Replacing Justice Scalia

With the untimely death of Supreme Court Justice Antonin Scalia, we can expect a major discussion (near war might be a more appropriate description) about his replacement. The statists are salivating over the possibility of another justice such as Sotomayor or Kagan, justices who would rubber stamp big, intrusive government. Freedom lovers, on the other hand have reason to fear such a new justice. There is little doubt that President Obama will try to put another of their ilk on the court; the only hope for liberty is the Senate.

Supreme Court justices have lifetime tenure, barring retirement or impeachment – and we have never impeached one of them. Each is effectively one fifth of a dictatorship since five justices can make a rule from which there is no appeal.

We must get the right people on that court.

Sadly, in recent years the biggest absence in the Senate has been Republican backbone. Republicans won big in the 2014 election, primarily on the basis of voter opposition to Obama's overreach. Yet they have failed to use their majority to block that overreach. Indeed, earlier they could have blocked Sotomayor and Kagan. They had the votes, along with reason to believe those two would be exactly the kind of justices they have turned out to be. Yet the Republicans acquiesced like a drunk giving in to the offer of another drink. Checks and balances were AWOL.

Our senators take an oath to defend the Constitution. They have not only a right, but a sworn duty to reject any prospective judge who is likely to weaken that Constitution. That duty is especially important when they consider Supreme Court appointments. They must insist on the following requirements before they approve any judge:

Absolute integrity
Commitment to Constitution and Law
Subordination of Personal Belief to Law and Constitution
Intellectual ability
Knowledge of law and Constitution
The inner strength to stand up for what is right.
(Detail and reasoning behind those requirements is found on pp132-134 of my book, Freedom or Serfdom?).
There must be no compromise on those requirements. Any prospective justice who fails in even one of them is not qualified to occupy the bench.

Rush to Judgment

“Limited time offer!”

“You must act now!”

“Only 25 available at this price, get yours while they last!”

Unless you live cut off from modern radio, TV, and newspapers you have been bombarded by similar statements. Advertisers and sales people know that you are more likely to buy if you don’t take time to think before you act. They are paid to separate you from your money and they get good at it.

This pressure for a rush to judgment interferes with good decision-making. Customers grab the “bargain” only to decide later that they really don’t need it, or that it was the wrong style for them, or even to find that the store down the street is offering the same thing at an even lower price. They are out the money and may be stuck with an item they really don’t want or need. If the “bargain” involves a long-term contract from buying on credit, those customers will pay for months or years for a hasty decision.

Any time we are pressured to decide in a hurry, there is probably a reason. Most likely the salesperson knows that if we really think about it we will decide not to buy so he tries to keep us from thinking.

Politicians too can pressure us to “buy” their “bargains” without adequate consideration. The bills claimed to bail out the economy were rushed through congress in less time than the Obama family spent deciding what breed of dog to get as a White House pet. As I write this, both the nomination of Sonia Sotomayor to the Supreme Court and the Obama health plan are being rushed through congress. The so-called cap and trade energy bill was already rushed through the house – with no time for representatives to read it. President Obama claims that the health plan and “cap and trade” are urgent, we must act now! Sound familiar? Others are claiming that the Sotomayor must be confirmed before the next session of the court. They do not explain why it is better to take a chance on her than for the court to operate one justice short.

We are now seeing the results of the rush to judgment on bailing out the economy – unemployment has continued to rise. Yet we are being pressured into more rush decisions on the health plan, on energy, and on Sotomayor’s confirmation. Should we perhaps be just a bit suspicious?

My own formula for dealing with such attempts to induce panic is:

First I ask myself if there is really any reason to hurry? Is my life, health, or financial well-being at risk if I take more time to decide? I find that there is almost never any good reason to hurry. Even if the “only 25 available at this price” get sold, it seldom does any real harm to me. If there is reason to decide quickly I do the best I can, using the same principles I would use if I had more time available.

I then try to take a reasonable amount of time to consider the decision with appropriate care, depending on the nature of the decision. I won’t spend much time deciding what to order at a restaurant, but for something like a major purchase or how to vote in an election I’ve developed my own 12-step process:

1. Keep the goal in mind.
2. Gather and analyze information.
3. List options and possible outcomes.
4. Determine outcome probabilities.
5. List possible consequences and benefits for each outcome.
6. Do cost-benefit analysis for those outcomes.
7. Look at changing the probabilities.
8. Examine legal and moral issues.
9. Listen to a devil's advocate (or be one yourself).
10. Decide if it is worth the risk.
11. Decide if I can tolerate a bad outcome.
12. Put it together and decide.

