The Casual Blog

Tag: Canada geese

Changing colors, and the problems with Judge Barrett

 

When the leaves start changing, I’m always a little surprised and reassured.  This week in Raleigh we had a few more reds and golds, and the Canada geese at Shelley Lake were practicing flying in formation.  I enjoyed spending some time with the trees and birds.  A friend told me recently she found my nature photos to be a calming counterpoint to political discussions, which I do as well.  

In the closing days of the presidential campaign, the Trump show has not gotten better.  Trump is looking to short circuit the election, promising miracle Covid-19 cures, and agitating to have his political enemies arrested, while finding new ways to share the coronavirus with his employees and supporters.  

With polls indicating a strong possibility of a landslide against him, I’m hoping we’ll soon be changing the channel.  Unfortunately, Trump will be leaving a mess that will take a while to clean up.  Hard to know what to do with those racist militias, for example. There’s also the Supreme Court.

With Justice Ginsberg’s untimely passing, I thought there was a chance that a remnant of decency and shame on the part of Senate Republicans could lead to postponement of a decision on a new Justice.  Don’t ask me why I ever thought such a ridiculous thing.  As of this writing, it looks like the nomination of Judge Amy Coney Barrett is greased to go.

Judge Barrett is a bit of an oddity among Supreme Court nominees, in that she didn’t go to a top tier law school, didn’t serve time in a power elite law firm or federal agency, and is a long time member of a luridly patriarchal religious cult.  Her primary qualification, according to supporters, is her experience as a law clerk for Justice Antonin Scalia. 

This is essentially code for:  law school success and rock solid far right conservatism, with a low probability of a new justice straying toward the liberals.  As a former clerk for Justice Scalia myself, I understand this logic.  Also, for the minority who think the only important issue in American politics is stopping abortions, she is certainly an understandable choice. 

Here’s the problem:  in pledging allegiance to Justice Scalia, Judge Barrett is also signaling that she adheres to a  judicial method that is seriously flawed.  A lot of people don’t understand the inherent problems of that method, and the good reasons for abandoning it.   

First, let me say, it was a great honor to clerk for Justice Scalia, and I personally liked him.  He had a lot of warmth, and a good sense of humor.  He and I shared a passion for classical music, tennis, and good Italian food.  Although we were far apart on politics (I was a Democrat well to his left), we got along well.

When I began my year as a Scalia clerk in 1987, I was a recent graduate of the University of Virginia School of Law.  Like most clerks, I’d done well in law school but had hardly any experience as a lawyer.  Scalia presented me and others with a seductively attractive system for deciding cases which initially seemed logical and practical.  

American appeals court judges, including Justices, are charged with deciding unclear points of law, and they are expected to give reasoning in support of their decisions.  There are no set rules on what qualifies as adequate supporting reasoning.  At a minimum, decisions are supposed to have some basis recognized in the law, and to represent more than the personal preferences of the judges.

Scalia’s declared methodology for interpreting the Constitution was to rely as much as possible on the original text, without reference to later developments or current views.  He had a similar methodology for interpreting statutes, focusing on the language and disregarding legislative history or social context.

Scalia promoted his originalist system as objective and rational.  It was, supposedly, the opposite of judicial activism, in which a judge promotes his or her own political and social views.  Observing the methodology in action over the following decades, however, I came to see it as at best unreliable, and at worst a kind of intellectual grift. The reasons relate to the building blocks of language and history.

First, language is far less fixed and determinate than Scalia acknowledged.  He presented ancient dictionaries as highly reliable guides, not recognizing they all have ambiguities, inaccuracies, and gaps.  Moreover, there is never certainty that a particular writer meant the exact same thing as a particular lexicographer.  Thus relying on dictionaries to interpret constitutional words and phrases like “commerce,” “due process,” or “equal protection,” is dubious.

At times, Scalia relied on historical research in support of his position, but he normally included only historical examples that supported the conclusion he hoped to reach, and skipped over evidence against his conclusions.   He had no interest in the sometimes tedious work of professional historians examining new evidence to develop a richer understanding of the past.  Indeed, he seems not to have recognized that respectable historians aren’t generally expecting to arrive at unchanging eternal truths.  And of course, Scalia had neither the training nor the time to be a professional historian.  

In fairness, Scalia was not the only judge ever to cite history selectively or otherwise stack the deck in favor of a desired outcome.  Indeed, there is nothing unusual about judges using history and other evidence selectively to support their initial intuitions, rather than using legal analysis to determine the solution to a legal problem.  Like other humans, judges are inclined to find that arguments supporting their intuitions are much more persuasive than those conflicting with them.

