How to Elect Good Judges: Vote for a good president. The courts can change the course of American history, but nobody thinks about them during elections.
May 21, 2012
Every American presidential election presents different burning issues. The Vietnam War dominated three consecutive elections from 1964 to 1972. Scandals from Teapot Dome to Watergate have figured prominently in others. Recessions typically thrust economic issues to the forefront, leading one presidential campaign to adopt the famous campaign imperative, “It’s the economy, stupid!” Other issues from abortion to forced busing to education to the environment have made major appearances in national campaigns.
Issues come and go, and the impact of national elections in resolving those issues is often minor or fleeting. But one issue that rarely makes even a cameo appearance in national campaigns may be the most important and enduring consequence of electing a president: the party that controls the White House also controls the appointment of the federal judiciary. It is one question in which the party in power, especially over the last several decades, makes a decided difference—which in turn directly affects the lives of every single American.
Judges typically operate beneath the radar. Except for lawyers who practice before them, few Americans can name more than a few members of the U.S. Supreme Court, much less judges on other federal or state courts. Yet judges are powerful and important. Judges make decisions every day about religion, speech, property, business, education, civil rights, and other issues that touch all of us in direct and immediate ways. They set the rules and guide the proceedings by which accused criminals are tried and punishment is meted out. Ultimately, they determine whether our most fundamental rights are enforced or destroyed.
Think, for a moment, about who the most powerful woman in American history has been. One might nominate several candidates, but unquestionably, it is the former United States Supreme Court Justice Sandra Day O’Connor. She served as an associate justice of the Supreme Court for a quarter-century. Not only was she the first woman to serve on the Court, she was its only female member for most of her tenure.
But for many years, she stood far taller in influence than her male colleagues, for she typically was the swing vote in many 5-4 decisions. On matters ranging from abortion to racial preferences to school vouchers to the rights of criminal defendants to federalism, hers was often the deciding vote, and that vote usually changed the course of American history.
So courts and judges are enormously important. And yet, come election time, almost nobody thinks about them. Why? Perhaps it is because we are taught in civics class that judges are insulated from politics. Federal judges, of course, have lifetime tenure, and only can be removed through impeachment.
But, in fact, federal courts are political institutions. Judges are appointed by the President, with the advice and consent of the Senate. The appointment and confirmation of judges are enormously important powers preciselybecause judges are appointed for life. The Senate confirmation process in particular is important because it is the last democratic checkpoint before individuals are invested with enormous lifetime powers. Every American has a vital and direct interest in the appointment and confirmation of federal judges—which raises greatly the stakes in electing those who have the power and responsibility to appoint and confirm them.
The most powerful woman in American history is former Justice Sandra Day O’Connor.
Because of lifetime tenure, the appointment of federal judges can represent one of a president’s most important and lasting legacies, far outlasting any particular administration. President Ronald Reagan is four presidents removed from the present one, yet two of his appointees to the U.S. Supreme Court—Anthony Kennedy and Antonin Scalia—remain on the Court. Justice Scalia has been a leading conservative influence throughout his tenure, and Justice Kennedy is now the swing vote on the Court—so that Reagan continues to exert enormous ongoing influence over the nation’s course more than 30 years after he was first elected.
At the same time, the Court presently is precariously balanced. The five conservative justices usually vote together in contested cases, but the four liberal justices almost always do. The liberal justices have exhibited little moderation except on business issues. Accordingly, the shift of a single justice could tilt the Court’s balance sharply to the left—and if that happens, the liberal balance could remain that way for a generation, even if there were conservative presidents along the way.
That is because even though presidents have the opportunity to appoint Supreme Court justices, the opportunities are increasingly fleeting. Once a fairly solid conservative majority emerged on the Court in the 1990s, it survived eight years of the Bill Clinton presidency and, so far, three years of Barack Obama’s presidency. Although both Clinton and Obama named justices, in each instance, it was a liberal replacing a liberal. But, of course, the new justices were much younger than their predecessors.
The replacement of a single conservative justice by a younger liberal justice could lock a liberal majority into place for a long time. The replacement of older liberal justices with younger ones makes it much more difficult for a conservative president to influence the Court’s direction. Similarly, the replacement of a liberal justice by a conservative one would cement the Court’s conservative majority, and the replacement of older conservative justices with younger ones would fortify it.
The New Ideological Divide
Two developments have increased the importance of Supreme Court nominations. First, nominations tend to be increasingly ideological. In days gone by, it was difficult to predict a justice’s philosophy even if you knew his or her party affiliation. Some past presidents attempted to pack the Supreme Court for specific reasons. Abraham Lincoln, for instance, named justices whom he believed would support his controversial Civil War measures.
And after a bare majority of the Supreme Court repudiated some of his early New Deal ventures, Franklin Roosevelt famously proposed expanding the size of the Court so that he could shift the majority. Justice Owen Roberts’ “switch in time that saved nine,” in which he moved from New Deal opponent to supporter, helped forestall Roosevelt’s deeply unpopular threat. Still, even the justices appointed for particular purposes by those presidents were unpredictable and divided on other issues.
