Essentially Contested America

There are three reasons why I think Sonia Sotomayor is a good choice to be the next Justice on the United States Supreme Court.  First, her nomination is historic.  If confirmed, Justice Sotomayor will be the first Latina, the first woman of color, and only the third woman to serve on the United States Supreme Court (not to mention the first Supreme Court Justice to grow up in a public housing project!).  Second, Sotomayor is an incredibly accomplished, brilliant woman who is highly qualified for the job.  Third, Judge Sotomayor has the right temperament and philosophy for the Supreme Court today.

It is difficult to overstate the historic significance of President Obama’s choice of a Latina woman as his first nomination to the Supreme Court.   To illustrate my point, consider this:   When I was a student at Yale Law School in the late 1980s, the law students held a one day strike for diversity, calling for diversity in the faculty, student body and law school curriculum.  To protest the fact that at that time Yale had never had a woman of color on the faculty, a classmate of mine created paper effigies of all the faculty members and hung them from the ceiling of the law school.  Hanging from the ceiling was a long row of white men, several white women, and several men of color.  No women of color.  Now imagine if my classmate had done the same with the United States Supreme Court throughout our history.  Out of 115 paper effigies (based on my unofficial count), 111 of them would be white men, two would Black men, and two white women.  Again, no women of color.

The fact that Justice Sotomayor would be the first Latina and the first woman of color ever to serve on the United States Supreme Court, and a person who comes from a low income background, matters because the Supreme Court makes decisions that affect all of our lives, including the 52% of us who are women and the 26% of us who are non-white.  It matters because life experience, including our gender, race and economic backgrounds, affects how all of us view the world, and how judges view the law.  This does not mean that Justice Sotomayor would always rule in favor of women, people of color (regardless of their gender), and poor people, who appear before the Court.  Her record on the lower federal courts makes this abundantly clear.  What it does mean is that Justice Sotomayor would bring a life experience to the Court that would enrich the Court’s consideration of legal issues and make the Court more connected to the impact of its decisions on all of us.

Second, Justice Sotomayor’s qualifications are outstanding.  She graduated at the top of her class from Princeton, one of the nation’s top universities and an incredibly competetive institution.  She excelled as well at Yale Law School, where she served on the Law Review.  Sotomayor has extensive experience as a prosecutor and as a private attorney, and 17 years as a federal judge.  I am incredulous that anyone could argue that Sotomayor lacks the credentials to be a Supreme Court justice.  These critiques simply have no foundation.  Sotomayor’s record speaks for itself.

Finally, I believe that Sotomayor has the right temperament for the Court at this time.  This is where I differ from those liberals who have argued that they would prefer someone with a stronger ideological focus.   By all accounts, Sotomayor is a liberal to moderate person who enjoys engaging legal arguments and listens to all sides before making decisions.  However, she is no shrinking violet and is not likely to be intimidated by the more conservative, more senior members of the Court.  (After all, the woman grew up in a Bronx housing project!!!)

Sotomayor’s record is also so far from the “liberal activist” label that conservative critics are trying to link to her that the label simply won’t stick.  It’s about time that we recognized that (as I have argued in previous columns) the only activism that has occurred in  the United States Supreme Court in the past twenty or so years has been conservative retrenchment against progressive political policies.  If confirmed, Sotomayor will bring strong experience, diversity, and a balanced approach to the law that belies that conservative activism.   As a person with progressive politics who is sick and tired of the activism of the conservative Rehnquist and Roberts Courts, I say, bring Sotomayor on!

A relatively simple moral imperative requires the righteous to criticize their own conduct and when found wanting to admit and atone for the wrongdoing. Indeed, the capacity for moral correction and growth may just be the defining feature of being a person.  It’s certainly a necessary condition for the possibility of ethics. This virtue is rarely, if ever, exemplified by nations. The conventional view is that nations must be strong and confession and atonement threaten national strength. While perhaps true of weak nations, powerful nations strengthen their moral authority by admitting and correcting wrongdoing. Doing so reveals the powerful nation’s willingness to listen and hear the complaints of other nations and more important, the criticism of their own citizens. So why is there such an extreme reaction to President Obama’s releasing the torture memo?  Is the concern over revealing state secrets?  Not likely. The content of the torture memos can be easily discovered by anyone wanting to know their content. (No?) Is it that revealing that the United States would torture–in violation of domestic law and international treaties–weakens our public stature? Well, not exactly; it’s not the revelation that weakens our public stature. Rather, it’s that we would torture in the first place. And that’s the reason why releasing the torture memos and prosecuting those officials who formulated and justified the policy conforms to the moral imperative that’s true of both men and nations. Coming to grips with our own wrongdoing and taking responsibility for altering the mind set and the policies that engendered the wrongdoing is required to regain America’s tarnished spirit. Those who cannot appreciate this elementary moral scheme lay no claim to understanding ethics.

