In direct contravention of my wife's explicit instructions, herewith I inaugurate my first blog. Long may it prosper.

For some reason, I think I have something to say to you. You think you have something to say to me? Email me at: gideonsblogger -at- yahoo -dot- com

 
Boy, the President looked peeved announcing Alito's nomination. The way he paused and pursed his mouth when referring to his sterling (and they are sterling) credentials.

Hugh Hewitt thinks what is needed now is massive phone-banking to the GOP members of the Gang of 14 to get them to commit to the "Constitutional option" as it were (eliminating the filibuster for judicial nominees). He's jumping the gun, I think, at least if he's looking for public statements from these Senators that they will vote for said option. As well, we don't know yet whether Specter, Snowe, Collins or Chafee will vote for the nominee, nor whether "red-state" Democrats will be able to maintain party discipline. Escalating preemptively to the "constitutional option" makes it *easier* for Democrats to maintain that discipline, because they have better ground to stand on than they do if they have to stand on abortion alone. And it goes without saying that politically it's better to win with 60 votes than with 51.

Even if the point of this nomination is to have a big, public fight, I think it makes sense to draw enemy fire first, because the overwhelming arguments from the Democratic side are going to be about Casey. And I think it helps the GOP to have the Democrats say, "every member of this party must vote against nominees to the Court who think Casey was wrongly decided." Among other things, it would make for very interesting ads in the Pennsylvania Senate race.

Finally: three groups from within the Right who have reason to be disappointed with Alito. First: business groups. He offers them nothing. Miers was their gal. They are going to expect the next nominee, if there is one, to be "their" pick. The social right needs to mend some fences here. Second: evangelical Christians. It's an unfortunate fact but there are certainly people who supported Miers who think her opponents on the *Right* were casting aspersions on her religion. And Alito is another Catholic. I don't think identity politics should have anything to do with the Court, but I'm not the only person out there. Finally: advocates of a more "Talmudic" as against "Papal" model for the Supreme Court's role. Scalia's Catholicism extends beyond his religious affiliation; he is a strong proponent of the notion that the Supreme Court is the final word on the interpretation of the Constitution (as against those who, in the spirit of Larry Kramer's book The People Themselves, take the view that the Court is the final word on any one case but that every branch of government and, indeed, the American people themselves, have equal right and obligation to interpret the Constitution - honestly, of course, but independently). Alito appears to be cut from the same cloth in this regard. Those who are not happy when, for example, the Court rebukes Congress for independently interpreting the Equal Protection or Free Exercise clauses of the 14th and 1st Amendments respectively should not be thrilled by the increasing Catholicism (in this sense, not the religious) of the Court.

I have no business making predictions how this nomination will go, particularly since I have egg on my face from my very recent prediction that the nominee would not be someone like Alito, and, specifically, would not be Alito himself. But that won't stop me. Even though I argued, before the fact, that Bush was in too weak a position to have a knock-down drag-out fight over a nomination, and therefore would pick someone eminently confirmable, I think Alito will join the Court, and that he will do so without triggering the "Constitutional option." But maybe that's just wishful thinking on my part.

We'll see soon enough, won't we.
posted by Noah at 8:13 AM

 
Hmmm. I just re-read these two posts I wrote before the Roberts nomination, speculating on what would happen if President Bush nominated Alberto Gonzales to replace O'Connor. Sounds a lot like what we just went through, no?

I also found this ranked rundown of likely nominees to replace O'Connor, again from before the Roberts nomination. This list obviously needs to be updated. Garza, Alito, Luttig all need to be downgraded. As I indicated below, I don't think Bush is in a strong enough position to have a big confirmation fight. He needs a Roberts, not a Thomas. For the same reason, I think we can drop Owen and Brown from the most-likely list. (Estrada should never have been put on that list.)

For other, more obvious reasons, we can drop Gonzales, at least for now.

Michael McConnell has certainly edged up, but not, I think, to the top, for the reasons I note below. I don't think we should dismiss the idea of Senator Cornyn being nominated, for the reasons I note below, though I have no idea if he wants the job. Ted Olson is, I suppose, another possibility, though surely more remote.

I suspect that President Bush will look more closely at male candidates than he did last time, but that he will still prefer to nominate a woman. There are five oft-mentioned female candidates that strike me as plausible: Clement, Consuelo Callahan, Jones, Mahoney and Sykes. (Sykes I only read about today; gotta keep up with this stuff.) Clement would make some of the true believers nervous; they were nervous when her name was floated before the Roberts announcement. Consuelo Callahan will make them even more nervous. Jones would probably be the biggest fight of the five. Mahoney has a paper trail similar to Roberts; it's mostly work for clients, and hence doesn't give Democrats the kind of "gotcha" on social issues that they are looking for. Don't know much else about her. Sykes, as I say, I just read up on, but she sounds very plausible, and she might be less of a fight than Jones given that Feingold and Kohl (her home-state Senators) both praised her nomination to the Federal courts to the skies. NARAL will come after her with guns blazing, though, rest assured.

I don't know if any of these women would be considered sufficiently deferential to the Executive to pass Bush's "War on Terror" test, and he clearly has such a test.

