Legalia

Why would a conservative want to serve on SCOTUS?

I can’t fathom why anyone would want to serve on the Supreme Court. To be more precise, I can’t fathom why any conservative would want to serve on the Supreme Court. Liberal jurists are feted with honors at every juncture. But conservative jurists are excoriated and personally attacked. I wonder, in hindsight, if Kavanaugh still would have pursued a position on the Supreme Court, knowing what we know now: the first confirmation hearing, baseball tickets, Spartacus, Christine Blasey Ford, Michael Avenatti, Ronan Farrow, the second confirmation hearing, yearbook, beer, Klobuchar, Saturday Night Live, Matt Damon, the Dobbs leak, and now an assassination attempt outside of his home. During this time, Kavanaugh and his family have been dragged through such painful experiences, one after the other. Was it all worth it? And to what end?

Eugene Volokh

303 Creative

Creative professionals routinely express their politics in their art—through the art they choose or refuse to create. Famously, for example, shortly after the election of Donald Trump, a number of fashion designers (artists, to be sure) declared that they would, under no circumstances, “dress” Melania or Ivanka Trump –this despite the fact that dresses themselves rarely (if ever) contain a political or cultural message as explicit as the words or image a web designer creates. Merely doing business with the Trumps was an intolerable notion to creative professionals who abhorred the Trump family’s political methods and messages.

In an open letter rejecting the idea of working with the Trumps, designer Sophie Theallet said, “We value our artistic freedom, and always humbly seek to contribute to a more humane, conscious, and ethical way to create in this world.” She said, “As an independent fashion brand, we consider our voice an expression of our artistic and philosophical ideas.” And another designer, Naeem Khan, asserted: “A designer is an artist, and should have the choice of who they want to dress or not.”

In reporting on the designer choices, the Washington Post’s Robin Givhan explained well how artists view their work:

Like other creative individuals, Theallet sees fashion as a way of expressing her views about beauty and the way women are perceived in society. Fashion is her tool for communicating her world vision. In the same way that a poet’s words or a musician’s lyrics are a deeply personal reflection of the person who wrote them, a fashion designer’s work can be equally as intimate. In many ways, it’s why we are drawn to them. We feel a one-to one connection.

A web designer’s work is similarly intimate ….

Brief of 15 Family Policy Organizations as Amici Curiae in Support of Petitioners in the 303 Creative case (internal citations omitted).

If you don’t know the case, you should get to know it.

Colorado, with the help of the 10th U.S. Circuit Court of Appealsl, has mounted the worst, and most explicit, attack on freedom from compelled speech since West Virginia v. Barnette in World War II (when West Virginia required recitation of the Pledge of Allegiance by schoolchildren on pain of expulsion).

Colorado claimed that even though 303 Creative was engaged in pure speech (a key legal category; Masterpiece Cakehop, in contrast, had a creative element but in the end produced not speech, but cake), it could be compelled to create a website for a same-sex wedding because none of the other wedding website creators had exactly the talents of 303 Creative, so 303 was effectively a monopoly and could be forced to create the desired site:

In its decision below, the 10th circuit noted that the petitioners’ artistry created something like a “monopoly,” a market where only the petitioners exist.

Id. Only madness-induced blindness could distinguish the relevant facts of this case from those in West Virginia v. Barnette to the detriment of 303 Creative. Read and enjoy the whole Amicus brief.

Understated

The problem is a reflection of a badly broken political culture and it won’t be easily fixed. But, in the meantime, the House should probably go ahead and pass that SCOTUS protection bill.

The Morning Dispatch on increasing political violence, prompted specifically by the plot against Justice Kavanaugh.

More generally, the Morning Dispatch’s coverage of the successful recall of San Francisco Prosecuting Attorney Chesa Boudin confirms its trustworthiness as a news source: It has more points in Boudin’s favor than I’ve noticed anywhere else, and they aren’t insubstantial.

Sexualia

Incoherent Pride

[I]t is interesting that the American Embassy to the Vatican is flying the rainbow flag for Pride month. Commentators have pointed out the obvious intent to cause offense to the Catholic Church. But the embassy’s decision also sends a message to the American people: Another flag has government endorsement. The message of “inclusion” that it represents signals to those Americans who might dissent from the LGBTQ+ movement that in these interesting times their membership in the republic for which the real national flag stands is more a matter of tolerance than full-blooded affirmation.

The problems with LGBTQ+ inclusion are, of course, manifold. First, there is the logical problem that any movement deploying the rhetoric of inclusion has to face: If everyone is included and nobody is excluded, then the movement is meaningless. Thus, the language of “inclusion” here is really a code word for precisely the opposite: It actually means exclusion and the delegitimizing of any person or group that dissents from what the movement’s movers and shakers deem to be acceptable opinion. Acceptable thought will typically tend toward a view of reality that regards such dissenters as mentally deficient, sub-human, or simply evil.

