The Decemberists, "Calamity Song"

>> Wednesday, April 18, 2012

I don't really have anything much to say here at the blog. I feel like there's a dearth of material here, partly because there's just not a helluva lot I've thought worth talking about of late. I dunno, I even considered dropping to a different schedule, but I'm worried going to a MWF or somesuch would get away from one of the personal purposes of this blog, which is to come here every day and put something up, preferably something where I try to write, dammit.

So I decided arbitrarily to post an embed of something from The Decemberists. And how did I miss this when it came out: for "Calamity Song", The Decemberists filmed a chapter from Infinite Jest, a novel by one of my very favorite writers, David Foster Wallace. Much of Jest is set in a tennis academy (DFW was a serious competitive player up until he hit his wall potential-wise around the time he went to college, and he remained fairly obsessed with the sport through the remainder of his life), and one of the favored pastimes of the school's troubled adolescents is a simulation of global thermonuclear war, "Eschaton". There's an excellent breakdown of the video and the chapter here, from Marjorie Foley if you want to know more; it's been long enough since I read IJ that I couldn't possibly give it the same effort. I'd perhaps just mention that Eschaton is, along with the radical Québécois wheelchair assassins, one of the really signature inventions of the book. (Well, there's also the way all the years are corporate subsidies much like stadiums with their naming rights, e.g. instead of a number-of-years-since-Jesus you might have "The Year Of The Depend Adult Undergarment", and there's all the Hamlet riffs... well, it really is a fun book, actually, though even the paperback is massive enough to make a really righteous doorstop.)


timb111 Thursday, April 19, 2012 at 12:57:00 PM EDT  

Remember your "Ask Eric anything" post. I thought generated some really good blogs. Of course it made a lot of work for you, but probably no more than creating a floating tank nun story.

Try this for a start: Currently it seems as if the US Supreme Court often rules along partisan lines. Should that be changed? What needs to change to fix that?

Eric Thursday, April 19, 2012 at 4:22:00 PM EDT  

Timb, I considered running a "Ask Standing On The Shoulders Of Giant Midgets" week, and may do that sometime soon. Actually, what would help make that decision would be whether I felt the interest was there: if anyone would like me to do an "Ask" feature again, please let me know!

Eric Thursday, April 19, 2012 at 4:22:00 PM EDT  

As for your question, Timb, I will give a brief answer here: the Supreme Court of the United States has always been an ostensibly non-partisan body that historically has often acted in a partisan manner, going back to the Court's earliest days (there was a political angle to Marbury v. Madison, the case that established judicial review in the first place and made the SCOTUS what it has been for two hundred years). What has changed, I think, is that the collective illusion we've all tried to maintain that the SCOTUS is ostensibly non-partisan has withered since Bush v. Gore and I don't think there's any way to change that.

I mean, I'm not even sure where to begin. One way would be for the Justices to agree there's a problem and try to go back to the Court's traditional rule of being a Constitutional umpire calling balls and strikes, but I don't think you have an agreement among the Justices of any impropriety. Another way to do it in a generation or so would be to change the nominations process, but that requires getting the United States Senate and the President to come to some sort of agreement about politics. Or you could just come up with a new Constitution--good luck with that.

Part of the problem here, too, is defining "partisan". What I mean is, there's a good case you could make that there's absolutely nothing wrong with a President (acting with the advice and consent of the Senate) a "neutral" Justice who just happens to agree with the President's reading of the Constitution; now, is that "partisan" or not? Turning it around to ask it another way, why would a President who believes, say for instance, that the Fourteenth Amendment creates a "penumbra of rights" not explicitly enumerated in the original Constitution ever appoint a strict originalist no matter how qualified? The originalist might be a fair jurist, a knowledgeable scholar, even a friend or (believe it or not) even a personal supporter of the President, but at the end of the day this President and this nominee each believes the other is essentially wrong about how they interpret the Constitution, and the President might reasonably decide the originalist is abundantly qualified to fill some role in public service but that his basic error in reading the Constitution disqualifies him from appointment.

