Archive for November, 2007

His Grandfather’s Son

Saturday, November 24th, 2007

Clarence Thomas has proven to be such a tall lightening rod in storms born of Supreme Court controversies that reviews of Thomas’ autobiographical book My Grandfather’s Son: A Memoir are as much a measure of the political preferences of the reviewer as the are of the quality of the book. This reviewer confesses a sympathy for Judge Thomas’s jurisprudence and I was motivated by the sympathy to read the book.

No matter what one’s political philosophy, if one views the book as the odyssey of a single man the story is quite remarkable. Thomas was abandoned by his father at an early age, and his mother, unable to cope with raising Clarence and his brother Myers, deposited her children with Thomas’s maternal grandparents. The odds against this young African-American boy from Georgia were long and only reduced by the hard oversight of his grandfather Myers “Daddy” Anderson.

Anderson was by conventional standards poor, but was able set up his own oil delivery business and provide a home for his two grandsons. Despite the fact that Daddy oversaw a disciplined household his primary influence was by example not by application of discipline. Daddy pointedly said that he would never ask anything of Clarence that he would not ask of himself. Daddy influence was born of love, but he rarely displayed affection. Daddy knew how hard it would be for Thomas and his brother and did not want any familial softness to weaken the strength he was trying to instill. Although Thomas’ grandfather’s efforts succeeded, this lack of affection estranged Thomas from his grandfather. One of Thomas’s deepest regrets is that he was not ever able to come to a reconciliation with his grandfather during his grandfather life. It obvious to even the causal reader that the book represents a penance for this failure.

Thomas’s grandparents scrimped so he and his brother could have the academic and moral education afforded in a Catholic school. Indeed, for a time Thomas seriously considered the vocation of the priesthood. Thomas’s abandonment of this pursuit is one of the first disappointments that opened an unbridged void between Thomas and his grandfather. The elder Thomas expected people to be true to their comments and Thomas’s change of heart with regard to the priesthood represented failure.

Thomas graduated from the College of the Holy Cross with Honors in 1971 and from Yale Law School in 1974. Just these accomplishments places him at the extreme statistical end of what might expected from individuals born to his circumstances.

If one believes that Thomas is using this book to serve personal vanity or vindication, he did not do so in a particularly effective way. Thomas blames himself for the failure of his first marriage and pleads guilty to excessive alcohol consumption and financial irresponsibility. He was so much in debt that as young professional he frequently took advantage of the personal generosity of friends. There is much to admire in Thomas’s ascent from a child in the Jim Crow South to the US Supreme Court, but also much, as Thomas himself would agree, to dislike.

The New Yorker magazine asks “Why Clarance Thomas is So Angry?” Other reviews had commented on the Thomas anger. However, the question represents a misunderstanding the of the book. There is a difference between soul-destroying bitterness and righteous indignation. Was Frederick Douglas who railed against the injustice of slavery bitter or justifiably angry and the treatment of his race? In his biography, Thomas does not appear embittered, despite his vicious treatment by those opposed to him but rather resolute to overcome his critics by studious adherence to his judicial philosophy. It is a steadfastness taught to him by his grandfather.

To the extent there is anger, or least frustration, in Thomas it appears to be born of his treatment after Yale Law School. Because blacks were admitted to Yale via an affirmative action program, the Yale Law degree was not worth as much to a black person as to a white person. Thomas did well at Yale on his own merits, but affirmative action tainted his degree. Because of the program, law firms had little assurance about the quality of the credential as it applied to African-American graduates. Thomas was rightly resented the injustice of this situation.

Ultimately, Thomas was hired by a Missouri Attorney General, Republican John Danforth who would prove to be an important mentor. After service for Danforth, Thomas decided to help his family financially by working as a staff attorney for Monsanto Corporation. The work was remunerative, but not a sufficient intellectual challenge. Thomas took a pay cut and became a legislative assistant for Danforth , after Danforth was elected to the Senate. Thomas registered as a Republican and voted for Ronald Reagan 1980. Ultimately, Thomas became Chairman of the Equal Employment Opportunity Commission. He used his eight-year tenure to put the poorly-run organization on an even keel. It is here that he honed his civil rights judicial philosophy, came to the attention of senior Republicans in the Reagan and Bush Administrations, and hired Anita Thomas on the basis of a recommendation of a friend.

Impressed, President George H. W. Bush appointed Thomas to the United States Court of Appeals for the District of Columbia Circuit in 1990. When Justice Thurgood Marshall retired in 1991, President nominated Thomas to fill Marshall’s place on the Court.

