UP@NIGHT

I kid you not.  The editors at Newsweek have presented us with one of the most biting pieces of (indirect) commentary yet to appear in a major American periodical.  On the last page of this week’s Newsweek (November 2, 2009), Governor Mark Sanford’s wife is quoted as saying about his affair, “I know that I’m going to be fine, and not only will I survive, I’ll thrive”  (Jenny Sanford).   This quotation is found among statements from the spouses of several other unfaithful hubbies, all public figures.  Okay, pretty tacky.  But I am not here to complain about tackiness.

Six pages earlier in the magazine there is a two page piece by the Governor himself.  Title you ask?  “Atlas Hugged,”  which appears to be referring to Ayn Rand’s novel Atlas Shrugged, but is no doubt also talking about Sanford’s relationship to Rand. So now poor Jenny has to deal not only with the woman in Argentina but Ayn Rand, a serious swinger in her day.  Could Sanford have been responsible for this title?  Did he know that Jenny’s words would appear just pages after his?  Did he care?  Can this man handle not having his fifteen minutes of fame endlessly loop around the air waves?  The mind boggles.  But the piece does sing the praises of the true individual.

Ah, the piece.  It is about how this is a good time for an Ayn Rand revival.  And yes, while Sanford does have some reservations these days about Rand, he was once a true believer, and he still appears smitten.  There are some wonderful passages in the Newsweek article.  Take this one from Sanford’s pen on Roark, the hero of Rand’s book.

The Fountainhead is a stunning evocation of the individual and what he can achieve when unhindered by government or society. Howard Roark is an architect who cares nothing about the world’s approval; his only concerns are his integrity and the perfection of his designs….

[Let's just stop here for a moment.  Did Sanford really say, "his only concerns are his integrity and the perfection of his designs."  Freud is always out smoking a cigar when you need him.]

Near the end of the book, Roark is on trial for demolishing a building he had designed—he had insisted it be built exactly as drawn, but when some bureaucrats alter the structure, Roark feels he has no choice but to dynamite it. Representing himself, Roark pleads, in characteristically Randian terms: “I do not recognize anyone’s right to one minute of my life. Nor to any part of my energy. Nor to any achievement of mine. No matter who makes the claim, how large their number or how great their need … I recognize no obligations toward men except one: to respect their freedom and to take no part in a slave society.” Cold though they sound, these words contain two basic truths. First, an individual can achieve great things without governmental benevolence, and second, one man has no right to another’s achievement. These are lessons we should all remember today, when each week is seemingly marked by another government program designed to fix society. [Emphasis added.]

“Cold though they sound?”  No, Mark, not cold.  The man was willing to blow up a building because he didn’t like the way that his plans, his designs, were executed.  (Some might suggest that this smacks a bit of terrorism, no?  I don’t like what you have done to my work.  Okay, I’ll blow up a building.)  Think about all of those folks who worked on the building.  All of their work is for naught, because Roark has not gotten the building that he designed.  Narcissism you say?  Narcissism being supported by the good Governor of South Carolina?

I think at a fundamental level many people recognize Rand’s essential truth—government doesn’t know best. Those in power in Washington—or indeed in Columbia, S.C.—often lead themselves to believe that our prosperity depends on their wisdom. It doesn’t. The prosperity and opportunity we enjoy comes ultimately from the creative energies of the country’s businessmen, entrepreneurs, investors, marketers, and inventors. The longer it takes this country to reawaken to this reality, the worse we—and in turn, our children’s standard of living—will be.

Well, this is certainly the case in S.C. with the old governor disappearing for days on end.  Hiking that trail.  But on a more serious note, notice that Sanford doesn’t mention in his list of prosperity creators: workers, teachers, scientists, etc.   Whatever reservations Sanford may have about Rand–she “doesn’t include the human needs we have for grace, love, faith, or any form of social compact”–I would say that he is still in love, in love with a narcissistic ideal of what it means to be a good human being or a good productive citizen.  It is as if the choice were between golden knights on corporate horseback (just what we need right now) and demons clothed in government garb.  If only life were this black and white.  If only all the good guys were those involved in the private sphere and the corrupt (or soon to be corrupt) were allied with the government.  What sophomoric pablum.   Soap opera is more nuanced.  I say, if the right thinks that it is time to bring back Ayn Rand, more power to them.  There are few political thinkers, and I am being generous here in calling her a political thinker–as Sanford points out, “William F. Buckley called objectivism ‘stillborn’ in a column he wrote when she died”–who are less relevant to the world that we face.  It’s clear that we are going to need to stand together if we don’t want to fall apart.  And this doesn’t mean collectivism.  It means responsible citizenship.  We are citizens, after all, and not just Roarks.

