Sweet Charity

Charity is a basic principle of rational and civilized discourse. Weíve talked about it here many times. Failing to be charitable to an opponentís argument is playing dirty, playing dirty is a form of cheating, cheating is a form of deliberate dishonestyĖi.e., lying. So being uncharitable is a kind of lying. How is one uncharitable? There are many ways. The most typical form is to characterize an opponentís argument in an unfavorable light. Another more greviously dishonest formĖone we see today from George WillĖis to pick out only a small part of that argument and claim youíve fairly or accurately represented the whole (when you havenít). Arguments are not like sports matches: while you canít (unfortunately) get disqualified for cheating, you canít ever win by dishonest means either.

That said, letís compare Feinsteinís argument with Willís characterization of it. First, Will:

>Dianne Feinstein’s thoughts on the nomination of John Roberts as chief justice of the United States should be read with a soulful violin solo playing, or perhaps accompanied by the theme song of “The Oprah Winfrey Show.” Those thoughts are about pinning one’s heart on one’s sleeve, sharing one’s feelings and letting one’s inner Oprah come out for a stroll.

Here is how Feinsteinís speech began:

There is no question that Judge Roberts is an extraordinary person. I think there is no question that he has many stellar qualities, certainly a brilliant legal mind and a love and abiding respect for the law, and I think a sense of its scope and complexity as well.

But before taking the momentous step of agreeing that a nominee serve as the Chief Justice of our Supreme Court, for what in this case could be over 30 years, I wanted to have a reasonable sense of confidence that he would uphold certain essential legal rights and protections that Americans rely on, and rights that reflect the values and ideals that make our country so great.

I donít ask for certainty.

I donít ask for promises Ė especially as to how a nominee would rule in any case in the future Ė even one as important as Roe v. Wade.

But I ask for some ability to find a commitment to broad legal principles that form the basis of our fundamental rights:

* Equal protection under the law, and the ability to remedy discrimination.

* A basic right to privacy that extends from the beginning of life to the end of life.

* The ability of the American public to elect representatives that have the constitutional power and authority to protect and respond to Americaís safety, social, and environmental needs; and

* A view of Executive Power that extends deference Ė but within the law.

Itís important to know that a Justice will be willing to at least start with these fundamental rights.

In making the judgment as to how Judge Roberts evaluates these fundamental rights, I must start with his record.

This hardly seems like the episode of *Oprah* Will suggests that it is (besides, what’s wrong with Oprah?). But how is it that Will makes it seem so vapid? For the sake of brevity–we’ve seen too much of this tripe from Will in the past–we’ll give two examples from Will’s argument. First, by way of response to some remarks about the (so-called) right to privacy, Will rhetorically questions:

>But what would make such a right a “general” right? Do Americans have, say, a constitutional privacy right to use heroin in the privacy of their homes? No. To sell prostitution services in the privacy of their homes? No again.

One would hardly think that criminal activity is covered by a ďgeneralĒ right; we have a general right to freedom of speech, but that does not include yelling fire in a crowded theater or inciting riots. No one other than a mind as nimble as Willís would think that such things would follow from the assertion of a general right of privacy (or for that matter, would think that someone else thinks so). But for the sake of clarity and completeness, to draw such conclusions would be to commit the fallacy of accidentĖthe clueless misapplication of a general rule.

But in a more general sense (this is our second example), Will woefully invents Feinsteinís main argument (the thesis of which we quoted above):

But the crux of Feinstein’s case against Roberts concerns not the adjective “general” but his general deficiency of empathy. Specifically, she faults his failure to talk to her “as a son, a husband, a father,” and to understand “the importance of reaching out.”

Exploring Roberts’s “temperament and values,” Feinstein asked him about “end of life” decisions, urging him to talk to her “as a son, a husband, a father.” Instead, she says disapprovingly, he “gave a very detached response.”

Itís difficult to look this stuff up (see the above link), so we were able to see if Will accurately quoted Feinstein. Nope, here is what she actually said:

Then when I couldnít get a sense of his judicial philosophy, I attempted to get a sense of his temperament and values. And I asked him about end of life decisions Ė clearly, decisions that are gut-wrenching, difficult, and extremely personal.

Rather than talking to me as a son, a husband, a father Ė which I specifically requested that he do. He gave a very detached response.

The reader will notice whatís missing from Willís selective quotation. Feinstein specifically asked that Roberts respond to that question because he failed to respond (to Feinsteinís satisfaction) to other more relevant questions about his judicial philosophy. In the end, Feinstein may have a terrible argument, perhaps George Will should direct his efforts at that. Then again, why bother? The confirmation of Judge Roberts is a forgone conclusion. Picking on Feinstein at this point is almost like a late hit in a football game.