The Crime of the Century

WHITECOLLAR REDNECK

Wouldn't tomorrow be a great night to break into Prof. Henry Louis Gates Jr.'s house? First of all, you know he's going to be out of town at the beer summit, second of all you can be pretty sure that neighbor lady isn't going to be calling the cops again if she sees any funny business next door, and third of all you can be damned sure the Cambridge cops aren't going to respond to another Gates residence break-in alert anyway.

And just in case someone does rob the place tomorrow, I can tell you right now I will have an alibi. I have a dinner scheduled.

Empathy and Law: A False Dichotomy

PHUTATORIUS
As the Sotomayor confirmation hearings continue this week, and as folks like Jeff Sessions get all worked up about (1) President Obama's invocation of "empathy" as a quality we'd like to see in the judiciary, and (2) whether it's reasonable to suggest that a person's background and life experience might have something to do with what they would decide as a life-tenured judge, it's important, I think, to introduce just an eensy-weensy bit of reality and perspective to the discussion.

Now I know that "reality" and "perspective" are natural enemies of the sort of feigned outrage we're seeing from Sessions, who is, apparently, the GOP's attack dog here. So to suggest that the Junior Senator of Alabama constrain himself to these values is sort of like asking a bulldozer to pause and consider the structural integrity and refinement of the building in front of it. But we're all about lost causes here at Feigned Outrage. (So says Google Analytics, anyway.)
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The right-wing talking point goes like this: Judges shouldn't act on mushy concepts like "empathy." They should follow The Law. And if they act on "empathy," they're not following The Law, and they're suddenly — and this is a beloved bromide of the judge haters — "making law rather than applying the law."

And of course anyone who knows anything about how the law works — and this should include you, Senator Sessions, given that you were once Alabama's Attorney General — would know that it is an exceedingly rare occasion on which a judge has to choose between the Empathy Answer and the Law Answer. This for two reasons:

For starters, despite Congressional Republicans' best efforts, Empathy is often incorporated into The Law. In fact, a great deal of our most important and treasured laws — our Constitution's First Amendment and Equal Protection Clause, the Voting Rights Act, the Civil Rights Act of 1964, shoot: even the stimulus bill, if you still believe in it — are monuments to empathy.

A bunch of white guys don't pass the Civil Rights Act of 1964 unless they're capable of empathy. Sure, if you're cynical (and I'm not, by the way: well, not on this point), you could say that they acted in the interest of securing the stability of the nation by extending protections to an increasingly marginalized and dissatisfied underclass. But even to get to that point, to realize that a law was necessary, if not desirable, you have to be able to consider the perspective of someone from a different background. To know the real effect of a law, you have to consider — you have to predict — how it will affect the people subject to it. Sounds like "empathy" to me, and it sounds appealing.

Second, and probably more important: at the Supreme Court level there aren't that many cases in which The Law obviously compels a certain result. Sure, folks in the gallery may feel that way — and the lawyers at the lecterns may argue that way — but the questions before the Supreme Court are the tough ones. They're the questions that Congress didn't anticipate when it enacted a law. They're the questions on which the several Courts of Appeal couldn't come to agreement. The business of the courts isn't just to override the express will of elected officials and legislate by fiat. That's a happy last point of argumentative retreat when you don't like what a court decided. The job of the courts is to fill in the gaps in the law: to decide what the law means and how it applies when the Framers and Congress, despite their best efforts, left open litigation points.

Certainly as a critic, on the sideline, with a vested ideological interest in the outcome of a case, one can talk oneself into believing that The Law compelled a certain result — the result that one favors. And working backward from that point of epistemological certainty (and this is a space folks both on the left and on the right are comfortable working in, although I would submit that liberals may be more susceptible to uncertainty and less attracted to batten-down-the-hatches-style conviction), one can conclude that the judge who ruled in the other direction was necessarily led astray by impermissible considerations — human failings like bigotry, callousness, religious zealotry, provinciality, venality, empathy. (Wait a minute: empathy? Is that so bad?)

