Wednesday, July 15, 2009

Sotomayor vs. Ricci

Tibor R. Machan

During the Senate Judiciary Committee hearing about whether Judge Sonia Sotomayor should be nominated to the U. S. Supreme Court, a nomination which if approved by the committee's majority would then go to the full Senate for a vote (that the Judge is assured to win), one of the most controversial issues discussed was the Judge's signing on to a very brief ruling affirming a lower court's decision to support a city government's invalidation of a test for firefighters which the majority—all of them "white" though one of Puerto Rican background—had passed. This group who passed the test sued the city for what it did after the test had been administered.

Now I am no expert at the laws governing these kinds of cases but I do give and have given tests to students over my 40 year career as a college professor. And from my experience, which has involved applying standards of fairness in the course of grading my students, it seems clear that there was something amiss about what the city did. Here is how Emily Bazelon of Slate described the background of the case in her May 26, 2009, article:

"In 2003, the city of New Haven, Conn., decided to base future promotions in its firefighting force—there were seven for captain and eight for lieutenant—primarily on a written test. The city paid an outside consultant to design the test so that it would be job-related. Firefighters studied for months. Of the 41 applicants who took the captain exam, eight were black; of the 77 who took the lieutenant exam, 19 were black. None of the African-American candidates scored high enough to be promoted. For both positions, only two of 29 Hispanics qualified for promotion." In consequences the city through out the results of the test. And this is what the fire fighters, lead by Ricci, protested in their lawsuit.

Suppose I announce at the start of my class that there will be two papers and a final given to determine what grade a student will receive. When I receive the papers and the test from them, I notice that all the male students who took them did badly, while all the female ones did well. So I decide to scrap these results and devise a new and different method for grading my students.

Those who passed the tests would be fully justified in protesting—unless the test contained some major infelicities, such as grossly incoherent questions—and what I would have done could by no stretch of the imagination be considered sound, valid, or justified.

The Ricci case, as far as I can grasp it, is no different. Maybe a future test could warrant modification but not the one for which the firefighters prepared and which they then took in good faith, believing that the tests will be instrumental in their quest for promotion.

I am puzzled, though, why anyone would find what the city officials of New Haven, Connecticut, and the panel of judges that included Sotomayor did
kosher. If there is any place for concern about fairness, surely it is when tests are administered in cases such as that involving the New Haven firefighters. If the test that was administered was, despite all efforts, flawed and treated the minority group among the firefighters wrongly, the approach that would be required is to revise the test for its future use. This seems to me plainly true and not very complicated.

But it seems that the eagerness to apply nearly any version of affirmative action policies has blinded a lot of folks to all this. Even if one accepts the policy of government mandated affirmative action—which is a highly debatable one for sure in a country that is set on eliminating racial and ethnic criteria from its public policies—the good faith effort shown in New Haven in designing a good test should suffice to have the test results be binding.

The reason this is a key issue in Judge Sotomayor's hearings is that what she did suggests that she may indeed fail to appreciate that the law needs to be color blind or neutral about people's background, ethnicity, and so forth—about matters, in other words, that are irrelevant to a candidate's suitability for a job. The rule of law means just this, namely, what rules is an impartial law, not any judge's preference.

Monday, July 13, 2009

The Left's Dismissal of Individual Rights

Tibor R. Machan

For those of us who have escaped Draconian tyrannies and reached America, for a long time it may be difficult to adjust to the fact that American Leftists are every bit the fascists that some claim they are. As Susan Sontag said, "Communism is successful fascism." A little inspection of modern American liberalism will also bring this to light--just consider that it was Woodrow Wilson and Justice Oliver Wendell Holmes Jr. who had no patience with opponents of various public policies governments forged during their time and sent those opposed to them to prison. (It was Warren Harding, that negligible right-winger, who eventually set these dissidents free!)

Today the Left's fascistic tendencies are still quite evident, although there is often a kind of sophistication about them (e. g., via the doctrine of Communitarianism). Anyone who reads The New York Review of Books can testify to this. No matter what public policy issues is being discussed in its pages, The Review always treats the wealth of the nation as collectively owned, rejecting that quintessentially American idea of the right to private property. No, everything belongs to us all and government is to allocate the resources in line with how the elite deems proper.

In a recent discussion of the Obama administration's so called reform of the health care system--a reform that's really a revolution in American terms since it involves the nationalization of the system--once again it is clear that the folks over there just think the government has the authority and power to conscript our labor and confiscate our resources in support of whatever scheme they believe we ought to swallow. This is pretty much what we get in Arnold Relman's essay, "The Health Reform We Need & Are Not Getting" (July 2, 2009).

Relman has retired from Harvard's Medical School and is very closely linked with Canada's system and I am not interested in the specifics of his recommendations. What is far more noteworthy is just how readily he treats all the problems with the system he alleges in a state-corporatist fashion. It is as if America were this huge organization and he were giving its managers advice on how to deal with health care issues. What is of no concern to him, as it is not to most of those in the Obama administration, is that the resources to be used in securing various "reforms" belong to people whose permission to use those resources are by all rights required. But never mind such trivia.