In declaring his criteria for a Supreme Court nominee when Justice Souter announced his departure, Obama mentioned empathy and real world experience, in addition to a deep knowledge of the law.  At the time, right wing ideologues started screeching about how the term “empathy” was merely a code word for a liberal activist judge.  The fact that Obama has emphasized the importance of empathy in numerous contexts, not just with regard to the Court, was ignored.  Since empathy must equal “activism,” these ever so sharp right wing talking heads were prepared to shout in unison, “gotcha.”

Sonia Sotomajor may be a left leaning centrist, but she is certainly no left wing radical.  The reasons Obama gave for choosing her fall right in line with his version philosophical pragmatism, which is related to his insistence that empathy is a legitimate criterion for selecting a member of the Supreme Court.  Failure to understand that Obama is a philosophical pragmatist, as opposed to simply a political one, explains much of the confusion about his approach to selecting nominees and advisers.  When Obama talks about the importance of experience, when he talks about consequences (as opposed to abstract principles), when he talks about fallibilism, when he talks about consultation and cooperation, and when he talks about what works, he is using well known catch phrases of this tradition.  And he knows it.  Unfortunately, political commentators, left, right and center, don’t.

Obama’s commitment to philosophical pragmatism was highlighted this week when he invoked the words of Oliver Wendell Holmes, Jr. in announcing his selection of Sotomajor.  Obama and Holmes are on the same wave length in how they understand the role of law in society (and society in law).  And Holmes was deeply indebted to the pragmatist tradition and counted among his closest friends the leading pragmatists of his day.  ( See, “Obama: Conservative, Liberal, or Ruthless Pragmatist?”)  Holmes’s most famous statement about the law is indicative of his pragmatism, and Obama cited it in order to help explain one of the most important decisions of his presidency.

So I don’t take this decision lightly. I’ve made it only after deep reflection and careful deliberation. While there are many qualities that I admire in judges across the spectrum of judicial philosophy, and that I seek in my own nominee, there are few that stand out that I just want to mention.

First and foremost is a rigorous intellect — a mastery of the law, an ability to hone in on the key issues and provide clear answers to complex legal questions. Second is a recognition of the limits of the judicial role, an understanding that a judge’s job is to interpret, not make, law; to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice; a respect for precedent and a determination to faithfully apply the law to the facts at hand.

These two qualities are essential, I believe, for anyone who would sit on our nation’s highest court. And yet, these qualities alone are insufficient. We need something more. For as Supreme Court Justice Oliver Wendell Holmes once said, “The life of the law has not been logic; it has been experience.” Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court. New York Times, May 26, 2009 (empahasis added)

“How ordinary people live,” this too has been a great concern of pragmatists, which brings us back to empathy.  There is a misunderstanding about the term that stands behind many of the misguided attacks.   It has two major components, and they have been conflated in the MSM.  The first is the ability to, shall we say, stand in the shoes of the other guy.  Obama often speaks about empathy in this way.  George Herbert Mead, an important pragmatist of the early 20th Century, spoke about the importance of taking the perspective or role of the other.  To function as social beings we must be able to see the world through the eyes of others.   (Mead was close friends with John Dewey, perhaps the leading pragmatist of the 20th Century.  Dewey’s granddaughter  was Obama’s mother’s graduate school adviser.)  Usually when we think of standing in the shoes of the other guy, we also think about being compassionate.  This is the second component of the term.  But these two aspects of empathy are not identical.  We sometimes find ourselves standing in the shoes of the other guy and still not feeling very compassionate about his or her actions.  But to understand this person, to make certain kinds of evaluations, which may even be negative (he’s a cold-blooded killer, and that’s what it feels like standing in his shoes), we must be able to take the perspective of this person.  Yes, doing so often leads to compassion, but it doesn’t have to.

I am convinced that Obama is a sophisticated enough thinker to understand these basic features of empathy.  He is not confusing justice and mercy, as several conservative pundits have claimed, when he invokes empathy as a criterion.  He is not eliminating (judicious) judgment in favor of some sort of political correctness.  (He specifically mentioned “impartial justice” in his remarks.)  Obama has a view of the law that respects its internal “logic,” but understands that this so-called logic requires interpretive skills and a historical sensibility.  It is not a transhistorical logic.  In other words, there is no view from the mounatintop when dealing with human creations such as the law.  Justice requires a rich understanding of legal precedent, of legal argument, but also of people and of people’s current circumstances, and for the latter, we must be able to stand in their shoes.  Justice is a balancing act.  It requires judgment, not simply deduction from set principles.  That’s why we call those who interpret the law judges and not deducers.

For Obama, empathy and experience go hand in hand, because experience entails social interaction, and social interaction devoid of empathy is, well, inhuman, in both senses of the term (not human, not humane).  The kind of justice who will best serve us on the Supreme Court is one who understands that the life of the law is not logic but experience, which in turn entails empathy.

