Five Questions for Judge Sotomayor...

that probably won't be asked:

1. In your speech when your nomination was announced you spoke of the profound importance of the “rule of law” in your thinking. What does the “rule of law” mean? Does it fail to mean this?

2. In Ricci v. DeStefano, you upheld a district-court ruling on a major issue of public concern, whether affirmative action by the City of New Haven violates anti-discrimination laws, without bothering with an opinion. Why did you think the appellants were not deserving of an explanation? Did they receive the benefits of the rule of law?

3. You have spoken approvingly of federal judges “[making] policy,” and indeed made light of those who oppose it. The last time we had an official with lifetime tenure explicitly making policy it was George III. How exactly is five Supreme Court justices “making policy” different?

4. Whenever there is affirmative action, a person receives a job, school position, federal judgeship, etc., because of what s/he looks like. But someone else, usually unknown to us, symmetrically fails to get a job, school position, federal judgeship, etc., because of what s/he looks like. Does that latter person benefit from the rule of law?

5. You have said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life." Does the experience of having your property seized by the state “more often than not” enable you to reach a better conclusion on eminent-domain cases? Does the experience of being a crime victim “more often than not” enable you to reach a better conclusion on Fourth and Fifth Amendment cases? Does being a criminal?

Who Was the Last Justice Who Had to Meet a Payroll?

The new Supreme Court nominee, Sonia Sotomayor, has occasioned much commentary about the role of “diversity” and experience in Supreme Court appointments. President Obama himself indicated that he “[viewed] the quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

I confess I'm not sure I want decisions that are "just." I want decisions that are proper interpretations of the Constitution, given the plain text and/or what was contemplated when it was written. But I'll play along.

The definition of "empathy" in the Oxford English dictionary is surprisingly short and sweet: "The power of projecting one's personality into (and so fully comprehending) the object of contemplation." It is taken for granted that this quickly translates, as does a desire for "diversity," into considerations primarily of the nominee’s tribal profile -- her sex and ethnicity/race. But one could easily imagine other types of nominee distinctiveness that more readily lend themselves to better-informed decisions.

Lawyer/non-lawyer. as far as I know, every Supreme Court justice in the 20th century has been a lawyer, but it wasn't always so. It is true that that the job of a justice requires proper interpretation of statutes and the Constitution, and proper use of relevant common-law precedent. But this is something any sufficiently intelligent individual who has a profound interest in the law could do. A non-lawyer would bring much greater diversity of experience with the question of the role of litigation and lawyers on American society. Many lawyers, particularly those who have come of age in the last 50 years, take it for granted that litigation leads to social improvement. But perhaps it doesn't; perhaps a non-lawyer could appreciate that more than a lawyer could.

Schooling. According to their current official bibliographies (PDF) every current justice (and Sandra Day O'Connor) has a law degree either from an Ivy League school or their non-East Coast equivalents, Northwestern and Stanford. Most Americans don't attend universities like that. Do we want people from community colleges, no college at all, Georgia or Portland State on the Supreme Court as well? I suppose not. The college admissions process is at its highest level still, despite the diversicrat corruption of it, fairly meritocratic, legacies and athletes aside. The people who get into the best colleges tend to be the most accomplished and smartest people, so using this as a screening device doesn't bother me much. But the question is worth asking, if diversity of experience is as important as we are led to believe.

Beneficiary or recipient of government restrictions on commercial freedom. Perhaps the most important diversity deficit of all. Having searched the official biographies, I can find no evidence that any current Supreme Court justice has ever, in the face of constantly changing rules handed down by the courts and legislatures, had the responsibility of filling orders or meeting a payroll. This is an ignorance with consequences. Those who impose rules without ever having to face the consequences of them lack a profound sort of empathy, one far more important than the empathy allegedly generated by skin color, or being the recipient of government benefits. Have Supreme Court justices lost their homes or their businesses to ravenous governments and the rent-seeking that powers them, or seen a business go from profitable to not because of some preposterous regulation? At this point in our history I would much rather have someone who has been on the business end of an eminent-domain order or restriction on freedom of contract than someone who has been the victim of "discrimination," or relied on extracted taxpayer funds (i.e., on "the government") to open doors.

