The Closet Moderate: May 2009

Saturday, May 30, 2009

The Obligatory Sotomayor Post

Since we are a blog on the internet in May of 2009, we are obliged by the world internet treaty to have a piece on Sonia Sotomayor, Obama's nominee for the Supreme Court. Many of the political aspects of nomination have been discussed by people far more learned and savvy on the topic than I, so I will not try to add to the wisdom in that arena. 

Instead, I'm going to focus my attention somewhere really, really stupid - a famous, out of context quote from the Honorable Judge Sotomayor. This quote is being used to show that Sotomayor is a "reverse racist". This term is used by white power activists, Rush Limbaugh and former lawmakers, to connote a member of a racial minority who is racist toward their would be oppressors. As one of The Tims pointed out, the term might be better applied to Steven Colbert, who doesn't see color, and only knows he's white because he belongs to an all white country club. The term these folks are looking for is "racist", not "reverse racist", but they don't have the stomach for that kind of fight. So, for your edification, and without further ado, the out of context quote:


"Second, I 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 who hasn't lived that life."

Punchy, eh? Now, as I mentioned, the decontextualization may be the real story here, but, honestly, that isn't very interesting to me. What I am interested in is: is this statement true? To hell with the context, is Sotomayor (let's go ahead and assume she is the wise latina here), due to her sex, religion, disability (she's got Type I diabetes) and/or background (raised by immigrants) better qualified (all other things being equal) to be on the supreme court than, say, John Roberts? In this quote, standing alone, she may be a racist (or any other kind of "-ist"), but is she right?

This question gets us back to something Obama brought up a while back. He, when discussing Souter's replacement, said he wanted someone who applied the law 'with empathy'. And, as the much maligned gray lady tells us, Obama has a thing for pragmatism over idealism with regard to Justice. Obama's implied contention is that when a justice can feel for the people involved a situation where the law intervenes, that justice can better interpret the law to serve those people and our country. Now I know many people might disagree with this contention, but I think for the sake of argument it is interesting to assume that our commander-in-chief is right, and that an empathic judge is a good thing.

So what distinguishes these two folks, Roberts and Sotomayor, in terms of their ability to relate to, and take into account, the feelings of others? Just because Sotomayor is a woman, or a sassy, family-lovin' latina, I don't think she has any more "empathy" than John Roberts. I'm sure every justice on the court, and indeed every judge on every court has empathy towards some people. The key difference, here, is the audience. I contend that the law disproportionally affects immigrants over natural born citizens, the poor over the rich, the minorities over majorities and women over men, the disabled over the able-bodied. Thankfully, the law does not usually apply to these groups negatively, but it does more often concern itself with them. This is to say Sotomayor shares a lot more with those who the law impacts and interfaces than any of the current members of the supreme court, and therefore has a lot better shot being able to empathize with those who her rulings would effect. 

The justices that serve on the supreme court are, by design, amazing people with incredible intellectual prowess. This makes them very much unlike most of the populace. I think adding someone to the court who brings the court towards, if only a little, the people it serves can only make for a more empathic and better court.

So, racist? Maybe. Wrong? I don't think so.


Wednesday, May 20, 2009

Judging the election

Yesterday, Pennsylvania had its primary election. Most of the slots available were for judgeships, and most of the names on the ballot were unknown, even to people who pay attention to politics. In Philadelphia, the Democrats chose among thirty-three candidates for eleven positions. Each election cycle, would-be judges must go through a system that is onerous at best, and corrupt at worst, in order to secure the backing of the 67 ward leaders (or 69, the way the Democrats number the wards). They have to expend hundreds of thousands of dollars -- and that's just the "spending" they admit to. It's a crooked process to gain a job that is supposed to be incorrupt.

So what's the solution? Lots of people say judges ought to be appointed, and in some states they are. But is this a better answer? There's still the corrupting process, the insider deals, the fundraising (this time for the governor who appoints, rather than for the candidate himself) and the big machine politics. It might work for the few appellate judges, where the state Senate can exercise some oversight, but for all the trial-level judges? If the Senate examined them all thoroughly, they would have no time for anything else.

I have a better solution: pick trial judges randomly.


