July 30, 2003
I don't normally link to Ann Coulter. Indeed, I don't normally read her columns. But I'm posting this question in the hope that somebody can enlighten me. In her latest, Ms. Coulter writes:
Just because you defended Bill Clinton doesn't mean you have to defend every government official who is reliably reported to be a rapist.
Now, I was busy being a high school teenager when all of that Clinton stuff was going on, so I may have missed some of the finer details, but who was Clinton reported to have raped? And who reported it?
I would normally dismiss this as Coulterism but for the fact that I've just been talking to one of my co-workers, a very smart, rather conservative HLS student who was shocked that I had never heard that Clinton was a rapist. So now I'm wondering . . . did this meme somehow pass me by?
UPDATE: Google seems to suggest something about somebody named Juanita Broaddrick, but only on Fox News.
UPDATE Redux: Thanks to the many readers who have sent me information about Broaddrick.
UPDATE the third: The aforementioned co-worker says that it's a sure sign that I'm a right-winger that I call him "very smart, rather conservative" rather than "rather smart, very conservative." But he's modest.
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This has been bothering me all week. The New York Times Magazine contained an article on manufactured memories, child abuse, and alien abduction. Said article contained this paragraph:
Some three million Americans believe they have had some kind of encounter with space aliens. If everyone who experienced sleep paralysis came to that conclusion, the number would be a hundred or so times as high....
This strikes me as odd. Three million times "a hundred or so" = Three hundred million, the population of the United States.
Well, I tell myself, maybe this is the reporter's roundabout way of claiming that everybody suffers from sleep paralysis. But why wouldn't the author simply say that? Then I come across this ABCNEWS report:
Sleep experts have long known about sleep paralysis, but research in the latest issue of the medical journal Neurology offers them a better idea of how common it is and what the risk factors might be. According to a new study, roughly 6 percent of all people have had at least one episode of sleep paralysis...While 6 percent of the population may sound small, Dr. Michael Thorpy of Montefiore Medical Center in New York City says thatís fairly sizable for a sleep disorder.
But wait. 6% of 300,000,000 is not 300,000,000 at all. It's 18,000,000. So if "everyone who experienced sleep paralysis came to th[e] conclusion" that they'd been abducted by aliens, the number would be 6 times as high. Not 100 or so.
Does this matter? Probably not. Does it bother me? Deeply.
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Since Will's original post on moral relativism there has been a large amount of debate both supporting and condemming his views, a few of these he has pointed you to, but I am sure there are still more that have gone unmentioned. I agree with Brian Weatherson that he should not have said that "murder is wrong" means "I disapprove of murder", but rather "Boo for murder!" (perhaps he has an argument against using this formulation as well, but I did not see one). Most of the debate that I have seen sprouting, however, has not been a semantic one, but rather a debate on Natural Law and Ethics (one of the best and least presumptious of these I have seen is here). A large amount of the disagreement I see, though, has been caused by a misunderstanding of terms. The naturalist theory maintains that there is something within human nature that can dictate what is good. So far as I can tell, there is nothing within Humean philosophy or logical positivism that contradicts the possibility of this; nothing, that is, so long as we qualify that good. Kant and a number of other philosophers claim that morality is defined precisely by this unqualified good (We ought do X, rather than we ought do X if we want Y). This seems to me how Will wants to define morality, and if you think this sort is possible through a Natural Law theory, then there is indeed a conflict with Will, Hume, and the Logical Poistivists.
If, on the other hand, you believe that good must be qualified, then it is possible we can still all be friends. This does leave the question, however, as to how we are going to qualify that good. Good for human flourishing? This seems to be a predominantly common way of defining morality throughout the history of philosophy, though the interpretation of exactly what this enatails is what distinguishes one philosopher from another. Aristotle claims this is best accomplished when we promote those characteristics that are typically human, what he calls the virtues. Other Natural law theorists may sight commonalities most successful human societies have possessed, things such as property rights and universally applicable laws. Hobbes, Rousseau and numerous others look at characteristics and laws necessary to take us out of some sort of State of Nature. Hobbes may paint a less flattering picture of what he construes to be the innate qualities of humankind, but he still believes that these innate qualities can be used to determine the proper morality, that is, a code fo actions that allows human societies to fllourish, and perhaps even to exist at all. So long as these philosophers provide some method of determining what these innate qualities are, there should be no conflict with Humeans.
