The Simple Reason Kavanaugh Does Not Deserve to Be on the Supreme Court

If you wondered what people mean when they talk about white male privilege, you have to look no further than Kavanugh's testimony yesterday.

I was sick yesterday and was sleeping all but a few hours of the day, so my impression of Kavanaugh was gleaned from just twenty minutes or so of his testimony. (I saw nothing of Dr. Ford.) He made me think of Navy Seals who train here in San Diego. 

There are 2,500 Seals. It's a real honor and it is incredibly tough to become one. They are (rightfully) so proud when they make it and nobody thinks they deserve it. You have to earn that and the program is designed to weed out people. Designed to. And when they've made it they feel this combination of pride and honor when they realize what they've achieved. A friend of mine broke a bone in the training / audition process and was thrown out. Nobody owes you a place in the Seals. It's like making it into the NBA. It's not enough to be athletic, tall, calm in the face of adversity, fit, driven, a team player, competitive, a great shooter, etc. You have to be all of those to varying combinations. And there is no inside track; Michael Jordan's sons did not make it to the NBA and nor did his best friends from college.

The Supreme Court is so much more elite than the Navy Seals. Only 9 members, not 2,500. And it is an appointment for life, not just a few years. It makes sense to me that qualifying for the Supreme Court would be an incredibly demanding process. Any little thing should be enough to throw one's nomination into question in the same way that someone would be thrown off a list of top 10 NBA players for being a great player except not able to consistently hit a 3-point shot. It doesn't take much to keep you off the starting team and even less - far, far less - to be kept off the top 10 list.

So people questioned whether Kavanaugh really deserved to be there. They threw in one extra round of questioning. For a lifetime appointment.

Kavanaugh couldn't make it through one extra round of questioning without becoming rude (to senators?), angry, and crying? Really? This is how tough he is? And he was obviously outraged that anyone would dare to question whether he deserved to be on the court. Really? Not honored to be included but outraged to be questioned as to whether he should be included. That sense of entitlement baffles me. White male privilege, if it is anything, is this sense that I deserve this and you have to convince me why I don't. It's the opposite of, "I'll do everything I can and it still may not be enough. Oh, and if I do make it I'll feel so incredibly honored." Maybe it is a product of having never gone to public school. Maybe it's the product of being connected his whole life. He demonstrated none of the wisdom, the self awareness, or ability to remove his emotions from his judgement that one would expect of the most powerful judge in the country. If this was a tryout for a team, he missed all the 20-footers after making his layups the week before. We should expect more of someone supposed to be in the top 10.

Bill Clinton and George W. Bush put up with 8 years of steady criticism. Some of it highly personal. Some of it unfair. Attacks on character, their past, their intentions, their judgement, their intelligence, morals, etc. 8 years and I never saw an emotional outburst like this. Kavanaugh did not make it through 8 minutes of being challenged without expressing a real outrage that anyone would question whether he was qualified to hold one of the most powerful positions in this country. For life.

I felt like he should be eliminated for his obvious contempt for being questioned as to whether he deserved this incredible honor of a lifetime appointment to the highest court in the land.  He doesn't have the emotional intelligence to deserve that much power. I was aghast.

And then I went back to sleep.

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After posting the above, I saw this from my Senator.

https://twitter.com/SenFeinstein/status/1045708646527782915

Conservatives are Just Obsolete Liberals (The Supreme Court We Will Have for the Next Generation)

In this week's decision to support the president's immigration ban on 7 countries, Chief Justice John Roberts ruled that the Supreme Court's 1944 ruling upholding FDR's internment camps for Japanese Americans - Korematsu vs. United States - "was gravely wrong the day it was decided." It didn't seem that way at the time, of course, but 74 years later it seems obvious. This is how progress works.

About Trump's immigration ban. Trump made it clear that he wanted to ban Muslims. The minority position was that his tailoring the words in the ban to make his religious discrimination less obvious was irrelevant: this was still religious discrimination and thus unconstitutional. The majority ruled that the president has this kind of power and that his previous words about this being a religious ban didn't matter.

Two things about this.

One, with Kennedy's retirement due soon, the Supreme Court will be dominated by conservatives for probably the next quarter of a century. Kennedy was a swing vote and Trump will surely replace him with someone very conservative. Through roughly 2040 - at least - we will get Republican decisions from the court. This seems inevitable to me. So we may as well get used to this. It will likely be going on until I die.

Two, conservatives do eventually come around. Conservatives did not believe in religious freedom. At first. Now they do. Conservatives did not believe that the power of kings should be usurped by representative legislatures and democratically elected executives. Now they do. Conservatives believed that the race of American citizens (the Japanese interned in camps, for instance) was sufficient reason to imprison them. Now - 74 years later - they don't.

Conservatives have the same beliefs as liberals. They just hold them for one to three generations longer. So, even this conservative (and soon to be even more conservative) Supreme Court will eventually catch up with the times. It is rather stupid to have rotary dial phones when you can have touch pad or touch pad phones when you can cellular flip phones or cellular flip phones when you can have smart phones but at least Americans will eventually get the latest policy .... about a generation or two later than it is available.