The wife and I have been watching Deadwood on DVD, which is where this epiphany came to me. On one episode, the powers that be decided to hold a trial over the murder of Wild Bill Hickok. The judge, prosecutor, defense attorney, and clerk are all chosen randomly from among the lawyers in town who submit their names. Now, I'm not saying Deadwood in 1876 was some virtuous city on a hill, but neither is Philadelphia in 2009. The difference is, in Deadwood everyone knew that the whole town was corrupt and self-interested, so they knew enough to keep things simple and unable to be rigged.

There should be some limit on who can be picked -- they should be lawyers, and should have had a significant amount of time in the profession, say, ten years. They should not have been convicted of a crime or sanctioned by the bar association for the last decade.

Judicial elections are a farce. Some voters go by the ward leaders' endorsements (bought and paid for). Other vote by gender, or ethnicity. One Philadelphia candidate even showcased his hatred of the Dallas Cowboys as a reason for electing him. And he won. It's a worthy cause, I admit, but is this method of picking judges qualitatively better than picking names from a hat?


Monday, May 18, 2009

FOQ or be FOQD

Libertarians -- even small-l libertarians like me -- are required once yearly to compare our government to that dystopia described in Kurt Vonnegut's Harrison Bergeron. And so, here we go: today I came across a story in the Houston Chronicle (h/t The Legal Satyricon) about a strip club in Texas being sued for age discrimination.


At first, I thought that this was some over-the-hill employee trying to get one last payday out of the strip club when they finally -- at the age of 56 -- told her she was too old to work the pole. But this complaint was actually filed by the Equal Employment Opportunity Commission. That's right: our tax dollars are being used to ensure our rights to see some grandma bare-ass naked. The bullshit-legal-theory industry has survived the recession intact.

As a libertarian, I find all laws that force one person to hire or retain another person as an employee to be objectionable. I keep getting hung up on the liberty thing. But even taking anti-discrimination laws at face value, this case sounds like a loser. The Age Discrimination in Employment Act says, at section 623(f)(1), that it is not age discrimination "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age...." I think this qualifies under either exception. The stripping trade is completely superficial; appearance matters. In the law, this is theory is known by the awkward acronym BFOQ (bona fide occupational qualification). The idea that the government knows which qualifications for a job are bona fide and which are is a matter for another blog post.

I'm sure some of you are offended at the idea that a 56-year-old couldn't possibly be hot enough to strip. I have to believe, however, that, in that most mercenary of professions, if the club could have made money be retaining her in their employ, they would have done so. Despite all of the First Amendment suits they've filed, strip club owners are not in it for the free expression.

So, this is your brave new government at work. What's next, sex discrimination suits? Why shouldn't a strip club have to hire a man? Especially if he's competent at pole work? Why not an amputee? The only winner in all this is Montreal, whose reputation for the best strip clubs in North America is still un-threatened.


India is a big place filled with large numbers

Oh noes! 1.2 million child prostitutes in India!

That means about 1 in every 1000 people in India is a child prostitute, because India is big. And that about 3 Indian children in every 1000 are prostitutes, because India is young.

In contrast, this completely reputable website that I found via Google claims there are 300,000 child prostitutes in the US. Which means about 1 in every 1000 people in the U.S. is a child prostitute, because we are about 1/4th the size of India. And about 5 American children in every 1000 are prostitutes, because we are about 1.5 times less young than India.

So we probably shouldn't be too worried about child prostitution in India, and instead worry about how many of their big-city deputy mayors are killed by monkeys (1, a more than 1,000,000% increase over the US any way you slice it).

(Population numbers from this entry come from the CIA World Factbook).


Friday, May 08, 2009

Important New York Yankees Baseball Update:

State of the Yankees, 05/08/09:

Mark Teixeira (1B): .198 Batting Average
Robinson Cano (2B): Slumping
Derek Jeter (SS): Underperforming.
Handsome Cody Ransom (3B): Sucks. DL.
Angel Berroa (3B): Sucks.
Alex Rodriguez (3B): Scandal Ridden, Future Suckage Anticipated.
Jorge Posada (C): DL
Jose Molina (C): DL
Francisco Cervelli (C): Called Up from AA Ball Because Everybody Else Is Dead. Probably Sucks.
Xavier Nady (OF): DL [Missing Elbow]
Nick Swisher (OF): Slumping
Johnny Damon (OF): .314 AVG, 7 HR, 20 RBI, 3 SB.
Hideki Matsui (OF): "Weather Knee" Able To Predict Rainouts.

