Tuesday, May 26, 2009

Supreme Court Politics for the Sake of Politics

That the selection of Supreme Court Justices has become a deeply politicized process was one of the most invidious legacies of Franklin Roosevelt, who once tried to "pack" the Court with liberal justices sympathetic to the New Deal.

In trying to extricate himself from this legacy, President Obama has gone out of his way to nominate (what he deems to be) one of the least controversial candidates out there. It is in his interest to, because it would be unwise for him to squander political capital when the potential gain is limited. The most he can achieve in the present nomination iteration is to maintain, rather than alter, the ideological balance of the Court.

That the president has partly suceeded in preempting controversy can be seen in the fact that conservatives have not yet decided if Sonia Sotomayor is worth opposing. Moderate Republicans are especially afraid that a concerted attack on Sotomayor will alienate their party from hispanic voters. The debate is about whether or not to have a debate; the controversy is whether or not Sotomayor is controversial. Barring a startling new revelation about Sotomayor's past, this is about as good as it gets for any modern Supreme Court nominee.

Yet the fact that there is nevertheless a controversy about whether or not Sotomayor is controversial is poignant enough, a reflection of our thirst for politics and our confusion of politics as the end rather than the means for achieving nobler ends.

What is often missed is that the more intense our debate about the suitability of a particular nominee for the Court, the more we imply that Justices are incorrigibly nepotistc, and all we can do is to select someone on our side. If Justice Sandra Day O'Connor once marveled at the majesty of the law, our nomination wranglings reflect our burlesquing of the Court. Here is the paradox: even if partisans and lobbyists succeed in sending their favorite to the Court, they would aso have deprived the new justice of a measure of legitimacy s/he would have had if s/he had been admitted to the bench without their advocacy.

Perhaps the stakes are too high, as fans and enemies of every new nominee contend. But piecemeal and short-term gains can come at a great institutional and long-term costs. Supreme Court justices are no longer perceived to be women and men capable of setting aside their personal opinions or transcending their ideological biases. In politicizing the Court, we are disrupting the constitutional balance of respect, and contributing to the tyranny of the elected branches and in particular the president, who, let the record reflect, doesn't only execute the law (as the commensurate expectation ought to be if we insist judges should not make law) but also makes it in the form of executive orders and in the veto power (which is a legislative power, enumerated with Congress's powers in Article 1 of the Constitution).

So it should come as no surprise that the first president who seriously tried to politicize the court, Franklin Roosevelt, was also one intent on his particular interpretation of the constitution and having his legislative way. Kudos to any president and any citizen with the foresight and restraint to treat a co-equal branch of government as a bulwark of our constitution and not another political playpen.

Sunday, May 17, 2009

Obama, Notre Dame, Abortion

The pro-lifers single-mindedly protesting President Barack Obama's receipt of an honorary degree from Notre Dame University have reduced the Catholic Catechism to a single issue. And it is precisely in the single-mindedness of such pro-life proponents that it can be showed that their concern is not, ultimately, about life.

The president is on the right side of Catholicism on immigration and the environment, just as previous presidents Notre Dame has honored have been on the wrong side of the Church on issues like capital punishment and support for nuclear weapons. To pick on the current president is to pick one particular issue as the litmus test of a person's contribution to advancing human excellence (the qualification for a honorary degree).

That is myopic, but worse still, many pro-lifers proffer their arguments in bad faith, or so Professor Sonu Bedi at Dartmouth argues (28:15 onwards).

If opponents of abortion want to make the State compel women to carry their foetuses to term, Sonu Bedi compellingly asks: why don't pro-lifers also demand that the State compels citizens who are uniquely situated to save a particular life to do so?

The latter are what Bedi calls "forced samaritan laws." As Judith Jarvis Thomson made clear decades ago, a law prohibiting abortion is a forced samaritan law, because a woman considering abortion would be told by the State that she must perform her duty of preserving a life.

Fair enough. Perhaps we should legislate such a world, but the truth is we have not, and are not even trying. In the Common Law of the US, there is, in general, no duty to rescue. That is to say, no person can be held liable for doing nothing while another person's life is in peril. In Vermont, one can be slapped with a $100 fine if one is uniquely positioned to save a life but fails to do so. Consider the glaring asymmetry of the law: $100 versus $2000-5000 in Texas if a woman is found to have undergone an illegal abortion.