Few judges, though, have Scalia’s fierce belief in his methodology as always superior, and his corresponding utter disdain for alternative approaches.  This belief made him reluctant to compromise and inclined to see those who disagreed with him as ignorant or acting in bad faith.  It tended to undermine the possibilities of reasoned debate with colleagues leading to better decision making.  If you already have figured out the truth, why waste time trying to work things out with those who haven’t seen the light?  

As many have noted, Scalia was highly intelligent, and he was a skilled legal craftsman.  A former debater, he was extremely good at avoiding arguments he disliked and diverting attention from his own weak points.  Especially when his position was difficult to defend, his writing could be dense, lengthy, and exhausting.  He was also sometimes very witty.  

But there is no reason to think that Scalia’s opinions were generally either better reasoned or more often correct than his colleagues’.  In fact, his confidence in his method — his self certainty — virtually assured that he would be less likely than others to examine his own prejudices and to try to account for them.  It’s possible he believed his own biases were not a factor in his decisions, but his record shows the contrary.  

Scalia’s world view and personal prejudices generally mirrored those of white, conservative, privileged men of his generation.  I doubt that he developed his originalist method with the explicit intention of freezing the existing elite power structure or preventing the advancement of the less powerful.  Perhaps he mistakenly thought he’d found the perfect formula for objectivity and the cure for activism.  

Whatever his original reasons, in retrospect, it is obvious that his legal decisions closely conformed to his cultural assumptions and prejudices.  Scalia almost always ended up where he started, having worked out an originalist argument that harmonized with his views.  His system did not work as advertised, and was far from objective.  

His positions in cases involving claims by racial minorities, women, gays, immigrants, prisoners or other less powerful groups were highly predictable:  they would almost never get his vote.  Environmental causes, such as controlling pollution or preserving habitats for endangered species, also didn’t get his vote.  He favored teaching creationism, and didn’t pretend to be much interested in science.  Large corporations, religious organizations, and other defenders of the status quo were to him the most appealing litigants, and most likely to get his vote. 

If Judge Barrett models herself on Scalia, she will be using a judicial approach that pretends to be objective, but that almost always yields a result that favors those with wealth and power.  She will see little merit in arguments for the rights and welfare of the less powerful.  

Perhaps worse, taking Scalia as a model, a Justice Barrett would be unable to acknowledge that she had personal biases that, unless recognized, tend to drive her decisions.  She would mistake the cultural assumptions bequeathed to her, such as patriarchal authority and aversion to homosexuality, as bedrock truths, and insist that those holding different assumptions were threats to democracy.  She would find it difficult to take seriously any argument inconsistent with her intuition.  

In addition, a Justice Barrett following the Scalia approach would reduce the possibility of collegiality and reasoned debate.  The ideal of a well informed group of Justices collaborating together in search of reasonable solutions is hard to reach, but even harder if any Justice believes that only she has the truth.

Perhaps Scalia’s passionate but wooden approach to legal reasoning will eventually morph into something more useful, and his successors will get better at questioning their own cultural assumptions and considering those of others.  In the meantime, there is ample reason to resist adding a Scalia acolyte to the Court.  

The end of fall, a photo contest, a piano event, and considering impeachment

 

The fall colors have faded here in recent days, and the trees have dropped most of their leaves.  Most mornings I stood in the cold by Shelley Lake with my camera waiting for the first light and the birds. A few minutes after sunrise, the Canada geese took off with much honking and splashing.  For a few minutes, the calm water reflected the forest colors. Every so often, a bald eagle swept over the water, probably looking for a fish, but not catching one when I was looking. The great blue herons changed fishing spots every ten or fifteen minutes, while flocks of ring billed gulls wheeled about.  I enjoyed watching the birds and got a few shots I liked, which are here.  

I’ve been looking at a lot of nature photography as part of the Carolina Nature Photographers Association annual members’ choice contest, which I entered this year.  I certainly learned something in the process of choosing and polishing a few images, and am learning more from reviewing hundreds of competing landscapes, wildlife shots, and macro subjects.  It would be gratifying to place in this competition, but I’m not counting on it, since there are quite a few excellent images that could arguably be viewed as the best.

 

I also learned some things from my first piano performance at Presto, a group of amateur pianists that regularly play for each other in members’ houses.  While playing the piano has been one of the joys of my life, I’ve had few opportunities to share the music that I’ve loved with people who feel similarly.  I’ve viewed engaging with Chopin, Liszt, Debussy, and others primarily as music therapy, bringing me happiness and sanity.  But music is inherently social, and sharing it is important.

