As he should. Now one can certainly argue that the difference between a racist and the words he or she uses is an excessively semantic distinction, such that if someone indeed claimed that she is "better" at deriving a "conclusion" because she is "Latina" as opposed to "a white male", that person is indeed subscribing to doctrines of superiority and Newt should not have surrendered the right to make a hostile but plausible point to the politically correct police so easily. But reifying his concern into opposition to a particular person, a person with whom a significant part of the population sympathesizes with immediately and the the rest will sympathesize with in short order given the prospect of seeing her and her emotional reactions when grilled by questioners, is a textbook example of why thinking conservatives fail to make political headway. It is like opposing a taxpayer funded social program for impersonal fiscal reasons and then attacking a particular beneficiary of the program in order to make the point. Reify the debate like that and people will look into the eyes of a particular person who would fail to benefit if you got your way and emotionally turn against you.
Again and again, we see dubious government spending because the public has a clear visual of and easy identification with the party standing to benefit and the loser is abstract and distant, like the anonymous taxpayer, or, even more remotely, the taxpaying corporation. Have you ever seen a corporation with tears in its eyes? And so it is that the political right is accused of hardheartedness, a charge that should only be germane to personal relationships, and the accusation carries political water.
The President is no political idiot: if the legitimacy of Obama's repeated calls for "empathy" are generally accepted, it is going to politically undermine conservative advocacy at a very fundamental level. I once heard the psychology behind the political left described as being, at its most basic, revulsion at the visual of pain. If it's true, then the political success of the left is inversely related to the debate's level of abstraction.
If the left should wish to deny this, then call them on why it was the political right that demanded a do-over on the Harriet Miers nomination in favour of a nominee in the Scalia mold, in contrast to Obama's approach which has been to repeatedly downplay the relevance of capacity for legal theorizing.
Instead of making the debate about Sotomayor the person, one could make it about one of the particular human losers of her decisions, namely the person Frank Ricci. Consideration of the fact that Frank Ricci has had to struggle in life too should expose the necessary irrelevance of "empathy". But the high road, the approach that makes the public debate more constructive, may be to make it about whether the judiciary should have a role distinct from the legislature. If politicians just appoint judges who are likely to support their vision of legislation, the judiciary just becomes an extension of the legislature. Make the case that the judiciary's job is to interpret the law, and not just interpretation that advances the "making of law" project of partisan politicians further down the field, but interpretation that reconciles conflicts and tries to bring coherency and predictability to the stream of unsystematic populist legislation emerging from the legislature. In the case of a trial judge, great powers of abstraction are not required; in fact, the "ivory tower" personality may fail to give due attention to the facts. But at the appeal level, facts are less of a focus; indeed, in theory one can only appeal a "question of law", not a "question of fact". And at the Supreme Court level, issues may be expected to get into the realm of philosophy.
"Grill" the nominee for comments on her views of Frederick Schauer, in addition to Ronald Dworkin, Richard Posner, and other prominent legal thinkers. It is these sorts of people who should be on the Supreme Court, in my opinion. One could even go further and appoint public intellectuals with political philosophy backgrounds as opposed to legal backgrounds for appointments at this level; eg. thinkers in the tradition of John Rawls or Robert Nozick. At a minimum, Supreme Court nominees who demonstrate an interest in and aptitude for understanding these thinkers should be favoured.
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