Pragmatic politics focused on the public interest for those uncomfortable with America's two-party system and its way of doing politics. Considering the interface of politics with psychology, cognitive science, social behavior, morality and history.
Etiquette
DP Etiquette
First rule: Don't be a jackass.
Other rules: Do not attack or insult people you disagree with. Engage with facts, logic and beliefs. Out of respect for others, please provide some sources for the facts and truths you rely on if you are asked for that. If emotion is getting out of hand, get it back in hand. To limit dehumanizing people, don't call people or whole groups of people disrespectful names, e.g., stupid, dumb or liar. Insulting people is counterproductive to rational discussion. Insult makes people angry and defensive. All points of view are welcome, right, center, left and elsewhere. Just disagree, but don't be belligerent or reject inconvenient facts, truths or defensible reasoning.
Politicians can think up excuses to say that special interest money does not affect them. They dislike being asked about this. They prefer to operate in secrecy so that voters 'don't get the wrong impression,' or see conflicts of interest when there are actual conflicts, etc. The excuses for opacity are endless. In the case of the US Supreme Court, the absolute need for secrecy of its decision-making are said by the court to be obvious, but no judge has ever articulated what those obvious reasons are. It's like porn, you can't describe it, but you know it when you see it.
The New York Times writes on one current example of political corruption in operation in an article entitled De Blasio Fought for 2 Years to Keep Ethics Warning Secret. Here’s Why.:
When Bill de Blasio first took office as mayor of New York in 2014, he called two powerful real estate developers who had active projects in the city, and asked them to donate money to a nonprofit organization that he had created to advance his political agenda.
The request to help his nonprofit, the Campaign for One New York, seemed to violate the city’s ethics law, and a ban against asking for contributions from people who had business pending with the city. Within months of his solicitations, Mr. de Blasio was formally warned by the city’s Conflicts of Interest Board — in a previously undisclosed letter — not to repeat the behavior.
But even after that warning, the mayor continued to hit up well-connected donors for money, according to documents that the city has now released after years of an extraordinary legal campaign by the de Blasio administration to keep the documents secret.
The new details of Mr. de Blasio’s outreach to donors were contained in a pair of secret letters from the city’s Conflicts of Interest Board to the mayor. In the first letter, dated July 2014, the board said the mayor had violated ethics laws with his two fund-raising calls to developers and warned him not to do it again.
The second letter, sent in September 2018, found that Mr. de Blasio had continued the practice and included a forceful reprimand of the mayor. The letters were released this week, after the State Court of Appeals denied a final effort by the mayor’s office to keep the documents secret.
The city had, for more than two years, fought The New York Times’s efforts to obtain the board’s correspondence with the mayor, denying an initial Freedom of Information request and then fighting a lawsuit filed by The Times.
“By soliciting these three donations from firms with business pending or about to be pending before executive agencies,” the second letter said, referring to the mayor’s 2018 fund-raising efforts, “you not only disregarded the board’s repeated written advice, but created the very appearance of coercion and improper access to you and your staff that the board’s advice sought to help you avoid.”
The NYT goes on to point out that the mayor’s spokeswoman, Danielle Filson, said in writing statement that “the calls the mayor was making at this time were to support affordable housing legislation and his effort to achieve universal pre-K for every child in New York City, which is now a national model. He has consistently acted in good faith and followed the process set out for him. The board closed these cases and determined no enforcement action was necessary.”
Filson also claimed that the mayor made “appropriate disclaimers” during his fund-raising calls. She asserted that potential donors were told that they would not benefit or be punished if they chose to give or not give money. But de Blasio did not do that.
One disappointing thing here is that, once again prosecutors flat out refused to prosecute a sitting politician. Some of the companies that broke lobbying laws were just wrist slapped with fines. When it comes to politicians and companies or rich people making illegal donations, the rule of law has mostly simply collapsed and vanished. Ethics is irrelevant. Laws are irrelevant. Democracy and the rule of law are crumbling before our eyes.
Another disappointing thing is that the NYT had to fight in court to get access to the two incriminating letters from the ethics board. If there was nothing to hide, then why did de Blasio spend tax dollars to fight in court to keep them hidden?
