30 June 2009

Skepticism, thy name is Treason

Think of any question regarding a matter of fact. Will it rain tomorrow? Does light really travel at 186,282.39705122 miles per second (in a vacuum)? Does caffeine stunt your growth?

Normally, even in vehement disagreements over these matters, vitriol is minimal. But for some types of people, there are orthodox answers to certain questions. Deny the orthodox answers and boy are you in trouble. The least bit of skepticism (and I do mean even the least bit) regarding the theory of evolution -- a single theory -- is never treated like simple skepticism, never treated as simple difference of opinion. No, this skepticism regarding a single theory (never mind the reason for the skepticism) is sufficient to earn the skeptic the accusation of being anti-science. One is an opponent of all science (I am ussually subjected to harsher treatment because I deny the possibility of a properly scientific theory of origins at all, on the grounds that theories of origins are necessarily highly speculative and strictly untestable. It's so much fun being me sometimes.)

When it comes to scientific orthodoxy, there is no such thing as free speech, no such thing as free inquiry, no such thing as honest, heart-felt objection. Disagreement with scientific orthodoxy is a crime. Take for example the crime of Holocaust Denying. The Holocaust is a simple fact condition: it happened; or, it did not happen -- like the questions, "What happened to the colonists at Roanoke?" or "What caused the fall of the Roman Empire?" Several theories abound regarding both those questions. (As of 2003 there were no less than 210 theories about the latter.) Rejecting any of those explanations is not a crime. You could, more relevantly, deny that there were any colonists at Roanoke in the first place or even that there was a fall of the Empire, without being guilty of a crime for doing so. But deny the Holocaust (which, by the way, I do not) -- have an honest, but contrary, opinion about a matter of historical fact -- and you are guilty of a crime.

Guilty of a crime for refusing to assent to a proposition about an event in history -- it hardly seems possible; but it's true. You say, if you dare, the Holocaust did not happen; and it's off to jail with you. Heretic.

When I was young, it was fashionable for us god-deniers to point to the Roman Catholic Church's treatment of heretics, those who disagreed with orthodoxy as defined by the Church. This treatment of heretics was one of many reasons for denying the truth of the Christian faith. Heretics, as we know, were subjected by the Church to unspeakable tortures and modes of execution, such as burning at the stake. We could not understand this mistreatment. The only thing these people did was to have an opinion on certain matters which were at variance with orthodoxy as defined by the Church. We, naturally, are much better. We do not have orthodox beliefs. We believe in freedom of inquiry and debate. No more persecutions of Galileo and his like.

It wasn't until after I, myself, (and sort of to my own surprise) became a Christian that I realized just how much orthodoxy there really is outside of "religious" orthodoxy. And, as P. K. Feyerabend, argued, there are ways short of the rack and the stake, of persecuting heretics.

For example, you could call them traitors. That's what Paul Krugman does, accusing of treason -- against the planet, no less -- anyone who doesn't agree with his position on global warming. Do you suppose that, in their quest to save the planet, people like Herr Krugman will argue for the (summary?) execution of us traitors? We are, after all, talking about saving the planet...from traitors to the planet. And treason, as William Anderson points out, has traditionally been a crime punishable by death. Though I doubt they'll kill us. That would mean giving us an escape from their plantation -- I mean, planet.

These fundamentalists are just like the fundamentalists (of faiths other than their own) they despise. They never have to prove anything in order to compel belief. They want to control everything; and every crisis -- real, perceived or manufactured -- is an argument for their expanding purview. And when their prophets say it and they believe it, that settles it. The debate is over when they become convinced; and their opponents, not free to remain unconvinced, are transformed immediately from simple interlocutors into dangerous criminals.

H/T: William Anderson

26 June 2009

Social Change: Necessary Conditions

A passage relevant to our times from Murray Rothbard, which I offer with a brief commentary:

Marxists have correctly perceived that two sets of conditions are necessary for the victory of any program of radical social change; what they call the “objective” and the subjective” conditions. The subjective conditions are the existence of a self-conscious movement dedicated to the triumph of the particular social ideal—conditions which we have been discussing above. The objective conditions are the objective fact of a “crisis situation” in the existing system, a crisis stark enough to be generally perceived, and to be perceived as the fault of the system itself. For people are so constituted that they are not interested in exploring the defects of an existing system so long as it seems to be working tolerably well. And even if a few become interested, they will tend to regard the entire problem as an abstract one irrelevant to their daily lives and therefore not an imperative for action—until the perceived crisis breakdown. It is such a breakdown that stimulates a sudden search for new social alternatives—and it is then that the cadres of the alternative movement (the “subjective conditions”) must be available to supply that alternative, to relate the crisis to the inherent defects of the system itself, and to point out how the alternative system would solve the existing crisis and prevent similar breakdowns in the future. Hopefully, the alternative cadre would have provided a track record of predicting and warning against the existing crisis.

