Category: reason

The Boston Globe reports the “astonishing turn” that organizations created by libertarian billionaire Charles Koch and progressive billionaire George Soros are helping to fund a new think tank, The Quincy Institute for Responsible Statecraft. The new group is committed to promoting “ideas that move U.S. foreign policy away from endless war and toward vigorous diplomacy in the pursuit of international peace.”

From the Globe‘s writeup:

It will promote an approach to the world based on diplomacy and restraint rather than threats, sanctions, and bombing. This is a radical notion in Washington, where every major think tank promotes some variant of neocon militarism or liberal interventionism. Soros and Koch are uniting to revive the fading vision of a peaceable United States. The street cred they bring from both ends of the political spectrum — along with the money they are providing — will make this new think tank an off-pitch voice for statesmanship amid a Washington chorus that promotes brinksmanship….

The institute plans to open its doors in September and hold an official inauguration later in the autumn. Its founding donors — Soros’s Open Society Foundation and the Charles Koch Foundation — have each contributed half a million dollars to fund its takeoff. A handful of individual donors have joined to add another $800,000. By next year the institute hopes to have a $3.5 million budget and a staff of policy experts who will churn out material for use in Congress and in public debates. Hiring is underway. Among [Trita] Parsi’s co-founders are several well-known critics of American foreign policy, including Suzanne DiMaggio, who has spent decades promoting negotiated alternatives to conflict with China, Iran, and North Korea; the historian and essayist Stephen Wertheim; and the anti-militarist author and retired Army colonel Andrew Bacevich.

William Kristol, the former chief of staff for Vice President Dan Quayle, co-founder of The Weekly Standard, and a proponent of military intervention, was quick to sum up the response of “neocon militarism” and “liberal interventionism”:

75 years of a US-led liberal international order, based on a US forward presence and backed by US might, with regional and bilateral alliances and relatively free trade, has enabled remarkable peace and prosperity. But let’s go back to the 1920’s and 30’s! https://t.co/eFF3yb7Ty2

— Bill Kristol (@BillKristol) July 1, 2019

It’s a sad, empty rejoinder to equate any change from the foreign policy status quo to isolationism and appeasement, but there you have it. For those of us not uncritically wedded to a vision of American power that, among other things, largely waves away the disasters of post-9/11 foreign policy, the Koch-Soros partnership is a welcome sign that worn-out, old political coalitions are making way for new alliances. In fact, this isn’t even the first time that the libertarian and progressive have teamed up. As Davis Richardson of The New York Observer reported just a couple of weeks ago, Koch and Soros are both helping to fund The After Charlottesville Project, which seeks to help the “private tech sector” develop “best practices on the fight against hate and extremism online.” Koch and Soros also both share longstanding, overlapping interests in promoting free speech and civil discourse and reforming drug policy and criminal justice. (Disclosure: Reason Foundation, the nonprofit that publishes this website, receives funding from the Charles Koch Institute).

Expect this sort of latest politics-makes-odd-bedfellows moment to become the new normal as more and more Americans—whether of the donor class or simply the voting public—increasingly evacuate old ideological identities. Indeed, Donald Trump, who could barely have passed as a Republican a few decades ago, represents how up for grabs politics has become. As we step out of inherited identities and comatose political coalitions, all sorts of possibilities emerge. In The Declaration of Independents: How Libertarian Politics Can Fix What’s Wrong with America (2011/2012), Matt Welch and I wrote:

Americans who secede from political tribes, yet remain fully or sporadically involved in politics, scare the bejesus out of politicians. Through peaceful resistance, ephemerally organized swarms, blatant disregard of immoral laws, and more, we can create a permanent nongoverning minority, where blocs retain their potency by refusing to be co-opted and focusing on ways that the government is conspiring to keep them less free.

The Quincy Institute, drawing financial and ideological support from parts of the political spectrum that aren’t supposed to row in the same direction, is the latest sign that a 21st-century politics, one rooted in the way we live now and committed to finding answers to our present and future predicaments, is at long last emerging.