Except this scenario is unlikely, precisely because these perspectives on reading the Constitution are no longer merely scholarly or academic but have become central to how the parties identify themselves, particularly with regard to originalism being a basic plank of what the Republicans claim to stand for (whether they practice what they preach is a whole 'nother ball o' string).

So if a President nominates someone who happens to agree with him, is he nominating a partisan or is he just picking someone he thinks is a really smart guy? Because there's not actually any way to distinguish these things.

The bottom line, anyway, is that the SCOTUS partisan issue is hardwired into the way Justices are selected and into the way human beings tend to behave.


Eric Thursday, April 19, 2012 at 4:23:00 PM EDT  


Only I should point out there's at least one more wrinkle: which is that there's an argument that the partisanship in the SCOTUS is, at least in healthier political times, a feature and not a bug. The fact that Justices are appointed for life and therefore an incoming President inherits a Court filled with people appointed by previous Presidents and will ultimately be appointing (if anyone) people who future Presidents will inherit means the SCOTUS in inherently a conservative institution, not in an ideological sense but in the adjectival: the people who will judge whether a Congress and President have gone too far or not will inevitably be people who came to their seats during prior administrations and sessions, and who will presumably reflect the views of ten or twenty (or more) years ago. In this regard, the SCOTUS is often seen as a kind of emergency brake or rein on governance, which is either a good thing or a bad thing depending on your point-of-view. And maybe it's something that shouldn't be changed, however reactionary or reactive a Court ends up being, however much a Court may be impeding progress. It's not necessarily bad to have a check or balance, or some kind of safety valve to keep things from flying off the handle--except, of course, when it is.

Mama Karen Friday, April 20, 2012 at 2:40:00 PM EDT  

I love your take on the SCOTUS debate! I would be all for an "ask" week/day! I think the one thing missing from your comment on the SCOTUS is that regular old judges (for lack of a more proper term..."lower" judges, I suppose) are legally bound to recuse themselves and generally maintain a more non-biased approach (there's a name for this that I can't remember right now). SCOTUS judges are not legally bound by any such rule. Which is why you have Justices attending backyard soirees of political figures and then ruling on cases to which such figures are strongly tied.

Eric Friday, April 20, 2012 at 4:25:00 PM EDT  

Mama Karen: the Judicial recusal situation isn't quite that simple. In North Carolina, for instance, the legislature empowers the state Supreme Court to establish a judicial code of ethics and creates a Judicial Standards Commission to reprimand, censure, suspend or remove judges for willful misconduct (including conduct violating the code of ethics). Beyond that, judicial ethics become self-enforcing: i.e. a judge determines for him or herself whether he or she has a conflict of interest, and if a refusal to recuse leads to a complaint, the standards committee reviews the matter and may agree the judge should have recused him/herself and what to do about it (which may be as little as a stern letter or as much as a removal from office, depending).

On the Federal level, Congress created the Conference Of Senior Circuit Judges (now called the Judicial Conference Of The United States), and this body essentially polices itself with a code of conduct that applies to various judges below the Appellate and SCOTUS levels.

In a sense that's "legally bound", but as a practical matter, there's obviously an enforceability issue.

There's nothing preventing the SCOTUS from establishing their own code and following it, they just don't want to. And even if they did, there's would be Constitutional issues with trying to enforce it.

Which, agreed, isn't a good situation at all. It could nevertheless be alleviated if Justices had enough interest in the Court as an institution to recognize that appearances of impropriety can be as bad as (or, in some cases, worse than) actual impropriety. I.e. you wouldn't need a formal code if every Justice could be depended on to reliably say, "You know, now that you mention this appearance of conflict-of-interest, I have to say it would reflect well on our system of governance if I sat this one out."

Yeah, I'm not holding my breath, either.

One failure of our Constitutional system may be that in spite of efforts to take account of human vices and play them off against each other, it still depends too greatly on being applied, interpreted and executed by statesmen.

timb111 Sunday, April 22, 2012 at 11:46:00 AM EDT  

More complex than I thought, but it usually is. Thanks for an excellent answer.

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