The young Oliver Wendell Holmes, Jr., the young John Dewey, Obama at Harvard Law

…..

There it was in black and white, splashed across five columns of last Sunday’s (May, 3, 2009) New York Times, “As a Professor, a Pragmatist About the Supreme Court.” Standing above the headline is Obama, facing a law school class at the University of Chicago, hands spread wide across his desk, with the words, Bush, Gore and Voting clearly visible on the white board behind him.  In terms of a nominee to the Court, the article warns that we should not expect, “a larger-than-life liberal to counter the conservative pyrotechniques of Antonin Scalia, but a careful pragmatist with a limited view of the role of courts.”  Its author, Jodi Cantor, appears determined to help reinforce a developing consensus: Obama is not your standard liberal.  And perhaps even more frightening for principled liberals (and conservatives) are Obama’s words in The New York Times Magazine, “I mean, the truth is that what I’ve been constantly searching for is a ruthless pragmatism when it comes to economic policy”  (May 3, 2009, emphasis added).

The poverty of American discourse about politics–oh, let’s say back to the 1960′s or maybe since the 1930′s–is becoming increasingly transparent with every passing attempt to squeeze Obama’s views into one of the currently accepted categories: conservative, liberal, or moderate.  Of course when these fail, we can always hurl an epithet: pragmatist.  There is more than one reason that we have slid into this set of boxes, not least of which is that constituencies believe that they are served by them.  But Obama and friends are here to tell us that the party is over.  His decision about a Supreme Court nominee will provide further clues as to why the festivities are coming to an end, and I want to return to this topic shortly. First, some general comments about the state or our political reference points.

Obama has appeared mysterious and unpredictable in part because we have become used to an unforgiving dichotomy in popular political discourse. On the one hand, liberals, in their quest to help transform the world for the better, are viewed by conservatives as a-historical and unwilling to accept the lessons of the past.  On the other hand, while conservatives view themselves as guardians of the past,  who understand that change cannot simply come from above, liberals see them as having buried their heads, like the proverbial Ostrich, in the sands of what has been.

Are these caricatures?   Of course, but not entirely.  Liberals have often spoken as if law and policy could trump custom and habit.   Instead of arguing that law and policy can help to ameliorate egregious states, while acknowledging that the work of change is going to require political activity on the ground, Washington liberals (for lack of a better label) have at times been top down folks.  And conservatives have at times certainly sounded as if every program to remedy inequities somehow violates the gods of history.  (Yes, of course this is a gloss, but bear with me, it will do for the purposes at hand.)

Let’s assume for the sake of argument that many liberals haven’t been sufficiently historically minded.  Conservatives, on the other hand, no longer present a coherent political philosophy.  Traditional conservatives, those who emphasize the power of the past and obligations to preserve traditions, have become a modest wing of the conservative party, that is, the Republican Party.  The term conservative has been co-opted in the past few decades to stand for a set of values that is anything but historical, namely, religious or quasi-religious values that claim to be God given, beyond the narrative of human history.  I refer here to the presence of the religious right in Republican circles.  Hence, the deep divisions you are seeing in conservative land between ideologues and religious right on the one hand, and historicists, for example, David Brooks and Andrew Sullivan, on the other.

Obama is a historicist, a progressive, and a pragmatist.  Wait, you say.  How is this possible?  A pragmatist cares little for the past.  He or she cares about consequences, which can be altered by our current decisions.  Didn’t Obama affirm that he is searching for a “ruthless pragmatism?”  How can one be a historicist and a (ruthless) pragmatist?  But this question, as I have argued elsewhere, is due to a confusion between philosophical pragmatism and the pragmatism of the used-car salesman or legislator, whose goal is to cut a deal.  Sometimes Obama uses the term in this fashion.  But there is a coherent philosophical and political position that can join these seeming opposites (historicism and progressivism) together, and this is often what Obama means by pragmatism.

If political discourse wasn’t so distorted by ideological glosses of the right and left, and the MSM, we would be able to see that our categories have left us in a muddle, unable to comprehend perfectly plausible alternatives to the familiar.   For example, philosophical pragmatism has been consistently respectful of habit and custom.   This is why pragmatists have not been revolutionaries but ameliorationists or gradualists.  Habit, as William James said, is the great flywheel of society.  In addition, like many traditional conservatives, pragmatists have emphasized the importance of the social.  To change society, customs must change.  For pragmatists, for example, John Dewey and Obama, this does not mean that we are merely passive recipients of what has been handed to us by history.  We are not merely recipients because we have the capacity to ask how society can be improved and then to examine, with the help of science, the possible ramifications of the actions that we might take to foster improvement.  However, as fallibilists we acknowledge that we do not know with certainty what the outcomes of our actions are going to be.  We must be prepared to engage in trial and error.  We must be willing to see what works.  We place our faith on a bet, that is, cooperative and intelligent investigation of the natural and social worlds can yield insights into how to go about transforming the world, which by definition is a world that has been shaped by customs and habits.  And attempts at change must take  the latter into consideration.