The saga of Thomas’s contentious confirmation is now almost legend. Despite a full blown “Borking” of Thomas, it appeared that Thomas’s confirmation would slide through. Then Anita Hill happened. Anita Hill claimed that Thomas had sexually harassed her. Books have been written about the charges and Thomas’s defense. In retrospect, the arguments seem quaint after the charges against President Bill Clinton which we know now to be true. The fact that feminists groups did not rally against Clinton the same way they did against Thoma provides evidence that Thomas’s real transgression was not sexual harassment but his possibility that the would to vote to uphold the Roe v. Wade abortion decision.

Thomas did not take the opportunity of his biography to focus on Hill’s charges. Actually, she occupies a fairly minor role in his book as she has turned out to be in subsequent years. Thomas reserves his indignation for the others that used Hill. The Liberal establishment opposed Thomas because of his Originalist jurisprudence and because as a black American he defied the conventional wisdom about how a black man ought to think. To keep Thomas off the Supreme Court it was not enough to say that we disagree with him, because at least at that time Presidents were usually granted their judicial choices. They had to dig into is personal life and find enough dirt to destroy him personally. There is no tactic not justified to protect the abortion decision. These people continue to poison the political atmosphere. It was Thomas’s spirited defense, when he compared his treatment to a “high-tech lynching” that played on the old canard of uncontrolled black make sexuality, that turned the tide and insured his confirmation, albeit by a slender majority.

The ultimate irony is that although Thomas had a Conservative view of constitutional interpretation there was no guarantee that he would become the stalwart pillar of Originalist jurisprudence that he did. However, the politicization of his confirmation made clear to Thomas that the Court had strayed too far into the political decisions reserved for Congress and the President. Judicial appointments only become continuously controversial when the Courts have usurped enough power from the other two branches the the confirmation process becomes the only place for the political process to play out. If the Courts had allowed abortion liberalization to happen legislatively, which was occurring at the time of the Roe v. Wade decision, the confirmation process now would not be so contentious and ugly.

Onward and Upward

Sunday, November 18th, 2007

Class warfare has never had the saliency in the United States that it has had in Europe. Part of the reason is that in the United States, it has largely been the case, that economic opportunity has been open to merit. There have been critical exceptions like slavery that ended over 140 years ago, Jim Crow in the South, and lingering discrimination. Nonetheless, economic success is as open to talent in the United States as anywhere. It is hard to rail against the rich if the audience aspires to become affluent at some point and this aspiration is realistic.

A recent report from the Department of Treasury confirms the nature of upward economic mobility in the United States. The study began with taxpayers in 1996 and followed their income as reported to the IRS as well as Social Security payments. Individuals were tracked even with joint returns to follow incomes after divorce. Only taxpayers older than 25 were considered in the original cohort because students can go from virtually no income to high income quickly and overstate actual income mobility. About 88% of the original taxpayers in 1996 could be tracked to 2005, with a large fraction of the attrition associated with the death of the taxpayer. Death generally has very negative effect on personal income.

Even separate from the question of mobility the study found the the entire economic escalator had risen several steps. For the group in question, the median real income had increased by 25 percent over 10 years.

Over the course of lifetime, people progress through at least some portion of the income distribution. Most start at a relatively low income, maximizing their income in middle age, living in retirement off Social Security and accumulated assets at at lower income level. The width of the income distribution is a snapshot of the dynamic movement within the distribution.

The study had several other key findings:

  • About one half of the original cohort in the bottom quintile moved into a higher income quintile during the study period.
  • A similar percentage moved from one quintile to another quintile during the 10-year study.
  • At the very tip of the income distribution, the top one-hundredth of one percent, only 25 percent of those in this group in 1996 remained there in 2005. It is not that these people were now poor, only that people occupy the very pinnacle of the income distribution for a short time.
  • Income mobility in this period is consistent with income mobility in early decades.
  • “…[T]he median incomes of those initially in the lower income groups increased more than the median incomes of those initially in the higher income groups.”

These results are consistent with previous studies showing intergenerational income mobility: i.e., that parental income is not a limiting factor to a child’s income. A University of Chicago study found that parental income explains only 37 percent of the child’s income. Extending to the next generation, the a grandparent’s income can explain only 14% of the variation in a grandchild’s income. There are very few hereditary limits on individuals in the United States.

