On Waiting Until After the Election to Fill the Seat

One internal conflict democracies face is whether they should prioritize A) substantive commitments about justice or B) complying with the rules of competition and transfer or power. 

Democratic voting is not like voting over, say, which vacation to take. If the family wants to (shudder) go on a cruise and I want to do anything else other than go on a godawful cruise, I might nevertheless (shudder) go on the damn cruise. After all, I value my family, and I recognize that we're talking here about personal preferences, not deep issues of justice. 

But many issues in politics are about justice, not mere preference. We (at least many of us) tend to think there are independent, correct answers to political questions and that we should do what justice requires. Democratic decisions should track the truth. We recognize that any one of us could be mistaken when we think we've identified the truth, though we all tend to think we're better at tracking the truth than our political enemies are. (Or, more often, we think our team tries to track the truth while the other teams aren't even trying.)

When A (substantive justice) and B (procedural rules of competition and fair play) come into conflict, which should win? 

You probably think that sometimes or even often substantive issues of justice trump playing by the rules. Sometimes the police officer should not enforce the law because doing so is unconscionable. Sometimes the jury should nullify the law. Perhaps a justice should bullshit a legal opinion because the point is to stop slavery, not to identity whether old legal cases and documents make slavery constitutional. Sometimes the senator should filibuster or game Robert's Rules to stop a declaration of war because the war is unjust. 

Now consider the issue of filling a Supreme Court seat shortly before an election or waiting until afterward. If you think that serious matters of justice are at stake, and that waiting means that the other side will impose horrific injustice on the populace, you might well think it's more important to fill the seat now than to wait. On the other hand, if you think that the other side is committed to democratic norms and will not impose horrific injustice, and you recognize that the people have low confidence in your leadership, you might well think that it's important to wait until after the election, as this will imbue the decision with legitimacy. 

A priori, there's no simple principle either way. It depends on what the situation is, what the stakes are, what will happen, and what the people think.

On this point, though, I think empirical work on voter behavior throws a real wrench in the whole issue. As Achen and Bartels say, elections are essential random events. If Biden wins, this doesn't show that the People genuinely support him or his politics. If Trump wins, the same goes. For 9 out of 10 voters, voting for a party or candidate does not demonstrate trust or belief in that candidate or party, and so there is little reason to think that their votes confer legitimacy. Regardless of who wins in November, the vast majority of voters will not have voted because they genuinely share their party's politics or because they genuinely believe their party is better. Once you study voter behavior, you can no longer say with a straight face that voting = the people speaking. So, it becomes far less obvious why we should wait. (That said, I hope Trump waits because he's an incompetent hack. I care about substantive justice.)

The Supreme Court: Sixth-Grade Civics vs. the Reality

American school children often take a civics course around 6th grade where they are taught a basic theory of how democracy in general, and the American constitution in particular, work. The good news is that most students forget what they learn by the time they graduate--and the reason that's good is because almost everything they were taught is wrong. (For instance, they are taught an obsolete theory of voter behavior.)

When it comes to the Supreme Court, they are usually told that the justices enforce the Constitution. Justices do not make the rules but rather ensure that the rules conform to and comply with the meta-rules. 

Of course, in practice, we all recognize this is mostly, if not entirely, bullshit. This is one reason why the death of a Supreme Court justice is so disturbing to us. (The other reason is that we gain social benefits by pretending we are more upset than we are, as this impresses others in our peer group by signaling a high degree of intelligence, loyalty, and civic-mindedness.) We recognize that justices have political bents, and in general they reverse engineer a theory of legal and constitutional interpretation--a theory of the meta-rules--such that the Constitution tends to require what they independently prefer and forbids what they independently hate. (I'm not saying they are insincere, but rather self-deceived.) 

How else could it be that the all the left-wing justices think the Constitution is left-wing and all the right-wingers think it's right-wing? What an amazing coincidence! You might say that some theories of Constitutional interpretation explicitly say that the content of the law is somehow directly attached to morality and justice, and so of course justices must interpret the law that way. But then notice that many justices are legal positivists, original intent theorists, or original meaning theorists, and yet somehow they also tend to think the constitution usually implies what they independently would want the law to be. Hmmm.

Update: I should be clearer here. My post may exaggerate the strength of the effect. I'm not saying that justices will always vote their politics. The situation is more akin to what some historians of philosophy do. Imagine a bunch of them like Adam Smith. The left-wing theorists tend to portray Smith as left-wing, and the right-wing theorists as conservative. The libertarians think he's libertarian. Here, however, they do face constraints, because you can only bullshit or stretch the text so much. The same goes for justices. They do tend to push past cases, the law, the meta-laws, and so on, in their favored direction, but they don't outright lie. The law does impose a constraint. 

