Random thoughts from the past week
Since it's been a while between posts, I thought I'd give you, in no particular order, a hodgepodge of observations on various happenings.
1. Kelo was rightly decided under Supreme Court law, and (former) Justice O'Connor's jurisprudence is risible. Not only does she adopt silly, unprincipled balancing tests to decide most difficult issues but, when she does develop a relatively clear standard for something - see, e.g., Midkiff for O'Connor's "rationally related" standard for the "public use" portion of the takings clause, she doesn't follow it to its logical conclusion. Her legacy should be one of legal and logical ambivalence. Always ready to reach a reasonable, prudentialist type result, O'Connor never developed a coherent judicial philosophy, unless one takes all this balancing nonsense seriously and not for what it truly is: ad hoc legal decision making. Ad hoc decision making does not constitute a jurisprudence worthy of adulation. Rather it represents an absence of a judicial philosophy. This is the position you reach once you have given up trying to formulate a coherent approach to legal issues.
You might think it odd that I, an avowed consequentialist, should have such a strong reaction to cost-benefit / balancing legal analysis. But I do. Here's why: No one has any reason to believe that CBA reasoning is required, let alone permitted, by the Constitution. The nature of the rights specified seem decidedly unconsequentialist in nature. Our Constitution takes, to use Phillip Petit's terminology, a "principle honoring" view of rights. This is to say that the very few rights it bestows negatively on the population by limiting government are not such that the government can disregard them when some relevant value is better promoted by disregarding them. Anyway, I'll one day write more on this. And of course, I'll more thoroughly explain myself if a reader requests that I do so.
2. A debate on my school's webmail system over the role of race and gender in judicial appointments has led me to make the following tangentially relevant remarks: If all else being equal you would promote to the Court a woman over a man or a minority- however defined-over a non-minority because that woman or minority is a woman or a minority, you are a racist or sexist. Now those are loaded words and usually they convey some sort of animus on the part of the racist or sexist. But I think I'm not too far off, if I've missed the mark at all. What I'm saying isn't that radical, although it is strongly worded.
Here's an attempt to clarify and defend the above definition. Consider the following individuals:
1. An individual who wants a woman promoted over a man even if given some definition of qualified the man is more qualified or equally as qualified, he would not be a sexist under the definition I gave if his desire is fueled by a belief that promoting a woman is a means to the end of, say, motivating more women to enroll in law school.
2. Imagine a sociopath burns a cross on a black couple's lawn with full understanding of what this will mean to the couple and community at large. This person, it would seem, is no less a racist than the KKK member who does so, even though animus does not accompany his action. This, I believe, helps to show that my definition does not stray too far from normal usage of "racist." I could give similar examples of "sexist" acts but I don't feel like thinking anymore right now. I'll leave it to your imagination.
A more general restatement of my definition: One is a racist or sexist if solely for the sake of having more women or more minorities or non-minorities on the Court one wishes to see some individual promoted. I tend to think that many liberal thinkers who want to see minorities and women promoted do not see gender and racial diversity as ends in themselves but rather as means to desirable social or legal consequences. But, then, I'm not aware of very much serious empirical research demonstrating that having more minorities or women on the Court or anywhere else for that matter will further or has furthered desirable goals, whatever those may be, or indeed has any effect at all. (I will note an exception to what I just said: A classmate of mine has performed some admirable research on females in the judiciary and shown it does have a statistically significant effect on case outcomes.) An apparent lack of empirical evidence to back up firmly rooted beliefs that promoting diversity by promoting minorities and women to positions of power furthers goals other than making groups more diverse according to some objective metric - e.g., the number of latino judges in the ninth circuit, leads me to believe that people who ardently push for such measures do so simply for the purpose of promoting more minorities or women or midget children of divorce, which makes them racist or sexist or midgetist, respectively. The good news is that I'm an ontological relativist and coherentist, which makes me perhaps surprisingly empathetic, so it's unlikely I'll sever relations with such people.
