Kavanaugh and Learned Hand
My blog is named The 10th Justice, after my hero Judge Learned Hand, just to remind those who haven't read all my essays. Judge Learned Hand was called the 10th Supreme Court Justice even though he was never on the court. Many of his legal opinions are our laws in America still. He was never nominated to the court because he was neutral. His only ideology was fairness. He always looked at both side of the issue as objectively as he could, and decided cases based on the best facts and not on unsupportable opinions. His opinions were driven by no other ideology.
And so we look at Brett Kavanaugh who has apparently demonstrated clearly that he will bring his ideology into the courtroom and add it to the stream of evidence and argument, when making his decisions. This does not sound like fair judgement. This makes everyone less respectful of the law. Decisions are no longer being made by the blind justice holding the scales, balancing the evidence fairly, because the justice has put their own thumb on the scale, just like the butcher when he wants an extra buck out of you.
The Supreme Court seems to be going the way of civil dialogue in America. Civil dialogue has gotten lost because the arguments that support the opinions of many people come from faith and not from evidence. Evidence based dialogue has been poisoned by the religious right and the humanist left. The tribes have taken sides, marked out their territory and are ready for war, rather than peaceful negotiation. This isn't new. I remember as an undergraduate, during discussions of philosophy or ethics in the college cafe, how often, after the facts as we knew them had been discussed, the final argument came down to either faith in god or no god.
My friend Paul Weiss sent me an interesting article by Meghan Daum about her involvement with the 'dark web' of intellectual debate, about tribalism and taking sides, and about nuance in discourse. The noise level in the world, mostly because of the internet and television, has made nuanced, one-on-one discourse difficult. Not difficult but non-productive. Now, in politics, large numbers of people must be persuaded and only shouting slogans does that, only framing the debate in images, does that.
Obama's speeches had nuance. He could also focus the debate on what mattered and say it in a convincing way. I read somewhere recently that Obama's speaking style reminded them of a minister speaking in front of a congregation. That was driven home when I saw him speak at John McCain's funeral. I like his style. I like his nuance. More than any recent president he brought rational argument into the setting of the church, so that those listening sort of knew that when all the arguments were done and no decision had been reached Barack could always fall back on god, on his religious beliefs to back up his opinions.
I replied to my friend Paul, who moved across the country, that I wished we could sit down together like we used to, in two comfortable chairs, drink a little Armagnac, and talk. All those deep, passionate, relatively rational discussions, which we enjoyed, brought us to Donald Trump. We didn't speak OUT, we spoke IN.
As life went along, I tried politics a couple times, hated it, and stopped. I convinced myself that the best we could do was to raise our five children to be kind, educated people. We succeeded but still we have Trump. None of them voted for him, I am fairly certain, but we have him anyway. When I say Trump, I really mean that we have an America that is no longer interested in fairness and rational conversation about issues, an America that is no longer afraid to show her bigotry, an America that is no longer cooperating with the rest of the developed world to make our planet better and safer.
'Truth is not truth' says Trump's mouthpiece, Rudi Guiliani. Learned Hand would not totally disagree with this statement. He believed that one must be ready to change one's mind in the the face of new evidence. But until real evidence was presented and added to the conversation, one should make one's best judgement based on the evidence available, not on personal ideology. A judge should not be a witness in trials he adjudicates.
One final thought - the noise. In 1900 people talked, did research, wrote magazine and newspaper articles and books, and debated But the number of each of these was small. Unlike my whipping off this short essay in the morning, the magazine articles might take weeks and the books years. They were well thought out and usually had reasonable arguments to back them up. Modern technology not only makes the house-person's work easier but it made writing opinions easier. Television and the internet has amplified speaking out to a roar. And it all needs content. And the content must be compelling in order to attract advertisers. This has created too much opinion at the expense of fact. What we need is more research and less shouting. The difference between the New York Times and Fox News is the degree of effort and time put into researching the stories they present. Listen to a Fox News story about a topic, then read a Times article about the same topic. Think clearly who presented the more reasonable argument.
