Thoughts on policy, history, faith, baseball when I get around to it, waterfowl, and life in general by a junior attorney who'd much rather have Jonah Goldberg's job. Or possibly Darin Erstad's.

 
The incomparable Lileks, reviewing "The Matrix Revolutions," dismantles a commentator who, in the process of providing yet another tedious layer of metaphysics to the generally-enjoyable "Matrix" trilogy, argues that the only way for there to be peace is for no one to believe in anything.

That's not a new idea, of course; remember Lennon's "Imagine."

Leaving aside the question of whether the abolition of all deeply-held beliefs would lead to pax universalis (wouldn't we still scrap over material goods, as primates have been doing since we came down from the trees?), this seems like an unworthy shortcut to a laudable goal. It reminds me of a line from Churchill's "History of the English-Speaking Peoples", written of Charles II: "He walked to the uplands of tolerance by the easy paths of indifference."

Tolerance produced by apathy is no virtue, any more than is sobriety produced by distaste for alcohol. Or for that matter, sobriety enforced by authority. To be morally praiseworthy, an act must be freely chosen, and its attractive alternative rejected. There's no glory in being "tolerant" when you just don't give a rip. Tolerance is believing something strongly yourself, and respecting others' right to believe just as strongly in its opposite. posted by Thomas at 12:33 PM

 
SCHIAVO FEEDING TUBE:

The LA Times recently published a couple of letters ranting (literally, pretty much -- they were nasty) about how awful it was that right-wing pro-life zealots had gotten Terri Schiavo's feeding tube replaced. I think we're more divided that most of us realize; if people see this situation as a simple battle between the "right to die" and absolutist religious insistence that life, or anything like it, must be protected, their anger at the other side has completely blinded them.

Look -- we're not dealing with a case where a woman is brain-dead, with no hope of recovery. Nor is it a case where her clearly-expressed wishes not to be kept alive artificially are being disregarded. What we have here is a classic conflict of interest, as well as a legitimate question of what evidentiary standards are required to be satisfied before making a grave and irrevocable decision.

The facts are simple: Terri Schiavo may never come out of her persistent vegetative state, or maybe she will. In addition, she may have at one time expressed a wish not to be kept alive with a feeding tube, or maybe she didn't.

With respect to the first uncertainty, it's undisputed that people do occasionally come out of persistent vegetative states. In fact, some people thought to be in such states are actually conscious, but unable to communicate or move. Such cases may be rare, but not unheard of. As someone else pointed out today, it's odd that the Left should be so concerned about the possibility that an innocent man could be executed, and outright dismissive of the possibility that a conscious, living woman could be starved to death because of an erroneous diagnosis of her brain's condition.

In other contexts, the more serious the decision to be taken, the stricter is the evidentiary standard. When the court system is contemplating a man's execution, an evidentiary "gold standard" is supposed to apply. (It doesn't always, but there has yet to be a proven example of an innocent man's execution since the death penalty was restored in the late seventies.) The statute of frauds is another example. The law requires that certain contracts be in writing, because it is considered that they are so serious, or so otherwise susceptible to dishonesty, that allegations of an oral contract are not allowed.

One would think that when a life is at stake, the same kind of elevated evidentiary standard ought to apply. If you need a writing to establish a real estate contract, maybe we ought to require that an expression of a wish not to be kept alive with a feeding tube must also be in writing. The concept of a living will is well-established in the law, and it's incredibly easy to make one. It's just too easy for someone simply to say that a person once told them, with no other witnesses, that the person didn't want to be kept alive.

In fact, it was no trouble at all for Terry Schiavo's husband to say that she made such a statement. Conveniently, it happened while the two of them were watching television, alone. And that leads me to the second thing that I think should absolutely jump out of the page or screen of whoever reads about this story: the husband's colossal conflict of interest.

A little background, for anyone unaware: Mr. Schiavo has taken up with another woman, who he will be free to marry once his unconscious wife dies. In addition, he stands to obtain a significant sum of money upon her death.

