The Real Casualty? The Supreme Court

The real casualty in this dust-up over Brett Kavanaugh is the justice system, the Supreme Court and its place in our shredded democracy. As many op-ed writers and essayists have noted, the nomination, confirmation, and appointment to the federal bench has become politicized to the point where ideological purity now overrides judicial fitness. This is not what was in the minds of the framers of the Constitution. The Executive Branch was established within a political system as was Congress. From the outset, individuals who ran for these positions did so within the context of a political party whose positions on matters was public. But not the courts. Their role was to be the arbiters of what the other branches did, to evaluate the constitutionality of their legislation and executive orders, to determine the degree to which decisions made adhered to broad-based principles. 

Not anymore. Today candidates for positions on federal courts are sifted through a vetting process that searches for those with records of writings, speeches, and decisions that conform with the momentary ideology of those in power. This isn’t new. Roosevelt was so hamstrung by the conservatives on the Supreme Court in the ‘30’s that he tried, luckily unsuccessfully for it would have established a terrible precedent, packing the court with justices more in tune with the policies he was trying to put in place.

But it has reached a new and dangerous pitch in the past few years. A quick look back at the last half-century or so is instructive. Here’s who nominated whom since Eisenhower with tags on the justice’s record both before and while on the bench:

Ike — Republican

Earl Warren — liberal

 John Harlan — moderate liberal

Potter Stewart — liberal

William Brennan — very liberal 

JFK — Democrat

Byron White — moderate conservative

Arthur Goldberg — liberal

Nixon — Republican

Warren Burger — moderate

Harry Blackmun — moderate before, liberal on

Lewis Powell — moderate

William Rehnquist — moderate conservative

Ford — Republican

John Paul Stevens —  moderate, moved leftward

Reagan—Republican

Sandra Day O’Conner — moderate conservative

Antonin Scalia — very conservative

Anthony Kennedy — moderate conservative

Bush I — Republican

David Souter — liberal

Clarence Thomas — very conservative

Clinton — Democrat

Ruth Bader Ginsburg — liberal

Stephen Breyer — liberal

Bush II — Republican

John Roberts — conservative

Samuel Alito — very conservative

Obama — Democrat

Sonia Sotomayor — very liberal

Elena Kagan — very liberal

Trump — Republican

Neil Gorsuch — very conservative (so far) 

Until Clinton there was no ideological link between the justice and the party of the president who made the nomination. Eisenhower was a Republican, a moderate one to be sure, but all four of the justices he put on the court took moderate to liberal positions. And this nonpartisanship continued. Kennedy nominated White, a Republican with moderate views. Nixon put four justices on the court, all were moderate or liberal. Interestingly Powell drifted toward progressive positions over the years as did Burger, though to a lesser extent. Ford nominated Stevens who started moderate and moved leftward. Reagan adhered to party lines in putting forward three conservative names though only Scalia could not be viewed as moderately right-leaning. His so-called “originalism” sometimes led him to align with the liberals. Poppa Bush put two dramatically different justices on the court. Thomas started as fiercely conservative and never wavered. Souter became a liberal icon.

And then it changed. Clinton taps only liberal justices; Bush II only conservatives; Obama names two very liberal women. But even though these nominations were party-bound, the ideologically linked trends weren’t blatant. They weren’t genuinely political in the sense of say Roosevelt’s efforts to thwart the tilt of the court he inherited. They were much in kind with previous nominations and received bipartisan support during the confirmation process.  

Ike was a moderate to liberal Republican (in fact he was approached by both parties to see if he would run as their standard-bearer). JFK was no flaming liberal. Nixon, despite being a crook, actually held views that would make him a pariah in today’s GOP. And so it went until today. Today the court system in America is in deep trouble and the culprit is the Republican Party and the miscreant at the heart of it is Mitch McConnell. The announcement that the Republican dominated Senate would not even hold hearings for the eminently qualified Merrick Garland was the point where the integrity of the American justice system came under attack, where the shiv was slipped in between the ribs. This was when the judicial skills and the record of legal scholarship stopped being the primary concern and the ideological clarity of the potential justice became paramount. What McConnell really said that day was, “There won’t be any more liberals on the damn court if I have any say in this.”

Where we go from here is uncertain. What will emerge from the Kavanaugh episode is still unknown. I suspect there will be a continuation of this battle of ideologies. Trump will certainly continue to look toward the Federalist Society for future nominations. Any Democrat who succeeds him in 2020 or beyond will likely look toward individuals with firm progressive records. The days when the true litmus test was the richness and scholarly depth of a potential jurist’s record are gone. As with Kavanaugh, the primary consideration is how ideologically pure is the individual and, once that’s been determined, then and only then will they ask, is the record strong enough to get through the confirmation process.