What I know even less about is: how does the business community view these various potential nominees? I think we should assume that Bush and Card talked themselves into Miers in part because they got a positive feeling about her the business community would receive her (and they were correct about that); they figured that her Evangelical Christian faith and loyalty to the President would be enough to satisfy the religious Right, and they had not been informed that only intellectual super-stars were now qualified to serve on the Court. Well, they've learned different on points #2 and #3, but point #1 still stands: the President will want to nominate someone that the business community will be happy with. McConnell will not win raves in that camp. Cornyn I'm sure would be fine. So would Consuelo Callahan. About Clement, Jones, Mahoney and Sykes, I know from nothing. Anyone else?
posted by Noah at 10:33 PM

 
So she's out of there. What now?

President Bush has, without question, been badly weakened by the whole Miers business. In this weakened state, the President's options are severely limited.

He could pick someone who would thrill the conservative Republican base, like Priscilla Owen. The problem is, the odds are kind of high that Bush would lose a fight for her nomination. Conservatives, in attacking Miers for being an unreliable conservative, have made it impossible to shame Democrats into supporting a qualified nominee whose ideology they oppose, and we already know that the Democrats can impose pretty stiff party discipline themselves when they put their minds to it (and they will, believe me). Republicans, meanwhile, in attacking the President's selection, have made it impossible to shame wayward Republican Senators - Olympia Snowe, Lincoln Chafee, Arlen Specter, Susan Collins, maybe someone else though I think that's the list - into voting for a nominee whose ideology they oppose out of deference and party loyalty. Certainly, Bush will have trouble mustering support to break a filibuster or to ban filibusters of judiciary nominees; no member of the Gang of 14 is going to want to change that rule by one or two votes.

He could go the other way, and nominate someone who would win lots of Democratic support, like Maria Consuelo Callahan. Such a nomination would force GOP Senators to decide if they are really willing to vote against a manifestly qualified nominee simply because she is not conservative enough. If they do that, (a) they destroy what's left of this Presidency, and (b) they destroy what's left of the principled conservative argument with respect to the judiciary: both parties would now agree that nominees should be evaluated first and foremost on ideology, and maybe even simply on outcomes. Such a result would not only be bad politics, it would be terrible for the judiciary itself. Trouble is, if Bush did nominate someone like the dancing judge, and the GOP Senate voted in favor, say goodbye to 2006, because the base is staying home. She seems like a perfectly acceptable candidate for the Court to me, though not a home-run, but I'm not an outcome-oriented partisan on judicial issues. And she manifestly fails pretty much any litmus test you like in terms of desired conservative judicial outcomes; she's not a "solid" vote on anything the social right cares about, at least so far as I can tell. (She doesn't have a big paper trail on this stuff, actually, but I'd be shocked to discover that she's secretly harboring ambitions to overturn Roe the minute she gets on the Court.)

He could go yet a third way, and nominate someone who would be hard for Senators to oppose - for example, a sitting Senator. John Cornyn is one option; Orrin Hatch is another; Mitch McConnell a third; Arlen Specter (admittedly, a very unlikely choice) a fourth. It's hard to know whether Democratic Senators would really be ashamed to vote against a fellow Senator, even if we were talking about a Cornyn whose views they comprehensively disagree with. It's also hard to know whether the President would be willing to nominate someone from the Senate given how annoyed he must be that they effectively killed the nomination of his friend. Senator Cornyn is a possibility, though, because he strongly and vocally supported Miers, and that's probably going to be a shibboleth for the President going forward on all matters judicial: if you opposed Miers, he's not going to listen to you. Of course, we don't know if any of these guys want the job.

He could also simply repeat the Miers nomination, but without the unique problems of that nominee (poor vetting, terrible communication skills, issues of judicial independence). In other words: he could pick another obscure individual with whom he's personally comfortable and who pleases big business but who is a non-entity in terms of a paper trail on hot-button issues. Just not someone who was his personal lawyer. (Alberto Gonzales is ruled out because that would be just *too* close a repetition of the Miers experience; all the same issues of judicial independence and cronyism would be raised all over again, plus the social right already distrusts him.) This would be a variation on the Consuelo Callahan option, in the conservative groups will be frustrated if not outright angry and Senators in that camp will have a tough decision to make, but it's just barely possible that the President could thread the needle and come up with someone who is more palatable than Miers to the base without actually being a clear win for the social right, and therefore plausibly confirmable.

Finally, he could try to find another John Roberts, someone manifestly qualified, with a paper trail that reasonably reassures the right, but who is sufficiently cautious and deferential to the legislature that at least five Democrats find it impossible to vote against. There is not a long list of options like this. Harvey Wilkinson certainly fit the bill, but President Bush apparently didn't like him. Michael McConnell might, although he has been very vocal in his criticism of Roe, but McConnell is probably disqualified for two reasons: criticizing Bush v. Gore and being unreliable on issues of Presidential powers in wartime (both, in my view, reasons to recommend him, but I suspect the President would see things differently).

Like I said, Bush doesn't have any easy choices here. My suspicion is that he's going to make a very conservative calculation about confirmability, and that therefore the least-likely outcome is someone who is a movement conservative pick. Frankly, even if confirmability were not an issue I think the President's pique at the conservative movement would motivate him not to pick someone from that list. But Senator Cornyn is a possible exception, someone whom conservatives would like, whom the President would be willing to reward (because he strongly backed Miers), and who is (probably) confirmable because he's a sitting Senator.
posted by Noah at 10:34 AM

 
So it's Bernanke. Funny, 'cause he doesn't look like much of a gym rat. But he does work right down the hall, so he had that going for him.

Actually, I think this is a good call. Bernanke is a sober, smart centrist. He doesn't think the Fed should focus on asset price levels ("pricking" bubbles) nor should it aggressively stick its nose into fiscal matters properly left to the legislature (though it should obviously let people know when fiscal imbalances are forcing hte Fed to shift its own posture). He thinks the Fed should stick to its knitting: promoting price stability.