The Presto group in Raleigh includes some nice people who enjoy classical music and play at various levels, including some who are highly accomplished.  I felt some trepidation as I took on a fairly demanding piece, Chopin’s Nocturne in D flat, Op. 27, No. 2. But preparing helped me see some new aspects of it.  The actual performance was not entirely fun. At one point I felt like the hands attached to my arms were not my own, and they were not playing my best. But it wasn’t a disaster, and I appreciated several kind words.    

 

Meanwhile, I’ve been following the Trump impeachment proceedings with a particular question in mind:  what is the deal with Republican leaders? For my friends who are occupied with matters more important than American politics, here’s the nutshell from the new House impeachment report:

The impeachment inquiry has found that President Trump, personally and acting through agents within and outside of the U.S. government, solicited the interference of a foreign government, Ukraine, to benefit his reelection.  In furtherance of this scheme, President Trump conditioned official acts on a public announcement by the new Ukrainian President, Volodymyr Zelensky, of politically-motivated investigations, including one into President Trump’s domestic political opponent.  In pressuring President Zelensky to carry out his demand, President Trump withheld a White House meeting desperately sought by the Ukrainian President, and critical U.S. military assistance to fight Russian aggression in eastern Ukraine. 

As my friend, Michael Gerhardt of UNC Law School, said (roughly), if Trump’s conduct is not impeachable, nothing is.   His written statement is here.   Key comments from the other testifying law professors are here.    On Friday a group of more than 500 law professors issued an open letter supporting impeachment. 

 

And the key facts really aren’t in dispute.  But Republican legislators are, at least publicly, united in support of doing nothing.  Trying to fathom what may be in their heads, I’ve considered various motives, but the most persuasive to me is fear.  Cory Booker mentioned this in a podcast interview with David Remnick a few weeks back.  Asked to explain why his Senate colleagues didn’t speak out, he said they were afraid.

I think what Booker meant was that they feared that their careers would be destroyed by Trump forces if they departed from Trumpism.  But there may be a related and deeper fear:  being separated from the tribe.  

For social animals, including humans, the need to be part of the tribe, herd, or flock is fundamental.  The individual cannot survive except as part of the group. Members of the tribe will tolerate bad leadership, as long as it’s not as bad as the highly risky alternative of isolation.

Of course, people do sometimes leave their tribes, and tribes splinter and re-form.  The really interesting question is how bad does it have to get?  In particular, what would the Trumpians have to do to exceed ordinary Republicans’ boundaries of tolerance?   I would have thought that subverting U.S. foreign policy for personal gain would qualify. But then again, I used to think that obvious fraud (like Trump University and the Trump charity), encouraging racist violence, bragging about sexual assault, and separating immigrant children from parents each would each be more than enough.  And that’s before we get to the attacks on the free press, undermining our traditional alliances like NATO, supporting recognized enemies like Russia, and threatening nuclear annihilation.  The list goes on.  

So it’s really hard to say.  But I’m trying to keep in mind that, even if we go over the constitutional cliff, it’s not because the Trumpian legislators are evil.  They’re just humans. And they might be persuaded to change course. That means it’s worth continuing the conversation.  

Some flying birds, and some Thanksgiving myth-busting

 

This Thanksgiving week I’ve been trying hard to get to Shellie Lake at sunrise.  The birds usually start flying shortly after that in the warm fall colors. As I went to the same place every day, it seemed like the birds seemed to be getting used to me.  One group of geese swam to the shore close to me and started out of the water. Just then a jogger came along the path, and they retreated.  I didn’t necessarily think they liked me better, but most likely they  preferred the familiar to the unfamiliar — just like us.  

We had a happy Thanksgiving dinner with family, and of course thought about some of the many things we had to be grateful for.  One of those things was new this year: I was grateful that there were several pieces of mainstream journalism on the truth behind the traditional Thanksgiving story—  in the NY Times (here and here), the Washington Post (here), and elsewhere.   They pointed out that the story most of us were taught significantly distorts the history of early English colonialists and their relation to North America’s indigenous peoples.  

This is a chapter of American history that still gets little attention in our basic history courses, and it’s uncomfortable. It’s hard to feel good about the colonists’ attacking and in some cases destroying civilizations.   But pretending it was otherwise is even more problematic. 

The traditional Thanksgiving story is tricky, because the superficial lesson is a sweet one of racial harmony.  But the more subtle message is about the racial superiority of the colonists and the inferiority of the “savages.”  That second message — that the white race is superior — continues to infect our society. Some of its victims (surviving Native Americans) are still with us.  We owe Native Americans a lot, as the traditional story acknowledges. We can cultivate respect for them, and work towards realizing the racial harmony of that story.  