Questions:
1. Should campaign contributions be outlawed and public financing of major elected offices be made mandatory? Or, do campaign contributions affect nothing and are good because the cash is just innocent free speech?
2. Is de Blasio's assertion of acting in good faith plausible or more likely just a politician’s lie?
North Korea is among the world's most repressive dictatorships. The dictators named the country the Democratic People's Republic of Korea. The DPRK holds elections and if you don't vote, you get shot dead, or maybe spoken to in stern terms. If you don't vote for the dictator, you get shot dead or put in work camps and worked to death. Voter turnout is above 95% and votes for the dictator are at least about 99%.
As President Biden prepares to host a “summit for democracy” this week, China has counterattacked with an improbable claim: It’s a democracy, too.
No matter that the Communist Party of China rules the country’s 1.4 billion people with no tolerance for opposition parties; that its leader, Xi Jinping, rose to power through an opaque political process without popular elections; that publicly calling for democracy in China is punished harshly, often with long prison sentences.
“There is no fixed model of democracy; it manifests itself in many forms,” the State Council, China’s top governing body, argued in a position paper it released over the weekend titled “China: Democracy That Works.”
It is unlikely that any democratic country will be persuaded by China’s model. By any measure except its own, China is one of the least democratic countries in the world, sitting near the bottom of lists ranking political and personal freedoms.
Even so, the government is banking on its message finding an audience in some countries disillusioned by liberal democracy or by American-led criticism — whether in Latin America, Africa or Asia, including in China itself.
China’s paper on democracy was the latest salvo in a weekslong campaign seeking to undercut Mr. Biden’s virtual gathering, which begins on Thursday.
In speeches, articles and videos on state television, officials have extolled what they call Chinese-style democracy. At the same time, Beijing has criticized democracy in the United States in particular as deeply flawed, seeking to undermine the Biden administration’s moral authority as it works to rally the West to counter China.
On Sunday, the foreign ministry released another report that criticized American politics for what it described as the corrupting influence of money, the deepening social polarization and the inherent unfairness of the Electoral College.
Here, China is making an obvious dark free speech ploy. People, including some or many Americans, are openly questioning the value and viability of democracy. That idea has been promoted for years by Russia, China and the American radical right, especially the Republican Party at least since the 1980s. China can and probably will convince nearly all of its people that it is a real democracy, and one that works better than American democracy.
China's blast is another example of an intense global and radical right internal attack on true democracies. China and Russia attack us online all the time by sowing social distrust, disinformation and polarizing propaganda and lies. In the US, Republicans do the same, while they hob knob with European dictators, thugs and kleptocrats. They like what the see in dictatorship and kleptocracy, i.e., power and wealth. What could be more appealing to politically ambitious people with big egos than power and wealth?
Questions:
1. Is American democracy under attack by China, Russia and the Republican Party?
2. Is China an honest democracy or a lying dictatorship?
Complex adaptive system (CAS): a system that is complex because it operates as a dynamic network of interactions, but the behavior of the ensemble or the whole may is not always predictable according to the behavior of the components; examples include nations, groups of people, traffic flow, the internet, systems of government, ecosystems, financial markets, army ants, bee hives, and individual brains (discussed here before)
Consilience: agreement between different approaches to a topic of different academic subjects, especially science and the humanities; agreement among different approaches increases the likelihood that a belief supported by consilience is more apt to be real and more accurate than one based on data and analysis from a single source of research
Consilience has emerged regarding American democracy. Researchers applying CAS theory to it see that our democracy is in serious trouble. Researchers assert that a major component feeding the instability is political and social polarization and the loss of mental diversity among people in groups who self-associate and are not exposed to different facts and political opinions.
One source comments on several papers on American democracy and its status as a CAS. The papers were published together on Dec. 6, 2021 in the Proceedings of the National Academy of Science (PNAS):
Much like an overexploited ecosystem, the increasingly polarized political landscape in the United States — and much of the world — is experiencing a catastrophic loss of diversity that threatens the resilience not only of democracy, but also of society, according to a series of new studies that examine political polarization as a collection of complex ever-evolving systems.
Ultimately, as social interactions and individual decisions isolate people into only a few intractable camps, the political system becomes incapable of addressing the range of issues — or formulating the variety of solutions — necessary for government to function and provide the services critical for society.