The fact that it's probably been decades since we have had a Supreme Court justice who ever owned his own business is astonishing; the complete lack of empathy for the business owner is not to be found in Congress or, historically, in the higher reaches of the executive branch. But business owners appear to be (I am happy to be corrected) unheard of in recent decades in the Supreme Court. (Justice Stevens, in conspicuous contrast, did anti-monopoly work for the government.) There appears to be no kind of "empathy" for those who have to risk their own wealth to try to create goods and services that consumers are willing to pay for.

But some kinds of diversity, evidently, are more important than others.

National Healthcare and the Battle of the Sexes

Here is Canada's National Post newspaper on a classic central-planning problem, and associated social conflict, involving the Canadian health-care system:

The growing ranks of female physicians in Canada will slash medical productivity by the equivalent of at least 1,600 doctors within a decade, concludes a provocative new analysis of data indicating that female MDs work fewer hours on average than their male colleagues.

The paper comes just a year after a blue-chip list of medical educators publicly condemned what they called the scapegoating of women for Canada's severe doctor shortage.

The fundamental problem, as I have often noted, in public expectations about health care is that there is no such thing as "universal health care," if by that people assume that they can have any health care they want, anytime they want it. Health care is costly to produce. The resources needed to do so have alternative uses, and so health care must be rationed by some criteria or another.

A "doctor shortage" is unfortunately a term too imprecise to be helpful. According to the article, "The long surgical wait times and lack of family physicians that plague the Canadian health care system are largely blamed on the paucity of doctors.”

But what is the right number of doctors, the number of doctors that ends the "paucity"? The article attempts to answer this question by comparing the number of physicians in Canada to the number in other OECD countries, but Canada is not a copy of other countries. Like every other country, it is a collection of many different individuals. Its individual citizens have different opportunities, different health profiles, different lifestyles, different attitudes toward health. Information about how much each person needs health care is dispersed to each individual; no government agency can possess it all.

We may intelligently speak of an economic shortage, in the sense that, at the prevailing cost of doctors' services to the patient, more people want doctors’ services than there are doctors willing to provide them. (Even this definition is imprecise, but it is close enough.) Canada has this problem in that, according to the article, waiting times are extremely long for both surgery and for services by family physicians.

And somewhat remarkably, the rising presence of female doctors among all Canadian doctors is said to be responsible for this. Women are about a third of Canadian doctors now, but since they're a majority of medical-school students there, they will soon be a much greater share. And since, according to research, women doctors work on average fewer hours than male doctors (because of more claims on their time due to their child-care responsibilities), it only stands to reason that the presence of more female physicians in the workforce will lead to longer wait times. Right?

Alas, this group-based zero-sum thinking is inevitable when genetic groups -- the sexes, races, religions, etc. -- look to the state to referee their disputes. In fact, even if it is true that women on average have more competing claims on their time, so that they devote fewer hours in a week to medical care than male doctors do on average, there are many female doctors for whom this is not true, and many male doctors who also have a high opportunity cost of time. This is the classic example of a problem that a free market solves through its capability to make use of highly decentralized information -- in this case, each physician’s private knowledge about the opportunity cost of his or her own time.

If there are currently more claims on physicians' time than there is time available to be claimed, then the solution to that problem is to raise the compensation for physicians' time. But that is the sort of problem state health-care systems can seldom solve, because they are interested in getting the cost of the entire system down (assuming heroically that they are not interested merely in maximizing politicians’ political success functions by soliciting transfers from special interest groups). What the government should be interested in is encouraging physicians who have sufficient amounts of time, relative to the alternatives, to devote that time to patient care. By allowing the market to set the wage, all such physicians by definition do so. There is no "shortage," although health care is rationed by money instead of by time. But on the other hand, there is no aggregate conflict between male doctors and female doctors. No one blames female doctors are putting in too few hours. Instead, there are only individual doctors, either male or female (it makes no difference), each of whom decides how much time to devote to taking care of patients, and how much time to devote to child care, golfing, or whatever the next best alternate use of his or her time is.

The kind of thinking on display in the article is a result of the belief that good social outcomes only require that the government crunch the right equations. But the Canadian physician shortage is not a function of the aggregate sex composition of Canadian doctors (30 years ago this would have seemed obvious), but the result of the fact that, given what the government has decreed they be paid, too few people are willing to work.

