Though Cowards Flinch

The TUC is to consider a motion that denounces the use of high heels as part of a dress code, as a result of the effect it can have on women’s feet. This has resulted in one Jenni Russell denouncing the Society of Chiropodists and Podiatrists, proposers of the motion, as joyless utilitarians who give the Left a bad name. One would be forgiven for thinking that this is the sort of thing which might come straight from the pages of the Daily Mail. Well guess what? It does.

As one expects, Daily Mail article is laden with distortion, such as claiming that the TUC want to see heels banned because they are demeaning to women, and because they are sexist. As the above linked-to press release from the Society of Chiropodists and Podiatrists (y’know, the people we pay to look after our feet) outlines, they simply want the TUC to demand that employers look into the health effects of high heels as part of a mandatory dress code. Hardly militant feminism.

The liberal intelligentsia seem to have bought this distortion hook-line and sinker. The real kicker, of course, is that this is exactly the same nonsense that was trotted out last year, when the TUC released guidelines on safe footwear as a result of studies into the health effects of high heels and other stylish but painful footwear. Irony of ironies, though, the Daily Mail itself led the charge for safer footwear last year, with an article entitled “High heeled horrors”.

Presumably last year there was less capital to be made from denouncing the TUC as a PC, loony Left group of men intent on diluting life of all fun.

I would now like to take the opportunity to issue my own health warning. Being a part of the liberal intelligentsia is bad for your health. As has been demonstrated by Jenni Russell on Comment is Free, and will no doubt be repeated throughout the interwebz by everyone who thinks the Left really do idolize unisex grey jumpsuits and universal buzzcuts, the liberal intelligentsia has no credibility, originality or even basic research skills. This is bad for their health because, if they keep publishing such guff, and I meet them, I’m going to kill them.

There seems to be a lot of chat about the idea of open primaries, in the aftermath of the Conservative experiment in Totnes. Sixteen thousand voters, not Tory Party members, wrote in to the local Conservative Association to pick the candidate which the Tories will be standing in Totnes at the next election. Naturally there is the usual gushing crap in the media about it being the opening of a new era for British politics, an important precedent, blah blah blah, but I personally don’t see what everyone is getting excited about. Needless to say, I’m dead set against Open Primaries.

First of all, as Luke Akehurst says, no representation without taxation. Why should I pay Labour Party dues and be an activist with the Labour Party if every joe blogs on the street can potentially choose who I have to support, as an activist? The basic answer is, I shouldn’t have to. I’m involved in politics because I believe in what I do, and if other people who are as committed as I am choose someone to stand for election that I disagree with, I’ll support it. Simply voting in a primary election is not a fair indicator of commitment – but then, where I am concerned, neither is merely paying Party dues.

Secondly, too many people are getting carried away with this notion of Open Primaries as a way to engage people. I suspect if we cut away the bullshit that political activists are really slavering at the thought that a primary system might give them a moral advantage over their opponents. As is admitted at ConservativeHome, that will disappear when other parties get in on the act. There are other reasons which may cause people to support Open Primaries that do not measure up to the flowery pronouncements on a revitalized democracy that everyone’s making.

From the perspective of the Labour Party heirarchy, there are an enormous number of constituencies dwindling sharply in number. It would be an attractive prospect, no doubt, to counterbalance those failing numbers with a state-funded process whereby every constituent gets a mailshot per Labour hopeful (because Labour and the Lib-Dems certainly couldn’t afford the £40,000 expense themselves). This would reduce the role of the local constituency party to ensuring that there were no catfights. Hopefuls could be expected to recruit their own supporters, making irrelevant the decline in the numbers of those people active beyond elections.

What this could make very relevant are special interest groups. With hopefuls casting around for an activist base, the same way they tend to do in the United States, the churches and other established groups with local arms or large memberships might become very important. To secure endorsements and activists, hopefuls seeking a primary nomination may make deals and promises to groups that have nothing to do with Labour and which operate far outside the simple equality of individuals joining a political party to have their individual say in something they believe in.

