The Casual Blog

Tag: Supreme Court

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.  

Sleeping trouble, adieu to RBG, and picking the lesser of evils in Trumpworld


Canada geese at Shelley Lake

I heard on the news last week that a lot of people are having trouble sleeping these days, and thought, me too!  My insomnia seems to be getting worse, though it’s nothing new, and over the years I’ve learned to make the best of it.  Lately when I wake up at 2:00 a.m., I’ve been watching YouTube videos of gifted pianists playing Chopin and Liszt, which are stimulating, but in a soothing way.  

There are so many things to feel anxious about that just listing them makes me anxious, so I won’t.  I can scratch from the list the worry that Justice Ginsburg might not survive until 2021, since yesterday she died.  I met her when I clerked at the D.C. Circuit, where she was then an appeals court judge, and found her pleasant, though quiet and in no way charismatic.  Only more recently, from the documentary RBG, did I realize that in her quiet way, she was an extraordinary person, who devoted her life to justice and did a lot of good for our country.  

Great egret at Shelley Lake

What will the Republicans do now?  The thought of a Justice Bill Barr, Justice Stephen Miller, or Justice Roger Stone is more horrifying than another Justice Federalist Society Ideologue, but they’re all horrifying.  Is there some chance that a few Republican senators will feel enough civic responsibility and/or shame to put off confirmation until after the election?   We can only hope.

Even if we didn’t face the strong possibility of an even more politicized, reactionary Supreme Court, we’d still have big problems.  We’re at a crossroads of American history, and I’m seriously worried that democracy as we know it is at risk.

Although I have nothing good to say about Donald Trump, I’m not profoundly worried about him in particular.  In the last two centuries, we’ve had leaders almost as corrupt and unqualified as Trump, and survived.  My sense of dread is more about the new way of engaging with politics that he reflects and inspires.

This came into focus for me last week with an odd op ed in the Washington Post arguing that although Trump had a lot of negatives, he was still the lesser of evils.  The criticisms of Biden were vague, but after a couple of re-readings, I think I got the gist:  Biden’s policies would destroy the republic, because they were liberal ones supported by Democrats.

This was difficult for me to process, because I’ve always thought that liberalism was not a monolith, but rather just one collection of views among many on the American political landscape.  In the 20th century, there were all kinds of political positions in America, from far left to far right, and it seemed normal for people to have different ideas on what were the best policy solutions.  To resolve our political differences, we had institutions, like legislatures, where we tried to persuade others and find compromises.  We agreed to have regular fair elections, where we could get rid of bad players, and the winners could carry on with the democratic experiment.

For me, there was never a time when the Democratic Party seemed particularly wise or enlightened.  Indeed, for more than half a century I’ve watched Democrats participate in a long series of what I thought were terrible choices on business regulation, criminal justice, healthcare, social services, foreign policy, and other areas.  In all of those, it arrived at compromises with Republicans.  Neither party had a monopoly on bad ideas, or good ones.  

I thought there was general agreement on this:  that political parties could fumble and sometimes fail, but politics would continue, with the possibility that future compromises would be better.  It never occurred to me to view American politics as a winner-take-all game, in which political opponents were viewed as by definition illegitimate.  

So it took me a while to grasp that Trumpism involved a different kind of thinking, with little in common with traditional Republicanism other than the name. But I think I’ve finally got it:  Trumpism at its core is defined not by any policy objective, but by fear and dread of enemies.  And in the political arena, the primary enemy, as they conceive it, is all those to the left of far right — that is, Democrats, and people like me. 

Of course, not everyone who supports Trump thinks the same way, and there are surely some who will vote for Trump without intending the destruction of all Democrats.  Still, the thing that drives the Trump movement is not a set of policies or even a value system.  Rather, it’s a strong conviction that Democrats aren’t just ordinary people who happen to have different ideas as to policies.  They are evil.  And very frightening.  