“The complex systems perspective demonstrates that the loss of diversity associated with polarization undermines cooperation and the ability of societies to provide the public goods that make for a healthy society,” according to an introduction by issue editors Simon Levin, Princeton’s James S. McDonnell Distinguished University Professor in Ecology and Evolutionary Biology, Helen Milner, the B.C. Forbes Professor of Public Affairs and professor of politics and international affairs at Princeton, and Charles Perrings, professor of environmental economics at ASU.
“Polarization is a dynamic process and that is what complexity theory can best help us understand,” they wrote. “As environmental and complexity scientists have shown in other contexts, diversity maintenance is critical for many systems to thrive, and often to survive at all.”
Complex adaptive systems are widespread in fields from physics and financial systems to natural systems driven by evolution and socioeconomic-political systems, said Levin, who is director of the Center for BioComplexity based in Princeton’s High Meadows Environmental Institute (HMEI).
What various researchers found is that when we obtain our political news from a network of like-minded people several things happen. First, the group tends to narrow over time in terms of political diversity. This happens because those who are considered “not pure enough” are ejected from the network, or leave because they feel less welcome. Further, people within the network tend to get access to less and less political news total, and the news they are exposed to is increasingly polarized. This doesn’t happen when such networks do not routinely share political news to begin with.
The core problem, therefore, seems to be the diversity of sources of information. Similar networks of people, in fact, can have a moderating effect on individual members, if the group maintains a diversity of sources of information reflecting a diversity of political opinions. Further, a healthy moderating effect is supported by individual members exploring outside the group for sources of information.
These patterns follow similar mathematical trends to other very different phenomena in other complex adaptive systems. For example, such trends tend to be non-linear, meaning the more extreme they get the more the trend accelerates. Further, there seems to be tipping points of no return. Once such information networks are radicalized beyond a certain point there may be no way back. Their models indicate that Republicans are likely already beyond this tipping point, while Democrats are rapidly approaching it.
What, then, can be done? As individuals the apparent solution is to maintain a diversity of information sources, and continue to explore for new sources. Don’t rely on any one or limited number of networks of like-minded people for your information. Further, strive to be tolerant of a diversity of opinions among your various social circles.
What can we do as a society? This is a tougher question. Some have argued, I think reasonably, that we may need to bring back the fairness doctrine in news reporting. There is also a lot of focus on social media algorithms, which seem to have automated the very effects that these researchers warn against, sucking people into an epistemic bubble of increasingly narrow and radical views.
In the polarization studies that have been done to date, says Macy, one of the most striking insights is how much of it can be explained by the interplay of just two sociological forces. One of them is the assimilation, or “influence” effect: People who interact a lot will eventually start to think and act alike.
This effect is so strong, and so well documented in the literature, that social scientists spent decades trying to figure out why polarization exists at all—or why, for that matter, humans are divided by language, fashion, cuisine, music, folkways, and a host of other differences. Why do these divisions often endure for centuries, instead of gradually fading away as the assimilation effect seemed to predict?
A big part of the answer turned out to be the second force, homophily: people’s preference for hanging out with others like themselves. One influential study of the power of homophily was Robert Axelrod’s 1997 model of culture formation. This model turned out to anticipate today’s rural–urban split between Republicans and Democrats, as well as the self-reinforcing echo chambers that have now become familiar on Twitter and Facebook.
Recent modeling work has also yielded a second key insight about polarization: namely, the crucial role played by negative emotions, which can turn both influence and homophily inside out. Just as people can be drawn together by the influence effect, says Macy, “they can also become more different from each other through negative influence,” also known as “repulsion.” And the flip side of homophily is xenophobia, he says, “which is the tendency to run away from those who are different.”
Negative emotion is obviously crucial for understanding the intergroup venom we’re seeing today. But Noah Friedkin, a sociologist at the University of California, Santa Barbara, points out that efforts to model its effects actually date back to the birth of “balance theory” in the 1940s and 1950s.
Recent years have seen a marked rise in “affective” polarization, a feeling of mutual dislike and mistrust between the two sides. The trend is illustrated in data from the American National Election Survey: People's feeling of warmth toward members of their own party (green) has held steady since 1980, whereas their feelings toward members of the other party (purple) have dropped. The difference (black) is a measure of affective polarization.
