The other day my local news referred to vegetables as "veggies" and bees as little "stingers." Assuming most viewers are adults, it would be good to not have the language cutesified.
Also, some very good things have been said by Glenn Greenwald and by Rachel Maddow concerning the whole Obama "bitter" flap. Not only is the coverage loaded with misinformation, as I noted, but of course the whole issue is stupid. Of course, the whole thing shows a disingenuous bit of circular reasoning: the media covers this stupid trivia about little things a candidate says or does that are not really very important otherwise, on the excuse that they may have the power to influnce the election. And of course they do have that power, because the media covers them obsessively, to the exclusion of actual news.
These two topics raise broader ones. I love media criticism, and I think the topic is vitally important. The fact that the Obama story here is so trivial raises a question of news values. One project which would be important would be to identify actual news values and interrogate them. For example, it has been commonly said for 40 years that negativity is a news value, and people have asked, why is bad news more important than good news? Or, if it is sometimes, when? Perhaps we should eliminate or at least refine this news value so that we do not overemphasize negative coverage. Of course, the local news have a habit of trying to be upbeat, which is just as disgusting. They still follow the formula that if it bleeds it leads, then produce "positive" segments for balance that are awful and do nothing to balance out the obsession with crime news.
A few days ago, for some reason I've forgotten, I had to look up standard western news values. I think those values have some serious shortcomings. I like Wikipedia's entry, on which I have based the following synopsis. They utilized three sources: Johan Galtung & Mari Holmboe Ruge's classic, "The Structure of Foreign News. The Presentation of the Congo, Cuba and Cyprus Crises in Four Norwegian Newspapers, " from the Journal of Peace Research, vol. 2, pp. 64-91 (1965). This gave them 10 values. They added four more from Allan Bell's book, The Language of News Media. (Oxford, 1991), and a final two from Philip Schlesinger, Putting "Reality" Together (London, 1987), making a total of 16. I recite them below with my own explanations based on Wikipedia's, and put in my own order to reflect what I see as supercategories among them. I have put an asterisk on each of Bell's contributions and two on each of Schlesinger's.
Narrative structure:
Frequency (events at a convenient time versus other events or slow trends).
Unexpectedness (unusual versus everyday occurrence).
Unambiguity (simple background and obvious implications versus complexity).
Drama:
Personalization (individual actions versus no human interest).
Conflict (dramatic opposition versus none).
Negativity (bad news versus good).
Subjects important or culturally proximate:
Meaningfulness (culturally proximate subjects versus foreign).
Reference to elite nations (global powers versus other nations).
Reference to elite persons (celebrities and decisionmakers over everymen).
Relating to synergy or countersynergy:
Consonance (fit media's expectations versus unreadiness to report).
Continuity (inertia from being already in the news versus new subjects).
Co-optation* (related to major story versus not).
Competition* (endorsed by other news outlets versus not).
Composition (balances overall news output versus not).
Relating to the ease of production:
Prefabrication* (supplied verus requiring work "from the ground up").
Predictability* (pre-scheduled versus not).
Time constraints** (able to be covered quickly versus not).
Logistics** (nearby, accessibile and secure location versus not).
If one thinks about it, though, this list is plainly inadequate. Here are some I would add:
Exclusivity: (proprietary versus reported by others).
Currency: (recent, breaking, or imminent verses temporally distant).
Aesthetics: (compelling audio or video available versus words-only).
Uncontroversialiaty: (free of legal, security, or social restraints versus problematic).
Structure: (having a standardized narrative, like a legal proceeding or election, versus developing randomly).
Reproducability: (able to be repeated as a new story with small changes versus not).
Categorized: (belonging to a staple type like sports, weather, or crime versus miscellany).
Source-value: (known and considered important by frequent sources versus information scattered among those not frequent sources).
Another, broader project that I have had in mind for a long long time would be to gather up the various criticisms of media coverage and sort them out and evaluate them. Some, I think, would fall away as cases of a very intuitive but ultimately unsatisfying and unprincipled approach: if it does not reflect my values, it is biased. Without a set of neutral procedural and substantive criteria that identify how to present the news objectively, the tendency is to navigate between critics, covering things however intuitively feels fair. It's a start but it only goes so far, and explains why there is so much failure in objectivity in the present media output.
Wikipedia has a nice little entry on objectivity, but it highlights this shortcoming. It fails to mention Westerstahl's definition of objectivity, which I've always liked. More on this later.
Of course, the criticisms do not all center on bias. The problems of clutter, narrowcasting, entertainment values, horserace journalism, and stuff like the babytalk I mentioned above all pretty much grate on me. The local alternative weekly actually had a very nice cover story about a year ago, drawing together dozens of particular criticisms, to which I could have added a dozen more. I thought I had done a blog entry on it at the time, but I see that I never did, and have only my rough notes. This is something I want to come back to. It's a rich subject, important, and something I like to think about.
More later.
Friday, April 18, 2008
Monday, April 14, 2008
Precision, please. Balance, please.
I hate the fact that when I listen to news and talk programs I always have to second guess them as I would a scatterbrained friend who comes to me with a "Did you hear?" story. Im writing at the end of the News Hour and beginning of Charlie Rose and I've just heard a series of statements that are false in various minor aspects, regarding the statement Obama made that people in hard economic times unsurprisingly tend toward bitterness and cling to their religion and so on. Regarding what he said, what it meant, reharding what others said about it. What was particularly frustrating concerning this affair, is that both shows spent good lengths of time debating the parsing of the statement, and then wrap it all up with a paraphrase that adopts a particular, innacurate reading of what was said.
There was a nice piece in the local paper yesterday on the local cold case unit, looking at two cases from 1990. It was all very well done. But it was one of those pieces that assumes at the outset that balance does not matter. It referred to one of the cold cases as having been solved, because someone has confessed to it. That always annoys me because to me, the case is not solved when the prosecutor decides it is, or when the police decide it is, but when someone has been found guilty. The other cold case the article examined still exists as a cold case only because it was not considered solved eighteen years ago when a suspect confessed after a long grueling interrogation. Beyond the individual defendants' perspectives not being included, there was a more general question which the article did not consider: is there a downside to solving these old cases and prosecuting them? Does that mean reopening old wounds? How do you go about defending against a nearly 20-year-old charge? I'm not taking a position, but I think the article did.
There was a nice piece in the local paper yesterday on the local cold case unit, looking at two cases from 1990. It was all very well done. But it was one of those pieces that assumes at the outset that balance does not matter. It referred to one of the cold cases as having been solved, because someone has confessed to it. That always annoys me because to me, the case is not solved when the prosecutor decides it is, or when the police decide it is, but when someone has been found guilty. The other cold case the article examined still exists as a cold case only because it was not considered solved eighteen years ago when a suspect confessed after a long grueling interrogation. Beyond the individual defendants' perspectives not being included, there was a more general question which the article did not consider: is there a downside to solving these old cases and prosecuting them? Does that mean reopening old wounds? How do you go about defending against a nearly 20-year-old charge? I'm not taking a position, but I think the article did.
Thursday, April 10, 2008
Earth Hour
I don't know if I should even spend my time noting this, but it seems like the commentary from the Journal-Sentinel's community columnists just gets stupider and stupider. They seem to include a small minority of reasonables set against a crowd of...
Well, best to avoid sputtering insults at them, which would only prove the phenomenon is contageous. I've been sitting on this for a week, since I read Al Smith go off on Earth Hour. The guy is apparently some ridiculous old crank who gets whipped into a frenzy by some news outlet that he takes far too seriously. Or maybe it's performance art -- imitating a slobberjawed hysteric as a kind of hoax. Or maybe he's really a good guy but had been involuntraily drugged on hallucinogens when it come time to write last week's article. I'll give him the benefit of the doubt for now, but I tend to suspect he belongs in a place where the friendly nurse will remind him to eat his jell-o and take his meds.
Judge for yourself. Here is the article in question. I've shown it to a few folks who have said what I think is obvious: if this came in as a letter, it would be attributed to a crackpot and thrown in the dustbin with the old sandwich wrappers or at best the "maybe if we're really desperate" pile. It certainly wouldn't get spotlight treatment. But here he is, a columnist. And advertising his freelance writing availability in his ID tag.
I shall now give my analysis of his argument.
Earth Hour, in the real world, is a sort of a stunt event promoted by various cities and countries around the world, where near the end of March, people are encouraged to douse the lights for one hour. The idea is to draw a little attention to global warming and also just to get people to try just a tiny taste of conservation, on the notion that some might see that it isn't so bad and try it more. It's designed to be minimally demanding, an admittedly negligible start in terms of actual conservation, but significant to the extent that it commands some attention and breaks some resistence to further steps. It's basically costless. The only negative is that some people might decide that participation in this trivial act of conservation is sufficient to purge their guilt over their Hummer and do even less than they otherwise might.
Smith, on the other hand, calls it first a "charade" of "staged" "propaganda" for the "gullible."
Huh? How can any of this apply? What's the message that we shouldn't fall for? Is it a charade because even when you turn your lights off, they aren't really off?
Al's wife: Will you turn out the light when you come up, honey?
Al: Propaganda and lies! You won't trick me!
Well, apparently, despite being obviously intended to deceive us, this effort is in fact the exact opposite. It is, Al informs us, extremely revelatory. "It all becomes clear now" because nothing more perfectly reveals "the true intent" of Earth Hour: it is "merely the prelude" to an even more diabolical scheme. The manufacturers of Earth Hour want to "turn off the lamps forever" and achieve their "longed-for dark age." Really! This is their "vision," their "only approved endpoint": the "dismantling" of capitalism, consumerism, and civilization altogether. (How this all becomes clear from asking people to conserve electricity is not exactly spelled out in detail. I assume this is because Al considers it too self-evident to bother to explain. Somewhere in his fevered brain, it came to him that this was true, and all he need do is point it out to the rest of us, and we would see too. Yes! It's so obvious now! Thanks, Al!)
Al appropriately labels these enemies of civilization. They are not just "extreme" "radical" "zealots" who push "insanity", "absurdity", "buffoonery" and "tragicomic...farce." They are "Goths". Worse, their campaign is "anti-human" based on "self-loathing" and "self-flaggelation."
To be fair, Al does not completely eschew evidence. He makes, as far as I can tell, two observations of fact supporting his epithets against environmentalists. First, they obstinately reject the obvious solutions to all our problems, such as simply finding more gasoline and burning it. I guess Al remembers thirty years ago when the issue was more about shortages than it was about climate change. He should check into this milennium. Fighting pollution with more pollution is at best unproven as a panacea. Other solutions they reject: burning more coal, burning more corn, and building nuclear plants. They also supposedly hate hydroelectric power, because rivers should run free. I must confess I had not heard this. He does not explain why they supposedly reject harnessing hydroelectric power from the oceans.
His other item of evidence is that he quotes a single climate and public policy specialist as saying that Earth Hour, while nice, will not stop global warming on its own. No private inititive ever will. The government must step in. I suspect he meant applying a range of policy tools, a carbon cap-and trade system, or a tax, clean power subsidies, tax breaks or other incentives, government limiting its own wastefulness, and assisting with public awareness, research and effort coordination.
Al, however, is certain that what this means is that the black helicopters are coming to get him the next time he forgets to turn his porch light off. He has figured out that "government is to have the power" to cut off your energy. Oh, the Constitution! he raves. People sadly are too "afraid" to defy the Nazi "Uber Greens" or the Communist greens of the "People's Republic of San Francisco" and their worldwide "fellow travelers."
So, I'm right, am I not? This guy is a nut and the Journal's standards are dropping like a stone.
Well, best to avoid sputtering insults at them, which would only prove the phenomenon is contageous. I've been sitting on this for a week, since I read Al Smith go off on Earth Hour. The guy is apparently some ridiculous old crank who gets whipped into a frenzy by some news outlet that he takes far too seriously. Or maybe it's performance art -- imitating a slobberjawed hysteric as a kind of hoax. Or maybe he's really a good guy but had been involuntraily drugged on hallucinogens when it come time to write last week's article. I'll give him the benefit of the doubt for now, but I tend to suspect he belongs in a place where the friendly nurse will remind him to eat his jell-o and take his meds.
Judge for yourself. Here is the article in question. I've shown it to a few folks who have said what I think is obvious: if this came in as a letter, it would be attributed to a crackpot and thrown in the dustbin with the old sandwich wrappers or at best the "maybe if we're really desperate" pile. It certainly wouldn't get spotlight treatment. But here he is, a columnist. And advertising his freelance writing availability in his ID tag.
I shall now give my analysis of his argument.
Earth Hour, in the real world, is a sort of a stunt event promoted by various cities and countries around the world, where near the end of March, people are encouraged to douse the lights for one hour. The idea is to draw a little attention to global warming and also just to get people to try just a tiny taste of conservation, on the notion that some might see that it isn't so bad and try it more. It's designed to be minimally demanding, an admittedly negligible start in terms of actual conservation, but significant to the extent that it commands some attention and breaks some resistence to further steps. It's basically costless. The only negative is that some people might decide that participation in this trivial act of conservation is sufficient to purge their guilt over their Hummer and do even less than they otherwise might.
Smith, on the other hand, calls it first a "charade" of "staged" "propaganda" for the "gullible."
Huh? How can any of this apply? What's the message that we shouldn't fall for? Is it a charade because even when you turn your lights off, they aren't really off?
Al's wife: Will you turn out the light when you come up, honey?
Al: Propaganda and lies! You won't trick me!
Well, apparently, despite being obviously intended to deceive us, this effort is in fact the exact opposite. It is, Al informs us, extremely revelatory. "It all becomes clear now" because nothing more perfectly reveals "the true intent" of Earth Hour: it is "merely the prelude" to an even more diabolical scheme. The manufacturers of Earth Hour want to "turn off the lamps forever" and achieve their "longed-for dark age." Really! This is their "vision," their "only approved endpoint": the "dismantling" of capitalism, consumerism, and civilization altogether. (How this all becomes clear from asking people to conserve electricity is not exactly spelled out in detail. I assume this is because Al considers it too self-evident to bother to explain. Somewhere in his fevered brain, it came to him that this was true, and all he need do is point it out to the rest of us, and we would see too. Yes! It's so obvious now! Thanks, Al!)
Al appropriately labels these enemies of civilization. They are not just "extreme" "radical" "zealots" who push "insanity", "absurdity", "buffoonery" and "tragicomic...farce." They are "Goths". Worse, their campaign is "anti-human" based on "self-loathing" and "self-flaggelation."
To be fair, Al does not completely eschew evidence. He makes, as far as I can tell, two observations of fact supporting his epithets against environmentalists. First, they obstinately reject the obvious solutions to all our problems, such as simply finding more gasoline and burning it. I guess Al remembers thirty years ago when the issue was more about shortages than it was about climate change. He should check into this milennium. Fighting pollution with more pollution is at best unproven as a panacea. Other solutions they reject: burning more coal, burning more corn, and building nuclear plants. They also supposedly hate hydroelectric power, because rivers should run free. I must confess I had not heard this. He does not explain why they supposedly reject harnessing hydroelectric power from the oceans.
His other item of evidence is that he quotes a single climate and public policy specialist as saying that Earth Hour, while nice, will not stop global warming on its own. No private inititive ever will. The government must step in. I suspect he meant applying a range of policy tools, a carbon cap-and trade system, or a tax, clean power subsidies, tax breaks or other incentives, government limiting its own wastefulness, and assisting with public awareness, research and effort coordination.
Al, however, is certain that what this means is that the black helicopters are coming to get him the next time he forgets to turn his porch light off. He has figured out that "government is to have the power" to cut off your energy. Oh, the Constitution! he raves. People sadly are too "afraid" to defy the Nazi "Uber Greens" or the Communist greens of the "People's Republic of San Francisco" and their worldwide "fellow travelers."
So, I'm right, am I not? This guy is a nut and the Journal's standards are dropping like a stone.
Sunday, April 06, 2008
Elections as IQ Tests
I believe it somehow made it into this blog that I have referred to the election of George Bush as a failed national IQ test. There is currently a wave of debate that has consumed the local papers and local bloggers regarding whether the election of Mike Gableman to the state supreme court over Louis Butler represents such a failed test.
Butler's advocates (including blacks, liberals, most of the state's judges, and me) saw him in this race as clearly superior: he has more experience, is more scholarly, has more integrity, lends the court some diversity of perspective (the only justice from Milwaukee, as well as the only African American), and was generally far better qualified (as ratings from the bar confirm). His sense of justice may be labeled as more liberal or pro-criminal defendant (but more pro-civil plaintiff) than Gableman's, but it probably corresponds better than Gableman's to the actual values that most people can agree with: injured people should have decent access to the courts, even people accused of terrible crimes should receive a fair trial.
It is also easy to account for the votes against him on the basis of misinformation. Even when the local paper here was pointing out the lies in Gableman's ads, it assumed the framing of the Gableman campaign that the election was about which candidate would better use his position to fight crime. Since this is not the function of the court, there was an implicit contradiction in the Gableman campaign: I will not be an "activist" judge: rather, I will subvert the position to reach outcomes that I am running on today. Gableman's supporters and Gableman himself implicitly and explicitly argued that Butler's experience, dedication, and success as a public defender were negatives, a position that has profoundly negative implications for justice.