Click here for Paul Krugman’s take on this fundamentally important issue.

Richard Rorty’s death has prompted well-deserved praise and appreciation for a public life well spent. There has been, however, little serious discussion of his political views. This is unfortunate, because politics is the radiating core of his philosophy. Rorty’s project replaces epistemology with politics and knowledge with warranted assertability which is achieved through political debate. More precisely, conversation–deliberative debate designed to achieve unforced inter-subjective agreement–is the goal of Rortyan politics. Similarly, deliberative conversation is the method for talking about politics and culture. By engaging in this multi-layered conversation, we may be able to agree about some critical features of social life. When we agree we achieve provisional closure of debate. When we disagree, the debate must continue until we achieve agreement. If agreement is improbable at the time, we can at least appreciate just what is at stake in our disagreement. Often underlying our disagreement are two incommensurable perspectives. When this occurs we must pause, but then return to “debate” through poetry–non-discursive suasion–which may help us to achieve agreement through edifying vocabularies that convert others to our point of view.

It’s not Rorty’s intention to try to refute the framework of truth, knowledge, reason, and reality, whatever that would be like. He doesn’t seek to demonstrate that this framework is self-contradictory, for example. On the contrary, he engages in kibitzing–a form of jocular coaching–about the usefulness of retaining this framework. Rorty urges us to imagine a new world where people were simply uninterested in philosophical justifications of the judgments that matter most to them. These new worlders are deadly serious about whether these judgments are true, but not about what is meant by “truth.” They seek true judgments, but not true judgments about the nature of truth. In this new world, the word “true” applies simply what other people let us get away with. It is the normative compliment awarded to the judgment that withstands criticism best. The nature of truth, knowledge, reason, and reality–these foundational justifiers–simply don’t turn new worlders on. In a similar fashion, the nature or existence of God leaves these new worlders cold. Instead, they are engaged in building a future dedicated to minimizing cruelty and suffering. They are always ready to argue whether a particular policy reduces cruelty and suffering. But they find it tedious to try to demonstrate why cruelty and suffering should be reduced in the first place. These new worlders have experienced cruelty and suffering themselves and just want them eliminated. Their experiences is all the proof necessary. For them, seeking a demonstration of whether cruelty and suffering should be eliminated is a fool’s errand. We have no guarantees or guarantors in trying to eliminate cruelty and suffering, just our own and others’ experiences, and a conviction that we can do better. Rorty suggests that these new worlders can be us.

Some critics insist that the above story makes Rorty a relativist or worse, a nihilist. Maybe. But perhaps these critics can only envision the framework of either-or: either God and foundational justifiers or relativism and nihilism. These critics should explain why we need to retain this framework. Rorty wants to kibitz long enough for us to take seriously that there are other possibilities. We can seek the framework best suited to achieve our goals. We don’t need guarantees (nor guarantors) that this framework will work. We just continue its promotion by experiencing and acting upon the world through an edifying vocabulary to see if it does.

Most people in contemporary society retain deeply held moral convictions while rarely asking whether these convictions are grounded in God or foundational justifiers. Sure, if challenged, they might attempt to defend their entire system of convictions by appealing to God or the foundational justifiers, but for the lion’s share of their everyday lives, they never give them a thought. Yet, these same people disdain cruelty, refrain from mayhem, and would never contemplate killing their neighbors. Rorty’s point stripped down is simply that God and all the foundational justifiers aren’t necessary for human society to be populated by people who passionately seek to create better opportunities for human liberation, where what’s deemed “better” isn’t completely known in advance.

When a critic asks how can “better” have any significance without tying it to “God” and “truth” Rorty’s might reply as follows: Imagine reading in tomorrow’s newspaper “God is dead and there is no such thing as truth.” Suppose you were convinced by this report. What would you do? Go out and murder your neighbor? Probably not. Instead, you would trudge along as before. Why? Because cruelty and suffering have their own experiential (avoidance) hold over us. Try excising them from your personality and psychological reactions. In short, go forth into the world and see cruelty, and suffering; then imagine no God and no foundational justifiers. Do you think for a moment the horror you feel when confronting, cruelty, and suffering would dissipate? You might be inclined to reply that the intelligibility of this hypothetical depends on the existence of God and the foundational justifiers both of which serve as the basis of morality. Without their existence or at least their intelligibility the hypothetical has no force. Yet, that is precisely the problem. Where Rorty sees a world in which people work together to create a better future, his critics see God and rationality creating and guiding the entire operation. However, if one is authentically moral, if morality is integrated in one’s personality in an Aristotelian fashion, no further grounding is necessary. Relativism and nihilism are not implausible because some remarkable philosopher refuted them. Rather, they are implausible because the hard and soft wiring of human personality invariably rejects them. Natural and environmental factors together contribute to make most people sensitive to cruelty and suffering, though some people ignore the suffering of others by compartmentalizing their experience of it. More tragically, some notorious and infamous cases exist of sadists who enjoy cruelty and suffering. But as it now stands, God and the foundational justifiers have not successfully prevented these moral monsters; so why should Rorty’s proposal be held to a higher standard?