For instance, the Slaughter-House Cases in 1873 presented a 5-4 Supreme Court split that was extremely rare in that era. The decision involved the privileges or immunities clause of the recently adopted Fourteenth Amendment. A group of butchers challenged a bribery-procured Louisiana slaughterhouse monopoly on the grounds that it violated their freedom of enterprise, whose protection was a principal goal of the Fourteenth Amendment’s framers. A majority of the court, over three passionate dissenting opinions, ruled against the butchers, thereby obliterating the privileges or immunities clause and judicial protection for economic liberty.
We are taught that judges are insulated from politics. But the courts are political…
The Unabomber’s Pen Pal: Philosopher David Skrbina doesn’t endorse Ted Kaczynski’s violence. But he says the notorious anti-technologist’s ideas are valid.
May 21, 2012
The paper “Industrial Society and Its Future” makes the case that modern technology has restricted freedom, ruined the environment, and caused untold human suffering. People have become overstressed and oversocialized. Humanity, the author writes, is at a crossroads, and we can either turn the clock back to a happier, more primitive time or face destruction.
The author has occasionally been praised for understanding the unforeseen consequences of technology in modern life. Kevin Kelly, a co-founder of Wired magazine who, even though he disagrees with the author’s conclusion, devotes a section of his latest book to these ideas, calling the paper “one of the most astute analyses” of technological systems he has ever read.
But for the most part the 35,000-word manifesto, first published in September 1995, has been dismissed as a rant.
That’s because the author is Ted Kaczynski, also known as the Unabomber, who terrorized academics for nearly 20 years by sending a series of mail bombs that killed three people and injured 23. His demand, accepted by authorities in the hope that granting it would unearth clues to his whereabouts, was for a major newspaper to publish that manifesto.
Media profiles from the time of his capture, several months after the manifesto’s publication, paint Kaczynski as a kind of comic-book villain, a scruffy loner in a hooded sweatshirt whose failure in relationships drove him to insane acts of violence.
But when David F. Skrbina, a lecturer in philosophy at the University of Michigan here, read the manifesto in The Washington Post on the day it was published, he saw value in the message. He was particularly impressed by its clarity of argument and its references to major scholars on the philosophy of technology. He saw a thinker who wrongly turned to violence but had an argument worthy of further consideration. That argument certainly wasn’t perfect in Skrbina’s view, and he had some questions. Why not just reform the current system rather than knock it down? What was Kaczynski’s vision of how people should live?
In November 2003, Skrbina mailed a letter to Kaczynski, then as now in a supermax prison in Colorado, asking those and other questions designed “to challenge him on his views, to press him.”
So began a correspondence that has spanned more than 150 letters and has led Skrbina to help compile a book of Kaczynski’s writings, called Technological Slavery, released in 2010. The book is a kind of complete works of this violent tech skeptic, including the original manifesto, letters to Skrbina answering the professor’s questions, and other essays written from the Unabomber’s prison cell.
Today, Skrbina is something like a friend to Kaczynski. And he’s more than that. The philosophy lecturer from Dearborn serves as the Unabomber’s intellectual sparring partner, a distributor of his writings to a private e-mail list of contacts, and at times even an advocate for his anti-tech message.
In more than 15 years at The Chronicle, I’ve never had so many sources refuse to talk to me for an article. Many people I reached out to simply didn’t return my calls and e-mail messages.
To Skrbina, that’s evidence of a societal taboo against saying anything negative about technology. But reactions to Kaczynski are not just about ideas. People died, and many others suffered serious injuries, in Kaczynski’s pipe-bomb blasts. He has become such a symbol of dangerous irrationality that a climate-change skeptics’ group, the Heartland Institute, recently used his face on a billboard that read, “I still believe in Global Warming.”
And there’s the chance that a serious consideration of the Unabomber’s ideas could encourage others to send bombs to get attention. At times, that thought made me want to spike this story. In recent months copycat killers citing the Unabomber as their inspiration sent mail bombs to nanotechnology professors in Mexico, publishing their own antitechnology manifesto. A killer in Norway who gunned down dozens of students at a camp last year wrote a manifesto that included phrases lifted from Kaczynski’s.
Yet the Unabomber’s warnings about the dehumanizing nature of technology are popping up in more and more serious books and articles these days—even if most of the writers don’t cite Kaczynski directly.
What can be learned from the Unabomber? And just as important, should we be listening to an admitted killer in the first place?
In his course “Philosophy of Technology,” Skrbina highlights the great thinkers in history who have commented on the dangers of technology. He discusses one of Plato’s dialogues, which considers whether writing itself is a kind of technology, one that could be deceptive. He touches on Heidegger’s warnings of the “supreme danger” of technology. He asks students to read Rousseau’s “Discourse on Science and Arts.”
