Obama nominates Sonia Sotomayor for US Supreme Court

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.

Given how Barack Obama's remarks, above, contrast with the picture of blindfolded Justice, one might think the White House would have some concern that the "empathy criterion" might be wielded as a talking point against his judicial nominees. After all, what does Obama expect his judge to do with information about a litigant's particulars if not to put a thumb on the scale in favour of the litigant who is one of Obama's enumerated groups? Yet apparently the White House is running with the idea as a talking point FOR Obama's first Supreme Court nominee.

Combining this with Sotomayor's remarks in 2001 about how she "would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male", should one start preparing for judicial bias against white males that is sanctioned at the highest level? While there is cause for concern here, I believe the concern applies elsewhere. First of all, a full reading of Sotomayor's Berkeley speech indicates that she does not believe the idea of departicularized adjudication should be rejected but rather that it is impossible to implement:

our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases.... I am... not so sure that I agree with the statement.

This is of note because it is consistent with the views of communitarians, e.g.

[impartialist morality] assume[s] an abstract and artificial - perhaps even an impossible - stance, that of a rational being as such, responding to the requirements of morality not qua peasant or farmer or quarterback, but qua rational agent who has abstracted him or herself from all social particularity.

- Alasdair MacIntyre, Is Patriotism a Virtue?

This is important because the idea that our moral selves are "embedded" is critical for cultural conservatives. I don't have the time to explain why in detail, but without it one has a libertarian worldview, not a conservative one. The bottom line is that I do not think conservative critics should be raising the alarm about potential bias on Sotomayor's part against business or white males too loudly lest they create future consistency problems for themselves when defending something like patriotism. Accept that she's a Latina and therefore will have a Latina's perspective to at least some degree.

The best and most damning criticism, I believe, advances not from the idea that justice flows only from the departicularized perspective but from the idea that a judicial temperament and judicial ability flows form the process of departicularizing oneself. This is a subtle but key distinction. It is the difference between making a metaphysical claim and making a claim about process. The problem is not that Sotomayor won't employ abstraction, but that she can't. Where is the rigorous reasoning in her Ricci decision? Why is Obama playing up her life story and downplaying the importance of legal abstraction? It is not just the far right that sees a problem here.

Obama is not going to appoint a conservative. That is to be expected. But it serves the interests of both the left and right better to appoint the person with the greatest abstract ability. Cass Sunstein is a legal lefty. But appointing an ideologue like him would serve the interests of an ideologically divided country better given his intellectual abilities. Consider the talking points in the White House memo:

- as the President has made clear, upholding those constitutional values requires more than just the intellectual ability to apply a legal rule to a set of facts. It requires a common sense understanding of how laws affect the daily realities of people’s lives.
- Judge Sotomayor ... understands that upholding the rule of law means going beyond legal theory to ensure consistent, fair, common-sense application of the law to real-world facts.

A further downgrading of the value of "theory" is, in fact, the last thing America and the world should be considering a personal asset apart from the personal, private field. It is all too easy to sell policies to the public when the consequences are right there before one's eyes. It is far too hard to sell policies when the consequences are distance in time and space. Appreciating those consequences requires the ability to think abstractly. The idea that people who are skeptical of things like restricting EI eligibility simply lack "empathy" is a lefty trope; the skeptics are typically just as sympathetic but appreciate the abstract arguments that reveal how many well-intentioned policies typically backfire.

never a good time to be a German in finance

1931 political poster by the Nazi Party:
Death to lies: Marxism, High Finance

2009 political poster by the Social Democratic Party:

Financial sharks would vote for the Free Democrats

Ignatieff proposes unraveling of 1996 EI reforms

Michael Ignatieff's call for a loosening of federal Employment Insurance eligibility requirements is a remarkable policy reversal for the Federal Liberals.

This is the first serious policy proposal from Ignatieff that is clearly and demonstrably wrong. For supporting argument, see all the Finance Canada research from the mid-90s on the subject of EI reform. As Finn Poschmann and William Robson at the CD Howe Institute noted in 2006, "payments to workers who routinely work less than a full year are undermining a decade-old effort to remake EI as an insurance backstop against unexpected and temporary unemployment" [as opposed to supplementing regular income]. The government's own EI Monitoring and Assessment Report asserted in 2005 that while "we can conclude that the 1996 reform led to significant savings amounting to billions of dollars ... certain elements of the reform have been undone" (Canada Employment Insurance Commission, 93).

Apparently it falls to Iggy to complete the unraveling of those hard-won reforms.

Bill 44

I am reluctant to say anything on the subject of the proposed provincial legislation that would allow parents to pull their kids out of school on days when religion and sexuality, including homosexuality, are to be discussed/taught. Why? Because an enormous mêlée, ideally between "ordinary" Albertans and eastern, big city elites is exactly what the governing Tories want. Govern from the left the vast majority of the time, but keep the right onside by occasionally throwing out red meat on some hot button social issue that the left attacks, which in turn provokes every conservative foot soldier to step up and defend the Stelmach government. The band of brothers is cemented in the trenches opposite those dastardly lefties, you see. These tactics are of course well honed by the equally cynical Harper Tories in Ottawa. Never mind the fact that if this is a kulturkampf, the Stelmach government is working for the enemy in terms of the broader war by securing the real prize, the curriculum, for the social liberals.