In a system based on the accumulation of capital, well-established groups such as the organised religions, the trades unions, chambers of commerce and so on will have an advantage over the man on the street-cum-party activist. It is hardly a triumph of democracy to escape the supremacy of the NEC only to find ourselves (as individual activists) virtually powerless against the accumulated resources of groups which aren’t accountable even in the vague sense that the NEC and Party leadership is. Well, nominally anyway.

This isn’t even my major objection. By appearing to escape the decline of mass politics, the focus being transferred from the number of Party members to the number of people registered as affiliates of a certain Party, we excuse ourselves the responsibility of building a mass democratic organisation. Whether you’re a Communist or a Social Democrat, that organisation – formulated as a response to the critiques of capitalism which opposed privilege in all guises – was the vehicle which would carry through change in the interests of its members: the working class.

Thirdly, it should be telling that quite a number of key figures and groups  have backed the call for Open Primaries. Tessa Jowell and Progress to name two. The Open Primary system clearly represents no challenge to the current Party establishment. Indeed, with the farce of Partnership in Power and the National Policy Forum, it seems just one more way to dilute whatever influence the average member of the Labour Party has over the Party that he or she joined and campaigns for.

Complaints aside, I don’t think the open primary system will ever be implemented. Whenever the current crisis of confidence has died down, things will slowly return to their previous condition – unless we can inspire a massive popular intervention that would render the debate on open primaries irrelevant in any case. What irks me the most about the issue is simply that so many politicians are talking like root and branch reform is coming soon to a theatre near us. It isn’t; even with open primaries, democracy is still just a means to pick the lesser of two bastards.

That is what needs to change, and it is precisely what will not change whilst we let the commentariat prat around the edges of what needs to be done: sorting out unemployment, poverty and the devolution of real power to the representative structures of local government. Not DC’s reduction of people to passive consumers or preposterous policies on housing, still tied up in red tape despite an increasing number of repossessions and homelessness, and not the Hazel Blears version either. Byensuring that people have a roof over their heads and are gainfully employed, and giving them a chance to actually have an effect on their local environs, national democracy will take care of itself.

I have heard that Professor Cohen, renowned Marxist theorist, has died this morning of a stroke. Virtual Stoa has some touching sentiments. Though I never studied directly under the great man, his books on the Marxist theory of history and contrasting John Rawls with Karl Marx were seminal works that helped me to clarify what I thought (even if mostly in opposition). There are few greater gifts. May he be long remembered.

I am travelling home to Canterbury this afternoon, but when normal blogging resumes, I shall find time to write up a more fitting review of some of Professor Cohen’s work, especially as part of the September Group (which was colloquially titled “Non Bullshit Marxism”).

Beyond that, I’ve already planned out a series of other ‘big’ articles: Lenin on education, about whether or not embryonic totalitarianism is inherent to the revolutionary project; Zizek and understanding racism, about the relevance of cultural studies to political practice; a review of Ayn Rand’s “Atlas Shrugged” and a review of “Ragged Trousered Philanthropists”. I’ve also been slacking on the forays into Gramsci that I promised, so expect some of that.

They will all be interspersed between articles on news, general hypocrisy, the irritations of celebrity culture and hopefully Jeff will continue what looks to be an expanding series on the politics surrounding the US Supreme Court.

As the drama of Judge Sotomayor’s Senate Judiciary Committee hearings draw to a close, with the confident anticipation of just about everyone (including Republican Senators) of a speedy floor vote, the question on a SCOTUS (Supreme Court of the United States) watcher’s mind should be: “Who’s next?”

Dave asked me in the comments of my last post who I would have rather seen nominated, and/or how to escape from the legal formalism of the “umpire” model of judicial decision-making in the public mind.

Before one can begin to answer those questions, I think we need to step back and observe the big picture of the Federal Judiciary and the Supreme Court, in order to determine who could be nominated.

The Court

President Obama will most likely get at least one more Supreme Court appointment, even if he only lasts until January of 2013.  While Justice Stevens, the most senior Justice on the Court has shown no signs of slowing or any inclination to step down, the man will be 93 in three years.  Should Justice Stevens continue to serve beyond the terminus of Obama’s first term, he would soon tie Justice William O’Douglass as the longest service Justice in history.  As I said in my previous post, if Obama wins another term, by 2016, Justice Stevens will be 96, Scalia will be 80, Kennedy 80, Ginsburg 83, and Breyer 77.

