The American Conservative

The Washington Post reports this week that Supreme Court justices are asking more questions than ever at oral argument.  If you’ve already lost interest in the story, then you haven’t missed anything.  The justices’ conduct at oral argument says nothing about how they actually decide cases.  By the time oral argument for a case even begins, the justices have already studied the record and the briefs in detail and discussed the issues with their smart (but often highly ideological) clerks. Each has usually made up his mind before he even asks his first question.  Veteran court-watchers, wise to how the justices actually work, listen to the oral argument (if at all) for hints of what the justices might already be thinking. They know that oral arguments are really just for show.

Why then would the Post not only run a front page story on oral argument trends but assign three extra grunts to do the research?  Perhaps it did so for the same reason that justices are asking more questions to begin with. As with much else, it all goes back to Ronald Reagan’s failed nomination in 1987 of Robert Bork.  Ever since Senate Democrats defeated Bork on purely ideological grounds, nominations to the Court have been bitterly contested.  Nomination battles follow a by-now familiar script: The death or retirement of a justice is bruited about.  Senate staffers, advocacy and lobbying groups on both sides gird for battle.  The opposing party hunts for fatal weaknesses in each possible nominee’s resume. Allies line up telegenic spokesmen, identify respected academics who might be willing to author an op-ed, and sketch out talking points.

At last the vacancy occurs and the President announces his nomination to fill it. The battle is joined. Each side tries to saturate the airwaves and the newspaper pages with its views. Opponents search furiously for that one talking point, which, if repeated ad nauseam, will turn public opinion against the nominee.  The supporters, meanwhile, build up an appealing narrative in the nominee’s support.

By the time the Senate votes, the nominee cannot help but become a polarizing figure.  Who can forget Sotomayor’s “wise Latina” remark?  Alito’s membership in Concerned Alumni for Princeton? Kagan’s refusal to let the military recruit on campus?  Trivial in themselves, these incidents have become partisan rallying cries.  They proved (in many minds) that Sotomayor was an ethnic nationalist, Alito a mysogynist or Kagan an anti-military traitor. Needless to say, the more one side comes to loathe a nominee, the more he becomes a hero to the other.

At last the nominee survives the ordeal and assumes a seat on the Supreme Court.  As justice, he has an official capacity to decide cases.  As partisan leader, has an unofficial capacity to gratify supporters and disappoint enemies.  To be sure, judicial ethics and standards of decorum prevent the justices from taking up the cudgels politically.  But they still have oral argument.  At oral argument, they can prove their mettle by making the wittiest remarks and asking the more incisive questions. After all (whether the justice acknowledges it consciously to himself or not), each has fans to cater to.

Fans of the justices identify with them emotionally no less than sports fans identify with their favorite teams. As sports fans’ appetite for information about their teams (and their opponents) can never be sated, so Supreme Court fans’ appetite for information about Court trivia can never be sated. Ideologues want to know: Is Kagan living up to her rookie promise? Is Thomas upholding the reputation of originalism? Is Sotomayor up to snuff?  Is Scalia as nimble and caustic as ever?  The Post’s recent article gives them just enough for them to draw their own conclusions, while leaving them hungry for more.

The justices, in short, are showing off for their publics and the Post is dutifully reporting on their performances.  The sports pages and the national news pages are often one in the same.

I regret to say that this is another post on “American Exceptionalism” – to my mind, the most bogus ideological construct since Theodore White likened the Kennedy administration to the Knights of the Round Table.  ”American Exceptionalism” is truism gussied up as philosophy.  Of course America is exceptional in some respects.  So is every other nation.  Nor is there any political or intellectual figure who seriously proposes (or can be seriously be construed as proposing) to obliterate all differences between America and rest of the world.  Object to universal health care or defend America’s military extravagance if you will: Inflating the merely exceptional into the “Exceptionalist” will add nothing to your arguments but bombast.