1. Kelo was rightly decided under Supreme Court law, and (former) Justice O'Connor's jurisprudence is risible. Not only does she adopt silly, unprincipled balancing tests to decide most difficult issues but, when she does develop a relatively clear standard for something - see, e.g., Midkiff for O'Connor's "rationally related" standard for the "public use" portion of the takings clause, she doesn't follow it to its logical conclusion. Her legacy should be one of legal and logical ambivalence. Always ready to reach a reasonable, prudentialist type result, O'Connor never developed a coherent judicial philosophy, unless one takes all this balancing nonsense seriously and not for what it truly is: ad hoc legal decision making. Ad hoc decision making does not constitute a jurisprudence worthy of adulation. Rather it represents an absence of a judicial philosophy. This is the position you reach once you have given up trying to formulate a coherent approach to legal issues.
You might think it odd that I, an avowed consequentialist, should have such a strong reaction to cost-benefit / balancing legal analysis. But I do. Here's why: No one has any reason to believe that CBA reasoning is required, let alone permitted, by the Constitution. The nature of the rights specified seem decidedly unconsequentialist in nature. Our Constitution takes, to use Phillip Petit's terminology, a "principle honoring" view of rights. This is to say that the very few rights it bestows negatively on the population by limiting government are not such that the government can disregard them when some relevant value is better promoted by disregarding them. Anyway, I'll one day write more on this. And of course, I'll more thoroughly explain myself if a reader requests that I do so.
2. A debate on my school's webmail system over the role of race and gender in judicial appointments has led me to make the following tangentially relevant remarks: If all else being equal you would promote to the Court a woman over a man or a minority- however defined-over a non-minority because that woman or minority is a woman or a minority, you are a racist or sexist. Now those are loaded words and usually they convey some sort of animus on the part of the racist or sexist. But I think I'm not too far off, if I've missed the mark at all. What I'm saying isn't that radical, although it is strongly worded.
Here's an attempt to clarify and defend the above definition. Consider the following individuals:
1. An individual who wants a woman promoted over a man even if given some definition of qualified the man is more qualified or equally as qualified, he would not be a sexist under the definition I gave if his desire is fueled by a belief that promoting a woman is a means to the end of, say, motivating more women to enroll in law school.
2. Imagine a sociopath burns a cross on a black couple's lawn with full understanding of what this will mean to the couple and community at large. This person, it would seem, is no less a racist than the KKK member who does so, even though animus does not accompany his action. This, I believe, helps to show that my definition does not stray too far from normal usage of "racist." I could give similar examples of "sexist" acts but I don't feel like thinking anymore right now. I'll leave it to your imagination.
A more general restatement of my definition: One is a racist or sexist if solely for the sake of having more women or more minorities or non-minorities on the Court one wishes to see some individual promoted. I tend to think that many liberal thinkers who want to see minorities and women promoted do not see gender and racial diversity as ends in themselves but rather as means to desirable social or legal consequences. But, then, I'm not aware of very much serious empirical research demonstrating that having more minorities or women on the Court or anywhere else for that matter will further or has furthered desirable goals, whatever those may be, or indeed has any effect at all. (I will note an exception to what I just said: A classmate of mine has performed some admirable research on females in the judiciary and shown it does have a statistically significant effect on case outcomes.) An apparent lack of empirical evidence to back up firmly rooted beliefs that promoting diversity by promoting minorities and women to positions of power furthers goals other than making groups more diverse according to some objective metric - e.g., the number of latino judges in the ninth circuit, leads me to believe that people who ardently push for such measures do so simply for the purpose of promoting more minorities or women or midget children of divorce, which makes them racist or sexist or midgetist, respectively. The good news is that I'm an ontological relativist and coherentist, which makes me perhaps surprisingly empathetic, so it's unlikely I'll sever relations with such people.
posted by Mr. Misanthropic at 12:03 PM
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