In the legal profession, we disqualify lawyers for one-tenth of that conflict of interest, and in questions less than one-thousandth as serious.

Of course, the cases of the conflicted attorney and the conflicted husband may not be analogous. The spouse of an unconscious person will very often stand to benefit, through life insurance or the like, from the unconscious spouse's death. And a person's husband or wife, being generally that person's most frequent companion, would be the person most likely to hear an offhand comment about not wanting to be kept alive with a feeding tube or the like. In short, the most likely source for any evidence may also be the most unreliable.

This seems to me to argue for a requirement, like the statute of frauds, that a desire to have treatment withheld if a person becomes persistently unconscious must be expressed in a writing.

Of course, that may penalize persons who genuinely desire not to be kept alive in persistent vegetative states, but who simply haven't gotten around to writing their wishes down. On the other hand, in that case, the difficulty in knowing whether an unresponsive person is actually unconscious comes back into play. So we have to balance the potential harms from each course (i.e. allowing removal of feeding tubes despite the absence of reliable evidence vs. requiring a writing or other less potentially ambiguous evidence to make the decision). An unconscious person won't be conscious that he is being artificially maintained, while a conscious person who is unable to communicate will certainly be conscious that he is dying, if his feeding or maintenance are being removed. On the balance, it seems to me that dying slowly while being conscious but unable to do anything about it is far worse than continuing to live unconscious.

This balancing seems fairly clear to me, but reasonable people can differ. I don't think, though, that Schiavo's case is even close. The husband's conflict is so blatant that I simply can't see how he could remotely be considered trustworthy. posted by Thomas at 4:43 PM

 
Another illustration of how much elementary school has changed since I was there.

I have a feeling that the local zero-tolerance authorities in question wouldn't have been amused at my 4th-grade cover art for a book report on "Thirty Seconds Over Tokyo" (B-25s bombing a city skyline) or my 7th-grade Alistair McLean wannabe short story (international man of mystery pursues terrorist in hunt that culminates in shoot-out on golf course). Maybe their intervention might have made me a touchy-feely "All Things Considered" listener. Or maybe it would have turned me into an actual resentful homicidal maniac they would have thought I already was.

I couldn't help thinking whether these people would have suspended Goya (for that stark painting of the Napoleonic firing squad gunning down Spanish civilians) or Delacroix (for "Massacre at Chios" or, heaven forbid, "The Death of Sardanapalus.")

In another context, the zero-tolerance mushmind in question blandly said something to the effect of "Rules are rules, and if we make any exceptions, we can't enforce the rules at all." Nonsense. Rules are meant to solve specific problems, and prevent specific harms. If their application results in consequences that do nothing to serve their purposes, either the rules or the application is flawed. Anglo-American common law recognizes the concept of "equity," which goes beyond the letter of the law when justice requires it. Now, that concept can be taken to extremes, too -- but to fall back on "Rules are rules" is lazy, unimaginative, and craven. posted by Thomas at 4:00 PM

 
Reading Justice Scalia's dissent in Lawrence v. Texas, decided today, brought back memories of the time when, in a constitutional law class, I gagged over what Scalia deliciously calls the "sweet mystery of life" passage in Planned Parenthood v. Casey -- the one that reads, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." (The Court then went on to hold that the decision to define one's own concept of existence to deny the separate existence of a human fetus, and express that definition by destroying it, was a fundamental constitutional right.)

Bullfeathers. First, my own present view of the abortion issue is that it ought to be legal (though it is not required to be so under the Constitution) for all purposes early in pregnancy, but the more developed the fetus, the more serious must be the reason for abortion. If 'twere done, in other words, 'twas best 'twere done quickly. Once you start having to break bones, cause pain, and extinguish rudimentary human consciousness (i.e. after a few weeks of pregnancy), you ought to have a damned good reason for it.