But I'd submit that this isn't a fair or realistic way to review the actions taken in most Supreme Court cases — and certainly in most of the high-profile, front-line-of-the-culture-war cases. The fact is that The Law very, very often doesn't compel a certain result, and it's up to the Justices to do their best to untangle the complexities of a given case and decide (gasp!) what result The Law should compel. A whole host of considerations necessarily leak into that process, and we can talk about what considerations should and should not be permissible. But the notion that a judge should draw on his or her own personal background and experience — that is, the accumulated data that form the basis for their exercise of wisdom — should not be controversial. We can idealize a Law that is so compelling that wise white men and "wise Latinas" would spit out the same outcomes. But that Law doesn't exist, principally because law is an artifact of humankind, and it therefore incorporates all of our best intentions and failures to meet them. It reflects our diversity of opinion and interests. Law is emphatically of the people, by the people, for the people, and when a judge is called upon to decide a case, it seems to me entirely appropriate that the judge should keep in mind that his or her decision is not one made in legal abstraction — it's not a matter for cerebral processing or an exercise of rhetoric and logic — but one that will absolutely have consequences, and generally very significant consequences, for real people.

That, at least to me, is the role that "empathy" should have in judging. And I think it's important.

Larry King's Suspenders

PHUTATORIUS
I'm growing increasingly convinced that Larry King's body has grooves that hold his suspenders in place. I mean, look at him.

Now I'm no doctor, nor a chiropractor, either (and for that matter, I didn't even stay in a Holiday Inn Express last night), but it seems to me there are several ways in which a body might, organically and over a considerable amount of time, develop a suspension-groove system.

One obvious candidate is callouses, but this seems to me unlikely. The callouses would likely accumulate where the greatest amount of friction exists — that is, under the suspenders, such that you'd have the opposite of a groove. You'd instead have a raised, solid "track" over which the suspenders would be perched, rather than nested. Let's discuss other possibilities:

Muscle development could well be in play here. Consider what a bulge in the trapezius could accomplish, if it arose just between the shoulder and the spot where Mr. King customarily lodges his suspenders. The muscle-bulge would act like a notch — you slip the suspender over it and it can't possibly slide off laterally over the shoulder. Now consider that a second, smaller bulge might crop up between neck and suspender, to preclude lateral movement of the suspender in a neckward direction. It seems to me that Mr. King's forward-leaning "lunge" posture could well accomplish these two results, in a bilateral presentation — especially as from all appearances he is straining against the suspenders themselves. All it would take to develop these bulges would be a gradual tightening — if not as well a reduction in the elasticity — of the suspenders over time.

Third and finally, I suggest bone spurs. This hypothesis speaks for itself, I think, and I don't really see much to be gained from elaborating it.

Some Friendly Advice

WHITECOLLAR REDNECK

If you want to go see Transformers 2 with your wife, please ask her if she wants to go see Transformers 2. Do not ask her if she wants to see "the Megan Fox movie". Apparently it makes a difference.

FO News Roundup: July 10, 2009

• China's President says "stability is paramount" and the Uighurs need to be "dealt a blow." Clearly he's more of a Grinch than a Hu. (P)
• North Korea attacks! Well, virtually, anyway. And here we thought they only bought that computer so Kim could play Lode Runner. (P)
• A stampeding bull gores a man to death in Pamplona, while a bear market chastens Wall Street bankers. Can't win for losing. (P)
• Basic services are nice and all, but statuary inspires. So it goes in Uttar Pradesh. (P)
• Next on the agenda, poverty and starvation. Ah, just in the time for the white asparagus and truffle soup. Waiter, can you take these leavings to the African contingent out in the hall? (P)
• "Death by Chocolate": not just a ha-ha funny dessert name anymore. Thanks, menu-writers, for tempting fate. (P)
• (Speaking of tempting fate . . . ) is this really the best al Qaeda can do? (P)
  

Pessimism

PHUTATORIUS
The Economist recently criticized President Obama's kid-glove handling of Congress. The short version of Lexington's critique is that Obama writes the agenda, and Congress writes the laws. Nowhere was this more evident than in the case of the economic stimulus plan: Obama described the size of the bucket, and the Democratic Congress filled it up. This practice became a pattern with the climate change bill (The Economist, again) — although to be fair, lawmakers in the House had to load the law up with giveaways and postpone its efficacy (if not its effective date) for another ten years, just to win a majority.