Yet to hear conservative intellectuals carry on, you would think that “American Exceptionalism” was the most groundbreaking political idea since universal manhood suffrage.  No less an eminence than Harvard’s Harvey Mansfield takes up the idea this weekend in The Wall Street Journal.  If Mansfield can’t make sense of it, then, depend on it, none of the lesser lights of the conservative movement can either. Read More…

Virginia Postrel argues this weekend that environmentalists favor high-speed rail and wind power not because they reduce carbon emissions but simply because they look good. “These technologies,” she writes,

aren’t just about getting from one city to another. They are symbols of an ideal world, longing disguised as problem solving.  You can’t counter glamour with statistics.

Though she doesn’t say so, Postrel plainly thinks that “statistics” — or what she  later calls the “annoyingly practical concerns the policy wonks insist on debating” — militate against high speed rail and wind power.  Environmentalists, in other words, can’t think straight because they are thralls to beauty.  Like the philosopher who banished the poets from the city, Postrel concludes by admonishing her readers to shun the seductions of  green technology.

Clever as it is, Postrel’s techno-glamour thesis doesn’t withstand scrutiny.  For one thing, she takes for granted that wind turbines are attractive.  Really?  If anything the movement for wind power is handicapped by the ugliness of wind turbines.  The Kennedys, for example, a wealthy Irish-Catholic family who now own a house on Cape Cod, objected to a proposed offshore wind farm on largely aesthetic grounds.  As Kenendy scion Robert wrote in The New York Times:

Cape Wind’s proposal involves construction of 130 giant turbines whose windmill arms will reach 417 feet above the water and be visible for up to 26 miles. These turbines are less than six miles from shore and would be seen from Cape Cod, Martha’s Vineyard and Nantucket. Hundreds of flashing lights to warn airplanes away from the turbines will steal the stars and nighttime views. The noise of the turbines will be audible onshore. A transformer substation rising 100 feet above the sound would house giant helicopter pads and 40,000 gallons of potentially hazardous oil.  According to the Massachusetts Historical Commission, the project will damage the views from 16 historic sites and lighthouses on the cape and nearby islands. The Humane Society estimates the whirling turbines could every year kill thousands of migrating songbirds and sea ducks.

Giant arms, flashing lights, the annual slaughter of migrating songbirds: this is hardly the stuff of glamour.

Postrel skirts the ugliness of real-life wind turbines by focusing instead on the pleasant images we often see of them.  Those images, she says, promise a radiant, efficient and clean future, which distracts us from the actual costs of green technology.   But we are treated every day to glamour shots not just of green technology but of pretty much anything under the sun that anyone has any interest in defending.  Check out these shots of off-shore oil platforms, for example. One could write just as rapturously of them as Postrel writes of wind turbines:

The platform stands potent and erect over the deep,  a steel hymn to man’s mastery over nature. In the face of so mighty an image, arguments against drilling for oil are beside the point. You can’t counter glamour with statistics, after all.

Yet somehow environmentalists aren’t swept up in the romance of offshore oil drilling. Postrel, who makes her living writing about (and defending) the aesthetics of consumer culture, has grossly over-estimated the power of aesthetics to distort debate.

A better explanation of the appeal of green technology might start by asking what makes Postrel’s column so alluring.  Might it not have something to do with the unflattering portrait she draws of environmentalists?  Those who wish to cut carbon emissions often see themselves as level-headed champions of an indubitable scientific consensus.  Postrel instead depicts them as aesthetes impervious to rational argument.  At the same time, she shrewdly declines to take any stance on the actual merits of wind power.  Enviro-skeptics can thus take pleasure in Postrel’s subtle ridicule without having to indulge in any crass ad hominem attacks.

Tribalism, in other words, and Postrel’s skill in catering to it, best explains the allure of her column.  She depicts environmentalists as effeminate and irrational, skeptics as sober and analytic. For the enviro-skeptic, what’s not to like?  Likewise, glamour shots of green technology help reinforce environmentalists’ belief that they seek a radiant, beautiful future, while their opponents, presumably, seek one that is polluted and ugly.  All politics is tribal.  That’s the lesson of green technology glamour shots — and of Postrel’s column.

Peggy Noonan this morning gives us the conventional, question-begging GOP account of the election results:

The question for the Democratic Party: Was it worth it? Was it worth following the president and the speaker in their mad pursuit of liberal legislation that the country would not, could not, like? And what will you do now? Which path will you take?