What Bernanke is known for in terms of how the Fed should behave differently than it does is in terms of greater transparency. If the Fed is targeting a particular level of inflation (which it arguably already does, though not formally) it should announce what that level is. If the Fed is considering hiking or cutting rates, it should signal that. It should not, in other words, engage in the kind of oracular communication that has been the Greenspan style. I'm inclined to think Bernanke is right that increased transparency is good.

The other thing he's known for is for saying that "price stability" should be understood to mean a stable and very low - but positive - rate of inflation. This is, de facto, how the Fed understands price stability right now, but the idea of actually saying explicitly that a low rate of inflation is *optimal* - as opposed to, say, a zero rate of inflation or a low rate of deflation - has got some people in a lather.

It shouldn't. There are three reasons why people worry about Bernanke's view. First, there's the fear that low inflation can always become accelerating inflation. But low deflation can always become a depression; that's why we have monetary policy and not a completely self-regulated economy. Why is the one risk so much more to be feared than the other? More to the point, we now have 20 years of evidence that a vigilant Fed can keep inflation in check without pegging the currency to some commodity whose supply cannot be controlled by fiat.

Second, there are those who simply disagree about what the "optimal" level of inflation is - slightly positive, zero, or slightly negative (no one thinks high inflation or severe deflation is in any way good). The evidence on this question is mixed. What is clear, though, is that it the Fed has a lot more tools to try to keep inflation between, say, zero and two percent than between zero and negative two percent; put simply: the Fed can always quite easily contract the money supply if inflation heats up to much, but cannot so easily expand it if deflation accelerates and nominal rates are already zero. This is reason enough to be biased in favor of a small positive inflation rate.

Finally, there are those who correctly identify inflation as a kind of tax, redistributing wealth from owners to debtors. This is true, but it's also one of the safety valves of our political system. Every political system needs these kinds of safety valves, and a very low, positive rate of inflation is a pretty cheap and painless safety valve.

The most important reason why I think Bernanke is a good pick: he's got decent political skills (so they say) and the Fed Chairman is a political position. You want an excellent economist, yes, but you also want someone who can build consensus and make the markets feel confident in monetary policy. A stridently ideological or personally prickly individual is not going to be as good at achieving those objectives, even if that individual was somewhat more often right.

Like Chief Justice Roberts, Bernanke is going to disappoint some true believers. I happen to think that, mostly, Bernanke is right and the true believers wrong about the issues on which they disagree (certainly on the question of whether it would be a good idea to return to the gold standard). And anyone who thinks rates should not have been rising in 1999, or should not be rising now, is living on some other planet than the one I'm most familiar with. But regardless, these kinds of critics (who we will be hearing from) should remember that Bernanke is going to the Fed, not the Treasury, and the Treasury is where decisions about taxes are made, along with Congress.

I do think Bernanke should be asked at hearings what kinds of indicators he will use to predict the future price level (he must have some, or he'll be too backward-looking to make monetary policy effectively) and how his approach in this regard would differ from Greenspan's, if at all. But I don't expect to be alarmed by his answers.

This is a good pick. I wish I had some basis for thinking it was part of a pattern.
posted by Noah at 11:34 AM

 
By the way, I really do recommend After Virtue. (I also recommend reading it where I read it - or about half of it: sitting on a bench on the Mendocino, CA, coast, listening to the waves crash against the rocks . . . ah, well.)

I won't summarize the book here because (a) I don't have the time; (b) I don't have the book in front of me; (c) you should read it. But I wanted to ramble a bit about one part of the book's argument that I found rather unconvincing.

McIntyre spends the first half of the book doing a kind of genealogy of ethics, working backwards from our current confused states back through Mill, Kant, Hume and ultimately to the Protestant Reformation, then back to the present with Nietzsche and way back to the past with Socrates, Plato and Aristotle, the last being the ethicist whom McIntyre wishes to revive.

The core of Aristotelian ethics is a conception of the virtues: ethical conduct is not merely conduct that avoids transgression of a list of no-nos but rather conduct that is affirmatively virtuous; and an ethical community is one that cultivates the virtues in its members. But this description begs the question: what is a virtue? Aristotle understood the virtues in terms of human teleology: if human beings have a purpose, then the virtues are those attributes of character that, manifested in action, enable us to achieve that purpose. Ditto for human communities, which are themselves purposive. It's not hard to see how Aristotle's scheme could be made to work within the context of his own teleology, but we no longer believe in that teleology. Maimonides, Aquinas and other medieval Aristotelians reworked Aritstotle in the context of revealed religion, which was a plausible adaptation albeit not without strain (there is a reason, after all, that the Enlightenment was so scathing about scholasticism). But how can Aristotle be reworked for our age?

If McIntyre really wanted to create an Aristotelianism for modernity, I thought he could go one of two ways: either in the direction of neo-Darwinism (we may not have a teleology, but we have evolved to work a certain way, so perhaps a pseudo-teleology could be teased out of evolutionary-psychological accounts of human nature) or in the direction of neo-Jungeanism (we may not have a teleology, but we have histories as human communities, and these histories have a deep narrative structure replicated at the individual level and which inform the content of our community's ethics). I could see the attraction of either turn, and anticipated some of the problems with each. Alternatively, I thought, McIntyre could articulate an "Aristotelian liberalism" that construes the liberal order in Aristotelian terms (Hannah Arendt did something like this in On Revolution in her very German reading of de Tocqueville).

