Wednesday, August 23, 2006

Judicial Projectionism

Why are conservatives so god damned blind when it comes to their own personalities?  In this case, I’m specifically talking about the attacks against “activist” judges who supposedly base their court decisions on predetermined outcomes of what they think should happen.  And as I mention at the end of this post, this isn’t even what Judicial Activism means.

Sure, what conservatives describe is a problem, but it’s a problem that they themselves fall victim to repeatedly.  They’re the ones who mask their personal opinions behind fake rationales and refuse to even consider any fact that doesn’t fit into the picture that they expected to see.  For them, the ends justify the means to such an extent that they insist that only historians will be able to properly judge what’s going on right now.  For them, predetermined outcomes trump everything else, including what they see with their own eyes.  They know they’re always winning because they know they’re going to win, and any short-term loss must be for a greater good.  And they know they have to keep thinking and saying this to make it true.

Apparently, this is because conservatives were all born with a special oracle-like gut which can foresee events and make decisions that seem utterly stupid to people who are stuck relying on their brains to make decisions.  And they know this is true because their guts have been right on a few occasions (Rathergate), and because guts have poor memories for the times when they weren’t so right (almost every other occasion).  After all, anyone can be right when everyone is right; but it takes true genius to be right when everyone else is wrong.  And so it’s just better to take the longshot every time than to bother with the safe bet.  And if that means you’ve got to lose a few times, so be it.  Because they know it’s just a matter of time before they’re right again and get the big payoff.

No Good Arguments

Here’s the self-parody Ann Althouse arguing in the NY Times Op/Ed against the recent wiretapping decision (emphasis added):
For those who approve of the outcome , the judge’s opinion is counterproductive. It will be harder to defend upon appeal than a more careful decision. It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush. It helps those who have been arguing for years about result-oriented, activist judges.

Can anyone say, “predetermined outcome”?  Because that’s exactly what she’s got here.  Now, I’m not a legal mind, but Publius at Legal Fiction raised some decent points that the decision might not have been reached through proper judicial procedures.  Glenn Greenwald disagrees in that fairly persuasive fashion of his, but for the sake of argument, I’ll grant that perhaps Ann and Publius are correct.  And Ann says that this judge didn’t even bother wrapping up her opinion in legalese, as she claims the dreaded activist judges usually do.  And again, that’s about what Publius was saying too.

So if true, what should that suggest?  If anything, it suggests Judge Taylor was a dummy.  I don’t know that myself.  It sounded like a good decision to me, but again, I’m no lawyer and really haven’t bothered reading many arguments about this.  So maybe the judge is a dummy.  That’s Ann’s opinion.  And so based upon that, Ann would be safe in saying that the judge was a dummy who reached her opinion incorrectly and that we’ll need to wait for further court decisions to see where this is going.  That’s about as far as any fair analysis could take this, and approximates Publius’ argument.

But not for Ann.  Instead, she has to take things much further, to actually suggest that this bad decision proves there are no legal arguments against the program?  WTF??  That’s just stupid.  Perhaps there aren’t any good legal arguments against Bush’s program, but if you think the judge is dumber than the typical dumb judge, then it would be a touch premature to use that as any kind of evidence that there are no good legal arguments.  Hell, why do we even need brilliant lawyers, if dumb people’s opinions are considered to be the extent of legal arguments?  I’ve got a few dumb opinions of my own.  Is Althouse really suggesting that this is the extent of intellectual thoughts on these subjects?

Had Ann expressed faith in this judge’s intelligence and considered her to be the cream of the crop, it might make sense to reach her conclusion.  But she somehow believes that a judge she considers to be stupid reflects the extent of the liberal position.  And I think that Ann knows that, which is why she never directly insults the judge’s intelligence.  But it’s that very omission which suggests that she knows this is true.  The dumber she thinks this judge is, the less we can determine about how all this is going to end up.