As long as income mobility is maintained, the United States is likely to remain economically free, largely immune from populist animosity.

Atlas Shrugged Remains Salient After 50 Years

Sunday, November 11th, 2007

There are one or two books in most people’s lives that have a profound on the way that they think, creating a narrative that explains and provides context to life. Perhaps the book simply was the first to make a particular person sensitive to a certain aspect of the world. Year-in and year-out, the most prominent book in this category is the Bible. However, beyond this there are a few books whose popularity and saliency have persisted for decades, informing new generations of readers.

In 1991, the Book of the Month and the Library Congress conducted a reader survey that listed the following top five books that affected readers lives:

  1. The Bible
  2. Atlas Shrugged by Ayn Rand
  3. The Road Less Traveled by M. Scott Peck
  4. To Kill a Mockingbird by Harper Lee
  5. The Lord of the Rings by J.R.R. Tolkien

The Modern Library of Random House has constructed a similar “best of” list of novels written English. A board of “prominent thinkers” listed the following top five books as:

  1. Ulysses by James Joyce
  2. The Great Gatsby by F. Scott Fitzgerald
  3. A Portrait of the Artist as a Young Man by James Joyce
  4. Lolita by Vladimir Nabokov
  5. Brave New World by Aldous Huxley

It is easy to make light of the presumptuousness of the list constructed by prominent thinkers which bears little resemblance to what people really find meaningful. One suspects that these “thinkers” put Ulysses at the top of the list because it was one book that few people are able to actually finish and even fewer understand. The top five in the Modern Library reader list are very similar with the Book of the Month Club Poll. Its top five are:

  1. Atlas Shrugged by Ayn Rand
  2. The Fountainhead by Ayn Rand
  3. Battlefield Earth by L. Ron Hubbard
  4. The Lord of the Rings by J.R.R. Tolkien
  5. To Kill a Mockingbird by Harper Lee

Despite the panning by critics at the time of publication, over the last 50 years readers continue to find the work of Ayn Rand important and influential. Eight percent of the American population claims to have read the 1000-plus page novel and the percentage is higher among higher income earners.

The effect of Atlas Shrugged seems to be disproportionate among the influential. Alan Greenspan, former Chairman of the Federal Reserve, has long been known as an acolyte of Rand. In his recent autobiography, My Grandfather’s Son, Supreme Court Justice Clarence Thomas singles out Atlas Shrugged an important footing in his intellectual foundation.

Atlas Shrugged is essentially polemical, arguing that self interest or egoism is not only economically efficient, but a moral imperative. Contrary to conventional wisdom, Rand’s track held that altruism denies the essentially nobility of man. No one wonder that many ambitious people have flocked to a moral system that validates their ambition rather than burdening it with guilt. The “Atlas Shrugged” title refers to the book’s theme: What would happen if those businessmen who support the world through the creation of wealth decided to withdraw that support.

However, the appeal to personal ambition is insufficient to explain Atlas Shrugged‘s long-term popularity. Most of all it is a good story, a moral tale with the forces of good arrayed against the forces of evil. This is a characteristic largely shared with the all the books in the reader-polled listed. Karl Marx’s Das Kapital and Friedrich Hayak’s Road to Serfdom are important milestones in the West’s political legacy, but are non-fiction tracks. They do not use an engaging plot to make their points. John Steinbeck’s The Grapes of Wrath, a novel depicting the injustices of the Great Depression, may have provided a long-term counterpoint to Atlas Shrugged, but it hasn’t despite its literary value. This may be because the economic conditions of the Great Depression have no important counterpart in modern America. By contrast, the collectivism that is the antagonist in the Atlas Shrugged remains a threat in contemporary America. A victory by Hillary Clinton in the 2008 presidential election is sure to spike sales in Atlas Shrugged just as surely as an economic collapse would improve the popularity of the The Grapes of Wrath.

Atlas Shrugged shares with other books, meaningful over the long-term, a call to heroism, especially salient to adolescent and young adult readers who carry the lessons of the books into life. These books are meaningful because of heroic figures from John Galt and Dagny Taggart in Atlas Shrugged, to Atticus Finch in To Kill a Mocking Bird, to Frodo Baggins in the Lord of Rings.

Finally, Atlas Shrugged is popular because it represents a ideology of rebellion to contemporary socialist ideology. Rebellion against authority has always attracted young, energetic people.