Indeed, if we examine the revolutions in the modern world, we will find that every single one of them (a) was utilized by an existing cadre of seemingly prophetic ideologists of the alternative system, and (b) was precipitated by a breakdown of the system itself. ~ The Ethics of Liberty (New York, NY: New York University Press, 1998), p. 267.

Or, with particular regard to that last clause, the supposed breakdown of the system, together with the assumption that only one alternative to the supposedly broken system exists. You know, the sort of alternative whose proponents claim for it that the only other course of action is to do nothing, which is, so they tell us, not an option. This is the sort of alternative whose proponents rest their case upon the strength of a false dilemma: "Not doing it our way" = "Doing nothing".

And that is why they believe themselves brilliant. In a way, they are brilliant: they can dress up a false dilemma with all the respectability of Einstein's Special Theory.

NOTE: The Ethics of Liberty is made available online by The Ludwig von Mises Institute, here (in pdf) and here.

FURTHER NOTE: If you don't have time to read the entire book, at least online, you should at least read Chapter 30.
25 June 2009

More politicians should pull a Mark Sanford

And how I wish they would.


My wife and I had a slight, and friendly, disagreement over breakfast this morning about the revelations of Mark Sanford's mysterious disappearance over the weekend. Her position generally agreed with what seems to be the majority report on the issue: that the governor's absence would have been a grave liability in the event of some crisis, blah, blah, blah. I mean even the State Law Enforcement Division (responsible for his security) and his own staff couldn't reach him via mobile phone and text messages between Thursday and Tuesday. Why, one caller to the Limbaugh Show claimed that Sanford's absence left his state "in the lurch."

Heard somewhere in the state of South Carolina: Oh, my goodness. The governor's gone! What if there's a hurricane? What if the sky falls? What if the earth's temperature keeps rising?

Whatever.

My position is that no one (certainly no POLITICIAN!!!) can, or even should be so important that his mysterious absence would mean total disaster. An entire state in the lurch? Just because the governor is out of state, and out of touch with his staff? What are we saying here? That when the governor is away it's like a parent leaving the house for the weekend and the children unattended? Help! Social Services! (They're never around when you need them.)

Please. No one, certainly no politician, should be that important. And the fact that some are so should be a sign of something bad. An AWOL governor should be as frightening as missing a hole in one's head. Without condoning adultery, anyone should be able to just disappear for a bit if he wants to. Especially a politician. I wish more of them would.

Hey, whiners, listen up: If you don't need your parents anymore then you don't need your governor, either. And if you do need your governor, then you probably still need your parents, too. Grow up and start finding things more important to worry about than a missing politician.

My wife, incidentally, now agrees with me on this. Which she should. Because I'm right.

Now if I can just get her to surrender her position on the War on Drugs.
19 June 2009

A Necessary Submission

(Razing the Servile State II)

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
~ Declaration of Independence, emphasis added.

[I]t has always happened that tyrants, in order to strengthen their power, have made every effort to train their people not only in obedience and servility toward themselves, but also in adoration. ~ LaBoetie, The Politics of Obedience, Part II.

Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God.... Therefore, it is necessary to submit to the authorities.... ~ Romans 13.1, 5


Paradoxically, one of the dogmas underlying our own United Servile States of America, is that the state is owed virtually unquestioned obedience, and to some extent, even a modicum of adoration, by its subjects. I say paradoxically for two reasons. First, because these states owe their existence to the fact that the founders dared to question and then reject the obedience they owed the British Crown. Second, because some of the most state-adoring people in this country are conservative Christians, who rely upon texts like Romans 13 to urge this virtually unquestioning obedience, in contrast with some of their forebears who, in fact, urged rebellion on the grounds that government must obey the laws and when it does not it is no longer owed obedience. (During the period during which revolution was simmering, a "patriot" was one who favored liberty in the form of secession -- yes, secession -- from Great Britiain, as opposed to loyalists.) In the circles in which I move, I daresay most Christians, who look upon the Revolution favorably, would look upon a rebellion against the government in Washington, even an unarmed one, as a sin. I could be wrong. (But I'm not.)