Carston Charles "CC" Sabathia (SP): Proud Owner of a 4.85 ERA.
Joba Chamberlain (SP): Mom Arrested For Meth Dealing.
A.J. Burnett (SP): Can't Hold A 6 Run Lead.
Chien-Ming Wang (SP): 34.50 ERA, DL
Damaso Marte (RP): DL
Mariano Rivera (RP): DL
Phil Coke (RP): Moving From Suck To Blow
Edwar Ramirez (RP): "Just Like The NY Giants: No D."
Mark Melancon (RP): Recovering (Tommy) John.
Brett Tomko (RP): Who?


Sunday, May 03, 2009

Foreign Policy: Inflammatory Language Edition

When foreign policy makes its way into the popular consciousness, it tends to do so in the form of imperatives and inflammatory rhetoric. On the one hand, that's totally understandable. Americans are generally less concerned with the politics among nations than they are about tax rates, and other issues of domestic policy. In that environment, the natural way to get media coverage is to exaggerate the severity of the threat. However, that strategy has unfortunate downstream consequences, as we become habituated to dealing with foreign policy issues solely through the lens of crisis. We're required to face down the latest "existential" threat to the United States or we "must" counter another state's regional ambitions. The reality tends to be less urgent, more nuanced and much harder to predict.


The military predominance of the United States relative to other states is unprecedented in history. That has a lot of implications, but the most obvious is that we won't need to confront an existential threat from a single foreign actor anytime soon. And yet we continue to hyperventilate about Iran's nuclear ambitions and Taliban soldierrs plotting the fall of the Great Satan around a campfire in Afghanistan. I don't mean to imply that these aren't threats, but rather that the way they are presented deprives them of all context. Without context, we can't evaluate or formulate reasonable policy. If we allow a narrative of crisis to take hold, we've already restricted the available policy space we can operate in. We either back down or saber-rattle for all we're worth, and if the other party calls our bluff, well, we have to unsheathe ol' slashy and go to town because our credibility is on the line.


At any given time, there are thousands of threats to the United States. You'll never hear about most of them because they're neutralized by our national security apparatus. Also, there's no political percentage in playing up threats to our unsexy vulnerabilities like information security, so the theft of the joint strike fighter plans don't capture media attention. Our health infrastructure is siloed (meaning that health departments don't share information that well) and we lack the surge capacity to deal with a true pandemic. Addressing these issues would produce beneficial ripple effects, but they seem destined to play second fiddle to less-likely-but-sexier threats.

I also want to talk about the difficulty of predicting outcomes in the international sphere. Today, we're going to use Domino Theory as our whipping boy. At the most basic level, Domino Theory advocated for fighting communists everywhere because if we didn't, the Reds would figure out that we're secretly a bunch of sissies and go on the march everywhere from Cambodia to France. The problem is, that's not at all how people make decisions. If we had let Vietnam fall without a fight, it doesn't follow that the Reds would infer that we wouldn't defend Europe. Europe was much richer and much closer to the US in terms of both distance and culture than Vietnam. In short, it had a level of strategic importance that Vietnam lacked, and both the USSR and the USA were aware of that fact. Anyway, after we lost in Vietnam, do you know what the Vietnamese did? They fought a war with China. Hardly the pinko lovefest we were worried about.

There are huge uncertainties inherent in any international endeavor. It would be nice if the world were broken up into good states and bad states, but that's not the case. There are often "bad" states that we need to work with, and "good" states that obstruct our plans. These situations can occur because of a state's domestic politics, the lens through which they understand their strategic interests, or any number of cultural, economic or political peculiarities. When we recognize and respect these idiosyncratic differences, we're not selling out America. These are sovereign states, and sometimes a little diplomacy is required to get what we want from them.

Edit: See Fancy Blogger/Professor Stephen Walt for more on this.

Edit 2: Man, there's a lot of overlap between our posts. Embarrassing.