California's Government Overload

Here is LA Times columnist Gregory Rodriguez on "California's Democracy Overload":

Think of it this way: Much of the life of an average citizen is lived in the spirit of indifference, if not outright defiance, toward the political system. From time to time, we're all expected to cast a ballot, tune in to what's going on at city hall, the statehouse, Capitol Hill, and either express our grievances or throw our support to one cause or candidate or another. Our general indifference is interrupted by intense moments of engagement. But to ask voters to make too many decisions too much of the time tips the delicate balance between indifference and engagement, and that can lead to civic contempt…[I]t's time for the good-government types to stop bemoaning the state of California's direct democracy and its voters and start remembering that, for most of us, in politics as in so much else, less is more. We're going to continue living out our days not thinking intensely about the inner workings of government. So find a way to make our representatives do their jobs.

Aha... after centuries of experience with representative democracy in the US and UK, the solution is as easy, and somehow still undiscovered, as "making our representatives do their jobs." Mr. Rodriguez goes on to bemoan the fact that having to constantly monitor the government stresses Californians out, which means that California's government by direct referendum is increasingly not just a political but a mental-healthcatastrophe.

On that latter point I agree, but I suggest that Mr. Rodriguez does not draw the proper lessons. It is true that citizens are too busy, and sometimes intrinsically too poorly informed, to make sense of their government. The exception is telling in its own right -- those who pay the most attention to the workings of government are those who have the most to gain from it at the expense of their fellow citizens. (Sugar farmers pay a lot of attention to American sugar protectionism, sugar consumers almost none.)

Mr. Rodriguez supposes that we should simply leave it to our representatives to monitor the conduct of state affairs and to carry out the public interest. But the reason we have politics is that we disagree on what the public interest is, and the cost of democratic politics in particular is that self-interest masquerades as public interest. This suggests that the government that has metastasized beyond the ability of citizens to effectively monitor it is itself a problem -- that the solution does not lie in magically "finding a way to make a representatives do their jobs," but in confining government to those activities that citizens can effectively monitor.

The alternative, presumably, is that our elected representatives monitor and work with the permanent administrative class. But this solution assumes too much. It assumes away the problem that the permanent administrative class may have its own self-interest, and that this may be in conflict with the interests of the poorly informed citizenry, which is poorly informed primarily because time is scarce and information expensive. (A cynic might even suggest that one of the reasons laws are written in such impenetrable lawyerese is to make citizen monitoring difficult, much the way lawyers throw around so much Latin.) It assumes away the problem of collusion between representatives and administrators, so that the former may be re-elected and the latter may enhance their power to direct others’ lives.

If the citizens can no longer effectively monitor the state, that is not a problem of the citizens, nor is it a problem for clever political engineers to solve. It is a problem of the government simply doing too much for a society that hopes to remain free, and that has become a permanent, self-sustaining, even parasitical interest group of its own. If the citizens cannot have a good understanding of a government function, good enough to decide whether they are for or against it after an objective 30 seconds of presentation, the government shouldn't be doing it.

India's Election

The BBC analyzes the Indian election outcome:

The latter predicted a neck-and-neck race between the Congress- and BJP-led coalitions. They said that the Third Front of regional and caste-based parties would play a pivotal role in forming the government.

The Communists even spoke about Congress being forced to support such a government.

Then there were the traditional woes of the ruling party - the three previous prime ministers had lost elections after one term.

But Congress bucked every trend and has emerged triumphant in a victory analyst Mahesh Rangarajan calls a "historic moment" in India's democracy.

The victory is emphatic and with the caste-based regional parties suffering setbacks in states like Bihar and Uttar Pradesh, India's political landscape suddenly does not look so deeply fractured.

Some years ago I published an article in which I predicted that sectarian (or in Indian language, "communal") concerns would more and more dominated Indian politics. Since I made it, it seemed to be becoming progressively more true with every election. But in a result that is fortunate for India's future, and for geopolitical stability generally, that trend appears to have stopped.