Note that my personal position is that justices are prima facie morally required to lie about the content of the Constitution in order to promote justice. For instance, if you have a court case about slavery, and it turns out that on the correct theory of interpretation the constitution allows slavery, prima facie, you must nevertheless say that it does not. (I say "prima facie" because issues about compliance, backlash, future opportunities to thwart injustice, and so on, make it more complicated than this. See the linked book.)

The reality is that the Supreme Court is a "super legislature". See this paper by Brian Leiter:

Abstract

I propose to defend and explore three claims in this Essay. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the Supreme Court. There, the Court operates as a kind of super-legislature, albeit one with limited jurisdiction. The jurisdiction is limited in two important ways: first, the Court can only pass on issues that are brought before it; and second, the Court is constrained, to some extent, by its past decisions and by constitutional and legislative texts. The problem, however, is that those constraints underdetermine the Court’s decisions in most cases, so the Court essentially makes its final choice among the legally viable options based on the moral and political values of the Justices, and not simply on the basis of legally binding standards...

The US has in effect three legislature houses, with the Supreme Court functioning as the highest house, towering over the Senate and House of Representatives. Justices get jobs for life, are difficult to remove, aren't beholden to voters or anyone else, and have far more voting power than any senator. Of course these political battles are high stakes.

American politics is now bound to be even more toxic and obnoxious. 

Princeton Plays with the Bull and Gets the Horns

UPDATE: Some people think Eisgruber was not confessing to racism at Princeton, but instead that Princeton would use its considerable resources to fight external racism and trying to rectify the external effects of racism on its own members.

 On Sep. 2, Princeton's President Eisgruber claimed that the university suffers from pervasive systemic racism. It's possible the letter was sincere. Given what we know about political psychology (see e.g. here and here) and university administration, the most scientifically plausible theory here is that the president was partly motivated by anti-racist sentiment, but mostly motivated by thinking this would be a good PR posturing that would help Princeton's standing and also help secure various economic rents for interested parties. It'd be surprising and unusual if anti-racism were the main motive.

In a delightful twist, though, the Department of Education is now investigating Princeton for violations of the Civil Rights Act.  Since Princeton receives significant federal funding, it is bound by a wide range of regulations which require it to create and maintain an inclusive, discrimination-free environment. But by the president's own admission, it has not only failed to do so in the past, but continues to fail today.

Some are outraged and claim the Department of Education is trolling them. And, frankly, I doubt that the senior leadership at the Department of Education are more anti-racist in their hearts, and certainly less willing to posture as anti-racist in their actions, than Princeton's senior leadership.

Still, here's the thing. If what Eisgruber said is true, then Princeton should be investigated and punished. If the university does continue to suffer from pervasive systemic racism which result in discriminatory practices, then the university does indeed violate the Civil Rights Act and other related regulations. It's a bit weird to confess to something like a crime and expect only nice things to happen to you as a result.

Alternatively, and this is what I suspect is more likely, Princeton is one of the least racist mixed-race places in the United States, and the president knows that. His Sep. 2 letter was largely insincere and was mostly about PR posturing. Just as in the Middle Ages, one could gain status among the faithful by engaging in self-flagellation and publicly declaring oneself a sinner, so in today's environment, white people can gain status and prestige by declaring themselves racist and engaging in activities akin to self-flagellation. 

The problem, though, is that inadvertently, Eisgruber was making light of racism. By analogy, if you see a single hate crime and say, "This is just like the Holocaust!," you aren't thereby displaying your radical moral purity, but rather failing to understand just how bad the Holocaust was.

The situation here is similar to what happened recently at Georgetown, when our president DeGioia sent a letter around which more or less said that the campus is a horrible rape factory, with at least 1/3rd of female students facing sexual assault while here. If what he were saying were true, then his proposed solutions were so mild that it would almost be as if he were making fun of the situation. Instead, the proper thing would be to fire all the senior leadership for enabling this, bring criminal charges against the relevant people, and then to engage in radical reform, including, most  obviously, shutting down the entire university until we can determine how to solve the problem. 

Again, if Princeton is systemically racist, then they should be investigated and punished. Their senior leadership should be fired. If they are not racist, then they shouldn't say they are. If they say they are racist but are not, then what they end up doing is misallocating the limited budget of time, effort, money, and attention people have for fighting racism. If the attic is infested with mice but you convince people to put traps in the almost perfectly clean basement, you thereby help perpetuate the mouse problem. 

One of my Facebook friends, another academic, made a good comment about this. Princeton should be glad that they are being investigated by a Department of Education which does not share their expansive conception of racism. If the senior leadership were true believers in the expansive conception which pervades critical theory and various humanities departments today, they'd be in big trouble. 