Flakiness -- as in when a person is in denial over the pregnancy and waits forever to do something about it -- doesn't cut it. We don't excuse flakiness in other contexts. Negligence law routinely bankrupts people, not on the basis of any malice on their part, but because they failed to fulfill duties expected of them. Why should a woman who panics and leaves the scene of a fatal car accident (hardly less stressful a situation than an unplanned pregnancy) be thrown in jail, while flakiness in the abortion context has to be coddled? (This, of course, doesn't apply to later-term abortions because of health dangers that don't immediately appear.)

Anyway, I digress. The point is that even if the right to define existence is at the heart of liberty, it does not follow that any particular action can be justified by the recognition of that right. I may have the right to define existence, as Descartes did, as a function of thought -- "I think, therefore I am" -- and then conclude that the less a person thinks, the less his existence needs to be recognized. And then I might conclude that a person who leads a "lesser" existence, in terms of the extent of his consciousness, or thought -- infants, Alzheimer's patients, Pacifica Radio listeners -- may be disregarded, or dispensed with, more readily than people with more advanced consciousness and therefore (according to this definition of "existence") more advanced existence.

I would be completely within my rights to think this way (and completely wrong). But that doesn't translate into my right to act based on this thinking. I can't track down a poster on DemocraticUnderground.com and whack him for his kidneys because since he doesn't cogito as well, he doesn't sum as much. (Yes, that's incorrect, but if I used the correct Latin mood, even if I knew it, nobody would catch the reference except for a couple of NRO guys.)

When I first read Casey, it added yet another sun-bleached brick to the towering ziggurat of my conviction (cool 'phor, huh?) that with the exception of a couple of justices who actually analyze the law and try to apply its meanings (and are routinely despised for it), the average Supreme Court justice is a politician, not a judge. They start with the end in mind. Their opinions are not analysis of the law, but nothing more than plaster to coat the studs and chicken wire of their predetermined decisions. {/metaphor generator}
posted by Thomas at 12:15 PM

 
Having recently surveyed a selection of hard-left web sites and publications, and having also discussed politics with some generally pleasant liberal acquaintances of mine, I've come to the conclusion that the combination of President Bush's close election, with the constitutional flukes in Florida, and his adminstration's response to September 11 have pushed left-liberals completely over the edge. They are actually enraged in their hostility for Bush and everything he stands for, to the point that they accept and perpetuate patent falsehoods about administration policy without a moment's thought of engaging the critical-thinking faculties on which they tend to (generally unjustifiably) pride themselves.

The "Bush lied about WMD" refrain, for example. Granted, when they've been wrong about virtually everything about the war in Iraq, it's hard to fault human beings for clinging to the one straw they think they still have. But while perceptive conservatives concluded early on that President Clinton was, with respect to his personal character, a pig, we tended not to be quite so vehement about calling him a liar in the particular circumstance of l'affaire Lewinsky until we actually saw his ... er, evidence on her blue dress. For one thing, when you accuse someone of lying and you turn out to be wrong, you look not only petty but stupid, as Bill Simon found out when he thought he had ironclad proof Gray Davis lied about accepting contributions in the governor's office. (He hadn't.)

Not only that, but conspiracy thinking is running rampant on the left. And that's what strikes me as being the real evidence of real danger: The left is approximating the anti-government far right of the early nineties. There are already hard leftist "direct action" groups that commit violence against property. The way the left is moving, it may be only a matter of time before there arises a left-wing Timothy McVeigh.*

*Not that Timothy McVeigh was entirely free from leftist ideology himself. Along with his anti-government hatred, he also had a beef with powerful corporations and was apparently somewhat into "animal rights," both of which things are generally associated with the left. Interestingly enough, a certain German who resembled Charlie Chaplin also combined his generally far-right ideology with these far-left ideologies. posted by Thomas at 5:13 PM

 
From Mark Steyn:

If I understand correctly, the British, having won the war, are now demanding a recount. Across the length and breadth of the realm, the people are as one: now that the war's out of the way we can go back to bitching and whining that Blair hasn't made the case for it.