As a decision-making consultant I suggest those steps to clients. Just as AA’s 12-step program can help people overcome alcoholism, so these steps can help overcome a habit of making bad decisions.

Identity Politics, Part 2

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Senator Patrick Leahy has strongly implied that criticism of Supreme Court nominee Sotomayor is racist. And what were those “racist” remarks? The culprits quoted Sotomayor verbatim. There is no doubt that Sotomayor made a racist statement. There is no doubt that she said it multiple times. Yet Leahy has the nerve to accuse people of racism when they simply point out what she said. Worse, he misquoted her, apparently deliberately.

Leahy claimed, “[Sotomayor] said that, quote, you 'would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.'" Notice that he claims to be quoting her verbatim. That was a lie; he was creatively editing her words to make her statement sound neutral when in fact it was racist.

What Sotomayor in fact said was, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." The claim that her race and sex would reach better decisions is clearly racist, as I’ve discussed in my blog on the Gander Test. Removing the racist part of the quote is dishonest. Leahy is a liar when he says that he is quoting her statement.

However we should not be surprised that someone like Leahy, well on the left of the political spectrum, would do such a thing. Many of those people are incapable of recognizing racism in anybody but a white person. Leahy probably thinks that telling his lie is actually serving a good cause. Many of those people actually believe that it is not possible for a Black or Hispanic to be a bigot. That is a part of identity politics, they judge people by the color of their skin or their sex, not by what they actually say or do. However racist is as racist does, contrary to what the leftists claim.

This is the other side of identity politics, excusing all manner of sin on the basis that the culprit is a minority. Worse, anyone who criticizes a minority, even for valid reasons, is labeled a bigot for having the temerity to speak the truth or a non-politically-correct opinion. This is widespread in our country today. For example, anyone who opposes homosexual marriage will be called homophobic and anyone who opposes affirmative action will be called racist. That is just the way identity politics works.

Another aspect of this is the article of faith on the left that any minority must be leftist. Many go so far as to call a black person who does not toe the leftist line “not an authentic Black.” In fact recently Senator Barbara Boxer used testimony by Harry Alford, chair of the National Black Chamber of Commerce, to imply that the other groups represent black people but that Alford’s organization does not because it does not go along with the leftist agenda.

Many of Boxer’s ilk think that minorities should remain in lockstep and not be allowed to stray from the leftist reservation. They think that minorities off that reservation lose their identity.

Can we change the adherents of identity politics? I doubt it, at least not most of them. They tend to have closed minds on the subject and will reject facts or sound reasoning. In fact they will call such facts and reasoning bias, but of course cannot tell us how they are biased. Oh there may be a few who listen to reason but most won’t. Most regard the accusation as proof, no more discussion needed.

What we can do is refuse to give in to the twisted accusations of identity politics. Of course first we must examine ourselves to be certain the charges are untrue. If they are all we need do is make a simple statement of that fact.

A leftist might say, “You’re a bigot, you called Sotomayor racist.”

A good response might be, “I am not a racist, in fact I have many Black and Hispanic friends. I simply quoted her own words, words she has spoken multiple times. Then I pointed out that if someone made a similar statement, claiming that a white man could make better decisions than a Latina woman, it would be recognized for the racism it is. Sauce for the goose is sauce for the gander and Sotomayor’s statements are racist.”

Such a response probably won’t change the mind of the accuser; he is likely too closed-minded to understand it. However it will have an effect on neutral observers. Furthermore it will help us avoid the temptation to become as biased as the accuser in an attempt to avoid the accusation.

Leahy and his ilk will undoubtedly continue to make false accusations of bigotry. However I do not believe they are the majority in this country. I believe most people are smart enough to see how ridiculous those accusations are.

Hiring a Justice

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Hiring decisions can be difficult or relatively simple, depending on the nature of the job. It can be easy to hire someone to pick up litter in a park; almost anyone can do that. Even if the person hired does a poor job no long-term damage is done and it’s easy to replace him. However as the job gets more complex, the difficulty of finding the right person increases, as does the potential damage he can do. A corporate chief executive officer can ruin a company in a hurry. There are not many people available who can and will do the job right. For that reason companies looking to hire a CEO usually take a long time and carefully evaluate potential candidates.

The hiring of a justice of the Supreme Court is more important than hiring a corporate CEO, maybe even more important than hiring a president of these United States. Justices receive lifetime appointments and are essentially accountable to nobody. A vote of five justices decides a case, making it the law of the land. There is no appeal. That makes each justice effectively one fifth of a dictatorship. It is a position of extreme trust and with the ability to do a lot of damage. This is not a position for which we can take a chance and replace the person in a few years if we don’t like the outcome. Selection of justices has to be done right, and done right the first time.