UPDATE 2: Some bits from the president:

Racism and the damage it does to people of color nevertheless persist at Princeton as in our society, sometimes by conscious intention but more often through unexamined assumptions and stereotypes, ignorance or insensitivity, and the systemic legacy of past decisions and policies. 

Racist assumptions from the past also remain embedded in structures of the University itself.  

...I charged my Cabinet in June to develop plans to combat systemic racism at Princeton and beyond.  

We must ask how Princeton can address systemic racism in the world, and we must also ask how to address it within our own community

Sounds to me like he's saying Princeton engages in racist behavior.  

Is Working Hard Good?

You'll often hear people say, "I work hard but I didn't succeed. There's something wrong with the system!"

As a parent and a person, I'm of two minds about the whole idea of hard work as a virtue. 

On one hand, many things that are worth doing are difficult to do. One needs to persevere to learn the skill. Further, it's good to have the disposition to be able to work hard. If bad fortune befalls you, you want to have the ability to roll up your sleeves and do what it takes to overcome the problem, rather than wither away. Further, lazy people are rarely happy people. 

But, on the other hand, as Hayek argued, we don't want to arrange jobs and such such that everyone is working very hard. Work and effort are resources and costs. It's better to have low cost producers than high cost producers. If I can do this job easily and you can do it only with great effort, then ceteris paribus it make sense to have me do it, not you. At a certain point, if things remain hard work for you, this is often a sign that you should do something else. Just as we want to economize on oil or electricity, so we should economize on effort.

Hayek said that on some conceptions of meritocracy (if not every conception), we're supposed to apportion rewards according to hard work. But this, he says, is a recipe for reducing human welfare. On the contrary, if Bob and Sam are equally productive but Bob is a lower cost producer, then it's good that Bob gets a bigger profit than Sam. This encourages Sam and and others to be more efficient. Again, just as we want to economize on oil or electricity, so we should economize on effort.

These are random thoughts and I don't have an overarching thesis. But I suppose the upshot is that it's good to have a society where everyone is disposed to work hard when working hard is worth it, but at the same time, for everyone to be disposed to work smart instead of working hard. If you discover a colleague does as much as you do in half the time, she deserves praise, not scorn.  

Rawlsianism, Utilitarianism, and the Asymmetric Use of Extraordinary Counterexamples

In my book Unequivocal Justice, I document how Rawls repeatedly employs a form of asymmetric idealization. He compares an ideal political sector to a nonideal nonpolitical sector and, unsurprisingly, ends up endorsing a rather large regulatory and redistributive state. But Rawlsians are guilty of another kind of asymmetry which is just as bad.

First, they’ll make use of extraordinary counterexamples to object to rival views (e.g. utility monsters, rogue transplant surgeons, people getting electrocuted during the World Cup, etc). Then, they’ll be challenged with extraordinary (or even not-so-extraordinary) examples to their own view. For instance, the difference principle would oblige us to channel all of society’s resources to one severely sick person if that were required to maximize the material well-being of the worst off. Similarly, the lexical priority of Rawls's first principle implies that we may not sacrifice a trivial amount of free speech for a monumental amount of wealth and income. When confronted with these objections, Rawls and Rawlsians retreat to the “Well, my theory isn’t meant to apply to these sorts of unusual cases.” But this is an utterly inadequate response. (Imagine if a utilitarian replied, “Well, my theory isn’t meant to apply to unusual cases like utility monsters.”) You can’t make use of extraordinary counterexamples to object to competing views and then stipulate them away in your own case. (I say more about this worry here.)

The Problem with Measuring Merit

Michael Sandel has another reactionary book coming out, which based on this discussion, appears to be classic Sandel.  (As one of my friends said, Sandel's basic argumentative style is, "Hey, you know all your untutored, unreflective prejudices? You should roll with those. I'm from Harvard.")

Based on this discussion, you might wonder whether Sandel is more worried about whether meritocracy is bad in itself, or instead whether the problem is that we act like we're meritocratic but in fact we mess it up. 

One of the big problems any organization, including entire webs of social cooperation, face is that when people try to distribute some good (status, property, income, admission to Harvard, Harvard professorships) on the basis of some feature or action (hard work, intelligence, moral virtue, civic virtue, wokeness, publishing prowess, insight, productivity, innovation, or whatnot), then people will try to fake the signal to get the good. When we start measuring something, people fake the measurement. 

For instance, it seemed like a good idea for elite schools to select altruistic, public-spirited students. But once students realize schools were using volunteer hours or "I started a non-profit when I was 15" as an admissions criterion, then everyone starts volunteering in order to fake the altruism signal. The signal becomes diluted and so we get an arms race to produce an ever stronger signal.