Justice Stevens will be 93 in 2013

The Next Justice

“From whence do Supreme Court Justices come?” should be our next question.  Every Justice after O’Connor has been a member of the Federal Judiciary prior to being appointed to the Court, and indeed, Judge Sotomayor served on the Second Circuit Court of Appeals for years, so President Obama did not buck the trend.  More on the Circuit Courts later.

Besides the Federal Judiciary, it’s well known that Obama is friendly with certain law professors, having been one himself, such as Professor Cass Sunstein at Harvard, who Obama has already appointed to a White House position within the OMB (Office of Management and Budget).  Having been a Professor, perhaps Obama will not be averse to appointing one.  Obama is also friendly with former Clinton DOJ Civil Rights Division head Deval Patrick, now the Governor of Massachusetts.  Given that His Excellency (yes, we still call the Governor that in the Commonwealth) is not too well-liked in Massachusetts these days, it seems that Patrick’s political career might be over, unless Obama saves him with an appointment.  For Sotomayor’s slot, names such as Jennifer Granholm (Governor of Michigan) were also suggested, and she may well remain on a short list.

I’m putting my bets on another Federal Judge.  They have an exhaustive paper trail, a proven track record, and already went through the confirmation once before, which is always a plus.  And that takes us too…

The Circuit Courts take appeals from different geographic areas

The Circuit Courts of Appeals

Let’s play a bit of a numbers game, shall we?

There are thirteen Circuit Courts of Appeals in the United States, eleven that take appeals from the States, one for the District of Columbia and one that takes appeals from certain specialized Federal Courts like the Tax Trade and Trade Courts.  There are 179 Judgeships on the Courts of Appeals, with 18 of those vacant.  As Eric Haren’s article on law.com rightly pointed out, Republican appointees have an 88-61 advantage (that’s counting active judges, incidentally) over Democratic appointees on the Circuit Courts.  That’s not to say Obama could not pick a Republican; Sotomayor was, after all, appointed to her District Judgeship by President George H. W. Bush (though appointed to the 2nd Circuit by Bill Clinton, if you’re keeping score), but in all likelihood, it will be a Judge appointed by a Democrat.

The Republican advantage over Democratic appointees makes sense.  Democrats have only held the Presidency for 12 years out of the last 40, and for 6 of Clinton’s 8 years, had a hostile Republican Senate beginning with 52 seats in 1994, expanding to 53 in 1996, to 55 in 1998.

Again, playing the numbers game, by my count, there are 58 non-senior-status sitting Circuit Judges who were Clinton appointees.  I’m discounting the 7 remaining Carter appointees as most likely being too old to be considered for a SCOTUS slot, and taking it as a given that none of LBJ’s remaining appointees with senior status would be appointed either.  Of Clinton’s remaining, non-senior status appointees, only 13 (by my count, again) are under 60 right now.  None are under 50 (for pretty obvious reasons).

So it seems to me that if Obama has to appoint another Justice of the Supreme Court, and that it wasn’t going to be in the next year or two, it will not be from a currently sitting Circuit Court Judge, but from someone whom he appoints to one of the 18 present vacancies (and most likely more vacancies to come as Judges resign, assume senior status, etc., etc.).

So, for the avid Court watchers out there, after the Sotomayor fervor settles down, let’s watch and see who Obama nominates to the Circuit Courts.

p.s. I know I didn’t answer your question, Dave, but that’s for another post -j

The ritual that is the modern Senate Judiciary Committee confirmation having come to a close, it appears all but certain that Sonia Maria Sotomayor will be the next Associate Justice of the United States Supreme Court. With every Justice appointed to the bench, there are both long term and short term victories and goals to consider. So, who fulfilled theirs?

Obama – President Obama, as he appears to have structured his goals (and that’s important) definitely won.  What were his goals?  It seems very clear that Mr. Obama’s goals are to pass his healthcare legislation.  All other matters, even Supreme Court nominees are secondary.  His pick of Sotomayor, who appears to be in line with his moderate, pragmatic constitutional views, is doubly a better choice for him because of her ease of confirmation.  Avoiding what could be a protracted Senate battle early in his term, when he wants to pass healthcare bill, he gets a Justice with a quick confirmation, and hopefully little distraction from healthcare.