This is all very odd. In Kirkuk the other day, they found another mass grave, this time with the bodies of 200 children who had been buried alive. Yawn. Doesn't count. Wake me if they find a toxic warhead among the teeny skulls. The naysayers were wrong on so much - millions of refugees, Vietnam quagmire, Stalingrad, etc - you can't blame them for clinging to the one little straw that hasn't shrivelled up and slipped between their fingers: Come on, Tony, where's the WMD?

posted by Thomas at 10:18 AM

 
So far, my loyal readership appears to consist of myself and my little sister. (Who's a brilliant and accomplished artist, and not really little, but acknowledging she's in her twenties means I'm in my thirties, and I'm not entirely reconciled to that fact just yet. Especially since I'm not in the Senate yet, or a published author, or anything else that I was supposed to have done by now.) posted by Thomas at 3:53 PM

 
Starting a new job tomorrow, which pays the princely sum of $5,000 more than my last one. At least I can mention some larger clients on my resume now. I feel like I've moved from AA to triple-A. Slowly climbing the ladder, I guess. At this rate, I'll be working at O'Melveny in approximately 75 years.

I'm repeating my mantra: Blog entries should be small and frequent. So far, everything I've posted here has been long and infrequent. (Except "infrequent" can mean "frequent," too, can't it? Kind of like "flammable" and "inflammable." Who invented this language, anyway?) posted by Thomas at 3:47 PM

 
Okay, so I'm a little sporadic with this blogging thing. I'm in the process of switching jobs and coping with a fifteen-month-old whose molars are coming in and is not at all pleased about that.

I promise to make amends. As a token of this commitment, my loyal readership (which appears to consist of my sister and myself) is hereby thrown the following bone, derived from the random static of my political ponderings:

An article of faith on the Bush-hating left (ne pas penser du double-entendre, sil vous plait) is that the various means, included in the USA Patriot Act (I do hate that name) of updating the government's surveillance powers to cope with terrorists' use of sophisticated communications (computer networks, cell phones, etc.) are somehow unprecedented incursions into historic liberties.

Their fallacy is in believing that whenever a law is enacted, or whenever government's power is expanded, there is a corresponding loss of individual liberty. (Technically speaking, they actually mean that liberty is lost only whenever a law they don't like is enacted -- see below.) But that fails to take account of what, for lack of a better term, I'll call "leverage."

Leverage is the greater power that technology grants to individuals. A person in a car can go farther, faster, than a pedestrian, and therefore has more freedom to choose where he'll go in a given time. The institution of driver's licenses after the invention of the automobile was an expansion of governmental regulatory power, but whatever diminution this regulation placed on individual liberty was outweighed by the greater liberty granted by the leverage of automobile technology.

Liberals have historically acknowledged this point. Some argue for increased gun controls, claiming that while a permissive attitude towards firearms ownership may have made sense in the age of single-shot muzzle-loaders, the greater damage a gunman can do with an automatic rifle warrants greater government control. The expansion of the economic power of individuals made possible by industrialization and the development of great corporations following the Civil War convinced formerly libertarian liberals that corresponding expansion of government's reach was justified. Regardless of what one thinks of these examples, the fundamental logic is the same: when innovations give individuals greater leverage, it is possible to impose restrictions while still preserving a net gain of liberty of action.

When terrorists can use modern communications technology to leverage their potential for destruction, is it intelligent or reasonable to insist that authorities continue to be subject to restrictions that predate these innovations and do not take account of the terrorists' increased leverage? posted by Thomas at 4:08 PM

 
Two days ago, my self-described radical legal secretary decided to subject me to an hour's worth of Gore Vidal sounding off on NPR about the DANGER, DANGER of the "fundamentalist" Bush Administration's alleged intention to make America into a police state. Or at least I think it was NPR. I admit to being not particularly familiar with NPR, but from what I heard (smooth, smug tones with no challenge by the host to even the most unsupportable statements by the guest, accompanied by mellowly hip modern jazz), I assumed NPR was the station.