What made Hume unique for his time, though, was that he did not seek to formulate a prescriptive theory of ethics, but rather a descriptive one. Hume was a historian before a philosopher, and studied the ethical codes of numerous cultures and how they tended to change over time. His theories on this are what led many to label him a moral relativist, but Hume would be the first to admit that there is an apparent logic to that change of ethical codes, and in his chapter on Why Utility Pleases in an Enquiry Concerning the Principles of Morals, in fact, does so. His claim is that societies apply praise to those actions which benefit society and the opposite for those that harm it. Additionally, one of Hume's closest friends (close enough to be with Hume at his death bed) literally wrote the book on one of the most successful theories on laws governing human behavior, that is, The Wealth of Nations by Adam Smith. This is not something that Hume would oppose, but rather support whole-heartedly.
Perhaps that example of economics is a bad one, though. Mill, who as far as I can tell agrees with Hume's assumptions and rarely disagrees with his conclusions (at least by the time he wrote Utilitarianism), took things a step further and actually proposed a prescriptive ethical theory that acknlowledges the place of social convention. He believes that morals are taught, yet this by no means necessitates that he believe they do not spring from some aspect of human nature. In chapter 3 of Utilitarianism he writes:
"...if, as is my own belief, the moral feelings are not innate, but acquired, they are not for that reason the less natural. It is natural to man to speak, to reason, to build cities, to cultivate the ground, though these are acquired aculties. The moral feelings are not indeed a part of our nature, in the sense of being in any perceptible degree present in all of us; but this, unhappily, is a fact admitted by those who believe the most stenuously in their transcendental origin. Like the other acquired capacities above referred to, the moral faculty, if not a part of our nature, is a natural outgrowth from it; capable, like them, in a certain small degree, of springing up spontaneously; and susceptible of being brough by cultivation to a high degree of development. Unhappily it is also susceptible, by a sufficient use of external sanctions and the force of early impressions, of being cultivated in almost any direction; so that there is hardly anything so absurd or so mischievous that it may not, by means of these influences, be made to act on the human mind with all the authority of the conscience."
Perhaps Hume and Mill underestimate our innate qualities that determine morality. Perhaps during our millions of years of evolution we developed something more of an innate sense of right and wrong. Somewhere along the line we certainly developed something that allowed us to become the social creatures we are today. Perhaps this was just language, or perhaps it was an innate sort of empathy (or maybe one leads to the other?). Perhaps there is even more than this, perhaps we possess innate sympathy, not just the capacity for such (I doubt this). So what? Does it really hurt either of their theories? Neither of them had the advatage of writing after Darwin or modern genetics, but how would things change if they had? When Hume wrote of how moral sentiments change to accomodate utility and Mill wrote of how morality is taught to our young, they were essentially espousing a rudimentary model of idea progression. An interesting thing about the propogation of ideas is how similar its game theoretic model is to the one for gene selection in evolution. Could not Hume's theory easily be modified to include this?
I don't claim any special knowledge on how much of our moral development is the direct result of evolution and how much is only indirect via society, but I also don't see why, a priori, one should be more important than the other.
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The Curmudgeonly Clerk gives a sound defense for why all judges have to defend laws and systems they think are wrong. All the same, I think those who are concerned about Pryor do have an argument of degree to make, and have a question that Pryor should be made to answer.
An example by anecdote-- last Spring, an interviewer asked me, "You write on your application that you want to be a Federal Judge, but as a Libertarian you must believe the drug war is immoral. So how would you be able to sentence non-violent drug-users to ten, fifteen- year minimum sentences?" I replied with an answer a lot like The Clerk's, about the interest of the rule of law and the fact that every judge had to put aside some of his beliefs. The interviewer shot back, "Well what if the penalty was death?" Immediately, I responded, "If the law imposed the death penalty for non-violent drug possession, it would be time to resign my judgeship."