There are two things to applaud. The first is the decimation of India's vigorous communist movement. While it is generally confined only to a few parts of the country, in those parts it was routed. This means that the economic reforms that began in the early 1990s have borne enough fruit for Indians to justify continuing to support them. Given the stake the world has in mainstreaming 1.1 billion Indians into the global economy and the miracles it generates, this is something to applaud. That India is choosing to go this route while America and Europe turned more collectivist gives those of us in the latter nations some reason for hope. Only people who have really lived under socialism know its true cost.

In addition, India appears to be turning away, somewhat to my surprise, from fractious sectarianism. Both the Bharatiya Janata Party, which pitches itself to the high ends of the Indian jajmani ladder, and the Bahujan Samaj Party, which aims toward the socially weaker but democratically powerful castes, did worse than expected, perhaps due to the comical megalomania and corruption of and the serious charges of serious crimes against, their leader, Mayawati. The BJP has been a friend of economic reform, perhaps out of recognition that it is necessary to make India strong, but so too is the Congress party-led winning coalition. They insist on a lot that a purist would reject, such as extensive farm subsidies, but half a loaf is better than none.

That Indians have endorsed reform and individualism during these turbulent times is undoubtedly partly due to the fact that the Indian economy has not been racked as badly as others. But it is also a sign that delivering and adhering to true reform pays off, and generates political support and additional reform. Heading down the opposite road, on the other hand...

Life under Collectivism

Dennis Prager has a column on how collectivism (or, in his word, “socialism”) destroys greatness, not of a people but of each person:

The state sucks out creativity and dynamism just as much as secularism does. Why do anything for yourself when the state will do it for you? Why take care of others when the state will do it for you? Why have ambition when the state is there to ensure that few or no individuals are rewarded more than others? America has been the center of energy and creativity in almost every area of life because it has remained far more religious than any other industrialized Western democracy and because it has rejected the welfare state social model.

This is a theme that has been bouncing around in recent years. In a speech I like, Charles Murray describes the attitude of Europeans raised in the welfare state thusly:

What’s happening? Call it the Europe syndrome. Last April I had occasion to speak in Zurich, where I made some of these same points. After the speech, a few of the twenty-something members of the audience approached and said plainly that the phrase “a life well-lived” did not have meaning for them. They were having a great time with their current sex partner and new BMW and the vacation home in Majorca, and saw no voids in their lives that needed filling.

It was fascinating to hear it said to my face, but not surprising. It conformed to both journalistic and scholarly accounts of a spreading European mentality. Let me emphasize “spreading.” I’m not talking about all Europeans, by any means. That mentality goes something like this: Human beings are a collection of chemicals that activate and, after a period of time, deactivate. The purpose of life is to while away the intervening time as pleasantly as possible.

If that’s the purpose of life, then work is not a vocation, but something that interferes with the higher good of leisure. If that’s the purpose of life, why have a child, when children are so much trouble—and, after all, what good are they, really? If that’s the purpose of life, why spend it worrying about neighbors? If that’s the purpose of life, what could possibly be the attraction of a religion that says otherwise?

The same self-absorption in whiling away life as pleasantly as possible explains why Europe has become a continent that no longer celebrates greatness. When life is a matter of whiling away the time, the concept of greatness is irritating and threatening. What explains Europe’s military impotence? I am surely simplifying, but this has to be part of it: If the purpose of life is to while away the time as pleasantly as possible, what can be worth dying for?

Collectivism is dispiriting for at least three reasons. First, life is in a collectivist society irretrievably zero-sum. The reason the poor don’t have enough is because the rich have too much. The reason Chrysler workers are in danger of losing their jobs is because bondholders are asking for too much. The European model, or the German labor model (with unions getting a seat on the board of directors in many large companies) or the stakeholder model (where a corporation is run through consensus among “stakeholders”) it's all about forcing people to consensus, even when agreement may not be the best solution from the point of view of society as a whole. (It is often from irreconcilable differences within the established order that the greatest ideas spring.)

Imagine collectivism as the government bringing all the groups it deems as worthy of having a say in how society, a publicly owned or publicly chartered firm, the health-care system, or whatnot should be run into a single closed room. The government wants consensus to be reached in an atmosphere of amicability, and so the room is nicely furnished -- it is in the White House, even. It is assumed that what will happen is that all of the groups will bring angry disagreements to the table, but sitting around a table will force them to resolve them.