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1. Trevor FitzGibbon is a communication strategist who has epresented, among others, Julian Assange. Jesselyn Radack is a whistleblower lawyer and author who has represented, among others, Edward Snowden. Radack and FitzGibbon had been on apparently good terms, and Radack had publicly praised FitzGibbon’s work in August 2015:

FitzGibbon media has “a veritable Who’s Who” of leading organizations and public figures in the progressive world, Radack says: “While big PR firms may have more name cachet, FitzGibbon media makes up for it with genuine concern for client well-being, not just placing a story.”

Then, in early 2016, Radack accused FitzGibbon of raping her in November and December 2015. (FitzGibbon says they had a consensual sexual relationship, and claims that he has messages from after the alleged November incident that reflect the relationship being consensual.) Radack went to the police, but in 2017 prosecutors closed the investigation and decided not to prosecute FitzGibbon.

Radack then continued to criticize FitzGibbon, as well as “liking” and retweeting others’ posts that criticized FitzGibbon with regard to other sexual harassment accusations that had been made against him. FitzGibbon therefore sued her for libel (for more details, see this complaint). During the lawsuit, Radack continued to criticize FitzGibbon further, even though the trial court had ordered her not to use any social media “to publish or republish statements about”:

(a) the character, credibility, or reputation of Plaintiff or Defendant and/or their respective counsel;

(b) the identity of a witness or the expected testimony of Plaintiff, Defendant, or any witness;

(c) the identity or nature of evidence expected to be presented in support of any motion or at trial or the absence of such evidence;

(d) the strengths or weaknesses of the case of either party; and/or

(e) any other information the Defendant knows or reasonably should know is likely to be inadmissible as evidence in this case and that would create a substantial risk of prejudice or confusion if disclosed.

Radack was even held in contempt of court for violating the order, with the judge writing,

Radack acknowledges making the comments which [violated the order] and apologized for them claiming that they were “a desperate, emotionally charged, reflexive attempt to defend herself and respond to attacks that appeared to her to be coming from or orchestrated by the Plaintiff.” … The simple fact is that Radack deliberately violated the July 31, 2018 ORDER (ECF No. 41) by making the communications that she admittedly made. In so doing, she acted in contempt of the ORDER (ECF No. 41).

Neither contrition nor emotional distress nor illness [multiple sclerosis, apparently] nor financial difficulties [a bankruptcy] can excuse deliberate misconduct of this sort by any litigant, much less by a lawyer. And, the record here shows that Radack is a sharp-tongued, mean-spirited, proliferous user of social media. Her conduct here is just more of the same. Neither contrition nor emotional distress nor illness nor financial distress have caused Radack to ameliorate her penchant for nasty social media communication.

The original defamation case had settled, but Radack is apparently continuing to criticize FitzGibbon.

2. Here’s the complication, though: The restraining order in the earlier case would have been unconstitutional, except that Radack had stipulated to it:

Defendant concedes the motion and will not oppose entry of an order consistent with the relief sought in Plaintiff’s Motion for a Restraining Order. As counsel for plaintiff agreed at the hearing on the motion, this concession obviates the need for depositions or a hearing on the motion…. Defendant respectfully suggests that the Court enter an order consistent with that laid out on pages 1-2 of Plaintiff’s Motion for a Restraining Order [which are nearly identical to the order that was actually issued-EV].

She therefore had agreed to the speech restriction, and had it embodied in a court order—and then spoke despite it.

Radack then apparently settled the original case, and Tweeted this about the matter:

Since April 2018, I have been involved in litigation with Trevor Fitzgibbon. We have amicably resolved our differences. As part of the settlement, I retract and withdraw every allegation and statement I have ever made against Trevor Fitzgibbon.

— unR̶A̶D̶A̶C̶K̶ted (@JesselynRadack) May 3, 2019

And the settlement agreement (according to FitzGibbon) stated:

Radack’s continued posts about FitzGibbon thus seem to be in violation of that settlement agreement, and Friday FitzGibbon filed suit against her again for, among other things, breach of the settlement agreement as well as defamation.