Because I am a Christian, I must deal with this underlying dogma first because in expressing some antipathy for (servile!) statism I may seem to run afoul of specific Biblical passages such as the above-quoted from Romans 13. Especially is this the case when one considers the phenomenon of "Christian Patriotism", which, like men, women, teenagers, soldiers, college students, environmentalists, etc, etc, etc, even has it's very own niche Bible. How can I desire the razing of the (servile) state in the face of such passages? Moreoever, how could I possibly favor razing a state which my own faith played some part in founding. It comes to two things. First, nothing about a requirement to obey a governing authority implies that the governing authority is not in certain respects usurpatious. Second, this is no longer the state which Christianity played a role in founding. I'm not going to spend any time, here, arguing the second point. I shall devote attention to the first.

In questioning the authority of the state (by arguing that it should not have much of the authority it exercises) I am violating Paul's command. I am, in fact, going against God because Paul says that the state, as an authority, has been established by God. What the state, established by God, commands, I must obey. The voice of the state must be held to be the voice of God. In fact, however, unlike Rothbardian libertarians, I do not rebel against the state per se. I rebel against the state's usurpations. It is the state, not I, that is wrong.

Let's look first at what Paul says about the role of the state, or the "governing authorities". These authorities hold no terror for those who do right. One could argue that my antipathy to the state must indicate that I am one of those who do wrong. If I were keen to do right, I would not be bothered by the state. But I am bothered by the state; and I think I am justifed in being bothered. Paul does not say that the state first decides what is right and then punishes those who act contrary. He says the state simply punishes wrong-doers. The state is not the final word on what is right. The state, properly, is the enforcer of a law it has not created of itself, a law which pre-exists the state.

The situation in which we find ourselves is one in which the state acknowledges no law not posited by itself. The state shall first decide what is right and then punish those who do wrong. We live under the domination of a state which is the final word on what is "right" -- a divine state. We live under the domination of a state which forces us to live not by laws but by opinions. One can know this is true, by considering the fact that during the recent campaign season, the President asserted that, while government cannot and should not do everything for you, it should do for you what you cannot do for yourself. (He has not been alone in making that claim, of course. I mention it because it is recent history.) Perhaps it is a true proposition that government ought to do for people what they cannot do for themselves. Frankly, I see no way to justify belief in its truth. That is an opinion. It is his opinion. And if one listens closely, one notes that we are never told why government must do for us what we cannot do for ourselves. We are told this, hear this and obey this. (Well, some of us anyway. Others of us question.) So we are to be ruled by opinion, dogma really. Wrong-doers are those whose opinions are at variance with those of the state and act accordingly, in other words, heretics.

With respect, then, to the matter of usurpations, the question is not whether (and by whom) the state is empowered to do for some what they cannot do for themselves, but rather, from a Christian perspective, whether God empowers and authorizes, for a pertinent example, the governing authorities (Party A) to seize and employ the resources of one (Party B), not, as St. Paul says, to punish wrong-doers, but in order to do for another (Party C) what Party C cannot do for himself. If the state is not thus empowered, then it usurps this power and is, therefore, illegitimate.

So, I agree with Paul that the governing authorities have been established by God. That is not the question. The question is whether the governing authorities are authorized by their Establisher to do as they will, or to do as they were established to do. The question is whether the governing authorities still recognize themselves as having been established to punish wrong-doers, or whether they prefer to substitute their own notions of wrong-doing and punish in accordance with those notions, whether they prefer not so much to punish wrong-doers but to do for others what those others cannot do for themselves, and confiscating whatever properties needed, not to support their work of punishing wrong-doers but to do those things they prefer to do. And all this without the consent of those whose property is confiscated for these purposes.

Of course, those to whom Paul wrote also lived under the dominion of such a state. The governing authorities to which St. Paul enjoins obedience were also usurping powers not legitimately theirs. And yet, he says, "Obey them." Uncritical reading and recitation of this passage and others might lead us to continue a habit of submission to illegitimate authority. (Not very unlike some Christians who accepted the Nazi state on the grounds that "governing authorities" are established by God.) This is why it is important to take careful note of two very, very important facts. First, at the very moment in time at which Paul was urging obedience to the "governing authorities" he was proclaiming a message which would eventually turn that state on its very head. Second, on occasion St. Paul insisted on the prerogatives of his Roman citizenship. Roman citizenship was not something just everyone had back then. When the governing authority violated his rights as a Roman citizen, he asserted those rights, insisted upon them, in fact.