But just about everyone in this field is considerably less optimistic about proposals to reform social media. For one thing, it’s not clear how effective any such reforms would be. Even though Facebook, Twitter, YouTube, and other platforms are widely viewed as vectors for misinformation and employed as partisan echo chambers, researchers are still arguing about how much they actually contribute to polarization. According to some studies, in fact, the algorithms that determine what users see in their feeds are just bit players; most of the online divisions come from people sorting themselves the way they always have, through “birds-of-a-feather” homophily.
For another thing, the reforms could easily backfire. In 2018, for example, Bail led a team that tested a frequently proposed idea for opening up the echo chambers. They paid more than 1,600 Republican and Democratic Twitter users to follow bots that would periodically show them tweets from figures in the opposite party. “The hope was that this would lead to moderation,” says Bail. But in fact, he says, people mostly just recoiled from the discordant information. “Nobody became more moderate,” he says. “And Republicans, in fact, became significantly more conservative.”
That is sobering news. It seems that the Democrats are polarizing, presumably significantly or mostly in response to Republican polarization, which has been building for decades as social changes became increasingly unpleasant for what appears to be most or nearly all conservatives. When a CAS like American democracy becomes too unstable, it enters a period of chaos starting at a bifurcation point. The end result is unpredictable. Some form of authoritarianism, autocracy, fascism, plutocracy, kleptocracy, laisses-faire capitalism, and/or Christian theocracy could be plausible end results and the start of a new period of equilibrium. Far less plausible outcomes would seem to be true socialism, communism or anarchy.
Since the election of the ex-president in 2016, it has felt as if the US entered a period of relative social and political chaos and unpredictability, which continues today. However, that is just a personal observation.
Other information source: Political sectarianism in America, A poisonous cocktail of othering, aversion, and moralization poses a threat to democracy, 2020
Question: Do CAS research results indicating increasing instability in American democracy seem plausible, or is this merely an academic curiosity?
Bifurcation map of the CAS of population growth of an animal
(when the line splits in two, the CAS has bifurcated
and the system changes in ways that tend to be unpredictable)
“This is an attempt to describe generally the process of legal reasoning in the field of case law, and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions it makes it possible to take the first step in the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.
We [judges] mean to accomplish what the legislature intended. . . . . The difficulty is that what the legislature intended is ambiguous. In a significant sense there is only a general intent which preserves as much ambiguity in the concept used as though it had been created by case law. . . . . For a legislature perhaps the pressures are such that a bill has to be passed dealing with a certain subject. But the precise effect of the bill is not something upon which the members have to reach agreement. . . . . Despite much gospel to the contrary, the legislature is not a fact-finding body. There is no mechanism, as there is with a court, to require the legislature to sift facts and to make a decision about specific situations. There need be no agreement about what the situation is. The members of the legislative body will be talking about different things; they cannot force each other to accept even a hypothetical set of facts. . . . . Moreover, from the standpoint of the individual member of the legislature there is reason to be deceptive. He must escape from pressures at home. . . . And if all this were not sufficient, it cannot be forgotten that to speak of legislative intent is to talk of group action, where much of the group may be ignorant or misinformed.
In addition to the power to hold legislative acts invalid, a written constitution confers another and perhaps as great a power. It is the power to disregard prior cases. . . . . The problem of stare decisis [legal precedent] where a constitution is involved is therefore an entirely different matter from that in case law or legislation. This is often overlooked when the court is condemned for its change of mind. A change of mind from time to time is inevitable when there is a written constitution. There can be no authoritative interpretation of the Constitution. The Constitution in its general provisions embodies the conflicting ideals of the community. Who is to say what these ideals mean in any definite way? Certainly not the framers, for they did their work when the words were put down. The words are ambiguous. Nor can it be the Court, for the Court cannot bind itself in this manner; an appeal can always be made back to the Constitution. Moreover if it is said that the intent of the framers ought to control, there is no mechanism for any final determination of their intent. . . . . The major words written in the document are too ambiguous; the ideals are too conflicting, and no interpretation can be decisive.” --- From An Introduction to Legal Reasoning by former US Attorney General Edward H. Levy, 1949, summarizing the concept of American Legal Realism that had been used for decades to interpret US laws and the US Constitution
US Senator Ben Sasse (R-NE): “. . . . . the people don't have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is to give permission to the secretary or the administrator of bureaucracy X, Y or Z to make law-like regulations. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”
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The comments below are adapted from a blog post here two days ago, Did Republican Supreme Court justices lie about abortion?. Some interesting points are made that are useful to have in mind as some context for the Supreme Court as it embarks on what is going to be years of anti-secular, radical right social engineering. That engineering will be driven by sacred Christian nationalist dogma and blind faith in laissez-faire capitalism. Republican legal reasoning in this re-engineering of American society will be obscured by smoke and mirrors that the Republican judges will falsely tell us is the only proper constitutional interpretation.
