I was just browsing through the Times book review's archive, which unfortunately tends to have self-indulgent and uninformative soliloquies posing as book reviews. But it's still hard to believe some of the stuff they print there sometimes. I'm beginning to feel more and more like this is a slanderous, petty, and borderline idiotic section. For instance, the review of the latest Hillary Clinton biography. Let's just start it off strong:

Monica Lewinsky is fat. Bill Clinton has long been a member of the clean-plate society. Evelyn Lieberman, the former White House deputy chief of staff, is reputed to be ''a little overweight.'' Mrs. Clinton herself has long battled a tendency to beef up, but in perhaps the most astonishing revelation in the book, ''several of her Wellesley College classmates, who played sports with Hillary, described how she looked in a T-shirt and shorts,'' and according to them, ''she had a tiny waist, slim legs and ankles, and small buttocks.'' When coupled with the fact that the young Hillary Clinton was referred to by classmates as ''Sister Frigidaire,'' and by White House staff as ''the Big Girl,'' and that Hillary's tubby husband Bill gave a high-level position to Janet Reno, the implication is clear. Hillary Clinton does not merely view the world through the asexual, unmaternal, left-leaning eyes of a poorly groomed woman who was surrounded in her youth by manipulative pinkos who were playing for the other team. At some level, Hillary Clinton feels most comfortable in the company of fat people.

The obvious conclusion is that Hillary Clinton, in a ploy of Machiavellian subtlety, deliberately overcame her small buttocks and thin ankles and put on a few pounds in a cunning attempt to curry favor with fat voters. And in a nation that is looking increasingly chunky, this alone could insure her victory in the 2008 presidential elections.

Are there any other revelations in the book that are worthy of note? Yes...

You did not misread that. If 'worthy of note' means "off-base, trite and worthy of the interest of the tabloid community" then, well, I would have to agree. As much as I would love to have a great paper based out of New York to read every day, this paper has too many idling narcissists who have little important or useful to say. Unfortunately, the book review is really like a navel-gazing club consisting of people who have written books themselves editorializing on the most recent books of others.

Note: This doesn't apply to the actual reporting, which still is probably some the best out there, when it wants to be. When it does not choose to report on something, the Times is remarkable for its omission. Like half of the news will just be left out. Most selections chosen are somehow in the interest of the "New York crowd," whatever that means. Not that there's anything wrong with that. It's just not at all a complete news source.

Not to single out the Times. News media in general are on a steady decline. I personally find reading political editorials more painful than listening to the politicians themselves, which is pretty bad. Investigative journalism (you know, that thing where they like visit places and find out things other networks haven't already covered) is fast becoming a wistful thing of the past. With the exception of maybe CNN, our modern day "partisanship," with all the all the intellectual dishonesty and acrimony that entails, has become the rule. I'm aware of the argument that "Bush and his partisan cronies have caused this." I seriously doubt that. But even if it is true, it turns out that things are even more regretable than they seem. This is simply because even with all of its left-leaning tendencies intact, the news media have done a truly risible job of covering and printing the stories that could have fatally exposed Bush's failings. The press loved the Clinton fiasco, whoever goes down in the process be damned. But because the Bush White House is much better a covering up and containing sensitive information, we heard about the CIA outing scandal for about a week.

Update / rebuttal: But the Times does investigative work on the most important things, like when it tried to unseal private documents regarding nominee Judge Roberts' adoption records. I mean sorry, this one's really dumb. And kind of offensive. What could the paper think it could gain from this? 1) Not that I'm experienced in this matter... but I would guess that accessing a private individual's private records on a matter such as adoption is... what's the word for that - oh yeah, illegal! At least one of Roberts' personal attorneys said, "Sources familiar with the matter tell FOXNEWS that at least one lawyer turned the TIMES down flat, saying that any effort to pry into adoption case records, which are always sealed, would be reprehensible." 2) If the Times succeeded and obtained the documents somehow, without attracting public attention and censure, I think the story would have been at best laughed at as a frivolous piece of wasted resources. 3) Normally, when a newspaper starts investigating a topic for a story, it has a certain rationale in mind... I'm finding it very difficult imagine in this case what that would be.