On the Use of Extreme Interrogation Techniques

Sunday, November 4th, 2007

When a policeman shoots a person brandishing a weapon in a threatening manner at at third party, we recognize that to protect innocent life, it may be necessary to take a guilty one. There are pacifists who will argue that taking a life is never justified, but by and large, most have concluded that it is always regrettable, but sometimes necessary. Indeed, protection of the innocent is not just a preference, but often a moral responsibility.

In general, the world is a lawless place and we grant governmental officials the authority to act violently in our behalf. Of course, the use of force is governed by laws and protocols. Some people believe that as Commander-in-Chief, the President is granted broad latitude in application of force. In an interview with Chris Wallace on Fox News, former President Clinton boasted about his efforts to pursue the chief terrorist Osama Bin Laden,

“What did I do? What did I do? I worked hard to try to kill him. I authorized a finding for the CIA to kill him. We contracted with people to kill him. I got closer to killing him than anybody has gotten since.”

In hindsight the killing of Bin Laden would have been salutary and perhaps even averted the deaths of over 3,000 people on 9/11. Hence, no one complained about Clinton’s implicit assertion that the president has the inherent authority, without judicial finding or legislative action, to order the killing of a person, he judges, poses a severe threat to the citizens of the United States. This is quite a claim and seems to have passed by unremarked upon.

The immediate question before the US Senate is whether to approve the nomination of US District Court Judge Michael B. Mukasey for US Attorney General. There is no doubt about Judge Mukasey’s understanding of the law, experience, and judicial temperament and his confirmation by the Senate seemed assured. This easy ride ended when Mukasey was equivocal on the use of waterboarding to extract information from captured terrorists. Waterboarding is a technique were the person being interrogated is not physically harmed, but made to feel that he or she is drowning. By all accounts, it is very effective is extracting information from reluctant parties. By international definition, torture also includes severe mental suffering. Despite the fact that journalists for background and US military special forces in training have undergone waterboarding, many consider waterboarding to be torture. For our purposes here, we can categorize waterboarding as torture. The moral (though perhaps not legal) arguments below are independent on how waterboarding is categorized. The legal case may affected by this categorization and some argue that waterboarding is not sufficiently “severe” to be defined as torture.

Mukasey did point out that waterboarding is prohibited to the military for captured military prisoners, but was unwilling to draw a more categorical prohibition. In his written response to the Senate, Mukasey wrote that actions like waterboarding may “seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans.” However, “hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical.” In short, the judge was unwilling claim that waterboarding would be inappropriate under any circumstance. Indeed, Congress when given the chance could not pass a categorical prohibition against waterboardimg.

The classic argument for use of extreme interrogation techniques is the “ticking atom bomb scenario. ” Imagine that there is an atom bomb about to go off, potentially killing many thousands of people, and someone in custody has information that could prevent the bomb from going off. Virtually everyone concedes that aggressive techniques – even torture – would not only be justified but morally required.

Just as Judge Mukasey opined, hypotheticals are not appropriate to draw general conclusions from. The atomic bomb scenario is unlikely and is just an extreme example to to illicit the concession that there might be times when torture would be necessary.

There are reports that Khalid Sheikh Mohammed, the high-level Al Qaeda leader was waterboarded and revealed information crucial to breaking up terrorists plots. If this is indeed the case, it would be no wonder that Administration authorities are reluctant to relinquish this tool.

The real question is how to make reasonable accommodation with situations in extremis. Do we prohibit extreme forms of interrogation and oblige our leaders to break the law or do we formally recognize that rare necessity of such techniques?

Those in favor of the latter position plausibility argue that the forcing our leaders to break the law would make reticent to use extreme interrogation techniques unless absolutely necessary. However, forcing people to break the law to do what they believe is necessary breeds disrespect for the law and guarantees that each decision will be made with short time for consideration. By contrast, if the use of the extreme interrogation techniques were regularized it would allow us to think through potential situations. Regularizing the circumstances for use of these techniques allow us to prescribe criteria for appropriate application systematically rather than in an ad hoc manner during a crisis.

When an officer uses a gun to protect citizens, he has been trained in the rules for use of lethal force and knows how he will be judged later. We would not want to prohibit use of lethal force and force the law enforcement officer to break the law to save a life. Why would we want the President to have to break the law he is sworn to uphold? If Congress is truly concerned about the use of torture,or aggressive interrogation if you prefer, they would serve us better if the held hearings on when extreme interrogation techniques ought to be legal and appropriate. How extreme can they be? They could provide legal and moral guidelines useful for this and future administrations.