Thursday, October 30, 2008

A Lesson in Necessary and Sufficient Conditions, Compliments of Mr. Sowell

Every now and then I like to find the most ridiculous thing written by a conservative columnist, and hold it up to the light for a moment. I don't do this very often, probably because the process of finding said ridiculous bit of bloviating is, frankly, more than a little annoying, and from time to time inspires violence against my computer (I can't read this stuff on my laptop, lest it launch itself across the room!)

I generally pick on Cal Thomas, because if anyone knows ridiculous, it is Cal Thomas (though I am on the record agreeing with him once - I won't make a habit of it, I promise). Today, however, I'm going to diversify a little, bringing just a hint of light to a particularly flagrant bit of ridiculous from Thomas Sowell. In a recent op-ed piece in the Washington Times, Mr. Sowell takes up the subject of the kinds of judges a president Barack Obama might appoint. (And he gets extra credit for his use of scare-quotes around the word "change" in the first paragraph - I could see John McCain's sarcastic shrug jumping off my computer monitor!)

He writes:

Mr. Obama has stated very clearly what kinds of Supreme Court justices he wants - those with "the empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old."

Like so many things Mr. Obama says, it may sound nice if you don't stop and think - and chilling if you do stop and think. Do we really want judges who decide cases based on who you are rather than on the facts and the law? If the case involves a white man versus a black woman, should the judge decide that case differently than if both litigants are of the same race or sex? The kind of criteria Barack Obama promotes could have gotten three young men at Duke University sent to prison for a crime neither they nor anybody else committed.


I don't know whether or not Mr. Sowell is accurately quoting Sen. Obama - you don't need to offer citations for an op-ed piece, and your readers wouldn't thank you if you did. Since I have no reason to doubt the veracity of this quote, I'll take Thomas Sowell at his word when he writes that Obama said this. However, I seriously doubt that this is the only thing that Barack Obama, a lawyer who taught Constitutional Law at the University of Chicago - one of the world's finest academic institutions - has ever said on the subject. Yet that's what Mr. Sowell would have you believe. It is, in fact, the premise on which his entire argument depends.

Barack Obama says that judges should be able to empathize with the experience of the marginalized, therefore the defining characteristic for a judge, according to Barack Obama, is empathy with the experience of the marginalized. Knowledge of the law? Bah! All you really need to be able to do, to be a good judge, is to side with the minority against the majority, every time. A case between a woman and a man? You don't need to know the facts of the, or the relevant legal principles and precedents. Just side with the woman! A case between a black man and a white man? The black man should win every time! Gay v. straight, poor v. rich? These are easy decisions!

Now, it gets tricky when you have to choose between a black man and a white woman. Which is the trump, race or gender? I guess you could just flip a coin.

Does Sowell really believe that a lawyer and a scholar of Constitutional law would use this, and this alone, as his criterion for entry to the federal bench? I certainly hope not. Sowell has, frankly, written some whack-out shit in his time, but this would take the cake, calling not only his intelligence but his very sanity into question.

The most reasonable take on the quote from Sen. Obama that Mr. Sowell offers us is that Obama believes (rightly, I think), that the ability to empathize - and especially to empathize with those who so often stand powerless before the court - is a judicial asset. The strongest reasonable reading is that such ability is a necessary condition for being a good federal judge. That is, that empathy for the experience of the marginalized in our society is a quality that would be present in any good federal judge.

But is this the only quality? Heavens no! And no serious person would suggest otherwise. It should go without saying that any lawyer - much less someone who has taught Constitutional Law at the University of Chicago (have I mentioned that enough?!?) - would value some knowledge of *gasp* the law and the Constitution! Yet clearly Mr. Sowell needs this spelled out for him.

So, Thomas Sowell, let me be (hopefully not) the first person to tell you that you have committed a flagrant violation of logic, and should be chastised accordingly. You have made the elementary mistake of confusing a necessary condition with sufficient conditions.