That means we should not just make sure there is no evidence against a potential justice. We must make certain that the person is qualified. This is not a criminal trial in which the appointee is innocent until proven guilty. Instead all candidates should be considered unqualified until shown beyond reasonable doubt to be qualified. The burden of proof is on the candidate and his or her supporters. I repeat here the five requirements I regard as mandatory for such justices:

1. Absolute integrity.
2. Commitment to the constitution and constitutional law.
3. Ability to subordinate personal belief and preference to the constitution and the law.
4. Intellectual ability to weigh issues and to decide wisely based on evidence, fact, and logic.
5. Sound knowledge of the law and the constitution.
I’ll be up front about the fact that I do not believe Judge Sotomayor is qualified to be on the Supreme Court. In fact I think there is evidence she does not meet two of the above requirements. She does seem to have great intellectual ability and a sound knowledge of the law so she probably meets requirements 4 and 5. I have no knowledge of her integrity so will hope that suitable investigation has been done on that score. However her commitment to the constitution and her ability to subordinate personal preference to that constitution appear to be lacking. Sadly, she seems willing to apply her stated racist views to court decisions.

The most cited case of this was Ricci v. DeStefano. This New Haven, Conn case involved firefighters denied promotions they had qualified for simply because not enough minorities qualified. I discussed that case in my last blog so I won’t repeat it here. I will, however, reiterate that Sotomayor’s acceptance of what amounts to a racial quota shows a disregard for the equal protection clause in the 14th amendment to the constitution. She failed to defend the constitution in that case.

Sotomayor is also a member of the National Council of La Raza, a Hispanic organization that strongly supports “affirmative action.” What affirmative action has come to mean in practice is that one group is passed over for employment or promotion in order to fill the quota of minorities. A friend of mine is a manager in a large company. He tells me that their human resources department regularly refuses to let him hire the person he regards as most qualified. The reason? Simply because that person happens to be a white male. His company has been cowed into taking those measures because both government officials and many independent civil rights organizations regard affirmative action as requiring de facto quotas. That is a clear violation of our constitution.

The most important job of the Supreme Court is protection of the constitution. Any justice who allows his or her own preferences or beliefs to supercede the constitution is a danger to the country. We need justices who can make decisions they hate and disagree with but which are what the law and constitution require. Oliver Wendell Holmes was such a justice and has left a legacy to be worth emulation. Will Sotomayor do that? Sadly, her record indicates otherwise.

We should all contact our senators and urge them to carefully evaluate Judge Sotomayor’s beliefs and judicial qualifications, especially her commitment to the constitution. If she fails the test of commitment to the constitution, she should be rejected.

The Gander Test

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There is often controversy over just what is and is not racial or sexual discrimination. Is it discrimination to give preference to someone in hiring or promotion? How about admission to a university? These questions have created lots of controversy and I’m afraid that too often our laws and court decisions have only confused the issue. However there is a clear test that can cut through the fog. It’s what I call the Gander Test.

Sauce for the goose is sauce for the gander. That old saying provides the basis for the Gander Test, a sure-fire means of determining if a decision or action is discriminatory. The test is simple, quick and as far as I can tell, 100% accurate if applied honestly. It consists of simply interchanging “goose” and “gander” roles in our thinking and discussion. If we think something might be discriminatory, we switch roles of the affected parties. If it is discrimination after the switch then it was certainly discrimination before the switch.

For example, suppose you are a manager who needs to hire someone. You have two acceptable candidates for the job, one a white man, one a woman or minority. You decide to hire the white man but someone asks if that was because of your bias. Or maybe you decide on the other person and someone asks if you were overcompensating just to get racial balance or meet a quota. How can you be sure you decided fairly? All you have to do is look at what you would have done had the qualifications been switched. What if each had attended the school the other in fact attended, worked where the other in fact worked, had the references the other in fact has, etc? Would your decision change if the qualifications were reversed? If not, your decision was almost certainly based on bias.

This can also apply to the case of the New Haven firefighter promotion test (Ricci v. DeStefano), so prominent in the discussion of Judge Sotomayor. Nobody was promoted because not enough minorities qualified for promotion. What if the situation had been reversed? What if, on a similar test in some fire department, 80% of Blacks qualified for promotion but only 40% of Whites? What if the city said, “we are going to nullify the results because not enough white people qualified.” Nearly everyone would object and call it racism. Jesse Jackson and Al Sharpton would organize demonstrations and protests. Editorials across the country would condemn the action. Almost certainly the courts would throw it out. Switching positions of goose and gander (Whites and Blacks in this case) allows us to see the discrimination clearly.

