Saturday, October 29, 2005

Points to Ponder:
(On "The Pursuit of Perfection in Law and Politics")

This is a continuation from the thread located HERE.

America's Constitution provided an 18th Century answer to the question of what to do about the status of the individual and the mode of government. Though the founders set out to establish good government "from reflection and choice," they also acknowledged the "limits of reason as applied to constitutional design," and wisely did not seek to invent the world anew on the basis of abstract principle; instead, they chose to rely on habits, customs, and principles derived from human experience and authenticated by tradition.

"The Framers understood that the self-interest which in the private sphere contributes to welfare of society — both in the sense of material well-being and in the social unity engendered by commerce — makes man a knave in the public sphere, the sphere of politics and group action. It is self-interest that leads individuals to form factions to try to expropriate the wealth of others through government and that constantly threatens social harmony."

Collectivism sought to answer a different question: how to achieve cosmic justice — sometimes referred to as social justice — a world of social and economic equality. Such an ambitious proposal sees no limit to man's capacity to reason. It presupposes a community can consciously design not only improved political, economic, and social systems but new and improved human beings as well.

The great innovation of this millennium was equality before the law. The greatest fiasco — the attempt to guarantee equal outcomes for all people. Tom Bethell notes that the security of property — a security our Constitution sought to ensure — had to be devalued in order for collectivism to come of age. The founders viewed private property as "the guardian of every other right." But, "by 1890 we find Alfred Marshall, the teacher of John Maynard Keynes making the astounding claim that the need for private property reaches no deeper than the qualities of human nature." A hundred years later came Milton Friedman's laconic reply: " 'I would say that goes pretty deep.'" In between, came the reign of socialism.

"Starting with the formation of the Fabian Society and ending with the fall of the Berlin Wall, its ambitious project was the reformation of human nature. Intellectuals visualized a planned life without private property, mediated by the New Man." He never arrived. As John McGinnis persuasively argues: "There is simply a mismatch between collectivism on any large and enduring scale and our evolved nature. As Edward O. Wilson, the world's foremost expert on ants, remarked about Marxism, 'Wonderful theory. Wrong species.'" [Judge Janice Rogers Brown (circa April 20, 2000)]

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Friday, October 28, 2005

Points to Ponder:
(On "The Pursuit of Perfection in Law and Politics")

[W]e are living in a world where words have lost their meaning. This is certainly not a new phenomenon. It seems to be an inevitable artifact of cultural disintegration. Thucydides lamented the great changes in language and life that succeeded the Pelopennesian War; Clarendon and Burke expressed similar concerns about the political transformations of their own time. It is always a disorienting experience for a member of the old guard when the entire understanding of the old world is uprooted. As James Boyd White expresses it: "[I]n this world no one would see what he sees, respond as he responds, speak as he speaks," and living in that world means surrender to the near certainty of central and fundamental changes within the self. "One cannot maintain forever one's language and judgment against the pressures of a world that works in different ways," for we are shaped by the world in which we live.

This is a fascinating subject which we do not have time to explore more thoroughly. Suffice it to say that this phenomenon accounts for much of the near hysterical tone of current political discourse. Our problems, however, seem to go even deeper. It is not simply that the same words don't have the same meanings; in our lifetime, words are ceasing to have any meaning. The culture of the word is being extinguished by the culture of the camera. Politicians no longer have positions they have photo-ops. To be or not to be is no longer the question. The question is: how do you feel.

Writing 50 years ago, F.A. Hayek warned us that a centrally planned economy is "The Road to Serfdom." He was right, of course; but the intervening years have shown us that there are many other roads to serfdom. In fact, it now appears that human nature is so constituted that, as in the days of empire all roads led to Rome; in the heyday of liberal democracy, all roads lead to slavery. And we no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate. The drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens.

It is my thesis today that the sheer tenacity of the collectivist impulse — whether you call it socialism or communism or altruism — has changed not only the meaning of our words, but the meaning of the Constitution, and the character of our people.

Government is the only enterprise in the world which expands in size when its failures increase. Aaron Wildavsky gives a credible account of this dynamic. Wildavsky notes that the Madisonian world has gone "topsy turvy" as factions, defined as groups "activated by some common interest adverse to the rights of other citizens or to the permanent and aggregate interests of the community," have been transformed into sectors of public policy. "Indeed," says Wildavsky, "government now pays citizens to organize, lawyers to sue, and politicians to run for office. Soon enough, if current trends continue, government will become self-contained, generating (apparently spontaneously) the forces to which it responds." That explains how, but not why. And certainly not why we are so comfortable with that result. [Judge Janice Rogers Brown (circa April 20, 2000)]

To be Continued...