Joel McNally said on InterCHANGE, a local public television panel show, that the voters knew nothing abot Gableman, which is not entirely true. But it is hard to see what positive information got out about him other than: he was a prosecutor and judge, which is probably enough to show most voters that he is at least minimally qualified (notwithstanding that the bar buried him in "not qualified" votes), and he promises to be "conservative" (a term that probably confuses more than it explains) and anti-crime (which given the role of the court, also probably does more to confuse).
More to the point of course is the misinformation about Butler. As suggested above, he could be called more liberal than average. He treats Constitutional protections for the accused seriously. Ads regarding him worked hard to create the false impression that he was happy to see criminals run free and reoffend. Voters may never realize what a great justice they had in Butler, because he will leave his seat and who knows what they will hear of him in the future.
But the buyers' remorse over Gableman may be starting before Gableman is even seated. As the press continues to play out on this, and as ethics investigations proceed, and then when the court starts issuing opinions with his deciding vote, there will be almost certain regrets. It should be amazing, except that it is completely commonplace: the day after an election, the local papers report what the outcome will mean for the public. This was front page in the Sunday paper here. I can think of few things the press regularly does that are more absurd. Either the press has done their jobs and reported what the likely results of this victory would be before the election, or they have not. If they did so, then this is old news. If they did not, then they only indict themselves by reporting the information after its utility has fallen from 100 to nothing overnight.
This is one of those elections where one feels that if the truth had gotten out, the result would change. In that sense, it is a test failed. Failed by the system, and yes, failed by voters, but only because the test was made harder for them and they were led to think they did not need to study.
There is now a push led by liberal Butler supporters to reform the system. One (liberal proposal) is to eliminate judicial elections altogether. (Others include public financing and the Illinois retain-or-dismiss election system.) Any of the above would probably be an improvement. All deserve consideration. But ultimately, it is hard to see where any of this will make any difference if the public remains completely bewildered regarding what the court actually does and what qualities really make a good judge. To some extent, the fault is out in the democracy itself. As the saying goes, you always get the rulers you deserve, or else we would have gotten the metric system.
The conservative conventional wisdom is now that the liberals are animated by "sour grapes" to make any changes, and that the whole thing is profoundly undemocratic and dismissive of voters.
Of course, it is not that anybody wants to impose upon the public something that the people don't want; it is rather a paternalistic desire to protect voters from making the dumb decisions they make and regret. Time and experience show that there are some decisions people make that they frequently (or nearly always) regret. Like flirting casually with dangerous things (unsafe sex, unsafe drugs, unsafe explosives). Like falling for con artists, absusive husbands' promises to stop hitting, and conservative political ads. We make some of these deals voidable, grant rights of rescission, require some terms to be in bold print, and outlaw others. Some actions can only be taken with a license. But not voting for Gableman. The system really looks broken when 95% of judges support the incumbent justice, and an upstart under and ethical cloud is able to steal the seat by massively advertising distortions or lies.
I cannot buy all the righteous piety regarding how we should respect the voters. The same conservative conventional wisdom, before Gableman won, was very pronounced in the opposite direction on another race. There was a contest here in Milwaukee where the voters were constantly being second-guessed and there was rampant speculation over whether they would make the obvious right choice or be fooled. But that was the race for the Sixth Aldermanic District, the voters were nearly all black, and the second-guessers were white folks from outside who assumed they would get it "wrong" by re-electing the imprisoned Michael I. McGee to another term.
McGee lost, and I happen to think the voters in that district made a good decision, but I would not have faulted them for keeping McGee, either. Those who would have, though, dominated the discussion prior to the election, and they were the same conservative segment of the punditsburo that now find second-guessing of the Gableman vote distasteful. Was the supreme court race afford fewer unfair advantages to Gableman, whose victory we cannot question, than the Aldermanic race did to McGee, whose victory we could have? McGee was in jail, impeded from serving his district, under a cloud he could not answer without injuring his defense, and his whole budget was spent for legal defense rather than ads. He had no unfair advantage, and in fact was saddled with disadvantages. But his opponent's victory is not suspect, and his somehow would be. The only explanations for this doublestandard are political convenience, and, of course, race.
Butler's advocates (including blacks, liberals, most of the state's judges, and me) saw him in this race as clearly superior: he has more experience, is more scholarly, has more integrity, lends the court some diversity of perspective (the only justice from Milwaukee, as well as the only African American), and was generally far better qualified (as ratings from the bar confirm). His sense of justice may be labeled as more liberal or pro-criminal defendant (but more pro-civil plaintiff) than Gableman's, but it probably corresponds better than Gableman's to the actual values that most people can agree with: injured people should have decent access to the courts, even people accused of terrible crimes should receive a fair trial.
It is also easy to account for the votes against him on the basis of misinformation. Even when the local paper here was pointing out the lies in Gableman's ads, it assumed the framing of the Gableman campaign that the election was about which candidate would better use his position to fight crime. Since this is not the function of the court, there was an implicit contradiction in the Gableman campaign: I will not be an "activist" judge: rather, I will subvert the position to reach outcomes that I am running on today. Gableman's supporters and Gableman himself implicitly and explicitly argued that Butler's experience, dedication, and success as a public defender were negatives, a position that has profoundly negative implications for justice.
Joel McNally said on InterCHANGE, a local public television panel show, that the voters knew nothing abot Gableman, which is not entirely true. But it is hard to see what positive information got out about him other than: he was a prosecutor and judge, which is probably enough to show most voters that he is at least minimally qualified (notwithstanding that the bar buried him in "not qualified" votes), and he promises to be "conservative" (a term that probably confuses more than it explains) and anti-crime (which given the role of the court, also probably does more to confuse).
More to the point of course is the misinformation about Butler. As suggested above, he could be called more liberal than average. He treats Constitutional protections for the accused seriously. Ads regarding him worked hard to create the false impression that he was happy to see criminals run free and reoffend. Voters may never realize what a great justice they had in Butler, because he will leave his seat and who knows what they will hear of him in the future.
But the buyers' remorse over Gableman may be starting before Gableman is even seated. As the press continues to play out on this, and as ethics investigations proceed, and then when the court starts issuing opinions with his deciding vote, there will be almost certain regrets. It should be amazing, except that it is completely commonplace: the day after an election, the local papers report what the outcome will mean for the public. This was front page in the Sunday paper here. I can think of few things the press regularly does that are more absurd. Either the press has done their jobs and reported what the likely results of this victory would be before the election, or they have not. If they did so, then this is old news. If they did not, then they only indict themselves by reporting the information after its utility has fallen from 100 to nothing overnight.
This is one of those elections where one feels that if the truth had gotten out, the result would change. In that sense, it is a test failed. Failed by the system, and yes, failed by voters, but only because the test was made harder for them and they were led to think they did not need to study.
There is now a push led by liberal Butler supporters to reform the system. One (liberal proposal) is to eliminate judicial elections altogether. (Others include public financing and the Illinois retain-or-dismiss election system.) Any of the above would probably be an improvement. All deserve consideration. But ultimately, it is hard to see where any of this will make any difference if the public remains completely bewildered regarding what the court actually does and what qualities really make a good judge. To some extent, the fault is out in the democracy itself. As the saying goes, you always get the rulers you deserve, or else we would have gotten the metric system.
The conservative conventional wisdom is now that the liberals are animated by "sour grapes" to make any changes, and that the whole thing is profoundly undemocratic and dismissive of voters.
Of course, it is not that anybody wants to impose upon the public something that the people don't want; it is rather a paternalistic desire to protect voters from making the dumb decisions they make and regret. Time and experience show that there are some decisions people make that they frequently (or nearly always) regret. Like flirting casually with dangerous things (unsafe sex, unsafe drugs, unsafe explosives). Like falling for con artists, absusive husbands' promises to stop hitting, and conservative political ads. We make some of these deals voidable, grant rights of rescission, require some terms to be in bold print, and outlaw others. Some actions can only be taken with a license. But not voting for Gableman. The system really looks broken when 95% of judges support the incumbent justice, and an upstart under and ethical cloud is able to steal the seat by massively advertising distortions or lies.
I cannot buy all the righteous piety regarding how we should respect the voters. The same conservative conventional wisdom, before Gableman won, was very pronounced in the opposite direction on another race. There was a contest here in Milwaukee where the voters were constantly being second-guessed and there was rampant speculation over whether they would make the obvious right choice or be fooled. But that was the race for the Sixth Aldermanic District, the voters were nearly all black, and the second-guessers were white folks from outside who assumed they would get it "wrong" by re-electing the imprisoned Michael I. McGee to another term.
McGee lost, and I happen to think the voters in that district made a good decision, but I would not have faulted them for keeping McGee, either. Those who would have, though, dominated the discussion prior to the election, and they were the same conservative segment of the punditsburo that now find second-guessing of the Gableman vote distasteful. Was the supreme court race afford fewer unfair advantages to Gableman, whose victory we cannot question, than the Aldermanic race did to McGee, whose victory we could have? McGee was in jail, impeded from serving his district, under a cloud he could not answer without injuring his defense, and his whole budget was spent for legal defense rather than ads. He had no unfair advantage, and in fact was saddled with disadvantages. But his opponent's victory is not suspect, and his somehow would be. The only explanations for this doublestandard are political convenience, and, of course, race.
Thursday, March 27, 2008
How ignoring the past can help us
Concerning the occupation of Iraq, a prominent pro-war meme has been: "Okay, mistakes have been made. Should we have gone to war in the first place? Maybe not. But now we're there, and whether to get up and leave is a different question."
It's easy to see why the past and future must be carefully distinguished if this is your position. The argument regarding the past is a loser. Bush lied. The intelligence was cooked. The war was sold as a brief, easy run, that would pay for itself and inflict scarcely a scratch against our military machine, bring about the rapid flourishing of democracy, strike a blow against terrorism, allow us to secure the stockpiles of WMDs, yadayada. Instead, we have broken our military, encumbered trillions of dollars, furnished a variety of militias, Islamists, Iranian proxies, and criminals with a central government, supplies, training, thousands of tons of unguarded explosives, a no-man's-land in which to operate freely and test military and terrorist strategies, billions in stolen cash and black market oil, and subject matter for recruitment propaganda in the form of US lies, vulnerability, and evil, racist and blasphemous acts. Terrorism is increased, Iraq is worse off, the US is poorer, militarily constrained, and diplomatically isolated. The war is the second longest and the second costliest in our history, and the biggest military or foreign policy blunder since the birth of the US.
So, they say, let's not focus on that.
Instead, let's look ahead. The surge is working! The surge is working! Can't quit now right when things are getting sunny. Don't want to snatch defeat from the jaws of victory. Fail unnecessarily due to lack of resolve, dishonor the dead.
If the future is bright, then it does not matter whether:
A. The adventure was always noble, glorious and successful
or
B. The adventure was problematic at the outset, but we're finally getting our act together and finally have a decent chance at succeeding.
Either way, we must stay.
The impulse is always, of course, that when an opponent argues X, you want to argue not-X. So there is the urge to say things like, of course they want to ignore the past. The record is that they got it wrong, and worse, they lied. Ignoring the past means not approaching them today with appropriate skepticism when they sell the same snakeoil in a new bottle. By not attending to the past, we doom ourselves to repeat it, or, to put it in the terms of our glorious leader, "There's an old saying in Tennessee — I know it's in Texas, probably in Tennessee — that says, fool me once, shame on — shame on you. Fool me — you can't get fooled again." Ahh, wisdom!
Nevertheless, I think there's a good argument for going along with this and ignoring the past. The anti-war argument should focus on how the future is not getting brighter. One reason for doing this is that the past is socially divisive and has a psychological potency that goes against good judgment.
If the future bodes badly, then the choice that does not matter is between:
C. The entire thing has been a horrible, unjustified, criminal fiasco from start to finish
or
D. The thing was actually quite good at the outset, but its merits are declining, and pretty soon it will no longer be beneficial to stay.
Either way, we must get planning on the exit.
One big advantage of forgetting the past and not distinguishing between C and D is that the D option is far more acceptable psychologically to many people than C would be. If the effort began nobly and accomplished something, then our losses have not been in vain and we do not need to expend more money and more lives, and impose greater and greater destruction, seeking to vindicate those losses. We can declare victory and leave the table without thinking we have to double our bet to make back what we've lost in blood, treasure, and dignity. This is in fact how all our wars end even wehen we lose. We don't keep fighting until we and our enemy are both reduced to inconsequential powers and some third force conquers us both. We leave intact but bruised, pretending to have won. That's the only we can leave, is with some figleaf of victory.
So how can we characterize the effort as getting less valuable over time?
1) Well, there were some early "successes," if you care to call them that. We confirmed the absence of WMDs. (It was a lie that Saddam threw the inspectors out, but whatever -- part of the mission was to make sure there were no WMDs left, and that is done.) Saddam and his sons are dead. (This is cited as a big plus, even though the way these things happened basically was a huge embarassment for the victors that made Hussein a martyr and let much of the truth about what happened die with him.) Elections were held. A new Constitution was written. (Even if these were largely disasterous in fact, the myth of them lives on.) The point is that the biggest things occurred the earliest, and as time has gone on... What lately? Nothing on that scale. What next?
2) The Iraqis are impatient. How long after winning a war can you continue to engage in military operations without being viewed as unwelcome occupiers? The red carpet is in tatters in reality, and even in the myth it's fraying.
3) Our forces are getting ground down. Many are going out having been knocked around pretty badly. Many have done multiple tours already. The equipment has undergone lots of wear. Captains have been fleeing the service. Standards and quotas for newbies keep declining.
4) The longer this goes on, the fewer targets are left to hit. Anything or anyone worth hitting has been gotten already. It's been five years.
5) Institutions get stickier over time. When we first arrived, everything was fluid and the early marks we set had a lot of impact. Now things have settled out and fallen into more stable positions and have been calcifying into place. It takes more and more work to make changes.
6) People are impatient stateside too. Time to start addressing the domestic economic crisis.
Of course, pro-war forces have already set up their meme about the surge working. Can we please expose this as a crock of waste?
Consider by analogy the following stories:
First: You have a problem breathing. You go to a doctor who says he knows exactly what is wrong. He says you have an infection in your lungs. He gives you antibotics and says that in 3-5 days you should experience some relief, and by one week the problem will be gone. You take the remedy and everything happens exactly as he says. If this happened, you'd say, the doctor's remedy worked. This would be like the surge working.
Second: you have a problem breathing. You go to a friend who says he knows exactly what is wrong, but he never tells you what he thinks it is. He tries a bunch of things in sequence, but you can't tell what any of those things are doing for you. The problem eventually goes away, and your friend says, "see, I'm as good as a doctor; I got rid of the problem just like I said I would." If this happened, you'd say, maybe a doctor would have done no better than my friend, and maybe something my friend gave me finally worked, but it seems like he didn't know what he was doing, and who knows whether his cure or something else entirely finally got rid of the problem. This would be like being very vague about what the "surge" strategy is, and claiming that it was working at the first sign of some improvement.
Third: You have a problem breathing. You go to a doctor who says he knows exactly what is wrong. He says you have an infection in your lungs. He gives you antibotics and says that in 3-5 days you should experience some relief, and by one week the problem will be gone. You never take the antibiotics because you lose your prescription. You start taking allergy medicine and the problem goes away the instant you start taking the allergy medicine. The doctor says, "looks like my treatment worked." This would be like outlining a surge strategy, but never actually having a surge, and having things improve for other reasons, and taking credit for it on behalf of the surge.
Fourth: You have a problem breathing. You go to a doctor who says he knows exactly what is wrong. He says you have an infection in your lungs. He gives you antibotics and says that in 3-5 days you should experience some relief, and by one week the problem will be gone. You never take the antibiotics because you lose your prescription. You start taking allergy medicine and the problem stays constant but the instant you start taking the allergy medicine, a rash that you also had on your leg goes away. The doctor says, "looks like my treatment worked." This would be like outlining a surge strategy, but never actually having a surge, and having things improve that were not the announced aim of the surge for other reasons, and taking credit for it on behalf of the surge.
The last is the closest to true.
The NYT had a nice chart of the total levels of coaltion forces in Iraq and there have been regular ups and downs, but you would not look at that chart without a key and be able to point to any obvious surge. The additional US troop levels have been trivial and mostly offset by allies leaving the coalition. So there has apparently been no surge. Of course, it's hard to tell because one cannot easily tell how to think about the Iraqi forces or the huge numbers of military contractors that do not show up in those figures.
Not only was there no surge, but the proposal for the surge was very specific about what it would be and how it would work. The idea was to flood the ground with security so that conditions could be stabilized and projects could proceed. There was to be an opening produced by the increased security that would allow refugees to return, infrastructure to be rebuilt, and political opponents to reconcile. Once a whole laundry list of benefits from increased security materialized, the country would be considered stable enough to draw down forces within six months to lower than pre-surge levels.
None of that has happened. The plan failed. The ethnic cleasing of Baghdad was completed. The relative calm afterwards was oversold. Civilian deaths were reported as dramtatically reduced while bombing raids, the number one source of civilian deaths, were dramatically stepped up, suggesting that the death rate has not really gone down, but has been effectively hidden because its source and location has shifted. (Remember the killing in Guatemala that appeared to die down when it shifted from the capital to the countryside, but had in fact increased to genocidal proportions?) There is still no infrastructure. People still live in fear. About two percent of refugees returned. More continue to leave. The government fell apart, the prime minister left the country, Turkey invaded, the British bugged out. The press got better. US morale improved. The place is still Hell no matter how it's sliced. There are no plans to reduce troop levels any time soon. In terms of its ultimate goal, it is an indisputable failure.