For those of you keeping score at home, a necessary condition is a condition that must be met. A baseball, for instance, must be round. It is not sufficient, in that there are a great many round objects that are not baseballs; but it is necessary, in that there are no baseballs that are not round.

Similarly, if we are to read the statement of Barack Obama's that Mr. Sowell devotes an entire ill-conceived column to in the strongest reasonable way, it is necessary for a good federal judge to show empathy. That is, per Sen. Obama, there are no good federal judges who are unable to empathize with the experience of the oppressed. (This may well mean that, by this standard, a good many federal judges are not good, and that is a problem that I certainly hope an Obama administration would address!) So, it is necessary that a good federal judge be able to experience and express empathy, allowing that empathy to factor into judicial rulings. However, it does not follow from this that empathy is sufficient, that it is the only quality of a good federal judge.

I really shouldn't have had to type that.

Did I mention that Barack Obama taught Constitutional Law at the University of F-ing Chicago?!? They don't just let ANYBODY do that! (that's as close to shouting as I get)

But I'll give Mr. Sowell some credit. As ridiculous as his assertion is, it is by no means the most ridiculous assertion made at the page on which I found his column. For a real taste of true wingnettery, check out the comments, which include claims that Barack Obama - because he once clumsily used the phrase "spread the wealth" (as though that weren't the point of all taxes!) - would outlaw private property! However, the lunatic claiming that didn't get paid for his/her contribution.

Thomas Sowell: Thanks for trying. Better luck next time.

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Reader survey:

Should we indict Thomas Sowell for crimes against logic?

If so, and if he is convicted, what should his sentence be?

2 comments:

Brian Beech said...

well well well... Good to see you write again! Once again we find each other at odds. :) I know you're shocked.

I am shocked that being a law professor at the University of Chicago is sooo impressive to you. You and I both know that being a professor doesn't necessarily qualify you as the authority on Constitutional Law (although I'm sure every law professor would disagree with me).

I think its great that a judge could empathize with a victim, but if that empathy makes them sway, in any way, from the facts, that judge isn't worth his/her salt. (talk about comma-splices) Empathy for the defendant/plaintiff is not a requirement for being a judge and it should not be. The facts alone should decide the case...a fuzzy warm feeling for someone should have NO part of that equation.

As far as 'spread the wealth'...he may have used that phrase once or twice, but if you look at his tax 'theology' its written all over it. Punish someone for being successful by making them pay more taxes. If I made $300,000 and you made $70,000, I would pay more taxes than you. Why then put a higher % on me as a penalty. Then act as if I SHOULD pay a higher percentage; because I can afford it. They do not take into account what I have as working capital or investments...its crazy.

I am so against this Robin Hood mentality it is crazy! In the end, we would be rewarding people for not working. People that pay no taxes would get a check while people out working hard would be paying in money.

I honestly can't believe that any responsible, hard-working person could support this. That plan is penalizing people for achieving the "American Dream". I don't want a handout from anyone and I can't believe people in this country are so ready to have everything given to them by big-brother. I want to work and earn what I get and anything else should be unacceptable. I honestly can't believe this guy is going to be our President. Well, I think he will get elected and I hope that the Right is not near as disrespectful and hateful as the left is to W. The left has sunk below any shred of decency that it is absolutely embarrassing. I think the tone has been set; I hope it is not the same way from this side.

Sandalstraps said...

Brian,

Let me first return the compliment to say that it is also good to see you comment again.

I hope I can resist the temptation to do a point-by-point rebuttal of your comment, if for no other reason than that such a rebuttal would do no good. Neither of us are, I think, making egregious factual errors that need to be corrected. Rather we are starting with diametrically opposed sets of values.

That said, I do think that teaching Constitutional Law at the University of Chicago by definition qualifies someone as an authority on Constitutional law. That is, a renowned institution (seriously, it is one of the top schools in the world) has placed you in a position of authority. It may not mean that you are always "right" in your interpretation of the law, but it certainly means that you have studied it in sufficient depth to be qualified to teach it to some of the best law students in America. As far as I am concerned, that is the very definition of authority.

