Steven Douglas Maloney

Archive for the ‘Political Theory’ Category

One of the nice discoveries of being in a Derek Parfit reading group – aside from encountering Parfit – is that I am going to stumble upon some other interesting and thoughtful blogs as others host the chapters.  As such, I have very belatedly run into an Arendt question that apparently has people talking, both here and here.  

Is Hannah Arendt a philosopher?

I believe that the answer is yes, but with a qualification.  She is one “with a hammer,” as Nietzsche would say.  I think Arendt would agree with Hubert Dreyfus’ reading of Nietzsche’s aphorism about God having been killed by man in The Gay Science, as indiciating that God is not the Christian God, but God is the idea (going back to Plato) that there is a perspective on the universe that will completely explain all things, and that the judgment of our lives and their meaning is in accordance to this standard.  

In following Nietzsche, Heidegger, etc. down this road, Arendt is in some sense an “anti-philosopher.”  She takes multiple cuts at perceiving the same thing over and over again, the way an artist makes multiple sketches, and sometimes multiple versions (like Monet, for example) in order to work out her relationship with the world.  

Many commenters on the two above cited blogs have stressed that Arendt says she is not a philosopher as a way that sets her up as an anti-philosopher like Nietzsche or Kierkegaard.  Where I think we can take Arendt at her own word about what she is doing is when she said in an interview with Gunther Gaus, “I want only to understand.” and that if her work helped others understand, that would feel like, “being home.”  For me, that is the Arendt comment on Arendt that is worth thinking through in order to understand what she has done.

Here again, is the Sotomayor quote that has some rankled:

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

Here’s the context of where and why she said it, via the WSJ.  

The idea of legal realism came back in the now-famous 2001 lecture Judge Sotomayor delivered at the University of California, Berkeley, titled “A Latina Judge’s Voice.” There she disputed the argument by former Supreme Court Justice Sandra Day O’Connor that a “wise man” and a “wise woman” should necessarily reach the same verdict.

Let’s play a game:  Objective:  PROVE JUSTICE SOTOMAYOR’S STATEMENT INCORRECT

HYPOTHESIS:  It would be good if all justices should rule the same regardless of race in all cases

CASE:  Korematsu v. United States

WISE WHITE JUDGES: “Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for.”

CONCLUSION:  A Wise Japanese-American judge would agree with the “Wise White Judge Opinion.”

Ummm… Q.E.D. ?????

It’s funny.  I watched the HBO movie Recount last night, where both sides of the Bush-Gore election are portrayed in a fairly positive manner, but the Supreme Court is not.  It was an interesting thing to watch in the context of the nomination of Justice Sonia Sotamayor to the United States Supreme Court.  

I’m not sure how anyone can look at Bush v. Gore and not say, at the very least, that the court always makes decisions as an exercise of political power that awards some as winners and others as losers.  This is what President’s do when they set particular administrative policy, and it is what Congress does when they pass legislation.  In the olden days (see: Montesquieu, Madison), these three facts were called judicial power, executive power, and legislative power.   Somewhere along the way, America has become bedazzled by this idea that judges somehow do not use power, and that their decisions on law are simply like “calling balls and strikes,” to quote our now Chief Justice of the Court.  

What is funny, actually, is that Justice Roberts’ famed comparison not only misstates the duty of the court, it misstates the purpose of umpires.  Yes, umpires are supposed to call balls and strikes as accurately as possible.  But they are supposed to do so in order that no one feels as though the game’s integrity is compromised.  We use umpires because they are disinterested, not objective.  Even with television exposing the shocking performances of officials in sports night after night, we need them in order to contain the impact that certain types of cheating and intimidation have on deciding winners and losers.  

This, too, is in effect what the use of judicial power is for.  It is designed so that it may allow politics to determine who wins and loses under the conditions that it finds most prudent for all.  Judges are as disinterested as possible, but are not wholly disinterested.  If one looks at the decisions of Justice Scalia, who is supposed to be one of the great examples of “judge as umpire,” one can find passages about the core of our culture in gay rights decisions, implied harm to political candidates and the nation in Presidential recounts, and proclamations that Supreme Court rulings on releasing detainees have made our country “less safe.”  Even Justice Scalia has an understanding that the judiciary rules on the structure of power in society and deems some ways valid and others invalid.  He has a particular view, that is colored by his particular notion of what’s at stake in who it would be wise to privilege in these power relations.    While I do not always agree with his sense of what is prudent in assigning these privileges, I do think he is, in fact, trying to make legal decisions with these concerns in mind, and is right to do so. 