This all leads up to no big conclusion, except, let's push this meme. I must face the fact that blogging allows me to ramble and not really write anything very polished. It's more an outlet than a cabinet of showpieces. But at least some of my thoughts are preserved.
It's easy to see why the past and future must be carefully distinguished if this is your position. The argument regarding the past is a loser. Bush lied. The intelligence was cooked. The war was sold as a brief, easy run, that would pay for itself and inflict scarcely a scratch against our military machine, bring about the rapid flourishing of democracy, strike a blow against terrorism, allow us to secure the stockpiles of WMDs, yadayada. Instead, we have broken our military, encumbered trillions of dollars, furnished a variety of militias, Islamists, Iranian proxies, and criminals with a central government, supplies, training, thousands of tons of unguarded explosives, a no-man's-land in which to operate freely and test military and terrorist strategies, billions in stolen cash and black market oil, and subject matter for recruitment propaganda in the form of US lies, vulnerability, and evil, racist and blasphemous acts. Terrorism is increased, Iraq is worse off, the US is poorer, militarily constrained, and diplomatically isolated. The war is the second longest and the second costliest in our history, and the biggest military or foreign policy blunder since the birth of the US.
So, they say, let's not focus on that.
Instead, let's look ahead. The surge is working! The surge is working! Can't quit now right when things are getting sunny. Don't want to snatch defeat from the jaws of victory. Fail unnecessarily due to lack of resolve, dishonor the dead.
If the future is bright, then it does not matter whether:
A. The adventure was always noble, glorious and successful
or
B. The adventure was problematic at the outset, but we're finally getting our act together and finally have a decent chance at succeeding.
Either way, we must stay.
The impulse is always, of course, that when an opponent argues X, you want to argue not-X. So there is the urge to say things like, of course they want to ignore the past. The record is that they got it wrong, and worse, they lied. Ignoring the past means not approaching them today with appropriate skepticism when they sell the same snakeoil in a new bottle. By not attending to the past, we doom ourselves to repeat it, or, to put it in the terms of our glorious leader, "There's an old saying in Tennessee — I know it's in Texas, probably in Tennessee — that says, fool me once, shame on — shame on you. Fool me — you can't get fooled again." Ahh, wisdom!
Nevertheless, I think there's a good argument for going along with this and ignoring the past. The anti-war argument should focus on how the future is not getting brighter. One reason for doing this is that the past is socially divisive and has a psychological potency that goes against good judgment.
If the future bodes badly, then the choice that does not matter is between:
C. The entire thing has been a horrible, unjustified, criminal fiasco from start to finish
or
D. The thing was actually quite good at the outset, but its merits are declining, and pretty soon it will no longer be beneficial to stay.
Either way, we must get planning on the exit.
One big advantage of forgetting the past and not distinguishing between C and D is that the D option is far more acceptable psychologically to many people than C would be. If the effort began nobly and accomplished something, then our losses have not been in vain and we do not need to expend more money and more lives, and impose greater and greater destruction, seeking to vindicate those losses. We can declare victory and leave the table without thinking we have to double our bet to make back what we've lost in blood, treasure, and dignity. This is in fact how all our wars end even wehen we lose. We don't keep fighting until we and our enemy are both reduced to inconsequential powers and some third force conquers us both. We leave intact but bruised, pretending to have won. That's the only we can leave, is with some figleaf of victory.
So how can we characterize the effort as getting less valuable over time?
1) Well, there were some early "successes," if you care to call them that. We confirmed the absence of WMDs. (It was a lie that Saddam threw the inspectors out, but whatever -- part of the mission was to make sure there were no WMDs left, and that is done.) Saddam and his sons are dead. (This is cited as a big plus, even though the way these things happened basically was a huge embarassment for the victors that made Hussein a martyr and let much of the truth about what happened die with him.) Elections were held. A new Constitution was written. (Even if these were largely disasterous in fact, the myth of them lives on.) The point is that the biggest things occurred the earliest, and as time has gone on... What lately? Nothing on that scale. What next?
2) The Iraqis are impatient. How long after winning a war can you continue to engage in military operations without being viewed as unwelcome occupiers? The red carpet is in tatters in reality, and even in the myth it's fraying.
3) Our forces are getting ground down. Many are going out having been knocked around pretty badly. Many have done multiple tours already. The equipment has undergone lots of wear. Captains have been fleeing the service. Standards and quotas for newbies keep declining.
4) The longer this goes on, the fewer targets are left to hit. Anything or anyone worth hitting has been gotten already. It's been five years.
5) Institutions get stickier over time. When we first arrived, everything was fluid and the early marks we set had a lot of impact. Now things have settled out and fallen into more stable positions and have been calcifying into place. It takes more and more work to make changes.
6) People are impatient stateside too. Time to start addressing the domestic economic crisis.
Of course, pro-war forces have already set up their meme about the surge working. Can we please expose this as a crock of waste?
Consider by analogy the following stories:
First: You have a problem breathing. You go to a doctor who says he knows exactly what is wrong. He says you have an infection in your lungs. He gives you antibotics and says that in 3-5 days you should experience some relief, and by one week the problem will be gone. You take the remedy and everything happens exactly as he says. If this happened, you'd say, the doctor's remedy worked. This would be like the surge working.
Second: you have a problem breathing. You go to a friend who says he knows exactly what is wrong, but he never tells you what he thinks it is. He tries a bunch of things in sequence, but you can't tell what any of those things are doing for you. The problem eventually goes away, and your friend says, "see, I'm as good as a doctor; I got rid of the problem just like I said I would." If this happened, you'd say, maybe a doctor would have done no better than my friend, and maybe something my friend gave me finally worked, but it seems like he didn't know what he was doing, and who knows whether his cure or something else entirely finally got rid of the problem. This would be like being very vague about what the "surge" strategy is, and claiming that it was working at the first sign of some improvement.
Third: You have a problem breathing. You go to a doctor who says he knows exactly what is wrong. He says you have an infection in your lungs. He gives you antibotics and says that in 3-5 days you should experience some relief, and by one week the problem will be gone. You never take the antibiotics because you lose your prescription. You start taking allergy medicine and the problem goes away the instant you start taking the allergy medicine. The doctor says, "looks like my treatment worked." This would be like outlining a surge strategy, but never actually having a surge, and having things improve for other reasons, and taking credit for it on behalf of the surge.
Fourth: You have a problem breathing. You go to a doctor who says he knows exactly what is wrong. He says you have an infection in your lungs. He gives you antibotics and says that in 3-5 days you should experience some relief, and by one week the problem will be gone. You never take the antibiotics because you lose your prescription. You start taking allergy medicine and the problem stays constant but the instant you start taking the allergy medicine, a rash that you also had on your leg goes away. The doctor says, "looks like my treatment worked." This would be like outlining a surge strategy, but never actually having a surge, and having things improve that were not the announced aim of the surge for other reasons, and taking credit for it on behalf of the surge.
The last is the closest to true.
The NYT had a nice chart of the total levels of coaltion forces in Iraq and there have been regular ups and downs, but you would not look at that chart without a key and be able to point to any obvious surge. The additional US troop levels have been trivial and mostly offset by allies leaving the coalition. So there has apparently been no surge. Of course, it's hard to tell because one cannot easily tell how to think about the Iraqi forces or the huge numbers of military contractors that do not show up in those figures.
Not only was there no surge, but the proposal for the surge was very specific about what it would be and how it would work. The idea was to flood the ground with security so that conditions could be stabilized and projects could proceed. There was to be an opening produced by the increased security that would allow refugees to return, infrastructure to be rebuilt, and political opponents to reconcile. Once a whole laundry list of benefits from increased security materialized, the country would be considered stable enough to draw down forces within six months to lower than pre-surge levels.
None of that has happened. The plan failed. The ethnic cleasing of Baghdad was completed. The relative calm afterwards was oversold. Civilian deaths were reported as dramtatically reduced while bombing raids, the number one source of civilian deaths, were dramatically stepped up, suggesting that the death rate has not really gone down, but has been effectively hidden because its source and location has shifted. (Remember the killing in Guatemala that appeared to die down when it shifted from the capital to the countryside, but had in fact increased to genocidal proportions?) There is still no infrastructure. People still live in fear. About two percent of refugees returned. More continue to leave. The government fell apart, the prime minister left the country, Turkey invaded, the British bugged out. The press got better. US morale improved. The place is still Hell no matter how it's sliced. There are no plans to reduce troop levels any time soon. In terms of its ultimate goal, it is an indisputable failure.
This all leads up to no big conclusion, except, let's push this meme. I must face the fact that blogging allows me to ramble and not really write anything very polished. It's more an outlet than a cabinet of showpieces. But at least some of my thoughts are preserved.
Wednesday, March 26, 2008
Superdelegate Primary?
Just heard the guv of Tennessee suggesting this. Purported benefit is just to get their votes in earlier in order to wrap up the race sooner. I guess another benefit would be that by committing early, it allows a state to go last and thus at least appear to cast the "deciding" vote.
Stikes me as a totally dumb idea: It will not necessarily shorten the race. It will artificially advantage whichever candidate is peaking in their superdelagate popularity. Every vote in the majority is a deciding vote. It seems to change rules in midstream (although it does not necessarily have to really do so). It adds another technical stage where there are opportunities for distortions to creep into the process. It sacrifices one of the democratic rationales of having superdelegates: to be able to account for and reflect changes in circumstance occurring between the other primaries and the convention. If a hundred people get together and votes to elect themselves as their own hundred delegates, can you think of a more spectacularly transparent waste of time? If it's "winner take all" then the force of superdelegate votes gets amplified in relation to that of pledged delegates from the states, distorting the system to make it less democratic.
Ultimately, it represents an impatience with letting the democratic system set forth in the rules take its course. Just live with it, abide by the result, and in the mean time, if you want the focus to shift from internal squabbling to confronting the opposing party, then just get on with it and stop fussing about with internal processes.
Stikes me as a totally dumb idea: It will not necessarily shorten the race. It will artificially advantage whichever candidate is peaking in their superdelagate popularity. Every vote in the majority is a deciding vote. It seems to change rules in midstream (although it does not necessarily have to really do so). It adds another technical stage where there are opportunities for distortions to creep into the process. It sacrifices one of the democratic rationales of having superdelegates: to be able to account for and reflect changes in circumstance occurring between the other primaries and the convention. If a hundred people get together and votes to elect themselves as their own hundred delegates, can you think of a more spectacularly transparent waste of time? If it's "winner take all" then the force of superdelegate votes gets amplified in relation to that of pledged delegates from the states, distorting the system to make it less democratic.
Ultimately, it represents an impatience with letting the democratic system set forth in the rules take its course. Just live with it, abide by the result, and in the mean time, if you want the focus to shift from internal squabbling to confronting the opposing party, then just get on with it and stop fussing about with internal processes.
Watch this
I saw this over at Glenn Greenwald:
Glenn is right as usual in everything he says in this post. Rose is so stuck in his little New York elite bubble that his perspective is obvious in everything he does. When he talks to mainstream State Department types or to neocons, to celebrities and philanthropists, or about the arts, he sounds infinitely credulous. talks their language, panders and tries to follow. When he talks to smart people whose view is a little smarter, more worldly, less mainstream, he always seems either antagonistic and dismissive (as when he talked to Ramsey Clark) or like he's struggling to get it and really won't retain much by the next day, when he'll be back to the old outlines again. Still, it's wonderful that he actually gives some limited exposure to people whose political views are outside his bubble, like Clark, Harold Pinter, and these guys above.
Much of what these guys say should be beyond controversy, yet is the opposite of what most of the media and elite class appear to assume, and what filters down to the masses from elite opinion. Most of what they said was not surprising to me, but there were a few moments where I caught myself saying "Duh!" not to Charlie or his guests but to myself: "Of course! Why am I not more conscious of that!"
Glenn is right as usual in everything he says in this post. Rose is so stuck in his little New York elite bubble that his perspective is obvious in everything he does. When he talks to mainstream State Department types or to neocons, to celebrities and philanthropists, or about the arts, he sounds infinitely credulous. talks their language, panders and tries to follow. When he talks to smart people whose view is a little smarter, more worldly, less mainstream, he always seems either antagonistic and dismissive (as when he talked to Ramsey Clark) or like he's struggling to get it and really won't retain much by the next day, when he'll be back to the old outlines again. Still, it's wonderful that he actually gives some limited exposure to people whose political views are outside his bubble, like Clark, Harold Pinter, and these guys above.
Much of what these guys say should be beyond controversy, yet is the opposite of what most of the media and elite class appear to assume, and what filters down to the masses from elite opinion. Most of what they said was not surprising to me, but there were a few moments where I caught myself saying "Duh!" not to Charlie or his guests but to myself: "Of course! Why am I not more conscious of that!"
Saturday, March 22, 2008
Iraq: reflections and succeeding downwards
A few things:
(1) Perhaps I've said it before, but Iraq seems almost a perfect demonstration case for the central thesis of Leviathan: a potent sovereign, even a bad one, is preferred over anarchy and war. It's striking to see conservatives, who I'd always understood to be the ones cramming Hobbes down the throats of everyone else, stating baldly that the success of the Iraq war is that Leviathan has been slain. In the Hobbesiverse, that's a minus, not a plus. The plus can only be a new and better sovereign that can achieve security more successfully with less interference. But the Iraqi government now in place is not cited as the success of the conflict because it's an embarassment. Hence the focus is on how a tyrant has been eliminated. But in theory, a tyrant is better than an ineffective government or no government. That's what Iraq has. Neither the occupation nor the illegitimate, phony, disfunctional regime now in place can outperform Hussein on the metric of providing basic security, providing the most basic public needs, and providing a ground where citizens can interact to benefit themselves. A million dead and five million displaced is not security or the product of a genuine sovereign, it's a state of nature.
(2) One of the tricks that misleads people into perceiving improvement is the reporting of delta-to-the-nth-degree improvement without pointing out delta-to-the-first-degree decline. I've addressed before this in the context of global warming. You have a situation whose quality is defined as x. Delta x over t is the rate of improvement or decline in that situation. If the rate is accelerating or slowing, the change in rate is delta-squared x over t-squared. That rate also may be changing, which would be a third-degree delta. In Iraq, you have a bad situation, which is getting worse, and the worsening has been hastening, and the hastening has been hastening in an n-th degree downward spiral. Real improvement would mean that the base metric is actually getting better.
In Iraq, that is nearly impossible. Consider the most obvious aspect of the Iraqi condition: a million excess Iraqis are dead as a result of the war. Tomorrow will not see that number go down, and the loss represented by each death will not fade quickly. Each day more are killed by violence, which is a net loss. Mathematically, there is a certain fixed death rate which is neutral, where the loss represented by past deaths is lightened because the dates pass where they would have died anyway, putting the direct loss in the past, leaving only the attendant losses of the violence and prematurity of those deaths, which fade as memory fades, and as the expected economic benefit of continued life dissipates into entropy. So long as the death rate remains above that (relatively) fixed level, there is a continuing net loss. The mere putative fact of the death rate going down would mean only that the rate of decline is diminishing. It would not mean any actual improvement. And as long as the excess death rate was above zero, the any improvement would be attributable only to the curative effect of time, not to the continuation of the war.
The other metrics one might consider fare little better. False hope lured between one and two percent of external refugees back to Iraq, but that does not mean their normalcy has been restored, and new refugees continue to leave. The loss of precious historical sites and artifacts, such as Paleolithic structures and tools, medieval writings, and classical mosques, is even more irremediable than the loss of human life. The immense labor, talent and inspiration that went into lost writings and architecture cannot be restored without immense labor, talent and inspiration. The historicity and age of human artifacts likewise cannot be quickly recovered. When one historically significant 10,000-year-old item is destroyed, it can only be replaced by investing some other item with similar historic importance, and preserving it for another 10,000 years.
(3) I disagree with Glenn Greenwald concerning a part of what he says here and here. (It's unusual that I do disagree, and the disagreement now is partial.) He says that one of the lessons of the Iraq war, unrecognized by most of those who got it wrong by supporting the war initially, is that the U.S. should not invade, bomb and occupy countries that have not threatened or attacked us. And he adds that at best, the reconsideration of the erring warboosters remains sadly utilitarian. I disagree because I do not think that experience teaches moral lessons. At most it can teach practical ones, and in this case, it teaches nothing general about war because the test was about as bad as you can imagine. I think the decision to go to war ultimately cannot be anything but utilitarian.
On the first and last points, the rightness of an action is related to whether it will be successful, but is not solely determined by success or failure. On the one hand, it was very possible for people to morally say, "I predict this war will be a complete success but I'm still against it because I do not think total fulfilment of its goals is sufficient to morally justify it." On the other hand, it is not possible to morally say, "I predict this war will be a total failure at achieving any of the goals from which it might be morally justified, but I support it anyway." Most actions entail at least some minor downside, and they must have an upside to be justified. People say the ends do not justify the means, but all that can truly be said is that some ends, even if certain, will not satisfy some means. The fact is that only the ends will ever justify the means of any act. I'm going to cut you with a knife, which I ordinarily do not do. I justify it because this simple surgical procedure will save your life, and I know you will thank me for it. War is incredibly negative and is only ever justified when it at least has a positive end in mind. Such an end is a necessary but not a sufficient condition to justify any violence. A reasonable prospect that the end will successfully be achieved is also essential.
