SCOTUS, "untruthful," "outside the mainstream," "ideologue," "precedent," and "extremism": Sorting Through

Once more we must gives thanks for an editorial in the New York Times for providing such good grist for our mill--we have been wanting to grind these issues for some time now. The subject is the Supreme Court of the United States (SCOTUS) and the flimsy oppositional thinking going into justice selection. Some really bad ideas are afoot, but they are bandied about as if they meant something, particularly now that Samuel Alito has been nominated to fill the O'Connor vacancy on SCOTUS.

We have severely excerpted the editorial from the Times because it adds nothing of value. We have retained the buzzwords, however.

Editorial (November 16, 2005): Ignore the Man Behind That Memo

Judge Samuel Alito Jr.'s insistence that the Constitution does not protect abortion rights is not the only alarming aspect of a newly released memo he wrote in 1985. That statement strongly suggests that Judge Alito is far outside the legal mainstream...

First, he has extreme views on the law...

Second, Judge Alito does not respect precedent...

Third, he is an ideologue...

On the bench, Judge Alito has voted to uphold extreme limits on abortion and on other important rights, like freedom from unreasonable searches and seizures. Equally alarming is the notion that he fudged the truth [on a 1985 employment application] to tell a potential employer what it wanted to hear. Senators should certainly keep this in mind when they try to decide whether to believe how he describes his views at his confirmation hearing.

(All emphases mine)

First, the standard of truth issue. According to this editorial, Judge Alito lied on a 1985 employment application because he told the potential employer what that employer wanted to hear. Complaints about lying from the New York Times ring hollow. Imagine that: Someone telling someone else what that someone else wanted to hear in order to get something--Shocking, utterly shocking! Why, no one at the Times has ever done any fudging... In fact, if fudging facts were the criterion for rejection of employment, national unemployment would near 100%. If, indeed, in this case, Mr. Alito lied on a job application, it does not reflect a pattern of evasion, lying, or even “fudging.” The Times needs to focus on serious stuff, not an instance of a minor moral transgression.

A pattern of lying is a pattern of fraud. That is very serious because it is characterological. No evidence has been found, nor do we believe any will be found, to indict the man’s character on this charge.

As for “lying,” these confirmation hearings have taken on a character akin to the Inquisition. No nominee can possibly get his nomination confirmed any more without some lying, by commission and omission. Senators insist on being told what they want to hear, and that is, in most instances, formulaic stuff. Every nominee has to engage in senatorial gamesmanship of morbid mendacity; if nominees are evasive, then senators are getting just what they have long been asking for.

Second, the outside the mainstream issue. What does “mainstream” mean? Realistically, it means nothing more than someone being “moderate,” even “militantly moderate.” A moderate tries to appear principled while actually avoiding being firm on principles. Moderates approach principles, regardless of how important and mutually exclusive some of these basic principles might be, as if selecting from the fabled Chinese menu: Some from column a; some from column b; and some from column c. Practically speaking, moderates cancel themselves out by the contradictions they try to hold. By trying to be all things to all people, they become nothing to anyone. They negate identity. So, being in the mainstream means what? Nothing.

Why accuse someone of being out of the mainstream? The accusers hope that unthinking people will jump to the emotional conclusion that the accused is "rabid."

Third, the extremism issue. The first time we heard people go crazy en masse about “extremism” was in the aftermath of Barry Goldwater's famous remark about extremism in his 1964 presidential nominating convention speech, particularly when he said that extremism in the defense of liberty is no vice. Perhaps Leftists had been going nuts about the use of "extreme" before then; we cannot say. However, since then, we have heard countless repetitions of concerns about “extremism” from the executive and legislative branches of government, the media, and academia, all pounding the idea that “extremism is bad, bad, bad.”

What is extremism? At best, it is a junk term, which collects into one pile all sorts of things that do not go together, both the good and the bad, and makes all items and issues in the pile equivalent. By this argument, all extreme positions are bad because they are, well, "extreme." A good illustration of this kind of thinking came out of the mouth of one of the weekend hosts of Fox and Friends on the Fox News Channel. A highly conventional host stated recently that all truth taken to the extreme becomes false. (We did not make this up). Aside from the fact that this statement makes no sense, in fact, truth is truth; and, if it is truth, it is "extreme" only because it is fully logically consistent. That is the nature of truth.

Properly used, the term “extreme” means no more than taking as consistent a position as merited by the premises. That is what Barry Goldwater meant. His enemies tried to paint him as some id-dominated monster who would eat babies, blow up the world with nuclear devices, etc.--i.e., their view of extremism. The cry of "extremist" or "extremism" from the Left tries to paint the target emotionally as a lunatic. In fact, it may well mean that the target person is rational, something the Left can hardly abide.