President Trump has issued a call to arms against those who supposedly want to declare a “War on Thanksgiving.”  The point seems to be sort of like the supposed “War on Christmas” — that is, generating fear and outrage in the Republican base at any challenges to traditional practices, be they religious, consumerist, or just old habits.

 

It took me a long time to realize that there are real people who are genuinely triggered by this bogus fearmongering.  They are highly susceptible to false claims that their values and way of life are under attack by liberals. When they watch Fox News, they hear such claims all the time, and they get angry and afraid.  They are encouraged to believe that the true cause of their anger and fear is liberals. So they really hate liberals!

This is the best explanation I can come up with for a good portion of Republicans continuing to support Trump.  No matter how clear the evidence of his high crimes and misdemeanors, they see him as a lesser evil than the evil liberals.  

There’s no clear path out of this level of polarization, which calls to mind the dehumanization of wartime enemies (remember “Krauts” and “Japs”?).  But I’m still hopeful that the fever will eventually break. After all, we’re now pretty good friends with the Germans and Japanese.

Anyhow, just so we’re clear, I’m not suggesting a war on Thanksgiving.  And I’d like to throw out a few last notes of respect and gratitude for people who are risking much struggling for human dignity and the planet, including students fighting for democracy in Hong Kong, Europeans protesting consumerism and environmental irresponsibility, South Americans protesting corruption and inequality, and many others.  Let us all give thanks for those brave souls, and perhaps find in ourselves something of their courage.

Birds at Shelley Lake

A great egret at Shelley Lake

As occasionally happens, earlier this week I had my doubts about whether I’d be able to come up with any new images or words to post on The Casual Blog.  It felt like maybe the well had finally run dry.  

The cure turned out to be simple:  just spending more time with nature.  I drove up to Shelley Lake early on several mornings.  I did some walking, but mostly I just stood looking out over the water.  It was quiet, except for animal sounds. Of course, there was also a bit of traffic noise, but it wasn’t bad.  

Canada geese

The Canada geese were the noisiest creatures at the lake, and did plenty of honking.  They used to be rare around here, but now are common, and considered by most an unwelcome nuisance.  But I think they’re handsome.  

I noticed that, along with their big honks, they make some barely audible sounds, which clearly have meaning to them.  As I watched, they made sounds and gestures as they swam slowly and organized themselves into small groups. The groups took flight for short intervals.  I’m guessing they’re practicing for the fall migration.  

A foggy morning for flying

I also saw a number of other good looking birds — great blue herons, great egrets, kingfishers, and mallards.  These are all pretty common here, but still fun to watch, and the fast-flying kingfishers and mallards are challenging to photograph. I also saw a Cooper’s hawk (at least I think it was a Cooper’s) and one bald eagle — the first one at Shelley Lake for a while. 

A kingfisher fishing

Just standing still is not something that I’ve done a lot of.  It seemed at first like I might be wasting time, which I hate to do.  But I found it soothing and nourishing to be near the water with the animals.  I had my camera with my big lens mounted and ready to go, and my senses were on high alert for possible photographic opportunities.  But for extended periods, not much happened, at least at the human scale. And that was ok.  

Mallards

This week I listened to a good podcast about animal intelligence, including communication systems and emotions, on the Ted Radio Hour.    This podcast summarizes several Ted Talks, which are already highly boiled down versions of bigger ideas, which I guess is for those with short attention spans.

In any case, simplified ideas are better than none, and of course, you can always go back to the longer versions.  I was particularly interested in hearing the voices of Carl Safina and Frans de Waal, whose recent books on animal emotions I thought were worthwhile.  As one of the speakers said (in effect), in understanding non-human animals better, we understand ourselves better.  

A Cooper’s hawk (I think)

I also pushed forward in Martin Hagglund’s new book. This Life: Secular Faith and Spiritual Freedom.  Hagglund’s conception of secular faith is profound, and somewhat involved. He argues that all religious conceptions of value place their primary emphasis on achieving an unchanging, eternal state, which is involves an inherent contradiction.  

As the Talking Heads once waggishly observed, “heaven is a place where nothing ever happens.”  Not such an interesting place, much less an ideal. For there to be meaning and value in our lives, life must be finite — fragile and subject to loss.  Hagglund thinks the real source of hope and meaning in our lives is misidentified by conventional religions, and is inseparable from time and our finite existence.

Hagglund’s ideas are truly iconoclastic, and worth engaging.  They aren’t easy to engage in his book, which at times seems lacking in forward motion.  I suspect that their most natural format would be not a whole book but rather something like one of Plato’s dialogues.  Fortunately, Hagglund sums up some of his key ideas in a recent interview in Jacobin