These sorts of problems might show that we suck at distributing goods according to merit. They do not, however, show that actually distributing things according to merit is bad. 

Note that I'm not a meritocrat. My point is that as philosophers, we must distinguish between whether a principles of right action (which identify what is right or wrong) from the institutions we use to realize those principles. For instance, it's good to have Pareto-optimal outcomes, but that doesn't mean we should have the Department of Pareto-Optimality aim for it. (And if we do and they suck, the problem is the department, not the principle.) Happiness is good, but you might do better not aiming directly for it. Similarly, distributing certain things according to merit might be right, but then it's an empirical question which mechanism for distribution successful tracks merit. It might be that directly meritocratic structures suck at producing meritocratic outcomes. The problem is the structures, not the principle. 

Calling Irish People White Is Racist and Imperialist

Down the hill at GW, former professor Jessica Krug--a white person from Kansas City--spent her career posing as a person of"Afro-Caribbean Identity" with a New York accent. After being exposed, she resigned; her department said they would pursue her termination otherwise. 

I have not myself posed as belonging to a different race, but I have at times not spoken up and instead allowed myself to pass as a member of difference race. (You can read a paper about the ethics of doing so here, by former philosopher Dan Silvermint.) In particular, I have allowed people to think of me as white. However, starting now, I will no longer do so, and indeed, will actively file bias reports against anyone who refers to me as such.

Originally, the Irish were seen by whites, especially British/Anglo-Saxon, Germanic, and Nordic whites, as an inferior "other". The British in particular eyed Irish lands with greed and envy. Much as they conquered and enslaved so much of the world, they conquered, displaced, and dispossessed the Irish in their own lands. 

Irish culture was squashed. Clan identities were purged. The Irish language (often incorrectly called "Gaelic") all but vanished as English was forced upon the Irish. Catholicism was suppressed, though England's brutal methods in the attempt to pacify the people met with such resistance that they failed to transform the country into a Protestant stronghold. England exploited its people and its resources. It installed colonies under the Plantation system and ensured that the ruling and propertied classes were white Protestants. Natives were turned into poor peasants and their poverty was taken as proof of their otherness and inferiority. Not surprisingly, many Irish turned to servant roles as a means to escape poverty. There was no doubt in the English mind that the Irish were a separate, inferior race.

Many of these conquered, colonized peoples fled to the Americas in hopes of a better future. This was especially true during the Great Hunger--a famine caused and sustained far more by bad British policies than by mere crop failure. In the Americas, of course, the Irish faced discrimination, rejection, and persecution, as the English and German whites continued to see them as "other", as unclean, unfit, and criminogenic. Karl Marx famously disparaged the Irish as drunken criminals who couldn't even benefit from higher wages. Even in the 20th century, early progressive economists defended policies such as minimum wage laws with the expressed goal of disemploying, starving, and eliminating undesirable races such as the Irish. (This is perhaps why I am less impressed with people advocating such laws today, when I know these principles were intentionally devised as a means of starving my grandparents to prevent me from coming into existence.)

After long struggles, and despite the rampant mistreatment, the Irish diaspora in Canada and the US emerged as successful. Today, Irish-descent households in the US are significantly richer the US average and than English-descent households. I'm not sure why. Perhaps in the face of oppression, Irish immigrants developed better norms which enabled success. Perhaps the progressive's eugenicist policies worked, and the more functional Irish immigrants were disproportionately likely to have kids who survived to have kids of their own.

By the way, for people living in Ireland who say Irish-Americans aren't really Irish, please keep in mind the distinction between Irish citizenship (of which many of Irish-Americans are technical eligible) and nationality vs culture vs ethnicity. This is a discussion of ethnicity. It's true that colonialism and famine led to a large number of Irish ethnic individuals being born and raised without Irish nationality or culture. Further, while many Irish Americans are only partly Irish, keep in mind that we don't say that African Americans are not really black because they have other other non-black ancestors. Barack Obama is 50% white by ethnicity but we still say he was the first black president. He is thus whiter than I am if we're using genetics as a means of determining race.)

Irish people in the US and elsewhere now pass as white, and indeed, most are now inclined to call them white. This is unacceptable practice. The English had long sought to erase, eradicate, and replace Irish identity by making the Irish--at least the ones they deemed fit to survive--British and English. 

To call an Irish person white is thus to participate in British colonialism and to work to erase Irish identity. It is unacceptable, shameful, racist, colonialist, and imperialist, 

Note that non-Irish people do not get a say in this matter. You do not get to police the boundaries of Irish racial or ethnic identity. Your job, especially if you are of English ethnicity, is to be an ally and to listen, nothing less. 

Relatedly, I wish to remind you that only Celtic people may celebrate Halloween.