Like Paul, we have a citizenship which gives us rights against our own governing authorities. Not only that, ours is a citizenship in a country whose legal background (Anglo-Saxon law) includes the right of the governed not only to consent to being governed, but also the little known right of rebellion. So, in the same way St. Paul could appeal to Ceasar, which many of his readers could not, we can, even as Christians, legitimately insist upon our rights, including, should the need arise, the right of rebellion (as a consequence of the right of the governed to consent to their governments).

Speaking of Rome, it is interesting to pause and note that Rome, the capital city of an empire, was a republic before it degenerated into an empire. As a republic, it also was established in an act of rebellion against the Etruscan kings. So we have the ironical fact of a republic birthed in act of rebellion degenerating into an empire with a government rebellion against which was considered an act of treason. The Romans who founded the republic, claimed a right for themselves which they turned round and denied to others by expanding Rome's imperium through warfare. To be sure, beginning with Juilus Caesar, there was a pattern of granting Roman citizenship to provincials (i.e., wiping out the distinction between conquerors and conquered), but this was only to make the conquered easier to rule. Becoming a citizen of Rome did not come with a right to consent to the rule of Rome. In truth, granting citizenship to the conquered was nothing more than making their subjugation complete. But I digress.

While I affirm the right of rebellion under Anglo-Saxon law tradition, as well as another tradition going back to Juan de Mariana, of regicide, I think we (i.e., Christians) should prefer another route. Bearing in mind, as I said, above, that while Paul enjoined obedience to usurpatious, Roman governing authorities, he proclaimed a message which undermined the very state those authorities served. The best approach, it seems to me, is to agitate -- not call, not request, not even beg -- for surrender of illegitimately exercised powers.

Others, of course, would assert another approach. Christians, they would argue, should seek to hold public office, and hold those offices as ministers of God, as Paul calls governing authorities. In those offices, then, they should devolve these illegitimately exercised powers back to the states where they belong. Chief among these are, I think, Christian Reconstructionists or Dominionists, with whom I disagree.

I suppose, since the topic has come up, I should explain why. I'll have to do so another time.

To sum up my position, nothing about the requirement to give obedience to the governing authorities, means we are therefore prevented in insisting upon our rights under the laws of the nation in which we live. We can raze the servile state and at the same time acknowledge the excerise of legitimate powers. Razing the servile state is best done by attacking the dogmas upon which it rests, not the people in its employ. In other words, razing the servile state by attacking its underlying dogmas requires use of our first amendment rights, not our second amendment rights.

Part III
12 June 2009

Razing The Servile State

[T]rends of evolution can change, and hitherto they almost always have changed. But they changed only because they met firm opposition. The prevailing trend toward...the servile state will certainly not be reversed if nobody has the courage to attack its underlying dogmas. ~ Ludwig von Mises
Mises was correct to identify courage as a necessary component in beating back the "servile state". (He'd be gratified, I'm sure, to know I agree with him!) Fortunately, I don't think lack of courage is our problem at present, here in the United Servile States of America. As I listen to critiques of His Beatitude and his policies, it strikes me that the courage is there. What is missing is much greater precision in identifying the "underlying dogmas" which Mises writes of. So far, the criticism is limited to explaining that, and how, the policies are socialist and in the long term unaffordable. Call the policies socialist, then show how they are socialist. (As, for example, here, where Karl Rove argues that we will become a European style welfare state. That is not a problem if you accept, as many now clearly do, the dogmas which underlay the welfare state.) Follow up with demonstration that the policies won't work somehow. Also, with respect to the in-fighting in the Republican Party, one must show that the so-called moderates lack the fortitude necessary to confront the left.

What is really missing, among conservatives, is awareness that the problem with moderates is not lack of courage, as Rush Limbaugh, for example, is wont to assert. Rather, moderates share belief with the President in some, if not all, of those underlying dogmas. Perhaps, as General Powell suggests, "the people" want higher taxes and more government, but the question is, Should they want these things? or, more importantly, Should they have them? You don't always get what you want. And sometimes you simply don't have a right to what you want.

Now, the General may be right about the trend, but that tells us nothing about the desirability of the trend. That's the problem with following a trend: the trend itself cannot tell you whether you should be following it. This is an important point. I'll come back to it in a moment, however.