3. Radack’s consent to the speech restrictions—the restraining order in the first case, and the settlement agreement (assuming FitzGibbon’s follow-up complaint accurately reports it)—was doubtless given under pressure, stemming from the costs and risks of the continuing litigation. Nonetheless, promises not to speak are legally binding (see Cohen v. Cowles Media, Inc. (1991)), and that’s also true of promises extracted under litigation pressure.

I don’t know who’s right and who’s wrong as to the original allegations, or Radack’s later follow-ups. And certainly people generally have a First Amendment right to sharply criticize those who they believe have abused them, subject to the constraints of defamation law. But this is a good illustration that, once people promise not to exercise this right, they’re generally stuck with it (unless there’s some special legal rule that makes such promises unenforceable, and such rules are rare). And this is so even if the restrictions agreed to in the promise are very broad.

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When I’m having a bad day, I trawl the internet for videos of happy cyborgs. My favorites are clips of hearing-impaired people getting their cochlear implants turned on for the first time. The videos follow a soothingly predictable pattern. Mumbly background chatter and shaky cam—the cinematography is rarely good—then a pregnant pause, wide eyes, and finally that peculiar kind of sobbing that human beings do when we are overwhelmed. The pattern is the same whether it’s a babe in arms or a full-grown man.

If you catch the right algorithmic wave on YouTube or the right hashtag on Instagram, you can surf for hours in this genre: videos of Parkinson’s patients as their tremors are calmed by a new therapy, paraplegics walking with the help of adaptive prosthetics, infants getting their first pair of coke-bottle glasses, and more.

Adorable kittens and soppy love stories do little to warm my cold, dead heart. But show me a part-robot baby flipping out because he heard his mom say “hello” for the first time, and it’s onion city.

I’m not deaf or hard of hearing, but I am aware that cochlear implants are not without controversy in that community. As with almost everything you see on the internet, behind the scenes there is invisible labor, difficult setbacks, and the occasional disaster. Hardly anyone posts those on their YouTube channel.

Still, entire religions were once built around the spectacle of someone banishing a severe disability with the wave of a hand. Today any certified R.N. in the right audiologist’s office can be a secular saint. When my own worthless eyeballs were corrected with lasers, making me a blind(ish) woman given the gift of sight, I didn’t fall to my knees and worship the ophthalmologist. I just got out my credit card. We live in an age of reliable, scalable, profitable miracles.

People are ungrateful wretches, of course. Once anyone can reliably perform a miracle, it immediately ceases to seem miraculous. Babies generated without sex—actual virgin births—are humdrum. We carry nearly all of human knowledge in our pockets. Within a decade, burgers made without meat will be commonplace (page 10). And the memory of a time when HIV was a death sentence will soon fade to almost nothing (page 30).

As a species, we’re brilliant at focusing on the negative. There are some very useful evolutionary implications of this trait, but an unfortunate side effect is that we always feel like the sky is falling, even when it’s 70 degrees and sunny.

But historically speaking, it’s a beautiful day.

In 1820, nearly 84 percent of the world’s population lived in extreme poverty (roughly less than $1.90 per day per person). In 1981, according to the World Bank, that number was still 42 percent. Today, it’s hovering around 8 percent.

Also in 1820, 90 percent of the world’s population was illiterate. Today that number is inverted: 90 percent can read.

Since 1990, an additional 2.6 billion people have secured access to clean water.

And in 1990, zero percent of the world’s population had access to the World Wide Web. By 2020, more than half will.

In other words, the people around us are healthy and long-lived. They have words to read and videos to watch. The water is clear and blue. Food is plentiful and delicious. And the soundtrack—whether it’s piped in through the latest medical technology or just an ordinary pair of earbuds—is gorgeous.

All of these heartening facts and figures (and much of my hope for humanity) are drawn from an upcoming book, Ten Global Trends Every Smart Person Should Know, by Reason Science Correspondent Ronald Bailey and the Cato Institute’s Marian L. Tupy (page 12).

These are mere material gains, the determined pessimist might say. True enough. We are the children of Steven Pinker’s “long peace” and the grandchildren of Deirdre Nansen McCloskey’s “great enrichment.” We are safe and wealthy beyond the imagining of our ancestors, the beneficiaries of an astonishingly lengthy stretch of success for liberal institutions, international trade, and the free exchange of ideas.

