Impartiality

When you don't have an argument, you can always just beg the question:

As a young senator involved in judicial nomination debates, Obama showed no deference to presidential choices. Instead, he developed a theory that Supreme Court justices should favor socially unfavored groups. He opposed John Roberts for using his skills "on behalf of the strong in opposition to the weak." He criticized Samuel Alito for siding with "the powerful against the powerless." Obama made these distinguished judges sound monstrous because they stood for the impartial application of the law.

That's Michael Gerson.  The jeune Obama has obviously alleged that the judges were "partial" to the interests of the powerful.  Obama is not, in fact, referring to Roberts's behavior as a judge.  But that's another point.  If one reads the whole passage (and not just the heavily elided selection featured on right-wing blogs), Obama addresses Gerson's "impartial application of the law" objection:

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court — adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts. 

The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

I talked to Judge Roberts about this. Judge Roberts confessed that, unlike maybe professional politicians, it is not easy for him to talk about his values and his deeper feelings. That is not how he is trained. He did say he doesn't like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.

I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.

As I tell my Critical Thinking class, it's just not that hard.  I just don't understand why Gerson can't do what every phil 101 student must do in order to earn a C.

More on straw men

A commenter points to this February Wall Street Journal piece by Karl Rove on straw men.  I know.  The very idea of that person criticizing anyone for slimy rhetorical devices is beyond ridiculous.  But in the interest of fairness, let's discuss it anyway.

I should say first of all (I should repeat actually) that it's not much of an achievement to find "straw men" in anyone's "political advocacy" discourse.  There is after all a rather significant difference between a pundit, writing in the calm, reflective light of reason, and a politician, advocating for this or that policy or action.  While pundits represent ideological points of view, they do so on the assumption (I believe, at least) that the best arguments have compelled them.  Politicians must be content, however, to achieve their policy objectives by moving people to action.  This motivational discourse involves different rules.  A politician, I think, of any variety, can be allowed to paint in broad strokes, especially when it comes to his opposition, without suffering the accusation of using a straw man.  

This genre confusion, I think, is what drives Rove's inane piece.  He confuses the broad strokes of a politician, in particular the use of "some," for straw man arguments.  "Some" may signal a straw man, but it need not.  Rove writes:

President Barack Obama reveres Abraham Lincoln. But among the glaring differences between the two men is that Lincoln offered careful, rigorous, sustained arguments to advance his aims and, when disagreeing with political opponents, rarely relied on the lazy rhetorical device of "straw men." Mr. Obama, on the other hand, routinely ascribes to others views they don't espouse and says opposition to his policies is grounded in views no one really advocates.

On Tuesday night, Mr. Obama told Congress and the nation, "I reject the view that . . . says government has no role in laying the foundation for our common prosperity." Who exactly has that view? Certainly not congressional Republicans, who believe that through reasonable tax cuts, fiscal restraint, and prudent monetary policies government contributes to prosperity.

Mr. Obama also said that America's economic difficulties resulted when "regulations were gutted for the sake of a quick profit at the expense of a healthy market." Who gutted which regulations?

Not naming one's rhetorical opponent in a political speech is not the same thing as a straw man.  And besides, these and the rest of Rove's examples are not straw men, in that there are people, Republican people, who make arguments that the government never ever created one single job, and so forth (see chairman of the GOP, Michael Steele).  Obama's not naming them does not entail he's making them up.

So, I would say, Obama (and Bush, etc.) deserve some leeway in the identification of their opponent, especially in the context of major political speeches.  Does this free them from the responsibility of fairly characterizing their opponents?  Obviously not.  The boundaries of fair play are just somewhat broader.

New York Times tries Critical Thinking 101 and then fails it

I was out of town for the weekend when Helene Cooper's abysmal analysis piece (On Obama's "straw men") appeared in the New York Times, so I'll pretty much just point everyone to discussions of it elsewhere.  It seems to have been largely written by Fred Barnes, a conservative columnist who has long been griping about Obama's alleged tendency to attack straw men.  Perhaps we ought to remember that the 2008 Presidential campaign pitted Obama against a set of candidates for whom the term "straw man" described their owns positions on most issues.  Nonetheless, Cooper writes:

WASHINGTON — Democrats often complained about President George W. Bush’s frequent use of a rhetorical device as old as rhetoric itself: creating the illusion of refuting an opponent’s argument by mischaracterizing it and then knocking down that mischaracterization.

There was much outrage in 2006, for example, when Mr. Bush said that when it came to battling terrorists, “I need members of Congress who understand that you can’t negotiate with these folks,” implying that Democrats backed talks with Al Qaeda. That assertion was promptly, and angrily, disputed by Senator John Kerry of Massachusetts.

Now that there is a new team at the White House, guess who is knocking down straw men left and right? To listen to President Obama, a veritable army of naysayers has invaded Washington, urging him to sit on his hands at the White House and do nothing to address any of the economic or national security problems facing the country.

There are those who say these plans are too ambitious, that we should be trying to do less, not more,” Mr. Obama told a town-hall-style meeting in Costa Mesa, Calif., on March 18. “Well, I say our challenges are too large to ignore.”

