This is why "empathy" on the Supreme Court is a good thing

A few years back, President Obama earned sneers from conservatives when he said "empathy" is a quality he looks for in making judicial nominations. I thought about that today when reading about Justice Sotomayor's dissent in a police evidence case.

Essentially, the court ruled that evidence can sometimes be used against defendants even if that evidence was gathered by police illegally. Sotomayor was cranky. From TPM:

She was joined in most of her dissent by Justice Ruth Bader Ginsburg (who also joined a dissent penned by Justice Elena Kagen). But, in the final portion of Sotomayor's dissent, she said she was "[w]riting only for myself, and drawing on my professional experiences." There, she expounded upon the "severe consequences" the unlawful stops in question have, including being "degrading" and causing "indignity." 

"Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more," Sotomayor, the first Latina justice on the Supreme Court, said. "This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact." 

In this case, "empathy" means having a visceral understanding that some people — minorities — are targeted for stops that have "pretextual justification after the fact" more than others. "Empathy" means knowing that outside the ivory-tower domain of an appellate courtroom, the law falls on different people in disproportionate and burdensome ways. "Empathy" seeks, then, to hold the law not just to the letter of the Constitution but the spirit. Justice Sotomayor is an asset to the court.

About those terrorist watch lists

Eliminating One Constitutional Right Does Not Make All the Rest Fair Game | Kevin Drum

"Due process" is the key phrase here: the US government should never be able to revoke fundamental liberties based on mere suspicion. This doesn't necessarily mean that suspects are entitled to a full-on court hearing, but due process does mean something substantive, speedy, and fair.

That's why I'm not comfortable with proposals to use watch lists — as currently constructed — to deprive suspects of gun rights. I think it's wrong that those lists are used to deprive suspects the right to fly.

Understand: I'm not against depriving guns or flight rights to terrorists. But there's got to be a process that's open, understandable, and lets the accused make a legitimate effort at challenging the designation.

Does "domestic gun violence" cause "domestic gun violence?"

When nonsense becomes the party line | Power Line

Surfing past Fox News this morning, I heard someone report on a poll about what caused the massacre in Orlando. Apparently, most Republicans believe it was caused by Islamic extremism, whereas most Democrats believe it was caused by “domestic gun violence.”

But the massacre was domestic gun violence. Democrats might just as well say that murder caused of murders.

I dunno. It occurs to me that it might be more like saying that the flu virus causes the flu. In such case, I guess, you could say "the flu causes the flu" and people would laugh at you, but you wouldn't be wrong.

We have a culture unique in its access to and (I'd say) worship of guns, a founding that depends on righteous violence to achieve, and a political culture that to a large degree believes might makes right. And we have an awful lot of gun violence that, in some cases, leads to copycat gun violence. I'm not so sure that domestic gun violence isn't the cause of domestic gun violence.

Why we debate the Second Amendment the way we don't debate other rights

NRO's Charles CW Cooke:

“It is not acceptable to treat the Second Amendment as if it is a second class or less important right, and it’s not acceptable to deprive individuals of it purely because they are under suspicion… In my view, the way to take someone’s rights is to convict them of something.”

I hear this kind of thing a lot from my conservative friends, but it seems there's a kind of willful naiveté involved here. The reason our discussion of the Second Amendment is different is because the effects are different.

As I've said a million times: The function of a gun is to kill. Other things that a gun is useful for — hunting, self-defense — are a byproduct of its function to kill. That differentiates it from other tools or inanimate objects that can also cause death:

Yes, lots of people die in cars each year, but that's an accidental and unfortunate byproduct of the car's essential function to provide fast transportation — and, incidentally, we've worked successfully to mitigate that accidental byproduct. When a person takes a gun and kills 50 people in a nightclub, the person is defective, but the gun is working precisely as it should. No other civil right has quite the same results.