These institutions are not automatically self-sustaining. But they are self-reinforcing. People aren’t perfectible, and they are prone to both personal and political error. Everything could always go pear-shaped.

But so far, billions of healthier, wealthier, better-educated, and better-connected people have also proven themselves better able to understand and defend the values of the free society.

Politics, of course, is crap. But politics has consistently been crap throughout the last couple of centuries, and yet here we are in the greatest period of global peace, enrichment, and innovation in human history. Truth be told, even the crappiness of politics is way down over the last 200 years. The modes of amplifying the shouting have gotten better, so the whole enterprise is noisier. But it’s far less fatal than it used to be. Not every downward trend line is an inflection point.

“Put not your trust in princes,” the psalmist warns us, “nor in the son of man in whom there is no help. His breath goeth forth, he returneth to his earth; in that very day his thoughts perish.” The first bit couldn’t be more true. But the rest is absolute rubbish.

Human beings are doing remarkably well lately, especially for such fragile, mortal creatures. As with the cochlear implants, a lot of messiness, horror, and hopelessness are hidden from view. It’s wrong to dismiss or ignore suffering just because it’s not part of a broader trend. But it is also wrong to despair.

The combined efforts of the sons of man have wrought astonishing changes. And their thoughts do not perish when they die but live on through their inventions and institutions. The dead of the last two centuries have bettered the world not just for themselves but for those of us who came after them. Their legacy is a world rife with boring, ordinary miracles.

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In Illinois, Lakewood Forest Preserves District President Angelo Kyle attempted to cancel this year’s 27th annual Civil War re-enactment, which is scheduled for July. He rescinded the cancellation after other Lake County commissioners complained, and the organizer noted that they already have a contract. But Kyle says he doesn’t want to host the event in the future. It is the largest event hosted by the park, drawing about 3,000 people each year, a fact that seems to grate on Kyle. “Why isn’t (the largest event) pertaining to the mission of the forest preserve—preserving our natural resources and environmental quality of Lake County?” he said.

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For many decades, the Supreme Court has chosen to avoid addressing some issues by ruling that they are “political questions,” and therefore not fit for resolution. Last week, in Rucho v. Common Cause, the Court concluded that political gerrymandering falls within that category. In cases such as Baker v. Carr (1962), the Court has said that political questions are issues that lack “judicially administrable standards” or ones where the decision in question has been left to the “nonjudicial discretion” of another branch of government.

I have been teaching the political questions doctrine in introductory constitutional law classes since 2002. But the more I think about it, the less sense it makes. In an excellent recent post at the Originalism Blog inspired by the gerrymandering decision, legal scholar Michael Ramsey outlines some of the flaws of the doctrine:

The Court, per Chief Justice Roberts, held that the constitutionality of political gerrymandering is a “political question” not suitable for judicial resolution, principally because it lacks judicially manageable standards.  Once one grants that at least some consideration of political consequences is acceptable in redistricting decisions, how is one to say when it becomes too much consideration, and hence unconstitutional?

I’m entirely unpersuaded.  Courts routinely draw difficult lines between borderline-acceptable behavior and borderline-unacceptable behavior.  True, this is often messy.  Justice Scalia, for example, famously wanted bright lines and hated balancing tests.  But if the lack of a bright line makes a claim nonjusticiable, federal courts are going to have a great reduction in work load.

To take a couple of examples favored by center-right originalists, it’s not so easy to say when a law is sufficiently necessary and proper to the regulation of interstate commerce that it falls within Congress’ enumerated powers.  Few people doubt that some federal regulation of local matters is justified due to their connection to interstate commerce, but how much connection is enough?  This question isn’t considered a political question, nor should it be.  And to take a very recent case, any re-invigoration of the nondelegation doctrine, as suggested by Gundy v. United States, involves deciding how much policymaking delegation by Congress is too much (it being undoubtedly true that some policymaking delegation is inevitable).  It’s true that Justice Scalia thought this was sufficient reason to hold nondelegation claims basically nonjusticiable, but the current Court (including Chief Justice Roberts) seems prepared to reconsider.  In neither of these situations (nor in many others I can think of) does the Constitution say exactly where the line should be drawn.  But, generally speaking, courts still decide these cases, perhaps with a good bit of deference to the government in the gray areas.  As I think a famous Justice said, the existence of twilight does not mean we cannot distinguish day and night.