On the second point, this war (or really, this occupation) was a disaster, but it does not prove that occupations are necessarily disasterous. George Bush's team cannot make anything work. The fact that they cannot make this work does not mean that invasion and occupation generally won't work. To show whether or not such things can succeed would at least require a fair experiment where a competent team was in charge that might give the thing a chance.
I'm not against war in principle, although it would be misleading not to note that my opposition to starting virtually any wars is based on a calculus so close to insurmountable, that it merges with principle. I'm happy to articulate the principle, even if in reality, there may be theoretical exceptions. Purely defensive combat, proportionately waged and with a prospect of success, is generally justified. Ultimately war, like everything else, is a special case of the same general moral principles: choose the action with the best consequences for all, but recognize that it is generally best to forbear action where risk of harm is substantial and uncertain, such as when understanding of consequences is deficient or where action diminishes a viable beneficial policy.
(4) What is "success"? What is "getting the job done"? Much of the discourse is just far to facile tossing about vague and undefined references to the object of the occupation. It seems to me there are several possible objectives we might have for staying, depending on who the "we" is. Saving the face of the president, keeping war funds flowing to contractors, protecting the building of massive permanent fortresses, bullying the puppet government on oil policy, spending federal resources in order to break the capacity of the treasury to support liberal programs, venting bloodlust -- all plausible. Peacekeeping between internal Iraqi factions, fighting terrorism, promoting regional freedom and prosperity -- all pretty farfetched. (How does arming and training both sides, but disproportionately the fanatics of the majority sect, promote peace? How does occupying, humiliating, and decimating a society while flooding it with weapons do anything but stir hatred and provide a training ground and arms supply to enemies? How does installing an illegitmate regime and initiating an immense humanitarian disaster in the name of democracy raise the image of democracy?) It is arguable that the best policy would not be to leave Iraq but to reverse our activities there by roughly 180 degrees, but since the debate is not what direction to go but how far and how fast in the wrong direction, leaving as soon as possible seems like the best thing on the table.
(1) Perhaps I've said it before, but Iraq seems almost a perfect demonstration case for the central thesis of Leviathan: a potent sovereign, even a bad one, is preferred over anarchy and war. It's striking to see conservatives, who I'd always understood to be the ones cramming Hobbes down the throats of everyone else, stating baldly that the success of the Iraq war is that Leviathan has been slain. In the Hobbesiverse, that's a minus, not a plus. The plus can only be a new and better sovereign that can achieve security more successfully with less interference. But the Iraqi government now in place is not cited as the success of the conflict because it's an embarassment. Hence the focus is on how a tyrant has been eliminated. But in theory, a tyrant is better than an ineffective government or no government. That's what Iraq has. Neither the occupation nor the illegitimate, phony, disfunctional regime now in place can outperform Hussein on the metric of providing basic security, providing the most basic public needs, and providing a ground where citizens can interact to benefit themselves. A million dead and five million displaced is not security or the product of a genuine sovereign, it's a state of nature.
(2) One of the tricks that misleads people into perceiving improvement is the reporting of delta-to-the-nth-degree improvement without pointing out delta-to-the-first-degree decline. I've addressed before this in the context of global warming. You have a situation whose quality is defined as x. Delta x over t is the rate of improvement or decline in that situation. If the rate is accelerating or slowing, the change in rate is delta-squared x over t-squared. That rate also may be changing, which would be a third-degree delta. In Iraq, you have a bad situation, which is getting worse, and the worsening has been hastening, and the hastening has been hastening in an n-th degree downward spiral. Real improvement would mean that the base metric is actually getting better.
In Iraq, that is nearly impossible. Consider the most obvious aspect of the Iraqi condition: a million excess Iraqis are dead as a result of the war. Tomorrow will not see that number go down, and the loss represented by each death will not fade quickly. Each day more are killed by violence, which is a net loss. Mathematically, there is a certain fixed death rate which is neutral, where the loss represented by past deaths is lightened because the dates pass where they would have died anyway, putting the direct loss in the past, leaving only the attendant losses of the violence and prematurity of those deaths, which fade as memory fades, and as the expected economic benefit of continued life dissipates into entropy. So long as the death rate remains above that (relatively) fixed level, there is a continuing net loss. The mere putative fact of the death rate going down would mean only that the rate of decline is diminishing. It would not mean any actual improvement. And as long as the excess death rate was above zero, the any improvement would be attributable only to the curative effect of time, not to the continuation of the war.
The other metrics one might consider fare little better. False hope lured between one and two percent of external refugees back to Iraq, but that does not mean their normalcy has been restored, and new refugees continue to leave. The loss of precious historical sites and artifacts, such as Paleolithic structures and tools, medieval writings, and classical mosques, is even more irremediable than the loss of human life. The immense labor, talent and inspiration that went into lost writings and architecture cannot be restored without immense labor, talent and inspiration. The historicity and age of human artifacts likewise cannot be quickly recovered. When one historically significant 10,000-year-old item is destroyed, it can only be replaced by investing some other item with similar historic importance, and preserving it for another 10,000 years.
(3) I disagree with Glenn Greenwald concerning a part of what he says here and here. (It's unusual that I do disagree, and the disagreement now is partial.) He says that one of the lessons of the Iraq war, unrecognized by most of those who got it wrong by supporting the war initially, is that the U.S. should not invade, bomb and occupy countries that have not threatened or attacked us. And he adds that at best, the reconsideration of the erring warboosters remains sadly utilitarian. I disagree because I do not think that experience teaches moral lessons. At most it can teach practical ones, and in this case, it teaches nothing general about war because the test was about as bad as you can imagine. I think the decision to go to war ultimately cannot be anything but utilitarian.
On the first and last points, the rightness of an action is related to whether it will be successful, but is not solely determined by success or failure. On the one hand, it was very possible for people to morally say, "I predict this war will be a complete success but I'm still against it because I do not think total fulfilment of its goals is sufficient to morally justify it." On the other hand, it is not possible to morally say, "I predict this war will be a total failure at achieving any of the goals from which it might be morally justified, but I support it anyway." Most actions entail at least some minor downside, and they must have an upside to be justified. People say the ends do not justify the means, but all that can truly be said is that some ends, even if certain, will not satisfy some means. The fact is that only the ends will ever justify the means of any act. I'm going to cut you with a knife, which I ordinarily do not do. I justify it because this simple surgical procedure will save your life, and I know you will thank me for it. War is incredibly negative and is only ever justified when it at least has a positive end in mind. Such an end is a necessary but not a sufficient condition to justify any violence. A reasonable prospect that the end will successfully be achieved is also essential.
On the second point, this war (or really, this occupation) was a disaster, but it does not prove that occupations are necessarily disasterous. George Bush's team cannot make anything work. The fact that they cannot make this work does not mean that invasion and occupation generally won't work. To show whether or not such things can succeed would at least require a fair experiment where a competent team was in charge that might give the thing a chance.
I'm not against war in principle, although it would be misleading not to note that my opposition to starting virtually any wars is based on a calculus so close to insurmountable, that it merges with principle. I'm happy to articulate the principle, even if in reality, there may be theoretical exceptions. Purely defensive combat, proportionately waged and with a prospect of success, is generally justified. Ultimately war, like everything else, is a special case of the same general moral principles: choose the action with the best consequences for all, but recognize that it is generally best to forbear action where risk of harm is substantial and uncertain, such as when understanding of consequences is deficient or where action diminishes a viable beneficial policy.
(4) What is "success"? What is "getting the job done"? Much of the discourse is just far to facile tossing about vague and undefined references to the object of the occupation. It seems to me there are several possible objectives we might have for staying, depending on who the "we" is. Saving the face of the president, keeping war funds flowing to contractors, protecting the building of massive permanent fortresses, bullying the puppet government on oil policy, spending federal resources in order to break the capacity of the treasury to support liberal programs, venting bloodlust -- all plausible. Peacekeeping between internal Iraqi factions, fighting terrorism, promoting regional freedom and prosperity -- all pretty farfetched. (How does arming and training both sides, but disproportionately the fanatics of the majority sect, promote peace? How does occupying, humiliating, and decimating a society while flooding it with weapons do anything but stir hatred and provide a training ground and arms supply to enemies? How does installing an illegitmate regime and initiating an immense humanitarian disaster in the name of democracy raise the image of democracy?) It is arguable that the best policy would not be to leave Iraq but to reverse our activities there by roughly 180 degrees, but since the debate is not what direction to go but how far and how fast in the wrong direction, leaving as soon as possible seems like the best thing on the table.
Thursday, March 20, 2008
Obama's things learned in kindergarten
Just wanted to briefly note a few impressions regarding Obama's purportedly epic speech on race. From what I heard of it, it was an extremely fundamental Cornel-Westish explanation of some extremely simple racial matters that many people still don't get. As such, it is certainly salutary. I have not heard more than a small part of it, but I have a hard time believing that it is either the speech of Obama's life, which we hear about a speech of his every few weeks, or our generation's "I have a dream speech."
What I heard of it really was not so much about race ultimately, but about acceptance of those with differing views. As such, it hits away at a consistent theme of the Obama candidacy, which is again kindergarten-basic, but nevertheless bears repeating.
This is only because the American public consists largely of, well, I won't say idiots, but certainly people whose heads have been stuffed full of cotton candy by someone, whose arguments usually seem to operate at two or three levels of abstraction beyond their competence. The News Hour has been doing this thing where they sit and have focus discussions with highly unrepresentative samples of ordinary voters. Last night, for example, they had 4 Republicans (only one of them a non-Hispanic white), 3 Democrats, and 2-3 independents all sounding generally foolish on the Iraq war. Often you could hear the malapropisms and the highfalutin arguments with big leaps in logic and all sorts of faulty and missing premises.
So given this reality, it's good for a major speech, or a major campaign for that matter, hit on the idea that you can disagree with someone vicerally and still respect them, love them, treat them with dignity, accept that they have rights, and work to get along with them and work together with them. If you're Obama, you have to because you're between different groups. The implications of this are numerous: (1) we can negotiate with evil leaders on the world stage; (2) we should cut some slack for people like Geraldine Ferraro, who dare open their mouths on race, because we'll never have a productive discussion if we don't include some room for people to say dumb things; (3) it's possible for someone to say "God damn America" and still love America -- in fact, taken in context, Jeremiah Wright was obviously speaking negatively of the government, and not all the people of America, something conservatives regard as the blessed duty of patriots when they themselves do it with somewhat different language; (4) liberals and conservatives can give their all to defeat each other and each other's policies in the political arena, and still observe some boundaries, show personal respect, play by some rules, and seek common ground where possible.
This is all very basic and obvious, but it means throwing out the us-versus-them frame of reference that studies find that most people, but especially conservatives, find to provide a comforting simplicity and clarity to their thoughts, even if it leads their thoughts to be wrong most of the time. If we knew that there was no simple us-versus-them, we might have allowed for Iraqis possessing some independent viewpoints other than pro-US/anti-Saddam versus the opposite.
What I heard of it really was not so much about race ultimately, but about acceptance of those with differing views. As such, it hits away at a consistent theme of the Obama candidacy, which is again kindergarten-basic, but nevertheless bears repeating.
This is only because the American public consists largely of, well, I won't say idiots, but certainly people whose heads have been stuffed full of cotton candy by someone, whose arguments usually seem to operate at two or three levels of abstraction beyond their competence. The News Hour has been doing this thing where they sit and have focus discussions with highly unrepresentative samples of ordinary voters. Last night, for example, they had 4 Republicans (only one of them a non-Hispanic white), 3 Democrats, and 2-3 independents all sounding generally foolish on the Iraq war. Often you could hear the malapropisms and the highfalutin arguments with big leaps in logic and all sorts of faulty and missing premises.
So given this reality, it's good for a major speech, or a major campaign for that matter, hit on the idea that you can disagree with someone vicerally and still respect them, love them, treat them with dignity, accept that they have rights, and work to get along with them and work together with them. If you're Obama, you have to because you're between different groups. The implications of this are numerous: (1) we can negotiate with evil leaders on the world stage; (2) we should cut some slack for people like Geraldine Ferraro, who dare open their mouths on race, because we'll never have a productive discussion if we don't include some room for people to say dumb things; (3) it's possible for someone to say "God damn America" and still love America -- in fact, taken in context, Jeremiah Wright was obviously speaking negatively of the government, and not all the people of America, something conservatives regard as the blessed duty of patriots when they themselves do it with somewhat different language; (4) liberals and conservatives can give their all to defeat each other and each other's policies in the political arena, and still observe some boundaries, show personal respect, play by some rules, and seek common ground where possible.
This is all very basic and obvious, but it means throwing out the us-versus-them frame of reference that studies find that most people, but especially conservatives, find to provide a comforting simplicity and clarity to their thoughts, even if it leads their thoughts to be wrong most of the time. If we knew that there was no simple us-versus-them, we might have allowed for Iraqis possessing some independent viewpoints other than pro-US/anti-Saddam versus the opposite.
Wednesday, March 12, 2008
Illegals in Milwaukee County Jail
Well, the Shepherd Express is out today and mentions in its "Expresso" section the connections that underlie an article in a UWM online magazine concerning illegal immigrants. The front page of Frontpage Milwaukee has the article .
The idea behind the article, the Shepherd suggests, is to bolster a theme that its faculty advisor, local wingnut Jessica McBride, has been touting that undocumented Mexicans are a real, real big problem. The article itself describes its motivation this way:
In light of the recent local immigration debate, the Frontpage Milwaukee team set out on a three-month investigation to see whether there are illegal immigrant inmates at the Milwaukee County jail or whether rhetoric about so-called “criminal aliens” is exaggerated.
So the entire premise of the piece, apparently, is a false dichotomy: either there are some illegals in jail, or the rhetoric is exaggerated. The implication is that these are mutually exclusive options: either one or the other but not both. If there are aliens in jail, the rhetoric is not exaggerated. This would be true, of course, only if the rhetoric were pretty tame, and relied solely on the implication that in the entire jail population, there is an undocumented immigrant or two.
The result (drumroll, please)... they found some. Shocker!
Michelle Malkin reproduces part of the story and endorses it as fair, all facts, no spin. So, it's been declared fair by someone whose idea of fair is... okay, so maybe that isn't the best evidence of objectivity.
The main point of the article was that there were at 181 persons booked at the jail in the last four years who were illegal aliens who had already been deported and come back. It had some scary-looking Hispanic people's mugshots, and went into great detail about all the crimes attributed to these individuals.
Oh, and it broke down that 181 in 4 years figure for us: that's three or four a week! Jeesh! Wait, which is it, three or four? Let's see. 365 days in a year, so 1461 days in four, counting the leapyear. Or just under 209 weeks, so its... well, about one every 1.3 weeks. Looks like their key finding is a mathematical error. I wonder if Malkin -- yeah, she reported it too. I suspect this will wind up being the old game of conservative telephone. Someone, maybe Limbaugh or whoever, will report it as four a week and not give the underlying numbers. Then the next person will find a way to suggest it's more, and by the time they get done it will be ten a day. It all starts with this one error.
This should not have eluded our intrepid student reporters. We might all remember the story from six weeks ago (during the monthslong Frontpage investigation) about how the county was forced to pay out millions of jailees because they violated a consent decree by overcrowding the booking area. More than 13,000 people over a few years were subjected to this overpacking. (The ACLU has some more information not in the other article I linked to.) They sometimes had 300 people in the booking area, which is limited to 110, which is in fact around the planned average population according to the budget above.
Milwaukee has a substantial population of undocumented workers. I don't have the figures, but it strikes me that if they were as criminally inclined as the rest of the population, it would be hard to get a figure as low as 181. This suggests support for the theory that illegal aliens are, apart from the issue of their presence, more law abiding than the rest of the population because they seek to avoid encounters that could lead to deportation, not just encounters with authorities, but encounters with people who might provoke them or lead them into trouble as well.
The idea behind the article, the Shepherd suggests, is to bolster a theme that its faculty advisor, local wingnut Jessica McBride, has been touting that undocumented Mexicans are a real, real big problem. The article itself describes its motivation this way:
In light of the recent local immigration debate, the Frontpage Milwaukee team set out on a three-month investigation to see whether there are illegal immigrant inmates at the Milwaukee County jail or whether rhetoric about so-called “criminal aliens” is exaggerated.
So the entire premise of the piece, apparently, is a false dichotomy: either there are some illegals in jail, or the rhetoric is exaggerated. The implication is that these are mutually exclusive options: either one or the other but not both. If there are aliens in jail, the rhetoric is not exaggerated. This would be true, of course, only if the rhetoric were pretty tame, and relied solely on the implication that in the entire jail population, there is an undocumented immigrant or two.
The result (drumroll, please)... they found some. Shocker!
Michelle Malkin reproduces part of the story and endorses it as fair, all facts, no spin. So, it's been declared fair by someone whose idea of fair is... okay, so maybe that isn't the best evidence of objectivity.
The main point of the article was that there were at 181 persons booked at the jail in the last four years who were illegal aliens who had already been deported and come back. It had some scary-looking Hispanic people's mugshots, and went into great detail about all the crimes attributed to these individuals.