Kaczynski’s writings get equal time. I arrange to visit during a session devoted to the Unabomber, and Skrbina starts the class off with show-and-tell—passing around a blue binder containing some of his letters from Ted Kaczynski. “You can just sort of flip through this,” he tells the students, asking them not to take the originals home. “It includes some things like some new unpublished essays that I’m working on typing.”
Each letter is handwritten, and the tone is formal. They are addressed to “Dr. Skrbina,” and they earnestly tackle the questions the professor put to him…
Lazy, profligate, scheming Greeks versus honest, thrifty, industrious Germans. Southern vice versus northern virtue.
For much of the news media—not only in continental Europe’s “virtuous” north, but also in the United States—the euro sovereign debt crisis could be summarized in the form of this morality play opposing national or regional stereotypes. If in Germany itself it was the deliberately over-the-top tabloid Bild that famously took the lead in lecturing the Greeks on Greek vice and German virtue, in the United States, New York Times columnist Thomas Friedman adopted essentially the same tone and underlying “analysis.” “Can Greeks Become Germans?” Friedman asked in a column written last year, suggesting that this was the only way the crisis could be resolved. Even the acronym commonly employed for southern Europe’s fiscal “sinners” reflects moral opprobrium and contempt: the “PIGS” (sometimes written “PIIGS,” so as to include also the northern European special case, Ireland, along with Portugal, Italy, Greece, and Spain).
But what if the financial strains on the PIGS that threaten the eurozone are a product of the eurozone itself? What if the problems of the euro, in other words, are of the euro’s own making?
Despite its demagogic appeal, the “fiscal saints” versus “fiscal sinners” schema has never had much explanatory purchase. Germany—reputedly a “saint”—was among the first eurozone countries to breach the fiscal rules of the so-called Stability and Growth Pact, running up a budget deficit of more than three percent of GDP in 2002 and for each of the following three years. (According to current Eurostat statistics, Germany in fact had already violated the three percent deficit limit in 2001, although the breach was not noted at the time.) Germany was joined in its sinful ways by France: a country well known to be of dubious virtue in fiscal regards, but, nonetheless, the country with whom Germany has willingly got into bed, so to speak, in order to launch and sustain the project of monetary union. France exceeded the three percent deficit limit for three straight years from 2002 to 2004. Neither country suffered any sanction for its transgressions.
While it is true that Greece has persistently run budget deficits exceeding the three percent limit since joining the eurozone, the behavior of one of the other PIGS, Spain, has been positively “saintly.” In the three years prior to the onset of the financial crisis, from 2005 to 2007, Spain had budgetary surpluses. Portugal and Italy, the two other “PIGS,” have sinned, but in dimensions comparable with their supposedly more virtuous northern partners.
The second of the famous “Maastricht criteria”—public debt as a percentage of GDP—is no more effective at separating “saints” from “sinners.” According to the latest available statistics, even today—in the aftermath of the financial crisis and in the very midst of the debt crisis—Spain’s public debt is only around sixty-five percent of GDP. This compares to more than eighty percent for both Germany and France. For a full decade, from 2000 to 2009, Spain did not once exceed the sixty percent limit laid out in the Stability and Growth Pact. During the same period, Germany was only below the limit once; France has exceeded the limit every year since 2003. Although its debt has ballooned since the financial crisis, for most of the last decade, Portugal, like its Iberian neighbor Spain, clearly outperformed both France and Germany in controlling its debt, staying under the sixty percent limit for five years running.
Italy is a particularly interesting case in this connection. At one hundred and twenty percent of GDP, the country’s public debt is legendary. According to the standard narrative about the debt crisis, Silvio Berlusconi had to be removed as prime minister last November in order to placate the financial markets, as if Berlusconi had been personally responsible for the deterioration of the country’s finances. But Italy’s public debt was already at or above one hundred and twenty percent in the mid-1990s. (Berlusconi was briefly prime minister from May 1994 to January 1995, but he only came into office for an extended period beginning in June 2001.) Before the financial crisis, the debt had been brought down to as low as one hundred and three percent, only ballooning up again in its aftermath. Moreover, even under the remarkably difficult circumstances of the last year, the Berlusconi government had in fact succeeded in reining in public spending. The Italian budgetary deficit for the third quarter of 2011 was 2.7 percent—below the prescribed limit.
If not “national character”—or character defects—what then is at the root of the eurozone debt crisis? A look at some related statistics suggests an answer: the euro. Consider the following chart (Figure 1) showing the evolution of the current accounts of each of the “PIGS” from the 1999 launch of the euro through 2010. The current account represents a country’s balance of payments on goods and services, plus investment income and so-called unilateral transfers (i.e., employee remittances and foreign aid). Each of the countries’ national currencies were first linked to a virtual, non-circulating euro at “irrevocable” rates of exchange and then, beginning on January 1, 2002, replaced by actual euros in circulation. Portugal, Italy, and Spain were part of the original launch of the “virtual” eurozone in January 1999. Greece joined two years later…
May 21, 2012
This image has been posted with express written permission. This cartoon was originally published at Town Hall.