Citing no evidence whatsoever, Noonan assumes that the mid-term results hinged on disputes over policy. That is, voters repudiated Democrats’ “mad pursuit of liberal legislation,” such as, presumably, the health care bill, the financial regulation bill and the stimulus package. Noonan’s assumption is comforting: It implies that she and her fellow Republicans successfully persuaded the public of the merits of their policies and the deficiencies of the Democrats’.  Not unimportantly, it also upholds a cherished myth of representative democracy, namely, that elections mean something in the sense that voters get to influence the laws by which they are governed.

Noonan doesn’t cite any evidence to support her assumption for the very simple reason that there isn’t any.  Imagine that, instead of pushing through health care reform, Dodd-Frank and other measures, Obama, content to bask in the adulation he enjoyed during his campaign and upon his inauguration, had adopted an attitude of benign neglect and achieved by this time no domestic policy reforms.  Would the voters have rewarded the Democrats for prudently letting the system work out its own problems?  Unlikely.  Instead of the “Democrats angered the voters by drastically overreaching” narrative that has become so familiar, we would have another one, equally tiresome, such as “Democrats angered voters by not doing anything to address their concerns.”  This latter narrative could just as easily have satisfied pundits’ and politicians’ craving to attribute intelligence to voters as the former.

In fact, the actual evidence if anything cuts against the thesis that voters punished Democrats for their leftwing policies.  As Ilya Somin points out, exit polls found that only 18% of voters cited health care as the most important issue, and of these more than half actually voted Democrat.  Consistent with the view that voters were naively punishly the Democrats for the nature of the (bad) times, regardless of actual policy, most voters cited the economy.   Opposition to Democrats’ actual policies accounts for very little, if any, of the Republican surge.

To quote myself writing on Monday:

As surely as the sun will rise Wednesday morning, pundits will over-interpret the results of Tuesday’s elections. Conservatives, for example, will call the results a clear repudiation of Obama’s policies. They will be no such thing. After you take into account “nature of the times” voting (i.e., voters holding the party in power responsible for today’s high unemployment and sluggish growth), there will be very little left in the GOP victory to explain. Any apparent ideological change will be illusory.

Indeed, the sun did rise on Wednesday morning (at least where I was) and pundits such as Noonan did over-interpret the election results.  They will continue to do so until doomsday.

Jonathan Adler of the Volokh Conspiracy reports on a recent Q&A with Justice Sotomayor:

A student asked Justice Sotomayor whether she could explain the reasons why she joined the dissent in McDonald v. Chicago and whether she thought Justice Thomas’ concurring opinion relying upon the Privileges or Immunities Clause had any merit. “No,” she replied.   She went on to explain.  “Every opinion I write and every opinion I join” fully explains her reasons for deciding a case in a particular way.  She also suggested some justices are too quick to write their own separate dissenting or concurring opinions.

Ye gad, does Sotomayor ever get off easy here.  Here’s the question that everyone wants to know about Sotomayor’s dissent in McDonald:

Given that you testified under oath that the Heller decision was “settled law,” how could you then join a dissent arguing the Heller should be overruled?

For, as Dave Kopel has taken the lead in observing, Sotomayor did indeed tell the Senate Judiciary Committee that Heller, which recognizes an individual right to bear arms under the Second Amendment, is “settled law,” i.e., law that presumably should not be overturned.  She went on to say, “I understand the individual right fully that the Supreme Court recognized in Heller.”  Yet the dissent in McDonald, which holds that individuals have Second Amendment rights against state governments as well as against the Feds, argues that the Second Amendment, “does not . . . apply to individuals outside of the militia context.”  In other words, Sotomayor does not see Heller as “settled law.”  Either she lied under oath, used the term “settled law” in a very equivocal fashion, or had an uncanny (and implausible) change of heart after being confirmed.

Alas, the student questioner botched it. It’s hard to tell from Adler’s report, but it seems that the student asked essentially the right question (“Why did you join the McDonald dissent?”), but then meandered into the abstruse question of whether the Privileges or Immunities Clause of the Fourteenth Amendment protects any of the rights currently protected (or not protected) under the Due Process Clause.