The point is this: We are going to be socially engineered upon good and hard, whether we like it or want it or not. Republicans want it and they are now on the verge of getting what they have been paying and fighting hard and dirty for decades to get.
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Comment: Many years ago in a speech at the Manhattan Institute, a radical right rich people group in New York city, Supreme Court Justice Clarence Thomas articulated what appears to me to be what is now mainstream radical right judicial thinking about precedent or stare decisis.
Paraphrasing Thomas from memory: Of course I believe in and adhere to stare decisis. All judges do. But I will not hesitate to overturn a settled precedent if it was wrongly decided. Then I would not hesitate to vote to overturn it.
Unless I'm mistaken, one of the Republican's comments in his oral argument comments about the Mississippi abortion law now under review by the court clearly echoed that 'logic'. I do not think it was Thomas, but just can't remember who it was. I think it was Roberts who made this argument. He framed the question asking if a court decision was wrong from the day it was decided, like Plessy, and nothing had change in the interim, should that precedent be overturned some time later by a later court decision? The judge was clearly saying that a bad decision from the get go has little or no constitutional basis to stand on. Other arguments such as people relying on the old decision just do not matter enough to change that outcome.
Response: Sure. I say when in Rome do as the Romans do unless I don't approve of what the Romans do, in which case I don't do as they do. Wait, I think I just went full circle there. That's my response to people like Thomas. He uses the words "wrongly decided" like their meaning is self-evident. As you say, there have been decisions which clearly contradict the constitution (Plessy being one, Dredd Scott another), but this is pretty rare. More often decisions are controversial and can be defended and attacked by legal thinkers depending on their interpretations. Republicans like to pretend they have some monopoly on the "original meaning" of the constitution which can then be used as basis for evaluating all decisions.
When things don't satisfy their self-imposed criteria, they say they are "righting the wrongs of bad decisions." When anyone else breaks from precedent they label it as "judicial activism." Their philosophy is circular, self-serving and logically crude. It amounts to claiming superior insight into the meaning of the constitution on no logical basis. Originalism is a fig leaf for their own "judicial activism." At least the legal realists admit that the meaning of the constitution is not fixed once and for all, and that there should be flexibility in light of changing social conditions, mores etc. Originalists would have you believe all "good decisions" can be easily derived from the constitution.
Also, I've never been entirely clear on how they square the 14th amendment with 1787 constitutional convention, which drew up and agreed on the original document. In my opinion, the post civil war amendments (13th (1865), 14th (1868) and 15th(1870)) were morally and politically driven revolutionary departures from 1787. Those departures were made necessary because the bad compromises in the supposedly hallowed, 'original text' of the constitution resulted in civil war. So the victors-- radical Republicans-- wrote the 3 Reconstruction era amendments), and in so doing completely changed constitutional law forever. Without the 14th Amendment, the Bill of Rights, for example, would not apply to the individual states but only the Federal government.
Add to that, the fact that the 14th Am. was used for decades not as "intended" for civil rights, but for corporate rights with phrases like "liberty of contract" designed to minimize any government regulations. The history of legal decisions is anything but an inexorable, consistent and principled march from Philadelphia lawyers in 1787 to present. The Republicans seem to have a problem admitting this, or the obvious relevance of historical changes and contexts that influence the Court. The American people should also stop going along with this pretense that somehow the judiciary stands outside of historical and political cross-currents, ideologies, intellectual fads and the like. We need, also, to see the constitution as something less than Holy Writ that issued whole from the mind of Zeus in the 18th century.