Carl R. Trueman

Succinct

There are masculine girls. There are feminine boys. What are we going to do? Carve them up?

Jordan Peterson on the Official Trailer for the Matt Walsh documentary (prank-a-thon?) What is a Woman?.

Politics

Relatively successful

Purdue University president Mitch Daniels is retiring at the end of the year. Consistent with his maverick ways over the last 10 years, his successor was announced concurrently with his retirement announcement. There was no public Presidential search, and we will doubtless be treated to days of complaints, petty and serious, about that.

His successor will be the professor and Dean, Dr. Mung Chiang, who served as his Executive Vice President for Strategic Initiatives, of which Purdue has formed a great many over the last 10 years, with some of the biggest corporate names in the world.

I’m very proud of Purdue, my neighbor just across the Wabash, but I would prefer that my loved ones not attend there.

First, like most major universities today, the streets of the campus flow with alcohol, which endangers students of both sexes with the ambiguities of sexual interactions between drunks.

Second, I prefer undergraduate liberal arts education to enlisting in the Technocracy fresh out of high school.

But it seems to me that Mitch Daniels has been a tremendously successful Ginormous Research University President, and I wish him well.

"A Crucial Element of Fascism"

The American militia movement is small, but in the early days of 2021, it nonetheless came to the aid of a lawless president seeking to use force to keep himself in power. It did so by attacking the national legislature and threatening to kill elected representatives of the American people. And when this happened, the president himself stood back and stood by, watching expectantly, refusing to call off the armed mob, hoping the violence might empower him to remain in the White House despite losing the election two months earlier. In doing so, Trump ended up injecting a crucial element of fascism into the country’s political system.

I don’t use the F-word lightly. Trump winning the presidency while losing the popular vote by three million isn’t fascism. Trump appointing a record number of judges and three Supreme Court justices who appear poised to overturn Roe v. Wade isn’t fascism. Trump attempting to close the southern border to immigrants and refugees isn’t fascism. Trump’s verbal attacks on the media aren’t fascism (though they could be said to lay the groundwork for it by stoking popular rage against a free press). Trump engaging in the politics of bullshit by lying constantly to the American people isn’t fascism (though it, too, can prepare the way for it by leading voters to despair of firmly distinguishing between fact and falsehood).

But groups of organized, armed thugs allied with the president acting at his request to prevent the peaceful and lawful transfer of power to his successor is absolutely a fascist act. We’ve seen nothing remotely like it elsewhere in the democratic world, no matter how bad the illiberal policies and rhetoric of newly emboldened right-wing populists in other countries have been.

Damon Linker

Holding up that hateful mirror

Republicans are the co-creators of Trump’s corrupt and unconstitutional enterprise. The great majority of them are still afraid to break fully with him. They consider those who have, like Liz Cheney, to be traitors to the party. They hate Cheney because she continues to hold up a mirror to them. They want to look away. She won’t let them.

Peter Wehner

Is racism a public health crisis?

My fair city has approved a resolution declaring racism a public health crisis.

The statistics on racial disparities are stark. But unless the reporting is botched — a very real possibility considering that our Gannett paper hovers near death — the response is one of those "OMG! WE’VE GOT TO DO SOMETHING!" responses, and implicitly accepts the dogma that all racial disparities are caused by racism.

My point would be mere pedantry were it not for the likelihood that a vague diagnosis of "racism" as the cause is likely to lead to errant treatment.

Stochastic Terrorism

I’m kind of a sucker for portentous names given to commonsense observations. My new one is "stochastic terrorism," introduced by David French with a link to Todd Morley.

As French puts the commonsensical translation:

The concept is both common-sense and controversial. The common-sense element is easy to explain. If you’re a normal person and five people hate you, what are the odds you’ll face targeted violence? Unless you’re engaged in criminal activity yourself (and the five people who hate you are other criminals), then the odds are almost impossibly low.

But what if 50,000 people hate you? Or five million? Then the odds change considerably, until they reach a virtual certainty that you’ll face a threat of some kind.

Why did the Californian last week go after Justice Kavanaugh instead of Justice Alito? How many million people hate Brett Kavanaugh? How did there come to be so many who hate him? D’ya think it might have something to do with the over-the-top attacks during his confirmation hearings?

That’s how you build a frenzy from which someone emerges to exact just retribution on some putative fiend. Todd Morely names a few names.

(FWIW: I cooled about 20 degrees on Kavanaugh as soon as it emerged that he has been a heavy recreational beer-drinker since years before he could drink legally. Call me extreme — and on this topic, I clearly am far out of the American mainstream — but I think a Supreme Court Justice should have a history of abiding even by annoying little laws like minimum drinking age, and of sobriety both literal and figurative. Drunken frat boys are a turnoff even when they don’t grope co-eds.)

