. But the statements can be consistent even if one of them is false.

We need to ask first what it takes for a country to be Christian or Muslim. 1. Is a country a Christian country merely because its majority is Christian and its traditions are largely influenced by Christian traditions? 2. Or does there have to be an official declaration of Christianity as the nation's religion? 3. Or is that even enough, given that Christianity itself is a decidedly non-nationalizing religion, with strong resistance to seeing faith in the nationalized way that old-covenant religion in Israel was. The expansion to include all nations resists the very possibility of a Christian nation, according to Christian theology.

But what many people mean by using the adjective 'Christian' in this context is not any such thing but more that the government's structure, the legal tradition's views of human rights and assumptions of common law, and the nation's broader traditions are Christian-influenced in a strong enough way.

You have a very different situation with Islam. A nation can be Muslim in the weaker sense. It can also be Muslim in the second sense of being an officially-Muslim government, and in fact most nations that are Muslim in the first sense are also Muslim in the second. (I believe the only ones that haven't been have been controlled by a minority hierarchy of non-Muslims). But Islam explicitly affirms the third kind of being a Muslim nation, something Christianity never condones for itself. So that does change things, I think. It can much more easily be the case that a nation is unambiguously Muslim than it can be for a nation to be unambiguously Christian (in fact it's impossible for Christianity).

But will this help resolve the tension between the two Obama statements? I doubt his understanding of biblical theology is sufficient for him to come up with the view that it's impossible for a nation to be Christian in the third sense, but it's quite plausible that he meant the second sense when he said that the U.S. is not a Christian nation. It's pretty obviously not true if he meant it in the first sense, especially with his fairly broad sense of what it means to be a Christian. [And his view of Christianity is broader than mine, since he does consider himself a Christian, and I find it hard to include him given his denial of any afterlife, his conception of prayer as talking to himself, his reducing of the Holy Spirit to anyone's coming to see something that's true, and his conception of Jesus as merely bridging the God-human gap rather than having dealt with a serious problem of human sin interfering with any connection with God's holy nature. (See my Is Barack Obama an Evangelical? for further details on all that.) So with a broader conception of what counts as Christian, the numbers of Christians and the influence of Christianity in the U.S. will only appear to be stronger to someone like him than it would to someone like me with my more restrictive views of what is genuinely Christian.]

What about his statement about the U.S. being one of the largest Muslim countries if you only counted the Muslims. Even though the statement isn't even close to being true, I'm interested in what he meant to see if it's consistent with his statement about the U.S. not being a Christian nation. If he meant it in the second or third way, it's obviously false. I think he must have meant it in the first way. But saying something like that and meaning it in the first sense with Islam is perfectly consistent with resisting something along the same lines about Christianity and meaning it in the second sense. So I don't think his two statements are actually at odds, at least in terms of the consistency of the two things he meant with each statement.

Nevertheless, there might well be a tension between the pragmatic purpose of what he's trying to do in one case and the pragmatic purpose he's trying to achieve in the other. In the later case, he was looking toward a major speech trying to win over the Muslim world, so he wanted his audience in that speech to see that he was being positive about Muslim participation in American society. What was he doing in the first case? He was probably trying to satisfy the left's continued insistence that the religious right shouldn't control policies that people might disapprove of if they have other religious convictions or none at all. So the surface motivation is to be inclusive, a similar purpose to his later claim about Islam. Nevertheless, I do think the statement he made, in the context of why people do claim that this is a Christian nation, serves to send a message that Christian concerns are not to be included at the table when discussing certain kinds of policies. To the extent that that's true, I do think his statement serves an exclusionary purpose with socially-conservative religious voters, who were by and large turned off by his statement.

What he literally meant shouldn't have offended by it, but what he was trying to accomplish certainly does treat their concerns as unimportant. For that reason, I don't think those who are criticizing him for being inconsistent with these two statements are entirely wrong. There is something behind the first statement that is at odds with what he's trying to do with the second, at least if he wants to treat all religious expressions as legitimate and positive, which he at least says he wants to do.

Back during the nomination hearings for then-Judge Samuel Alito, Senator Barack Obama defended his vote to filibuster Alito, for reasons that included the following reasoning:

I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I'm deeply troubled.
I have no doubt that Judge Alito has the training and qualifications necessary to serve. He's an intelligent man and an accomplished jurist. And there's no indication he's not a man of great character.

But when you look at his record - when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American's individual rights.