Ah, but as the rejoinder goes, perhaps a woman has consented to sex and perhaps that is why she has a special duty to the child she helped create, and not so for the random passer-by who chooses not to save a drowning child. OK, (assuming consenting to sex is the same as consenting to procreation) why don't we talk about laws alongside abortion laws that will also exact commensurate obligations on the father who also consented to the sexual intercourse that begot the child? Why are we so quick to pin consent and duty squarely on the woman seeking an abortion? Pro-lifers who seek laws against abortion but not laws for forced samaritanism are too quick to dismiss the immense physical and emotional costs of child-bearing that women have silently borne for millenia. And if they care only about protecting one type of life (and burdening only one group of people), then surely they are not, paradoxically, truly concerned about life but about something else, such as the preservation of traditional roles in the family.

If we value life, then we should dedicate our lobbying energy to saving any life writ large that is in imminent peril, and not merely the life in the womb. The burden of being pro-life should be equally born by all. Not only by women. If we are to be pro-life, then let us be pro-all-life, not just those lives that only women are uniquely privileged/burdened to save.

Monday, May 4, 2009

Swine Flu or H1N1?

"Swine flu" or a strand of influenza A subtype "H1N1?" Try as federal officials might, the media continues to resist their call to term the "swine flu" the new strain of "H1N1" virus.

At a press conference last Tuesday, Agriculture Secretary Tom Vilsack was at pains to say, "This really isn’t swine [flu], it’s H1N1 virus." He also explained why: "and it is significant because there are a lot of hard-working families whose livelihood depends on us conveying this message.” (At least ten countries have placed bans on the import of pork even though the World Health Organization has attested that H1N1 is an air-borne and not a food-borne virus.)

The hegemony of "swine flu" over "H1N1" is even more peculiar given that the World Organization for Animal Health (OIE) reports that the particular strand of H1N1 virus (which typically infect pigs) that is causing the current epidemic has not previously been reported in pigs and actually contains avian and human components. It was only on May 2, long after "swine flu" had gained rhetorical currency that the strain was found in pigs at a farm in Alberta, Canada. Even there the story has a twist - the pigs had gotten infected because of their contact with a farm worker who had recently returned from Mexico, and not the other way around - prompting some to suggest that the proper nomenclature ought to be "human flu" or "Mexican flu."

But the media's job is to transmit the news in the best way that rolls of one's tongue, not deal with the fallout of their infelicitous use of words. To be fair, administration officials were slow to catch on. As late as April 26, two days before Vilsack's press conference, the White House and Richard Besser of the Center for Disease Control (CDC) were still referring to the "swine flu." Clearly, the pork lobbyists aren't going to win this battle and the malapropistic epidemic will continue. Administration officials should know that if they really wanted a working alternative to "swine flu," they would have to do a lot better than a robotic scientific abbreviation.

Our current malopropism has an ancient pedigree. The 1918-1920 H1N1 pandemic called the "Spanish Flu" didn't start in Spain (and probably started in Kansas). This is ironic, because the "Spanish Flu" acquired its name only because Spain was a neutral country in WW1 and with no state censorship of news of the disease, was offering the most reliable information about it. This ended up generating the impression that the disease originated and was particularly widespread in Spain. Even when the media is not trying, it defines and shapes our reality.

Why does any of this matter? Because words characterize an issue in such a way as to insinuate a cause and to frame our reactions. Sometimes, words can even drive mass hysteria. Consider the "swine flu" outbreak in 1976, which claimed a single life at Fort Dix, NJ. Because this particular strain of virus looked a lot like the one that caused the "Spanish Flu" of 1918-1920 (also misleadingly named), public health officials convinced President Gerald Ford to commence a mass immunization program for all Americans. The use of a sledgehammer to crack a nut was not without consequences. Of the 40 million Americans immunized, about 500 developed Guillain-Barré syndrome, a paralyzing neuromuscular disorder.

So let us pick our words carefully, lest our slovenly words presage our slovenly deeds.