There is another failure among conservatives. They keep talking as if we do not already live in, what Ludwig von Mises (following Hilaire Belloc) called The Servile State. To hear them talk, if we don't stop His Beatitude, we shall wake up one day in a police state. The sad fact is, we are already there. And the fact that conservatives do not see this may be testimony to just how many of our servile state's underlying dogmas they themselves have already accepted.

I can only put forth the briefest argument that we live in a servile state. Let me begin with the premise that socialist and communist states are servile states. Now consider some of the goals expressed by Marx and Engels in The Communist Manifesto:

1. Abolition of property in land and application of all rents of land to public purposes.
2. A heavy progressive or graduated income tax.
3. Abolition of all right of inheritance.
4. Confiscation of the property of all emigrants and rebels.
5. Centralization of credit in the hands of the State, by means of a national bank with State capital. and an exclusive monopoly.

6. Centralization of the means of communication and transport in the hands of the State.
7. Extension of factories and instruments of production owned by the State; the bringing into cultivation of waste lands, and the improvement of the soil generally in accordance with a common plan.
8. Equal liability of all to labor. Establishment of industrial armies, especially for agriculture.
9. Combination of agriculture with manufacturing industries: gradual abolition of the distinction between town and country, by a more equable distribution of the population over the country.
10. Free education for all children in public schools.


Granted, not all of those goals have been reached here. But anyone paying attention, I think, clearly understands that these are not vastly different from Leftist goals today, at least not in spirit.

We live in a servile state. The task, then, is not to prevent a servile state from arising in our midst. The task is to raze the one we have (and have had for quite some time) straight to the ground, and then grind it to dust.

I tabled above the topic of historical trends. Let me now return to it ever so briefly. One of His Beatitude's most cherished dogmas seems to be that the direction of societal evolution will continue into the future, and that it must do so. Attempts to reverse these obvious trends are doomed to failure. We must submit to the path of history; we don't want to be on "the wrong side of history," a phrase used by His Beatitude during his inauguration speech:

To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history, but that we will extend a hand if you are willing to unclench your fist.
No assertion that "those who cling to power through corruption and deceit and the silencing of dissent" are unethical, or immoral in doing so. They are simply on the wrong side of history. There was a time when these tactics were on the right side of history, but not any longer. I suppose one could argue that it is unethical or immoral to be on the wrong side of history. But let us note the larger claim: His Beatitude, the god-like one (if Evan Thomas is anyone to listen to), knows where history (like Hegel and then Marx before him) is going, and is therefore fit to lecture leaders around the world on where history is going and how they will best be on its right side. They, apparently, must simply take his word for it.

The Blessed One re-iterated this idea during his speech at Langley, when he told attendees that new interrogation policies will put us on the better side of history. Well, thank goodness. I have been fearful that our so-called torture tactics were wrong, in the sense of being unethical or immoral. Now we can take solace in the fact that they are not wrong. They just fly in the face of what His Lordship tells us is the right side of history. Torture? That is so bell-bottoms and tie-dyed t-shirts.

The notion of historical inevitability shows up in El Jefe's approach to economics. In short, there will be no "going back" to whatever conception of capitalism He thinks has existed here. Even in this he affirms the inevitability of historical trends, Mises summarizes it:

In the last decades there [has] prevailed a trend toward more and more government interference with business. The sphere of the private citizen's initiative [has been] narrowed down. Laws and administrative decrees [have] restricted the field in which entrepreneurs and capitalists [are] free to conduct their activities in compliance with the wishes of the consumers as manifested in the structure of the market. From year to year an ever-increasing portion of profits and interest on capital invested [has been] confiscated by taxation of corporation earnings and individual incomes and estates.
Bush's mistake -- deregulation -- was the attempt to reverse an obvious trend. That is to say, Bush's policies were simply on the wrong side of history. History is going in the direction of more, not less, regulation -- more, not less, government intervention in the free (HA!) market. His Lordship is clearly on the right side of history: less, not more, private activity; more, not less, government activity. There is, of course, a problem with calling it a mistake: nothing tells us, even assuming historical inevitability (as unscientific a doctrine as ever there was), that we should be on the so-called right side of history.

Mises rather nicely disposes of the idea of the inevitability of historical trends in the article to which I've linked. But that is only one of the dogmas acceptance of which underlay servile states, especially ours. And, like Mises says, they need to be critiqued.