In order for an argument to be a straw man (speaking generally), it has to be (1) actually advanced as stated by no serious party in the current discussion and (2) a silly view no one would hold anyway (there are variations on this–the weak man and the hollow man).  As the following link will show, Cooper's article doesn't establish that either of the two requirements (and both are necessary, but not independently sufficient) have been met.  The press, for instance, spoke endlessly about whether Obama was "doing too much."  Two seconds of googling will give you tons of examples.  For more, see here.

When I say this stuff is not hard, I'm serious.  It's not.

Opposite marriage

Many are no doubt familiar with the saga of Miss California, an employee of serial net-worth exaggerator Donald Trump.  In case you're not, during a recent Miss America or Miss USA competition, she took a stand against gay marriage.  Here's what she said:

CARRIE: I think it's great that Americans are able to choose one or the other. We live in a land that you can choose same-sex marriage or opposite marriage and, you know what, in my country and my family I think that I believe that a marriage should be between a man and a woman. No offense to anyone out there but that's how I was raised and that's how I think it should be between a man and a woman.  

One interpretation suggests the first line there is disingenuous: she does not think it's great you can choose and doesn't think you ought to be able to choose.  Another interpretation suggests she personally favors opposite marriage for herself, but thinks it's great that others can choose.  Either way, she answered the question.

Not surprisingly, she seems to have drawn some fire by her remarks, especially from those who don't favor the sole choice of opposite marriage.  That's free speech, some of you liberals will say.  That's why we have it.

Enter professional contrarian Michael Kinsley.  He says:

SEATTLE — I want the next Supreme Court justice to share my views on the Constitution. I don't care how she looks in a bathing suit, or halfway out of one. Miss California is a different story. Her qualifications, as a general rule, should be up to the people of California. Here in the state of Washington, we expect our beauty-contest winners to be able to split a log and appreciate good coffee. But Miss California's views on gay marriage have nothing to do with her qualifications for the job and shouldn't disqualify her for it.

This is really Liberalism 101, and it's amazing that so many liberals don't get it. Yes, yes, the Bill of Rights protects individuals against oppression by the government, not by other private individuals or organizations. But the values and logic behind our constitutional rights don't disappear when the oppressor is in the private sector. They may not have the force of law in that situation, but they ought to have the force of understanding and of habit. The logic behind freedom of speech is that "bad" speech does not need to be suppressed as long as "good" speech is free to counter it. Or at least that letting the good and bad do battle is more likely to allow the good speech to triumph than giving anyone the power to choose between them. Congratulations to Donald Trump for making the right decision in this case. But we can't count on every employer to be as sensitive and understanding as The Donald.

The "disqualification" issue regards unrelated violations of the rules of the pageant.  As for the "liberals who do not get it," notice that Kinsley does not mention anyone by name.  Nor could he.  No one is arguing that Miss California's freedom of speech ought to be restricted.  The most extreme scenario suggests Miss California ought to have given a more coherent answer to a question.  But the Q&A, after all, is part of the contest, so the answer does in some sense matter (in what sense I don't know).  That the answer in some sense matters, or that Miss California has drawn criticism, doesn't amount to restricting her freedom of speech.

I think that's really just Critical Thinking 101.

Team players

I pick on "conservative" columnists a lot here.  I've noted elsewhere (click here) why this is so.  Now I am not the only one making this observation. From County Fair:

Last week, I noted that the numerical advantage conservatives have on the nation's op-ed pages doesn't tell the whole story:

There's a huge qualitative difference between the conservatives given newspaper columns and their progressive counterparts as well. The conservatives tend to be more partisan, more aggressive, and more reliable advocates for their "team."

The Washington Post employs as a columnist Bill Kristol, a hyperpartisan neocon Republican strategist who has been a key player in GOP efforts to block health care and start unnecessary wars. Who is supposed to be Kristol's counterpart? Richard Cohen, who opposes affirmative action, supports torture, and attacked liberals who opposed Kristol's war in Iraq?

Now, here's what you see if you turn to the op-ed page of today's Washington Post:

Former Bush speechwriter and current Post columnist Michael Gerson on "The Democrats' Assault on the CIA."

Conservative Post columnist Kathleen Parker on chaos in the GOP.

Former Bush aide Ed Gillespie, misleading readers about his party's historical reaction to Supreme Court nominees by Democratic presidents.

Centrist Post columnist David Ignatius on President Obama's approach to Israel

Liberal Post columnist Ruth Marcus writing about her new puppy.

So that's three conservatives, including two former Bush aides, a centrist, and a progressive. One conservative attacking Democrats, one conservative misleading readers about the Supreme Court and attacking Democrats, one conservative noting disarray in the GOP, and a liberal writing about her dog.

I invite those who hunger for balance on this page to produce the party-line liberal columnists in national newspapers.

Just saying

Today, I think we have a pretty straightforward case of "red herring."  This fallacy is classically described as occurring when one changes the subject of argument in order to derail criticism.  The red herring is another instance of the "no-inference-being-explicitly-drawn" kind of fallacy.  I think that's the trick that works on the mind of the red herring monger and the red herring.  The red herring monger isn't drawing any kind of illegitimate inference, "he's just saying." Let's take a look:

It began with the release of the Justice Department memos — a move opposed by CIA Director Leon Panetta along with four previous directors. Then, Attorney General Eric Holder Jr. did not rule out Justice Department cooperation with foreign lawsuits against American intelligence operatives. Then, House Speaker Nancy Pelosi accused the CIA of lying to her in 2002 about waterboarding, which she admitted learning about five months later anyway but did nothing to oppose because her real job was to "change the leadership in Congress and in the White House."

To stanch the CIA's bleeding morale, Democrats have tried reassurance. President Obama, speaking at CIA headquarters, took the Fred Rogers approach: "Don't be discouraged that we have to acknowledge potentially we've made some mistakes. That's how we learn." Yes, children, hypocritical congressional investigations and foreign kangaroo courts are really our friends. House intelligence committee Chairman Silvestre Reyes sent a sympathy note to Langley: "In recent days, as the public debate regarding CIA's interrogation practices has raged, you have been very much in my thoughts." There should be a section at Hallmark for intelligence operatives unfairly accused of war crimes.

That's the very Christian Michael Gerson, former Bush Speechwriter, who is beginning to sound like the very spiteful Charles Krauthammer.  Some Democrats (and some Republicans–no mention of them here) have leveled criticism of CIA methods and practices.  That's democracy, I think.  The question now is whether that criticism is deserved or not.  Did the CIA participate in war crimes?  I would like to know the answer to that question.  Did the CIA mislead the Speaker of the House of Representatives of the Congress of the United States of America?  That would be good to know.  But alas.  No such luck.  Michael Gerson is not interested in those questions at all, actually.

For he's worried about the effect on CIA morale that such criticism might have.  He is also concerned as to why Nancy Pelosi, Speaker of the House, didn't say anything (she couldn't) about the secret briefing at the time. 

Those are all great concerns, I think, but they aren't really what we're talking about.  Did the CIA, under orders from someone, commit war crimes?  No amount of what-did-Nancy Pelosi-know-and-when-did-she-know-it ought to distract us from that very simple question. 

In what sense?

"In what sense" has got to be one of the most basic philosophical questions.  It aims, at the very least, to get clear about what we're talking about.  Because, as it turns out, words and concepts and such have different senses.  Justice, for instance, seems to mean different things.  And it would be important to avoid obvious equivocations.  So, for instance, if I am talking about a normative notion of justice, and you come back at me with empirical observations about the criminal justice system, I will be confused.  This seems to be a really straightforward point.  But alas.  Here's Stanley Fish, The New York Times' idea of an intellectual:

I don’t think that’s the way it happens or could happen. Let’s say (to give a humble example from literary studies) that there is a dispute about the authorship of a poem. A party to the dispute might perform comparative analyses of the writings of rival candidates, examine letters and personal libraries, research the records of printers and publishers, look at the history of reception, etc. Everyone who engages in the dispute will do his or her work in relation to well-established notions of what counts as evidence for authorship and accepted criteria for determining whether or not the evidence marshaled is persuasive.

But suppose, you think (in the manner of Roland Barthes and Michel Foucault) that the idea of the individual author is a myth that emerges alongside the valorization of property and property rights so central to Enlightenment thought? Suppose you believe that the so-called author is not the source of the words to which he signs his name, but is instead merely a site transversed by meanings neither he nor any other so-called “individual” originates? (“Writing,” says Barthes, “is the destruction of every voice, of every point of origin.”)

I am not affirming this view, which has religious (“not me, but my master in me”) and secular (it is the age or zeitgeist that speaks) versions. I am just observing that there are many who hold it, and that for those who do the evidence provided by printers’ records or letters or library holdings will not be evidence at all; for they do not believe in the existence of the entity — the conclusively identified individual author — it aspires to be evidence of. If no one wrote the poem in the sense assumed by the effort to fix authorship, that effort is without a point and the adducing of evidence in the absence of something to be proved will seem quixotic and even perverse.

The example might seem to be to the side of the (supposed) tension between faith and reason, but it is, I believe, generalizable. Evidence, understood as something that can be pointed to, is never an independent feature of the world. Rather, evidence comes into view (or doesn’t) in the light of assumptions – there are authors or there aren’t — that produce the field of inquiry in the context of which (and only in the context of which) something can appear as evidence.

Holy Crap.  The "valorization" of property has an empirical component ("your property is valorized at less than it was valorized at before") and a normative component ("your property ought to be valorized at more than it was before") and a conceptual component (your property is valorizable), among other components.  The question for the literary studies people is whether some person x wrote some poem y.  This is an empirically verifiable fact–just ask Foucault's estate.  The question for Foucault, I take it, is whether such knowledge will tell us anything about anything (well, in particular, about the "meaning" of the poem.  They're different questions which Stanley Fish has hopelessly confused.

And he has confused these two different sorts of claim in order further to confuse the difference between the methods of faith and the methods of science.  They're not, to reorient the analogy where it should (!) be, talking about the same thing.  And to make this all a tomayto-tomahto question of evidence just ignores one pretty basic philosophical question.