By the standards President Obama has set, he won on both counts.

The Democratic Party

I think the Democratic Party’s legal goals are a little more long-term than Obama’s (yes, yes, healthcare is a long-term goal), in that the Democratic Party has struggled to find a clear and articulate voice for its legal ideology/method/whatever. Scalia’s originalism and his wry quips appeal more popularly than the more bookish Justices who have tried to come up with a similar legal viewpoint (I’m thinking of you, Justice Breyer’s Active Liberty). 

And although originalism has perhaps morphed to “original understanding” from “original intent of the Founders,” it has bred a vibrant ideological base in the Federalist society.

From Chief Justice Roberts’s and Justice Alito’s confirmation hearings, much of the Democratic Party appears to have embraced this “umpire” model of judicial decision-making — the umpire calls balls and strikes.  While idealistic, it’s clearly at best an inapt metaphor.  Perhaps a better metaphor would be it’s like having a couple hundred umpires, who watch tens of thousands of pitches a year, where three of them watch a pitch at the same time, and instead of calling “ball” or “strike” write dozens of pages of decisions, concurrences and dissents, a few decisions of which are then reviewed by a larger panel of umpires, who similarly write, or perhaps are directly reviewed by a panel of nine umpires, who get the final say. And that’s not even getting involved in District Courts or State systems (I could see having fun with the metaphor of baseball played 50 different odd ways, where it’s all “baseball” in the end, but with slightly different rules, but I digress).

Baseball would be a lot more fun that way.

From the beginning of legal realism in the early part of the 20th century, many political scientists and legal scholars alike have recognized that something other than legal formalism guides judicial decision-making.  Democrats had the opportunity, as has been pointed out fantastically by Dahlia Lithwick, to articulate a coherent legal theory.  They didn’t.  And many of them accepted this idealistic formalism of Chief Justice Roberts.

If the goal of the Democrats was to nominate a William Brennan, Jr. or a Thurgood Marshall, and reject the “umpire” theory of legal formalism, then they failed.  If their goal was as Obama’s, to nominate a moderate and get healthcare legislation passed, then they won.

The Republican Party

The Republican Party got a lot from this round, but they may have lost the next battle.

As much as this was a battle over Sotomayor, it was far more a battle over the next Supreme Court nominee.   Obama may get another nominee during his present Presidential term, with Justice Stevens at 89.  If he gets another term, by 2016, Justice Stevens will be 96, Scalia will be 80, Kennedy 80, Ginsburg 83, and Breyer 77.

Republicans won the battle of how to frame a nominee, as Sotomayor characterized the act of rendering a judicial decision with the same formalism of Chief Justice Roberts.

But having won, most of them look like they’re going to vote against her.  It’s a poor political tactic.  Obama nominated a moderate, who followed Roberts’s “umpire” understanding of judicial decision-making.  By voting against Judge Sotomayor, Senate Republicans are handing the President a powerful weapon — by voting against a moderate, Obama can say, with justification, that Senate republicans will vote against anyone he nominates.  Next time around, if Obama chose to spend some more political capital and nominated someone who appeared less moderate, and Republicans kicked up a stink, Obama could state that Republicans would vote against anyone, and that this Judge was no less moderate than Sotomayor, presuming that that nominee kow-towed to the “umpire” style of decision-making during confirmation hearings.  Now if that Judge expounded on their political beliefs a la Bork (okay, maybe not a la Bork, but more than Sotomayor did), it could be a different story.

Now, many Republicans have said they support Judge Sotomayor, think she is an able jurist, etc., etc., even though they are voting against her, so it’s not a terribly potent weapon they are handing Obama, but it is a weapon.  And for those Senators who hope to win elections in constituencies with large Hispanic populations (I’m looking at you, Senators Kyl (R-Arizona) and Cornyn (R-Texas)), their vote is going to hurt them, no matter how many supportive things they say.

Let me tell you a story. A newspaper correspondent was sitting at his desk one day. He couldn’t think of what to write. Flicking through the internet, he came across the story of the Bridgend suicides. “Young people committing suicide?” he thought, “Who was to blame?” So the newspaper hack diligently compiled a list of things the children of ages 13-17 had in common, to see if he could solve the mystery of why these kids killed themselves.