Justices ARE politicians of a kind. They're appointed by and given immense powers within the US Government. They are nominated by particular Presidents who serve as the leaders of particular parties. I think deep down most people have a sense of this.
It's time to discuss term limits, IMO.
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One point for context is useful here. At one point, the Response referred to the "legal realists." That refers to an American legal tradition called American Legal Realism (ALR). Edward Levy laid out in his short 1949 book how this works in practice and why it is necessary for a democracy. The idea behind it is that as society and technology change, judges interpret ambiguous laws to reflect those changes. For the most part, Republicans falsely believe and argue that the only proper way to interpret the Constitution is to look at the original text. Their legal authorities refer to things like originalism or textualism, wherein technological and natural social changes are mostly irrelevant.
The modern Republican Party generally opposes the ALR tradition of constitutional interpretation, although on some occasions, it is arguably practicing its own version of ALR. One might call it reverse ALR. Specifically, the Republican version of ALR relies on its ideology and morals to oppose social changes it dislikes, e.g., laws allowing abortion, same-sex marriage, consumer protections and equal rights for minorities.
Acknowledgement: The Response is by PD. My sincere thanks to him for taking the time and effort to comment here.
Questions:
1. Is it reasonable to argue that Republican judges on the Supreme Court are more driven by political and religious ideology than Democratic judges, which tend to operate in the framework of ALR?
2. Should judges adapt to account for social or technological changes when the law is ambiguous and the original intent of the Founders or congresses who write laws cannot be authoritatively determined?
3. Is it time to discuss term limits for federal judges? People in Congress?
New Pentagon Office Criticized as Effort to Control UFO Investigations, End Transparency
A Defense Department group will now oversee U.S. government-wide investigations into UFOs – with little hope for transparency or oversight.
American officials and analysts globally are raising alarm about a new Defense Department office that will handle the U.S. government’s examination of unidentified flying objects, warning that the move indicates the military wants to end a brief spell of transparency and shove UFO reports back into a closet under lock and key.
The Pentagon quietly announced the Tuesday night before Thanksgiving that it had formed the esoteric-sounding Airborne Object Identification and Management Synchronization Group. Working with the intelligence agencies, it serves as the follow-on to a government-wide effort earlier this year to document and analyze reports of encounters with unidentified objects – “Unidentified Aerial Phenomena” or UAPs in Pentagon jargon – predominantly from military pilots.
The new office, which reports to the undersecretary of defense for Intelligence and Security, will now oversee the entire government’s study of UFOs, focusing on sightings within restricted military airspace and will also “assess and mitigate any associated threats to safety of flight and national security,” a spokeswoman says.
The Defense Department has since justified the composition of the office as necessary to provide uniformity to the reporting process and subsequent analysis.
But some researchers characterize the Pentagon’s latest move as an “insulting” attempt to run around specific efforts by civilian organizations and leaders in Congress to exercise greater oversight over the government’s study of UFOs.
Some recent comments here imply or state that some or all of the Republican judges on the Supreme Court lied about their opinion on abortion in their Senate confirmations. Apparently some people elsewhere feel the same way. An opinion piece in the Washington Post comments:
They lied.
Yes, I’m talking about the conservative justices on the Supreme Court, and the abortion rights those justices have now made clear they will eviscerate.
They weren’t just evasive, or vague, or deceptive. They lied. They lied to Congress and to the country, claiming they either had no opinions at all about abortion, or that their beliefs were simply irrelevant to how they would rule. They would be wise and pure, unsullied by crass policy preferences, offering impeccably objective readings of the Constitution.
It. Was. A. Lie.
We went through the same routine in the confirmation hearings of every one of those justices. When Democrats tried to get them to state plainly their views on Roe v. Wade, they took two approaches. Some tried to convince everyone that they would leave it untouched. Others, those already on record proclaiming opposition to abortion rights, suggested they had undergone a kind of intellectual factory reset enabling them to assess the question anew with an unspoiled mind, one concerned only with the law.
Unfortunately, that lie was and is still enabled by the news media. Even in the face of what we saw at the court on Wednesday — when at least five of the six conservatives made clear their intention to overturn Roe — press accounts continued offering euphemisms and weasel words, about “inconsistencies” or “contradictions.”