The Attempt to Take the Judgement Out of Judging

Just call the pitches as balls and strikes, the tired analogy goes. Don't let judges act as legislators. They should, instead, be impartial interpreters of the law.

"Thou Shalt Not Kill," is one of the earliest surviving examples of a law. The text is pretty simple. Don't kill. The context makes it a little more subtle. So, in the context of war should you not kill? Conscientious objectors believe that. Do you have license to kill if you're hungry? Vegetarians don't think so. Can you kill in self defense? Or if you're really angry? 

All legal text gets applied to a situation in a particular context of actions, intent, social norms and historical precedent. Those change from situation to situation and evolve over time. A judge has to consider this context when making judgement on the text or law.

Acting as a judge inescapably involves making judgments. To pretend that it doesn't shows really poor judgement. 

Sex (X) and Violence (R)

"What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman - bound, gagged, tortured, and killed - is also topless?"
- Justice Stephen Breyer in the dissenting opinion to the recent Supreme Court ruling on video games.

Still I am baffled by how this country rates entertainment. If you were to walk in on your neighbor's teenager having sex, you might freak out or blush but you won't be permanently scarred or call the cops. By contrast, if you walked in on this minor torturing or killing someone, you would be psychologically jolted - perhaps permanently scarred - and call the cops. Most people go their whole life without acts of violence yet few go their whole life without sex.

And yet when it comes to entertainment, we rate sex X and rate violence R. Bizarre.

Wouldn't it be a better planet if politicians were forced to resign over war scandals rather than - or at least along with - sex scandals? Obviously I'm warped. Oh well, at least Breyer shares my bafflement.

Oh, and then Jon Stewart does a much better job of illustrating the absurdity of this ruling in this:

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Fun Facts About John Paul Stevens

For some reason I find this little tidbit fascinating: if Supreme Court John Paul Stevens is replaced by someone who is not a Protestant, for the first time in our history our Supreme Court will be completely made up of non-Protestants.

Currently, we have 6 Catholics, 2 Jews, and 1 Protestant serving on the Supreme Court.

I also find it interesting that although John Paul Jones was born more than a quarter century AFTER John Paul Stevens, Jones retired from Led Zeppelin in 1980, more than a quarter century BEFORE John Paul Stevens retired from the Supreme Court. I'm sure that this says something profound about the lifestyles of rock stars and Supreme Court justices.

Women & Injustice at the Supreme Court

"We have to free half of the human race, the women, so that they can help to free the other half."
- Emmeline Pankhurst

This weekend I managed to spoil an increasingly rare and initially pleasant family meal. I confronted my adult children about some facts. The result was more harmful than helpful. And my wife's emotional intelligence proved more important to our children than my facts and logic. Which brings me to the Supreme Court.

Ruth Bader Ginsburg is making an appeal to have another woman on the Supreme Court. She argues that women's understanding of gender discrimination, in particular, is different from men's. Since Bush replaced Sandra Day O'Connor with Samuel Alito, our supreme court has had only 1 woman. By contrast, 4 of the 9 Canadian Supreme Court Justices - including the Chief Justice - are women.

Oddly, claiming that there is no real difference between men and women is one way to discriminate against women.

If women think about things no differently than men, it really doesn't matter whether we include them in decision-making groups like the Supreme Court. Their views will be represented because any intelligent woman would reach the same conclusions as any intelligent man. Or so this argument would suggest.

Yet women are different - in ways that ought to influence policy and judgement. Women's brains have about 10% more neurons for language and more for emotions as well. They are better at communication and emotional understanding - both in terms of reading emotions and expressing them. Women are not shorter versions of men. They are different and it seems that pretending they are not is one of the more subtle ways of discriminating against them.

The term "court" comes from the king's court. One key to establishing the authority of early monarchies was gaining a monopoly on judgment. If there was no other authority to whom one could appeal, it was harder for people to challenge the monarch's power. Coming from that tradition, it is no mystery that the courts are very conservative, in terms of defending the status quo and the existing social system.

One reason that W. Edwards Deming opposed grades in schools is that grading the performance of student in a system makes the assumption that it is not the system that needs changing. Yet as we learn more about how people learn, we realize that different kinds of brains require different styles of learning. People love the story of Einstein's early struggle with education - being labeled slow by a teacher so steeped in the style of late 19th century education as to have missed the budding genius in his class. But far more struggling students never do bloom. I rather optimistically think that in the future, we will become more adept at educating more types of brains. For now, I think that failure to teach more children how to become fluent at a foreign language or master some particular level of math is a failure of the education system at least as much as it is a failure of those particular children.

If our society is failing to appoint more women to positions of power, it could be that women are lesser. More probably, women are different. And in ways that our systems fail to accommodate or acknowledge.

Bader Ginsburg's suggestion that we appoint more women to the Supreme Court ought to be heard. Any household where only the man's judgment is heard is one where a great many facts are overlooked - facts about human reality at least as real as any that can be demonstrated with scientific evidence.