The way Relman disposes of such considerations is to say, at one point that "Many others with ideological objections to 'big government' pay lip service to reform, but will bulk at proposals that threaten private insurance...." When I read these lines, about those many others "with ideological objections to 'big government'," I thought of all those millions behind the Iron Curtain who had objections to big government, all those enslaved by The Third Reich, all those caught up in the fascists policies of war-time Italy, as well as all those throughout human history who have been used and abused by big governments and their apologists (who always have some glorious excuse for doing this). To most authors writing for The New York Review of Books, however, such objections come only from ideologues, mindless zombies who simply follow some set of banalities and whose views deserve no attention or consideration by refined folks like Mr. Relman.

No one who knows a bit about the Left's social philosophy can be surprised about the Relman position since for the Left there simply exist no human individuals with rights to their lives, liberty and property. For the Left we are all cells in the greater whole of society or humanity and we need to submit to the rule of those who have somehow managed to become the chiefs of this collective. What you might like to do with your life, with your resources, is all irrelevant since you are nothing but a limb of the society, with no genuine rights of your own any more than you fingers or ears have rights.

Matters of the citizenry's health care--or of anything else, actually--are all corporate matters, and you and the rest of the population are involuntary servants of this corporation guided by the snooty wisdom of the likes of Mr. Relman. He can just dismiss all of those who might fret about issues like big government--such as the small matter of the voiding of the consent of the governed or rights violations (perpetrated when our labor and wealth is taken from us for various glorious objectives without our permission). Because we don't matter to such folks--only society, humanity, the community and such collectives have a true reality for them.

Talk about ideology! That is the most insidious ideology that has ever been concocted by the human imagination to rationalize the rule of some people over others who have been cleverly silenced. Yes, the opposite viewpoint, one that credits individual human beings with unalienable rights to their lives, liberty and pursuit of happiness does not fit within this scheme, not at all. But it is a far more sensible one.
Should Americans be Humble?

Tibor R. Machan

After president Obama traveled abroad recently it became clear that he wanted to present himself and, indirectly, America as a nation, differently from how he believed President George W. Bush did this. In particular, Mr. Bush was generally seen by his critics as more of an "ugly American," following the character of the novel by that name, written half a century ago by Eugene Burdick and William J. Lederer (who exemplified the sort of American who tended to be insensitive to the rest of the world's population, their customs and languages, etc.). Mr. Obama seems to want to change this by appearing to be less arrogant, swagger less than Mr. Bush. Instead Mr. Obama wants to be friends with virtually everyone, even those who have no interest it being friends with America and Americans, including him. This comportment of "turn the other cheek" appears to be Mr. Obama's way of conducting America's foreign affairs. No hint that America might teach the world anything about anything--indeed, one Russian commentator on Fareed Zakaria's CNN program, "GPS, Global Public Square," when asked the difference between how Mr. Bush and Mr. Obama came across to Russians on his visit, said that while Mr. Bush gave advice to Russians about democracy, human rights, and so forth, Mr. Obama simply listened to the Russians he met.

Ordinarily, in a world of civilized regimes everywhere, this approach to foreign affairs would be quite right but sadly we are not living in such a world. From its inception the United States of America stood as a challenger to the rest of the world on certain key issues of public policy. The most radical position advanced as a country was laid out in both the Declaration of Independence and the Bill of Rights (the U. S. Constitution). This was the idea that governments don't rule; they aren't the sovereigns in a country but the citizens are.

Hardly anywhere else in the world and throughout human history has this stance been embraced officially by governments and their officials. To the contrary, while the American Founders held that you and I and the rest of us own our own lives and must be left free to govern it to ends we ourselves have the right to select, around the globe the idea has been that governments set the agendas to which the lives and labors of the population are to be conscripted. While here and there this notion began to be asserted less and less confidently, so that kings and czars and the like began to lose their absolute authority over the people, the basic idea never really changed. Governments are supreme, they rule the people, more or less brutally or gently, but they do rule. (In Dubai they actually call the head "the ruler.")

Now this fact has never endeared America and Americans to the elite of the world, those who felt that they do have the rightful authority to rule, to decide what goals people in their countries should pursue. The notion that these individuals have a right to the pursuit of their own happiness just seemed wrong, self-indulgent, and yes, arrogant. You need to consider this in light of the fact that for centuries and centuries ordinary human beings everywhere were deemed to be the unwilling or at times somewhat accommodating building blocks of grand and not so grand national projects. All those fabulous ruins of the past, such as Rome's Colosseum and Egypt's pyramids, were built not by using freely sold labor but, at least to a significant extent, from the work of slaves (some of whom were taken in battle, some the children of these, some convicts, but many simply people who could not resist the powers that be). Above these folks always stood the rulers, the class of human beings who managed to convince themselves that they had a God given right to rule others, and who were willing to impose this rule throughout the realm. And this went on for a very, very long time, so that in most places it is still regarded as the political norm.