So how is it that Ann overreached the facts to arrive at this nonserious opinion?  Because that’s the exact outcome she needs to believe in.  I’m sure she concluded that Bush’s program was entirely within his constitutional powers long before she even heard about it.  Remember, conservatives believe this program is so constitutional and proper that they were outraged that we were even told about it, and most certainly were upset about this legal challenge.  And it’s fairly obvious that Ann hadn’t really been following the case when she first started attacking Judge Taylor for having a bad opinion.  So it’s no wonder that Ann views this opinion as invalid, because she’s doing the exact thing she’s accusing the judge of.  There’s irony for you.


And speaking of irony, there’s her whole attack on “predetermined outcomes” and “activist” judges.  Ann claims that most activist judges use “carefully composed legal opinion” to mask the real determining factor in their decision; ie, their personal opinions.  But if these judges use legal pretexts to mask this, then how does Ann know that they’re activist judges?  Couldn’t this just as easily be that the judge has a different opinion?  Couldn’t it even be that conservatives, I dare say, were wrong?

Of course.  Because what “activist judge” really means is any judge who disagrees with conservatives.  That’s the definition.  And that’s the ultimate in predetermined outcomes.  Because conservatives don’t even need for individual court decisions to be wrong before they disagree with them.  They’ve already issued a blanket statement which says that any judge who doesn’t agree with them is a bad judge who is behaving unconstitutionally.  And they know that because they already know the truth about everything and already reached the right decision, including cases which haven’t even come up yet.  Again, they’d never say that, and somehow assume that we’re all too stupid to understand that this is exactly what they’re doing.

And if she’s insisting that activist judges usually wrap their personal opinions in legalese, it is nothing but an admission that she doesn’t even accept legal sounding decisions.  Because she doesn’t think an honest judge could disagree with her.  How else could she possibly know that these legal sounding decisions are bogus charades?  So why should we take her argument against this judge seriously?  She denounces Judge Taylor for not using the proper legal procedures, but already stated that she also disapproves of judges who use the proper procedures to arrive at conclusions she disagrees with.

Again, Ann would insist that this isn’t what she’s saying, and would take offense that I characterized her opinion as such.  Somehow, we’re not allowed to put her words into a bigger picture.  She can determine that Bush’s wiretap program must be legal because a stupid judge didn’t do a better job of proving otherwise; yet we’re not allowed to consider the natural meaning of the words she’s using.  Because she knows that she’s right, even if she’s not using the right words to say it.  And the only person who can determine the true meaning of her words is herself, even if the words indicate something else.  And she can do that because she knows that she’s always right, despite all evidence to the contrary, including her own words.  So if her words point to the wrong argument, then it’s your misinterpretation of her words that is to blame, not her.  Because she can’t be wrong.

Similarly, my five-year-old daughter will sometimes lie to me about something that I obviously know she did.  And while she thinks she’s being clever and persists in trying to trick me, I’m seeing through it the whole time.  She’s a smart little girl, but really can’t comprehend the level of a grown-up’s intelligence.  

And that’s exactly how I feel with Althouse.  She thinks she’s this super-clever person who’s pulling the wool over our eyes, and is entirely outraged when we keep insisting that we’re seeing everything.  And she thinks that this must be proof of our anti-conservative bigotry, because she can’t grasp how totally obvious she is about everything.  And this just goes into the idea I’ve said before that people aren’t nearly as smart as they believe, and that others aren’t as dumb as we think.  And in Ann’s case, she’s forced to think that we’re mighty dumb to get the results she needs.

P.S. While proofreading this post (yes, I actually do proofread this crap), I happened to read my Lord & Savior Glenn Greenwald mentioning how absurd Althouse’s attacks of Judicial Activism were, since Judge Taylor was upholding a democratically enacted law, rather than overriding it; which is the correct definition of Judicial Activism (ie, judges who use their powers to effectively write new laws).  

But I guess Greenwald missed her explanation of what she thinks the word means.  Along with most conservatives, Ann believes it refers to judges who mask their bias behind legalese; which again, is a sure indication that she’s simply referring to judges who disagree with her.  That’s exactly what she said, and goes to show how entirely ignorant the woman is.  She doesn’t even understand the very nature of her strongest attacks.

No comments: