Of the many forms of cruelty, that directed against those who are weak or powerless is one of the worst. Of itself, it undermines whatever legitimacy a person can claim by virtue of intellectual or professional distinction. Societies and governments will have elites—that is simply inescapable, except perhaps in an ancient city state, and probably not even then. But in a free society, for those elites to exercise their power—their very real power, as those subject to it well know—they have to do so with restraint and good judgment.
He is referring in part to Ed Whelan, who made an accusation, which he later retracted, against what he called a “Kavanaugh look-alike.”
1. I really strongly endorse the first sentence of the quoted paragraph. My philosophy is “punch up, not down.” There is a columnist who writes often for Medium. Every column boils down to “America is bad. Capitalism is bad. American capitalism is bad.” If you’ve read one, you’ve read them all. The Medium editors plug him relentlessly. Probably 8 out of 10 emails I get from Medium highlight one of his columns, and that annoys me.. But I let it go. I would much prefer to go after two Nobel Prize winners.
2. I have another strongly-held view, which is that I should avoid commenting on whatever news story is most prominent at the moment. There are many reasons for that: don’t feed the trolls; write for the long term, not the short term; write where you can add value; etc.
3. But I admit that the Kavanaugh story grabs me somehow. So here goes.
[paragraphs deleted]
On second thought, no. Everybody’s nerves are too raw. I am back to my principle of letting the hot news story of the day pass.
Wise decision.
There are two big problems with the “punch up, not down” rule.
One is that blame belongs with the person who did a bad act or made a wrong decision, regardless of his size or power.
The bigger problem, though, is identity politics AKA social justice, a movement which lies about who is powerful and who isn’t through its blatantly and totally false concept of privilege.
I didn’t swallow the hook, but please remove it with the utmost care.
Good decision. I’m limiting my media intake to the econ and rationalist blogs for the next few weeks while this mess blows over. Every piece of news is designed for maximum outrage. Both sides do it.
I have no doubt that yours would be a far more reasoned and moderate voice…especially compared to the screaming hysterical mob that is out there. (I am amazed how people who are graduates of America’s finest universities can behave no better than an uneducated mob with pitchforks….makes me glad I decided not to attend, because the extra considerable cost doesn’t seem to have produced much improvement.)
I can’t work up too much interest one way or the other. Not invested at all in Kavanaugh, but not wholly sympathetic to the accuser, a university professor, either. Both seem to be elites to me, and the conflagration only confirms my priors about elites generally not being worthy of the immense powers with which they are entrusted.
There may be many other important considerations, but for me, the single most important thing that the supreme court nomination hearings going on this week signify is the need for constitutional reform of the judiciary in the United States.
The failure of the US constitution to adequately provide for the rule of law was proven nearly instantly upon its adoption by the case of Marbury v. Madison in which the supreme court, on its own initiative, threw out the principle of parliamentary sovereignty and arrogated to itself a legislative veto (misleadingly known as “judicial review”) that allows a majority of the court to declare whatever legislation they disagree with as “unconstitutional.”
This has led to the anarchy that is US constitutional law. Official supreme court interpretations of this simple document run to hunreds of thousands of pages. By any definition, this is not the rule of law.
Not surprisingly, this institutional barratry has also fattened the pockets of the US lawyers guild at the expense of the public.
This is why the appointment of a single justice is so fraught with hysteria. And given the apparent stakes of a single judicial appointment, it is not in the least surprising to see the US ranked as low as it is on various international rankings of judicial system quality.
The US Constitution provides but two short sections in Article III providing for a supreme court and authorizes other courts in Article II. In contrast, nations such as Denmark have much more substantial constitutional provisions relating to the courts.
Denmark’s consitition of 1953 provides:
Ҥ 59 (1) The High Court of the Realm shall consist of up to fifteen of the senior ordinary members of the highest court of justice in the Realm (according to length of office) and an equal number of members elected for six years by the Folketing according to proportional representation. One or more substitutes shall be elected for each elected member. No member of the Folketing shall be elected a member of the High Court of the Realm, nor shall a member of the Folketing act as a member of the High Court of the Realm. Where, in a particular instance, some of the members of the highest court of justice in the Realm are prevented from taking part in the trial of a case, an equal number of the members of the High Court of the Realm last elected by the Folketing shall retire from their seats. (2) The High Court of the Realm shall elect a president from among its members. (3) Where a case has been brought before the High Court of the Realm, the members elected by the Folketing shall retain their seats in the High Court of the Realm for the duration of such case, even if the period for which they were elected has expired. (4) Rules for the High Court of the Realm shall be provided by statute.
§ 60 (1) The High Court of the Realm shall try such actions as may be brought by the King or the Folketing against Ministers. (2) With the consent of the Folketing, the King may also cause other persons to be tried before the High Court of the Realm for crimes which he may deem to be particularly dangerous to the State.