Instead, McIntyre tries to come up with an abstract definition of a "virtue" that I found quite unsatisfying.

McIntyre defines a virtue with respect to a practice - another term of art that he doesn't define precisely but that seems to encompass any activity that is also a discipline. Virtues are character traits that are cultivated by engaging in a practice for its own sake (as opposed to for instrumental reasons).

I understand why McIntyre wanted to come up with some kind of abstract definition that was not specific to a particular social context, because otherwise his theory might not work cross-culturally and through time, and he was acutely aware of how Aristotle's own work was undermined by its reliance on metaphysical assertions that were plausible in his day but not in ours. And there's a superficial attraction to his definition in that virtues are (per Aristotle) supposed to be related to living well, that is to say, to living rightly, that is to say, in harmony with and fulfillment of our natures, and yet we also use the word more narrowly to refer to virtues relevant to particular practices. If those practices can plausibly be ends in themselves, then they are part of living well and rightly, and those specific virtues become related to Virtue with a capital "V" - and we're finally getting somewhere.

But then I started to think about what "practices" must include if the term is not to be trivial, and whether the virtues of some practices really are clearly related to Virtue. That is to say: I thought about Machiavelli.

After all, if statecraft isn't a "practice" in McIntyre's parlance, then the term is pretty limited in utility. And McIntyre doesn't really grapple with Machiavelli's devastating case that statecraft requires a set of virtues that are not only distinct from Virtue as generally understood but, in many ways, actually opposed.

And if that's true, what happens to Aristotle's ethical community?

I've gone on long enough on this; I wanted this to be a short note. So, I throw it open to you: does anyone out there know much about McIntyre and how his arguments in After Virtue fared since first aired a quarter century ago?
posted by Noah at 1:49 PM

 
I was planning to weigh in on Steve Sailer's "citizenism" column, but I didn't get around to it when it came out. Now that Nicholas Antongiavanni of The Claremont Review's blog has chimed in, though, I thought I'd do so as well.

Just to recap briefly: Sailer is having an argument with avowed white nationalist Jared Taylor about why it would be self-defeating for immigration restrictionists to adopt Taylor's preferred ideology. Moreover, although he doesn't really say this explicitly, I think Sailer thinks Taylor's preferred ideology is, well, wrong. Or at least unworthy.

I have no interest in that particular debate. Everyone has their boundaries, debates that they deem not worth getting into; debates about white nationalism are debates that I deem not worth getting into.

But I am interested in Sailer's professed ideology of "citizenism" by which he means: that the government should act to protect and advance the interests of its current citizens. And I think Antongiavanni hits the nail on the head when he describes the problems with this as a governing ideology.

First of all, let me stress that I'm 90% in agreement with Sailer, and for that matter so is Antongiavanni, in that all three of us are basically arguing within the liberal tradition, and that's the tradition from which this notion of "citizenism" springs. None of us believe in the Divine Right of Kings or the Great Chain of Being nor are any of us Romantic Nationalists.

But that we mostly agree should not blind any of us to the problems with this liberal tradition, problems that most assuredly afflict Sailer's professed "citizenism." Here are a few:

What's an interest?
How do you aggregate them?
How do you weigh conflicting interests?
How do you identify the boundaries of the community of interest?

These are the usual problems with the various forms of utilitarianism. Sailer's not articulating a theory of ethics, but his political framework is essentially utilitiarian. I've always thought utilitarianism was ultimately bankrupt, and After Virtue - which I recently read and heartily recommend for its critique of the liberal tradition (its argument for a renewed Aristotelianism, which I was inclined favorably towards, was vastly less convincing) - fortified that conviction. Just so I'm not accused of obscurity, I'll outline some examples of the above problems.

Is an interest purely monetary? A "yes" answer would seem to be extraordinarily narrow, in that lots of people clearly prefer to trade wealth for other goods. A "no" answer raises the problem of aggregation. No one has come up with a good way of aggregating "utiles" the mythical unit of "utility" which has led some people in the direction of "preference utilitiarianism" - except that some people's preferences are much stronger than others, and how to you aggregate them? If you weight by intensity, you will be systematically rewarding whiny and needy people. Is that what you want? Regardless of what you want, the aggregation problem is real. Then there's the conflict question, which is very fundamental. Which better advances the "interests" of the citizenry: increasing economic growth (which makes the pie bigger for everyone) or expanding benefits for the majority of citizens (which slows growth, but spreads the benefits of said growth more widely)? What about trade-offs between regions, or economic sectors, or generations? Is it more important to enable people to rise socially or to protect people from falling socially? How about the trade-offs between liberty and equality? Or between liberty and community? Again, there's no good theory for how to resolve these kinds of conflict. And many of them raise questions of the definition of the community. Sailer is a citizenist. Why isn't he a Californianist? Or a humanist? Why is "the citizenry of the United States" the relevant body within which to do the impossible aggregation of citizens' utiles?

The practical answer to all of these difficulties is: the American political and economic system *is* our answer to how to do the aggregation. We have a Constitution that makes the government accountable to the people, that divides and separates powers between different layers and branches of government respectively, and that preserves a great deal of individual liberty and a largely free economy. These features - democratic accountability, non-unified government power, retained individual liberty - are, collectively, the mechanism for aggregating utiles and resolving conflicts between values.

That's a nice answer . . . except: how can you tell if the system is working well?