Oh, and it broke down that 181 in 4 years figure for us: that's three or four a week! Jeesh! Wait, which is it, three or four? Let's see. 365 days in a year, so 1461 days in four, counting the leapyear. Or just under 209 weeks, so its... well, about one every 1.3 weeks. Looks like their key finding is a mathematical error. I wonder if Malkin -- yeah, she reported it too. I suspect this will wind up being the old game of conservative telephone. Someone, maybe Limbaugh or whoever, will report it as four a week and not give the underlying numbers. Then the next person will find a way to suggest it's more, and by the time they get done it will be ten a day. It all starts with this one error.
The article is pretty long. I confess I only skimmed most of it. I was looking for a little bit of counterpoint. You know, some viewpoint that doesn't look like it's been included to bolster a conclusion but just because it's a fact, even though all the facts might not line up with the same conclusion. I didn't really see it. I didn't really see what the rhetoric was that the article sought to prove not "exaggerated." All I really saw, frankly, was the type of one-sided shrieking about scary criminals and how they're really really bad. I know this is a little unfair since I didn't have the patience for the whole thing, but at least enough of the article is one-note that it can be fairly critiqued on this point. If there is another side presented, it was certainly not given prominent attention.
My biggest so-what about the article was that 181 doesn't seem like a lot anyway, even if you multiply it a lot. Last time I was arrested and booked at the jail, it was a zoo. As anyone familiar with the situation knows, jail booking is the central destination for arrestees in an area covering a population of roughly a million people. I found page 7 of the Sheriff's 2006 budget and found that booking processes roughly 50,000 people each year, which is like 140 a day. Over 4 years, 181 people constitute less than a tenth of one percent of the total.This should not have eluded our intrepid student reporters. We might all remember the story from six weeks ago (during the monthslong Frontpage investigation) about how the county was forced to pay out millions of jailees because they violated a consent decree by overcrowding the booking area. More than 13,000 people over a few years were subjected to this overpacking. (The ACLU has some more information not in the other article I linked to.) They sometimes had 300 people in the booking area, which is limited to 110, which is in fact around the planned average population according to the budget above.
Milwaukee has a substantial population of undocumented workers. I don't have the figures, but it strikes me that if they were as criminally inclined as the rest of the population, it would be hard to get a figure as low as 181. This suggests support for the theory that illegal aliens are, apart from the issue of their presence, more law abiding than the rest of the population because they seek to avoid encounters that could lead to deportation, not just encounters with authorities, but encounters with people who might provoke them or lead them into trouble as well.
Monday, March 10, 2008
Judicial Campaign Ads
I have seen a lot of advertising for the state Supreme Court race, and the only coverage I've actually noticed (other than one good article in the alternative press) has been an article in the main local daily newspaper that said nothing about the candidates' qualifications or positions, but talked about the advertising on their behalf.
I guess I will follow that trend, since it is my wont to critique the debate rather than the substance of things, for the reason that the stupidity and the distortion of the debate is an important issue in itself. Of course, the substance will be addressed here by virtue of the fact that you can seldom assess the quality of the debate without recourse to the facts under discussion, if the debate is focused enough to at least touch on matters of substance. Here it does.
The background is this. There are seven members of the court. They serve ten year terms. There is almost always an incumbent, since a justice can usually choose to retire when a like-minded governor is in office who can appoint a like-minded replacement, and bestow that person with the advantage of incumbency in the next election.
The election is nonpartisan, but there are two main political groupings that usually battle over any court position up for election: a conservative grouping that presses mainly for protecting big corporate litigants who come into court as employers who discriminate, violate union rights, and violate labor standards; as polluters; as producers of unsafe products; as cheats and tortfeasors generally; who want to shut the doors to plaintiffs and generally keep their deep pockets closed. They usually don't advertise their corporate interests, but rather press the idea that they are tough on crime, which is more appealing to the voters. On the other side are the liberals, supported by trial attorneys and unions, who tout competence, ethics and fairness, and, of course, toughness on crime. Not because they are tougher on crime, or even necessarily see this as a legitimate issue, but it works, and if you can make a good case that the other side is not tougher than you, then you undermine what is usually their only issue.
This year's candidates are Louis Butler and Mike Gableman. Butler is a left-of-center former public defender and municipal judge, who was reputedly (and actually) brilliant and taught at the national judicial college. When a right-leaning justice quit to take a position on the federal bench, he was appointed by the Democratic governor. His appointment tipped the court in a more liberal direction. His opinions have been independent and scholarly and have been criticized as activist by the right. He is the first African American to sit on the court. Gableman is a former prosecutor and rural county judge. I know less about him.
There have been several ads running locally for each candidate. (One fact checking site has links to a couple of them. There was also a fact checking report on one of the ads that I did not see because it ran in Madison, not Milwaukee.)
(1) "Meet Mike Gableman" (Greater Wisconsin Committee)
Here's the complete script: "Meet Mike Gableman. He wanted to be a judge. But he had a few problems. Burnett County needed a judge. But Gableman lived 290 miles away. An independent panel recommended two finalists – but he didn’t make the list. He even missed the application deadline. But weeks before the selection, Gableman hosted a fundraiser for Gov. Scott McCallum and gave him $1,250. Guess who McCallum picked? Gableman. Tell Mike Gableman we need higher ethical standards for our judges."
Annenberg Factcheck, the Judicial Campaign Integrity Committee, and the supported candidate all criticize the ad as unfairly impugning Gableman's ethics. Factcheck says that the ad is factually accurate and that the circumstantial evidence presented by the ad raises questions, but notes that it does not prove wrongdoing, and that the last sentence, referring to "ethical standards" seems to imply otherwise.
My view on that, I'd have to say, is pretty mixed. On the one hand, judges come in for a lot of crap that isn't fair. It would sure be good not to have their ethics unfairly impugned, because it affects all judges and ultimately the legitimacy of the judicial system. One would ideally like to know whether deadlines, geographical distance, and contrary recommendations by a selection committee are factors that are usually considered very carefully, or are often ignored. Is there any legal or ethical rule governing this? Was some convincing reason offered for the appoinment?
In fact, though, the other side has not put forward a convincing counter-narrative. Although Gableman's selection "shocked" the head of the selection committee, all McCallum has said about the reasons for the appointment has been that Gableman was the "best" candidate. Doesn't that just beg the question?
I disagree that it's not good enough for an ad to be based on unresolved questions. Is the public not entitled to learn about reasonable questions surrounding the appointment because the evidence is not conclusive? The ad paints a picture. It may not be pretty, but the facts on its palette are apparently true. They raise a good question that has not been answered.
The last line about higher ethical standards is problematic, however. I can defend it somewhat by saying that Gableman, by accepting the appointment under such clouded circumstances, helped create the appearance of impropriety that is raised in the ad. That in itself might reasonably be viewed as somewhat unethical. The ad does not say he is below any absolute level of ethics, it just says, "we need higher ethical standards." Although this clearly implies higher than the standards of his own conduct, it doesn't actually say that.
Another thing that makes the ad quite harsh is the bobblehead effect used to animate a photo or a short clip of Gableman to look like he's rhythmically nodding, but otherwise staring forward with an enamelled gaze fixed on the horizon. He looks stupid. Fat and stupid, actually. And the nodding effect in context makes him look worse than sleepy, it makes him appear to be catatonically reciting, "yes, master" to the governor (although the rhythm and the open eyes contradict a Barbara Eden effect).
My verdict is that it's a harsh ad, full of subtle implications and spin. It's not "fair" but it doesn't do much, in my view, to push down the already low standards of political advertising. You were expecting Solonic objectivity?
(2) "Ralph Armstrong" (Coalition for America's Families)
The script: "Ralph Armstrong was a convicted rapist out on parole when he raped, beat and strangled a 19-year-old co-ed to death. There was eyewitness testimony, fingerprints at the crime scene and blood under Armstrong’s fingernails. But Louis Butler wrote the decision to overturn this rapist’s conviction. On cases taken up by the Supreme Court, Butler sides with criminals nearly 60 percent of the time. Tell Louis Butler victims, not criminals, deserve justice."
I find this ad just bitingly stupid. It's not even grammatical. There was testimony, fingerprints and blood? Was they? I particularly am stunned by the last line that says to let Butler know that criminals don't deserve justice. Say what? If you think that it would be justice for the guilty to pay a price by going to jail, then this is a real mind-bender because meting out a just sentence would give criminals something they don't deserve, which is to get what they deserve. So either the makers of the ad have some other idea of what justice is, or they just aren't being too careful to make sense. I mean, they're literally saying that you shouldn't vote for Butler to be a justice, in a land where we pledge allegience to "justice for all" because he actually punishes criminals justly, and the makers of the ad want you to support unjust punishment.
The ad is, if not confusing, at least extremely imprecise and elliptical in fitting together its facts. Armstrong is a "convicted rapist" and in the end the Supreme Court oveturns "this rapist's conviction." So then he's not actually a convicted rapist anymore, right? Except that while on parole, he supposedly committed another rape, so now we have two rape charges, and we don't know from the ad whether I guess it was the second rape that led to a conviction, and that one was overturned. In which case, he would get back the presumption of innocence and you couldn't fairly say he raped again. Except maybe he was reconvicted after the first conviction for the second rape was overturned.
I heard this ad, and my first response was, too much missing information. You have no idea if the Supreme Court was right or wrong. You got all this evidence (fingerprints! eyewitnesses!), why can't you get the conviction to hold up? What happened? (Wait, those did point to Anderson, right? Alas, more ellipses.) Justices don't overturn convictions because they like criminals. There has to be a legal reason, usually because the Constitution was violated.
So okay, do you want a candidate who will pledge never to let this scenario occur? One who will say, bring in some blood and some fingerprints and we just won't worry about anything else? That's pretty extreme. Arguing by extremes, this would mean, plant the evidence, hide it from the defense, torture the guy in custody, try him in absentia in the wrong county or appoint a trained money to serve as counsel, pick no jury, who cares?
If Butler had been the lone dissenter, that would have been noteworthy. But he was chosen to write the opinion for the majority, which means, whatever else you say about it, his position enjoys the support of at least three other justices.
Likewise, if the conviction had been overturned for insufficiency of evidence, or on some really cockamamie loophole, that would be one thing. But it turns out that Butler's decision, while both sides can be argued, is probably right.
Anderson never denied knowing the victim or having been to the scene, so his print proved little if anything, the flaky "eyewitness" identified Anderson after hypnosis and a mockery of a lineup, then later flip-flopped. The blood was never identifed, but could have been from Anderson's own injury from a fall. So there really isn't a mountain of evidence. On the other hand, one must keep in mind that the accused also has the right to present evidence. In this case, the jury had been told that the semen and hairs on the victim could have been Anderson's. But DNA later ruled them both out. It was the newest DNA evidence that reversed the conviction.
That does not set Anderson free. It only gets him a new trial, because the new evidence is pretty strong exoneration and places the old verdict in doubt. I looked it up and it looks like the state is retrying, but the trial has not occurred, and proceedings were stayed six months ago to allow an interlocutory appeal.
Finally, there's that 60% figure. The ad shows Butler smiling and laughing at a conference of some kind while the words float over him. Factcheck can't figure out where it comes from. Only about 30% of cases before the court are criminal cases, so for him to even find 60% of cases with a criminal to support is an achievement in itself. On just the criminal cases, he says that in only about 3% of cases does he not uphold the appellant's conviction. That's not really the same question, because a lot of cases are up on sentencing issues, or whether a case should remain dismissed on evidentiary rulings, or all sorts of other things where one could "side with" the accused, and he'it would not set a convicted man free. The ad is really information-impoverished and potentially very misleading. The juxtapositon with Butler smiling is a cheap and prejudicial tactic. But campaign ads tend to be cheaply prejudicial and fact-selective.
But I think the substance of this ad makes it unfair even on low standards. Unlike the one reviewed above, this one omits some very substantial facts that any reasonable person would consider essential to evaluating the ad's claims. The fact that there's DNA tending to show Anderson innocent, and that Butler's vote was to let a jury hear that evidence, not simply let him go, is a really big thing that most viewers would feel it was dishonest to leave out. In the case of the other ad, the fact that McCollum denies any illicit motive is not in itself much of an omission without him at least being able to give some more specific reason why he picked a political contributor over the candidates recommended to him.
I do not have complete titles or scripts for the rest of the ads.
(3) Here's a partial script for a Gableman ad from Club for Growth Wisconsin: "Criminals threaten our communities. Oddly enough, so do some judges who return them to the street. But not Judge Michael Gableman. He's a former prosecutor who has gone toe to toe with the arsonists, sexual predators, domestic abusers and white-collar criminals who belong in jail. That's why 70 percent of Wisconsin's sheriffs and countless police chiefs consider Gableman their ally in the war on crime..."
WISC-TV fact-checked this. It found Gableman's crimefighting record was exaggerated. "The arsonists" for example, apparently were the targets of the only arson case Gableman ever prosecuted, which ended with an acquittal, not a conviction. He handled 19 felony child abuse cases: 13 pled to misdemeanors, 2 acquittals, 1 sent to jail after trial (the last three may have been pled to lesser felonies or given probation after trial: the report does not say). In felony sexual assault of children, 31 cases yielded 15 misdemeanor pleas and 11 convictions (not including the pleas, apparently, which would also be convictions). WISC had difficulty identifying any criminals with white collars.
It also had a problem with the overemphasis on crimefighting, which it noted mischaracterizes the mostly-civil caseload of the court.
For me, I have a problem with the whole underlying assumption here: that a good judge is an "ally" in the war on crime, and does not "return criminals to the street." I would say that a good judge applies the law and does not seek a particular result or favor a particular side. That means that criminals will sometimes be returned to the street because a trial judge: (a) allows a jury virdict of not guilty to stand; (b) dismisses a case where the evidence is too thin to present to a jury; (c) sometimes issues a not guilty verdict at a bench trial, when the evidence is insufficient; (d) will on rare occasions overturn a jury verdict that could not have been reached rationally. Appellate judges correct trial judge errors which may result in releases.
The idea that judges, by fulfilling their oath and their ethical obligations to follow the law "threaten communities" is offensive.
(4) "Mark Jensen" (The title is an educated guess and I do not have a script, but it ends identically to the Anderson ad, and the body of the ad says, paraphrasing, that before she was killed, Judy Jensen wrote a letter to police with a road map to her killer, husband Mark Jensen. It quotes a part of the letter in which she says, if anything were to happen to her, Mark would be her first suspect. It then cites the Wisconsin Law Journal as saying that Butler would not have allowed the jury to hear the letter.)
The cited article is available only by subscription, but Butler's partial concurrence in the Jensen decision is public record. It's a pretty fair account of the facts. Of course, it does not give the other side:
The entire court agreed that the letter was hearsay, and was not clearly admissible. Standing against it were recent precedents regarding the clause in the Constitution that allows accused persons to confront the witnesses against him. That clause arose because of a practice where witnesses' statements would be offered to the jury indirectly as a way of avoiding cross examination. Julie's letter could properly lead the police to suspect Mark and build a case against him, but the law would possibly prevent its full contents from being exposed to the jury because it was written for the purpose of incriminating him, and he would not be able to test the truth of the letter by cross examination. The court decided that the issue should be sent back to the lower court to decide whether an exception applied that would allow the letter in.
Butler dissented in part regarding the letter because he thought the rules the lower court would have to apply should be more strictly construed against the admission of the letter, making its admission either impossible or very unlikely. The exception the court was told to consider was whether Mark had caused Judy's inability to testify (essentially, whether evidence of his guilt was convincing enough to take away his right to cross examine the letter). Butler pointed out that under precedent, a judge would normally have to find that the accused not only procured the absense of the witness, but did so with the goal of preventing the witness from testifying.
Ultimately, it's a fairly narrow and technical legal issue. It was argued in Butler's opinion on the basis of existing law and not on any sympathy for criminals.
So this one is reasonably fair as such ads go, although I think someone should educate the voters as to what the court does and what justices are supposed to do, because this whole result-oriented get-the-criminals message undermines the whole system.
(5) Just as Jensen was a sequel to Anderson, the "Meet Gableman" ad has had a three-episode run so far. Regarding the second anti-Gableman spot, again I have no title or script, so I'll paraphrase: Remember Mike Gableman, the guy who gave all that money to the governor and got to be a judge. Well, he has more problems. His court is one of the slowest in the state, which means criminals remain out on the streets longer while waiting for trial. His court ranks near the bottom. And another problem: his decisions are reversed almost a third of the time..."
Like many of the ads here, I have a problem with the metrics this one uses. Like the last in this series, the ad carries an implication that is worth voters considering, not necessarily proven by the facts cited, and hence unfair but not necessarily below the low standard that these kinds of ads typically attain.
My problems with the metrics: (1) Why is the court slow? Is this something that typically would be the judge's fault? Are there other reasons time to trial varies? (2) Is it fair to conclude criminals are out longer to any consequence? This seems like an awful leap in logic. (3) Ranks near the bottom in what? (4) A judge's rate of reversal may be very telling, but it certainly would help to have some context to know how high that is, what it includes, and whether the reversals came from dumb calls from the bench, sloppiness, excessive activism, or just difficult cases and shifting standards.
Those are my reviews for now.
