Experience as a competent appellate court judge should trump all else in the selection of a Supreme Court justice.
preg_replace('/<\/?p( [^>]*)?>[ ]*/', ' ', preg_replace('/The United States Constitution is silent as to the qualifications of Supreme Court justices. An illiterate ninety year old citizen of North Korea suffering from senile dementia and on life support could, consistently with the Constitution, be nominated by the President and approved with the advice and consent of the U.S. Senate. Fortunately, that seems quite unlikely to happen. In any event, there being none, this article is not about the Constitutional qualifications of Supreme Court justices.…
[ ]*/', ' ', ''))
Article comments
176 - Dan(Miller)
Completely off thread, but nevertheless of interest to some, the RSS Comment Feed option at the top of the comments pages provides recent comments more conveniently than does shuffling back into the articles to see whether there have been any. There is a lag, longer than the almost non-existent lag was in receiving e-mail notifications from BC. Still, until that very useful feature is revived, it helps.
Dan(Miller)
177 - Ma ® k
The concepts of 'ruling ideas' and social power relations predate Marx's work. He's just one in a long line of social critics. Thus, Hegel's (and Smith's for that matter) work contains many of Marx's complaints and observations though he turned his back on them without resolution in favor of the ruling ideas of his day.
Rog, you repeatedly claim that Marx is passe; I assume that you will fill in the blanks about what "conditions are long past" since he gave his description of the productive relations under capitalism and their consequences rendering him so in your thinking. I look forward to your articles.
imo the problems with the 'ideal' (and positivism generally) come when we succumb to the temptation to believe it to be the 'real' rather than a tool of thought as you describe it. Thus, for example, the goal becomes finding the 'impartial judge' while conveniently forgetting to remember that no such critter exists.
That said, the problem with Marx is that he failed to realize that:
If it works at all, it works for all.
178 - Clavos
And its corollary,
If it doesn't work for all,
It doesn't work at all.
179 - Ma ® k
(Cindy #170, you don't need no stinking math to grok the problem...)
180 - Ma ® k
Clavos #178 - exactly right.
181 - roger nowosielski
My main problem with Marx, Mark, is his limited view of consciousness, which understandably, arose out of his analysis of the conditions then existing in the early industrial nations, I believe Germany in particular. But I don't want to go too much into detail now because a partial critique of Marx is covered, only incidentally and in passing, in the article I'm working on.
Think on this, though. The conditions which account for the explosion of, I shall call is "mass consciousness" for lack of a better term," are the very conditions made possible by full development of a capitalist society. And the interesting twist is that the very ideology (of the new and expanded consciousness) is directed against any further capitalist development - one might say toward the destruction of the system. So here is the problem: the elimination of those very conditions which the ideology aims at removes, at the same time, the very circumstances which gave rise to the ideology: in short, we may revert to the dark ages and dark thinking once the main order of business is going to be physical survival, and not have the luxury to be concerned with the plight of others.
182 - Clavos
Well put, Roger.
183 - roger nowosielski
Thanks, Clavos.
Mark, I never said or implied anything to suggest I'm guilty of reification of concepts. And when I'm talking about "ideals," I'm talking in the classical sense - about ideals such as justice, and some of the virtues. You don't expect me now to throw Aristotle out the window or the concepts of actuality and potentiality? Once we do that, we become no better than the brutes.
184 - Cindy
I'm confused.
185 - Cindy
Mark,
What does Roger mean, in plain words? Or even psychology terms would be understandable to me.
186 - Cindy
And now I found this:
Ideology as a Paradigm
'There has been much confusion about the relationship of material conditions and consciousness in Marxism. Some confusion undoubtedly derives from seemingly contradictory statements made by Marx.'
(snip)
That Marx could be so misunderstood (even by Engels) on this point is probably the result of Marx's devoting only a few sentences to a direct explanation of his break with the fundamental starting points of modern Western epistemology.
(snip)
In the "Theses on Feuerbach" Marx explicitly rejects the epistemology of mechanistic materialism which he is so often [p]resumed to accept. He even argues that a reflectionist theory of consciousness is ultimately conservative in that it does not suggest how change is possible.
So, now I don't even know if what I read about what Marx thought about consciousness is going to be right--if it's true that even Engels misunderstood what he meant.
