Sotomayor: Decisions or Speeches?

As everyone knows, Judge Sotomayor's legal opinions are much more moderate than her off the bench speeches and writings. Which should we believe?

Clearly, we should believe the off the bench statements, for a very simple reason.

I'll give you a clue: the same profile -- off the bench writings much more scary than on the bench -- also fit Judge Robert Bork at the time of his confirmation hearings. Why do you suppose Democrats were having hot flashes about his scholarly writings?

The life of a circuit or appellate court judge is very constrained. Of course, in this rule-bound, overregulated world, we are all constrained in a way. But there is a big difference between me and one of these judges.

I am sure the village of Oregon WI could come over right now and "write me up" for several violations I am committing on my property without my even knowing I have committed them. This is true of most Americans who own anything. There are several reasons we are not all paying fines, and possibly doing time in the pokey: that a) the magistrates just don't have the resources to enforce all the rules and regulations that are on the books, b) they are actually decent people and don't want to harass us, which means that c) they don't really care what we do, as long as the mischief is not too great. We are protected against the massive, unpredictable, and incomprehensible tangle of rules by our own insignificance.

With a judge it is very different. There are all sorts of ways a judge's decision can be wrong, so that there are plenty of rules that apply to them, just as to us. But there is a big difference: in a judicial decision, there is always a loser, and the loser always has a strong motive to appeal if they can find a relevant flaw in the decision. When your judgment loses the appeal, the higher judges give a detailed account of why you were wrong, and I've read some stinging ones. It must feel like being a law student and having your exams graded in public.

Writing opinion pieces and giving speeches is obviously very different. There are few constraints and little enforcement. Sure, someone may disagree with you and say why. But you are free to ignore them, and the level of rigor in what they say may be such that you won't take them very seriously if you don't.

Of these two, judging on a lower court and writing opinion pieces, judging on the Supreme Court is a lot more like the second situation than it is like the first. There is no appeal from its decisions. They can overrule themselves, but how likely is that? And even if they do, and it is not just a matter of the justices changing their minds, it is not like being publicly spanked by their superiors.

Supreme court justices are like law students who grade their own exams.

To see how Sotomayor will act on the SC, look at how she acted in the situation that most resembles it. If she suddenly retracts all her extreme pronouncements, as she did today, the big question is which do you believe: the pronouncement or the retraction?

Mediocrities or Freaks?

I think it was Michael Kinsley who said "a gaffe is when a politician tells the truth."

I don't want to endorse everything King is saying here by a long shot. I wouldn't call MJ a "child molester" -- wasn't he found not guilty in a court of law? And it certainly isn't true that there is nothing good about him. As comments on Michael Jackson the human being, these are way over the top.

But on the wider cultural issue the Congressman has a point.

Tocqueville and Mill worried that the transition from aristocracy to democracy that was then under way would bring a certain change for the worse in the outlook of the average person. Before the revolution, when we looked outward, beyond our village at the greater world, who did we see? There was of course the faceless herd of undifferentiated individuals like ourselves. But we did not find them very interesting. Above this mass, however, there were a few holy or noble individuals who were vividly differentiated: the Pope, the tribal chieftain, the local lord, the king. There was no one else to get our attention. (Ortega claims that "noble" originally meant simply "well known.") We thought of these people as representing ideals of holiness or heroic prowess. (We were wrong about that, of course, but that is irrelevant to my point here.) That was one of the reasons we sometimes sat around the fireplace telling stories about their exploits.

After the revolution, society does not systematically present any one type of person to our view. I used to think that this means that under a democracy we will tend to pay attention to mere mediocrities -- more exactly, to celebrities, ie. people who are well known on account of their well-knownness. Obviously, that is to a large extent what actually did happen.
But this weird MJ obsession of ours does not fit this pattern. He was not a mediocrity at all. No, I think the reason he is getting so much attention is that he was, simply, a freak. Sorry, but there's no nice way to say that without blunting my point. And you have to admit that this is indeed what he was: a seriously weird person. For some reason, we seem to find this endlessly fascinating. We just cannot get enough of his wonderful weirdness.

Here I think King raises the right question. What does this fascination say about who we are, about our spiritual depths (if any)?

If there is some human being or other person (eg., a god) that we want to contemplate day after day, it should be because of positive things about him or her.