The First Amendment doesn't result in a Sandy Hook. The Fifth Amendment doesn't create a Columbine. But guns — and a Second Amendment that makes access to guns easy and widespread — often result in death. Lots of it.

 Now: Just because this is true doesn't mean the policy discussion should go one way or another, necessarily. But it's the reason, sensibly, we don't just say "welp, it's a Constitutional right" and shrug our shoulders. Guns are different. The Second Amendment is different. We shouldn't pretend otherwise.

Karl Rove is the reason we can't get along after big terror attacks

For a few years now there's been a fond hearkening back to the so-called "9/12 moment" — a memory of the last time the United States responded to a terror attack with something like unity. Now, whenever there's a man-made disaster, everybody retreats to their usual battle lines and starts throwing grenades.

 David French laments this today at National Review:

I can’t recall a better time to be an enemy of the United States. The message to the jihadist world is clear: Not only is it open season on Americans wherever they live, work, and play, but jihadist attacks will have the added strategic benefit of further dividing a polarized country.

So what happened? My guess: Politics, of course.

The problem with Tom Friedman's "New Republican Party."

Tom Friedman tells thoughtful never-Trump conservatives it's time for them to go form their own party today:

America needs a healthy two-party system. America needs a healthy center-right party to ensure that the Democrats remain a healthy center-left party. America needs a center-right party ready to offer market-based solutions to issues like climate change. America needs a center-right party that will support common-sense gun laws. America needs a center-right party that will support common-sense fiscal policy. America needs a center-right party to support both free trade and aid to workers impacted by it. America needs a center-right party that appreciates how much more complicated foreign policy is today, when you have to manage weak and collapsing nations, not just muscle strong ones. But this Republican Party is none of those things.

Sounds good. Here's the problem: What kind of electoral success would thoughtful conservatism have without its Trumpkian allies? Not much of one.  Damon Linker identifies the problem:

In praise of distracted, Internet-addled writing

In his review of Freewrite's "Smart Typewriter," Ian Bogost offers praise for the pre-Internet era of writing, when one could set one's fingers to the keyboard and simply write, without all the distractions and bells and whistles that a wifi connection bring to the process.

There's more than a hint of protesting too much.

No one would reasonably dispute that writing tools affect the shape and content of both writing and the thought that goes into writing, but it's mistaken to suggest — as Bogost seems to — the the older, slower way was necessarily deeper. Here's an odd passage:

For Nietzsche, the typewriter offered a way to write despite his deteriorating vision (and sanity). He knew that tools changed their users; “Our writing tools are also working on our thoughts,” Nietzsche aphorized. These are facts I happen to know just because they were memorable, not because I remember facts like these regularly anymore. I’ve long since outsourced such easily-rediscovered knowledge to the Internet.

Here's the thing: The human brain is at once both wondrous and limited. In writing this essay 30 or 40 years ago, Bogost might've dropped the exact same knowledge from memory — or, if he (as is often the case with this kind of learning) remembered-ish Nietzsche's comment, he would've gone into the stacks of books (his own, or perhaps a library's) to find the comment, quote it precisely, and cite it. Now, if he's unsure, he can Google it up. Good writing rarely stops and starts with the writer's brain and the writing tools; it's often augmented by reporting and research, knowledge of not just how to marshal facts in service of a story or argument, but how to marshal those facts. Forty years ago, Bogost might've written: "I've outsourced such easily-rediscovered knowledge to the encyclopedia," and it would've sounded silly as a lament. We writers use such tools to enlarge our understanding, and our craft.

Our old arguments don't explain Donald Trump. (Or, why point-counterpoint is in danger.)

Dennis Prager's approach to column-writing is pretty simple: A) Something is bad in the world. B) Democrats are at fault. So goes his explanation for the rise of Donald Trump.