187 - Ruvy
Stan,
This warms my heart to read....
Ruvy: "In any event, the gold standard of justice is that a judge respects the law, not the person, and pursues justice (or at least equity)."
Bingo ... which is why I believe judges should be independently appointed by a judicial body of their peers with no affiliations, rather than elected or appointed through political association. If they former, they are less tempted to take on the black and white hue of politics.
That elected or politically appointed bit poses a genuine problem ... in the political race for politicians to outdo each other on law and order issues, or to cave in to public opinion, real justice inevitably goes out the window.
But I am forced to disagree - the solution you propose is more or less in force here in Israel; an independent judicial panel picks judges. But over time, the judicial panel has become a clique unto itself, with a distinct ideological bent, and instead of getting what the law here requires - impartial rulings that interpret the law in the spirit of the Torah - we get highly partial and bigoted rulings that do not even refer to the spirit of the Torah at all.
The theoretical solution you have laid out has been tried here. And it is an utter failure. Sorry to disagree. What you have laid out looks so good.
188 - Cindy
#186 was to Mark too.
189 - Ma ® k
Cindy, my understanding of dialectical materialism is that consciousness develops through the interplay not simply of material conditions, but of that between material conditions and consciousness carried over from the past through productive social relations.
What I get from what Rog is saying (and which any consistent Marxist ought to agree with imo) is that if the capitalist system of production fails before its benefits are universally developed, then people will be too busy feeding themselves to implement a humanist agenda. Marx was clear in his insistence that a successful socialism can be built only under conditions of high and growing productivity; I think that he failed to follow this notion through to its logical conclusion. Quite literally, it must work for all or it won't work.
190 - Clavos
Marx was clear in his insistence that a successful socialism can be built only under conditions of high and growing productivity; I think that he failed to follow this notion through to its logical conclusion.
Quoted for Truth.
191 - Ma ® k
Rog #183 - I assume that you're speaking for yourself and not denying that reification occurs.
192 - Cindy
Thanks Mark...much much better.
I think that he failed to follow this notion through to its logical conclusion. Quite literally, it must work for all or it won't work.
I still don't get that part in relation to everything else (the state of affairs not being conducive to Marx's outcome).
Where is a Marxist when you need one? I want to here a proponent's perspective.
193 - Cindy
I asked for help from a Marxist, who read this conversation and had these comments:
"Having read though that a few times I have to admit I'm still a bit lost. But here's my 2 cents....
Roger seems to misunderstand the point. Class consciousness grows through the capitalist system of class differentials.
Once this is understood then workers can create a classless society.
The experience of Capitalism is necessary as it is the next development of human society, after feudalism slavery etc.
Marx knew that capitalism was an improvement from previous social conditions - He said it in the first paragraph of the Communist Manifesto
Further that Ma®k presumes falsely that Capitalism is the most productive mode of production."
I tried to get him to join the conversation directly, because I don't clearly understand this and would benefit from seeing a discussion between people who do. Maybe next time, for now it is midnight in England and bedtime, apparently.
Maybe Les Slater will pop in one day and have a discussion.
194 - M a rk
I don't think that we can put an end to class conflict through intensified class conflict as Marxists call for. Rather, we need to develop an alternative to the profit motive and its accounting techniques. This alternative can be developed on both moral and practical bases. This has been my call here on BC since I stumbled in. I faithfully await Wells' comet.
195 - Cindy
I should just find a class online.
196 - Cindy
Mark
I don't think that we can put an end to class conflict through intensified class conflict as Marxists call for.
Why? It wouldn't work? Or it's not desirable?
Also, what form does Marxism say the intensified conflict takes? Just worker revolution? Seizing means of production through force?
Rather, we need to develop an alternative to the profit motive and its accounting techniques.
Where can I read something (understandable, I hope) about that idea?
I faithfully await Wells' comet.
Will it be less than 10,000 years? Patience is a virtue. :-)
(I think my Marxist friend's good intentions were wasted on me...it didn't much clear up my remaining questions about the whole discussion.)
197 - Cindy
#190
Clav,
You understood that. Can you explain that to me (sorry I really still don't understand.) Sometimes saying things different ways works.
LOL fuck! I hate feeling stupid. I just don't know why I don't get it.
198 - Bliffle
One could argue that an appeal to impartiality and the elimination of empathy is a ruse, a disingenuous attempt to appear fair while actually putting a thumb on the scales of justice.
Of course, when an assembly line worker loses his arm to a factory machine and sues the factory for damages, loss of income, etc., he may file a lawsuit for damages.
He alleges irresponsibility at the factory. The factory alleges that he was careless, and , anyway,he deserves no better.
Allegations are exchanged. Arguments are made. What is the poor judge to do? It's a tossup.
Should he decide for the worker and risk the contempt of the BC anti-empathy writers? Should he decide for the worker and risk the enmity of his friends at the Elks Club who are successful businessmen who sometimes put him onto profitable real estate deals?
Or should he decide against the worker and risk the enmity of...whom...?
199 - roger nowosielski
Mark,
I'm sorry I didn't plug in earlier.
As to reification, yes, I was speaking for myself. But how does it occur on a general level? A word or two from you so I can respond.
My main point was that Marx's conception of higher "mass consciousness" was limited to class consciousness. If he thought "class consciousness" an intermediary step to a more general kind of consciousness, then I have no quarrel with Marx. But even in that case, the conditions have changed in that that the intermediary step is not necessary any longer in order to move on - which is to say, we're almost there.
The main point of contention seems to be that whatever the case, it seems you can't attain that state in the absence of a certain level of prosperity for a great many. People will revert to their barbaric self if they have to be preoccupied with just being able to make ends meet. And this is reflected on the individual level as well - e.g., in terms of Maslow's levels of needs, whereby self-actualization is possible only when the more basic needs are met and no longer unsatisfied. So basically I hold on to pretty much the same paradigm - in this one respect - when it comes to a collective.
Mind you, though. The disagreement we may have as to the values you and I put on the desirable level of consciousness. What I may regard as satisfactory, or at least as a step or a stepping stone in the right direction, you may regard as false or not good enough. About that I can't help and it would be a disagreement over values and different view of eschatology.
So that's for starters.
200 - M A rk
Why? It wouldn't work? Or it's not desirable?
The suffering involved would be undesirable, and there is no reason based on history to conclude that violence 'works'. Creative destruction is just more of the same. There is no 'just' war, class war included...ymmv
Where can I read something (understandable, I hope) about that idea?
I know of no economics that isn't based on the assumption of private or social profit/production maximization.
Will it be less than 10,000 years? Patience is a virtue.
"Not only is another world possible, she is on her way. On a quiet day, I can hear her breathing." Arundhati Roy
201 - M a rk
Our task is nothing less than consciously changing human nature.
202 - M ar k
Rog, I'll need some time to respond to your #199. I don't want to simply quote Hegel.
Hopefully, I get something together before the conversation goes cold.
203 - roger nowosielski
Mark,
I agree about #201 and (partly) disagree.
"Human nature" is an elusive concept and overused. And if it is subject to changing, it's only indirectly, through enhanced consciousness.
So yes, we do have THAT responsibility, just as we have a personal responsibility with respect to our acquaintances and friends to point out to them what we perceive as "their wrongs," for that sake. Whether it changes "human nature" is another story and I don't have to delve into that aspect. Suffice it to say that retrogression is always a possibility; at the same time, it is also true that we are (and become) what we behold.
This is of course more true of the individuals - when dealing with a case by case basis - than of a collective. The problem with "mass consciousness" is that it must acquire a sufficient momentum in order to ensure against sliding back - which is to say, it must become the prevalent "ideology" if it's to persevere.
204 - Cindy
#20
Thanks Mark.
Yes, war won't 'work', that part I'd know you meant. Better way of putting it: I was trying to understand whether Marx was wrong in an academic sense--whether his idea would not result in his outcome (even say, were one to agree with class war). I know he supports liberation war and not the other way around. I'm trying to figure out where he made sense--versus where he was just wrong (as in withering away of the state--to me that is just wrong).
I have another Marxist in reserve to help me. She'll be able to re-explain it 42 times until it sinks in. Plus...
I think I found an online class to study Marx. I'll be needing it if I ever want to talk to Marxists about anything. Besides, I am getting picked on now by 16-year-olds because apparently they learn all about Marxism in AP Gov class (sigh).