But sometimes the right puts its purposes in the open. There was a particularly striking exchange between Laura Ingraham and Sen. Ted Cruz (R-Tex.) on Fox News, where Ingraham grew inexplicably enraged over the mere possibility that Roe might not be overturned.
“If we have six Republican appointees on this court,” she said, "after all the money that’s been raised, the Federalist Society, all these big fat-cat dinners — I’m sorry, I’m pissed about this — if this court with six justices cannot do the right thing here,” then Republicans should “blow it up” and pass some kind of law limiting the court’s authority.
“I would do that in a heartbeat,” Cruz responded.
In other words: We bought this court, and we’d better get what we paid for.
Like his Republican colleagues, that same Ted Cruz repeatedly insisted at confirmation hearings that the very idea that a Republican appointee might have a political agenda was deeply offensive to whatever fine nominee was before them. So let’s review what those justices — now treating women’s bodily autonomy with such naked contempt — had to say during their confirmation hearings.
The newest justice, Amy Coney Barrett, was already on record stating that abortion is a moral evil. But in her hearing, she insisted, “I don’t have any agenda.” Asked by a Republican senator whether it would be possible to predict how she might rule on subjects like abortion, Barrett responded: “It’s not possible.”
Then there’s Brett M. Kavanaugh, who insisted in his hearing that Roe was “settled as a precedent,” because “it has been reaffirmed many times over the past 45 years.” Sen. Susan Collins (R-Maine) emerged from a meeting with Kavanaugh and said he’d assured her that Roe is “settled law." She gave him her vote.
Neil M. Gorsuch was as pure of mind as the others. Asked whether the Constitution protects intimate personal decisions on subjects like abortion and marriage, he said, “I have never expressed personal views as a judge on this subject, and that is because my personal views do not matter.”
Confronted at his hearing with a previous written statement that the Constitution does not protect the right to abortion, Samuel A. Alito Jr. vowed that as a judge, he would “put aside” the opinions he had as a lawyer and "think about legal issues the way a judge thinks about legal issues.”
Taking the cake was Clarence Thomas, who swore he had never had a conversation about Roe. He answered a Senator’s question by declaring, “Your question to me was ... do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not.”
It was all a lie, a scam, a con: the assurances that they were blank slates committed to “originalism” and “textualism,” that they wouldn’t “legislate from the bench,” that they have no agenda but merely a “judicial philosophy.”
Somehow that philosophy nearly always produces results conservatives want: undermining voting rights, enhancing corporate power, constraining the rights of workers, enabling the proliferation of guns, and now most vividly, allowing state governments to force women to carry pregnancies to term against their will.
That recitation of events makes it sound like the Republicans either lied or intended to subtly deflect from their actual feelings about abortion.
Questions:
1. Is it reasonable to believe that the Republican justices lied to the Senate and the American people to deceive them and get accepted as federal judges?
2. Is it reasonable to believe that the “judicial philosophy” that Republican justices bring to bear at least on political cases is one that usually produces results conservatives want, and cases are decided first on political grounds and then the legal rational is ginned up to try to make a political decision look like a legally principled decision?[1]
Footnote:
1. As discussed here yesterday, some critics of the secrecy the Supreme Court hides behind when it decides cases believe that some decisions are made first and then the decision written to look as legally principled as it can be made to look. In a 1973 paper, two critics wrote:
Our thesis may be simply stated: basic democratic theory requires that there be knowledge not only of who governs but of how policy decisions are made. Only if it can be demonstrated that certain other fundamental Values are jeopardized or transgressed should secrecy continue to be the norm. We maintain that the secrecy which pervades Congress, the executive branch and the courts is itself the enemy.
A third reason for the failure of an opinion to depict the process may be found in the probability that judges work back from conclusions to principles rather than
“forward” from principles to conclusions. Jerome Frank once said that this conception of the judicial process is “so heretical that it seldom finds expression.” The “so-called opinions,” he explained, “will not reveal anything remotely resembling a statement of the actual judging process because decision takes place by an intuitive flash rather than conscious application of formal logic of ratiocination.” This intuitive approach to decision making, by nature and definition, precludes full explanation of the decision-maker's experience, for it is not made up of “little bricks of sight, sound, taste, and touch.”