Talk at UQAM in Montreal -- July 3, 2018

The University of Quebec at Montreal (UQAM) had a summer Institute on the “Other Minds” problem. This classic issue focuses on the question of which species have minds, and if they do, how would we know?

I was invited to present my new theory on the origins of consciousness and be part of a panel that tossed around a host of ideas about how, when, why, and under what conditions minds first appeared, when subjectivity or, if you wish, “sentience” made its entry onto the stage of life here on our planet. 

My model, dubbed the “Cellular Basis of Consciousness,” argues that minds emerged with life, that even the most primitive of species (the prokaryotes) have subjectivity, consciouness — though, of course, their minds are very tiny and don’t do all that much. In short and in the language of philosophers of mind, “there is something it is like to be a bacterium.”

Here’s the YouTube of the presentation. 

The book developing the theory in detail titled “The First Minds: Caterpillars, ‘Karyotes, and Consciousness” will be out in a couple of months (Oxford University Press).

If the link fails, cut and paste the url:

https://www.youtube.com/watch?v=DQy92VjtwZ8

I’d love feedback — of course. 

How We Got Here

I’ve been away for some time. Sorry if anyone’s looked to see what pearls (or swine) I’ve posted. Part of the problem has been Facebook. I kinda got hooked on exchanges there with friends (and, of course, the not-so-friendly). In the course of an extended online give-and-take with folks it hit me that while we’re all (well, most of us) tearing our hair out over the pathological president and his unending chaotic administration, we’ve not taken a close look at how we got here, what the GOP has done over recent decades to create the climate that gave us Trump. I’ve touched on this topic before. This is an update. 

The GOP was once a viable, reasonable alternative to the left-leaning Democrats. We often forget that the most progressive president in the 20th century was a Republican (Teddy Roosevelt); we forget how sensible Eisenhower was; we neglect the impact that the “Rockefeller Republicans” had. Alas, it all “went south” in a dramatic slide. It began with Reagan — “Saint Ronnie” in the twisted history of the Grand Old Party.

The first step was the “southern strategy” aimed at taking the south by appealing to white voters there. Reagan mixed this tainted move with four other positions that hit a chord with enough voters to pull the party rightward, away from its Eisenhower base:

a) subliminal evocations of racism 
b) the “government is the problem” nonsense 
c) the embracing of the wacko Laffer “trickle down” economics
d) the assault on unions

And these started the slide.

The next step down the road to our current hell was embracing the unethical tactics of Lee Atwater and his “students” Karl Rove and, amusingly (I guess it’s funny, though it looks like it’ll end up as a tragedy) Paul Manafort offering ridiculous, anti-tax idiots like Grover Norquist a seat at the table. Atwater was the master of the dirty political trick. He was a character. He admitted that he became a Republican simply because, being in South Carolina, he knew he’d never have any power as a Democrat. He had zero political convictions and no political philosophy other than winning. 

This now-compelling shift rightward was bolstered by elevating the Newtster to the speaker’s role in the ‘90’s. Gingrich’s tenure ended bipartinism, compromise, and respect for any other’s vision. It wasn’t a change in overall political philosophy, it was a move away from the kinds of political deal-making that a representative democracy requires. Gingrich wasn’t any further right than others in the party. It was his take-no-prisoners style that was so destructive. And, of course, it opened the party up for the debacle of Bush II and the pure-evil Cheney.

Then, when The Black Dude was elected it ‘08, it was like a mouse trap set on a hair trigger snapped — and ‘10 saw the virulent, racist, anti-government Tea Baggers enter, stage-right, with marching bands, tar and feathers and (luckily only) metaphoric ropes. The Tea Bag cohort also brought along the Evangelical cohort that had been growing but remained relatively quiet till the Bush-Cheney era. 

And so we ended up where we are … with the Frankenstein monster in the Oval Office. They created this POS. They’ve inflicted him upon us all … and none of the motherfuckers (except for a few who are retiring) will denounce him or acknowledge how their party paved the road for him.

There’s a delicious irony lurking just off-stage — and many of the current crop in the GOP have suddenly recognized it. For thirty-five years now their policies forced the party inexorably to its current crazy right-wing Trumpist framework. But when you dance with the devil, when you make your Faustian bargain, the day always comes when you have to pay up.

They’re now caught in a deadly dilemma. If they openly embrace the Orange Menace they lose the sane voters. If they attack him they lose his (“deplorable”) base. Either way they are truly fucked. They know this. They may be venal pricks but they are not stupid. Those who know they’re doomed (like Ryan and an astonishing number of others) are not running for re-election. The others are mostly staying silent and hoping things like “name recognition” (or gerrymandered districts) will get them re-elected. November is gonna be something different — different from most other midterm Novembers.

And I hate this, all of it. I want to be clear. I’ve been around for a while — I’m closing in on eight decades on this cinder-speck of a planet we’re all obliged to occupy. I’ve always been solidly leftist, democratic socialist. That’s how I was raised, how my parents and their friends saw the world. But … there’s always a critical “but” in any interesting discussion … I don’t really trust them (my people) to run things. I don’t trust anyone who has absolute power, total control over things. I am a passionate defender of differences, of varying perspectives, of lively debate. Today the GOP is so tainted that no debate is possible. It’s all become the never-Trumpers against the Trump loyalists.

The moral death of the GOP bothers me because its slide into unethical, political degeneracy removes it from its proper position: a viable alternative to my democratic socialism.

I need to have my perspective balanced by thinking folks with alternate points of view. I really miss them.

Thoughts on Thoughts on the Vegas Massacre

Everybody has thoughts on what happened over the weekend in Las Vegas where a previously under-the-radar guy named Stephen Paddock shot and killed at least 59 concert-goers and wounded another 530 or so. Here are my thoughts on those others:

Thoughts and Prayers: This tag line has become a totally empty expression with the meaning of “bless you” after someone sneezes. No one’s death has ever been softened by it. No one’s thought has ever helped. And no prayer has ever been responded to any useful way. If prayers had any effective role in life then shit like this wouldn’t happen. So please, stop saying it. Instead go give blood.

This is Not the Time Talk About Guns: Actually, it is. It is precisely the time to talk about guns. The idiots like Sean Hannity, that piece of dog crap that’s stuck to your shoe and will not be scraped off, proclaimed loudly that it is “despicable” to do so. Bull. When we have a train wreck, we talk about rail safety. Hurricane Harvey hits Houston and we talk about doing something about the flood plain that development has created there. A mine shaft collapses and we talk about improving safety and working conditions in mines. And I don’t want to the hear the crap that those other things were different because they weren’t the direct action of some nut. Remember the “Tylenol murders?” Someone put poison in bottles of Tylenol and put them back on the shelf. Seven people died and a series of copy-cat poisonings soon followed. Thirty-five years later the original culprit has still not be caught. But we talked about the crime. And we did something. Drug safety codes were enacted. Seals on all pharmaceuticals were mandated and, guess what, nothing like this has happened since.

Don’t Trample of our Constitutional Rights: No one, and I mean no one, is talking about taking away anyone’s guns. But some things need to be clear about the Constitution. Those rights outlined in the Bill Thereof are not unbounded rights. There are restrictions. Yes, the 1st Amendment gives Americans freedom of speech and the press but you cannot say anything you wish. A specific, open call to induce violence against others is forbidden. If you think you have total freedom of speech trying calling openly for the murder of a president or a supreme court justice and see how fast your right is ended. The same amendment has the so-called “Establishment Clause” providing for freedom of religion but there are laws restricting how you can practice your freely chosen faith. You cannot have human sacrifices, you cannot have multiple spouses, you cannot refuse to have medical science save the life of your infant, you cannot discriminate against anyone on racial grounds — no matter what your religion preaches. Ditto for guns. There are lots of restrictions on who can own and use various firearms. It’s time to put more in place.

Don’t Politicize Guns: More bull crap. Guns are political. They’ve been so since the 2nd Amendment was added to the Constitution. If you don’t think they’ve always been politicized why do you think that in most states there are few regulations in place governing the purchase and use of guns? We require anyone who wants to drive a car pass a test and be legally licensed. Want to drive a truck? More tests and a different license. Teach school? Ditto. Practice medicine, dentistry? Become an electrician? Plumber? Hell, we license beauty salon workers, people who do your nails, pick up your garbage. You can’t even flip burgers without passing food safety tests. We even have licenses and regulatory codes in place for things that don’t even work like homeopathy. You don’t think these are “political?” They are. Every one of these (and thousands of other) regulations got put in place over the objections of some individuals, some groups, some cluster of lobbyists. They were passed by state and local legislatures or by Congress or crafted by regulatory bodies that exist only in virtue of their creation by elected officials. It’s all political. Which, of course, is why the NRA shovels so much money into public relations and bankrolls the campaigns of those running for Congress (virtually all of whom are Republicans). And, of course, it is why an astonishing number of elected officials are totally unthinking, knee-jerk pro-gun representatives — wholly bought and owned by the arms industry.