What’s that you say? Surely such a thing couldn’t happen, we would never expect Blacks to do better on any employment test than do whites. Think again. If the test involves running with a football or getting a basketball in a hoop, whites are seriously under-represented. Both the National Football League and the National Basketball Association have a much smaller percentage of white players than would be expected from the percentage of whites in the general population. What should we do about it? Should we force professional sports to use race-balancing measures when they decide which college players they are going to hire? Nearly everyone would object and call that racial discrimination. Jesse Jackson and Al Sharpton would organize protests, justifiable protests I might add.

What if a candidate for high office were to say, “I would hope that a wise white male with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn’t lived that life”? Again everybody would recognize this as bias. In fact many did recognize bias in Judge Sotomayor’s equivalent statement, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Again the Gander Test shows the clear bias in the original statement. Even President Obama who appointed and continues to support Sotomayor recognized the problem, calling it a poor choice of words. (Though the fact that she made essentially the same statement many times over a period of at least 15 years would lead us to the conclusion that it represents her real belief, not something she said by mistake.)

But wait, you say. Is there no constitutional way to help those minorities who don’t have the same education and opportunities as the rest of us? There is as long as the efforts to help are based on disadvantage and not on skin color. What if a state identifies poor schools and institutes a program to improve them, or to allow students from those schools to attend private or charter schools. That would pass the Gander Test. If the bad schools are mostly black (as so many are) we just imagine if it would be constitutional to allow special efforts to improve education of white children in bad schools. The answer is yes it is. The program is aimed at the disadvantages of the children, not at their skin color. In fact a case might be made that equal protection under the law requires that states provide equivalent educational opportunities to children in poor and rich neighborhoods.

The 14th amendment to the constitution requires equal protection under the law for everybody, regardless of race. Giving white people special protection or other advantage violates that clause. So does giving special protection to Blacks, Hispanics, or green people if they were to exist. It is the duty of our judges and elected officials to support that equal protection. It is also the duty of the citizens to encourage their “hired hands” to support such equal protection. We should all contact our senators and ask them to consider this when they vote on the confirmation of Judge Sotomayor or any other prospective judge.

Judge Sotomayor and the Firefighters

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Imagine yourself in the following situation:

Your favorite sports team just won a hard-fought and important game. Their months of practice and hard physical training practice paid off. The win puts your team in good position to win the championship so the players and fans are about to start celebrating. But wait what is this? The referee is signaling for attention. He asks for a microphone and announces, “The score shows that the team with the green jerseys won. However we believe that there should be more winning teams with white jerseys so we are nullifying the results and officially this game was never played. It will not count toward the championship.”

Or if you’re not a sports fan, imagine you’ve just completed a degree that qualifies you for the career of your dreams. Maybe it’s nursing, engineering, teaching or whatever you think would be an enjoyable and rewarding career. You got high grades and have been offered several positions. You take one of those jobs and go to the human resources department to do the paperwork for new employees. The HR manager takes one look at you and says, “Oh dear! We can’t have this! You have blonde hair and we’ve just decided that at least half of our new employees must have brown, black or red hair. We are canceling your employment contract. You call the other companies who offered you employment and find that they have similarly changed their requirements.

In either case I’m sure you would be incensed that people would change the rules after the game is over. In fact in some countries any referee who made such an announcement after a soccer game would put his life in danger. Yet many of our judges make equivalent announcements in employment situations. Sonia Sotomayor, nominated for the Supreme Court is one of those judges. In the case of Ricci v. DeStefano, she and other judges allowed the rules to be changed after the game was over. This had the sole objective of disallowing a win by a group they did not want to win.

New Haven, Conn. had arranged for a test to determine which firefighters would be promoted to captain or lieutenant. That test was carefully designed to be job-related, exactly what we would want is it not? All firefighters eligible for promotion had the opportunity to study and learn the needed material, then take the test and compete for one of eight lieutenant or seven captain positions. After months of study, the pressure of the test, and the anxiety of waiting, the results were finally announced – and promptly nullified. The rules had been changed after the game was over.

Why were the results nullified? There was no question of fairness, all test takers had the same opportunity to study (including one dyslexic who had to work extra hard but qualified for promotion in spite of his difficulty). Nor was there any question of applicability, nobody questioned if the test was in fact job-related. No, the nullification was because some people did not like the outcome. Not enough minorities qualified for promotion so all the hard studying of all test takers was for naught. After it was over the city decided that the game was never played because they didn’t like the results. That was racial discrimination, pure and simple.