It simply defies credulity to suggest, as Thomas Sowell did, that someone with such authority on the subject would suggest that all you need is empathy. As my post demonstrated in (I hope not quite) agonizing detail, Sowell assertion - that Barack Obama would appoint federal judges only on the grounds of empathy - is a serious logical fallacy.

Beyond this, with respect to empathy, I'm not sure what we're arguing about. I suppose you are suggesting that one should never consider whether or not a judge exhibits empathy, though I find that suggestion weird. As best as I can tell, all judges are human beings, not legal computers. And humans beings who are incapable of empathy are morally and emotionally stunted, thus seriously flawed.

The drive to eliminate - or, perhaps, downplay - empathy in legal proceedings is I suspect a product of a modern, dualistic mindset, in which rationality is cordoned off from emotionality. Within this model, we look for pure rationality, pure reason, unsullied by those dirty emotional impulses.

Yet this model fails the test of neuroscience, as has been best demonstrated in Antonio Damasio's wonderful Descartes' Error: Emotion, Reason, and the Human Brain. Damasio, a professor of Neurology and one of the world's leading experts on the science of the brain, compellingly demonstrates that the only way to make a firm separation between reason and emotion is to suffer some kind of serious brain damage, either through illness or - more often - injury. (I've written on Damasio's work here.)

I say all of that to say this: the only reasonable cause for suspicion of empathy is that such empathy - an emotional trait - may blind the empathetic judge to the concerns of pure, uncontaminated reason. Yet such pure reason, uncontaminated by emotional investment, exist only in those whose brains are damaged in such a way that they cannot function in human society, unable even to choose what they want to eat or drink. In those of us whose brains function reasonably well, neither reason nor emotion can be quarantined. Rather emotion factors into our reasoning. And what better emotion to supplement the exercise of judicial reason than an ability to empathize with those who are most likely to stand before the bench?

As you learn in parenting, such empathy does not necessarily mean that the verdict rendered will be some kind of coddling of someone who has clearly done something wrong. Rather it means that the consequence handed down for misbehavior will be tailored to the situation, aiming to do what is best for all concerned.

As for the tax stuff - best left for some other time, though I hardly see how raising taxes to pre-Bush levels on the top 5% of wage earners constitutes some penalty for hard work. I also fail to see how tax-breaks for the middle class constitute a "hand out" from the government; a form of welfare, I suppose. I didn't hear you claiming that Bush's tax cuts - most of which went to the wealthiest Americans - constituted welfare for the rich!

Your closing line, however, must be addressed:

I hope that the Right is not near as disrespectful and hateful as the left is to W. The left has sunk below any shred of decency that it is absolutely embarrassing. I think the tone has been set; I hope it is not the same way from this side.

The Left, as best as I can tell, were not the ones who started this firefight. It may be easy to forget, now, the heady days that followed 9-11, but I remember distinctly being told both in private and public that I wasn't a "real" American because I had reservations about invading Iraq. I also remember being told I wasn't really a Christian because I voted for John Kerry.

George Bush has, as far as I can tell, never faced crowds gathered at a political rally calling him a terrorist, a - as one McCain supporter is infamous for saying on TV "a one-man terror cell. George Bush has not had crowds scream racial epithets at him while the politician whose hate-speech stirred up such dangerous fervor stood by, implicitly approving by their silence.

But you have never engaged in such hate-speech here, and neither have I.

Those who rally against Bush do so for what he has done to this country - leading us into an illegal, immoral, and unjust occupation of another nation, leading us into an economic collapse, and stripping away consumer and environmental protections. Those who scream death-threats against Obama (seriously, the Secret Service is investigating death threats made against Obama at a McCain-Palin rally have no such justifiable cause.

So, I guess I was unable to resist the temptation to go point-by-point. Thank you for avoiding the nastiness that too often accompanies political disputes. It is refreshing to be able to argue without fighting.