In light of this picture it is no surprise that America's declaration to the world, even in its current watered down rendition, is offensive to all those who get to talk about these matters--who come on various prestigious forums and interview programs and appear in prominent journals and get invited to visit top ranked universities--except a very few who understand that the American message is actually right on.

No doubt some Americans, including some American presidents, embrace a rather crude, unsophisticated version of the American message and project this "ugly American" image but it needs to be noted that just by being normal Americans who are loyal to the spirit of the American founding they would be offensive to many of the elite abroad anyway. (The rest nearly all wish they lived here!)

So Mr. President, please don't bend over backwards to please everyone around the globe. Certainly many are not worthy of being appeased by you. Being civil to them all does not mean accepting the idea that America must become humble. Its creed is that of proud human beings, not of paeans.

As a footnote, the other evening I checked out the David Letterman show on CBS-TV and heard the announcer saying "From New York, the greatest city of the world" or something to that effect. And I imagined President Obama, given his attitude, writing to the producers saying they need to tone this down lest they offend the rest of the world's cities. Maybe I am paranoid but maybe this is just what we have to look forward to.
Lawyers Lawyers Everywhere?

Tibor R. Machan

Compared to, say TV GUide or Reader's Digest, The New Republic is a low circulation magazine. It is, however, this country's most prestigious and maybe most astute political-cultural publication. It carries articles on a wide ranging set of topics--from daily political affairs to reviews of the most esoteric philosophical books. It has had stars such as Michael Kinsley and Fred Barnes and Andrew . Its editorial views are not easily predicted. And it is very enjoyable to read, whatever your politics happens to be. As a co-founder of what has been aspiring to be a competing publication, Reason, I must admit that The New Republic is far and away the best read for those of us who care about public and cultural affairs.

Yet narrow-mindedness is not unfamiliar to its pages. Thus it recently unhesitatingly embraced the doctrine of nudging as Obama’s wise public policy vis-à-vis the business community, even though the Obama administration has been about as intrusive in the American economy as any administration since FDR’s.

Not very long ago, in a review of several fictional and non-fictional books of on the law, the author offers this unabashedly ignorant passage:

To an imagination of any scope," [Oliver Wendell] Holmes wrote, "the most far-reaching form of power is not money, it is the command of ideas." That now has the platitudinous ring of a commencement address to which the graduating class listens patiently, all the while believing, on the evidence of nearly everything that surrounds them, that money will always be a vastly more far-reaching form of power than the command of ideas. How else is it possible to explain the enormous growth of the legal profession in the last thirty years? In this country between 1965 and 1990, writes [Lincoln] Caplan, "the number of lawyers leaped .. from 296,000 to 800,000....

Aside from the fact that this passage supports if not confirms Holmes' observation--the belief in the power, not to mention in the corrosiveness, of money is itself a result of the command of a very ancient idea--the rhetorical question does not have the self-evident answer the reviewer believes it does. There is a very obvious alternative possibility.

Is it not just possible, indeed very likely, that the enormous growth of the legal profession is due to the enormous growth of laws, especially government regulations of the economy? We have since the 1960s increased the number of laws and regulations enormously. The federal government alone writes thousands of new laws every year. The states, counties and municipalities add their (unfair) share. And the people--all the way from the local barber to multinational corporations' CEOs--need to hire lawyers to help them navigate the resulting legal labyrinth. Just now they are all gearing up to defend themselves from the Obama administration’s highly probable meteoric increase of government regulator measures of America’s financial institutions.

The New Republic is, no doubt, a superb magazine. But it suffers from its own ideological blinders. The editors probably found this rhetorical question about lawyers perfectly sensible, given the command of the idea that money is something awful but very tempting and that the relentless manufacture of laws and regulations in this country is, well, the thing to be taken for granted. Had they but considered that maybe these laws and regulations are mostly superfluous, the product of politicians posturing as savers of humanity, they might have asked the reviewer to think again about that sentence, to consider that the entire drift of the review might need to be recast to reflect not a well entrenched prejudice about money but the reality of the enormous growth of statism in the United States of America. All they need to do to see this is to read reports such as that of former administrator of OIRA--Office of Information and Regulatory Affairs--in the Bush administration, "Lessons Learned, Challenges Ahead," in Regulation magazine, Summer 2009.

And Ms. Dudley isn't even a radical about government regulations, someone who considers all of it ultimately a violation of due process (bothering citizens, imposing burdens on them, restraining their actions, before they have been proven to deserve any such treatment. Even some of the friends of regulations can see that with their relentless proliferation, they must give rise to greater and greater demand for attorneys who might just lessen their vicious impact.