Killer Opinion Piece

The New York Times shows how charming it can be with two shady gems in the Sunday Times. The first, without any repentence or apparent irony, deals with a prominent female novelist's (unrequitted!) love for every serial killer to come along in the last 25 years. The concluding paragraph does a wonderful job of speaking for itself so I'll just reprint that:

It has been more than 25 years since Gary Gilmore was executed after issuing his succinct last words, ''Let's do it.'' I had a crush on him from the moment he appeared on the scene for any number of reasons: his good looks; his soulful letters to his pretty girlfriend, Nicole; the wounded aura of defiance he carried with him. Even after reading everything ever written about him, from Norman Mailer's ''Executioner's Song,'' which glamorized him, to his brother Mikal's ''Shot in the Heart,'' which cut him down to pitiful and thuggish size, I think I'd still pick his photo out of a lineup of eligible men. What's a lady to do? Such is the unreasonable pull of pheromones, such are the crooked ways of love.

Charming!

The second article deals with America's two most beloved topics... Iraq and Reality TV, of course! The headline/plug reads "Reality Shows Thrive in Chaos: Reality TV has taken root with considerably greater ease in Iraq than American-style democracy." A few paragraphs later says "Reality TV could turn out to be the most durable Western import in Iraq." Take that neo-cons. Just in case you haven't taken the hint yet, a few lines down the author spells out the message: "'This is the only good thing we've acquired from the American occupation,' Majid al-Samarraie, the writer of "Materials and Labor," said as he watched the reconstruction of Ms. Ismail's home."

"I get chills thinking about this," said Ms. Ismail, whose father had died from injuries he suffered in the explosion, as she raced across the street in a blue robe toward a cameraman filming the laborers. "Words can't express how grateful I am."...True to the genre, "Materials and Labor" has a simple conceit at its heart - Al Sharqiya, an Iraqi satellite network, offers Baghdad residents the chance to have homes that were destroyed by the war rebuilt at no cost to them.

And to think someone once said reality TV doesn't have redeeming qualities.

Other spin-offs include a reality show that endeavors to travel around the country making good on completely unredeemable winning lottery tickets - because the state is bankrupt! There is a show that helps young couples marry without fear of getting stoned to death, or whatever. There's one that repairs bombing damage to homes, even if next week they have to return to the same location. There's even a Real-World-like living show where diverse people have to learn to deal with the tensions of living together in close quarters, except in Baghdad it's because no one is able to afford their own house. The possibilities for offensive reality-TV really are several times greater in a chaotic war-torn region. If Iraq becomes a theocracy, I can imagine the U.S. networks themselves will be salivating at the Syrian border, at which they too will probably cross seemlessly and with no supervision.

Disturbingly often when reading the Times, I have to double check the date just to make sure it isn't the April Fools issue.

The people are Harvard are weighing in on yet another socially contentious issue with its pledge to provide $1 million dollars annually to a research project on the origins of life. Now, if only someone could get them to weigh in on that other thing about women and science. Oh wait, they started that! That reminds me, we haven't heard much from Lawrence Summers lately. For a guy who even as far as Harvard presidents go has a big ego, this is probably important. My guess is we won't be hearing any more "intellectually provocative questions" for a while.

The national issue being tapped into here is the debate between Evolution and Intelligent Design. As it stands, the debate is between two, basically idiotic, extremes. Intelligent design is the most flagrant and anti-rational version of a series of religiously-motivated "creationist theories." Nevertheless, some of the more in-between positions can be scientifically respectable in varying degrees. For instance, instead of challenging a far superior theory, why doesn't religiously-motivated science hone in on the actual points of weakness within the theory of evolution? Like the complete absence of an acceptable scientific explanation for the fundamental jump from inanimate to animate, inorganic to organic, the must occur in the origin of life. Actually, attempts at these questions have been made, and pretty compellingly in my opinion, fascinatingly enough, using the concept of entropy (statistical law that all things tend toward disorder). However, doing this concept justice is way beyond the bounds of these few paragraphs.

There are other in-between positions that are still religious. You have the more philosophical contention that, granted that the process of evolution is mechanistic and self-perpetuating, the philosophical CONTEXT a priori (logically) has no default reason to support this paradigm over another. To take one example, why should biological objects possess the property of reproduction in the first place? Is there anything about the original step from biologically inactive to biologically active that dictates biological entities should also reproduce? This might sound like a facile question, but I think on deeper thought it's actually somewhat profound. Another point is more physical, but equally valid; why is the world "set up" to be mechanistic in the first place? This position of course doesn't get at the origins of life per se, but it is equally applicable to it on physical grounds. For the practical observer, these questions seem petty, but from a philosophical perspective, and certainly a religious perspective, these questions truly are open books. Moreover, God may be infered into any of these unknowns to the same effect, and much less objectionably, as into the sweeping role of "creator of everything."

We know evolution takes place empirically. Manmade experiments on isolated islands prove it. However, it does not necessarily logically follow that evolution therefore must have caused all life. Smart questioning would focus on the weak spots of the theory, rather than presenting a complete alternative to evolution. Hopefully, this is what the Harvard project will seek to accomplish, rather than lining up two mutually exclusive theories in a contest of apples and oranges. Certainly, this would "do justice" to the public debate, but scientifically it is a disservice.

The fact that proponents of creationist theories choose to insert God into the first frame, as it were, instead of into the things that are legitimately unknown, tells me that this is not a war on evolution. This is a war on science: Any scientific progress constitutes an effacement of God's glory, or something to that effect. This thinking shows up ALL THE TIME. Let there be no doubt about it: the inverse exists as well. Lots of scientific people think that, "well, since we have a few basic laws, and know that they could hypothetically apply to and explain everything, therefore God has no role, no reason to exist, and therefore must not exist." This is materialist atheism, and it is equally ludicrous as creationism. Unfortunately, we live in a country where whenever debates ensue, they take place between extreme poles. And hopefully our educational institutions won't repeat this mistake.

As usual, The New York Times has printed another strangely incomplete and misleading article on the Israel-Palestinian issue. The topic of this one is "Why Greater Israel Never Came to Be," coming on the cusp of the controversial initiative to dismantle all Jewish settlements in the Gaza Strip.

For an article that promises to answer the question of why Greater Israel never came to be, it's curious, although not surprising, that this one leaves out the two most important factors behind the idea. The author asks two good rhetorical questions: "What possible future could the settlers have had? How could their presence have done the state of Israel any good?" And then he fails to answer them with any intellectual honesty. In doing so, the article reduces the rationale for Greater Israel to one factor of doubtful significance: population management. I think what is being said here is this: Greater Israel was conceived as a way to absorb overpopulation in Israel proper. If only more Jews had made the expected journey to Israel, these settlements would have been able to serve their purpose; since they haven't, they aren't necessary. Not only is this absurd, it's historically inaccurate and revisionist.

Let me address the absurd part first. Look at the claim numerically. Here's a useful source for the demographic facts. The area of Israel proper is just over 20,000 square kilometers. It has 6 million residents. The West Bank is just over 5,000 square kilometers. It has 2.5 million residents. That's 300 people per square km versus 500 people per square km. If the total number of residents of Israel were to double to include all of the world's Jews, the number would go up to 600 per square km. The point is, the addition of the entire West Bank and Gaza Strip to Israel proper, which collectively amount to about a 25% increase in land area, and contain almost all unarable, desert land, is not going to do much to solve any potential population problem. It doesn't make much sense to use a more populated territory to try to absorb population overflow. You could do this analysis with the Gaza strip, but then the numbers would be so ridiculously disproportionate that the argument wouldn't be effective.

Now let's address the historical inaccuracies. Yes, it might be true that at some point in Israel's early history, political leaders were seriously throwing around the idea of expanding Israel into ancient territories "Judea" and "Sumeria" as a way to ward off potential population problems down the road. Regardless, Judea and Sumeria (as distinct from its modern, more limited ancestor "Greater Israel") include modern Jordan, and also all of the Sinai Penninsula. Now, the Sinai Penninsula ALONE is larger than Israel proper, and the Jordanian territories are probably comparable. Second, once the leaders saw that the Jews of the world were not going to migrate to Israel, the rationale behind this factor becomes null. As the Times article puts it, "... the misery that (early) Zionists expected Jews elsewhere to suffer has not materialized." (Technically, Zionism was not founded on the concern of Jews being miserable, but rather that they would assimilate too much into their native cultures. Granted, the Holocaust changed thinking on this topic quite a bit, but nevertheless.) It's a fact that by 1970, Israel's leaders (and probably everyone) knew that the mass exodus was not going to occur.

Now look at the alternative factors we know played a role in the settlement movement because they still operate today. Actual Israelis know that the religious right has had a hugely disproportionate influence on Israeli politics from day one. There is a list of historical events attesting to that influence: reparations for the displaced Palestinians; a steady supply of willing volunteers to man the front lines of the original security-oriented kibutz network; the lions share of lobbying for settlements; a handful of civilian attacks in the territories; the assassination of Rabin. No one can deny that Greater Israel was, and arguably still is, a religious idea. For direct justification one only need look in the Old Testament.