§ 61 The exercise of judicial authority shall be governed only by statute. Extraordinary courts of justice with judicial authority shall not be established.
§ 62 The administration of justice shall always remain independent of executive authority. Rules to this effect shall be laid down by statute.
§ 63 (1) The courts of justice shall be empowered to decide any question relating to the scope of the executive’s authority; though any person wishing to question such authority shall not, by taking the case to the courts of justice, avoid temporary compliance with orders given by the executive authority. (2) Questions relating to the scope of the executive’s authority may by statute be referred for decision to one or more administrative courts, except that an appeal against the decision of the administrative courts shall be referred to the highest court of the Realm. Rules governing this procedure shall be laid down by statute.
§ 64 In the performance of their duties the judges shall be governed solely by the law. Judges shall not be dismissed except by judgement, nor shall they be transferred against their will, except in such cases where a rearrangement of the courts of justice is made. A judge who has completed his sixty-fifth year may, however, be retired, but without loss of income up to the time when he is due for retirement on account of age.
§ 65 (1) In the administration of justice all proceedings shall to the widest possible extent be public and oral. (2) Laymen shall participate in criminal proceedings. The cases and the form in which such participation shall take place, including which cases shall be tried by jury, shall be provided for by statute. ”
The US could do very well for itself by simply amending its constitution to strike the existing judicial provisions and replace them with a provision modeled after the Danish provision above.
But given the US’s lamentable judicial history, I would suggest further adding the following additional clauses to the Constitution:
To be eligible for appointment as a member of a court, an individual must demonstrate mastery of mathematics, the english language, microeconomics, and logic, by means of an objective multiple-choice examination the scores on which shall be publicly available prior to appointment.
Robes and other quasi-religious adornment shall not be worn by members of a court while acting in an official capacity. Members of a court are not deities, demigods, priests, holy persons, etc. Business casual as defined in statute shall be the required attire for a member of a court while acting in an official capacity.
In order to prevent the use of the courts from being used to plunder the public for the benefit of the legal guild, individuals who have trained, studied for, or been admitted to a bar association or other legal guild shall be ineligible to be appointed as a member of a court.
There is a popular meme with an actor’s face and the words, “One does not simply …”
Changing the content of Article III seems extraordinarily difficult in today’s climate.
Also, judge on the DC Court of Appeals is a much higher kind of elite than a professor at a university. The judges on that court are probably in the top 100 most powerful people in the government. (President, vice president, House speaker, Senate majority leader, the justices, a few top cabinet members, a few top committee chairs, and judges of the DC Circuit Court of Appeals). Even if outside the 100 most powerful, then certainly the 500 most powerful.
Up to about 5 accusers now.
Though for a supreme court justice I am just as concerned with the accusations of perjury. Can’t we talk about those instead?
Its hard to detach when 21 old white guys seem poised to ram this whole thing through no matter what the facts are.
“…when 21 old white guys seem poised…”
Wait, why didn’t you start with that, the strongest part of your ‘argument’? As we now know, reflexive bigotry against old white guys is not only totally acceptable but alone makes for an airtight case. If multiple old white guys are involved, of course the cause must be evil. QED.
I vote for liberals, but I gotta say, even though Amy Coney Barrett is probably more reliably conservative than Kavanaugh and is likelier to overturn Roe. v. Wade, I really wish Republicans would have nominated her instead of Kavanaugh. Comparing Kavanaugh to Barrett, or Kavanaugh to Roberts, or Kavanaugh to Gorsuch makes it clear why this is the case. I don’t think I will often agree with Gorsuch’s rulings, and I frequently disagree with Robert’s rulings, and Scalia’s as well, but I don’t think any of them are liars, and so far as I know, none of them have been accused of sexual assault, let alone by multiple women. I do believe that personal integrity matters in the powerful, and for everyone else as well, but as Cohen wrote “But in a free society, for those elites to exercise their power—their very real power, as those subject to it well know—they have to do so with restraint and good judgment.” That is why it is important to have strong norms where elites are held to higher standards, not lower standards, than the general public.
That is why it is important to have strong norms where elites are held to higher standards, not lower standards, than the general public.
Oh, I agree. And Kavanaugh wouldn’t have been my first choice either. But in my view the elites failing to live up to standards are the ones pushing these vague, dodgy, uncorroborated, decades-old, only-recently-recalled accusations which, because of their age and vagueness and lack of corroboration, cannot be defended against. Feinstein should be shamed out of the Senate for her role in this. Unless and until something shows up that is recent, specific to date and place, has evidence and/or reliable corroborating witnesses willing to testify under oath this is the worst kind of toxic sludge that will further degrade our politics (and, of course, if effective, it will invite repeat performances and intimidate future candidates — which, perhaps, is at least part of the point).