Instead, the student should have pressed Sotomayor on her integrity. If the opinion she joined “fully explains” her reasons, how is that she testified against those very reasons just a few months prior?

The world may never know.

The LA Times unveiled this week the first results of a massive report measuring the “value-added” by each of thousands of teachers in the Los Angeles United School District.  I hate to throw cold water on it. For the most part, the report is in an impressive advance.  “Value-added” metrics attempt to separate the influence on student performance of schools and teachers from the influence of student background.  Though elementary, in today’s climate of opinion, the distinction is subversive.  As Richard Buddin, the RAND Corporation scholar from whom the LA Times commissioned the report, writes:

Many teachers feel that student performance is based on student background and preparation factors that they are unable to control. The premise is that inner-city teachers serve an at-risk population that will always have lower performing students than their counterparts in more affluent suburbs. This argument has considerable merit for comparing absolute test score levels across schools . . . .

In other words, the best schools get that way because they have the best students to begin with.  You don’t say!  Yet if school quality is a function of student quality, then “bad schools” can’t explain the persistence of achievement gaps between whites and (non-asian) minorities. (On the contrary, achievement gaps between whites and minorities can explain the existence of “bad schools.”)  For many, this is an unwelcome thought, as it eliminates the most obvious and popular (though by no means the only) rationale for blaming society for racial inequalities.

Nonetheless, the LA Times doesn’t hold back:  “Contrary to popular belief,” the Times reports, “the best teachers were not concentrated in schools in the most affluent neighborhoods, nor were the weakest instructors bunched in poor areas.”  Duggins himself bluntly concludes that school effects “are small relative to . . . student achievement gaps between groups.”  In other words, “bad schools” are a myth. They do not explain differences in education outcomes.

Still, for all the report’s courage, the cold water needs throwing. Careless readers of the LA Times may conclude that, to fix the schools, all we need to do is to recruit better teachers. But Buddin in no way shows that good teachers are a panacea.  By design, the Buddin study only measures changes in student performance over one year. A good teacher may very well inspire his students to max out their potential in the short term.  That does not mean that he has any ability to change outcomes in the long term.

For example, thanks to my good study habits in high school, I routinely pulled better grades than classmates who were smarter than I was. In the end, however, it was those classmates who landed the Supreme Court clerkships after law school or graduated Alpha Omega from medical school, not I. By working harder than they did, I could temporarily outperform them.  Ultimately, I couldn’t keep up. 

The gains from having a good teacher are similarly temporary. Sure, you can prod a slacker for a year or two and get him to think a little bit less about girls and little bit more about arithmetic.  But you can’t prod him to do calculus if he doesn’t have the brains for it. Moreover, as soon as you stop prodding, he may prefer to return to his (more pleasant) slacker ways. Good teachers may provide no more than a temporary bounce in performance that, over the course of a whole academic career (or lifetime), cannot be sustained. 

Tellingly, the Bruddin study says nothing about the marginal returns of having good teachers.  Suppose a student has enjoyed “value-adding” teachers four years in a row – does he see the same gains every year?  The Bruddin report does not say.  If Buddin took another look at the data, he might find that, just as in everything else, marginal returns tend to diminish. 

In the meantime, teachers without Patton-esque motivational skills are going to get blamed for failing students.  Let’s give them a break.  In the long term, they’re probably not doing any worse than their colleagues.

UPDATE: In the comments below, ”Ciro” links below to research suggesting that gains from having effective teachers several years in a row are cumulative after all. I note that the literature summary to which he links says that “[N]o one has run a true experiment that involves actually randomly assigning students to high-performing teachers for several consecutive years.” So, there is some evidence to support the view that gains from having high-performing teachers are cumulative, but it is not yet conclusive.

I interrupt this political commentary for some brief finance blogging.

Over the weekend, the media seized on something called the Hindenburg Omen: a syzygy of financial statistics that supposedly portends stock market collapse.  The list of indicators that have to align just so to produce the Omen is so long I can’t even follow it myself. Here is how CNBC puts it:

The omen is triggered when more than 2.2 percent of the NYSE Composite Index’s stocks are finding new highs while another 2.2 percent or more of the issues are creating new lows. The lesser of the two numbers has to be larger than or equal to 69. The NYSE 10 also has to be rising and the McClellan Oscillator — a measure of market breadth based on advancing and declining stocks — has to be negative on that day.

If all of those criteria are met then the warning bell sounds.

Got that?  Me neither.  Nor do I plan to waste my time figuring it out, for I can already tell that the Hindenburg Omen — like other examples of “technical analysis” — is buncombe.

Take any random data set, and one is bound to find some striking coincidence or other.  The larger the dataset, the more inevitable yet individually improbable those coincidences will be.  The stock market provides endless examples.  You’ve probably heard them before: ”The stock market always goes up the day after NFC linebackers intercept more passes than AFC safeties,” or “A lunar eclipse on the West coast means that the market will go down.”  The technical name for this is data snooping.  Keep testing a set of random data, and eventually you will find a rule that fits.

Sometimes we are savvy enough to realize that these past correlations do not predict future moves in the market.  But, for some reason, when the correlations involve purely financial stats like trading volume or stock price movements, we are more easily suckered.  The academic literature has confirmed what theory would predict: take any “technical indicator” such as the Hindenburg Omen, and it turns out that, even though it may seem to account for stock market outcomes during a given backward-looking sample period, it does no better average in subsequent periods. (The Hindenburg Omen isn’t even a very good piece of data snooping — even with past data, it only “works” about 25% of the time.)  Nevertheless, to this day, many people on Wall Street make their living as “technical analysts,” even though their methods have no more merit than homeopathy or astrology.

None of this means that the market won’t crash in September.  Still, if your broker calls you to make sure you’ve read the reports about the Hindenburg Omen, you should fire him.  He makes money by convincing you to make as many (unnecessary) trades as possible.  ”Technical analysis” is just another way for him to egg you on.

Eugene Volokh notes this misleading headline from ABC News: “Maxine Waters Refutes Ethics Charges.”  ABC does not mean “refutes” — which presupposes that the charges against Waters are false — but merely “denies.”  As written, the headline conveys the tendentious message that not only did Waters rebut the allegations against her but that she did so successfully.

Was the editor trying to bias the story in favor of Waters? Unlikely. The article goes on to report that Waters “adamantly refuted charges brought against her.”  ”Adamantly” modifies Waters’s actions; it cannot also modify the being or non-being of a state of affairs.  You can’t say, “The Chairman of the Committee adamantly proved the charges brought against Waters,” for the charges can be true or false, but not adamantly so. Likewise, you can”t say “Waters adamantly refuted the charges brought against her” unless what you mean is that Waters adamantly denied the charges.  The use of “refute” in the headline was not bias but catachresis (selecting the wrong word for the context).

Still, conservative critics of Maxine Waters can easily see that the headline uses a presuppositional verb misleadingly.  There was a time, though, when mainstream conservatives were oblivious to the misuse of presuppositional verbs.  Remember the infamous sixteen words in Bush’s 2003 State of the Union?  Here they are again:

The British government has learned that Saddam Hussein recently sought significant quantities of Uranium from Africa.

Bush’s defenders pointed out (correctly) that the British government had indeed claimed that Hussein had tried to obtain uranium from Niger.  But, as Steven Pinker observes, the verb “learn” presupposes that Hussein had in fact sought uranium from Africa, whereas not only had Hussein done no such thing but the CIA at the time had doubted the British government’s intelligence.  Thus, the Bush administration could not have believed that the British government “learned” that Hussein had sought uranium from Niger. The verb “learn” was deceptive.

It is doubtless too much to ask that partisans be consistent in their interpretation of presuppositional verbs. Still, let it be said: the first Bush apologist who, picking up on Volokh’s point, protests ABC’s headline will unwittingly have admitted that Bush lied after all.

Uber-wonk Reihan Salam links this week to a pamphlet, Fragments of an Anarchist Anthropology, by radical academic David Graeber. I read it and found it most rewarding. If a “conservative” is someone who rather likes a particular institution and wishes to see it survive, then Graeber is precisely the opposite. That is, he does not like any particular institution and wishes to see them all destroyed. Consequently, though Graeber and conservatives have opposite goals, they share the same intellectual program: they both wish to understand how the United States, and the West more broadly, could be destroyed or else preserved.

