Don't hate the player, hate the game

So the narrative of Elena Kagan has formed pretty darn quick. She's ambitious but murky, secretive and covetous, a highly experienced lawyer with an empty paper trail, possibly a softball-playing lesbian. Of course, like any good Supreme Court nominee battle, the narrative is flawed, crafted in part by waves of countervailing spin and in part by the media's desire for a easy digestible pro/con scheme. Sonia Sotomayor was many things, but the one with the highest syllable-to-controversy ratio was "wise latina", and so that was the thing she was. I won't try to tackle all of it at once, only to state my opinion that she isn't as progressive as I'd like but a) I'm Canadian b) she will, like most judges in recent history, vote the way her president wants her to, and so her liberal cred isn't a huge deal to me. The other thing is that I fall on the Lessig side of things; I think Greenwald pretty grossly misinterpreted her take on Executive authority, and I'll let SCOTUSblog do the heavy lifting for me:

Some have criticized Elena Kagan for supposedly favoring a strong view of executive power. They equate her views with support for the Bush Administration’s policies related to the “war on terror.” Generally speaking, these critics very significantly misunderstand what Kagan has written.

Kagan’s only significant discussion of the issue of executive power comes in her article Presidential Administration, published in 2001 in the Harvard Law Review. The article has nothing to do with the questions of executive power that are implicated by the Bush policies – for example, power in times of war and in foreign affairs. It is instead concerned with the President’s power in the administrative context – i.e., the President’s ability to control executive branch and independent agencies. That kind of power is concerned with, for example, who controls the vast collection of federal agencies as they respond to the Gulf oil spill and the economic crisis.

Nor does the article assert that the President has “power” over the other branches of government in the constitutional sense – i.e., a power that cannot be overridden. To the contrary, Kagan “accept[s] Congress’ broad power to insulate administrative activity from the President.” (2251). She instead makes the descriptive claim “that Congress has left more power in Presidential hands than generally is recognized.” (Id.)

Anyway, I'm getting away from myself. What I really wanted to talk about was the "ambitious" in "ambitious softball-playing lesbian".

This sharp post got me thinking about it. Jonathan Bernstein's point, for the short of reading, is that Kagan is being unfairly maligned for being ambitious, when being ambitious is just a given for those who seek federal office. It's a fair criticism, and fairer still when you think of how uncontroversial an argument it is. Can you possibly imagine a scenario in which an unambitious person wound up president? Maybe if the president and the first 30-40 people in the line of succession were all swallowed whole in a Sarlacc pit, there would be a slight chance that you'd wind up with a replacement president of minimal political appetites. Even then, a stretch.

This isn't to say unqualified people can't occupy political office, just that ambition is essentially a qualification. Those without ambition, be it personal or ideological, just aren't going to get involved. So attacking a politician for being ambitious is, to me, kind of like attacking a politician for being unprincipled. If it makes good political sense for someone to flip and flop all over the place, why wouldn't they? Obviously it's scummy, just like how ambition can be scummy as well, but unless we return to some kind of monarchical system that limits the ranks of the political elite significantly, we're stuck with it. Even then, people are going to keep trying to take the throne, they're just going to use a lot more swords.

Bernstein makes this argument, but it bears repeating: if we fear the rise of judges who hide their paper trails because of their ambition, then we have to change the system of Supreme Court nomination to make hidden paper trails a liability. Ambition is a structural fact of political life and of human nature. Smart people are always going to look at what they want, figure out how to get it, and pursue that strategy, and if the dominant strategy for entering the Supreme Court is to keep your mouth shut as much as possible then that's what tons and tons of judges are going to do. I know that there are strong partisan reasons that would seem to preclude rules reform, but even small things, like a requirement that the nominee had taken a public stand on a certain number of significant issues, could really get rid of this problem. Until that happens, however, talking about the ambitions of a Supreme Court nominee is like talking about a marathon runner's legs: of course they've got them.

In which David's feelings are hurt

NOTE: What follows is super navel-gaze-y and whiny and for that I apologize. Think of it less as a blog post and more as something I would be telling you about over a beer were I physically proximate enough to do so.