But of course staying in the room isn't, and shouldn't be, the only option. It should be possible to leave the room and start your own business, or to stay out of it entirely -- to elect to have the government leave you alone in your choices of schooling, e.g. But collectivism says that the leader picks the guests, and whatever solution the guests come up with is binding on everyone. (This framework ignores the very real problems that seats at the table may be acquired through bribing the leader, or that the meeting in the room may be camouflage for the leader brutally imposing his own proposed solution on everyone, or even doing so in pursuit of his mere political success. But my example is collectivism taken on its own terms.)

And so collectivist societies are those in which the existing set of interest groups congeals, never to change. And all social disagreement is to be resolved through zero-sum conflict within the room, instead of through the dynamism made possible when free men are allowed to exit it, or to barge into it on the merit of their own achievements. Collectivism is the same old pressure groups doing less and less producing and more and more arguing, meaning that what your enemy is getting becomes the most important datum in evaluating social change. (Anyone who was ever worked in an environment with collective bargaining knows this to be true.)

Second, as Prager and Murray note, the collectivist society is one in which individual greatness no longer matters. Fairness in the distribution of the fruits of toil, and not the permanence and magnitude of those fruits, is the only interesting question. We do not dare to be great, because life is only about momentary pleasure and fairness. Why go to Mars, or take the risk on that revolution in human transportation, or on a potential cure for cancer, when our six weeks of vacation are coming up, or when we’re 55 and it's time to put that dreary job behind us? Perhaps the most important effect of the spread of globalization to the vast seas of humanity in India and China is the inculcation of the belief that individual achievement and greatness matter, that individual glory is to be had in solving human problems. These concerns will be nowhere to be found in our collectivist conference room.

Third, collectivist life is simply less interesting. The economist Edmund Phelps had a piece a few years back in the Wall Street Journal, which included these remarks:

I would, however, stress a benefit of dynamism that I believe to be far more important. Instituting a high level of dynamism, so that the economy is fired by the new ideas of entrepreneurs, serves to transform the workplace--in the firms developing an innovation and also in the firms dealing with the innovations. The challenges that arise in developing a new idea and in gaining its acceptance in the marketplace provide the workforce with high levels of mental stimulation, problem-solving, employee-engagement and, thus, personal growth.

If the meeting in the conference room is being chaired by the president of France, and the people in it are all the CEOs of France's leading national champions, that is not a meeting I want to be in. More particularly, those are not companies I want to work for. The collectivist expresses grand enthusiasm about solving problems, but the problems he is interested in solving are so small in the grand scheme of things -- extending 2009-quality health care to more people, managing the status quo of slow decline, saving today's jobs for a few of today's workers. Work that is truly worthy of human ingenuity -- figuring out why the existing way of doing things is so unsatisfactory, trying to persuade people that your solution is the best one in a manner that forces you to really have a stake in the outcome, creating new technologies and trying to find out if they are worth to society what you think they are, these are problems that people in dynamic societies have to solve all the time, often by quitting their current employment and boldly embarking on their own. Collectivism saps that spirit, which has consequences not just for individual greatness but for human happiness as well. Perhaps large numbers of people agitating for more time away from work, even as they simultaneously agitate for complete protection from dismissal from it, is the sign that the decline of collectivism has permanently taken hold. That moment appears to have long since arrived in Europe, and is now knocking at the door here.

When Lawyers Make Cars

The Wall Street Journal (subscription required) has an article describing how secured creditors in the Chrysler bankruptcy gave up their place at the head of the line for claims on Chrysler assets. At one point, an anonymous Obama flunky (the remark appears to have Rahm Emanuel all over it) notes:

"You don't need banks and bondholders to make cars," said one administration official.

Hundreds of car companies, based in dozens of countries and dozens of cultures, some of them the world's largest and most successful companies, somehow have in over a century of making and selling cars all managed not to figure this out. But our lawyer president, our lawyer vice president, our lawyer presidential chief of staff, and the other highly credentialed fellows not willing to speak on the record have finally got it all figured out. Thank goodness.

Swine Flu

Is the swine flu already making us nuts? Consider the following, from Reuters:

:BOSTON — A flight from Munich, Germany to Washington has been diverted to Boston because a passenger complained of "flu-like symptoms."