UPDATE:
I originally did not review the third private anti-Gableman ad, so I will now. It essentially states that Gableman poses as a crimefighter, but points out some of the same weak-on-crime stats as WISC pointed out in response to the pro-Gableman tough-on-crime ad. It says that as a prosecutor, he usually pled lots of bad felony cases to misdemeanors, and (do I remember this?) that he gave out lighter sentences than possible as a judge. The facts are good. I do think there is the typical problem of the metric. Is this necessarily bad? Lots and lots of cases get pled down. It's not just Gableman. The practice is not necessarily easy to justify in theory. If you really felt that the outcome on a plea was fair, how could you ethically have charged more? But it's the norm, and it's somewhat unfair to implicitly rely on a contrary assumption.
The candidates themselves have finally put in some ads of their own.
Butler's is a positive ad pointing out some of his decisions that are likely to be popular: going against criminals most of the time, and allowing big corportations to be held to account. It points out the huge number of judges that endorse him, and the huge numbers of rank and file law enforcement that have endorsed him through their unions. I am critical. I do not think it's a good thing to boast of decisions based on who won or lost. This panders to the public's desire to elect judges that will find for the most popular litigants rather than those with the best case, or who end up winning because the legal principles are decided fairly and correctly. But such is the norm, and I cannot fault Butler more than any other candidate. He at least focused on his own record, and at least mentions judicial endorsements and ideals of fairness.
Gableman's first ad was a step worse than the ones promoting him by private parties. Now we know why he did not denounce those ads. It would have been absolutely hypocritical. His is another example of picking a case where Butler sided with a criminal. (Paraphrasing, Butler found a loophole, and the criminal went on to molest again.) Except that it adds these elements: (1) the case is not one where he was a judge, it is one where he was a public defender whose job was to zealously argue for his client; (2) unlike what the ad suggests, the defense was unsuccessful -- the defendant was convicted in spite of an initially successful legal argument, and recidivated only after he had served time and been released; (3) the ad shows side-by-side pictures of Bulter and his black client, after showing a series of photos of mostly-white offenders Gableman opposed in court, apparently emphasizing the race of both Butler and his client. The ad could be described delicately and generously as injudicious.
Gableman's next ad (at least I think it is his) is striking in that it includes, in contrast to the fact that Gableman was a prosecutor, an accusation that Butler worked as a criminal defense attorney, as if this in itself should be a negative. The previous ad had implicitly suggested that there was something ignoble about providing defense for accused criminals, a necessary and praiseworthy aspect of our system of justice. The final ad makes it almost explicit that criminal defense work is something shameful. While not theoretically all that much different from what most of these ads do or imply, this does seem to me to cross a line, and lower an already low standard. Which is quite an achievement, and speaks very poorly for Gableman.
I guess I will follow that trend, since it is my wont to critique the debate rather than the substance of things, for the reason that the stupidity and the distortion of the debate is an important issue in itself. Of course, the substance will be addressed here by virtue of the fact that you can seldom assess the quality of the debate without recourse to the facts under discussion, if the debate is focused enough to at least touch on matters of substance. Here it does.
The background is this. There are seven members of the court. They serve ten year terms. There is almost always an incumbent, since a justice can usually choose to retire when a like-minded governor is in office who can appoint a like-minded replacement, and bestow that person with the advantage of incumbency in the next election.
The election is nonpartisan, but there are two main political groupings that usually battle over any court position up for election: a conservative grouping that presses mainly for protecting big corporate litigants who come into court as employers who discriminate, violate union rights, and violate labor standards; as polluters; as producers of unsafe products; as cheats and tortfeasors generally; who want to shut the doors to plaintiffs and generally keep their deep pockets closed. They usually don't advertise their corporate interests, but rather press the idea that they are tough on crime, which is more appealing to the voters. On the other side are the liberals, supported by trial attorneys and unions, who tout competence, ethics and fairness, and, of course, toughness on crime. Not because they are tougher on crime, or even necessarily see this as a legitimate issue, but it works, and if you can make a good case that the other side is not tougher than you, then you undermine what is usually their only issue.
This year's candidates are Louis Butler and Mike Gableman. Butler is a left-of-center former public defender and municipal judge, who was reputedly (and actually) brilliant and taught at the national judicial college. When a right-leaning justice quit to take a position on the federal bench, he was appointed by the Democratic governor. His appointment tipped the court in a more liberal direction. His opinions have been independent and scholarly and have been criticized as activist by the right. He is the first African American to sit on the court. Gableman is a former prosecutor and rural county judge. I know less about him.
There have been several ads running locally for each candidate. (One fact checking site has links to a couple of them. There was also a fact checking report on one of the ads that I did not see because it ran in Madison, not Milwaukee.)
(1) "Meet Mike Gableman" (Greater Wisconsin Committee)
Here's the complete script: "Meet Mike Gableman. He wanted to be a judge. But he had a few problems. Burnett County needed a judge. But Gableman lived 290 miles away. An independent panel recommended two finalists – but he didn’t make the list. He even missed the application deadline. But weeks before the selection, Gableman hosted a fundraiser for Gov. Scott McCallum and gave him $1,250. Guess who McCallum picked? Gableman. Tell Mike Gableman we need higher ethical standards for our judges."
Annenberg Factcheck, the Judicial Campaign Integrity Committee, and the supported candidate all criticize the ad as unfairly impugning Gableman's ethics. Factcheck says that the ad is factually accurate and that the circumstantial evidence presented by the ad raises questions, but notes that it does not prove wrongdoing, and that the last sentence, referring to "ethical standards" seems to imply otherwise.
My view on that, I'd have to say, is pretty mixed. On the one hand, judges come in for a lot of crap that isn't fair. It would sure be good not to have their ethics unfairly impugned, because it affects all judges and ultimately the legitimacy of the judicial system. One would ideally like to know whether deadlines, geographical distance, and contrary recommendations by a selection committee are factors that are usually considered very carefully, or are often ignored. Is there any legal or ethical rule governing this? Was some convincing reason offered for the appoinment?
In fact, though, the other side has not put forward a convincing counter-narrative. Although Gableman's selection "shocked" the head of the selection committee, all McCallum has said about the reasons for the appointment has been that Gableman was the "best" candidate. Doesn't that just beg the question?
I disagree that it's not good enough for an ad to be based on unresolved questions. Is the public not entitled to learn about reasonable questions surrounding the appointment because the evidence is not conclusive? The ad paints a picture. It may not be pretty, but the facts on its palette are apparently true. They raise a good question that has not been answered.
The last line about higher ethical standards is problematic, however. I can defend it somewhat by saying that Gableman, by accepting the appointment under such clouded circumstances, helped create the appearance of impropriety that is raised in the ad. That in itself might reasonably be viewed as somewhat unethical. The ad does not say he is below any absolute level of ethics, it just says, "we need higher ethical standards." Although this clearly implies higher than the standards of his own conduct, it doesn't actually say that.
Another thing that makes the ad quite harsh is the bobblehead effect used to animate a photo or a short clip of Gableman to look like he's rhythmically nodding, but otherwise staring forward with an enamelled gaze fixed on the horizon. He looks stupid. Fat and stupid, actually. And the nodding effect in context makes him look worse than sleepy, it makes him appear to be catatonically reciting, "yes, master" to the governor (although the rhythm and the open eyes contradict a Barbara Eden effect).
My verdict is that it's a harsh ad, full of subtle implications and spin. It's not "fair" but it doesn't do much, in my view, to push down the already low standards of political advertising. You were expecting Solonic objectivity?
(2) "Ralph Armstrong" (Coalition for America's Families)
The script: "Ralph Armstrong was a convicted rapist out on parole when he raped, beat and strangled a 19-year-old co-ed to death. There was eyewitness testimony, fingerprints at the crime scene and blood under Armstrong’s fingernails. But Louis Butler wrote the decision to overturn this rapist’s conviction. On cases taken up by the Supreme Court, Butler sides with criminals nearly 60 percent of the time. Tell Louis Butler victims, not criminals, deserve justice."
I find this ad just bitingly stupid. It's not even grammatical. There was testimony, fingerprints and blood? Was they? I particularly am stunned by the last line that says to let Butler know that criminals don't deserve justice. Say what? If you think that it would be justice for the guilty to pay a price by going to jail, then this is a real mind-bender because meting out a just sentence would give criminals something they don't deserve, which is to get what they deserve. So either the makers of the ad have some other idea of what justice is, or they just aren't being too careful to make sense. I mean, they're literally saying that you shouldn't vote for Butler to be a justice, in a land where we pledge allegience to "justice for all" because he actually punishes criminals justly, and the makers of the ad want you to support unjust punishment.
The ad is, if not confusing, at least extremely imprecise and elliptical in fitting together its facts. Armstrong is a "convicted rapist" and in the end the Supreme Court oveturns "this rapist's conviction." So then he's not actually a convicted rapist anymore, right? Except that while on parole, he supposedly committed another rape, so now we have two rape charges, and we don't know from the ad whether I guess it was the second rape that led to a conviction, and that one was overturned. In which case, he would get back the presumption of innocence and you couldn't fairly say he raped again. Except maybe he was reconvicted after the first conviction for the second rape was overturned.
I heard this ad, and my first response was, too much missing information. You have no idea if the Supreme Court was right or wrong. You got all this evidence (fingerprints! eyewitnesses!), why can't you get the conviction to hold up? What happened? (Wait, those did point to Anderson, right? Alas, more ellipses.) Justices don't overturn convictions because they like criminals. There has to be a legal reason, usually because the Constitution was violated.
So okay, do you want a candidate who will pledge never to let this scenario occur? One who will say, bring in some blood and some fingerprints and we just won't worry about anything else? That's pretty extreme. Arguing by extremes, this would mean, plant the evidence, hide it from the defense, torture the guy in custody, try him in absentia in the wrong county or appoint a trained money to serve as counsel, pick no jury, who cares?
If Butler had been the lone dissenter, that would have been noteworthy. But he was chosen to write the opinion for the majority, which means, whatever else you say about it, his position enjoys the support of at least three other justices.
Likewise, if the conviction had been overturned for insufficiency of evidence, or on some really cockamamie loophole, that would be one thing. But it turns out that Butler's decision, while both sides can be argued, is probably right.
Anderson never denied knowing the victim or having been to the scene, so his print proved little if anything, the flaky "eyewitness" identified Anderson after hypnosis and a mockery of a lineup, then later flip-flopped. The blood was never identifed, but could have been from Anderson's own injury from a fall. So there really isn't a mountain of evidence. On the other hand, one must keep in mind that the accused also has the right to present evidence. In this case, the jury had been told that the semen and hairs on the victim could have been Anderson's. But DNA later ruled them both out. It was the newest DNA evidence that reversed the conviction.
That does not set Anderson free. It only gets him a new trial, because the new evidence is pretty strong exoneration and places the old verdict in doubt. I looked it up and it looks like the state is retrying, but the trial has not occurred, and proceedings were stayed six months ago to allow an interlocutory appeal.
Finally, there's that 60% figure. The ad shows Butler smiling and laughing at a conference of some kind while the words float over him. Factcheck can't figure out where it comes from. Only about 30% of cases before the court are criminal cases, so for him to even find 60% of cases with a criminal to support is an achievement in itself. On just the criminal cases, he says that in only about 3% of cases does he not uphold the appellant's conviction. That's not really the same question, because a lot of cases are up on sentencing issues, or whether a case should remain dismissed on evidentiary rulings, or all sorts of other things where one could "side with" the accused, and he'it would not set a convicted man free. The ad is really information-impoverished and potentially very misleading. The juxtapositon with Butler smiling is a cheap and prejudicial tactic. But campaign ads tend to be cheaply prejudicial and fact-selective.
But I think the substance of this ad makes it unfair even on low standards. Unlike the one reviewed above, this one omits some very substantial facts that any reasonable person would consider essential to evaluating the ad's claims. The fact that there's DNA tending to show Anderson innocent, and that Butler's vote was to let a jury hear that evidence, not simply let him go, is a really big thing that most viewers would feel it was dishonest to leave out. In the case of the other ad, the fact that McCollum denies any illicit motive is not in itself much of an omission without him at least being able to give some more specific reason why he picked a political contributor over the candidates recommended to him.
I do not have complete titles or scripts for the rest of the ads.
(3) Here's a partial script for a Gableman ad from Club for Growth Wisconsin: "Criminals threaten our communities. Oddly enough, so do some judges who return them to the street. But not Judge Michael Gableman. He's a former prosecutor who has gone toe to toe with the arsonists, sexual predators, domestic abusers and white-collar criminals who belong in jail. That's why 70 percent of Wisconsin's sheriffs and countless police chiefs consider Gableman their ally in the war on crime..."
WISC-TV fact-checked this. It found Gableman's crimefighting record was exaggerated. "The arsonists" for example, apparently were the targets of the only arson case Gableman ever prosecuted, which ended with an acquittal, not a conviction. He handled 19 felony child abuse cases: 13 pled to misdemeanors, 2 acquittals, 1 sent to jail after trial (the last three may have been pled to lesser felonies or given probation after trial: the report does not say). In felony sexual assault of children, 31 cases yielded 15 misdemeanor pleas and 11 convictions (not including the pleas, apparently, which would also be convictions). WISC had difficulty identifying any criminals with white collars.
It also had a problem with the overemphasis on crimefighting, which it noted mischaracterizes the mostly-civil caseload of the court.
For me, I have a problem with the whole underlying assumption here: that a good judge is an "ally" in the war on crime, and does not "return criminals to the street." I would say that a good judge applies the law and does not seek a particular result or favor a particular side. That means that criminals will sometimes be returned to the street because a trial judge: (a) allows a jury virdict of not guilty to stand; (b) dismisses a case where the evidence is too thin to present to a jury; (c) sometimes issues a not guilty verdict at a bench trial, when the evidence is insufficient; (d) will on rare occasions overturn a jury verdict that could not have been reached rationally. Appellate judges correct trial judge errors which may result in releases.
The idea that judges, by fulfilling their oath and their ethical obligations to follow the law "threaten communities" is offensive.
(4) "Mark Jensen" (The title is an educated guess and I do not have a script, but it ends identically to the Anderson ad, and the body of the ad says, paraphrasing, that before she was killed, Judy Jensen wrote a letter to police with a road map to her killer, husband Mark Jensen. It quotes a part of the letter in which she says, if anything were to happen to her, Mark would be her first suspect. It then cites the Wisconsin Law Journal as saying that Butler would not have allowed the jury to hear the letter.)
The cited article is available only by subscription, but Butler's partial concurrence in the Jensen decision is public record. It's a pretty fair account of the facts. Of course, it does not give the other side:
The entire court agreed that the letter was hearsay, and was not clearly admissible. Standing against it were recent precedents regarding the clause in the Constitution that allows accused persons to confront the witnesses against him. That clause arose because of a practice where witnesses' statements would be offered to the jury indirectly as a way of avoiding cross examination. Julie's letter could properly lead the police to suspect Mark and build a case against him, but the law would possibly prevent its full contents from being exposed to the jury because it was written for the purpose of incriminating him, and he would not be able to test the truth of the letter by cross examination. The court decided that the issue should be sent back to the lower court to decide whether an exception applied that would allow the letter in.
Butler dissented in part regarding the letter because he thought the rules the lower court would have to apply should be more strictly construed against the admission of the letter, making its admission either impossible or very unlikely. The exception the court was told to consider was whether Mark had caused Judy's inability to testify (essentially, whether evidence of his guilt was convincing enough to take away his right to cross examine the letter). Butler pointed out that under precedent, a judge would normally have to find that the accused not only procured the absense of the witness, but did so with the goal of preventing the witness from testifying.
Ultimately, it's a fairly narrow and technical legal issue. It was argued in Butler's opinion on the basis of existing law and not on any sympathy for criminals.
So this one is reasonably fair as such ads go, although I think someone should educate the voters as to what the court does and what justices are supposed to do, because this whole result-oriented get-the-criminals message undermines the whole system.
(5) Just as Jensen was a sequel to Anderson, the "Meet Gableman" ad has had a three-episode run so far. Regarding the second anti-Gableman spot, again I have no title or script, so I'll paraphrase: Remember Mike Gableman, the guy who gave all that money to the governor and got to be a judge. Well, he has more problems. His court is one of the slowest in the state, which means criminals remain out on the streets longer while waiting for trial. His court ranks near the bottom. And another problem: his decisions are reversed almost a third of the time..."
Like many of the ads here, I have a problem with the metrics this one uses. Like the last in this series, the ad carries an implication that is worth voters considering, not necessarily proven by the facts cited, and hence unfair but not necessarily below the low standard that these kinds of ads typically attain.
My problems with the metrics: (1) Why is the court slow? Is this something that typically would be the judge's fault? Are there other reasons time to trial varies? (2) Is it fair to conclude criminals are out longer to any consequence? This seems like an awful leap in logic. (3) Ranks near the bottom in what? (4) A judge's rate of reversal may be very telling, but it certainly would help to have some context to know how high that is, what it includes, and whether the reversals came from dumb calls from the bench, sloppiness, excessive activism, or just difficult cases and shifting standards.
Those are my reviews for now.