BTW Andrej has a new video: It's a panel on the Wobblies/Zapatista book. You might like it. It's addressing ideas about what is needed in a movement now in the U.S. Anarchism & Marxism Part 1. I think it's divided into 9 small parts or so.
Arundhati Roy -- I love that. :-)
205 - M a rk
I have no doubt that the contradictions inherent in capitalist production will result in a general crisis that working people will find unacceptable. I hope that we can avoid the whole 'dictatorship of the proletariat' thing. My job as an anarchist is to start protesting that state of affairs now. The withering away of the state is not optional.
206 - Cindy
Our task is nothing less than consciously changing human nature.
Yes. That's how I see it too--conscious change. Thus, education has been my focus forever.
207 - Cindy
Education and human development.
208 - Cindy
I think this very short quote, says pretty much everything:
“There is no way to peace " peace is the way” " A. J. Muste
209 - Clavos
Dan(Miller);
Your thread has devolved (descended?) into anarchy...:>)
210 - roger nowosielski
Not if I can help it.
BTW, Clavos, could I direct my next two articles to your attention - not just for editing but feedback?
Roger
211 - Cindy
Sometimes, I just adore you Clav. :-)
212 - roger nowosielski
You may well have to, because you're running out of alliances, and quickly.
213 - Cindy
But I would say 'evolved' Clav.
John Stewart conceptualizes evolution itself as having reached the level of complexity that it will be driven consciously. (Even if he were wrong, it still works on a social level, to me.)
John Stewart:
It is as if evolution is a developmental process. Just as a human embryo is organized to develop through a number of stages to produce an adult, evolution tends to produce a particular sequence of outcomes of increasing complexity. Initially, evolution moves in this direction of its own accord. However, at a particular point evolution will continue to advance only if certain conditions are met: organisms must emerge that awaken to the possibility that they are living in the midst of a developmental process; they must realize that the continued success of the process depends on them; and they must commit to actively moving the process forward.
This relates, to me, very much to what Mark said:
"Our task is nothing less than consciously changing human nature."
I see Anarchism as a way of embracing that 'evolutionary' change.
So, there is my case. Dan(Miller)'s article has evolved into anarchy. :-)
214 - Dan(Miller)
Clav (#209) and Cindy (#213) -- Yep. I'm waiting for some pirate jokes.
Dan(Miller)
215 - roger nowosielski
That means, of course, that Dan Miller has resigned himself to the fact that his thread is going nowhere and that it had, "devolved" is the right word, into trivia.
Oh, well, the things humans won't do to be liked.
216 - Clavos
Sometimes, I just adore you Clav. :-)
Thank you, Cindy -- unfortunately (for me), you're in the minority.
217 - Clavos
BTW, Clavos, could I direct my next two articles to your attention - not just for editing but feedback?
I'll be glad to work with you on your pieces, Roger. Isn't this a bit of an about face for you? I recall you saying not too long ago that you didn't want me to touch your work.
218 - Clavos
But I would say 'evolved' Clav.
Of course you would, Cindy. :>)
219 - Clavos
I'm waiting for some pirate jokes.
Hate to keep a man waiting:
A pirate walks into a bar and the bartender says, "Hey, I haven't seen you in a while. What happened, you look terrible!"
"What do you mean?" the pirate replies, "I'm fine."
The bartender says, "But what about that wooden leg? You didn't have that before."
"Well," says the pirate, "We were in a battle at sea and a cannon ball hit my leg but the surgeon fixed me up, and I'm fine, really."
"Yeah," says the bartender, "But what about that hook? Last time I saw you, you had both hands."
"Well," says the pirate, "We were in another battle and we boarded the enemy ship. I was in a sword fight and my hand was cut off but the surgeon fixed me up with this hook, and I feel great, really."
"Oh," says the bartender, "What about that eye patch? Last time you were in here you had both eyes."
"Well," says the pirate, "One day when we were at sea, some birds were flying over the ship. I looked up, and one of them shat in my eye."
"So?" replied the bartender, "what happened? You couldn't have lost an eye just from some bird shit!"
"Well," says the pirate, "I really wasn't used to the hook yet."
220 - roger nowosielski
Clavos, #217.
I'm certain you realize by now I'm temperamental. Character deficiency, no doubt, for which I can only apologize.