I find it unconscionable that a city would do such a thing and that any judge would allow it to stand. Yet Judge Sotomayor and other judges did allow it, in spite of a clear constitutional provision that equal protection under the law shall not be denied. How can they claim that it is equal protection when people of one skin color are protected from failure while those of a different color are forced into failure?

In my mind, this type of decision should prevent any judge from being promoted, especially to the Supreme Court. One of the most important functions of that court is protection of the constitution. When a judge allows such a flagrant constitutional violation, that judge should never even be considered for promotion.

The constitutional provision should be enough for the courts to overturn New Haven’s discriminatory ruling. However there are good reasons why the city should never have made such a decision, even had it been constitutional.

First is the issue of fairness to employees and the resulting adverse effects on performance. Firefighters, like most employees, perform better and have higher morale if they believe they are being treated fairly. If that is not the case, they will have low morale and little motivation to improve their skills and to go out of the way to do an outstanding job. Why spend all that time in hard, boring study if your employer is just going to ignore your improved skills? Why risk your life to save someone in a house or car fire if your employer is going to promote someone on the basis of an irrelevant characteristic such as skin color?

Second, from the point of view of a citizen, what kind of firefighters and fire department officers do we want? Suppose you are having a heart attack, or trapped in a house fire or a wrecked car with gasoline leaking. A fire truck approaches. Do you care about the skin color of the firefighters aboard? I wouldn’t. I don’t care if they are black, brown, white or green with purple polka dots. Nor would it matter to me how many are male and how many are female. It would matter a great deal that they be competent and dedicated to their job. Any employment or promotion considerations beyond that are discrimination and risk my life.

Allowing racial discrimination in public employment not only violates the 14th amendment to the constitution, it is also unfair to those employees and puts citizens at risk. Any imbalance should be addressed at the education level, not by discriminating against qualified people of any race. Judges who approve discrimination should never be promoted and could do the country a favor by resigning.

Supreme Court Appointments

Appointment of a Supreme Court justice calls for extreme care. Decisions of that court remain effective for an unlimited time and there is no appeal. It is also difficult to remove a bad justice so the president must chose wisely. Mark R. Levin in his book, Men in Black documents many justices who have caused problems over the years. That includes Abe Fortas who resigned to avoid impeachment in a bribery scandal. The potential mischief a bad justice can commit is a warning that they should be chosen wisely.

I submit the following as mandatory requirements for any Supreme Court justice:

1. Absolute integrity.
2. Commitment to the constitution and constitutional law.
3. Ability to subordinate personal belief and preference to the constitution and the law.

4. Intellectual ability to weigh issues and to decide wisely based on evidence, fact, and logic.

5. Sound knowledge of the law and the constitution.

Integrity is the first and most important characteristic. A justice must not be subject to bribery, blackmail, undue influence or anything that could interfere with good decisions. Intelligence and ability without integrity are dangerous; an intelligent but unethical justice can use his ability to hide misdeeds and to persuade other justices to support tainted decisions.

Second, justices must be committed to our constitutional form of government, and to constitutional law. We have a representative republic with carefully crafted protections against abuse of power and the court must uphold that form of government. Substitution of its own wisdom for the constitutional law of the land would put the court the position of a dictator. Legislation should be left to senators and representatives who are accountable to the voters; the court is not a super-legislature.

Third, justices must subordinate their own beliefs and desires to law and constitution. One mark of a good judge is to set aside personal preference and judge according to the law. To do otherwise would again be putting himself in the position of dictator, imposing his own will on the electorate. We need justices who can say, "I dislike this law. I think it is dumb. However it is the law and it is constitutional so I must let it stand." Justices must recognize that they are "hired hands," employed to serve the people according to the "contract" set forth in the constitution. They may think that a law is stupid, and in this they may be right. However they must recognize that voters and their representatives have a right to make laws, even stupid laws.

Forth, justices must have the intellectual wherewithal to deal with the issues they will face. This seems obvious. Not only are the issues themselves often complex, but there are smart lawyers arguing each side. A justice must be able to consider all aspects of a case, cut through the intellectual fog, and decide on the basis of fact, logic, law and constitution.

Fifth, and again rather obviously, judicial nominees must have a sound knowledge of the law and the constitution. They must know and understand the basis on which they are to decide.

The president must reject the temptation to appoint justices who will advance a political agenda, instead seeking those who meet the above requirements. Justices should be judges, not politicians.