I don't mean to say that those who think the death penalty is wrong should resign, or that those who think that abortion is murder should resign. Consider, for example, Bradley Smith of the Federal Election Commission, who thinks that the entire Federal Election Commission is unconstitutional and shouldn't exist, but serves on it and upholds his duties just the same. I just mean that lots of people understand that there are delicate differences in degree here, and almost all of us have our breaking points. If I felt as strongly as Pryor does that abortion is murder, I would certainly have to think twice about signing onto a system that granted constitutional protection to a million murders a year.
So the question that we should ask Pryor is not "Don't your views on abortion disqualify you from the bench?" Of course they don't, and we'll even take it as given that Pryor wouldn't act as some sort of rogue Appellate Judge, uselessly trying to convict the millions of womens who have abortions. The question to ask him is "Given your view that abortion is murder, and given that you will be required to hold that over one million murders a year in America are not murders, but Constitutional Rights, why do you want to have this job? Why doesn't the thought of it revolt you?"
There are legitimate answers Pryor could give. He could point out that if evil is to be done it's no worse for him to do than somebody else. Or he could point out that as an appellate judge who serves on a 3-judge panel subject to en banc and Supreme Court review, very few abortion decisions will ever actually rest in his hands. Or he could say that he takes for granted that his battle is a losing one, and wants to do some good on other fronts if he can't win the abortion fight. Or he could say that the thought of it does revolt him, but it is his duty to leader and country to serve when called. Or he could say that he intends to work within the system to try to change the system, to uphold the law as written but encourage the Supreme Court to change the law, to aspire to one day reach the Supreme Court where he can hear abortion cases himself.
There are lots of ways for Pryor to explain himself, but he should have to do it. These reasons are all deeply personal, and given his profound moral opinions on abortion, could offer deep insight into his character and all the rest. Pryor shouldn't be kept off the bench merely because he thinks some small part of existing law is profoundly wrong. I do, too (albeit a different part). So do most people. But he shouldn't be let on the bench until he explains why he thinks the system is worth upholding anyway. I'm sure he has some good reasons, and I, for one, would like to hear them.
UPDATE: Feddie of Southern Appeal retorts:
Given Bill Pryor's exemplary record of enforcing Roe and its progeny as a state attorney general, why should he have to convince anyone that he will continue to uphold the rule of law as a federal appellate judge? What is about Pryor, as opposed to say Judge Michael McConnell (who strongly criticized the Supreme Court's abortion jurisprudence as a law professor and scholar before being confirmed), that warrants heightened scrutiny on the part of the Senate dems? And if Pryor's strong Catholic faith isn't the problem, then what is?
1: I don't think Pryor should have to convince people he will uphold the law-- I'm casting no aspersions on that score. But I do think it's legitimate to ask a candidate for confirmation why he wants the post he's being confirmed for. And I also think that Pryor's beliefs make that question particularly intriguing. Does he hope to legitimately change abortion jurisprudence, to do good in other areas of the law, or something else entirely?
2: Now that Feddie mentions it, I wouldn't mind putting this question to all judicial nominees. It could replace that dumb question about whether or not you'd be able to put your personal beliefs aside and uphold the law. Every nominee says he can do that, and they probably all can. The better question, the more interesting question, maybe even the more revealing questions, is why do you want to put your personal beliefs aside in order to uphold the Constitution instead? So should this question have been asked of Judge McConnell? Sure. Why not?
3: In any case, my motivation for asking this question has nothing to do with his religion. Indeed, I'd completely forgotten Pryor was religious until Feddie mentioned it to me (which may not reflect well on my acuity but surely shows I'm not discriminating on the basis of religion).
4: Finally, note I'm not particularly advocating "heightened scrutiny." I think this question is a good question to ask anybody who disagrees with some of the laws he'd be required to uphold, regardless of whether he's a Catholic, a liberal law professor, both, or neither.
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