This whole debate began with a discussion of immigration. Immigration's economic effects divide citizens; even if immigration is a net economic positive for the nation, it's a negative for those groups who face the most intense competition, which in our system is those at the bottom of the income scale. Assuming, for the sake of argument, that it *is* a net economic positive: does that mean it serves, or does not serve, the "interests" of the citizenry? Many Americans have a romantic attachment to our country as a "nation of immigrants"; others like thinking of the country as "compassionate" and "welcoming" to newcomers; others have real concerns about the cultural and other consequences of mass immigration. Are any of these things "interests" of the citizenry? If so, given the problem of how to aggregate utiles, is it meaningful in response to note that our political system has, for some time, completely ignored immigration as an issue, in spite of the fact that large majorities poll in favor of greater restrictions, and particularly in favor of ending illegal immigration?

All this is by round-about way of saying why I think Antongiavanni is on the right track. America is *about* something; it is an ethical community in the Aristotelian sense. The strongest way to debate immigration is within the context of our community's ethics which, in an American context, means with reference to our nation's founding principles and documents and our nation's history. Citizenship is not just membership in a club; it's allegiance to a flag and the Republic for which it stands. And hence, debating the conditions of citizenship and how they should be extended is not just a debate about the interests of the club members in a bigger or smaller membership, or what class of new members they want to associate with, but about the meaning of the entity to which allegiance is pledged and how that meaning will be shaped either by accepting new allegiants or rejecting them.

Sailer makes a sweeping statement in favor of "citizenism" being more altruistic, and therefore more moral, but also asserts that our own civilization is inherently "citizenist" rather than ethnically or racially-based, and therefore to preserve our civilization by overt resort to racial or ethnic consciousness is fundamentally contradictory. But there most certainly is a strong current of racialism and ethnocentrism in Western civilization. The ancient Greeks and modern Germans are two outstanding examples, but there are numerous others. Of course, on the other side of the ledger are the ancient Romans and the modern French and Americans, who have defined their civilizations in very different terms (much more like Sailer's "citizenism" - though, of course, American race slavery is a massive exception to a concept of citizenship that was neutral at least between European nationalities, and to varying extent non-Europeans as well); and of course there is the religiously-defined civilization of the Middle Ages.

To put it bluntly: it cannot be that white people "inherently" reject tribal or racial consciousness; no one familiar with the history of European nationalism, to say nothing of the color line and race slavery, can seriously maintain such a thing. But it is probably true that America must reject such a consciousness lest it come apart at the seams. Which makes Antongiavanni's point: it is our fidelity to America, our membership in a community with a purpose and a history, that is the only workable ground for debating who and how many should become our fellow citizens.
posted by Noah at 12:12 PM

 
Men and women have, on average, similar IQs, which is as good a proxy as we have so far for scholastic aptitude. But the percentage of men in college continues to drop, to only 43% today, and there's no reason to think it will stop dropping. Why?

A variety of cultural reasons have been offered, and I think they all have some merit. Secondary education, some have argued, has been feminized, made less appealing to boys. Others have argued that, regardless of whether pedagogy has changed, adolescent boys are particularly sensitive about their masculinity, and female academic achievement thus in and of itself causes some boys to incline away from academic achievement.

But I suspect that inherent differences have at least some impact on the disparity, in two ways, one which is not easily addressed and the other which I think is readily addressable.

The less-easily addressed inherent difference: while men and women appear to have similar average IQs, the male IQ distribution has a wider standard deviation. Put simply: there are more male than female geniuses, but also more male than female idiots.

If colleges accepted only a small elite, you would expect this elite to be disproportionately male because there are more men way out on the right end of the curve than there are women. But today, when something like 50% of Americans have at least some college education, you'd expect the ratio to skew modestly the other way, as there are more women than men bulking up the middle of the curve.

I don't think there's much to do about this effect. But I also don't think it's dominant. What I think is probably more significant is the difference in average age of maturity - intellectual and emotional - between men and women. The physical differences between boys and girls in early adolescence are obvious. But there are important emotional and intellectual differences as well. I think it's highly likely that girls get a leg up in high school in part because they are already more mature, intellectually and emotionally, than boys are at the same age, and this advantage translates into greater representation in colleges.

If this is part of what's going on, the obvious solution is for boys to go to college - or maybe high school - a couple of years later than girls. The gap could be filled in any number of ways depending on when the extra years are inserted. I suspect that a modest age gap between college men and women would have a positive impact on the social, educational and sexual atmosphere on campus. And the guys would be able to catch up with the gals in terms of lifetime earning power when their wives take a few years off to have kids.

(I suppose I've cast myself into the outer darkness by posting on this topic. So let me say what Steve Sailer always says by way of caveat: average differences tell you next to nothing about the differences between specific individuals. In the average married couple the man is a couple of years older than the woman. I'm married to a woman 12 years my senior. There you go.)
posted by Noah at 10:34 AM

 
I really want to drop the subject of Harriet Miers, so I'm going to do so after this post. David Limbaugh spends most of a piece arguing that conservatives should not urge rejection by the Senate because this would (according to traditional conservative interpretation of the clause) exceed the Constitutions mandate to the President to seek the Senate's "advice and consent." But he then asks, rhetorically, whether this interpretation doesn't put conservatives at a structural disadvantage given that liberals don't have a problem rejecting nominees for ideological reasons, while conservatives do. Implicitly, he's asking whether perhaps the Senate *should* reject Miers, precisely *because* this would mean abandoning traditional Senatorial deference to the President on the judiciary.

