Towards A Good Samaritan World

Tuesday, October 04, 2005

CLEVER LIBERTARIANS AND JUSTICE MIERS

I published another piece at Tech Central Station yesterday: "Why is Government Getting So Big?" Answer: "too-clever-by-half libertarians who vote Democrat deserve much of the blame." In retrospect, there might have been better things to do with my time than write this piece, but I still think the central point of the piece needed delivering, which is that 1) the two-party system, with both parties going for votes in the center, is always frustrating for the base but creates a mostly beneficent equilibrium, with one ironic result that government is bigger when the right is in power, and smaller when the left is in power, not because the parties are hypocrites but because they define "the center" jointly and then the voters elect the right or the left depending on whether the center as defined by the political class is to the right or left of the actual mid-point of voters' preferences, 2) a libertarian who votes Democrat does nothing but encourage the political class to move its guess of where the voters' center is further to the left, and thus make the government bigger.

This is really only an argument against part of the libertarian argument for voting Democrat. If you're a libertarian who cares more about gay marriage or civil liberties than about lower taxes and spending, my argument is in no way responsive to your concerns. I present a model of a country where there is only one political issue, the size of government, but really there are a lot of political issues, I know that.

But it's nice to get the model out there. It could be even be considered slightly humorous, whimsically introducing the "imaginary Democratic Republic of Ruritania." The nice thing about having a big audience like the one at Tech Central Station is that, while I except that 95% of the readers did not find the piece remotely funny, I'll bet there's a quirky few percent out there who couldn't contain their laughter as they looked at the plight of those zany Ruritanian voters... Philosophical and economic models do have an occasional capacity to amuse. It's a bit like those mirrors you sometimes see, that distort you and make you look fat or thin or up-side-down: they're so inaccurate, and yet they contain these strange grains of truth that put a smile on your face.

About the Miers nomination:

1) I was really hoping it would be Michael McConnell, so I was really saddened by the nomination.

2) I don't like it that she's a long-time friend of Bush's, for the same reason that I didn't like it that the son of a former president got nominated to be president: The politics of a republic as great as America should be more meritocratic than those practices imply.

3) If I were a woman, I'd be offended by the politics that require a woman to be nominated, since the lesson it teaches is that women are inherently less capable than men and we have to do favors for them to get them into high office.

4) The fact that Miers is 60-- and thus her life tenure will be shorter than a younger person's might-- is a good thing. It's perverse that presidents deliberately name young people to the Supreme Court. And Bush is expressing confidence in the medium-term prospects of the Republicans: he's saying that he expects Republicans to be in power in 10, 15 or 20 years when Miers retires.

5) On substance issues, I'm on the Republicans' side with respect to judges and law, but on process issues, I'm more sympathetic to Democrats. The need for silence about judges' views before they are seated on the court is beyond perverse. Of course, justices shouldn't pre-judge cases in Senate hearings; but we should look for judges with long and distinguished records so that we can discern their judicial philosophies. I also tend to like the idea of a judicial filibuster: if the public wants conservative judges that badly, let them elect 60 Republicans. So to the extent that Miers' nomination is a canny response to the peculiarities of the process issues, that makes me dislike it more. I'd rather see a big fight, regardless of how it turned out, just for the sake of overturning the perverse process principle that you have to nominate unknowns.

6) On Roe v. Wade, this might be a shrewd move, if Bush knows for certain that Miers would overturn Roe. That's a very strong argument in favor of the nomination. I take the small-d democratic view on Roe: abortion should be up to the people, not decided over the people's heads by judicial fiat. Appointing one or two hacks to the Supreme Court is a price worth paying for overturning that disastrous case. (Abortion would mostly stay legal anyway if it were up to the states, but an undemocratic landmark would be consigned to the dustbin of history.)

7) Miers is an evangelical Christian. I don't know if any other justices are, but certainly this kind of person is extremely under-represented in academic and I believe in the judiciary. This kind of "diversity" is a stronger point in Miers' favor than the fact that she is a woman.

I'm not thrilled by the nomination, but whatever, it might work out for the best.

2 Comments:

  • Re: The Miers' Nomination.

    I find myself, once again, agreeing with most of your points. In this case, however, I suspect that I disagree your at least part of point 5.

    While there are a great many issues on which I have stong feelings, a nominee's views on those issues are never my first concern. I'd like more than anything to see nominees who would throw those sorts of questions back into the Senators' faces.

    "But Senator, if confirmed to the Court, deciding that question wouldn't be part of my job. My job would be to determine whether the laws you and your colleagues enact on those issues are consistent with the specific, enumerated powers you're granted by the Constitution and with the explicit prohibitions and requirements imposed on by other parts of the Constitution. Within those constraints, the people elect you to decide those issues."

    I'd like to hear about a nominee's view of the breadth (and limits, if any) of the Interstate Commerce Clause. I'd like to hear a clear statement on a nominee's interpretation of the proper interpretation and application of the 9th and 10th Amendments. I'd love to hear a clear exposition of whether the 14th Amendment really should require states to respect some parts of the Bill of Rights, but not others, and if so, why.

    Unfortunately, I don't get to hear that. John Lott has noted that seemingly more intelligent and accomplished nominees are much more likely to face strong opposition today than nominees with weaker credentials. It also seems that those with a better understanding of the intended job description are unlikely to be nominated and even less likely to be confirmed. As a result, I'm forced to worry about what a nominee's view of tax policy, abortion, immigration policy, gun control, the war on drugs and a hundred other things are. For some reason I can't understand, my copy of the Constitution seems not to include to part about Supreme Court Justices being philosopher-kings, which appears to be fundamental to understanding the actual confirmation process.

    By Anonymous Strophyx, at 9:17 PM  

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