Airport spokesman Phil Orlandella said United flight 903 was being diverted to Boston early Friday afternoon after a 53-year-old female passenger told flight attendants about her symptoms.

He said the flight had 245 passengers and 6 crew members. The flight had been scheduled to land at Washington Dulles International Airport later Friday.

It is not clear to me why, even if it were true that a swine-flu patient were on board the plane, it would be better to send it to Boston instead of Washington. But the larger question is whether swine flu is the sort of event that merits this kind of hysteria. Mark Steyn has also bought into it:

Well, you know, we’re, historically speaking, we’re overdue for one of these killer flues, not necessarily something on the scale of 1918, but certainly a big, global pandemic. And of course, what’s changed since 1918 is we’re now in the era of mass transportation, where people go from one end of the world to another. If you remember the SARS, the little SARS epidemic thing from five years ago, five or six years ago, that basically leapt across the planet very fast, from rural China, somebody went up and stayed in a fancy hotel in Hong Kong, infected everybody, I think, in the elevator and the bathroom, public bathrooms of that hotel, and they all then flew on, brought it to Toronto and killed a big, whole mass of people in Toronto. So I think if this thing does get around that fast, then we are looking at potentially something very serious.

The world, or at least that part of it excessively influenced by the media, appears to be in the grip of what we might call the mania of the epidemiologists. Epidemiologists study models of disease spread, and like many scientific models they are useful to point. But like all scientific models, at some point they cease to be useful. We appear to be rapidly reaching that point. Several years ago I wrote a post on the implications of globalization for the spread of new diseases. I argued that the rapidity with which a disease spreads, relative to our historical examples, is a function of forces promoting acceleration and forces promoting deceleration. Among the forces of acceleration are the intrinsic infectiousness of the new agent and the ease with which people can travel from one place to another. The former is essentially unpredictable (although perhaps it becomes more prominent than before due to changes in human society that make the generation of new lethal viruses easier, e.g. through the close proximity of humans and large factory farms). The latter, clearly, has become more powerful in recent years as transportation has become easier.

This is what promotes the doomsdayism of the Steyn sort. But there is more to it than that. The two deadly epidemics that "everyone" knows something about are the Spanish flu epidemic of 1918-1920 and the European Black Death. If acceleration is all you pay attention to, then enhanced propensity to spread, combined with unavoidable periodic generation of new lethal agents, equals disaster.

But the forces of deceleration are far more powerful than they were even 30 years ago. The world has a vast network of (dastardly) drug companies capable of ramping up production of new medicines, provided only that they are paid enough to cover the cost. There is now a vast medical-research apparatus that spans the globe -- in America, in Europe, and Japan, and increasingly elsewhere in East Asia. Our abilities to unravel the mysteries of any particular agent, and then to take advantage of the immense power of a decentralized global economy to distribute remedies, themselves generated much more rapidly than before by the global knowledge system, make addressing outbreaks far easier than before.

Monitoring too is far easier than before. Identifying the virus, figuring out who has it, and figuring out how it is likely to spread are made easier by the same medical-research infrastructure referred to above. But most critical of all is the fact that we are simply much wealthier now than we were in 1918, or in the Middle Ages. And wealth has both accidentally and intentionally inserted into society many breakwaters that slow the spread of the disease. Consider the typical airport public restroom. It is frequently operated on an entirely hands-free basis. Instead of having to push a door open, you walk in through an open gateway, make a turn to ensure the bathroom’s privacy, and then once inside find a bathroom where the toilets, the sinks, the soap dispensers, and the paper-towel dispenser do not require you to touch anything. No one had swine flu in mind when they designed this, but it will have the effect of slowing its spread just the same. Masks are much more available and very affordable, even if they are not 100% effective. Suburbs lower population density, meaning that one infected person is likely to get fewer people sick than he would have 100 years ago in an urban slum.

Dangerous new diseases will undoubtedly spring up from time to time. But epidemiological models, or at least the public perception of them, are badly amiss. There is no reason to shut down global travel because of some oversimplified model that says merely that one person is a vector that invariably infects n other people. Greater wealth means that all sorts of things that used to pose mortal threats to civilization don't anymore. Earthquakes do us less damage than when we were poor. So do pirates, telegenic though their barbarisms be. And so does the swine flu.