AFGHANISTAN: ARGUMENT FOR STAYING; SUPERARGUMENT FOR GETTING OUT

After impressively long and careful reflection, President Obama has decided to stay in Afghanistan, with reinforcements. It is easy to understand how he could have found the argument for staying a compelling one. To leave would jeopardize whatever progress the United States has made in fostering the powers of the Afghan government to keep order, leave the Afghan popoulation (in particular Afghan women) subject to oppression; and no doubt encourage the Taliban and Al Quaeda to redouble their efforts to undermine United States policy elsewhere in the world. The trouble is that this argument, at this level of logic, is incomplete. It does not take into account, as a superargument on the next level of logic up would, the possibility that the argument for staying will be just as compelling at every reiteration in an unending succession of repetitions. That sort of reiteration kept the Vietnam War going; and trench warfare in World War I. Has the possibility of reiteration in respect to Afghanistan been evaluated as carefully as it needs to be? Is there present evidence that, even if some improvements are attained by present military policy, there will be grounds for a compelling reiterated argument next year and the year after, and so on indefinitely? If so, should we not get out now?

A JUST HEARING EVEN FOR THE UNRULY AND INDECOROUS

12 September 2009
A JUST HEARING EVEN FOR THE UNRULY AND INDECOROUS
The media have handled Joe Wilson’s breach of decorum ineptly. On the first day, the PBS Newshour made no distinction between the breach of decorum and the misrepresentation that Wilson’s charge of lying amounted to; or for apologizing about the breach and apologizing about the misrepresentation. The President, quick to dampen down the outrage and characteristically conciliatory, did not help matters by ignoring the issue about an apology on the latter point. A clear distinction between the two issues emerged on Olberman’s talk show the next day. Olberman made it clear that Wilson had not apologized about the misrepresentation; and that there was no basis in the President’s plan for thinking that it was intended to have insurance cover illegal immigrants. Olberman went further; he cited a passage from one of the bills that specifically forbade such coverage. Unfortunately, that is not, logically, the end of the matter. For which of the several bills before Congress did the forbidding? And what were the two amendments that Wilson cited as the basis for his belief that illegal immigrants were to be covered? There may well be nothing to them, or at least nothing to show that the President supports them. However, the point should have been followed up and clarified.

A LOOK BACK AT THE SOTOMAYOR HEARINGS

20 July 2009

The hearings, among other drawbacks, failed to observe the distinction between easy cases, in which what the Constitution prescribes is unambiguous and unmistakable, and the harder cases in which judges have to choose among interpretations of the Constitution in some particular connection. The easy cases – for example, whether any state can be deprived of equal representation in the Senate – rarely come before the Supreme Court, and would invite unanimous decisions if they did. The Court typically divides on the harder cases. It does so conscientiously; at least all the justices will claim that they are deciding the cases with fidelity to the law, to use Sotomayor’s motto. What does that mean, however? Circumstances have changed radically since the Constitution was drawn up: Does the Second Amendment apply to personal ownership of assault rifles? Machine guns? Anti-tank guns? Does the First Amendment protect personal liberty as well in a society in which almost all people are, not an independent farmers, but employees dependent on the good will of their employers? Do employees need more legal protection for economic security than independent farmers? The Sotomayor hearings hardly made a beginning at sorting out such issues and considering how judges or justices should approach such issues. It is typical, however, in this and other connections that our political system falls down in sorting out issues.

THREE LITTLE WORDS

The White House has chosen to back away from Sotomayor's (one-time) claim that "a wise Latina" might be a better judge than a white male by saying that she made a poor choice of words. This suggests mainly using a word out of place, like calling the bankers and brokers who profited from trading in derivatives "embezzlers." But "a poor choice of words" might also mean using too many words or using too few. Sotomayor used too few. If she had simply qualilfied her claim for a wise Latina judge by limiting it expresslky to being a better judge "in some cases" -- three little words -- she would have made an interesting and defensible claim, and one that could have led to an illuminating debate, though not with the blowhards who took the lead in attacking her.

REPUBLICANS GONE CRAZY ON SOTOMAYOR

According to an ancient saying, "Those whom the gods mean to destroy, they first drive mad." For the safety, not to speak of the sanity, of their party Republicans are running too close in their attacks on Sotomayor to fulfilling this saying. The unspeakable (but continually speaking) Rush Limbaugh declaims that the only reason for nominating her to be a justice on the Supreme Court is that she is an ethnic activist (in short, a racist). One cannot presume in Limbaugh's case that he realizes to say as much is a lapse in logic, disregarding her outstanding educational qualifications or her long and varied experience as a private litigator, as a federal trial judge, as a judge in a federal appellate court. It is crazy to disregard these grounds for nominating her. However, other Republican spokesmen have been equally crazy, taking the qualifications up but belittling them. It is crazy to call Sotomayor not intelligent enough for the job in the face of her summa cum laude degree at Princeton and her brilliant record at Yale Law School. Those are not perhaps entirely perfect tests (I believe that the first President Bush was elected to Phi Beta Kappa at Yale), but what better ones do the critics have in mind? It is crazy to disregard her legal experience as a litigator, trial judge, and appellate judge. On this and the other points about qualifications, the craziness has two dimensions: first, flying in the face of the known standards of judgment; second, wounding the justified pride of the Hispanic community in Sotomayor's accomplishments. Senators Cornyn and Sessions seem aware of this and are trying to steer a different course. One suspects, however, that the damage to the prospects of the Republican Party in winning votes from Hispanics has already been done.

TRUE OR FALSE, LET'S KILL PEOPLE

Some commentators have specially deplored the use of torture by the Bush-Cheney administration to discover if possible a link between Al Quaeda and Saddam Hussein. They have rightly pointed out that the (dubious) justification that the information sought would save American lives from an imminent threat does not apply in this case. What was at stake was giving some color to the Bush-Cheney pretexts for invading Iraq. However, they have gone too far (Olberman in particular has gone too far) in suggesting that in this use of torture Bush-Cheney were seeking a false confession that would give them color. They would have been happy enough to have a link between Al Quaeda and Saddam Hussein established by a true confession. What they were guilty of in this instance -- guilty many times over as the tortures of the victim were repeated -- was ignoring the evidence that torture is all too likely to lead to a false confession; and not caring whether the confession was true or false, so long as it served their purposes. That is damnable.

LOOK BACK TO PROSECUTE: OBAMA'S SUBTLE STRATEGY?

From time to time, as various commentators have multiplied daily instructions to Obama about what to do, it has occurred to me that they mght be having some difficulty dealing with him because he is smarter than they are: smarter than David Brooks, for example, and smarter than Keith Olbermann or Rachel Maddow. Relfecting on my post yesterday under the title "Look Back to Prosecute," I wonder if I myself have been caught off guard and failed to allow duly for his subtlety. He is more than smart enough to know that it is a bad argument to say that going back to the past would be accomplish nothing in dealing with crimes like torture; and smart enough to have thought of the obvious rebuttal, which is pointing out that, generally speaking, crimes of all sorts have to be investigated and prosecuted by going back to the past. Has he set things up so that he is on record as being strongly disinclined himself to generating prosecutions of the people responsible for policies of torture; but ready to accept an independent decision to proceed by the Attorney General (or by Congress)? If so, he may succeed in minimizing the rage that will be directed at him regarding this issue by people who supported the former administration; and at the same time minimizing the opposition, strong among some of his key supporters, to letting the torture-generators off with impunity. He will be in a more favorable position to push for his grand reforms in health care, education, and energy.