From a practical perspective, a big incentive for promoting settlements in the territories is and always has been security. This may seem like a lame excuse, given that even all the settlements together won't take up very much territory. But Israel is only 12 miles wide at its narrowest of northern points, so in fact every little settlement in the West Bank does make a difference. Yet the goal has not only been expansion, but more important, buffering. From the earliest days, pioneers risked their lives on Israel's border-lying Kibutzim. Though the kibbutz concept is always painted as a peacful experiment in socialism, in fact the early border-lying kibbutz was actually a military entity, serving as a first line of defense and early-warning far before the concept of 'settlement' was put into practice. The same principle operates today in the occupation and settlement of the captured territories. Of course, the analysis applies equally to Gaza. Given that Gaza is a reality, it poses a security threat since Hamas practially runs the place. And this doesn't even count the tunnels and smuggling networks that we know exist between Gaza and Egypt, which supply the territory with a steady stream of armaments.

It's disappointing but completely predictable that, now that Israel is disengaging from Gaza, the Times has followed step and begun to cleanse the settlement movement of its unsavory historical and political aspects. It's also another blow for the intellectual integrity of the paper, but we already knew it didn't have much. Who wants to think that settlements were motivated in part by - Judaism's own biblical literalists? "You mean Judaism has fundamentalists too??" Score one for Arabs in the moral piety contest.

Perhaps more disturbing than the revisionism is the heavy emphasis the article puts on the fact that terrorism has worked. Unfortunately, this no joke. In fact, the whole second half of the article is devoted to making this very point.

"Of course terror has a role in the disengagement," said Michael Oren, a
senior fellow at the Shalem Institute, a conservative Jerusalem research group.
"It convinced us that Gaza was not worth holding onto and awakened us to the
demographic danger. It took two intifadas for a majority of Israelis to decide
that Gaza is not worth it."

A senior Israeli official who spent years closely associated with Likud
leaders, speaking on condition of anonymity because of the sensitivity of the
topic, said that Israelis long had little respect for Palestinians as fighters,
but that had changed.

"The fact that hundreds of them are willing to blow themselves up is
significant," he said. "We didn't give them any credit before. In spite of our
being the strongest military power in the Middle East, we lost 1,200 people over
the last four years. It finally sank in to Sharon and the rest of the leadership
that these people were not giving up."

Some came to a similar conclusion much earlier. The Israeli left has been
calling for a withdrawal from Gaza for years, and even many on the right
believed settlement there to be futile and counterproductive. Mr. Kimche, the
former foreign ministry official, recalled that when Prime Minister Yitzhak
Shamir of the conservative Likud party was running against Yitzhak Rabin of
Labor in the early 1990's, several Shamir advisers told him: "Unless you
withdraw from Gaza, you're going to lose these elections." He did not withdraw;
he lost.

Mr. Rabin himself said that he decided to negotiate a withdrawal with the
Palestinians when he realized how unpopular military service in Gaza had become.

"He said privately - I heard him say it - that military reservists don't
want to serve in the occupied territories and while they are not formally
refusing they are finding excuses to stay away," Yoel Esteron, managing editor
of Yediot Aharonot, recalled. "That put a real burden on the army and it meant
we couldn't stay there forever."

This is the most destructive choice of all, and the Times is idiotic for printing it, especially since the paper ostensibly has a pro-Israel position. This could very well be new intellectual territory being forged here. They're pro-Israel, but they're pro-terrorism too. It's a happy medium! (P.S. They must really be into the Mossad) On the one hand they support an active democracy with a flourishing economy. On the other hand, they also support terrorists blowing up civilians as a means for political gain. Nothing incongruent about that.

If there's one thing you can't help but notice these days its the preponderance of people commenting on gay issues. This makes sense, given the particulars of the enhancement of gay rights. Consider how civil rights struggles have been waged traditionally, -by marches, protests, publicity, etc. I think everyone can accept it's just a fact that the gay movement has a comparative liability on the first two counts. Gay rights marches aren't particularly effective. I don't know, something about the rainbow flags and the fake construction workers doesn't exactly scream "defiance!" Ok, so maybe it does. But I guess it's natural that you see a lot of the case for rights being made via the pen.

The problem is, and I say this in the most respectful way to the large majority of the gay population out there, most of the "gay columnists" out there are completely crazy. Like, can't even construct a coherent argument without interjecting a showtunes reference crazy. This is decidely unfortunate. It would be a little like the African American rights movements consisting entirely in the Black Power faction. It doesn't take a political genius to figure out that flaunting your otherness is not an effective way to gain an advantage in a wage for civil rights, which, let's face it, is what this is.