It may be that we go through three stages of gender rights. In the first, we acknowledge differences but dismiss women as lesser. In the second, we pretend that there are no differences, a position that still rather conveniently allows us to deny them authority. In the third, we acknowledge those differences and simply demand that our social systems be changed to benefit from those differences rather than squelch them.

We're in the 21st century now. We should not have to still point out that any system that represents women as one of nine is a failed system - not a failure of women.

Clarence Thomas Opens Up

From Harper's Index:
Number of words spoken by Clarence Thomas during Supreme Court oral arguments since February 2006: 132
Number by Samuel Alito, the Justice who spoke the second-fewest words: 14,404

Thomas received an advance of $1.5 million for his new book, and Dahlia Lithwick reports that it is,

the largest advance ever paid a sitting Supreme Court justice and that the agreement with this most conservative justice on the court coincidentally came from News Corp., the leviathan media empire owned by the conservative Rupert Murdoch.

This raises the obvious question of whether all taciturn people could be prompted to open up with a million dollar advance or, anticipating that his words would be so valuable, Thomas was merely reluctant to offer them up for the paltry government salary of only $203,000 a year, holding out for a better offer for his opinions. (Of course, Clarence has done pretty well in his government job. If his publisher had paid as much per word as his government employer, his advance would have been more than $200 million.)

Experts Call Chief Justic Roberts Idiopathic

Chief Justice Roberts suffered what doctors are calling "a benign idiopathic seizure."

Expert Bernard Benoit said that such a condition follows from a series of idiopathic decisions. "An idiopath, like a sociopath, makes decision that follow from an oddly idealistic notion of the world rather than the facts," Benoit claimed. "The seizure is benign even though the decisions themselves can be rather malignant."

During his tenure as Chief Justice, Roberts has led the Supreme Court to rulings that have argued against student's having freedom of speech even when off school property and have decided that even substantiated instances of sexual discrimination in the work place don't hold unless the claimant sues before being aware of the discrimination.

"The seizure is called 'idiopathic,'" clarified Benoit, "because it is the brain's attempt to purge itself of a series of really idiotic decisions. Think of a wet dog shaking dry and you'll get some sense of the brain mechanism."

The Power of Priestly Robes

About a month ago, Joshua Bell performed live in the subway. As arguably the premier violinist in the world, he might earn hundreds of thousands for a live performance at Carnegie Hall. The Washington Post was curious - would his performance attract attention from the rush of commuters hurrying to or from work?

The answer seems to be, no. Bell ended up with $32 in his case and most people who passed by him didn't recognize his playing as anything special. Absent the context of a concert hall and the social signals that screamed - this man is important, pay attention to him! - most people thought him rather unimportant and paid him little or no attention.

Judges know this. It is no coincidence that historians speak of the "royal court." One key to the nation-state's ascension to the point of having a monopoly on law and its interpretation was the promotion of the king's court as the true arbiters of justice.

For centuries, people have bowed their heads to the pronouncements of men in robes. It is no mystery why the Supreme Court would borrow from the wardrobe of priests and the architecture of the ancient Greeks. The trappings of ancient wisdom and revelation serve to make pronouncements that might otherwise seem arbitrary sound authoritative instead. To have 9 people at the diner counter opine about gender discrimination would lack the authority of pronouncements from an elevated dais.

The president of the U.S. decides who is worthy of Carnegie Hall performance, his utterances having the force of law, and who stays at the coffee shop diner, his utterances to be ignored by the waitress.

All that simply to say that this week's ruling by the Supreme Court would have been dismissed by any hard-working waitress with a sense of justice.

Lilly Ledbetter sued her employer, Goodyear Tire & Rubber, for gender discrimination. A jury agreed with her that her pay of $5,000 a year less than the lowest paid male peer was unfair and awarded her back pay and damages. The Supreme Court, in a 5-4 ruling, disagreed, stating that litigants had to sue within 180 days of the act of discrimination. Barring the fact that this seems to ignore the obvious problem of dating a pattern of discrimination, the ruling rested on the oddest precedent.

In 1991, a bipartisan majority of Congress passed a Civil Rights Restoration Act, reversing a series of decisions made by a conservative court. Conservatives argue against activist courts, stating that the role of courts is to interpret laws passed by congress, not make law. Yet this week, the Supreme Court ruling cited as precedent the decisions reversed by Congress's 1991 law.

If only men like Samuel Alito and Antonio Scalia were normal old men, sitting at the diner counter sipping coffee between talk about how women have gone too far, their odd opinions would be something the sore-footed waitress could shake her head at. As it is, they determine how this waitress is treated. Perhaps it is time to dress the court in Bermuda shorts and polo shirts. At least then their decisions would seem more honest than utterances from men dressed like priests or ancient philosophers.

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For Slate's Richard Thompson Ford's take on this see:
The Supreme Court mixes up intending to screw over your employee and actually doing it.