In this context, the “umpire” view of justice actually hinges on preserving the existing privileges in the structure of power in American society as much as possible.  It is not, on the whole, a terrible impulse.  It is also, clearly, not always the best impulse either.  In fact, Sotomayor’s comment, “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.” Is directed specifically at egregious decisions by famed early twentieth century legal realists who made egregious legal decisions because they had no understanding of how underprivileged non-whites fit into the current and future constellation of the American regime.  

As Brian Leiter points out in the link above, there is empirical evidence to show that race effects legal decisions.  However, to firmly believe that this implies something about the law, argues some in the opposition, makes a judge not sufficiently disinterested to be competent.  On this view, the only way to prove you are disinterested enough is apparently to lie about how disinterested you are.  

I do not know if Justice Sotomayor would make a competent Supreme Court justice or not.  What I think that I do know is that the idea that privileging the allocation of power to its default sources is what conservative justices do, and that this is not always either the best or the worst course of action.  Neither is having the position of Sotomayor as I understand her position.  In short, their is no implied holy covenant of jurisprudence that either a Scalia or a Sotomayor offends, so let’s stop pretending that there is and move on.

Brian Leiter posted a poll for the best political and legal theory journals… I find this interesting both for future reference if I ever publish again with Sybil, and also because the poll ranks Condorcet Winners.

Every time I plan out a political theory course, I try to have a major theme that I organize the course around.  The theme for my Fall 2009 POLS 275 Course:  Enlightenment and Political Maturity.

I am now chairing my first MPSA panel.

“Regimes depend on men’s virtues, not on institutions; if the highest virtues are not present in the rulers, an inferior regime must be instituted.”  

  Bloom is talking about what he thinks one of the critical lessons of The Republic is.  I have to say that I am somewhat warm to the statement.  It seems as if institutions need to be crafted around virtues (or lack thereof), and not as much the other way around.  I see Bloom’s comment not as a lament that we are not virtuous enough for the best regime, but that we are involved, as the rulers of our state, in coming to make wise compromises with our defects.

The Washington Post is up in arms about the truth with an article about falsehoods perpetuated by both campaigns and the EJ Dionne question “Does the Truth Matter Anymore?” Candidates poison the information market for their own gain, embarrssing themselves with such nonsensical logic as Republican Strategist Mr. John Feheery’s analysis in the article:

“The more the New York Times and The Washington Post go after Sarah Palin, the better off she is, because there’s a bigger truth out there and the bigger truths are she’s new, she’s popular in Alaska and she is an insurgent,” Feehery said. “As long as those are out there, these little facts don’t really matter.”

I do regret missing that day in philosphy when we examined the relationship between the varying sizes of facts. Of course, the reason why men and women of great accomplishment are forced to engage in such mind-numbing behvaior every election season (and it would be impossilbe to say that anyone who ran for President in either field was not a person of remarkable accomplishment) is because the competition for elective audience demands it.

No matter that a free and independent mind should rather incur physical pain than say such stupid things without accepting correction and apologizing, the core problem is the Mr. Feehery is, in his own perversley put way, telling the truth about what does and does not work in democratic politics in our age.  What he does for a living works. And before you start thinking up examples of people victimizing others that “work” for the vicitimizer like a sotry about an excellent bak robber or some such thing, you can spare me right now. It seems quite obvious that there is a “pull” in the information market for such lunacy, and Mr. Feehery and his colleagues and oppostie numbers on the Democratic side are as much rushing to fill demand as they are to create it. It is way harder to create demand for something than it is to supply something that people already want.

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We sympathize with the dead, and, overlooking what is of real importance in their situation, that awful futurity which awaits them, we are chiefly affected by those circumstances which strike our senses, but can have no influence upon their happiness. It is miserable, we think, to be deprived of the light of the sun; to be shut out from life and conversation; to be laid in the cold grave, a prey to corruption and the reptiles of the earth; to be no more thought of in this world, but to be obliterated, in a little time, from the affections and almost from the memory of their dearest friends and relations. Surely, we imagine, we can never feel too much for those who have suffered so dreadful a calamity. The tribute of our fellow-feeling seems doubly due to them now, when they are in danger of being forgot by everybody; and, by the vain honours which pay to their memory, we endeavor, for our own misery, artificially to keep alive our melancholy remembrance of their misfortune…. It is from this very illusion of the imagination that the foresight of our own dissolution is so terrible to us, and that the idea of those circumstances, which undoubtedly can give us no pain when we are dead, makes us incredibly miserable when we are alive. 

And from thence arises one of the most important principles in human nature, the dread of death, the great poison to the happiness, but the great restraint upon the injustice of mankind, which, while it afflitcs and mortifies the individual, guards and protects the society.

- Adam Smith, The Theory of Moral Sentiments

My new course. My new school.