Once I understood this, some things I’d thought were plain lunacy started to make a kind of sense.  It seems crazy to deny the reality and effectiveness of science — unless science is consistently supporting Dark Forces that want Us to change Our Way of Life.  Increasingly popular nutty conspiracy theories like QAnon have at their base a belief that politics is not just politics, but a battle between good and evil.  And as everyone knows, there can be no compromise with evil — that is, according to this way of thinking, with Democrats.

If you’re persuaded that Democrats are not just a political party, but rather agents of Satan, it probably seems reasonable to buy more guns and ammunition to defend yourself against them.  It also would seem right and proper to use force against them when they assemble to protest something.  

On the other hand, under the Democrats-are-evil assumption, it makes no sense to have free and fair elections.  If you did that, there’s a possibility Democrats might win.  And then we’d be in big trouble!  No, in this new, Trumpist view, to save our democracy and our traditional way of life, we need to have a different kind of election, in which those who disagree with us cannot win.  If they insist on winning, a reasonable response is violence.    

For a full on Trumpist, encountering opposition to Trumpism is different from an ordinary political disagreement.  It is treason, or worse than treason — blasphemy!   In this strange worldview, those who attempt to argue that Trump has minor or major shortcomings like, say, lack of intelligence or lack of character, simply prove that they themselves lack intelligence or character.  Those who oppose Trump (that is, Democrats and others),show, by their opposition, that they are wrong and evil.

This is not to say all Trumpists like everything about Trump.  Some do, but some have various criticisms of his manners or certain policies.  But Trumpists believe he is the lesser of evils, because his opponents are really and truly evil.    

Obviously I’m putting things a bit strongly, and not trying to address every individual variation.  Again, I don’t think every Trump supporter is this extreme.  I realize that there are a minority of them who are willing to have a sincere, good faith political discussion, and who are willing to allow that political opposition can be legitimate.  I’m always on the lookout for those, and happy to have more discussions with them.  

But there’s really no point in attempting to have a discussion with an extreme Trumpist.  They are not willing to listen to anti-Trumpist ideas, and may react violently.  If they’re carrying weapons, I advise keeping at a safe distance.  If we’re going to continue the American political experiment, we’ll need to get back to basics.  First of all, Democrats and others who still believe American democracy is worth preserving need to vote.




Justice Scalia’s passing, Beethoven quartets, and Reich on the problem of extreme inequality

Raleigh at sunrise

Raleigh at sunrise

Yesterday we were getting ready to head for Durham for dinner and a concert when I learned that Justice Scalia had died. The news was unexpected, and disorienting. I spent an intense year working a few steps away from him as one of his clerks, and felt close to him in a way. He was a good boss and mentor. Despite our very different political orientations, I admired his intelligence, energy, and humor. He demonstrated (including by hiring non-conservative clerks) that engaging with people who disagreed with one’s views was not a thing to avoid, but rather to embrace — stimulating and potentially creative. I disagreed with him vigorously on many things, but I liked him, and will miss him. This will take some time to process.

We met our friends John and Laurie for dinner at Dos Perros, a stylish Mexican restaurant, where we had good food and conversation. Then we went over to Duke’s Baldwin Auditorium to hear the Danish String Quartet, three young Danish guys, and one Norwegian one. They played an all Beethoven program, including two famous late quartets (Op. 131 and 135). This is challenging, craggy music, which the Scandinavians played with fearless commitment, embracing all the extremes of angularity and the subtlety. I thought the sound of violist Asbjorn Norgaard was particularly beautiful.

Zürich at sunset

Zurich at sunset

There’s been a lot in the press recently about the extreme inequality in the U.S., and frequent references to such facts as the top .1 percent own almost as much wealth as the bottom 90 percent. This seems disturbing on its face, but I got a much better grasp of its implications from reading Saving Capitalism: For the Many, Not the Few, by Robert Reich. Reich is a former Secretary of Labor (Clinton administration) and a professor of public policy at Berkeley. In Saving Capitalism, he argues that the increasing concentration of economic and political power in the hands of very wealthy individuals and corporations threatens the fabric of our society. Dramatic inequalities of wealth and opportunity strike the majority as deeply unfair, undermining the trust that’s essential for social order. Without redress, the system could fail.

