This is why "empathy" on the Supreme Court is a good thing

A few years back, President Obama earned sneers from conservatives when he said "empathy" is a quality he looks for in making judicial nominations. I thought about that today when reading about Justice Sotomayor's dissent in a police evidence case.

Essentially, the court ruled that evidence can sometimes be used against defendants even if that evidence was gathered by police illegally. Sotomayor was cranky. From TPM:

She was joined in most of her dissent by Justice Ruth Bader Ginsburg (who also joined a dissent penned by Justice Elena Kagen). But, in the final portion of Sotomayor's dissent, she said she was "[w]riting only for myself, and drawing on my professional experiences." There, she expounded upon the "severe consequences" the unlawful stops in question have, including being "degrading" and causing "indignity." 

"Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more," Sotomayor, the first Latina justice on the Supreme Court, said. "This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact." 

In this case, "empathy" means having a visceral understanding that some people — minorities — are targeted for stops that have "pretextual justification after the fact" more than others. "Empathy" means knowing that outside the ivory-tower domain of an appellate courtroom, the law falls on different people in disproportionate and burdensome ways. "Empathy" seeks, then, to hold the law not just to the letter of the Constitution but the spirit. Justice Sotomayor is an asset to the court.

About those terrorist watch lists

Eliminating One Constitutional Right Does Not Make All the Rest Fair Game | Kevin Drum

"Due process" is the key phrase here: the US government should never be able to revoke fundamental liberties based on mere suspicion. This doesn't necessarily mean that suspects are entitled to a full-on court hearing, but due process does mean something substantive, speedy, and fair.

That's why I'm not comfortable with proposals to use watch lists — as currently constructed — to deprive suspects of gun rights. I think it's wrong that those lists are used to deprive suspects the right to fly.

Understand: I'm not against depriving guns or flight rights to terrorists. But there's got to be a process that's open, understandable, and lets the accused make a legitimate effort at challenging the designation.

Does "domestic gun violence" cause "domestic gun violence?"

When nonsense becomes the party line | Power Line

Surfing past Fox News this morning, I heard someone report on a poll about what caused the massacre in Orlando. Apparently, most Republicans believe it was caused by Islamic extremism, whereas most Democrats believe it was caused by “domestic gun violence.”

But the massacre was domestic gun violence. Democrats might just as well say that murder caused of murders.

I dunno. It occurs to me that it might be more like saying that the flu virus causes the flu. In such case, I guess, you could say "the flu causes the flu" and people would laugh at you, but you wouldn't be wrong.

We have a culture unique in its access to and (I'd say) worship of guns, a founding that depends on righteous violence to achieve, and a political culture that to a large degree believes might makes right. And we have an awful lot of gun violence that, in some cases, leads to copycat gun violence. I'm not so sure that domestic gun violence isn't the cause of domestic gun violence.

Why we debate the Second Amendment the way we don't debate other rights

NRO's Charles CW Cooke:

“It is not acceptable to treat the Second Amendment as if it is a second class or less important right, and it’s not acceptable to deprive individuals of it purely because they are under suspicion… In my view, the way to take someone’s rights is to convict them of something.”

I hear this kind of thing a lot from my conservative friends, but it seems there's a kind of willful naiveté involved here. The reason our discussion of the Second Amendment is different is because the effects are different.

As I've said a million times: The function of a gun is to kill. Other things that a gun is useful for — hunting, self-defense — are a byproduct of its function to kill. That differentiates it from other tools or inanimate objects that can also cause death:

Yes, lots of people die in cars each year, but that's an accidental and unfortunate byproduct of the car's essential function to provide fast transportation — and, incidentally, we've worked successfully to mitigate that accidental byproduct. When a person takes a gun and kills 50 people in a nightclub, the person is defective, but the gun is working precisely as it should. No other civil right has quite the same results.

The First Amendment doesn't result in a Sandy Hook. The Fifth Amendment doesn't create a Columbine. But guns — and a Second Amendment that makes access to guns easy and widespread — often result in death. Lots of it.

 Now: Just because this is true doesn't mean the policy discussion should go one way or another, necessarily. But it's the reason, sensibly, we don't just say "welp, it's a Constitutional right" and shrug our shoulders. Guns are different. The Second Amendment is different. We shouldn't pretend otherwise.

Karl Rove is the reason we can't get along after big terror attacks

For a few years now there's been a fond hearkening back to the so-called "9/12 moment" — a memory of the last time the United States responded to a terror attack with something like unity. Now, whenever there's a man-made disaster, everybody retreats to their usual battle lines and starts throwing grenades.

 David French laments this today at National Review:

I can’t recall a better time to be an enemy of the United States. The message to the jihadist world is clear: Not only is it open season on Americans wherever they live, work, and play, but jihadist attacks will have the added strategic benefit of further dividing a polarized country.

So what happened? My guess: Politics, of course.

The problem with Tom Friedman's "New Republican Party."

Tom Friedman tells thoughtful never-Trump conservatives it's time for them to go form their own party today:

America needs a healthy two-party system. America needs a healthy center-right party to ensure that the Democrats remain a healthy center-left party. America needs a center-right party ready to offer market-based solutions to issues like climate change. America needs a center-right party that will support common-sense gun laws. America needs a center-right party that will support common-sense fiscal policy. America needs a center-right party to support both free trade and aid to workers impacted by it. America needs a center-right party that appreciates how much more complicated foreign policy is today, when you have to manage weak and collapsing nations, not just muscle strong ones. But this Republican Party is none of those things.

Sounds good. Here's the problem: What kind of electoral success would thoughtful conservatism have without its Trumpkian allies? Not much of one.  Damon Linker identifies the problem:

In praise of distracted, Internet-addled writing

In his review of Freewrite's "Smart Typewriter," Ian Bogost offers praise for the pre-Internet era of writing, when one could set one's fingers to the keyboard and simply write, without all the distractions and bells and whistles that a wifi connection bring to the process.

There's more than a hint of protesting too much.

No one would reasonably dispute that writing tools affect the shape and content of both writing and the thought that goes into writing, but it's mistaken to suggest — as Bogost seems to — the the older, slower way was necessarily deeper. Here's an odd passage:

For Nietzsche, the typewriter offered a way to write despite his deteriorating vision (and sanity). He knew that tools changed their users; “Our writing tools are also working on our thoughts,” Nietzsche aphorized. These are facts I happen to know just because they were memorable, not because I remember facts like these regularly anymore. I’ve long since outsourced such easily-rediscovered knowledge to the Internet.

Here's the thing: The human brain is at once both wondrous and limited. In writing this essay 30 or 40 years ago, Bogost might've dropped the exact same knowledge from memory — or, if he (as is often the case with this kind of learning) remembered-ish Nietzsche's comment, he would've gone into the stacks of books (his own, or perhaps a library's) to find the comment, quote it precisely, and cite it. Now, if he's unsure, he can Google it up. Good writing rarely stops and starts with the writer's brain and the writing tools; it's often augmented by reporting and research, knowledge of not just how to marshal facts in service of a story or argument, but how to marshal those facts. Forty years ago, Bogost might've written: "I've outsourced such easily-rediscovered knowledge to the encyclopedia," and it would've sounded silly as a lament. We writers use such tools to enlarge our understanding, and our craft.