I guess I don’t see why Republicans don’t just start saying they won’t vote to confirm him, if for no other reason than that in previous appearances before the Senate, he gave clearly dishonest answers. I don’t really see how they lose in that situation, as instead of trying to defend an unpopular judge who highlights things about Republicans a lot of swing voters may be uncomfortable with, they could just nominate Barrett, who would get evangelicals extremely fired up to come out and vote, seeing her as one of their own. It would also, I think, put Democrats in a bit of a bind, as they would have to somehow attack a successful, professional woman while also still trying to convince college educated women that the Republican party is against such women. That isn’t to say that such tactics would have a huge impact on the number of votes each party got, but the marginal difference is important in terms of the balance of power in the House and the Senate. It is the failure of Republicans to act decisively when both virtue and their own self-interest align that is baffling to me.
As an aside, Kavanaugh’s nomination is another example of incompetence on Trump’s part. It strikes me that Trump is great at campaigning for himself, but not really great at leading the Republican party, especially when the party has to come together to get something done, or in navigating the parts of the Republican platform that are broadly unpopular with the electorate.
I guess I don’t see why Republicans don’t just start saying they won’t vote to confirm him, if for no other reason than that in previous appearances before the Senate, he gave clearly dishonest answers.
My guess — because at this point it would be seen as caving in to the Feinstein’s underhanded, 11th hour smear campaign. And that would be the case — their no votes obviously wouldn’t really be about this stuff:
https://www.vox.com/2018/9/7/17829320/brett-kavanaugh-supreme-court-hearing-perjury
And it’s not clear to me that the politics are working against Republicans at this stage. The fight seems to be energizing the Republican base, while conceding would probably demoralize it.
That makes sense to me- especially given that it isn’t congressional Republicans who choose the nominee, but Trump, and if I were a congressional Republican I would not want to trust Trump to act quickly and get Barrett nominated within a short enough timeframe to keep the base from getting demoralized.
What was Feinstein’s role? Forwarding “the letter” to the FBI? Releasing her statement when it became clear that Ed Whelan was looking at the accusers social media profiles? Wasnt it the WH who leaked her name?
My nerves are not too raw.
I will say it out loud: Kavanaugh was a 17-year-old boy, even if the allegations are true.
There appears to be no way to affirm the allegations, although all the potential witnesses seem to think the Kavanaugh event never happened or they have no recollection of it.
Really, this seems just silly.
By the way, I regard Kavanaugh as a statist, authoritarian, obsequious GOP hack.
Congratulations! Your paragraph, as published, is the most intelligent commentary on the whole situation.
Are you Chris Hedge?
No. Guess I need to add more initials.
There are a few interesting and trans-partisan takes on the whole kerfuffle.
One could be the role of technology on evidence and the legal rules surrounding its consideration.
For example, now it might be possible to prove with smartphone records, social media digital trails, AI speakers, etc. the precise details of where and when everybody was, so that one doesn’t have to rely purely on witness testimony, which we know is often extremely unreliable. We also have long-term records of conversations directly after events are said to have taken place.
Another interesting, technology-related topic could be the proper duration of statutes of limitation. One of the justifications of short duration offenses is simply the difficulty of getting reliable evidence long after an event is supposed to have taken place. But with modern technology, that justification may now be much weaker.
There are also cases when a victim may not want to tell anyone or file any formal complaint or report, but still wants to privately record what happened and preserve some of the details, just in case. (Many senior government officials make a habit of keeping private memos of significant conversations for similar reasons). An issue today is verifying the authenticity of those recordings, which could always have been made long after the fact, but perhaps it would be possible and maybe even common to “register” the evidence that exists with some secure third party site.
Finally, it seems to me we still haven’t quite culturally caught up with what happens with accusations in the digital / social media era, and what ought to be done to whom, and in which circumstances, when an accusation is made.
Yeah, whazzup with Medium and that columnist? He’s an idiot. (Not being a published Medium writer, I’m now ‘punching up’)
But surely Medium has the best available ‘AI’ for determining what to send to me.
In a vacuum, I wouldn’t care one way or another whether Kavanaugh was appointed; any potential Trump nominee is going to move the needle just as much in just the same direction.
But the choice of tactics by the minority is shocking and terrifying and now has me hoping the GOP rams this nomination right down their throats
Be careful what you wish for. You might just get it good and hard.
The Democrats might want to think about that too.
If Ginsburg dies while Trump is in office, the Republicans would have this nomination to point to when they set up a snap appointment with minimal Senate review.
The underlying logic of American electoral politics and government is that we are moving towards a more parliamentary system in which the party with the votes just does what they want. So any norms or rules that get in the way of the majority parties goals will jettisoned sooner or later. This doesn’t really have anything to do with either politically party.
With Kavanaugh on the bench and knee deep in sh*t what could possibly go wrong with this plan?
Since they started making shortlists for the Scalia, I have been a fan of Raymond Kethledge. Actually, I have been a fan of Raymond Kethledge since this gem appeared in an opinion he authored:
He is otherwise a solid legal writer as well. Plainspoken even when the legal content gets technical.