But I will step into this donnybrook to note that the controversy makes little sense to me. If social liberals are concerned that kids who miss a class or two on gay rights or what have you will grow up to be problem citizens in a pluralistic society, shouldn't they be horrified at the fact parents can pull their kids out of not just a class or two, but the entire school system? If parents can opt out of 100% the public school system and that is acceptable, how is it unacceptable to opt out of 2% of the public school system?

Wildrose Alliance to choose new leader

I haven't blogged in more than a month, which is a good recipe to discourage any regular readers, but my excuse is that I was travelling in South America and the internet connections were often dodgy.

Paul Hinman has decided to step down as leader of Alberta's Wildrose Alliance party and I wish him well. Although there have been grumblings about his organizational skills he was keen and open to evidence-based policy. His performance in the leaders debate during last year's election was a highlight for me.

There has been considerable media speculation that Danielle Smith, until recently director of the Alberta wing of the Canadian Federation of Independent Business, may run for the party leadership. Link Byfield has been encouraging her to take the plunge and I would add my support. The first and most important reason for supporting a urban, business friendly leader is that the current government has cornered the market on populism. Populism is at the root of Alberta's (and America's) problems (why have Albertans squandered the Heritage Fund? why are Americans fat and indebted? to a large extent because they elect officials who indulge them... this is a column for another day...) and nobody plays the political game with greater cynicism and success than the Alberta Tories.

One of the most notable agendas of Kevin Lynch when he was Deputy Minister at Finance Canada (he later became Clerk of the Privy Council, Canada's highest ranking civil service office) was a reduction of corporate taxes. As someone with a PhD in economics, Kevin Lynch knew the arguments in favour. But business friendly policies are not popular. Corporations do not get a vote, and it is rare to see politicians advocate for lower corporate taxes. Jurisdictions like Hong Kong and Singapore are as business friendly as they are largely because populist politicians have limited influence there. Business hostile policies superficially appear to defend the "ordinary citizen", but usually end up hurting ordinary citizens by way of more limited wage and employment prospects, never mind investment opportunities. It is generally difficult to invent and produce the next problem solving widget apart from using the corporate form. Investments in property, plant, and equipment, things that move out the long run supply curve which is the ultimate solution to economic scarcity, are business investments (innovation also plays a role but this too is driven by how competitiveness-friendly government policy is).

Can Albertans appreciate the arguments for improving the province's business environment (which is currently internationally average at best despite the popular assumption that the province is "right wing")? Of course, but just like building of a sovereign wealth fund vs current spending, it is much easier to make the argument about the chickens when they have come home to roost. The Wildrose Alliance has been proven right on the royalties issue, given that the Tories have reversed themselves 110% as business left the province. We've also been proven right on spending, if one wished to style it as such, as the government is currently running a deficit and not just a one-off deficit but what looks to be a structural deficit for years to come. What's changed is simply that hazards that were previously warned off have gone from abstract and distant to concrete and immediate. This focuses the mind of even the populists. In my view, the party needs to continue down the (intellectual) high road: win over the media and the opinion leaders and the rest will follow. In theory the Alberta Liberals could seize this space. Indeed, at the federal level they appear to be doing that. But provincially the Alberta Liberals decided to make David Swann their leader and front man, which means they are not going to be wholeheartedly embracing a business friendly agenda anytime soon (one of my questions for Swann is why he decided to become a provincial politician if his biggest concern is for international issues like Darfur and Kyoto).

A business friendly Wildrose Alliance could potentially be well placed in Alberta, because it could reach the cosmopolitan urban voter by argument and the rural voter by the natural affinity between supporting competitiveness and "freedom". The correlation between freedom and competition is not one-to-one; the economist in me firmly supports the latter (competing on price and quality is what drives the process of getting more for less) whereas my support for the former is less intellectual and more ingrained in my being raised in a culture founded by fiercely independent pioneers. To an increasing extent I think a misguided obsession with freedom that is divorced from the idea of discipline (and by extension, competitiveness) is behind Alberta's and America's current problems: we are fat because we can drink pop in school cafeterias, we are in debt because we seek payday loans and others are only too eager to provide that service, we are free to innovate financial products whose complexity has no necessary correlation with economic competitiveness (in fact they obscure the price mechanism that govern real production), in short we are uncompetitive relative to, say, the Asian tigers because we are free to be undisciplined and therefore uncompetitive. But, as mentioned earlier, a discussion of this thesis in depth is another column. My point here is simply that whereas we can get educated urban voters to support, say, private property rights by discussing the Coase Theorem, rural voters would be inclined to support simply by virtue of their ingrained skepticism of the claims of the state. Both groups would support policy that preserves and creates incentives for self-starters and hard workers, the one group primarily because of the sound economic arguments and the other because of a sociological background heavily influenced by what Weber dubbed the Protestant work ethic. To a certain extent the anti-state-power temperament could be an obstacle, in that it can be anti-intellectual, not so much directly as indirectly by being skeptical of elites telling them what to do. But anyone who thinks signing on to simple redneck-ism is the way to go should look to the Republican Party south of the border to see the direction such a route is taking them: fighting a continual rearguard action all the way back to Alabama.

Danielle Smith is urban and articulate, with a media friendly personality. Her resume is that of someone who understands the merits of sound, enterprise friendly policy. She would have my support as leader of the Wildrose Alliance.