I don't have a strong opinion on the original intent of the ratifiers of the Constitution in this matter. In any event, I am far more comfortable with the idea of elected legislatures "evolving" their interpretation of such phrases over time than I am with the judiciary doing so, precisely because the legislature is directly accountable to "the people" who are the source of the Constitution in the first place. (Thus, for example, I think the Supreme Court was wrong to rebuke Congress for enacting a broader interpretation of the Free Exercise Clause of the First Amendment.) So whether or not the original understanding of "advice and consent" was deferential or provided for robust sharing of authority in staffing the judiciary, Congress can plausibly lean in either direction based on the political needs of the moment.

I disagree with Limbaugh about the political situation, though. The GOP made real gains in the legislature because of anger at Democratic filibustering of judicial nominees. If the GOP starts doing the same thing, then the debate becomes not about abuse of the process and obstruction but about dueling judicial philosophies. And while some conservatives think the country is on their side in that debate, in reality most of the country doesn't care, and most of those who do care focus on results rather than the details of a judge's philosophy. Thus, a majority of Americans favor some restrictions on abortion that the Court has prohibited, and a majority of Americans favor retaining Roe v. Wade, which is the basis on which the Court has prohibited those restrictions that Americans favor. On balance, I think abandoning the deferential position on nominations to the court hurts conservatives and the GOP politically more than retaining that position.

But, more to the point, I think it's the right position for the independence of the judiciary, which is a value in and of itself. The solution to judicial over-reaching is to change the judiciary and/or rebuke it by reining in its powers. The solution is not to make the judiciary more directly accountable to the legislature, because that undermines the judiciary's independence. Which independence is kind of critical to the rule of law in the first place.

I don't want to overstate my point. The sky will not fall in if the Senate rejects Miers because she's not the kind of judge the Senate would prefer. I just think it will be a bad precedent for conservatives to set. Hopefully the President will withdraw the nomination before the Senate is forced to decide to reject her for being unqualified (which would be embarrassing to everyone) or because her selection and promotion raises ethical problems (which could do real and lasting damage to the White House).
posted by Noah at 9:06 AM

 
From my email box, I get the impression that my point in my previous post has been somewhat misunderstood. Let me clarify a bit.

First, I'm not defending the nomination, as some people seem to think I am doing. As I stated right up front, conservatives are right to be deeply disappointed in Miers. She's a mediocre nominee and obviously not the best choice for the post regardless of what considerations the President had apart from being a conservative jurist. There are better choices who are women, better choices who are not sitting judges, better choices in pretty much any category you choose to name.

Second, some people seem to think that I accused conservative opponents of Miers of being too "results-oriented" rather than (properly) concerned with judicial philosophy. I made quite clear, it is *defenders* of Miers who are traducing two important conservative principles, viz: that nominees are not supposed to represent specific constituencies and that reasoning matters at least as much, probably more, than the outcome of a specific case; this is part of what distinguishes law from politics and the Court from a legislature. *Defenders* of Miers have regularly violated these principles as part of their defense, not *opponents.*

But conservative opponents of Miers have traduced two other very important principles, and I don't think we should lose sight of that fact.

Some, though not all, conservative opponents of Miers have said they oppose her because they think she will be another Souter or O'Connor. What they mean by this is: that she will not be a consistently conservative jurist in terms of either philosophy or result; possibly, she won't be a conservative at all.

I think it should be clear that setting such a standard is moving the goal posts from where conservatives have historically held they should be set. Conservatives have held for a long time that judicial philosophy should be vitally important in Presidential selection of nominees to the Court. They have not similarly held that anyone dissimilar to Scalia or Thomas in philosophy (these two, by the way, differ signifiantly from one another in philosophy) should be rejected by the Senate. To argue otherwise is to argue that the Senate should, properly, only confirm nominees who pass a rather stringent ideological bar. That implies, logically, that Senators Schumer and Leahy have been right all along, and that it's entirely proper to reject nominees for ideological reasons. It implies, further, that the Democratic filibusters were entirely legitimate; the nominees who were filibustered had (from the Democrats' perspective) the wrong judicial ideology, and surely it is more legitimate to filibuster life-tenured judges than mere legislation. It also implies that conservatives who voted for a judge like Stephen Breyer - who has a manifestly judicious temperament, high intellect, wide expertise, etc. - did wrong because, after all, while Breyer is a thoughtful and restrained Justice, he is not an originalist in the Scalia mode. It even implies that conservatives might have been wrong to vote for a nominee like John Roberts, who made it pretty clear in the hearings that he is not a Scalia clone.

It is obviously bad if Miers is rejected because conservatives worry she's not a "safe" vote to overturn Roe. That would imply that conservatives are entirely unprincipled and results-oriented. But it's also bad (though not quite as bad) if Miers is rejected because she's not "clearly" an originalist. There is simply no way, politically, that conservatives are going to sustain the kind of ideological purity that such a rejection would imply across all possible future nominees. So what kind of message would they be sending by rejecting Miers?

This brings me to the second principle traduced by conservative opponents of Miers. Conservatives have argued that the President deserves considerable deference in his nominations to the judiciary. The Senate's job is to advise and to consent, not to attempt to co-select the nominees.

This is an important principle for a number of reasons. For one, it is an attempt - perhaps hopeless - to limit the influence of petty politics on judicial nominations. For another, it is the only way, in our polarized age, that any judges are going to get confirmed; both Democratic and Republican Presidents send up a goodly number of nominees to the judiciary that Senators on the other side of the aisle would prefer to see replaced by someone more conservative or more liberal respectively.