Reich contends that the arguments over whether the free market is preferable to the government are based on a false premise, inasmuch as the market is created by human beings and is subject to modification, for better or worse, by those same beings. At various times in American history, the rules have been dramatically changed (the Jacksonian era, the Progressives in the late 19th and early 20th centuries, the New Deal), and they can be changed again. Only relatively recently have corporations been viewed as limited to serving shareholders, without regard to other stakeholders (employees, consumers, the public at large). The system can be fixed.

Reich is primarily focused on identifying the problems, rather than proposing solutions, but he does offer some preliminary thoughts on fixes. He notes that we need to get big money out of politics. Campaign finance reform is surely an important step. A more equitable tax system is another. We need to fix the rule system that applies to intellectual property, along with other legal reforms. Reich also favors a basic minimum income that guarantees everyone a minimally decent standard of living. He recognizes that automation and artificial intelligence are going to cost many more jobs, and we have to help those who get hurt. This is a timely book, well worth reading.

Fireworks, new bluebirds, right-wing NC Republicans, and bees at work

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Sally fixed chilled cucumber soup and two salads for our July 4th dinner, with homemade coffee ice cream for dessert. From our condo on the twelfth floor we had a good view of the fireworks show at Red Hat Amphitheater. Fireworks shows vary, but I’ve never seen one I really didn’t like, and this was no exception. OK, it could have been faster and bigger, but there were interesting shapes and sparkling colors, and lots of noise. This may be my favorite ritual in the American civil religion.
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Earlier that day, Sally took me along when she monitored the bluebird houses at Lochmere Golf Club. She’d promised that there should be some new eggs and nestlings, and there were! We were pleased to see the new arrivals.
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Speaking of country clubs, the News & Observer reported this week that Carolina Country Club, Raleigh’s old line club, finally admitted its first black member. This was front page news, and I was glad to hear it. CCC maintained the color barrier for way too long. Now that the curse has been broken, I hope they will implement a policy of true non-discrimination going forward.

In my lifetime, we’ve made so much progress on the race issue, for which I am happy and grateful. For all my disappointments with President Obama, every day I feel proud and a little amazed that we have a black president. I can go for weeks or months without observing anything like the racial prejudice that was pervasive when I was a boy.

But we’re still not done. Republican measures to limit the voting power of blacks in NC and elsewhere by imposing ID requirements are moving forward. This is just shameful. With this movement in process, the Supreme Court was surely wrong in striking down part of the Voting Rights Act. There’s still a ways to go to build a color-blind society.
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Our North Carolina Republican legislators have gone on a right-wing tear this session. Some of their activities make sense from the point of view of bettering the lot of the wealthy or pandering to the ignorant, but some are inexplicable in ordinary moral or practical terms.

Does any rational person, no matter how selfish or cynical, think it makes sense to get more people carrying concealed firearms into more public spaces? Would a person with a shred of decency change the law to protect agriculture operations that abuse farm animals and criminalize the behavior of those who seek to expose the abuse? Would a normal caring parent or employer find it sane to reduce school funding and increase class size? Would any responsible leader or citizen turn down federal funds meant to help the unemployed or ailing? Does any moderately educated person school think that North Carolina has the right to establish its own state religion? In establishing the highest priorities, does anyone think Is outlawing Sharia law makes the top-thousand list?