It's tendentious and dumb — as per usual with Prager — but reading it made me consider a possibility: The old right vs. left construct of our debates might be a bad template going forward. It depends on how much Trumpism survives 2016. If this is more than a one-off, then "telling both sides of the story" won't work anymore, nor will point-counterpoint presentations. (I say that as somebody who co-authors a nationally syndicated point-counterpoint column.)  Trumpism has an array of causes, and grafting an explanation for him onto our old debates seems to not quite hit the point. We're going to need new arguments.

Vulture ponders: "Why X-Men: Apocalypse Is Generating So Little Excitement"

Unexplored possibility: We're at peak super-hero, and maybe after two giant comic-based adventure movies in the last six weeks - including one a week ago -  maybe we're about all ka-blammed! out.

Teaching Philly kids to use guns — the right way

Two years ago, trying to find a radical solution to the gun violence problem in Philadelphia, I suggested that maybe it was time to stop clamping down on guns and time to start inculcating a culture of responsible gun ownership and usage. It was kind of a controversial idea. 

While there are plenty of guns circulating in Philadelphia, there are also plenty of guns — per-capita, at least — in my home state of Kansas. Yet there are relatively few gun deaths there: As best I can tell, 9.9 gun deaths per 100,000 residents in Kansas, compared to 24.3 in Philadelphia. (The comparisons aren’t quite exact, but I think the disparity between those two numbers is probably in the neighborhood of correct.) Why? 

One of the reasons, surely, is that cities are simply more violent places: Living cheek by jowl can produce short tempers; short tempers can produce violence. 

But it’s also true that my rural friends have built a culture of gun safety that goes hand-in-hand with the culture of gun ownership. The clearest expression of this: To get a hunter’s license in Kansas, you must complete a 10-hour hunter safety course — heavy, of course, with lessons on how to handle firearms safely and respectfully. Some classes are taught by the NRA, but a hunter safety course was offered in my rural Kansas middle school back in the late 1980s.

Today, Helen Ubinas reports somebody else had the idea, too, and is running with it. Meet Maj Toure:

While gun-control advocates are forever looking for ways to reduce the number of guns in circulation, Toure favors dealing with a gun culture that isn't going anywhere, believing that legal gun ownership and training can reduce crime. In a city where so many people die by guns, I'd love to believe that solution would work. But my guess is that the people who go to the trouble of educating themselves about what it takes to own and handle a gun legally aren't the yahoos creating chaos with guns on the streets. 

"I was 15, walking around with a gun I had no idea how to use and no real respect for," he said. "In hindsight, I wish there would have been somebody to say, hey, this is a firearm, it's not a game. So when I'm seeing other people living out the same scenario, I want to be that adult teaching them properly."

Toure's militance puts Ubinas off a bit — he apparently favors black gun ownership as a deterrence against police brutality. It's worth noting, though, that Second Amendment activists often suggest that private gun ownership is a means of restraining government; Toure is well within NRA norms on that one. And for what it's worth, gun control efforts largely have their roots in white fears of an armed black populace. I'm curious to see what impact Toure's efforts have in Philadelphia. It's a hell of an experiment, at the very least. 

Senate GOP investigates Facebook

If Facebook really has biased its feed results against conservative outlets, that truly sucks. But I wonder if my conservative friends think that warrants government intrusion into the company's affairs, and if so: On what basis?

WaPo: Hillary can win only by deferring to the sensitive egos of short-fingered men

Wonder if Hillary has a sexism problem? Read this morning's column by Danielle Allen in the Washington Post:

Consider her slogan, “Fighting for us.” For many men, this slogan would have to be experienced as emasculating. 

Wait. Really? Are America's men really so easily afflicted with a sense of emasculation?

A woman fighting for them? Rightly or wrongly, the slogan rubs the wrong way in relation to traditional notions of masculinity. 

Apparently so.

Her slogan itself reveals a limited conception of who she seeks to represent. 

This, I don't get. "Us" is a fairly broad and innocuous term. The only way the slogan could be more rhetorically inclusive is if it it was "Fighting for us AND them." But that, uh, would present its own set of challenges.

How does Allen suggest Clinton overcome her problem?

Personally, she should meet his insults with a cheery silence, or a lighthearted deflectionary joke.

Don't want to seem like an angry feminist! This, of course, cedes too much ground to Donald Trump -- he's free to continue his misogyny and the advice is not to counter it and call it out for what it is, but to smile and say something pleasant. It's the same advice women have been getting for years, and it's mostly been offered in order to keep men from feeling uncomfortable in the face of women's frustration with the behavior of bros.

Are conservatives relevant to 2016's politics?

One relief about the rise of Donald Trump is that his alienation from the conservative intellectuals in the Republican Party means he can’t — and probably won’t — gussy up his campaign with any pretense that it’s about restoring limited-government Constitutionalism to American governance. We don’t really know if Trump even has a theory of Constitutional interpretation, but his public statements seem skeptical of the idea that his presidency would be one that could be checked or balanced.

Why is this a relief? Because for all the talk my smart conservative friends have about the Founders, liberty, fiscal rectitude, and a strict-constructionist view of the Constitution, Republicans don’t actually govern that way all that often. George W. Bush was more or less handpicked by the conservative establishment, and defended vociferously by it, but his administration was defined by both mounting deficits (just like Reagan’s!) and its attempts to innovate theories of expanded executive power. (Remember the unitary executive?) Republicans often talk a sort of libertarian talk, but they don’t walk it very often. And there's plenty of evidence that's not really what their voters want from them anyway, except when a Democrat is president. (When a Democrat is elected, they beat their chests, try to make the Democrat conform more fully to their constitutional vision, and promise to do better next time.) This election, at least, they won’t talk it, either.

Here’s the weird news: That means the argument is about to change.

The Long Struggle Against Trumpism

Well, that's it. Donald Trump is your presumptive GOP nominee for president.

I do not think he will win the presidential election — but I don't take  his loss for granted. I'm more worried about a repeat of 1964. Barry Goldwater went down in flames. But his candidacy provided the platform for Ronald Reagan's political career. And the battle of 1964 was won, ultimately, in 1980.

Does Trumpism have that kind of staying power? I suspect yes, but I'm a pessimist. If so, then, we who disagree with Trumpism have to work to defeat him this year — but his spiritual successors in years to come, as well. Will the battle of 2016 be decided in 2032? We should prepare for that possibility.

One way to battle Trumpism: Acknowledge that some of Trumpism's underlying causes have merit. (Not all of them: The anti-Semites and racists are just evil people.) Those of us who have been nattering on about income inequality for years — well, this is a reason why. When people finally get tired of the Way Things Are, they rarely change things in a pretty or pleasing way. Stuff gets broken. And there's no point in complaining about the mess. So maybe it would be better to address some of those issues proactively.

It's probably the work of a lifetime.

Netflix Queue: E.T.: The Extra-Terrestrial

Three thoughts about E.T., coming up after the trailer....

1. My family watched E.T. tonight — for me, the first full sit-through since I originally saw the movie as a 9-year-old in 1982. Back then, popular movies stuck around in the theaters for a few months; they didn't do all their business the first week or two. So after months of increasing word-of-mouth, my parents took us to see. I remember crying when E.T. died and shouting with joy when the kids took off into the air on their bicycles.

My 7-year-old son didn't get teary-eyed tonight. But the adults did. And when Elliott and ET took the air and sailed "across the moon," my boy did, in fact, shout out with delight. What can I say? It made me happy the movie can still connect, and it made me happy that my blockbuster-blitzed son isn't already jaded.

2. One thing Spielberg does in the movie is create the world as a children's world. Something I'd never noticed before: Except for Dee Wallace, as E.T.'s mother, you never directly see an adult's face for the entire movie until Peter Coyote shows his, three-quarters of the way in, after the family's house has been sealed off and quarantined.