Fourth, the "precedence" issue. In the Supreme Court legal lexicon, the "precedence" issue is known as stare decisis. This doctrine gives such gravity to prior decisions that SCOTUS justices are all but handcuffed not to challenge prior decisions. When those prior decisions are rational, that is, when they support rights and the Constitution in a fully rational manner, they need not be overturned. However, stare decisis has become a Leftist litmus test in the Senate.

Leftist senators are terrified that someone like John Roberts or Samuel Alito will challenge the beloved pro-socialism decisions made by the Court in the last 125 years or so. They hang their fears on the Rowe vs Wade as THE symbol of all they stand for. If SCOTUS reverses that decision, they fear, SCOTUS might start interpreting laws by "strict construction" and start dismantling the semi-fascist-socialist state that America has become, thanks in large measure to the activism of SCOTUS. (We are addressing the fears of the Left about Rowe vs Wade, not challenging the validity of the decision here). Knowing how to play the confirmation game, all nominees rush to assure the Schumer's, et and al, that they believe in stare decisis, just as they believe in God, country, mother, and apple pie.

What SCOTUS needs is men and women of principle, conviction, and backbone, willing to subject prior decisions to the test of reason and Rights of Man, keeping the good, and overturning the bad. Advice to the nominees then is to tell Schumers what they want to hear, then do what reason dictates.

Fifth, the "ideologue" issue. The ideal expressed by this editorial and among almost all politicians is that holding an explicit philosophy of life (which would qualify as “extremism,” please note, because explicit = definite=extreme in the Leftist bizarroworld), particularly a judicial philosophy, makes one just terrible. But, in fact, ideologues are people who hold specific sets of principles, usually social or political. These sets of ideas may or may not integrate with a full philosophy of life. Ideologies are smaller sets of principles rather than a full philosophy of life. Some ideologies are rational, and some are not. Muslims are ideologues, for example. So are people like the infamous professor, Ward Churchill. Hitler was an ideologue. Many conservatives and liberals are ideologues. Using “ideologue” this way tries to make it an epithet so that people will associate “ideologue” with “evil.” Further, by using the term this way, users intend to scare people that the “ideologue” will try to cram his ideas down their throats, like Muslims or Hitler. Well, that could be the case--or, maybe not. It all depends on the nature and extent of the ideas held and by whom; figuring that out far exceeds the capacities of politicians these days.

What this Times editorial and mouthy Leftist senators mean is that someone with principles guiding his or her thinking, feeling, and behavior, has to be bad because ideas guide his or her thinking, feeling, and behavior. By implication, their ideal is to be fluid, flexible, indistinct, malleable, and willing to bend in the wind, changing directions as the wind shifts—to keep principles in a form resembling the blobs of a lava lamp.

Where would they get such a notion? They were taught that by America's universities and college, bastions of irrationality since pragmatism, and the philosophical spawn that followed pragmatism’s heyday, became the dominant academic, then cultural, philosophies, starting in the latter 19th century. The world created by this "ideology" is an unstable world: Reality is entirely malleable--if you want something, and take action (from the Greek, "pragma"), and if it all works out, then it was true; morality or ethics is nothing more than following your feelings and learning that something was right because it all worked out the way you wanted--you act, then examine--anything goes. Bill Clinton is a good example.

As for politics, pragmatism and its progeny require force wielded by the all-powerful state to be able to control all those people following their versions of reality, truth, and morality, some of which are bound to clash. Taking a firm stand on principle is anathema to pragmatism, which holds that reality is too subjective to take a firm stand on. Thus, politicians go nuts when people take principled stands. Those that do take principled stands become labeled "ideologues," i.e., "extremists," and definitely "outside the mainstream." Moussolini loved pragmatism as taught by William James because James' ideas taught him to act first (instead of thinking), and, if it all worked out, then it was right.

The mainstream, to those thoroughly soaked in pragmatism and its postmodernist progeny, consists of all sorts of compromises and deal makings to get what participants want, having nothing whatsoever to do with what is true or right, as normal people use the terms.

These buzzwords and buzz-terms have been trotted out, as expected, in order to smear Judge Alito, as though his detractors really mean something when they use them. However, these accusations smear about as effectively as fog smears. The Left do not want someone who knows what his principles are and follows them. They want someone who sees life as they do, where anything goes--except principle.

What then, do these Leftist complaints really say about Judge Alito?

1. Truthfulness: He erred morally once .
2. Outside the mainstream: He is an independent thinker.
3. Extremism: He has integrity to stand firmly for what he regards as right.
4. Precedents: He might well challenge prior SCOTUS decisions, if he thinks they were based on false premises.
5. Ideologue: He is a man of principle.

So, these are supposed to be disqualifying negatives? Only the Left, never at home in reality, would consider these obvious strengths as negatives.