If there is a case involving an employer and an employee and the Supreme Court has not given clear direction, he'll rule in favor of the employer. If there's a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he'll rule in favor of the state. He's rejected countless claims of employer discrimination, even refusing to give some plaintiffs a hearing for their case. He's refused to hold corporations accountable numerous times for dumping toxic chemicals into water supplies, even against the decisions of the EPA. He's overturned a jury verdict that found a company liable for being a monopoly when it had over 90% of the market share at the time.

It's not just his decisions in these individual cases that give me pause - it's that decisions like these are the rule for Samuel Alito, not the exception.

When it comes to how checks and balances in our system are supposed to operate - the balance of power between the Executive Branch, Congress, and the Judiciary, Judge Alito consistently sides with the notion that a President should not be constrained by either Congressional acts or the check of the Judiciary. He believes in the overarching power of the President to engage in whatever the President deems to be appropriate policy. As a consequence of this, I'm extraordinarily worried about how Judge Alito might approach issues like wiretapping, monitoring of emails, or other privacy concerns that we've seen surface over the last several months.

In sum, I've seen an extraordinarily consistent attitude on the part of Judge Alito that does not uphold the traditional role of the Supreme Court as a bastion of equality and justice for United States citizens.

By that standard, now-President Obama should find the current president's nominee disturbing for the same reasons he found the last Supreme Court nominee disturbing, at least if he's going to be consistent. In fact, he should promote a filibuster.

If you live in the District of Columbia, beware of parking your car in your own driveway. Unless your entire vehicle fits behind the front of your house (or technically the front of your front step), you'll be subject to a $20 ticket for parking in your own driveway. [Hat tip: Ilya Somin]

What are you supposed to do if your driveway doesn't go back far enough to fit your vehicles behind your front step? Maybe they don't make any driveways in D.C. that go back only as far as the front of the house, but I would highly doubt that. If this really is the law, they need to change it.

I have to agree with Ilya Solin about this. I've yet to put together my thoughts on the Sotomayor nomination fully, but this is an important point that I wanted to say something about separately. Regardless of your view of the correctness of Sotomayor's statement that a Latina just should be a better judge than a while male judge, such a view is not racism.

I tire of making this point on the left-leaning race blogs that I sometimes check in on. Racism, in its primary sense, is a negative attitude toward people of another race. Other things that might be called racist are so in a derivative way because those things are connected with racist attitudes. Thus certain acts are racist because they typically stem from such attitudes, and certain institutions are racist because they have a lot of such atittudes and acts woven into their very fabric. Jorge Garcia has an excellent philosophical defense of this approach in "The Heart of Racism".

When you call someone a racist, it doesn't mean they have innocent motives but participate in social practices that inadvertently cause racial harm. It doesn't mean they merely have false views about race or about races other than their own. It doesn't mean you can get away with ignoring race the many white people can much of the time. It doesn't mean you avoid some of the difficulties some others face because of race. The most immediatel thing converyed when someone is accused of being a racist is that the person has a deep-seated racial animosity or opposition to those of another race or that the person has views that those of another race are inferior, and these views have a negative emotional or attitudinal component. There are certainly things that can be called racism that don't fall into that category, but they're derivative of this fundamental meaning, and when you call someone a racist it sends entirely the wrong message if what you mean is something other than the primary meaning, because that's what people hear in such an accusation.

So it irks me when I hear conservatives making exactly the same blunder. It's not reverse racism to have the view that a Latina judge is likely to have experiences that influence her judging in positive ways, experiences that a white male judge wouldn't have. Calling someone a racist for thinking experiences common to the women of one ethnic group might make someone a better judge than people not in that category is as bad as calling someone a racist for opposing affirmative action or for claiming that the Democratic Senators at Clarence Thomas' nomination hearing were racists because they were willing to do anything, even smear his name with accusations that they had plenty of evidence against, if that's what it would take to prevent his confirmation. Rush Limbaugh and Newt Gingrich have violated their own principles on this one. Limbaugh is a regular complainer about how the left issues racism charges in cases when such charges are not warranted. Yet that's exactly what he's doing here. I'm pretty sure Gingich shares that view, and yet he's also apparently called her a racist. Regardless of whether her view is true (and I encourage you to look at Tom Goldstein's analysis of her discrimination rulings, a post I'll try to comment on in more detail as soon as I can, before you come to a final judgment on her ability to be fair on such matters), it's certainly ridiculous to say that she's a racist for holding it.

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