When gay people name sexual acts and the like for politicians, it has the effect of confirming all the politicians and religious zealouts' worst fears. Let's list them and see how are confirmed.

1) Gays are trying to turn everything gay.
2) Gays are trying to turn everyone gay.
3) Gays are flamboyantly, stereotypically, annoyingly ostentatiously homosexual.
4) Gays are sinful, lewd, and repugnant.
5) Gays don't keep their sexuality or personal lives to themselves.

This would be a little like taking all of the most slanderous turn-of-the-century stereotypes of African Americans, finding people who exemplify only these traits, and then having them lead the black civil rights marches in the mid 20th century. Like, I don't know, rounding up a bunch of large and physically intimidating black males, dressing them up as dumb looking slaves, and then having them rape a few white girls for good measure as an effective argument for civil rights. It's like the gay movement hasn't caught onto the idea of unobtrusive resistance yet. I don't know exactly why. How much time did it take the black community to come up with Martin Luther King (actually not a rhetorical question)?

If demonstrations and confrontation aren't they way gay Americans are going to make their case to mainstream America(na), and I would argue that it's not, then where ARE all the smart gay rights spokespersons (Sorry, Brian Ellner isn't one of them). One possibility is that they're working within the political system. I wouldn't know. I'm not involved in the gay rights movement, and I'm not especially political. The issue of marriage aside, the case for the further deprivation of gay rights is intellectually tenuous in my opinion, and the absence of eloquent voices coming from the other side is tantamount to surrender.

Should sexual orientation be included in every discrimination clause? Absolutely. Should privacy rights apply to relationships? Absolutely. Should sexual orientation itself be a privacy issue? You bet. Should equal civil benefits be awarded to gay couples as to straight couples? Aboulutely. Do gay people deserve marriage? This is a complicated question, confounded by the fact that marriage has traditionally been the domain of religious institutions. In a culture that demands the government stay out of citizen's private lives, it is hypocritical that "marriage rights" are being demanded with equal parity. So you've got multiple questions, like what grants the right to marry, and if this right is being denied to gays, what gives federal government the jurisdiction to intervene.

Bottomline assessment: Demanding marriage rights now seems to be jumping the gun. I like to think of myself as solidly gay rights, but provoking the marriage conflict now, especially on ambiguous constitutional grounds seems like a mistake. More on this topic in the future, and how this issue might be viewed according to the various judicial approaches...

Doesn't She Have Better Things To Do

I couldn't help but notice the name at the end of this email to AndrewSullivan.com, reprinted in its entirety:

Dan: Too bad you missed “Once Upon a Mattress” in San Francisco last year. They took your casting suggestion and then some. Lea de Laria played the princess. As you know, she is huge, loud, funny, gay, and in my book a far better musical comedy performer than Rosie O’Donnell. With this formidable comic presence at its center, the show—which is pretty slight—turned into something really memorable. If you print this, please give credit to 42nd Street Moon, a mostly-amateur local company that does a great job reviving obscure musicals.

I always enjoy reading your column locally in the SF Weekly, even though I’m almost completely uninterested in the subject matter. You’re a great writer and a principled person, and I’m enjoying your blog very much. Barbara B.

I guess taste in entertainment is another area where I and "the senator from California" don't see eye to eye...

I'm not tired enough to sleep, and not awake enough to be genuinely productive, so I figured I'd explain my perspective a bit more on the Supreme Court nomination issue. The last post on the Supreme Court may seem overly abstract in light of the real consequences of the issue at stake here, so I want to address some of the practical issues I think are in the balance here.

There's no question Roberts is not a bad guy, though the same can not be said for all justices. He's not going to inhabit the fringes of some outrageous and fanatical ideology, or act as a covert operative for any person or party. That is, he's clearly not an ideologue, and seems fairly independent intellectually.

On a practical level, the question at issue here is what direction will his appointment lead the country? All this is amplified by the fact that

1) Roberts himself is expected to be a swing vote on many key issues.

2) The administration that appointed him is the most ideological one in recent history.

This is in terms of both foreign and domestic policy. The whole concept of a faith-based initiative speaks for itself, I think. In other important respects, we see policies coming out of the White House that are simply not grounded in fact. The former party line "Global warming needs more study" is a perfect example. The fiscal policy of running huge deficits during a war while pushing through tax breaks is not endorsed by any economic camp known to man. The energy policy is completely hypocritical and irrational. The allegations officially made about factors relating to gay marriage and parenting are not based on reputable scientific evidence.