3. Henry Thomas as Elliott: Gives an amazing performance by a child actor, actually. So does Drew Barrymore. They feel real, not like kids acting. Some of that, I'm sure, has to be Spielberg's directing.

Bonus point: Since I obsessively re-watch movies I love, why no return visit to E.T. until now? I'm not sure. I think I was afraid I'd find it overly saccharine as an adult. That didn't turn out to be the case. But it might be also true that I did revisit E.T. obsessively when I was a kid: My uncle owned the movie's novelization — do they still do that? — and I read and re-read that paperback until it literally fell apart. The movie I created in my mind's eye was as rich as what had appeared on screen, and for a long time, it served my purposes.

And yes: For several years, I fantasized about finding my own extra-terrestrial. Never happened.

Netflix Queue: No, Punisher isn't "Daredevil's" most moral character

I actually enjoy Marvel on Netflix better than most of what the company brings to the big screen. So this piece at The Federalist caught my eye:

The Punisher, who murders dozens, if not hundreds, of people in the second season of Netflix’s “Daredevil,” is actually the most moral character on the show. 

Daredevil, who’s willing to break every law and ethical rule on the road to putting villains in useless prisons but unwilling to go any further, willingly participates in a vicious cycle that makes a mockery of justice. Allowing the revolving door of crime to continue ad infinitum is naive at best and immoral at worst. The Punisher realizes this and attempts to end the cycle instead.

Through murder, of course.

Now, we're talking about comic book characters here, so this probably isn't a topic worth dwelling on too long but a counterpoint is needed here. If your viewpoint is that there's good and evil and evil can only be overcome by being destroyed, maybe the writer — Stephen Gutowski — has a point.

But if your moral framework includes the possibility of redemption — of being lost, then found; of making the journey from darkness into light — then the Punisher's ethos has to be reconsidered.

Gutowski all but calls Daredevil a "wimp" in his piece here, and it's true that Matt Murdock's angst in the Netflix show can get a bit overbearing sometimes. But it's interesting that Gutowski never quotes Murdock's defense of his "take them off the streets but let them live" approach:

DD: What about hope? 

P: Oh, f*ck. DD: Come on, Frank... 

P: You wanna talk about Santa Claus? 

DD: You wanna talk about Santa Claus? I live in the real world too, and I've seen it. 

P: Yeah? What have you seen? 

DD: Redemption, Frank. P: Ah, Jesus Christ. 

DD: It's real. And it's possible. The people you murder deserve another chance. 

P: What, to kill again? Rape again? Is that what you want? 

DD: No, Frank. To try again, Frank. (panting) To try.

I'm lapsed in my own faith, but I'm reminded (as I so often am) of John 8:

8 But Jesus went to the Mount of Olives. 2 Early in the morning He came again into the temple, and all the people were coming to Him; and He sat down and began to teach them. 3 The scribes and the Pharisees *brought a woman caught in adultery, and having set her in the center of the court, 4 they *said to Him, “Teacher, this woman has been caught in adultery, in the very act. 5 Now in the Law Moses commanded us to stone such women; what then do You say?” 6 They were saying this, testing Him, so that they might have grounds for accusing Him. But Jesus stooped down and with His finger wrote on the ground. 7 But when they persisted in asking Him, He straightened up, and said to them, “He who is without sin among you, let him be the first to throw a stone at her.” 8 Again He stooped down and wrote on the ground. 9 When they heard it, they began to go out one by one, beginning with the older ones, and He was left alone, and the woman, where she was, in the center of the court. 10 Straightening up, Jesus said to her, “Woman, where are they? Did no one condemn you?” 11 She said, “No one, [a]Lord.” And Jesus said, “I do not condemn you, either. Go. From now on sin no more.”]

If Jesus wanted to guarantee the woman sinned no more, of course, he could have stood by and watched as the Pharisees killed her. Instead, he reminded everybody of their own moral failings, and admonished her to do better.