Because, for better or for worse, I take my cues from The Economist, I'm afraid for the country. Here's why.
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Unlike many of the Republican naysayers, I actually believe that certain of America's bigger problems actually require government intervention. I've said my peace on the economy. But the energy and health care sectors, too, have seen the Invisible Hand failing to manage matters with any kind of deftness or dexterity. Let's consider why and how:

* Health Care. — The failures of the health care market are well-documented. It just isn't working. The principal reason for this is that there is no demand curve. Any reasonable person would rather be broke or bankrupt than sick and dying. If you need to spend $200 grand on a lifesaving chemotherapy, you do it. You plunk down the money and you figure out the rest later. Thus, spiraling costs. And there's the fact, too, that the structure of our health care system is an historical artifact of a market distortion: Stateside employers began to provide health insurance benefits to their workers during World War II, in an effort to compete for talent after the government imposed wage controls. Employers are expected to bear this burden today — and what's worse, employees come of age with the expectation that someone else ought to be paying for their health care. (Aha! cries the Republican — see here the long-term unintended consequences of government interference in the market! Yes, GOPer. Duly noted.)

* Energy. — The energy markets are failing us. Demand from developing countries will considerably outstrip production in the near and mid-range future. This isn't even a concern we can forget about in the short term. We saw inklings of what is coming last summer, when gas prices shot up over $4 per gallon. Prices are creeping back up again. As hundreds of millions of Chinese and Indians lift themselves out of poverty in the coming years, there simply won't be enough fossil fuel production to sustain them and us. This means skyrocketing energy costs, if not something worse — like war. Which brings us to the next factor that calls for government intervention in the energy markets: national security. Terrible, horrible regimes like those in Iran, Venezuela, and Saudi Arabia perpetuate themselves on the strength of their oil production. State-owned gas and oil companies in Russia leverage the energy demands of Europe and former Soviet states for the political ends of the kleptocrats in the Kremlin. And worse, we compromise ourselves, we give in on important Western values, in our thirst for oil. We may not be overthrowing democratically-elected governments anymore in Iran, but we do support oil-rich regimes with grievous human rights records. Our need for oil poisons our foreign policy and, to be frank, we'd be better and more principled in our dealings with the rest of the world if we could shake this rotten dependency.

Note that I haven't even talked about the global warming and environmental considerations, which somehow still manage to be controversial among intelligent people. (Shout-out here to V'torix.)

Our energy markets are, of course, distorted by the affirmative intervention of the last Administration in favor of Big Oil. We can ascribe this policy to shortsightedness (voters like the incumbents more when they aren't getting squeezed at the pump) or to venality (oil barons scratch Republicans' backs, and Republicans scratch theirs), but whatever the cause, it's exactly the opposite of the policy we should be pursuing. Giving fossil fuels a market edge when they are already the incumbent technology is emphatically the wrong policy. We need to strike that and reverse it. Government needs to subsidize renewable energy. For our economic interest, for our national security, for our foreign policy, and — what the heck – for the Earth.

And now, the turn:

I earnestly believe that we need the government to tackle these issues — and more than just considering them, we need the government to muck around in the markets. That's the only way these problems get fixed. But then I look over at the two bodies charged with the constitutional power to act on the economy, on health care, on energy — and my heart climbs into my throat, and then it breaks. I have absolutely no faith in the ability of the House of Representatives, or for that matter the Senate, to come up with anything on these issues other than shortsighted, self-serving packages of special-interest giveaways and unintended consequences.

I lack this faith not because of the particular 535 persons who are occupying the seats in the two chambers (although I have to say, quite a few of them are doozies). The problem is our political system. The two parties gerrymander the House districts to protect their seats: as a result, the truly contested elections are primaries that bring the most identifiably partisan — and therefore extreme — candidates into the Capitol. So we have extremist ideologues from both parties dominating the House. Add to this the warped incentives that flow from our politicians' concluding that they win more votes with obfuscatory and infantilizing commercial spots than they do by taking real, principled positions on the issues, and now we have special interests buying and selling our wild-eyed legislators with the campaign contributions that nourish the all-important Media Buys.