Well, anyway, back to stochastic terrorism. French again:

Of course the ultimate recent example of hatred and fury spawning violence is the attack on the Capitol on January 6. It was perhaps the most predictable spasm of violence in recent American history. One cannot tell tens of millions of Americans that an election is stolen and that the very fate of the country hangs in the balance without some of those people actually acting like the election was stolen and the nation is at stake.

But if the concept of stochastic terrorism is so obviously connected to human experience, why is it controversial? In part because it aims responsibility upward, and it places at least some degree of moral responsibility for violent acts on passionate nonviolent people. While criminal responsibility may rest exclusively with the person who carries the gun (or his close conspirators), moral responsibility is not so easy to escape.

(Emphasis added).

Too long I have blithely and exclusively "blamed the person who carries the gun", discounting (if not ignoring) incitements that stop short of criminality. I remain a free speech advocate, and I detest the idea that any truth is too dangerous to be uttered lawfully. But it is becoming too, too obvious politicians and pundits who make careers of vilifying specific opponents, and internet jackasses who doxx the scapegoat du jour, are playing with fire, and at the very least should face political, social and commercial* sanctions.

And to the extent that I have dehumanizingly vilified Donald Trump over the last three years, mea culpa, mea culpa, mea maxima culpa!

(* I have in mind commercial sanctions like boycotting Tucker Carlson’s advertisers, but I don’t want to watch him to find out who they are.)

UPDATE: Jonah Goldberg alludes to who Tucker’s advertisers are:

Seb Gorka dron[ing] on about Relief Factor (a fish oil supplement that all super-patriots take before they put their heads on Mike Lindell’s pillows)

No chance for boycotting there.

Religion

Normally, I’d consider putting Religion in first position, but the following are not the kinds of dogma or dogma-adjacent things that cry out for that.

Here’s to you, Mrs. Robinson

In David & Bathsheba, we see a man in the act of either removing—or replacing—a jacket from a woman’s shoulders. Is this the moment before or after King David has committed adultery with the wife of his general? Mrs. Potiphar presents us not with a cartoonish harridan panting after the biblical Joseph, but an attractive, middle-aged woman staring pensively at her reflection in a mirror. McCleary treats the incident not in terms of mere lust, but in a larger psychological and spiritual context of loneliness and fear of death.

Gregory Wolfe, Beauty Will Save the World.

The "Mrs. Potiphar" Wolfe refers to is presumably this:

If you don’t know the allusion, read Genesis 39. If you don’t know what Genesis 39 is, may God have mercy on your ignorant soul.

A Dangerous Inversion

To justify Christianity because it provides a foundation of morality, instead of showing the necessity of Christian morality from the truth of Christianity, is a very dangerous inversion; and we may reflect, that a good deal of the attention of totalitarian states has been devoted, with a steadiness of purpose not always found in democracies, to providing their national life with a foundation of morality — the wrong kind perhaps, but a good deal more of it. It is not enthusiasm, but dogma, that differentiates a Christian from a pagan society.

T.S. Eliot via Kevin D. Williamson, who continues:

Eliot’s “dangerous inversion” is very much the model for the intersection of religion with politics in our time: Religion is, and is almost universally assumed to be, the junior partner.

American Evangelicals as Cultural Christians

What has happened is that the Christian sense of collective identity has persisted even among those hollowed-out Christians who have abandoned Christian orthodoxy, reducing the Christian confession to a demographic box to check, one of many constituent parts of an American “national identity.” Never mind, for the moment, that one of the hallmarks of the authentic American identity is approaching Christian orthodoxy and Christian observance with a seriousness that brushes up against fanaticism: The story of the United States does not begin with the arrival of the first slave, as the 1619 Project would argue, but with the arrival of the first Separatist.

…

For a century or so, Americans have had friends and countrymen who are “culturally Jewish.” We know what that means: a Jewish sense of communal identity bound to that vague American religious sensibility that sits somewhere between Protestant and agnostic — not atheistic, but operatively secular. I have not heard many Catholics call themselves “culturally Catholic” — Catholics who have given up Catholicism mostly just continue to call themselves “Catholic,” with the “cultural” qualifier being understood. In the case of Catholics, the communal identity is not in the end religious at all but is instead only the detritus of immigrant ethnic identities that have been dissolved in the hot soup of modernity. Conservatives used to be the ones who preferred the “melting pot” model of communal life to ethnic and religious particularism, but the rightist element Hochman writes about has, to some considerable degree, abandoned that. And so we have that new thing, the “cultural Christian.” I believe the first time I ever heard the term used was by Richard Spencer, the white nationalist, who found his parents’ Episcopalianism insufficiently invigorating.

…

Evangelicals, particularly white Evangelicals, are an important part of the new coalition that was formed around the campaign and cult of Donald Trump, but Christian thinking per se plays almost no role in that cult. Indeed, it would be very difficult for these Christians if it were otherwise: Donald Trump is an idolator and a heretic, a blasphemer and a perpetrator of sacrilege, and much more ….

Kevin D. Williamson

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