Morality untempered by humility, given the power over life and death, is often twisted into something ugly and, frankly, immoral in and of itself. It's a tension that makes for great storytelling — the Punisher is a great character, and so is Javert, and hell, so is the John Lithgow character in "Footloose." Frank Castle might be "Daredevil's" most interesting character this season, but most moral? Nah. That's too easy.

The NYT says American productivity is stagnant. Here's a theory why.

The New York Times observes that American productivity is stagnant, and considers three theories why.

During the 2008 recession, labor productivity soared. Was this because employers laid off their least productive workers first? Because everybody worked harder, fearful for their jobs? Or was it a measurement problem as government statistics-takers struggled to capture fast-moving changes in the economy? We don’t know for sure.

None of the Times' three theories use this armchair psychoanalysis to consider one obvious reason American workers aren't more productive these days:

It isn't friggin' worth it.

Since the end of the Great Recession, Americans have become more and more aware — aided by growing discussion of income inequality and movements like Occupy Wall Street — of two very salient points:

• For decades, American productivity has soared.

• During those same decades, worker wages have stagnated.

Here's The Atlantic, reporting in February 2015:

Though productivity (defined as the output of goods and services per hours worked) grew by about 74 percent between 1973 and 2013, compensation for workers grew at a much slower rate of only 9 percent during the same time period, according to data from the Economic Policy Institute.

That increased productivity has been good for the bottom line of a lot of businesses, but it hasn't meant boo to most workers. (Top earners, though, have seen their income and wealth soar.) Why have Bernie Sanders and Donald Trump been so successful this  election cycle? Because a fundamental American promise — worker harder, you'll probably do better — seems to be broken.

I come from the news industry, where we've spent most of the last couple of decades under constant pressure to do more with less, more with less, more with less. At some point, there's no more to be wrung from less. And if giving more won't gain you more, why not just put in your time, clock out at the end of the day, and stress out a little bit less?

This isn't the kind of thing that economists measure, I don't suppose. But maybe productivity is declining because workers are tired of the cycle. Maybe they need incentives.

How can you vote for Hillary Clinton and call yourself progressive?

Good question. Easy answer. I voted for Ralph Nader in 2000. I think we all remember how that worked out.

OK. Time to go vote.

Gonna cast a ballot for Hillary, hope she defends the progressive gains of the last eight years, and pray she doesn't choose to needlessly invade a Middle Eastern country.

It's a gamble.

What Vox gets wrong about Mississippi's anti-LGBT law.

Vox's explainer gets a little too cute today in discussing state-level LGBT laws:

What if I told you Mississippi's law doesn't actually allow anything new?

Now, the new law does technically allow discrimination against LGBTQ people: It lets bakery owners, for instance, cite religious beliefs to deny services to same-sex couples seeking to buy a wedding cake. 

But even before the new law was passed, this type of anti-LGBTQ discrimination was entirely legal in the state, because neither Mississippi nor any municipality in the state included sexual orientation or gender identity in its nondiscrimination protections. So it was already legal for Mississippi businesses to discriminate against LGBTQ people, whether they cited religious beliefs or just said they don't like gay or transgender people.

This is both true — and good on Vox for helping readers understand that gays don't have protection in many places — but also kind of missing the point.

No, gays didn't have that legal protection in many states. But it's also a relatively new thing to write into the law that certain types of discrimination will be explicitly protected by the state.

As much as anything, laws have signaling functions: In this case, they allow a specific group (Christians) to deny services to a specific group (gays) in a way that's pretty rare in the rest of our laws.

I'm on record saying I'd rather my gay friends and Christian friends find solutions that avoid big fights like this — there ought to be room for both sides to exercise their rights without it becoming a zero-sum game that nobody really wins — and Vox is right that discrimination against gays is often legal.

But the law was silent before. It now affirms the discrimination. The effect may be moot, but the signal is not. That's new, and it's troubling.