My new “Think Again” column is called “The Washington Post: Trumped.” I think the title explains itself, here. But keep in mind that it’s supposed to be a continuation of this Nation column.
My Nation column is called “Bin Gotten.” I think you can guess its subject, here.
And here is a just amazingly great version of “Whipping Post” from the Fillmore, in 1970.
Now here’s Reed:
Conflicts of Inference
Two weeks ago, the rapidly withering legal battle to save California’s anti-same sex marriage Proposition 8 took an interesting turn. That’s when forces supporting the law moved to completely dismiss the rather devastating judgment Judge Vaughn Walker handed down last August. As far as legal arguments go, their appeal takes a rather novel approach, one that is considered a long shot to succeed in the courts. But if you look closer, you’ll see that the tendrils of this legal argument grow from a more robust and widespread conservative rootstock that has already invaded our political discourse and colored our media coverage as well.
The defining principle of this Weltanschauung is one that prefers to overlook the individual words or actions of ideological opponents, and instead relies upon broad caricatures of what they (may or may not) believe or who they are as evidence of their flawed nature. There’s no need to listen to or honestly engage with opposing arguments, in other words, because those arguments are already intellectually compromised by who makes them. This anti-dialectic doesn’t bother with mere disagreement; its aim is squarely fixed on delegitimization.
The gist of this worldview is perfectly distilled in the pro-Prop 8 groups’ motion to vacate, which foregoes any attempt to address the intellectual paucity of their side’s testimony or the “extremely powerful” and “carefully crafted” legal reasoning behind the decision. Instead, it attempts an end run around the decision by arguing that the judge himself was the problem. Walker, a gay man who is in a long-term, same-sex relationship, had an inherent conflict of interest when presiding over a case about legalizing same-sex marriage, the pro-Prop 8 forces contend. And because he neither recused himself nor swore off any interest in marrying his partner, his ruling should be summarily dismissed, they believe.
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“[Judge Walker’s] failure to do either was a clear violation of Section 455(a), whose ‘goal … is to avoid even the appearance of partiality.’…
“For only such an unequivocal disavowal would negate the strong inference, arising from his acknowledged long-term, committed relationship and his findings in this case concerning the benefits of marriage for same-sex couples, that he has a personal interest in exercising the federal constitutional right he recognized to marry a same-sex partner should the injunction he issued be affirmed. That inference is strengthened by the fact that Chief Judge Walker did not disclose the existence of the relationship before entering judgment and has never disclosed whether he has any interest in marrying his partner.”
Of course, the "inferences" and reductive logic on display in this legal brief here are conveniently disingenuous—the plaintiffs would have never dared to move for dismissal of a pro-Prop 8 ruling from an evangelical Christian judge in a heterosexual marriage based strictly on his or her personal bio—in addition to being mildly bemusing. (In something of an unintentionally ironic twist, the defendant’s lawyers repeatedly refer to Walker’s “long-term, committed relationship” with his same-sex partner as evidence of his compromised nature, which is an odd point to make if your larger argument is all about how same-sex relationships somehow represent a threat to the sanctity of marriage.) But if you’re someone who believes it’s possible to reliably infer from broad demographic markers—such as place of birth, type of job, race, gender, sexual orientation, political ideology, etc.—an individual’s motives and behavior, then it’s natural to think that Judge Walker’s legal conclusions in a case about same-sex marriage are wholly compromised simply because of who he is.
Walker obviously disagreed with such a narrow, unrealistic outlook, and has said as much since retiring recently. And he’s not alone, either, as this recent Washington Post story on the ongoing Prop 8 legal battle demonstrates.
“‘There’s no judge, in my opinion, who does not [have] his own or her own biases or prejudices. We don’t judge in vacuums. We bring to the bench our experiences. We bring to the bench our sensitivity to certain things. We are allowed to have our leanings,’ [Circuit Judge Larnzell] Martin Jr. said. ‘But we also bring to the bench a common training in the law.’”
This refreshingly honest admission is also what informed Justice Sonia Sotomayor’s ‘wise Latina’ comments, which so infuriated many on the right. The idea that the law is not clinically dispensed by legal automatons (or, perhaps, more accurately, white men) is anathema to them and stands in direct contrast with notable conservative jurist (and white man) Chief Justice John Roberts, who famously said that “judges are like umpires” in the opening statement of his confirmation hearings before the Senate Judiciary Committee in 2005.
“I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.”
Of course, the Roberts Court’s track record since then, and Roberts’ decisions specifically, speak to a very different, far less open-minded reality, as Jeffery Toobin had already noted in The New Yorker back in 2009.
“In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”
Coincidentally, the American press has also inculcated into its ethos this same idea about playing the role of impartial and objective “umpire.” Indeed, replace the references to “case” and “rule of law” with “story” and “facts” in Roberts’ Senate testimony and it quickly reads like the ethical guidelines of most major media outlets in this country.
But, as I’ve argued in the past, the media’s institutional fetish for obsessing over any possible appearance of bias—through enforcing individual political piety amongst its practitioners—is not only increasingly impossible, it’s counter-productive, as it makes the press more susceptible to the same myopia and institutional bias that now colors Roberts and the Supreme Court. For, far too often the skittish and cliqueish Washington press corps suffers from the same endemic symptoms as Roberts—an abiding deference to those in power. Trying to disguise or pretend away the personal foibles and political leanings of journalists only furthers these symptoms and feeds the mistaken idea that the profession always operates under an inherent conflict of interest.
From there, it’s but a short ride to where the press, as a whole, is increasingly distrusted and roundly dismissed, joining the ranks of a host of other institutions and individuals currently under siege by this delegitimizing worldview. In short, what we’re experiencing is nothing less than an attempt to turn democracy on its head, and to frame the vested interests of everyone from the elderly to the poor, from same-sex couples to public-union employees, from US-born children of undocumented immigrants to US-born Presidents of the United States currently occupying the White House as compromised, corrupted, and illegitimate.
The mail:
Peter Connolly
Washington, D.C.
Eric
I always enjoy your column and blog. But you are a little off on Annie Hall. Here is Alvy’s line (drawn from a website but it tallies with my memory of the film)
"ALVY (character played by Allen): I … interestingly had, uh, dated … a woman in the Eisenhower administration … briefly … and, uh, it was ironic to me ’cause, uh . . . ’cause I was trying to, u-u-uh, do to her what Eisenhower has been doing to the country for the last eight years."
Not quite the same as what Amis quoted Hitchens as saying, which had to do with inability, though neither (IMHO) are all that great as lines and not worth memorializing in print.
Best regards,
Peter Connolly
Richard Collins
Fitchburg, WI
As a former Army officer, I could not agree more with your point that expanded ROTC could lead to moderation in the officer corps. When I was on active duty, and then in the reserves (1967-84) a number of my peer officers were liberals. As the ROTC program shrunk, the officer corps did indeed become much more conservative.
However, one point should be added. Much of the credit for the numbers of moderates and liberals in the officer corps of 30 and 40 years ago should go to the Officer Candidate School (OCS) program . . . a program which was filled by draftees and those who enlisted in order to avoid the draft. I believe that, even though ROTC will have some moderating effect on the officer corps, the corps will not be as moderate or liberal as it was when many of us officers were commissioned through OCS.
I’m one liberal who supports the reinstatement of the draft (actually, creation of a national service program) for a number of reasons. That would lead to a much more liberal and thoughtful corps of officers than we currently have.
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