For most people it is hard to hear the music amid the noise. This inability to sort the facts from the opinions leads to tremendous indecision and frustration. So when the time comes to make a decision, such as casting a vote in an election, many act on faith rather than fact. I understand and sympathize. But I wish before casting that vote, we could just sit down with a glass of Armagnac and talk.
And so we look at Brett Kavanaugh who has apparently demonstrated clearly that he will bring his ideology into the courtroom and add it to the stream of evidence and argument, when making his decisions. This does not sound like fair judgement. This makes everyone less respectful of the law. Decisions are no longer being made by the blind justice holding the scales, balancing the evidence fairly, because the justice has put their own thumb on the scale, just like the butcher when he wants an extra buck out of you.
The Supreme Court seems to be going the way of civil dialogue in America. Civil dialogue has gotten lost because the arguments that support the opinions of many people come from faith and not from evidence. Evidence based dialogue has been poisoned by the religious right and the humanist left. The tribes have taken sides, marked out their territory and are ready for war, rather than peaceful negotiation. This isn't new. I remember as an undergraduate, during discussions of philosophy or ethics in the college cafe, how often, after the facts as we knew them had been discussed, the final argument came down to either faith in god or no god.
My friend Paul Weiss sent me an interesting article by Meghan Daum about her involvement with the 'dark web' of intellectual debate, about tribalism and taking sides, and about nuance in discourse. The noise level in the world, mostly because of the internet and television, has made nuanced, one-on-one discourse difficult. Not difficult but non-productive. Now, in politics, large numbers of people must be persuaded and only shouting slogans does that, only framing the debate in images, does that.
Obama's speeches had nuance. He could also focus the debate on what mattered and say it in a convincing way. I read somewhere recently that Obama's speaking style reminded them of a minister speaking in front of a congregation. That was driven home when I saw him speak at John McCain's funeral. I like his style. I like his nuance. More than any recent president he brought rational argument into the setting of the church, so that those listening sort of knew that when all the arguments were done and no decision had been reached Barack could always fall back on god, on his religious beliefs to back up his opinions.
I replied to my friend Paul, who moved across the country, that I wished we could sit down together like we used to, in two comfortable chairs, drink a little Armagnac, and talk. All those deep, passionate, relatively rational discussions, which we enjoyed, brought us to Donald Trump. We didn't speak OUT, we spoke IN.
As life went along, I tried politics a couple times, hated it, and stopped. I convinced myself that the best we could do was to raise our five children to be kind, educated people. We succeeded but still we have Trump. None of them voted for him, I am fairly certain, but we have him anyway. When I say Trump, I really mean that we have an America that is no longer interested in fairness and rational conversation about issues, an America that is no longer afraid to show her bigotry, an America that is no longer cooperating with the rest of the developed world to make our planet better and safer.
'Truth is not truth' says Trump's mouthpiece, Rudi Guiliani. Learned Hand would not totally disagree with this statement. He believed that one must be ready to change one's mind in the the face of new evidence. But until real evidence was presented and added to the conversation, one should make one's best judgement based on the evidence available, not on personal ideology. A judge should not be a witness in trials he adjudicates.
One final thought - the noise. In 1900 people talked, did research, wrote magazine and newspaper articles and books, and debated But the number of each of these was small. Unlike my whipping off this short essay in the morning, the magazine articles might take weeks and the books years. They were well thought out and usually had reasonable arguments to back them up. Modern technology not only makes the house-person's work easier but it made writing opinions easier. Television and the internet has amplified speaking out to a roar. And it all needs content. And the content must be compelling in order to attract advertisers. This has created too much opinion at the expense of fact. What we need is more research and less shouting. The difference between the New York Times and Fox News is the degree of effort and time put into researching the stories they present. Listen to a Fox News story about a topic, then read a Times article about the same topic. Think clearly who presented the more reasonable argument.
For most people it is hard to hear the music amid the noise. This inability to sort the facts from the opinions leads to tremendous indecision and frustration. So when the time comes to make a decision, such as casting a vote in an election, many act on faith rather than fact. I understand and sympathize. But I wish before casting that vote, we could just sit down with a glass of Armagnac and talk.
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