3) At any rate, the country is clearly at an ideological crossroads, questioning the entire New Deal style of government. This is applicable in terms of the "size of government," responsibilty of the government to provide social protections, and the continued progress of the civil rights movement and its various tributaries. In all of these repects, this nomination is a very key one, in that it may be a significant step in a process that reshapes the judiciary in a way that reflects the reforms going on in the other two branches.

This may end up being the case. Intellectually and practically, however, there are serious compelling reasons to reshape the structure of government away from federal authority on social issues. Philosophically, on the most contested social issues of the day, we are not dealing with issues posessing clear-cut answers or even clear-cut premises. Whatever your views on abortion rights, everyone has to admit it's ambiguous on which side of civil rights abortion falls. I certainly don't think that a couple day old embryo is human life. But the current public debate hasn't advanced beyond essentially a line-drawing argument, and I can't think of any better philosophical criteria with which to frame the issue. Nor has anyone else been able to, to my knowledge. Therefore the question of "the rights of the unborn fetus" is going to remain a live one for many people in the public discourse, regardless of how resolutely the other camp feels to the contrary. Yet abortion is clearly a women's rights issue as well. So whose rights are more important? Answering this question seems virtually impossible.

Or consider the gay marriage issue. It's not clear that marriage itself is a CIVIL right, although government does in effect legally sanction it in conjunction with religious institutions. To me the clause "equal protection of people under the law" doesn't apply, because the law doesn't sanctify marriages, it only determines benefits once they already exist. Someone else might read that phrase differently. Yet federally banning same-sex marriage doesn't protect rights either; it doesn't add, it only subtracts. Again we're left with the open ambiguous questions of "what counts as a right" and then "to whom do these rights apply." At either end, federal rights are unclear, and judicial minimalism is prudent.

In the formulation of Hillary Clinton, abortion should be "safe, legal, and rare." It's been argued that allowing some states to ban abortion will effectively eliminate the option of abortion for the poorest citizens in those states. I tend to think that such a policy would contribute more towards making abortion rare than making it prohibitive. A simple cost-benefit argument leads to this conclusion. Given the availability and cheapness of contraceptives, I don't think it's a stretch that people will respond to cost incentives in this case just as they would for any economic matter. More expensive abortions leads to people adjusting their behavior which leads to fewer abortions. Obviously, there will still be many people who incur the need for abortions despite their economic interest. Let there be no doubt about the fact that this is by no means a completely rational matter. Yet I see no reason why the above scenario would prohibit these people from having abortions.

Awarding federal rights on either of these issues is philosophically dubious, not to mention bound to be extremely controversial given the nationwide level of variance in views. On the practical end, relegating the issues to the states seems like a good solution, albeit most state legislatures are either corrupt, inept, or both.

It's clear the most powerful wing of the Republican party wants to do the same thing to the federal judiciary that it did 20 years earlier with the legislative branch: reduce its size. Ironically, the current president has reversed this trend in the legislative branch, but that's another topic.

There are a lot of reasons to support judicial minimalism. When the courts make a decision we can live with, we chalk up any discord vis-a-vis public opinion to the glorious independent function of the judiciary. When the courts make a decision we can't live with, we call it the action of "activist judges." To be honest, the term activist judge means next to nothing to me. Nonetheless, the term is not indicative of a healthy attitude and relationship to the judicial branch.

As critical as the judicial branch is to the American form of government, there's one thing I think everyone can agree on here: it is also the least democratic branch, although the other two branches are certainly still in the running in this peculiar race to the bottom. Think about it. An elected official has complete power to choose whoever the hell he or she wants, with in many cases no accountability to the electorate, to serve without term limits on a court making decisions according to no standard methodology, the only requirement being the vague "interpret the constitution." The Congress has veto power and the incentive of reelection to ensure accountabilty, but if they keep vetoing judges they inevitably become seen as "obstructionist," regardless of how good the reason or how consistent the rationale.

The judicial branch is an indispensible but also highly imperfect component of government. Any input of the judicial branch has two major drawbacks. Any decision is final, though theoretically overturnable. And the decision is so far removed from the participatory democratic process that it can be fairly characterized as undemocratic. Obviously, these are drawbacks to be avoided if given the option to resolve the issues in a more direct, democratic legislative manner. Hence, Judge Roberts' stated agenda to reduce the load on the federal judiciary is a welcome development to me.