Here is another place where I differ from King. He is a politician and government employee, and his heroes are government heroes: fallen military personel and fire fighters. My own heroes are a very different bunch. I think of them as people who make things, whether what they make is a philsophical theory or a better mousetrap. (Come to think of it, the ideal philosophical theory would be a sort of spiritual mousetrap.) These are the creators in the realms of art, science, technology, and industry.

Whether you prefer my sort of heroes or Kings, or have yet another preference, shouldn't we try to pay more attention to them? More and more, that seems to mean letting your TV cool off for a while.

Sarah: A Duty to Serve?

If Sarah Palin thinks she can avoid "political blood sport" by resigning as governor of Alaska, she's got another think coming. The knives will stay out until she is no threat to Obama or anyone else in the political establishment.

One of the many negative things that have been said about her in the last 24 hrs. seems pretty silly to me. Several people, including Sen. Karen Murakowsky and the Democratic National Committee, have said in effect that it is morally wrong of her to resign and so "abandon the people of Alaska." After all, the voters commanded her to serve one full term, so she has to do it.

In the first place, these are people who feared and hated her. Their pretense at being upset that she is leaving is pretty funny. I hereby nominate them for the Louis Renault Memorial Award.

But the main point is this: Once upon a time there was a group of people who had a duty to labor for others. They were called slaves. Today, most Americans have a work arrangement called "employment at will," which means that either employer or employee can terminate their relationship at any time and without cause. Some people think employers should have fewer rights than this, that it should be harder to fire people. Nobody thinks employees should have fewer rights, that it should be harder to quit. Why not? Well, why are you against slavery? Some of the same reasons apply here.

Maybe the idea -- if there really is an idea here -- is that it's different if your employer is "the people." Vox populi, vox dei. But I don't think the people rule by divine right, any more than Louis XIV did. The people are just that -- people, like any other employer.

Added later: In my amateur opinion, the best discussion I've seen for Palin's decision to quit is here. I'll give you a clue: if this analysis is correct, then it may be impossible for outsiders to break into the political establishment unless either a) they arouse no strong hostility in insiders and their dependents, or b) they are wealthy. In other words, we are doomed.

The Christening Scene in The Godfather

The Godfather: Baptism Scene | User Video | SPIKE.com

I've posted before about the use of Bach's organ works -- especially including the great Passacaglia and Fugue in C Minor -- in this much-praised and highly effective scene. A recent anonymous commenter on that post has gotten me thinking about it again.

I'll comment in greater depth later, but for now I wanted to point out a couple of things about this scene that may seem minor to others but I find annoying.

First, this way of using Bach's organ music -- to represent the dark, sinister corners, the twisted recesses, the dripping dungeons of the human heart -- has long been a movie cliche. The first time I played one of them on a tape player for my son Nat - I think he was seven or eight at the time - he said "That's Dracula music!" He had already picked up on the cliche.

Admittedly, the organ work that is usually used for this purpose is not the Passacaglia but a related work, the Toccata and Fugue in D Minor, which Bach wrote shortly before the C Minor. That's the one that the Herbert Lom plays in his sewer lair in the Hammer Films version of The Phantom of the Opera (1962). (Scroll forward to 3:00 below.)



It's also played by Captain Nemo (James Mason) in Disney's 20,000 Leagues Beneath the Sea (1954). Here is Nemo, twisted by the loss of his family into a monster with no purpose in life by death and destruction -- perfectly represented by Bach's creepy, sinister music! Right?

Wrong! That's the other annoying thing I wanted to bring up. Bach was about 21 o 22 years old when he wrote these two works and both, to me, are full of the exuberance of youth and love of the magnificent universe God has created. There is nothing sinister or satanic about them. In discussing the C Minor in his magisterial Johan Sebastian Bach: The Culmination of and Era, Karl Geiringer uses words like "dignity," "strength," 'intensity," "power," and "magnificence." He neglects entirely to mention malevolent creepiness.

A far better interpretation of Bach than these other films is embodied in this sequence from Disney's Fantasia. Notice that Satan and his works are far, far away:



I know this might sound like an odd thing to mention as a criticism of The Godfather, rather like criticizing a Bond car chase scene for promoting unsafe driving practices. It seems like an extraneous consideration, somehow. But I think that, if a work of art contains a gross and actually rather stupid misinterpretation of another work of art, it is at least worth mentioning.