Rorty urges us to imagine a world where our passion for creating a better society does not depend on first rationally demonstrating that we possess a better way, just that it’s worth a try. Of course, in the “wrong” hands, danger might result. But in the “right” hands danger results now. For Rorty, we should continually strive to seek novel ways to cope with life’s vagaries. Imagine if talented undergraduate intellectuals spent less time trying to discover whether God exists or what reason demands and redirected their efforts to figure out how to reduce homelessness, war, brutality, and as so forth. “Devote yourself to first-order problems, not second-order ones” is the pragmatist’s advice. Let’s abandon a framework which requires us to first seek permission from an external authority before we try to follow where commonsense and passion suggest it’s more profitable to go. This search for a better world here and now–a utopian and more liberated America if you will– prompts Rorty to reject the panoply of “authorities” standing in our way.

Summarizing, Rorty embraces conversation–a type of fancy kibitzing–designed to formulate provisional solutions to social problems, but it is a kibitzing that should never end. We’re ready to terminate kibitzing only if we’re ready to give up freedom. The first photograph of Rorty was taken by Suhrkamp Verlag.

For Sadie on her 20th Birthday.

Hannah Arendt, a controversial political theorist, carved herself a permanent residence in the intellectual history of western civilization. Arendt studied with Martin Heidegger and Karl Jaspers and wrote about some of the critical issues of her day. In the March 15th issue of the New York Review of Books, Jeremy Waldon has a wonderful essay on some of her writings as well as a book, Why Arendt Matters by her former student and biographer Elizabeth Young-Bruehl. In “What Would Hannah Say?” Waldron chastises Young-Bruehl for suggesting that we might better understand contemporary controversies if we imagine what Hannah Arendt would say about them. Waldron rightly bristles at the idea of trying to deal with our current challenges by seeking the advice of past luminaries. He candidly expresses profound skepticism about the entire strategy of asking such questions as “What would the Framers do?” or “What would Leo Strauss do?” Waldron rejects such questions because they “become a substitute for thinking for ourselves.” In his view:

Thinking is the “habit of examining whatever comes to pass or to attract attention” in inner dialogue, in a sort of conversation with oneself, where every mental reaction is subject to criticism and in which the inner critic is also held to answer back and forth. . . . [I]t is just possible that we will learn something about how to respond to events–step back, look behind the slogans, listen to the other side, be aware on either side that you may be being lied to. But we will certainly not learn what our response should be [by seeking the "wisdom" contained in Arendt's or anyone's works] The tribute that is owed to the particularity of Arendt’s work is not imitation and it is not the application of some lessons we are supposed to have learned, it is our own resolve to think things through here and now, as she thought about them there and then. (NYRB, 3-15-07, p. 12)

Waldron alerts us to the fact that political reasoning is authentic only when the reasoner proceeds self-critically, including trying to understand his or her opponent’s arguments by sympathetically seeing the world from their perspective. Waldron eschews plumbing the depths of the writings of the great men and women who preceded us rather than putting the spotlight on how we ought to answer the crushing problems of contemporary society. The bottom line of self-criticism is grabbing oneself by the collar and seriously imagining what it would be like to live with oneself after committing some heinous act. One must create an active and permanent inner conversation–the content of conscience–which nurtures self-criticism. Totalitarian societies, if successful, expunge the capacity for this inner conversation. But consumer societies more gently try to achieve the same end.

This inner dialogue is reinforced in a culture that recognizes the importance of conscience and as a result develops informal traditions giving individuals the appropriate space–physical, psychological, and political–to back away temporarily from the hue and cry of political controversy and consult the better angels of their nature. Cultures that encourage shouting, spinning, and lying, stifle this capacity for self-criticism. In these cultures, the object is to win at any cost. There’s no time or inclination to ask whether you can live with yourself if you adopt a certain tactic or if you engage in certain conduct. When individuals choose to win at any cost, moral, political, and cultural conflicts lose their integrity. Even the winners end up with little more than pyrrhic victories. Contemporary American culture is paradigmatic of a consumer society that while promoting talking, suppresses reflective understanding. The creators of popular culture as well as our political leaders, by their own words and examples, seem intent on denying us the space to develop our own inner conversation. However, the cost of suppressing this conversation is exorbitant and we’re paying the price now.

I may have blurred the line between Waldron’s conception of self-criticism and mine. There’s an easy remedy, however. Read his essay for yourself and then decide.