Although I am a heavy consumer of blogs, I rarely, rarely comment (except here, of course). There are a few reasons, but the main one is that blog comment sections are dens of logical and rhetorical iniquity, places where lonely, angry people are given free rein to verbally assault other lonely, angry people that they may never meet. Trying to insert one's carefully crafted opinion into a comment section is like dropping a bottle of Purel into an outhouse.

It's not that I don't read comment sections occasionally and desire to jump in as well. It's just that I know that no matter what I say, no matter how limited in scope or tentatively put it may be, if there is an ounce of provocation or debate in it, someone will jump up and down on my e-balls like a crazed baboon.

The relevant example: yesterday, a friend of mine changed his Facebook status to

"To all those who "liked" the page "DEAR LORD, THIS YEAR YOU TOOK MY FAVORITE ACTOR, PATRICK SWAYZIE. YOU TOOK MY FAVORITE ACTRESS, FARAH FAWCETT. YOU TOOK MY FAVORITE SINGER, MICHAEL JACKSON. I JUST WANTED TO LET YOU KNOW, MY FAVORITE PRESIDENT IS BARACK OBAMA. AMEN." need to explain to me why calling on the death of a sitting US president (who isn't even liberal, let alone a socialist) is ok..."

He's a liberal dude who is originally from Northern Florida and was in a frat, so I doubt he posted it without expecting some kind of response. And of course he did.

A sampler:

"he is a socialist, communist, super leftie who sucks at his job...and what, these jokes were never around for other presidents...chill out chevo!"

"Fritz has a point. The 2008 election had a record number of extremely uneducated voters who turned up at the polls for "hope" and "change". (read: clever marketing). They didn't know the issues then, they don't know them now. All that goes on in their heads is "Obama = god, people who don't like Obama = idiot right wing extremists who don't know what they're talking about". Nothing has changed in America, except the fact that now China basically owns us..."

"...So why are they raising taxes on nearly everything AND proposing this God awful VAT? Maybe so they can continue to fund the support of the 47% of the US populace that does not pay any income tax. Make sure the plebes have their bread and circus and Rome can continue. It isn't that hard."

Against my better judgment, I posted a response:

1. What does "rated as the most liberal senator" mean, exactly? Not only are those ratings usually pulled together by thinktanks with thinly veiled political intent, how do you rate someone as "the most liberal"? What is "the most liberal" thing I could do?

2. "Maybe so they can continue to fund the support of the 47% of the US populace that does not pay any income tax." This is horribly misleading. This number refers to federal income tax only. There's a whole array of other state and federal-level taxes that are being paid, like state income tax or payroll taxes (3/4 of American households pay more in payroll taxes than incomes taxes anyway). In reality, the number of people who pay no net federal taxes is around 10%. Beyond that, states taxes are mad regressive, so whatever benefit the "plebes", as you put it, may acquire from exemptions on federal income taxes are lost.

3. Where is the evidence that "some of the most uneducated people voted in this election"? Is that provable? Does Rush Limbaugh own an apartment in your brain, or just rent?

Here's the entirety of what I got back:

Oh look at the clever liberal. I don't like Obama's policies, so I must be a Rush Limbaugh listener. Fail logic sir. I don't watch FOXnews either, I know, how can that be possible! Doesn't like Obama AND doesn't like conservative talk radio/TV?

I'm a fiscal conservative. Everything Obama is doing to the country goes against what I believe fiscally. Nothing good will come from spending this kind of money on programs with limited foreseeable benefit. I think the Bank Bailouts proved that beyond a doubt, have you seen the unemployment numbers? Money well spent? Not in this life, buddy.

That's it.

Now, to be fair, there were a number of people who posted (30 long, long comments) and both the tone and the intelligence level varied a lot. But c'mon! I put forward a series of points, and the only response I get focuses entirely on a line of snark I nailed on to the end before wandering back into the land of fact-free irrelevance. It's almost like the dude scrupulously avoided reading or thinking about any of what I wrote that didn't offend him.

Anyway, I could go on, but I shouldn't. The point of this post is that while I find the internet a great place to find and study information and opinions, it really is a horrible place to have an actual conversation. Am I alone in thinking this?