There's a great piece on the common phenomenon of so called conservative court appointees defecting once on the bench to support more liberal decisions. This is, needless to say, a pervasive phenomenon, if only based on the fact that a whole 3 out of the total 9 sitting supreme court justices have followed this pattern. Lots of people are trying to apply historical precedents to try to figure out if Roberts will follow in these justices' footsteps or not. While this is an interesting debate, I'm not inclined to participate - for two reasons. One, despite how often the pattern may repeat itself, I'm not sure historical precedent gives any insight into how any individual might turn out. Two, I don't think that even a worst-case scenario Roberts will be a terrible pick, so the general issue is more interesting to me.

The question posed by Slate gets at several interesting issues, I think. The one that comes to mind first is the issue of the politicization of judges, particularly on the Supreme Court. I can't imagine that the founders intended for judges to be political entities whatsoever. Granted, the system takes into account the fact that the executive privillege to appoint justices poses the possibility of the institution devolving into a political instrument. And I think this is a large part of the rationale for the senate confirmation process (though, I'm no constitutional scholar). It's not a bad bet that Judges are SUPPOSED to be apolitical; I doubt this theoretical point is disputed much. However, given the reality of the situation, I think the public debate on the political nature of judges concerns the following issues. One is how much unsupervised and autonomous power the president has in the appointment process. Questions about the extent of the confirmation criteria and procedure that should be employed by the senate address this issue. On one side you have people saying that the ability to appoint judges is merely another privilege that comes along with winning the election. In this view, the system is not acutely self-moderating at all. In fact, in the short term, it's pretty much totally unchecked and unilateral. But over several terms, the process is assumed to level out. These people tend to argue for a minimalist interpretation of the senate confirmation process, entailing something along the lines of vetting a candidate's suitability for the job in terms of dimensions such as temperment, civility, level of qualification, and background. Essentially it's intended to screen out candidates who are really not cut out for the job (although in reality, how many people who make it to the super-select pool of those who would be considered for the Supreme Court don't have the qualifications to be a competent and suited Justice - with the notable exception of Clarence Thomas, perhaps). So this argument doesn't really seem to hold water. The less strong version of the view would be perhaps that the confirmation is intended to screen out obvious ideologues, who may have the qualifications and experience required for the job, but are unfit in the sense that they will not judge each case individually on the merits, but rather according to a pre-conceived grand scheme of judicial imperatives.

I think this argument is more convincing and relevant to the issue of John Roberts. Leaders have managed to insert the phrase "judicial activist" into the mainstream discourse with astounding success. Without getting into whom the introduction of the concept serves, I think it's pretty clear that people are concerned about judges "legislating from the bench," and that such a practice really does occur. Without question, Roberts passes the ideologue test with flying colors. He writes all the time about the need for a more restrained and humble judiciary. He has never taken a known controversial stand on an important social issue in his life. He speaks regularly about the importance reintroducing careful interpretation of the law and due process in the courts. His revered expertise in all aspects of law supports the claim that he has a profound respect for the institution. This is not to say that he hasn't aided consistent political interests in the past, or consistently had political affiliations with Republican adminstrations. It's to say that ideology refers more to the process than the decision itself. On this count, in my opinion, George Bush's decision to appoint Roberts is one of the saner and most sober things he has done. Of course, this says nothing about what Roberts would decide in a hypothetical future case. What it says is that he will definitely not legislate from the bench, which at least is a good thing. You have to hand one thing to George Bush - he is consistent.

On the other side, people argue that the senate confirmation procedure is a political check on the executive appointing privilege. This makes some sense in theory, but it assumes of course that judges are political entities, both in the sense that presumably they are appointed as political instruments, and that they are selected on the basis of how likely they appear to be to uphold decisions of political importance to the supermajority of the senate. I'm not sure which of the two camps is correct, and, somewhat ironically, it requires the ruling of a jurist to determine which view is in fact constitutional. There is a less strong version of this view. In the words of more than one senator, "what someone thinks does matter." Setting aside whether or not this represents proper originalist protocol, which is almost entirely just an academic debate anyway, my question is if you do try to find out what the nominee thinks, where does that get you? First of all, to begin with the premise is very unlikely, since beyond anything provided by a paper trail, a nominee may easily conceal his or her views. Secondly, if the nominee hasn't been involved in deciding and setting legal precedents before, any information you get will be personal views, not judicial philosophy, and as such is distinctly less useful given that the nominee is a person who can separate personal beliefs from judicial approach. Lastly, even if you can get credible information on both personal and judicial views, judges change once on the bench. That's the whole point. And everyone knows this happens a lot.