I'd like to, however, to go with my better judgment, even if it means overlooking your propensity for sarcasm.
221 - Cindy
A dyslexic pirate walks into a bra.
222 - Dan(Miller)
Re # 215 -- would someone please tell Roger that I solicited PIRATE jokes?
Dan(Miller)
223 - Franco
95 - Glenn Contrarian
"FYI, if you'd read my first reply to Dan's article, you'd have seen me give kudos and compliments to him for the contents of the article. I guess you were too busy making a strawman out of me to consider that little fact."
False: I did see and read your comment complimenting Dan’s article. But that has absolutely nothing what so ever to do with my question to you in post #79 when you dodged the issue of empathy and talked about everthing else but.
You used everything else said as the stawman to get out of addressing ‘empathy”, and your post 95 was just more horanging about everything else but ‘empaty” once again, which only confirms my origaal post #79. You still have not answered the question. Here it is again.
Glenn, would you want to go into court to appear before a judge with "empathy" for groups A, B and C, if you were a member of groups X, Y or Z?
224 - Dan(Miller)
An article in Slate prompted me to think a bit more today about the meaning of empathy, as it is there argued the word was used by President Obama. According to the article, "empathy" is not a code for something else. I have no idea whether it is a code word or is not. However, words themselves have meanings, and the interpretation placed upon the word in the article and there attributed to President Obama is interesting.
"Webster's defines empathy as 'the experiencing as one's own the feelings of another.' Obama, in The Audacity of Hope, described empathy as 'a call to stand in somebody else's shoes and see through their eyes.' To Obama, empathy chiefly means applying a principle his mother taught him: asking, 'How would that make you feel?' before acting. Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn't mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.
****
[E]mpathy"at least as Obama has used the word"decidedly does not mean favoring only the poor, women, or minorities in every dispute. Again quoting from The Audacity of Hope: "Empathy … calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision."
Pretty words, no doubt; but what does all of this mean? To the extent that it means understanding and properly considering all facts in a case which are relevant under the law, then I have no problem with it. Should the feelings, or the factual situation, of an impecunious widow about to be evicted from her pitiful hovel due to the non-payment of the agreed upon rent be relevant under the operative statute, then clearly those facts and feelings should be given due weight and possibly decisional significance. To the extent that they are not relevant under the statute, they should be given no weight at all, no matter how badly the judge may feel about it or how greatly he may feel the widow's suffering. That is the function of a very different branch of Government.
Assume a statute stating, "any person renting real property who shall fail to pay the rent due under and according to the terms as set forth in the rental contract to which he is a party shall, upon proper request and the presentation of relevant evidence to a court of competent jurisdiction, be evicted from said property forthwith." I know of no such statute, but assume with me that it is the law pursuant to which a judge must decide a case. The judge then has no discretion to consider the widow's personal situation, her feelings, or whether he would have written the statute differently had he had the opportunity to do so. He cannot properly put himself in the shoes of either the landlord or the tenant. He cannot properly put himself in the shoes of counsel for the plaintiff or for the defendant, no matter how badly either might feel were his client to lose the case. He simply has no warrant to rewrite the statute, to ignore parts of it, to supplement other parts in his judicial capacity, or to be guided by how he would feel were he on the other side of the bench as plaintiff, as defendant, or as counsel for either; or to "experience as . . .[his] own the feelings of" such others. To act upon such a empathetic experiences in his judicial capacity would violate his oath if he had taken an oath comparable to the one taken by Federal judges.
Legislators do have not only the discretion but also the obligation to think before they legislate, and when the implementation of a statute produces outcomes which they find offensive, to do something about it -- by repealing or modifying the statute, albeit prospectively. The electorate also has not only the discretion, but also the obligation as well, to see to it that their legislators do so. It is the function of a judge to apply statutes as written, not to make up for the all too often sloppy work of legislators or of the voters who employed them.
Judges and legislators are very different species, and to wish them to behave as though they were the same or even nearly so, or to perceive of their functions as the same or nearly so, grossly distorts the separation of powers and functions embedded in the U.S. Constitution. Judges are not called upon to "do good" according to their empathies or other lights; they are called upon to rule upon the disputes before them justly, in accordance with the statutes authored by others.
Dan(Miller)