I suppose I could have closed my door and let her marinate in the wingnut leftism she seems to like, but I do like the partners in this firm to know that I'm actually here and working.

Anyway, it got me thinking. It's amazing how many hard leftists, who one assumes believe Joseph McCarthy was the devil incarnate (as opposed to a mean blowhard drunk who callously ruined people's livelihoods, many of whom didn't have it coming) so blithely adopt his conduct, consciously or unconsciously.

Think about it. What would one consider McCarthy's greatest sins? I would say, in no particular order, his making of unfounded accusations, his conflation of ordinary garden-variety liberals with totalitarian communists, and his lying (as in, "I have in my hand a list of Communists in the State Department" when he didn't have anything of the kind).

Listening to Gore Vidal the other day, I heard all three.

The USA Patriot Act may have been carelessly drafted and enacted, but it simply doesn't contain the liberty-murdering pitfalls Vidal and his sort say it does. Now, it's a long piece of legislation, and I've only read the extensive summary from the Congressional Research Service, but I couldn't find the awful things Vidal was talking about -- i.e. that citizens could be stripped of their citizenship if accused of terrorism.

As for the second McCarthy-style fault, comparing conservatives to fascists or eager police-state architects is no more accurate than declaring New Deal liberals to communists during the forties. Probably much less so, in fact, given the naive love affair many had developed with the Soviets during those decades. (Thanks in part to dishonest reporting -- Walter Duranty's Pulitzer Prize for whitewashing Stalin's terror still stands, even as the New York Time hangs Jayson Blair's head on a pike for less dishonesty.) If increasing the penalty for hacking and damaging federally-protected computers from five years to ten qualifies one as a Nazi, what do you call men in black uniforms who put children into ovens?

As for the third -- the lying -- that may be a harder comparison. Vidal et al. may not consider themselves consciously to be lying. Their practice is to repeat the general accusations of tyranny that they pick up in their cloistered milieu, without taking the time to determine whether the things they hear are true or not.

Under the law of fraud, a person who makes a misrepresentation without reasonable grounds for believing it to be true is considered to be lying just as is a person who states something he knows to be untrue. It would be fair to say that the more serious the accusation one is bringing, the greater is one's responsibility to determine its truth before bringing it. The Left's reckless repetition of received falsehood is so severe and so sustained that it must be considered to be as dishonest as conscious lying.

That brings me back to the hour-long Vidal NPR torture-session my karma-conscious secretary decided to blast through the office. Vidal was making error after error (or misrepresentation after misrepresentation -- pick 'em) in that wonderful smooth, sophisticated, smug, earnest tone he's perfected. (See Chemerinsky, Erwin.) It's a wonderful talent -- the ability to say the most ridiculous things in a tone that literally reeks of obviousness, and that radiates the idea that nobody could possibly disagree with what's being said.

It's a talent that could only be developed in a hothouse, which is what NPR, and much of liberalism in general, has become. There's no opposition; no aggressive challengers, no rocking of the boat. Vidal wouldn't last five minutes on a talk radio show; some cab driver with a cell phone would hand him his head the first time he tried passing off a falsehood in that smooth tone.

This is why the Left is perennially "shocked and appalled," "chilled" (as in "chilling effect") and finds its "dissent" being "squashed" (translation: people tell them they're wrong). They're used to an environment where people share their assumptions, and challenge is impolite. posted by Thomas at 10:51 AM

 
The Proud Duke of Somerset was a comically arrogant figure, who insisted on formalities (including requiring that his children stand in his presence) to such an extent that he disinherited a daughter who had the temerity to sit down when he dozed off on a sofa one evening. What this has to do with me, I'm not quite sure. My wife refers to me as a "duck," much as Clementine Churchill referred to Sir Winston (in private) as "pig" ( which was apparently meant as an endearment). As to whether I'm comically arrogant -- well, as Aristotle wrote in the Nicomachean Ethics, "it ain't braggin' if it's true."

Anyway, I hereby inaugurate The Proud Duck. posted by Thomas at 6:12 PM