Part II
01 June 2009

Can Sotomayor be borked? -- a follow-up

Sotomayor, the story goes, should be called to account for this quote, making her, Rush Limbaugh's words, a reverse racist:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life....
That, apparently, is what passes as an attempt at borking. The quote is much less offensive (though no less objectionable, on different grounds) when left in its larger context:

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. ~ See here (emphasis added).
Frankly, the immediate context makes the comment less offensive because it follows an assertion about the lack of a universal definition of "wise". It's less offensive only because it's a bit nonsensical: having recognized the absence of a universal definition of "wise", it's a bit silly to go on and say anything at all about a "wise" latina. Judge Sotomayor could not even hope to distinguish between a "wise" latina and one who is not "wise". We must go on to ask how, in the absence of a universal definition of "wise", we can possilbly know that a "better" decision was reached, much less how we can know that this somehow-better decision was reached by a "wise" as opposed to an "unwise" latina.

On the subject of context there was this posting at Daily Kos, which attempts to show that Justice Alito said something similar to Sotomayor's sentiments:

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position...

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.
See? That proves it. Republicans are hypocrites.

The context, Alito's confirmation hearings, raises some doubts, however:

[SENATOR] COBURN: You know, I think at times during these hearings you have been unfairly criticized or characterized as that you don't care about the less fortunate, you don't care about the little guy, you don't care about the weak or the innocent.

Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point. I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.
To be accurate, Alito was not asked about jurisprudence. He was asked about what type of man he is. He was responding to assertion that he doesn't care about people.

There were several elucidating comments such as that Alito lied when he gave this testimony of his background, his feelings about it and the fact that he thinks about it when he attempts to apply the law (here, here, here), examples of making up facts needed to support a pre-determined conclusion. There is another, though not strictly related, example of that in this comment, in which we learn that if there is any racism in Puerto Rico it was brought there by tourists.

Bear in mind that Alito didn't say his background influenced his decisions, that wasn't the question. He certainly doesn't say anything such as that a "wise" italiano can reach a better decision than some white guy who didn't have the italiano experience. In fact he stipulated that "[I]t's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result." Keep that in mind when reading this comment. Then there's the one who claims Alito is so assimilated that he isn't really Italian anymore, here. Strawman comment in which Alito is criticized for saying that because of his ethnicity he could understand things better other who did not share his ethnicity, something he didn't say.

This is why I said leftists are so much better at borking than rightists. To successfully bork someone your audience must buy your pathetic, logical-fallacy ridden arguments. And the most potent logical tools leftists have are the persuasive definition, equivocation, strawman and the ad hominem. To regain the upper hand, Republicans, win, lose or draw, must reject borking as an appropriate strategy precisely because the tactics involved are at odds with the sort of appointees they claim to want, as well as with the sort of jurisprudence they claim to want these appointees to exercise. As Michael Polanyi says in his book, Personal Knowledge, often, in order to persuade one must teach one's interlocutor how to think. That is a very time-consuming process, and it means a few defeats before any successes. And if Republicans object to having to take the time for this, they might consider they have only themselves -- not Democrats -- to blame for the necessity.

H/T: Ethel C. Fenig, at American Thinker, here.

P.S.

As a bonus consider this pathetic refutation-by-mocking of originalism:

Judges like Antonin Scalia can throw out two centuries of precedent because they don't agree with it. Why? Because they've held private seances with the ghosts of the Founding Fathers, who revealed what they really meant when they wrote the Constitution.

How's that for a legal philosophy?
Originalists, whether their jurisprudence is right or wrong, possible or impossible, have not claimed private seances with the ghosts of the founding fathers. So what we've got here is a strawman, an argument against a proposition which hasn't been put forth. (And, as the highest court in the land, the SCOTUS is not bound by stare decisis. For, if it were, the Supreme Court could not possibly have reached the holding in Brown v. Board of Education (347 U.S. 483 [1954]) which overturned a half century of precedent going back at least to Plessy v. Ferguson (163 U.S. 537 [1896]). Besides, I don't know if we have two centuries of precedent on any legal matter, except perhaps for the notion of judicial review.)

He pretends to defeat, by simple mocking, the idea of being able to determine the meaning of a text through analysis of the text itself. Shall we apply this same skepticism to his comment at Daily Kos? Is it possible, after all these days, to determine what this silly individual really meant when he wrote that comment? If he would agree that it is still possible, these many days later, to discern the meaning of his posted comment, then what is the expiration period? For how long a time must a document be extant before only a seance with the writers of the document can reveal the meaning of the text? It is people like this who make borking successful. Is this the kind of sad, intellectual cripple Republicans want to persuade by such tactics?

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James Frank SolĂ­s
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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