UPDATE:
I originally did not review the third private anti-Gableman ad, so I will now. It essentially states that Gableman poses as a crimefighter, but points out some of the same weak-on-crime stats as WISC pointed out in response to the pro-Gableman tough-on-crime ad. It says that as a prosecutor, he usually pled lots of bad felony cases to misdemeanors, and (do I remember this?) that he gave out lighter sentences than possible as a judge. The facts are good. I do think there is the typical problem of the metric. Is this necessarily bad? Lots and lots of cases get pled down. It's not just Gableman. The practice is not necessarily easy to justify in theory. If you really felt that the outcome on a plea was fair, how could you ethically have charged more? But it's the norm, and it's somewhat unfair to implicitly rely on a contrary assumption.
The candidates themselves have finally put in some ads of their own.
Butler's is a positive ad pointing out some of his decisions that are likely to be popular: going against criminals most of the time, and allowing big corportations to be held to account. It points out the huge number of judges that endorse him, and the huge numbers of rank and file law enforcement that have endorsed him through their unions. I am critical. I do not think it's a good thing to boast of decisions based on who won or lost. This panders to the public's desire to elect judges that will find for the most popular litigants rather than those with the best case, or who end up winning because the legal principles are decided fairly and correctly. But such is the norm, and I cannot fault Butler more than any other candidate. He at least focused on his own record, and at least mentions judicial endorsements and ideals of fairness.
Gableman's first ad was a step worse than the ones promoting him by private parties. Now we know why he did not denounce those ads. It would have been absolutely hypocritical. His is another example of picking a case where Butler sided with a criminal. (Paraphrasing, Butler found a loophole, and the criminal went on to molest again.) Except that it adds these elements: (1) the case is not one where he was a judge, it is one where he was a public defender whose job was to zealously argue for his client; (2) unlike what the ad suggests, the defense was unsuccessful -- the defendant was convicted in spite of an initially successful legal argument, and recidivated only after he had served time and been released; (3) the ad shows side-by-side pictures of Bulter and his black client, after showing a series of photos of mostly-white offenders Gableman opposed in court, apparently emphasizing the race of both Butler and his client. The ad could be described delicately and generously as injudicious.
Gableman's next ad (at least I think it is his) is striking in that it includes, in contrast to the fact that Gableman was a prosecutor, an accusation that Butler worked as a criminal defense attorney, as if this in itself should be a negative. The previous ad had implicitly suggested that there was something ignoble about providing defense for accused criminals, a necessary and praiseworthy aspect of our system of justice. The final ad makes it almost explicit that criminal defense work is something shameful. While not theoretically all that much different from what most of these ads do or imply, this does seem to me to cross a line, and lower an already low standard. Which is quite an achievement, and speaks very poorly for Gableman.
Friday, March 07, 2008
Superdelegates and democracy
The Primary Contest Rules
I hate to get embroiled in a topic that is so ancillary and overrated, but when has that ever stopped me? I keep hearing about the supposed problem the Democrats have with deciding their nominee, to the point of hearing on the News Hour tonight that there is no principled way the Democrats will be able to select a nominee because both candidates will have strong claims, such as Hillary Clinton's having "won more big states" and Barack Obama's having "won more delegates" (each a presumed outcome that has not yet come to pass because the nominating process is not yet over). Other factors offered are most pledged delegates, most states, most popular votes, and of course, most meritorious candidate. Hmmm. How can one possibly resolve this conundrum?
Well, as an attorney, I might instinctively be drawn to the rules, which say the most delegates wins, and mentions nothing about big states or any of the other factors. As I have also noted, the whole idea of states won is all or mostly just an arbirary media invention. The states are not won or lost except to the extent they send any at-large delegates. I don't actually know of any states that do this, but I don't want to presume out of ignorance that the idea is completely meaningless or fabricated, since it might actually exist as a minuscule factor under the rules.
The argument has been made that following the rules, and thus not abiding strictly to measures like poplar vote, is undemocratic. That's true, at least in some technical sense. But I would not jettison the rules as undemocratic in the middle of a contest unless the undemocratic nature of the rules were really severe. Otherwise, one would trade a small evil for an even greater one: abandoning the order of rules altogether, changing the rules in the middle of the game, and raising the spectre, which would taint the entire process, of whether the criteria ultimately chosen at the end of the day to select the victor were not actually reverse-engineered to produce the desired result.
I think the idea of seating Michigan and Florida delegates on the directive that they vote 50/50 for Obama and Clinton, or vote in the rough proportion of the final outcome among the remaining delegates, is absurd, as is the notion of pressuring superdelegates to vote along similar lines. The short version of this standard would be, you can vote as long as your vote does not count.
I don't think there's any excuse for Michigan and Florida to participate on the basis of the "contests" they've held so far, which did not reflect anything close to the will of Florida or Michigan party members or eligible voters. These were meaningless non-contests, because there was only one major candidate for the nomination contesting them. Have a do-over, or forfeit the seats. Again, the rule may have been dumb, but it would be worse to change the rules after the results are in.
On the power of the superdelegates, I don't think it's by any means antidemocratic that they should get to vote and potentially shift the result from that which would come from a vote conducted exclusively among the pledged delegates. That's what having a vote means: that you can potentially influence the result. One could say against any bloc of voters: how dare you vote against the majority selection of the voters outside your bloc? The answer is, because our votes should count. Superdelegates' votes should count. You can argue about how much, but it is not an undemocratic mechanism to have a set of trusted party figures exercise a role in the outcome. There are two reasons for this:
First, this is not a complete national polity, but a political party, which is like a private club, which has an internal heirarchy and a set of gatekeepers. If you don't like what the party stands for or how it operates, you always have the solution of starting your own party. (In contrast, if you were disenfranchised from a general election, you could not just start your own country, at least not without a war.) The party would rather see some people go than participate, anyway, because they are not sufficiently bound to the party, do not share its interests, and may vote to defeat its interests, which is why some places have closed primaries, and will not let Republicans express a binding preference on whether they'd rather see Clinton or Obama in the general race.
Second, even if the nominating process were not in the domain of a private voluntary association, there is some rationale to letting some delegates cast votes without being bound by the results of primaries and caucuses. This is because those delegates will have some advantages over the primary voters. Not only is their dedication to party presumably more reliable because of their longstanding affiliation and contributions, and their interests in its success correspondingly higher, but they have advantages of expertise, and hindsight over the entire election process, which is to say, a superdelegate from Iowa might have a viewpoint closer to what Iowan voters overall express on nominating day than the voters themselves did way back on the day of the Iowa caucuses, when a third were still voting for Edwards. New Hampshire democrats might now favor Obama who previously used their votes to garner delegates in a different primary for Ron Paul.
The votes of pledged delegates have their own weaknesses from a democratic perspective because viewpoints change, new facts and arguments emerge, problems facing the nation evolve, and political options narrow. Nothing in the mechanism of election was so pristine anyway. They have any number of problems ranging from disparate access to the polls, unreliable voting machines, and disproportionate exposure to the messages of the candidates who had by then raised more money from large contributors.
If the unelected elites of the party had no mechanism of accountability, and accounted for more than 50% of the power over the nominating decision, then one could certainly argue that their disproportionate voice was undemocratic. But where they stand poised to decide the outcome only because the pledged delegates are breaking close to 50/50, meaning that neither Obama nor Clinton is the decisive choice of the party, then certainly recourse to the party leaders at least as legitimate as flipping a coin. And many, albeit not all, have some direct accountability to voters because they continue to hold elected positions or future electoral ambitions, which they would not want to jeopardize by going against their constituencies.
Of all the problems in our democratic processes, the use of superdelegates is one of the least pressing. Certainly, the notion of changing the rules in the middle of the game is much more disturbing, or should be.
The More General Problematology
Electoral systems are of necessity imperfect. On one level, there is simply the mathematical issue of it being impossible to construct a set of rules that will always find the best preference in a multicandidate race. People's potential rankings and weightings of candidates are too complex and may produce conflicted rankings in which no candiate is clearly the optimal pick by any means of calculation.
But in the practical world, it is seldom that the necessary minimum imperfection is even an important consideration, because the real and avoidable problems in voting systems are always so much greater. I once commented that the Communist Party of the USA would be advancing its principles greatly if it undertook a serious study of polyarchy and its defects in the US. (Most people do not know, because the communists are such an insignificant force these days, that they bill themselves as the party of "Bill of Rights socialism" and include a streak of libertarian philosophy that defies the popular expectations still held of a group that continues to honor Lenin and historically had lauded Stalin as well.)
The problems are many and diverse and go well beyond what can be attributed to Diebold.
The first category of problems comes from the representative system of indirect decision making. There are advantages in this system (the specialization of representatives leads to development of greater activity and expertise than could be expected through direct democracy) but it is nevertheless essentially antidemocratic, and its antidemocratic tendencies should be ameliorated as much as possible, but intstead are exacerbated by the existing system. Having a representative rather than a direct system opens the door to poor representation and essentially doubles all other problems by their appearance in two venues: voting on representatives and then on policy. In some cases, the problem is at least tripled because of multiple tiers of representation. For example, the system of setting presidential policy is threefold: voters select electors, electors select a president, and the president sets policy. Unless the president delegates, in which case the connection to the demos is even further attenuated. When representives act on behalf of voters, it intensifies problems of influence because representatives, more than their constituents, may be in fear of lobbies that exercise disproportionate power, or bought off by special interests (a bribe to electors is arguably not even a deficiency, but it certainly is one when an a representative views the harm to his constituents as an externality hence dramatically reducing the cost to the special interest of buying him off). Representatives may grow socially and culturally distant from their constituents and merge to form a nomenklatura class, as is found now in the "beltway."
Another problem inherent in all competative systems, and exacerbated by a rung of representation between voters and issues, is that parties do not equally fight dirty or with requisite intensity. The worst are full of passionate intensity while the ethically immaculate refuse to fight back because it would compromise their standards to do what would be necessary to win. There can be little doubt that the Republican Party, at least on the level of its national representatives (I hesitate to smear the millions of innocents who vote Republican because they fairly have not recognized this pattern), has become the party of graft and knife-fight rules when it comes to their competitive conduct. The unsavory tactics explored by Republicans have included simple kickbacks and virtually open bribery, to physical threats and psychological abuse to enforce party discipline, simply ignoring laws that do not suit them, and lying without remorse. They simply value winning more and past standards of decorum less, and are more willing to resort to threats or actual executions of fillibuster, impeachment, anonymous holds, earmarks, interim appointments, manipulation of rules, and any number of aggressive tactics which Democrats excessively eschew in the vain effort to keep up a nonexistent standard of comity.
Stepping back from policy back to elections, there are various particular other distortions introduced by having layers of elections. The electoral college is a special case, because it artificially overweights small states to no good purpose (there was a reason to mollify Delaware back in 1789, but what possible good in multiplying the voting power of Nevada?), sets an artificial limit on the electors allowed to the District of Colombia, and codifies the disenfranchisment of U.S. dependencies.
Of course, the primary system is another level of decisionmaking between voters and the issues. This one distorts the process by artificially inflating the importance of certain unrepresentative early-voting states. Both the geographic and partisan modes of subdividing the electorate introduce distortions in the process, twisting the course to election through the endorsements of subgroups.
Many of the problems are variations on incumbency power. Those who have the vote already effectively determine who may have and may not be enfranchised. Even though the group of ligible voters for the presidency has expanded to include women, racial minorities, landless white males, and younger adults, excluded groups still include many current and past convicts, minors who would otherwise be deemed competent, the homeless (in practical terms), and resident aliens (who are stakeholders and previously had the franchise in many states). Of course, there are others subject to some form of U.S. jurisdiction or influence but lacking either citizenship or residency. While including such foreigners has obvious considerations weighing against it, from the perspective of democratic theory, it produces a situation where those unfortunate enough to have been born in the wrong place are rendered less powerful over their own affairs through the force of law, and it is not easy to fully justify the extent to which this takes place.
Likewise, those in power set the limitations on even standing as a candidate, most typically by age limits, criminal history restrictions, birthplace, residence, and success in garnering some predetermined level of past or present support. But it is not entirely alien to our system to ban, criminalize, or persecute particular parties or impose religious tests. Even if hurdles set up against third party canidacies are surmountable, the exclusion from debates, free media, and serious consideration by the political class usually operate as an overwhelming counterweight to independent efforts. The winner-take all system, unameliorated by any proportional or cumulative system, amplifies the power of majorities and pushes minorities o the margin, a problem that is vastly amplified by gerrymandering that produces safe seats for incumbent
parties, disenfranchising near-majorites of voters almost everywhere and rendering most local races foregone conclusions after the primary.
Incumbents naturally have the power to reward their supporters by policy decisions, and use their influence in the fields of gerrymandering and manipulation of voter laws. Some formal privileges are awarded by law, such as franking for members of Congress. Incumbents have an automatic advantage in their curricula vitae, and access to media, and, perhaps most important of all, fundraising.
Money is the key factor in elections (even if insufficient to save a Mitt Romney from himself). It's true that no amount of money will sell a horrible candidate to an unwilling public, at least not when there is a slightly less horrible candidate who meets the threshold to participate. But lack of money certainly can, and almost invariably will, effectively doom candidates who would otherwise fly to the top of the pack. Money is used to polish candidates, fund the distribution of the message, and buy top talent in all areas of the science of campaigning. It has an exaggerated effect because the knowledge that it is necessary to success spawns the self-fulfilling prophesy that the unfunded will fail. Because money is selectively available to the rich, the rich have exaggerated influence. Money and volunteer time are the only mechanisms under our current system for persons to express the intensity of their preferences by doing more than voting, but devoting free time to candidates in a society where time is money means that this too is the preferential domain of the wealthy (the modestly affluent may volunteer while the destitute
cannot; the very wealthy, to well remunerated to volunteer themselves, pay others to do it for them).
Most of the remaining distortions in the system arise from the (manipulated) behavior of voters. Part of this is whether they vote or not, since turnout ranges from a bit over half in a successful election, to a meager fraction in a small, off-year contest. Turnouts of less than one percent are not hard to come by in certain races in certain places. The main reason people do not vote is that they have no impression that their vote carries meaningful influence. Polls can be a culprit if they suggest the election will not be close. Some eligible electors are permanent non-voters; others are potentially persuadable, but the preliminary screening process has effectively prevented anyone who might appeal to them from presenting themselves. The election contest may manifest itself as something so overcomplicated or simply repellent that participation does not commend itself as something noble or profitable. Those otherwise interested are selectively dissuaded by legal threats, harassment, intentional misinformation, caging schemes, registration or identification requirements (and historically, poll tests and taxes), faulty election machines, and voter list errors. Inconvenience is a significant factor, and not evenly distributed. Distance to some polling places, the length of time required when there is a long line or shortage of ballots, and the fact that elections are held only on a single day, a weekday, which is a workday and not a holiday, work to deter less motivated voters, those with mobility problems, or those who simply need every work hour they can find. (Voter fraud and inadvertant unqualified voting may create a gross overvote, as can counting defects. But the failure to perform hand recounts or examine and count provisional ballots, generates a much larger undervote in most cases.)
And voters cannot only be deterred from exercising the franchise, they can, with some success, be manipulated into mis-exercising it. Even without the effects of active misleading or charismatic demagoguery, threats of spoilsport opposition recalcitrance or external attack, voters are often simply not apt to vote their interests or values. To operate as an effective mechanism of transmitting the popular will to the motor center of the state, elections must rely on electors whose choices of candiates or policies reflect a sound means toward their desired objectives. They must understand the election as more than a sport, in which they select recipients of their votes as they would choose the brand crafted to project image closest to their personality. They must understand the powers and requirements of the office, focus on the most critical issues and capabilities, access reliable information, detect and reject lies, and understand their own desires and how to achieve them. Even when voting on issues, too often, they are misled to acting entirely on perceived self interest, abandoning their other values, or worse, a acting on competitive impulse to spite others.
So after all this, I guess I've managed to write about something more substantial than the superdelegate thing after all. At least, it's a first approximation of a summary.
I hate to get embroiled in a topic that is so ancillary and overrated, but when has that ever stopped me? I keep hearing about the supposed problem the Democrats have with deciding their nominee, to the point of hearing on the News Hour tonight that there is no principled way the Democrats will be able to select a nominee because both candidates will have strong claims, such as Hillary Clinton's having "won more big states" and Barack Obama's having "won more delegates" (each a presumed outcome that has not yet come to pass because the nominating process is not yet over). Other factors offered are most pledged delegates, most states, most popular votes, and of course, most meritorious candidate. Hmmm. How can one possibly resolve this conundrum?
Well, as an attorney, I might instinctively be drawn to the rules, which say the most delegates wins, and mentions nothing about big states or any of the other factors. As I have also noted, the whole idea of states won is all or mostly just an arbirary media invention. The states are not won or lost except to the extent they send any at-large delegates. I don't actually know of any states that do this, but I don't want to presume out of ignorance that the idea is completely meaningless or fabricated, since it might actually exist as a minuscule factor under the rules.
The argument has been made that following the rules, and thus not abiding strictly to measures like poplar vote, is undemocratic. That's true, at least in some technical sense. But I would not jettison the rules as undemocratic in the middle of a contest unless the undemocratic nature of the rules were really severe. Otherwise, one would trade a small evil for an even greater one: abandoning the order of rules altogether, changing the rules in the middle of the game, and raising the spectre, which would taint the entire process, of whether the criteria ultimately chosen at the end of the day to select the victor were not actually reverse-engineered to produce the desired result.