It's no wonder the stimulus bill became a Christmas tree, a receptacle for pet projects and pork. It's no wonder, either, that the climate change bill is a toothless pack of giveaways. So now we turn to health care and energy policy, and I cringe, and I again feel like a man without a political home. It's bad enough to live life as a social liberal/economic conservative. Now consider the predicament of the poor blogging soul who shares both the Democrats' conviction that government intervention on certain critical policy issues is absolutely necessary and the Republicans' despair over the ability of a government — and specifically, this government — not to butcher the job.

Somebody tell me everything is going to be all right.

FO News Roundup: July 3, 2009

It's Freud's birthday today, so we're all about sex and death. Actually, we lied: it's not Freud's birthday. Can you ever trust us again?

• Look, dude. You didn't have to propose to her to get her to say "yes, yes, yes, like 500 times super fast in a row." Oh, no, wait: you're a Jonas Brother, so maybe you did. (P)
• The Delhi High Court has upheld the right to gay sex between consenting adults. A "director's cut" of the Kama Sutra will hit the streets next week. (P)
• Debbie Rowe was a "baby machine" for Michael Jackson, who apparently ditched her at the hospital and ran off with his newborn daughter "with all the placenta all over her." Somewhere, a middle-aged Billy Jean just kicked a hole in the wall. (P)
• If you thought Billy Mays was only an American icon, think again: Chinaview.cn is covering his death. And so it is that great cultural gaps are closed by a dab or two of Mighty Mend-It. (P)
• A new study shows that cardiac arrest is a really dangerous and shitty thing to happen to you. (P)
• No link here — it's been taken down — but CNN was advertising a feature that purported to cover the "highlights of Michael Jackson's life and death." My favorite part of his death was the bit where he came back as a zombie and began to dance, in block formation, with some acquaintances from the cemetery. Well, that and the cardiac arrest. No. The zombie dancing bit was probably better. Less edgy. (P)
• Last, but not least: we're all going to die this fall. Thank you, and good night. (P)

Ask Feigned Outrage

MITHRIDATES
One of our many loyal readers recently wrote in seeking advice on how to respond to the following note received by her neighbor, left on top of her shipment of bottled water:

Dear Neighbor,

I couldn't help but notice you recently received a shipment of bottled water. Can I suggest you try Chicago tap water? It's some of the finest in the country. Or at the very least use a Brita water filter. That way you can do your part to help save the planet.

Thanks,

Your fellow global citizens

This is a delicate situation, with both the planet and neighborly relations at stake, so after much careful consideration I offer the following response:

Dear Fellow Global Citizens,

Thanks for the wake-up call and alerting me to all the damage I am doing to our beloved Mother Earth. You've inspired me to do some research and I can't help but agree that we'd all be better off if I stopped getting bottled water and switched to pure Chicago tap water. Even though the plastic bottles are recycled, this process uses a bit of energy and slightly increases carbon dioxide emissions. In fact, carbon dioxide emissions from many sources are harming our planet and under the new climate change bill, carbon dioxide is an official pollutant. Every time you drive a car, or even exhale, you cause immeasurable and irreparable harm to the climate of our dear planet.

So let's make a pledge to help the Earth together. I'll cancel my shipments and try out Chicago tap water and you cease any unnecessary exhalations. You can use sign language all you want, but never utter another word to anyone — every time you do you emit carbon dioxide and contribute to global warming. Moreover, you can save trees by cutting down on self-righteous notes to your neighbors. Now that you're aware of these facts, I know you can't resist such an opportunity to help save the planet. We all win. The planet cools down and no one will ever again be subjected to your obnoxious, holier-than-thou proclamations, either written or oral.

Once again, thank you for bringing my dangerously negligent behavior to light. I look forward to working with you to make our planet more livable. Thanks,

Your neighbor and fellow concerned global citizen

Dear readers, please continue to email us with your most troubling issues. We're always here to help.