It is interesting, then, that Graeber, a man who has spent a lifetime wondering how to obliterate Western institutions, comes up with this as the most effective technique:

Once during the protests before he World Economic Forum . . . I was invited to engage in  radio debate with one of their representatives.  As it happened the task went to another activist but I did get far enough to prepare a three point program that I think would have taken care of the problem [of global poverty] nicely:

An immediate amnesty on international debt . . .

An immediate cancellation of all patents and other intellectual property rights related to technology more than a year old

The elimination of all restrictions on global freedom of travel or residence.

The rest would pretty much take care of itself. The moment the average resident of Tanzania, or Laos, was no longer forbidden to relocate to Minneapolis or Rotterdam, the government of every rich and powerful country in the world would certainly decide nothing was more important than finding a way to make sure people in Tanzania or Laos preferred to stay there. Do you really think they couldn’t come up with something?  The point is that despite the endless rhetoric about “complex, subtle, intractable issues” . . . the anarchist program would probable have resolved most of them in five or six years.

Now, there is much in this passage that is maddening.  For one thing, it assumes that Western leaders could, if they wished, make Tanzania or Laos as nice a place as Holland (with the implication that only malice or greed explains why they have not done so already). Moreover, Graeber writes as if it were simply obvious that open borders would lead either to the collapse of the state or a radical global redistribution of wealth. But how? Graeber does not explain, so the reader is left to guess. Probably what Graeber, an anarchist, has in mind is that, with a truly massive and rapid influx of newcomers, they would overwhelm the natives to such an extent that the newcomers would no reason to respect to the formers’ institutions. To preserve those institutions, therefore, natives would have no choice but to bribe newcomers to stay away. Natives would have to pay a Danegeld or else accept an entirely new political order.

I do not wish to make too much Graeber’s pamphlet, which has much to disagree with.  (For one thing, Graeber believes that political decisions are only legitimate when made unanimously, yet he recoils from proto-fascist anarchists such as Georges Sorel who developed techniques for making that unanimity a reality.) But he is surely correct that border controls are the sine qua non of the current order. Every non-anarchist must believe in minimal border controls. The only question is: what kind (and for whose benefit)?

I have long argued that the “right” to government recognized same-sex marriage is illiberal and inegalitarian.  It is by definition a right to compel the government to use some magic word in a particular way.  In essence, it is a right is to say and think, truthfully: Nah, nah, the government calls same sex relationships “marriages,” so there! Conversely, it is right to make others say and think, truthfully: Grr, the government calls those things ”marriages”?

No such right can be enjoyed equally with others.  No matter what class of relationships the government calls “marriage,” there will always be some individuals for whom the class is too broad (because, say, it includes same-sex couples) or too narrow (because, say, it excludes plural marriages).  The right to government-recognized marriage is inherently a right to use the soft coercive powers of the government to discriminate against others.

Some people tell me that this analysis is no more than sophistry. Well, it now turns out that no less an authority than Judge Vaughn R. Walker of the United States District Court for the Northern District of California agrees with me.  In his opinion striking down Prop 8, Walker correctly found that same sex couples enjoyed all of the same legal rights, privileges and duties as opposite sex couples, with one exception — namely, the “right” to have the government officially refer to their relationships as “marriages.”  If Prop 8 has no legal effect, why strike it down as unconstitutional?  Because, says Walker:

Domestic partnerships . . . do not provide the same social meaning as marriage.

And:

A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs.  The record reflects that marriage is a culturally superior status compared to a domestic partnership.  California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples.

(emphasis added.) In other words, same-sex couples have a right to have the government create “social meanings” that are to their liking and deem their relationships “culturally superior.”  If you don’t like those social meanings or have a different view of cultural superiority, then tough.  Advocates of same sex marriage get to have their moral views vindicated by the State and (implicitly) to have yours ridiculed and vilified.

Judge Walker’s opinion isn’t about freedom. It isn’t about equality.  It’s about using the power of the state to change minds.  How any liberal could welcome this development utterly escapes me.