Senator John McCain came out very quickly in favor of Miers. Some have suggested that this is because she is a future Souter; given Senator McCain's long anti-abortion record, I find that implausible. Others have suggested that this is because he is currying favor with the Bush Administration; I find that implausible as well, not least because he came out in favor before the Bush Administration was aware that the nomination was a big political mistake. I think Senator McCain came out quickly for Miers for a very simple reason: he intends to be the next President, and he's showing President Bush the deference in this matter that he properly expects to receive when he is making nominations to the Court.

One could argue that opponents of Miers are not, in fact, arguing that the Senate should reject her, and hence are not traducing this principle of deference. But I find that position disingenuous. One goes public with opposition in order to oppose publicly. Why on earth would one publish an op-ed against Miers, circulate a petition against Miers, go on television to denounce Miers, if one did not also want one's Senator to vote against Miers? Surely, if one wanted to uphold the principle of deference to Presidential nominees to the judiciary, but also voice one's concerns, one would voice them more privately - in terms of money and time that will not be donated in the future, get-out-the-vote efforts that will fail, etc. Publicly one might express deep disappointment, but the tone of much of the opposition is rather more forceful than that. Anyhow, plently of opponents have said explicitly Miers should be rejected by the Senate if her nomination is not withdrawn.

Properly, conservatives have argued that the President should have chosen someone else. Properly, they are disappointed and angry. But I can't see a principled argument for a Senator voting against Miers that doesn't either (a) significantly change the ground rules for what constitutes qualification to the Court in conservative eyes (i.e., the imposition of a far more stringent ideological test than has been historically applied or could plausibly be applied in the future); or (b) significantly change the conservative position on the role of the Senate vis-a-vis the President in the process of selection.

Unless, of course, Ms. Miers is actually unqualified according to more traditional criteria.

Now, it is possible that Ms. Miers will, in the hearings or in private discussion with Senators, manifest so injudicious a temperament, or so inadequate an intellect, that she could be rejected in conscience on these grounds alone. I think that's very unlikely; I also think that even if she does manifest such a profound deficiency, Senators would be loathe to insult her directly by saying so. It is also possible that Ms. Miers will take herself out of contention by articulating a judicial philosophy that is abhorrent or bizarre, or by straightforwardly prejudging future cases in her hearings. This, I think, is an even more remote possibility.

This leaves, as I said, only one principled grounds for rejection of Miers: that she was selected and promoted in ways that are questionably ethical. That she is a former personal counsel to the President, as well as a former White House counsel, raises real questions about conflict of interest and judicial independence. That the White House may have given to Senators or to other luminaries actual assurance of Ms. Miers' vote in future cases raises the same questions in a different way. That the White House may be giving different assurance to different Senators as different times, or providing assurance to outside supporters that is not revealed to the Senate, implies a kind of contempt for the Senate and its proper role in the process.

For all of these objections, should they not be allayed in short order, Miers could properly be rejected by the Senate. But it should be equally clear that such a rejection would be correctly interpreted by the White House and the country as a direct slap in the face and a profound expression of lack of confidence in the President. There could be no other way to interpret it. Conservatives who think they are somehow going to get a better replacement nominee if Miers is rejected are kidding themselves; regardless of how vindictive or conciliatory the White House is (and I expect them to be vindictive) after a hypothetical Miers rejection, the President will be profoundly weakened, and in no position to nominate a replacement who would not win bi-partisan support.

I think principled Senators of both parties should vote against Miers. I do not think her selection was proper; I do not think the methods by which she has been promoted are proper; and I think the President deserves a slap in the face. But I think principled conservatives should recognize that some of their other arguments, if they are principled, represent a considerable departure from their previously stated principles; and I suspect that these arguments do not represent considered new principles but rather intemperate expressions of their feelings of betrayal. If they do not recognize this fact, they may well wake up the day after Miers is rejected feeling penitent or even despairing at their new political situation, rather than satisfied that, against their interests, they did the right thing in opposing her.
posted by Noah at 10:21 PM

 
I keep meaning to write something more substantial about the whole Miers mess, but I haven't thought of anything substantially worth adding to my comment from the 6th below.

I won't let that stop me, of course . . .

I don't pretend to be nearly as well-informed as guys like Hugh Hewitt and David Frum about the various alternative candidates for the Court. I also don't pretend to know anything about Ms. Miers; she's worked hard her whole career to make sure nobody does. But I think some things should be clear to everyone about this nomination.

No one can pretend she's the "best possible" choice, whatever that means.

No one can plausibly assert that she is "not qualified" for the Court.

No one can truly know how she would vote on this or that case that might come before the Court.

Because of all of the above, the nomination put conservatives to a difficult test, a test which they have already failed.

The test was: being deeply (and reasonably) disappointed, even infuriated by the nomination, could they come up with arguments against that nomination that are consistent - and consistently consistent (if you know what I mean) with conservative principles. This they have largely failed to do.

Here are two conservative principles that virtually every conservative objector to Miers has traduced at least one of:

- Presidents get to pick their nominees. The Senate's job is to evaluate their appropriateness for the Court, not to try to insinuate themselves as co-nominators.

- Nominees are not supposed to prejudge cases; they should be evaluated on character, temperament, experience, aptitude and, in the broadest sense, philosophy.

Opponents are outraged that the President didn't pick someone they think would have better advanced conservative goals or better articulated conservative juriprudential principles. But voicing the former explicitly violates the second principle above - it says, pretty openly, that conservatives are as results-oriented as liberals - and even the latter clearly violates the first principle articulated above, in that, unless Miers is actually *unqualified* for the Court it amounts to rejecting a Presidential nominee for the Court because we (role-playing Senators) would have picked somebody better.