And while we’re outlawing Sharia law, why not work in a slew of anti-abortion measures? This actually happened this week without fanfare and without the usual legislative formalities, presumably to minimize the chance of organized opposition. I’ve never found the abortion issue as easy as some of my friends, but the state Senate’s work this week under cover of darkness is really disturbing from a process point of view, and looks like a huge mistake. In the aftermath of this latest fiasco, my liberal friends were looking glum, and worrying at the damage this is doing both to the humans affected (such as women with unwanted pregnancies and poor people) and to the image of our state.
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This onslaught really doesn’t seem like the result of a theory of government. To the extent it has a direction, it seems aimed less at accomplishing any policy objective than at making liberals screaming mad. Once a liberal value gets identified, it is attacked with extreme prejudice.

To a certain extent, the NC right-wingers seem to be reproducing the values battles identified by national-level right-wingers. What else could be going on? I heard an NPR interview with Bill McKibben, an environmentalist and college professor, who said the problem with building a green movement was that a movement needed an enemy. In a sense, all of us are conflicted on environmental issues, since we all like cars and electricity. We can’t be our own enemy and still feel motivated to get into the streets. His solution was to declare the oil companies the enemy. This would, he thought, allow a green movement to cohere.
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So maybe that’s what our NC right-wingers are up to: building their group cohesion by identifying liberals as the enemy and trying to cut out their hearts (metaphorically speaking). It’s hard for a liberal to find a silver lining at the moment, but I’ll still take a swing. I don’t think this is the direction a majority of the state, or even a majority of Republicans, want to go. And by forcing minorities, low-income people, women, immigrants, and the reality-based community to see their common interest, the wing-nut legislators are increasing the chances that their “public service” will not last past the next election.
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In the meantime, President Obama has seized the initiative on climate change by ordering rules on power plant reductions for CO2 and other measures. Longtime readers of the Casual Blog will know that this is a big issue for me that I think should be a big issue for everyone. At issue are mass extinctions and dislocations on a scale previously unknown in human history. The significance is much greater than putting a man on the moon, and we ought to mobilize with a level of commitment on a scale comparable to the Apollo project. I hope this is the start.
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And while we’re on the subject of things to feel good about and continue working on, let us not forget, the long fight for gay rights has made real progress. The Supreme Court, a highly conservative institution (even if not all of its justices are conservative), struck down the Defense of Marriage Act! A majority recognized this as a human rights issue. It seems the tide has turned.
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Well, that’s it, I’m climbing off my soap box. I got out to Raulston Arboretum on Saturday and found a lot of bees hard at work. I took along my tripod and used a Nikkor 18-55 mm lens in aperture priority mode. Along with a variety of bees and flowers, I was struck by the sculptural qualities of some of the blooms. My favorites are above and below.
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Ballet paintings, fossils, and a piano recital

Light on One’s Feet by Nicole White Kennedy

Last Thursday Sally and I had lunch at the Remedy Diner, where my sandwich was the Tempeh Tantrum, then went to a gallery to to look at paintings by Nicole White Kennedy. Kennedy, a local artist, paints in an Impressionist/Post Impressionist style that I once thought of as old hat. My early art education stressed the triumph of modernism and abstraction. But over the years I’ve really enjoyed Kennedy’s landscapes and cityscapes in her husband’s fine Italian restaurant, Caffe Luna. I’ve gradually gotten past my prejudice in favor of the modernist aesthetic. Artists show us multiple ways to see the world, and it’s fun to try different ones.

Anyhow, I was intrigued to learn that Kennedy had worked up a show of works featuring dancers from the Carolina Ballet. We really liked the show. No doubt it helped that we came to it as balletomanes, and that we could recognize some of our favorite ballerinas. But she unquestionably had a feel for the interiors and exteriors of the dancers and their work places.

I was conscious that the works owed a debt to Degas, both in their behind-the-scenes intimacy and the juxtaposition of ethereal sweetness and stark angularity, but I didn’t find this bothersome. Artists always borrow ideas from other artists and build on them, just like scientists and inventors. We were particularly touched by the paintings above and just below, and bought them.