It’s Un-American to Talk About Gun Control: Well, it may be in the minds of some but it’s also Un-American to sit idly by while over 33,000 of us die from gun violence every year. Every damned year! We kill each other (and ourselves) at rates that are unheard of in other developed countries. It’s bloody Un-American to refuse to deal with this issue when there have already been 270 “mass-murder” (four or more deaths) so far this year in the US and we still have three months to go. By comparison, there have zero mass murders using a firearm in the UK. In fact, the last one there was in 2010. The sobering statistics of the killing fields that the US has become can be found here. Every industrialized nation on the planet has figured out how to regulate guns but us. Are we that stupid? I’m beginning to conclude that we are.

How to Screw up Scholarship -- The Predatory Journals

Most folks not involved in either doing research, which was what I did for over fifty years or paying attention to the progress others are making, which is what I’m reduced to since closing my lab back in ‘05, have probably never heard of “predatory journals.” Well, they’re screwing with science and other fields of scholarship so, a short essay on them:

Predatory journals are fake journals. They tend to be in fields of science but others exist in other academic disciplines. They are scams designed with one purpose, to make money for the people who claim to be the “editors.” The game goes like this:

a. The “journal” gets the emails of a large number of people in various field of scholarship. This is easy to do. They can be members of scientific organizations, students or faculty at colleges and universities, researchers in applied fields, corporations that have R & D programs, whatever, anywhere. It doesn’t matter.

b. They send batch emails announcing the “new cutting edge” journal with a name that sounds legit, like “Journal of Bio-medical Archeology.” The announcement invariably notes that this is an open-access, online journal. I get three or four of these in a typical month.

c. Announce that the new journal is seeking papers and that they are inviting you, because of your background, to submit. Of course, if it’s not your field you just hit “delete,” but anyone working in the area of the journal might be interested.

d. Couch the announcement in wording that makes it seem like the journal is edited and that all articles will only be accepted after peer-review. Legitimate scholarly journals only publish articles after review by experts.

If you bite, here are the next steps:

i. Suppose you have a paper you’ve been working on but are unsure which journal to send it to. Previous experiences have made clear how tough it is to get published in the existing main-stream outlets. So off it goes to this “new” journal.

ii. A note comes back, usually within a day or two, sometimes within 24 hours, saying “congratulations” your article has been accepted.

iii. A form is attached asking you to cover costs of publication and to fill out and sign a contract. The “cost” can be anywhere from $50 to $300 (and sometimes more).

iv. As soon as your check clears or your credit card payment goes through you get another email giving you the url where you paper can now be found.

So what’s wrong with this you might ask? Several things:

1. You don’t know if anyone at the journal has any background in your field or whether they read your paper, reviewed it, or did routine editing. Several investigative journalists have tested this by sending in mocked-up, deliberate junk and had it immediately accepted! 

2. Your paper is now available to anyone. It may or may not be a serious piece of research — and there’s no way for anyone who runs across it to know. But, any search engine that tags key words you used will find it.

3. There’s a distinct possibility that the paper contains all manner of errors. But again, the casual reader who chances across it won’t know that.

4. As the word gets out that researchers can get the number of publications on their vitae boosted easily, they start sending in papers based on weak, poorly done research — or worse, joksters start sending in deliberate nonsense just for the fun of it.

5. Others cite these papers and their findings without realizing they getting bamboozled by worthless, junk science and the misinformation cycle spins on.

6. The scam works most effectively with young researchers who need to “pad their resumés,” researchers in poor and underdeveloped countries who don’t have access to the standard publishing outlets, students looking to make their achievements while still training look impressive, busy folks who don’t want (or lack the time) to do the work of getting their findings or theories in the legitimate journals or ones tired of having their papers rejected — doing real scholarship is tough and things can get competitive.

And, because this scam is so easy to pull off, so cheap to run, and makes so much money doing basically nothing, it’s spread like wildfire — and grown. There are now conferences run on topics by people who have virtually no experience in either the field and, in some cases, actually running a conference. Again, all papers are “accepted” and all must pay for the privilege of presenting their work. Other outfits offer positions as “editors” or “reviewers” — again, you must pay to be listed on the journals masthead. Still others have gone big-time and set up entire publishing houses with dozens of these predatory journals.

Lately legitimate scientists and scholarly organizations have begun fighting back. The best resource is “Beall’s List” which is here. It lists over a thousand(!) suspect outfits that are engaged in this game and virtually all of them publish multiple journals.

The fight is particularly difficult because there are real, serious open-access journals that use the standard, peer-review model. I’ve recently published in one of these which is edited by a respected scientist and has an editorial board well-known researchers. There are ways an interested scholar can determine if a site is legit or not. The usual give-aways are how fast your article was accepted and whether there’s a publishing fee. 

There’s an even larger issue lurking behind this one: the pros and cons, the give-and-take nature of an open, free Internet. We’ll get back to this one in the future. It’s vitally important because politicians are looking to screw with “net neutrality.”