Another issue brought up by all this is the notion of strict constructionism, which is necesarilly counteropposed to the idea of "legislating from the bench." Constructionists are certainly in vogue with Republicans right now, and the idea of constructionism is deceptively formidable intellectually. These constructionist judges are going to read the constitution as issued. Therefore, it's impossible that they could ever be inserting the interests of contemporary activist causes into their decisions. The idea is appealing on the surface.

However, there is a vexing issue lurking here, and that is why does strict constructionism always seem to lead to predictable "conservative" positions? In general, due to its strict adherence to originalist (and hence antique and often very provincial) concepts and ideals, constructionism deflates legislative authority. Inherently, legislation in its pure form is, one could say, neutral to the constitution, in the sense of written without especial regard for constitutional (not judicial) precedents. Therefore, since social changes, including civil rights, are inherently progressive in origin, they are also easiest to strike down vis a vis the originalist constitutional litmus test.

Prima facie, I see a huge practical problem with the constructionist doctrine. That is it essentially amounts to guesswork and speculation about what the founder fathers thought. Sure, constructionists put a lot of time and research into their decision-making. But in the end, it leads to an essentially unfalsifiable declaration, because no one KNOWS what the founders thought. And this is potentially very dangerous because it gives judges complete creative freedom, so to speak, which is patently at odds with the judicial function.

But the debate about the politicization of the courts goes beyond the selection process. Apparently, judges now are members of political parties, hold political views, and serve specific political interests. So-and-so is classified a "conservative judge," and then everyone acts surprised when they turn out to make decisions that please liberals. I'm not sure how true this is. To me, it's more indicative of a fallacy in the way people analyze judicial officials than that judges routinely abandon their political views on the bench. I mean, let's face it. Judges have to curry political favor to even get appointed, but that doesn't necesarily mean they are hardcore, committed, partisan ideologues in reality. Moreover, people seem to think that judges are incapable of holding personal views and judicial views separately. This is a strange contention. In fact, I would say that a judge who does NOT completely separate his personal from his judicial views is unprofessional and borderline not qualified. Therefore, this whole business of what does a nominee such as Roberts personally believe seems fundamentally misguided and a waste of time. There's a reason that so many slated "conservative" judges turn liberal: the ones who have a proper judicial profile value the responsibility of interpreting and enforcing the law as they see it above politics.

Slate provides a further possible factor for why judges change on the bench. Essentially, it states that once judges reach the Supreme Court, they begin to think more collectively, with regard to the other judges' opinions, and ultimately in terms of the final outcome of the case. The theory has it that the presence of at least 3 hardcore, unwavering conservative judges on the Supreme Court forces any new entrants to modify their decisions in order to counterbalance the consensus.

People are paying lots of attention to this confirmation process, and for good reason. A lot hangs in the balance in terms of civil rights, abortion, government protection programs, and the distribution of power among the different branches of government. Ultimately, the question to me is not whether Roberts is or will be conservative. There seems little doubt that he is, both politically and judicially. It is whether he will be a practical versus a "constructionist" conservative. Will he interpret according to a controversial though completely legitimate doctrine of judicial minimalism? Or will he adopt an activist stance cloaked behind the front of strict constructionism? I was greatly heartened by the statement he made during the district court confirmation hearing to the effect that he prefers to let the case dictate the judicial approach, rather than applying an all-encompassing judicial approach. Flexibility and willingness to change one's mind to me are antithetical to ideology.

Some people might wonder, "well what's the difference which way he arrives at decisions, as long as they're ultimately going to strip rights away from causes we care about?" Aside from the philosophical appeal of a judge adhering to due process, I think there are a few more concrete differences. Many people seem to have the idea that judges are, for lack of a better word, tools. In reality, every judge, even Scalia, takes their responsibility with solemn gravitas. Judges read thousands of pages a day, and that doesn't even count any deliberation. All of them are trying to do what they perceive to be legally right. Thus their legal philosophy or approach can be critically influential at unexpected moments. Also, if you think about the fact that the need to counterbalance a small group of judges who consistently end up deciding on one side of the issues necesarilly distorts the actual views of the other members, it's apparent why practical vs. constructionist conservativism represents a significant difference structurally speaking.