No one interprets the political questions doctrine as forbidding judicial consideration of all issues that are governed by standards with potentially fuzzy boundaries, as opposed to bright-line rules. Indeed, even the late Justice Scalia often joined decisions applying such standards, despite his commitment to a legal philosophy that stresses the virtues of bright-line rules. But the doctrine simply doesn’t tell us how much fuzziness is too much. Thus, judges have little to go on besides their intuition and (in many situations), their ideological predilections.

To put it a different way, the “judicial administrability” prong of the political questions doctrine itself isn’t judicially administrable.  Alternatively, if judges are capable of applying this incredibly vague standard, after all, then they are also capable of applying pretty much any other mushy standard, including figuring out how much political gerrymandering is too much. In that event, the standard may be judicially administrable, but also unnecessary.

The second standard prong of the political questions doctrine—commitment of the issue to another branch of  government –  is more defensible. But, as Ramsey explains, it is also superfluous:

The Court in Rucho does better in noting two points: (1) that founding-era Americans knew about partisan gerrymandering; and (2) that they nonetheless generally gave state legislatures power over districting, subject to oversight by Congress, but not subject to any other express limitations.  One might say that this builds a case for application of the other prong of the political question doctrine—that a constitutional judgment is textually committed to another branch.  But I doubt that approach as well.  The fact that Congress has oversight does not mean the courts do not also have oversight.

Instead, I think the Court’s points about the text and history show something different: the Constitution does not limit partisan districting.  At minimum, I would say that the originalist case for a constitutional limit on partisan districting is not proved…  Put this way, districting is a political question, but not because of some arcane doctrine of justiciability.  It is a political question because the Constitution did not address it, and thereby left it (like many other issues) to the political branches.

The courts do not need a special “political questions” doctrine to rule that a given law or regulation is constitutional because it falls within the authorized powers of that branch of government and nothing else in the Constitution forbids it. In fact, courts uphold legislation on that basis all the time, usually without any reference to the political questions doctrine.

Sometimes, the political questions doctrine is defended on the basis that it can be used to keep courts from involving themselves on issues where the legislature or the executive has superior expertise, particular questions involving immigration, foreign relations, and national security. The problem with that theory is that the political branches of government have superior expertise on nearly all areas of policy, and that immigration and national security are not actually unusual in that regard. The reason for judicial review is not that the judges have superior expertise on policy, but that they have different incentives, and are often more likely to protect long-term constitutional values and enforce minority rights. And, as with the “judicial administrability” issue, the Court has never come up with anything approaching a clear rule or standard for determining how big the gap in expertise has to be to require judges to avoid resolving a given issue.

On most constitutional questions—including most that involve fuzzy standards and issues where the political branches have superior expertise—courts resolve the relevant cases without even mentioning the political questions doctrine. Every once in a while, however, the Supreme Court will take it out for a spin in order to justify sidestepping some issue the majority would prefer to avoid. When that happens, those who like the result applaud, while dissenters argue that the doctrine has not been properly applied (as Justice Elena Kagan does in her forceful dissent in the gerrymandering case).

Both sides assume that the political questions doctrine is a useful tool for guiding judicial decision-making, or at least that it can potentially serve that role. The truth, however, is that it is an emperor walking around with no clothes. One of its main prongs is useless, while the other is superfluous.

There are, in my view, good constitutional arguments both for and against judicial policing of gerrymandering. Roberts and Kagan cover many of them in their respective opinions.

I am, perhaps, unusual in considering the issue to be a close question. Almost every other legal commentator seems to think it is a slam dunk, even as  they vehemently differ over the issue of which side it’s a slam dunk for! Be that as it may, the political questions doctrine adds little of value to this debate—or any other.

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