Supporters of Miers, meanwhile, have frequently traduced two other important conservative principle with respect to Supreme Court nominations:

- Nominees are not supposed to be chosen on the basis of representing specific constituencies, whether ethnic, religious or what-have-you.

- The process of the Court's decisionmaking is at least as important as the specific decisions arrived at in particular cases, as faulty reasoning in the service of a less-than-horrible result can metastasize, infecting the rest of the law with unpredictable results.

It goes without saying that Miers' defenders have almost to a man explicitly argued that she should be confirmed because she is a woman and/or because she is an evangelical Christian. Many have also argued that conservatives should not worry about her because she's a solid vote against Roe regardless of whether we can say how she'll get there.

This is all water under the bridge, but it seems to me that at this point conservative pretenses to represent the party of principle on the Court are in tatters. Conservatives will not be able to argue with a straight face that nominees are not to be questioned about their opinions on specific cases, nor will they be able to argue that voting down a nominee for ideological reasons is inappropriate. Frum and Hewitt may respectively think that the other guy is entirely at fault, but I don't think the record will sustain either view; take a look at those principles again and tell me whether either man has managed to stay on the side of the angels in this debate. I think there's plenty of blame to go around here (ignoring, for the moment, the question of whether the President should have picked Miers in the first place, which clearly he should not have for a great host of reasons of which this bruhaha is only one).

There remains, of course, the question of whether Ms. Miers should be confirmed. The answer is no, but the reasons must be articulated very clearly lest a poor precedent be set.

Poor Ms. Miers should not be rejected because she is unqualified, because she is surely as qualified as many prior Justices and conservatives should hardly set the precedent that only academics or sitting judges are qualified to sit on the Court.

She should not be rejected because she is not clearly a strict constructionist or because it's not clear she would vote against Roe. It is not at all clear that Roberts is either a strict constructionist in the Scalia mode or that he is a vote to overturn Roe flat out (though he will surely vote to hollow it out bit by bit). More to the point, a Justice like Stephen Breyer is preeminently qualified for the Court even though he is not a strict constructionist and has voted to uphold and even extend Roe. Unless she manifests a truly bizarre temperament in the hearings - almost inconceivable - Miers will not present as someone who is unfit to serve on the Supreme Court. Conservatives may prefer a Scalia; they cannot say they view anyone else as unfit.

Needless to say, she should not be rejected because she is an evangelical Christian or is likely to overturn Roe, as some liberals have argued.

She should be rejected exclusively because of the process of her selection and promotion as the nominee, a process which threatens to undermine the independence of the judiciary.

Harriet Miers was President George Bush's personal attorney as well as the central individual involved in the selection process for the Court. That in itself should raise questions about conflict of interest and the possible need for recusal on any number of matters (objections which were all raised in advance about a possible Gonzales nomination). More ominously, there is evidence that the White House has provided information to outside groups that they would not provide to Senators who have a Constitutional duty to advise and consent on nominations to the Court, and that this information may have included improper assurances of how the nominee would vote in specific cases.

Rejecting Ms. Miers for these reasons would be a direct rebuke to President Bush and would be an unqualified victory for the Democratic Party. I'm afraid that at this point providing them with such a victory is the principled thing for conservatives to do. But conservative Senators should understand that if they vote against Miers that is what they are doing, and that the White House will certainly not be inclined to see the error of its ways and "tack Right" with any replacement nominee.

It would behoove those who wish to see Miers rejected to stop referring to disappointment, betrayal or other emotions they may feel, which are entirely beside the point and, frankly, demeaning to themselves and the insulting to the President. There's a serious issue here besides conservative pique. Conservatives should air it, but they shouldn't kid themselves that doing what is right will do them any good, politically.
posted by Noah at 2:43 PM

 
Closing a big deal at work + wedding in Mendocino, California + bachelor party in Dublin, Ireland + Jewish holidays (on top of everything else, I'm leading shacharit services for Yom Kippur at our synagogue, so I've been practicing in my copious spare time) = not a whole lot of blogging.

While those who still remotely care about this blog are still paying attention, here's the menu for the second night of Rosh Hashanah (first night was at my mother's):

Pureed butternut squash and parsnip soup with matzoh balls
Osso buco with horseradish and pine nut gremolata
Cumin and paprika crusted chicken over orange-flavor shredded carrots and onions
Quinoa "pilaf" with shiitake mushrooms, peppers and roast eggplant
Olive oil mashed potatoes and leeks
Swiss chard sauteed with chickpeas and raisins
Green beans with persimmons
Honey cake
Poppy seed cake

The big successes were the soup, the veal and, surprisingly, the quinoa, which came out vastly better than it did when I made a dish for Passover (neither time did I use a recipe, so I obviously learned something from the first attempt). The only real flop was the chard, though the persimmons were not good enough to justify the search for them.
posted by Noah at 9:30 PM

 
Gideon's Blog, September 29:

I'm kind of warming towards the view that Bush should appoint someone with political as well as legal experience, simply because that kind of real-world experience could be a valuable corrective to a Court that (to pick an example of a Scalia-authored mess) voted to through out sentencing guidelines nationwide on a relatively novel (and not obviously cleaner) interpretation of the law.

Isn't there some Chinese or Jewish curse to the effect of: may you get what you ask for?
posted by Noah at 12:03 PM