Returning to the Court and the Times article, Jodi Cantor deserves credit for highlighting important points about Obama’s position on a nominee.  But she appears to have little knowledge of the larger context within which Obama is working.  Here are some of her key claims.

Former students and colleagues describe Mr. Obama as a minimalist (skeptical of court-led efforts at social change) and a structuralist (interested in how the law metes out power in society). And more than anything else, he is a pragmatist who urged those around him to be more keenly attuned to the real-life impact of decisions. This may be his distinguishing quality as a legal thinker: an unwillingness to deal in abstraction, a constant desire to know how court decisions affect people’s lives.

Yes, as a philosophical pragmatism, Obama would be more concerned with the “real-life impact of decisions,” and he would show a concern for how decisions affect people’s lives.  So too would traditional liberals.  Further,

And he asked constant questions about consequences of laws: What would happen if a mother’s welfare grant did not increase with the birth of additional children? As a state legislator, how much could he be influenced by a donor’s contribution?

This too is the mark of a pragmatist, as well as many liberals.  What then separates Obama from the traditional liberal?

Though Mr. Obama rarely spoke of his own views, students say they sensed his disdain for formalism, the idea — often espoused by Justices Scalia and Clarence Thomas, but sometimes by liberals as well — that law can be decided independent of the political and social context in which it is applied. To make his point, Mr. Obama, then a state senator, took students with him to Springfield, Ill., the capital, to watch hearings and see him hash out legislation.

This passage recognizes Obama’s sensitivity to political and social context, which he shares with traditional conservatives.  But as in many articles about Obama’s views, the reader walks away with the impression that Obama has cobbled together a bunch of personally appealing views that are best understood as revolving around his pragmatic temperament, as opposed to the fact that there is actually a well-developed philosophical tradition that orients his arguments.  For an example of how clueless the author of the Times article appears to be about this, consider this invocation of Judge Richard Posner’s name.

Mr. Obama often expressed concern that “democracy could be dangerous,” Mr. Stone said, that the majority can be “unempathetic — that’s a word that Barack has used — about the concerns of outsiders and minorities.”

But when a student asked Mr. Obama to name the circuit judge he would most like to argue in front of, he named Richard Posner, a conservative. Judge Posner was smart enough to know when you were right, Mr. Obama told the class.

Why Posner?  Surely there are other judges who are smart enough to know when a lawyer is right.  Posner’s economic views and values are in many respects close to the right wing of the Republican Party.  Obama may not be a traditional liberal, but surely he isn’t a conservative of this sort.  Why not recommend arguing before a more progressive judge who knows when you are right?  The fact is that Posner is an avowed pragmatist.  (Yes, there can be conservative ones.  Pragmatism provides a scaffolding for a host of values, as well as some non-negotiables, such as fallibilism.) The nature of Posner’s pragmatism has been debated by those interested in this school of thought, but there is little question that Posner thinks of himself in these terms and defends his decisions by appealing to pragmatic considerations.  In spite of Obama’s comments, no doubt the reason that he would like to argue a case in front of Posner is because he has a good sense of the kinds of arguments that would appeal to Posner as a (philosophical or legal) pragmatist.

Unlike virtually all of the presidents of the second half of the 20th century, Obama is well tutored in matters of law.  While I am not prepared to say here just who has most influenced Obama in his study of law, he certainly seems to be hovering in the ambit of Oliver Wendell Holmes, Jr., whose orientation to the common law is informed by pragmatism.  So let me end this already too long blog with a quotation from a recent book on Holmes, Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint, by Frederic R. Kellogg.  As you read Kellogg’s words about Holmes, consider the claims about Obama in the New York Times piece and the kind of Supreme Court judge that he is seeking.  And then consider just how big a playing field Obama is planning to open for our amusement and edification.

Yet there are broad aspects of [Holmes] that remain relevant, in particular the ideas of common law method as case-specific inquiry, of the tentative and experimental nature of legal thinking and common law rule making, of the skepticism of abstraction, and of the importance of and respect for community practice and participation in the court-room law making process.  These ideas may sound unrealistic in light of current legal culture, but Holmes offered them as part of the Anglo-American legal tradition. They contribute to the particular image or ideal of a judge that may yet be valuable and worth preserving, especially given the extreme politicization of judicial selection that prevails at the federal level. (Cambridge: Cambridge University Press, 2007, 19, emphasis added)