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Partner at Gibson, Dunn & Crutcher, 44 years old
Estrada was nominated by G.W. Bush to the D.C.
Circuit court, only to be fiibustered. After
more than two years, he withdrew his name from
consideration. His age, ethnicity and the fact
fellow GD&C partner Ted Olson is pushing him
make Estrada an intriguing choice if the
President wants to test the limits of the
Democrats' filibuster resolve. Considered a
star-powered lawyer and intellect.

New World Man presents: My favorite candidate for the Supreme Court
brought to you by Quizilla

Based on the way I answered the questions, I would have figured on Janice Rogers Brown but I could certainly support an Estrada nomination.

(Via Beth)

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Thursday, October 27, 2005

Briefly on the Previous Audiopost and Our Final Post on the Miers Nomination:
(Wrapup musings of your humble servant at Rerum Novarum)

I have to thank Zach Brissett over at Southern Appeal for that cartoon...very apropo in light of what this post intends to cover.

To start with, as the audiopost recorded this morning{1} cut off right before I finished it, it seems appropriate to note now that I have a few spare moments what was intended in an audio followup but which was not tended to for various and sundry reasons. First of all, there was not the opportunity to deal with the news that the nomination was withdrawn -in part because the audioposting was recorded before your host turned on the radio and found out about it. The end of the post was basically a bit of a "see, I told you so" since my internal hunchometer told me at the very beginning that this whole choice of a nominee was askew and all the mounting evidences as of yesterday evening confirmed those initial intuitions.{2} So the end of the posting would have dealt with me by implication still treating the nomination as if it was still in play but the recorder cut off first. Nonetheless, that is the truth and I do not mind admitting to it. For once, the audio cutting off the last sentence of an audiopost (which happens at times) was actually my friend if you will but I have no qualms about admitting that I was not completely up to speed this morning on the matter.

As for what else was touched on in that posting{3}, the readers will have to listen to that thread to know what was said there. I noted some time ago with one of the postings on the Miers nomination{4} that we needed to make the Miers nomination a referendum of sorts on Supreme Court judicial philosophy and in a round about way, that was accomplished with this withdrawal. I was worried that this nomination would not be a true paradigm shifting one on the Court{5} and all the evidence subsequent to those concerns demonstrated that this was a correct intuition on your host's part. But that is neither nere nor there.

It suffices to note here that my intuition on this matter proved to be correct including that any withdrawal would have to come from Miers if it was to arrive at all.{6} The MSM will speculate on this being "evidence of a crackup" by the base but let them. I will take this time to reiterate what I noted back on October 22nd viz. the effect this will have on the Bush presidency (prior to noting that Bush was not likely to withdraw the nomination himself):

I am not so sure his presidency suffers irreparable damage over this. There are two possible outs for him actually: (i) nominate a solid originalist like Brown and let his base fight for him and (ii) scrap his stupid illegal amnesty program and come out in favour of tougher border security and deportation of illegal immigrants. If he were to make the next appointment to the court (I am sure there will be three made by him) a male Hispanic, that would be the trifecta. He needs at least two out of these three to make the Miers debacle forgettable...and if nothing else it is the first two which he should focus on. [Excerpt from Rerum Novarum (circa October 22, 2005)]

In case it is not clear, I was advocating a nomination pattern of first Brown and then Garza for the nominee after Brown. Essentially, I have reversed my original proposal of first Garza and then Brown{7} but this is because President Bush's first two nominees were to a certain extent surprises: Roberts a pleasant surprise and Miers the converse. Furthermore, the Miers nomination not going through has galvanized the base and makes a Brown fight (which would have been a potentially losing one) a more winnable one. Plus, we need to consider the other factors in the equation now that were not there previously.

What needs to be recognized is an opening when we see it and that a picture is worth a thousand words. The Democrats are reeling and (to put it bluntly) nominating a white guy would lose a golden opportunity here. We need to make a pictoral statement as much as a principled one. For that reason, the nominee should be either a qualified Hispanic man or a qualified black woman. I suggest Emilio Garza for the former and Janice Rogers Brown for the latter and to go with Brown first and Garza either for the third nomination or to follow Brown for the second one if for some reason she does not get confirmed.

Another way of saying it is that we need to get beyond simply supporting originalists while avoiding activism on our parts: we need to set up the leaders of the left to tar and feather themselves as the racists we know many of them are. That will not happen with a white nominee; ergo we need a minority who is qualified and is an originalist to bring out the white sheets of the Democratic leadership and trigger the nuclear option over the filibuster and break the back of this so-called "gang of 14." There, I said it and I doubt many others will but it needs to be said: this is a war and you do not fight a war if you do not intend to win it. Bush has a golden opportunity to insure that the base will fight for him on this one but he needs to nominate an acceptable candidate.{8}

Finally, now that the Miers nomination has been withdrawn at her request, what is ahead is some necessary strategery and thus We at Rerum Novarum in bidding her adieu make our own the brief parting sentiment that Feddie noted over at SA viz. Ms. Miers. As the old adage goes "nothing personal, just business" and in this case, the "business" is forcing a public debate on judicial activism and seeking to reassert the Constitutional boundaries of the Supreme Court. That was the reason for the reaction to you Ms. Miers: that you are simply not a candidate who would do that. Thankyou once again for your gracious withdrawal and I wish you only the best in the months and years ahead.


