MJ, Sotomayor, Judicial Activism, Faulty Logic
Since my last full blog about the failures in our critical thinking skills in regards to celebrity worship and Michael Jackson, Bob Herbert wrote a wonderful piece in the New York Times that demonstrated the difference between my bumbling attempts to make a point and a true professional (Behind the Façade). As I started to read his column the first sentence really surprised me because finally someone was actually telling us the truth and not pandering to the ongoing and undeserved adulation of MJ. Then he described the real and very troubled MJ, not the fantasy that so many worship.
But my point here is not about MJ, but about our failure as a society to think critically, and separate what we want to believe from what is. Mr. Herbert made the same point in another way by showing our ability to deny reality and create our own fantasyland (should we say Neverland?) from the Reagan years of tax cuts will produce more tax revenues, to ignoring all of our problems assuming some magic hand of the market place would sweep them all away.
So this morning I was reading about how the Supreme Court is tilting to the right (while the rest of the nation is tilting left) and that got me to thinking about their recent decision to say that employers can’t disregard the results of hiring and promotion exams on which minorities score lower than whites unless they have strong evidence that the tests were invalid. Better known as the New Haven Fireman Reverse Discrimination case in which Supreme Court nominee Sonia Sotomayer was involved in upholding that the tests could be thrown out, this case is a prime example of why and how most Americans don’t think logically.
To make this really simple in terms of how people confuse this case, there are really to very separate issues here. The first regards the law and the second involves justice, and no, the two are not the same. So critical thinking error number one is the assumption that by following the law we get justice. In our political system we have established a nation of laws. By that I mean that once a principal of law is established either through historical understandings (common law), precedent (historical interpretations of the meaning of laws), or through legislation, the law is established and equally and consistently applied.
Stability and “justice” are a byproduct of the consistency of this legal framework. Anarchy results when laws are only followed when they are convenient or only enforced against those less fortunate. In the course of our history we have found that a stable set of rules to operate by, applying equally to everyone, usually produces a just system, and as a result we are “a nation of laws”. But it is a false leap of faith and a logical error to say a consistent legal system equals justice. If the laws are unjust, following them faithfully and consistently will ensure injustice just as assuredly as an unfair application of just laws.
The second issue is justice. Was the outcome just? If you think the test of a legal procedure is justice, you have fallen into the trap of this logical fallacy. I think most of us can agree that in the O.J. Simpson murder trial the outcome was anything but just. But the system followed the law. The system worked, but the outcome was unjust. In the New Haven Firefighter suit there is a wide divergence of opinion on whether the outcome was just. But here is the critical point: If you bend the law to suit your view of what is just, that is judicial activism. It violates the ideal of consistent application of the law. If the law keeps changing based upon the desired outcome, then the law is what the rulers say it is, not what is written. In other words there is no law or said another way, power is the law. Welcome to Iran.
Now to tell you the truth, I guess I have mixed emotions about whether these white firemen were treated justly or not. It would seem that after some time, where true disadvantages suffered by minorities has been dealt with either through racial balancing or affirmative action, we ought to level the playing field with one standard for all. On the other hand, police and fire departments have been hot beds for good old boys, racial discrimination, and nepotism, and we all know that hiring and promoting standards can be weighted to favor some over others. One has to wonder if not one person of color did well and we think there is something wrong with them instead of the test, there just might be discrimination. My point here is that I don’t have an axe to grind on how the case was decided. Who won is irrelevant to the question. The real issue is, and this is what is missed by most, did the decision follow the law.
This is the critical question and that is where logic is skewed by one’s political beliefs and conflating the notion of justice and law. My view of this is very simple. Whether the firefighters were discriminated against is irrelevant. That was not the question before the court. The court was asked if the city followed the law in throwing out the tests because no person of color scored well enough to be promoted and there was a fear of a lawsuit. In other words was this enough to demonstrate discrimination under the law? They were not asked whether this is a fair test or whether the firemen were unfairly treated, only whether the test for discrimination as determined by legal precedent and existing law had been met. My answer, and the ruling of the Second Circuit Court of Appeals on which Judge Sotomayor sat, was yes, the city did following the law as legal precedent had determined.
What the Supreme Court did was say that having all the people of color fail the test is not enough to say the test is discriminatory. You now have to prove it was. This is the very definition of judicial activism. It is also a failure in logic. But that is a blog for another day. The Second Circuit Court of Appeals denied the suit because legal precedent said that the test of discrimination was met when no qualified person of color could pass it and there was a real threat of suit if no persons of color were promoted. What the Supreme Court did was to say we think this test for discrimination needs to be modified (change legal precedent) and then set a new standard to be met to prove it.
The point here is that most Americans do not understand the basic argument. The argument is one of law, not justice. But when we conflate the two for political ends we lose the logical thread. We don’t understand the real argument and cloud it with our desired outcome. I think if you are true to logic (Spock are you out there?), you would see that the court should have upheld the decision with the opinion putting the onus on the legislature to fix the law if it is flawed. Instead, they changed the law to allow the firefighters another bite at the apple. It may or may not be a just outcome, but it is not one that supports a consistent reading of law and precedent. It makes the Supreme Court, dare I say it, Supreme Leader to decide just outcomes, not matters of law, Conservatives are funny like that. They are only conservative when it suits their political ends. Otherwise they are what they are, radicals.
So what does all this have to do with MJ, celebrity worship, the New Haven firefighters, and our political situation? Well in the MJ case we fantasize our image of who we wanted him to be with the reality of who he was. In the New Haven firefighters case we fantasize our ideal of justice and ignore the legal arguments and process. In the case of our political situation we ignore the reality around us and fantasize simple solutions to complex problems because we can’t face up to the hard choices that face us. We continue to kick the can down the road (See It Costs Too Much).
We have an ideal about what we want to believe and we try not to let the facts get in the way. People have a tendency to see the world in a certain way and they interpret reality to support that view. They block out or ignore information that challenges that view. Michael was a sensitive and shy artist. Or he was an emotionally stunted individual whose grasp of human interaction and relationships was truly dysfunctional. The truth is in there somewhere and only when we are willing to be intellectually honest will we find it. The reality is that intellectual honesty is in very short supply these days as we continue with business as usual. We are too good at denying reality because it is just too painful to face the sacrifices of doing something about it. The resulting debacle we are participating in is the result.