Dancer Removing Turquoise Points by NWK

The next day I flew up to DC for a gathering at the Supreme Court in honor of my old friend Justice Elena Kagan, which was highly nostalgic and which I will try to write about soon. But as post-election therapy, I’m focusing just now on art. With my free morning I sampled the Smithsonian museums, which always make me proud and happy to live in the USA.

First I visited some of my favorite works at the National Gallery. These included the Rembrandts and other Dutch masters, including especially the two exquisite Vermeers, as well as the French Impressionists. Still thinking about dancers and art, I paid particular attention to the Degas paintings and sculptures of dancers. He clearly loved the subject, and it touched me. But I must say, his dancers are not as lithe and athletic as the Carolna Ballet ones.

Next, I walked down the Mall to the Museum of Natural History. As always, I enjoyed looking at the dinosaur fossils, but I wanted to have a close look at the trilobites, which are much much older than dinosaurs.

Trilobites were marine arthropods that began their run around 520 million years ago. They developed an amazing variety of body types during the 270 million years (give or take) that preceded their extinction. RIP. Nature has done a lot of amazing experiments!

I returned to Raleigh on Sunday afternoon in time to go to the recital of my piano teacher, Olga Kleiankina. Her program, like her, was Russian: Alexandr Scriabin (1872-1915), Nikolai Medtner (1880-1951), and Sergai Rachmaninoff (1973-43). She played brilliantly. She’d told me a couple of weeks ago that she was struggling with memorizing the Medtner piece (the Tempest Sonata), and I was feeling a little anxious for her, but she seemed completely in command. The piece was very dense, and at first I was a bit bewildered, but then I got my bearings. I particularly enjoyed the Scriabin Black Mass sonata. From our work together, I know how intensely she focuses on sound colors, and now that I’ve learned to hear some of those things, the music took on a new dimension.

There was a good piece on the Sunday NY Times about the sense of hearing, and the difference between hearing and listening. According to Seth Horowitz, we react to auditory signals 10 times faster than visual ones. Hearing is an early warning system, among other things. He notes that close listening is hard in a world where there are endless distractions, but that we can get better at it. I concur.

Supreme Court connections to gifted people

This week I signed a letter in support of the nomination of Elena Kagan that was written by Peter Keisler and Harry Litman and signed by most of the Supreme Court clerks from the year (OT ’86) our group worked for the Court.  I always liked and respected Elena.  She was bright and friendly, and I was happy to guard her in our clerk basketball games, where I was fortunate to have a meaningful height advantage (she could shoot).   I find it reassuring that in a world where Tea Party whack jobs are sometimes taken seriously that Elena with such old-fashioned and relatively unexciting qualities as intelligence, balance, and decency has quietly risen to the apex of the legal profession.

I made another Supreme Court connection this week when I caught up with Larry Lessig.  Lessig clerked for Justice Scalia a few years after I did.  Now a law professor at Harvard, he’s distinguished himself as a constitutional and intellectual property law scholar and reformer.  His work on copyright law, including Free Culture and Remix, challenges the received wisdom that more copyright protection promotes greater creativity and shows that the opposite may be the result.  In this area, he’s a true rock star.

Lessig’s current project is focusing on the corrosive role of money in our political system.  On Tuesday Mel Chernoff and I attended the talk he gave at Campbell Law School promoting public financing of elections.  He’s well known for his extraordinary slide shows, which use super quick cuts to press points, and this was a good one.  We’d corresponded by email previously, and it was good to make a face-to-face connection after the event.  In addition to being brilliant, he seemed like a warm and sincere guy.

When I have personal encounters with really gifted people, I generally find it unsettling.  It’s inspiring, and I find myself thinking so much more is possible, but also being more-than-usually aware of my personal limits.  As John McPhee once noted in the context of great tennis players, there are many levels of the game.   It’s a privilege to play with higher level players, and rewarding. If it doesn’t kill you, it makes you stronger.  But it does not promote calm and tranquility.

It is