{1} Miscellaneous Morning Musings on Blogging, the So-Called "Neo-Cons", and the Miers Nomination--An Audio Post (circa October 27, 2005)

{2} Greg Mockeridge can vouch for the fact that we spoke on the phone on October 5th and I was not mincing in my private assessment of the matter even though publicly I was being less strident at the time. I mentioned this conversation in passing in the October 7th posting but was still trying (despite every intuition in my being at the time) to give Bush the benefit of the doubt. Readers already know that by October 8th this was impossible and I for all intensive purposes joined the chorus of public vitriol at that time. Those who would read this as me "jumping on the bandwagon" apparently are not familiar with my general approach to issues: in this case it just so happened that the bandwagon agreed with me; ergo the reason for the symbiosis in tonality on the issue.

{3} The other parts of the audio include some bits about blogging/upcoming post subjects and a challenge for those who continually kvetch about so-called "neo-cons" without providing a template for identifying such people if they even exist.

{4} Feddie is right that we need to ask specific questions and make this a referendum of sorts on the judicial philosophy of the Supreme Court in the coming years. This would have been easier with a known commodity but at the very least, if it appears Miers will be confirmed, then somehow this kind of confrontation needs to be manufactured out of her nomination hearings. [Excerpt from Rerum Novarum (circa October 7, 2005)]

{5} I noted in the previous posting on this topic that I agreed with QD's original thoughts on the matter and I still do. There is a problem with this nomination from the standpoint of giving any indication that this will move the court from its activist rulings in recent decades back towards a proper approach to the Constitution. Just because Miers may be positionally correct, there is no evidence to suggest that she will have a paradigm shifting effect on the court in the coming years if she is confirmed by the Senate. [Excerpt from Rerum Novarum (circa October 7, 2005)]

{6} Or to quote what I noted in a thread to Kevin Tierney five days ago:

To use a poker metaphor, Bush sought to bluff on this nomination and his bluff was called. He does not have the cards and would be wise to fold them after "the flop" (which has already happened) rather than continue to "the turn" (the hearings themselves) and then to "the river" (the confirmation vote itself) if you will. He still has a couple of ways out of this but I am more and more skeptical that he will take them. In the end, Miers may have to withdraw (or be persuaded to) in order for the president to recover from this since he appears unlikely to withdraw the nomination himself. [Excerpt from Rerum Novarum (circa October 22, 2005)]

{7} On the Upcoming Supreme Court Retirements/Nominations (circa July 8, 2005)

{8} I am not saying that a white candidate is "unacceptable" of course but I want blood from the left on this; ergo a constructionist nominee who is both qualified and a minority so they can pull another Clarence Thomas right before the 2006 elections and piss off the majority of the voters in this country.

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Miscellaneous Morning Musings on Blogging, the So-Called "Neo-Cons", and the Miers Nomination

this is an audio post - click to play

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Tuesday, October 25, 2005

Points to Ponder:
(On the Myths of "Education", "Continual Progress", Etc. )

Nietzsche said the newspaper had replaced the prayer in the life of the modern bourgeois, meaning that the busy, the cheap, the ephemeral, had usurped all that remained of the eternal in his daily life. Now television has replaced the newspaper. It is not so much the low quality of the fare provided that is troubling. It is much more the difficulty of imagining any order of taste, any way of life with pleasures and learning that naturally fit the lives of the family’s members, keeping itself distinct fro the popular culture and resisting the visions of what is admirable and interesting with which they are bombarded from within the household itself.

The improved education of the vastly expanded middle class in the last half-century has also weakened the family’s authority. Almost everyone in the middle class has a college degree and most have an advanced degree of some kind. Those of us who can look back at the humble stations of our parents or grandparents, who never saw the inside of an institution of higher learning, can have cause for self-congratulation. But—inevitably but—the impression that our general populace is better educated depends on an ambiguity in the meaning of the word education, or a fudging of the distinction between liberal and technical education. A highly trained computer specialist need not have had any more learning about morals, politics or religion than the most ignorant of persons. All to the contrary, his narrow education, with the prejudices and the pride accompanying it, and its literature which comes to be and passes away in a day and uncritically accepts the premises of current wisdom, can cut him off from the liberal learning that simpler folk used to absorb from a variety of traditional sources...

When a youngster like Lincoln sought to educate himself, the immediately available obvious things for him to learn were the Bible, Shakespeare, and Euclid. Was he really worse off than those who try to find their own way through the technical smorgasbord of the current school system, with its utter inability to distinguish between important and unimportant in any way other than by the demands of the market? [Allan Bloom: From The Closing of the American Mind pg. 59 (c. 1987)]

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