“They’re all Welsh!” he exclaimed. But the sub-editor thought that sort of racism too obvious. “They’re all poor and probably claim benefits!” But the editor told him answers like that get sent to the Sun. Finally the newspaper correspondent hit upon it as he sat wasting his day, dejected from his failure. Placing a winning Scrabble-tile in his Facebook game, he yelled “Eureka!” Between brain and mouth the exclamation translated, “We’ll blame social networking sites!”

Thus a cultural meme was born.

This probably isn’t the story of how MySpace and Facebook began getting blamed for the ills of the world, but it’s certainly believable. The credibility of the media on the subject isn’t exactly helped by publishing interviews like this scaremongering bucket of filth from Vincent Nichols, recently installed Archbishop of Westminster. In the Telegraph, naturally, because what middle England really needs right now is an injection of more ignorance.

Nichols touches on the risk of suicide as a result of decreased social cohesion and losing face-to-face skills. Dr Himanshu Tyagi did a similar stand-up number to the Royal College of Psychiatrists last year, for which the RCP sent out in a panic stricken press release. Except there’s no evidence for any of this. There are studies to show that social capital can be built up by using social networking sites and that the sites reaffirm existing friendship.

The worst that can be said is that negative feedback on social networking sites can lower self-esteem. Which is just as true of real life, and probably more prevalent there given that on the internet, you can choose to hang out with those of similar interests, status and needs. I am no expert but surely that decreases the chances of bullying due to difference and increases the chances of integration? (H/t: Mind Hack).

I have no wish to go off on a rant about the Catholic Church, but I’m going to anyway.  In his inaugural address, Nichols promptly attacked secularism and secularists, though that was positively tame compared to what I heard the man say in an interview he gave to Radio 4 shortly before he was inaugurated. His point was that we atheists and secularists undermine social cohesion. Now he is blaming Facebook as well.

Surely Nichols is playing directly into the hands of people like Richard Dawkins, whom he affects to despise so? In his Enemies of Reason programme (which I didn’t watch – why listen to smug academics get preachy when I can do so myself?) Dawkins pointed out that reason and evidence-based ideas are needed, not religion. Turns out Dawkins isn’t too far off the mark, at least with the new Archbishop of Westminster.

In his interview the man doesn’t even cite any evidence to suggest why he thinks that Facebook and Myspace are to blame for failing social cohesion. Never mind that falling social capital can be traced to the 1950s, when there weren’t social networking sites to trouble simple religious consciences.

To be fair to Nichols, Facebook isn’t the only subject of the interview. It ranges over the mercenary behaviour of professional footballers, the problems of assisted suicide and the need for the government to support the family. The media narrative has ignored these – and that might seem a mistake, because it gives Nichols’ interview a less rounded character – but the conclusions to be drawn from Nichols’ comments aren’t pleasant.

Blaming failing social cohesion on Facebook and MySpace excuses the rest of us from doing anything about it. Much like demanding tax breaks and financial support for the traditional family, it’s an opiate on which the judgmental can get high and forget that they have a responsibility to society beyond being nodding donkeys. It’s telling that Nichols’ dwells rather on criticizing than suggesting schemes that will get kids out of their houses.

This attitude is typical of the Catholic Church: attack, attack, attack but forget that actually the Church is an organisation that can call on millions of pounds that could be put to use solving problems instead of complaining about them, and with congregants who could be doing more than turning up to a comfortable mass one day a week in their Sunday best. But it doesn’t seem like faith can exist without being preposterously ostentatious.

If Slavoj Zizek is right, and there is a salvageable, radical core to Christianity, then I don’t think it lies within the Catholic Church. Pandering to an innate conservatism rather than representing and organising the four million Catholics in Britain to fight against poverty, hunger, disease and ignorance falls far short of what could be achieved but never will: people like Vincent Nichols are not possessed of a deep enough critique of modernity.

Not when in an age of increasing inequity, increasing exploitation and the disappearance of leisure centres and urban common spaces, the Archbishop of Westminster wants to blame a declining commonality on Facebook.