Michael-Mania

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Michael Jackson's Media Attention
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When I came out of a stay in the wilderness on Thursday, I checked into a private campground. Almost the the first human speech I had heard in days was the lady at the campground office, a perfect stranger, telling me "Michael Jackson died!"

Now, five days later, the news channels are starting to talk about other things. The weekend that just ended reminded me of the weekend after John Kennedy was shot (which happened on a Friday) -- a weekend in which the media seemed to have only one thing on their mind.

These have been five days during which Americans who listens to music that is not transparently easy to understand at first listening, or who occasionally read a book, has been reminded that most of the people in this country aren't like them at all.

I suppose this is a good thing to remember every once in a while. We live in a system of capitalist democracy, which means everything is driven by the voter/consumer. The tastes and interests of l'homme moyen sensuel explain a lot of what we see in the public forum. Why is Congress jamming through a crippling anti-global-warming bill, though there has been no global warming since 1998? Why did we go to war against Iraq, a country that posed no threat to us whatsoever? We have here is not the whole answer, but surely it is an indispensable part of it.

I find this rather comforting, oddly enough. The world is not really insane, as it often seems. It just isn't terribly bright. That's better. Isn't it?
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Added later: It is now a week since his passing and, turning on the TV, I see that CNN, Headline News, Fox, and MSNBC are all talking about him simultaneously. I gather that he is still dead, and turn the thing off.

False Dichotomy on Iran

Comments on Obama's reaction to the Iran protests were at times dominated by a false dichotomy. People on the right have said that the president might just as well take sides in the recent Iranian election as the current regime has shown that it cannot be sweet-talked or negotiated with. Voices on the left say that the United States is in no position to give moral lectures to any Iranian government about democracy, given our disgraceful treatment of that country since 1953. Obama should keep quiet.

Of these two positions, I feel the most sympathy for the leftist one, but the two of them actually represent a false dichotomy. In fact, it is a good example of why false dichotomy is a fallacy. The obvious flaws in one position lends plausibility to the other one. But it is an unearned plausibility, because there is a third possibility. It is to do what Obama eventually did: make a principled statement that the U. S. has always stood for the rights of free speech, freedom of assembly, and petition for redress of grievances -- and against all violations of those rights.

The effect of BHO's statement was undermined by his earlier maintaining silence on the grounds that he didn't want to be seen as "meddling" and, worse yet, but his statement that the two candidates are "two of a kind." This last was particularly absurd.* If saying you prefer one side is meddling, then isn't saying neither one is preferable also meddling? And, in the event that there is a difference between the candidates, wouldn't it amount to meddling in favor of the wrong side?

I think there are some important issues involved here. For well over its first half-century, America was an inspiration to the rest of the world. It is hard to imagine today, but at one time one country that was heavily influenced by American ideas was France. France! It was just one of many countries so influenced. Interestingly, this period of greatest influence coincided with that in which our foreign policy was at its most "isolationist." We had this influence, not by meddling, but by representing principles of individual rights and by saying clearly what these principles are. Maybe it is possible to move step by step to an updated version of that policy.
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* Someone's making a statement can be absurd even though the statement itself is true.

More from the Parade of Human Folly

Okay, I know this is an obsession of mine and I go way overboard with it, but here goes. I am here in South Dakota, and I see this front page article in the Argus Leader: Wis. Town Mourns Loss: Victims Were Headed to S. D. to Hunt Prairie Dogs." I was startled -- not so much by the crash itself, as that is a more or less regular tragedy nowadays. It was to realize that three guys would go all the way from Wisconsin to South Dakota to "hunt" prairie dogs. That's taking into consideration what hunting prairie dogs means: 1) Sitting in front of a prairie dog town in which the prairie dogs (Cynomis ludovicianus) must leave their burrows or starve, 2) blowing their little heads off with a high-powered rifle and scope when they do, and 3) leaving their bodies to rot uselessly in the prairie sun.* They were doing this at the same time that I was coming here to watch prairie dogs through binoculars and telescope whilst sipping iced drinks and catching up on my reading. I just hope they weren't planning on killing the same animals that I was watching.

May these poor lost souls rest in peace.
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* As near as I can tell, humans do not eat Cynomis species. A search for "prairie dog recipies" turned up only foods to feed to your pet prairie dogs. Yes, people do keep them as pets. One owner has emailed me to say that they are intelligent and affectionate.

In the picture above (click to enlarge), the white mounds in the grass are prairie dog burrows.