I think the idea of seating Michigan and Florida delegates on the directive that they vote 50/50 for Obama and Clinton, or vote in the rough proportion of the final outcome among the remaining delegates, is absurd, as is the notion of pressuring superdelegates to vote along similar lines. The short version of this standard would be, you can vote as long as your vote does not count.
I don't think there's any excuse for Michigan and Florida to participate on the basis of the "contests" they've held so far, which did not reflect anything close to the will of Florida or Michigan party members or eligible voters. These were meaningless non-contests, because there was only one major candidate for the nomination contesting them. Have a do-over, or forfeit the seats. Again, the rule may have been dumb, but it would be worse to change the rules after the results are in.
On the power of the superdelegates, I don't think it's by any means antidemocratic that they should get to vote and potentially shift the result from that which would come from a vote conducted exclusively among the pledged delegates. That's what having a vote means: that you can potentially influence the result. One could say against any bloc of voters: how dare you vote against the majority selection of the voters outside your bloc? The answer is, because our votes should count. Superdelegates' votes should count. You can argue about how much, but it is not an undemocratic mechanism to have a set of trusted party figures exercise a role in the outcome. There are two reasons for this:
First, this is not a complete national polity, but a political party, which is like a private club, which has an internal heirarchy and a set of gatekeepers. If you don't like what the party stands for or how it operates, you always have the solution of starting your own party. (In contrast, if you were disenfranchised from a general election, you could not just start your own country, at least not without a war.) The party would rather see some people go than participate, anyway, because they are not sufficiently bound to the party, do not share its interests, and may vote to defeat its interests, which is why some places have closed primaries, and will not let Republicans express a binding preference on whether they'd rather see Clinton or Obama in the general race.
Second, even if the nominating process were not in the domain of a private voluntary association, there is some rationale to letting some delegates cast votes without being bound by the results of primaries and caucuses. This is because those delegates will have some advantages over the primary voters. Not only is their dedication to party presumably more reliable because of their longstanding affiliation and contributions, and their interests in its success correspondingly higher, but they have advantages of expertise, and hindsight over the entire election process, which is to say, a superdelegate from Iowa might have a viewpoint closer to what Iowan voters overall express on nominating day than the voters themselves did way back on the day of the Iowa caucuses, when a third were still voting for Edwards. New Hampshire democrats might now favor Obama who previously used their votes to garner delegates in a different primary for Ron Paul.
The votes of pledged delegates have their own weaknesses from a democratic perspective because viewpoints change, new facts and arguments emerge, problems facing the nation evolve, and political options narrow. Nothing in the mechanism of election was so pristine anyway. They have any number of problems ranging from disparate access to the polls, unreliable voting machines, and disproportionate exposure to the messages of the candidates who had by then raised more money from large contributors.
If the unelected elites of the party had no mechanism of accountability, and accounted for more than 50% of the power over the nominating decision, then one could certainly argue that their disproportionate voice was undemocratic. But where they stand poised to decide the outcome only because the pledged delegates are breaking close to 50/50, meaning that neither Obama nor Clinton is the decisive choice of the party, then certainly recourse to the party leaders at least as legitimate as flipping a coin. And many, albeit not all, have some direct accountability to voters because they continue to hold elected positions or future electoral ambitions, which they would not want to jeopardize by going against their constituencies.
Of all the problems in our democratic processes, the use of superdelegates is one of the least pressing. Certainly, the notion of changing the rules in the middle of the game is much more disturbing, or should be.
The More General Problematology
Electoral systems are of necessity imperfect. On one level, there is simply the mathematical issue of it being impossible to construct a set of rules that will always find the best preference in a multicandidate race. People's potential rankings and weightings of candidates are too complex and may produce conflicted rankings in which no candiate is clearly the optimal pick by any means of calculation.
But in the practical world, it is seldom that the necessary minimum imperfection is even an important consideration, because the real and avoidable problems in voting systems are always so much greater. I once commented that the Communist Party of the USA would be advancing its principles greatly if it undertook a serious study of polyarchy and its defects in the US. (Most people do not know, because the communists are such an insignificant force these days, that they bill themselves as the party of "Bill of Rights socialism" and include a streak of libertarian philosophy that defies the popular expectations still held of a group that continues to honor Lenin and historically had lauded Stalin as well.)
The problems are many and diverse and go well beyond what can be attributed to Diebold.
The first category of problems comes from the representative system of indirect decision making. There are advantages in this system (the specialization of representatives leads to development of greater activity and expertise than could be expected through direct democracy) but it is nevertheless essentially antidemocratic, and its antidemocratic tendencies should be ameliorated as much as possible, but intstead are exacerbated by the existing system. Having a representative rather than a direct system opens the door to poor representation and essentially doubles all other problems by their appearance in two venues: voting on representatives and then on policy. In some cases, the problem is at least tripled because of multiple tiers of representation. For example, the system of setting presidential policy is threefold: voters select electors, electors select a president, and the president sets policy. Unless the president delegates, in which case the connection to the demos is even further attenuated. When representives act on behalf of voters, it intensifies problems of influence because representatives, more than their constituents, may be in fear of lobbies that exercise disproportionate power, or bought off by special interests (a bribe to electors is arguably not even a deficiency, but it certainly is one when an a representative views the harm to his constituents as an externality hence dramatically reducing the cost to the special interest of buying him off). Representatives may grow socially and culturally distant from their constituents and merge to form a nomenklatura class, as is found now in the "beltway."
Another problem inherent in all competative systems, and exacerbated by a rung of representation between voters and issues, is that parties do not equally fight dirty or with requisite intensity. The worst are full of passionate intensity while the ethically immaculate refuse to fight back because it would compromise their standards to do what would be necessary to win. There can be little doubt that the Republican Party, at least on the level of its national representatives (I hesitate to smear the millions of innocents who vote Republican because they fairly have not recognized this pattern), has become the party of graft and knife-fight rules when it comes to their competitive conduct. The unsavory tactics explored by Republicans have included simple kickbacks and virtually open bribery, to physical threats and psychological abuse to enforce party discipline, simply ignoring laws that do not suit them, and lying without remorse. They simply value winning more and past standards of decorum less, and are more willing to resort to threats or actual executions of fillibuster, impeachment, anonymous holds, earmarks, interim appointments, manipulation of rules, and any number of aggressive tactics which Democrats excessively eschew in the vain effort to keep up a nonexistent standard of comity.
Stepping back from policy back to elections, there are various particular other distortions introduced by having layers of elections. The electoral college is a special case, because it artificially overweights small states to no good purpose (there was a reason to mollify Delaware back in 1789, but what possible good in multiplying the voting power of Nevada?), sets an artificial limit on the electors allowed to the District of Colombia, and codifies the disenfranchisment of U.S. dependencies.
Of course, the primary system is another level of decisionmaking between voters and the issues. This one distorts the process by artificially inflating the importance of certain unrepresentative early-voting states. Both the geographic and partisan modes of subdividing the electorate introduce distortions in the process, twisting the course to election through the endorsements of subgroups.
Many of the problems are variations on incumbency power. Those who have the vote already effectively determine who may have and may not be enfranchised. Even though the group of ligible voters for the presidency has expanded to include women, racial minorities, landless white males, and younger adults, excluded groups still include many current and past convicts, minors who would otherwise be deemed competent, the homeless (in practical terms), and resident aliens (who are stakeholders and previously had the franchise in many states). Of course, there are others subject to some form of U.S. jurisdiction or influence but lacking either citizenship or residency. While including such foreigners has obvious considerations weighing against it, from the perspective of democratic theory, it produces a situation where those unfortunate enough to have been born in the wrong place are rendered less powerful over their own affairs through the force of law, and it is not easy to fully justify the extent to which this takes place.
Likewise, those in power set the limitations on even standing as a candidate, most typically by age limits, criminal history restrictions, birthplace, residence, and success in garnering some predetermined level of past or present support. But it is not entirely alien to our system to ban, criminalize, or persecute particular parties or impose religious tests. Even if hurdles set up against third party canidacies are surmountable, the exclusion from debates, free media, and serious consideration by the political class usually operate as an overwhelming counterweight to independent efforts. The winner-take all system, unameliorated by any proportional or cumulative system, amplifies the power of majorities and pushes minorities o the margin, a problem that is vastly amplified by gerrymandering that produces safe seats for incumbent
parties, disenfranchising near-majorites of voters almost everywhere and rendering most local races foregone conclusions after the primary.
Incumbents naturally have the power to reward their supporters by policy decisions, and use their influence in the fields of gerrymandering and manipulation of voter laws. Some formal privileges are awarded by law, such as franking for members of Congress. Incumbents have an automatic advantage in their curricula vitae, and access to media, and, perhaps most important of all, fundraising.
Money is the key factor in elections (even if insufficient to save a Mitt Romney from himself). It's true that no amount of money will sell a horrible candidate to an unwilling public, at least not when there is a slightly less horrible candidate who meets the threshold to participate. But lack of money certainly can, and almost invariably will, effectively doom candidates who would otherwise fly to the top of the pack. Money is used to polish candidates, fund the distribution of the message, and buy top talent in all areas of the science of campaigning. It has an exaggerated effect because the knowledge that it is necessary to success spawns the self-fulfilling prophesy that the unfunded will fail. Because money is selectively available to the rich, the rich have exaggerated influence. Money and volunteer time are the only mechanisms under our current system for persons to express the intensity of their preferences by doing more than voting, but devoting free time to candidates in a society where time is money means that this too is the preferential domain of the wealthy (the modestly affluent may volunteer while the destitute
cannot; the very wealthy, to well remunerated to volunteer themselves, pay others to do it for them).
Most of the remaining distortions in the system arise from the (manipulated) behavior of voters. Part of this is whether they vote or not, since turnout ranges from a bit over half in a successful election, to a meager fraction in a small, off-year contest. Turnouts of less than one percent are not hard to come by in certain races in certain places. The main reason people do not vote is that they have no impression that their vote carries meaningful influence. Polls can be a culprit if they suggest the election will not be close. Some eligible electors are permanent non-voters; others are potentially persuadable, but the preliminary screening process has effectively prevented anyone who might appeal to them from presenting themselves. The election contest may manifest itself as something so overcomplicated or simply repellent that participation does not commend itself as something noble or profitable. Those otherwise interested are selectively dissuaded by legal threats, harassment, intentional misinformation, caging schemes, registration or identification requirements (and historically, poll tests and taxes), faulty election machines, and voter list errors. Inconvenience is a significant factor, and not evenly distributed. Distance to some polling places, the length of time required when there is a long line or shortage of ballots, and the fact that elections are held only on a single day, a weekday, which is a workday and not a holiday, work to deter less motivated voters, those with mobility problems, or those who simply need every work hour they can find. (Voter fraud and inadvertant unqualified voting may create a gross overvote, as can counting defects. But the failure to perform hand recounts or examine and count provisional ballots, generates a much larger undervote in most cases.)
And voters cannot only be deterred from exercising the franchise, they can, with some success, be manipulated into mis-exercising it. Even without the effects of active misleading or charismatic demagoguery, threats of spoilsport opposition recalcitrance or external attack, voters are often simply not apt to vote their interests or values. To operate as an effective mechanism of transmitting the popular will to the motor center of the state, elections must rely on electors whose choices of candiates or policies reflect a sound means toward their desired objectives. They must understand the election as more than a sport, in which they select recipients of their votes as they would choose the brand crafted to project image closest to their personality. They must understand the powers and requirements of the office, focus on the most critical issues and capabilities, access reliable information, detect and reject lies, and understand their own desires and how to achieve them. Even when voting on issues, too often, they are misled to acting entirely on perceived self interest, abandoning their other values, or worse, a acting on competitive impulse to spite others.
So after all this, I guess I've managed to write about something more substantial than the superdelegate thing after all. At least, it's a first approximation of a summary.
Tuesday, February 19, 2008
The failure of the Cuban exiles is nearly complete
With news that Castro is stepping down, it's well to note what his adversaries have achieved in 50 years of opposition. They've made themselves obnoxious to two countries. They've wagged the dog as a lobby, distorting and damaging US foreign policy, squandering our goodwill, resources, and opportunities for trade. They've kept Cuban families apart, brought violence and terror into the exile community, placed a wedge between generations, stifled remittances and stimulated deaths at sea from crossings made illegal by the US refusal to grant visas. They've stymied cultural and professional exchanges, and weakened human rights on both sides: therough the travel ban stateside, and by stimulating and helping justify repression in Cuba. More than anything they've impoverished Cuba by the useless blockade. They even had their role in priming the world for a World War III that nearly commenced during the Missle Crisis.
In exchange for all this loss, they've managed to promote a few bigshots, place Miami's other ethnic groups under a corrupt exile regime, and make Miami an international haven for terrorists, generals and dictators from the whole hemisphere.
But Castro, he was never weakened. He is more lionized now in the Americas than ever. The success of his regime in converting masses of poor farmers into skilled but underpaid professionals, while holding off a superpower just offshore, and intervening to decolonialize Africa, hence keeping the island afloat, exporting hope and rocketing national pride, has earned him a permanent place in the pantheon of heroes for the Western and Southern hemispheres. He has survived, perservered, prospered, and lived to see the Continent flourishing with figures like Chavez, Morales, Lula, and Ortega in most of the Americas. Colombia and Paraguay are virtually alone standing against the trend. Castro retires without having been assassinated or captured.
The point is: not what the exiles in Miami intended. So their message today is, we have to keep up our efforts because nothing has changed. Logical if the policies had succeeded so far. Utterly delusional in reality. For 50 years policies intended to oust Castro, end Castroism, and reverse the Cuban Revolution have done nothing of the sort. Maybe 2059, when we mark its centennial, they will reassess.
In exchange for all this loss, they've managed to promote a few bigshots, place Miami's other ethnic groups under a corrupt exile regime, and make Miami an international haven for terrorists, generals and dictators from the whole hemisphere.
But Castro, he was never weakened. He is more lionized now in the Americas than ever. The success of his regime in converting masses of poor farmers into skilled but underpaid professionals, while holding off a superpower just offshore, and intervening to decolonialize Africa, hence keeping the island afloat, exporting hope and rocketing national pride, has earned him a permanent place in the pantheon of heroes for the Western and Southern hemispheres. He has survived, perservered, prospered, and lived to see the Continent flourishing with figures like Chavez, Morales, Lula, and Ortega in most of the Americas. Colombia and Paraguay are virtually alone standing against the trend. Castro retires without having been assassinated or captured.
The point is: not what the exiles in Miami intended. So their message today is, we have to keep up our efforts because nothing has changed. Logical if the policies had succeeded so far. Utterly delusional in reality. For 50 years policies intended to oust Castro, end Castroism, and reverse the Cuban Revolution have done nothing of the sort. Maybe 2059, when we mark its centennial, they will reassess.
Thursday, February 14, 2008
Just like a real court
I have not looked lately at the rules created under the Military Commissions Act to conduct trials for the 9.11 accuseds. I do remember, though, that the original executive order appeared to leave open the prospect that George Bush could personally order the executions of anyone tried by military commission regardless of the verdict. Yes, it said that he had the power to issue judgment notwithstanding the verdict of the commission, and did not limit that to clemency for those found guilty. He could kill people cleared by judicial process, initiated in the first place by his own finding. It may have been the single most obscene order ever issued by a U.S. president, amid stiff competition.
At any rate, it is clear that the Pentagon has sent out its talking points memo to all the spokespersons speaking on behalf of the military commissions and there is only one talking point: this is just like a real trial. Look, there's a judge. There are rules. There are burdens of proof and objections and stuff like that. There are tables and chairs just like in a real courtroom.
I sit and listen to these guys and I think: there are rules just like in a real trial (just different rules), and objections (only difference is the judge rules differently on the objections), there's a verdict just like in a real trial (only difference is, this verdict is always guilty). Like the rules themselves make no difference beyond the broad strokes?
I know some of the protections are really important: there's a presumption of innocence (odd, though, that you can hold a person for six years and torture them while presuming them innocent), the state has the burden of proof by a reasonable doubt (but I wonder if that will mean the same thing as in a real court). The real problem is that there's no such thing as your basket of rights being half full. You have to eliminate every possible means for the prosecution to unfairly screw you, or they just pick another way. It's like setting to sea in a boat with a big hole in the starboard bow and saying, look, it's just like a real boat, it's got an intact portside hull and everything. Wink, wink, see you at Davy Jones' locker.
At any rate, it is clear that the Pentagon has sent out its talking points memo to all the spokespersons speaking on behalf of the military commissions and there is only one talking point: this is just like a real trial. Look, there's a judge. There are rules. There are burdens of proof and objections and stuff like that. There are tables and chairs just like in a real courtroom.
I sit and listen to these guys and I think: there are rules just like in a real trial (just different rules), and objections (only difference is the judge rules differently on the objections), there's a verdict just like in a real trial (only difference is, this verdict is always guilty). Like the rules themselves make no difference beyond the broad strokes?
I know some of the protections are really important: there's a presumption of innocence (odd, though, that you can hold a person for six years and torture them while presuming them innocent), the state has the burden of proof by a reasonable doubt (but I wonder if that will mean the same thing as in a real court). The real problem is that there's no such thing as your basket of rights being half full. You have to eliminate every possible means for the prosecution to unfairly screw you, or they just pick another way. It's like setting to sea in a boat with a big hole in the starboard bow and saying, look, it's just like a real boat, it's got an intact portside hull and everything. Wink, wink, see you at Davy Jones' locker.
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