Obamatarian

Reason did a piece, “Who’s Getting Your Vote?” in which they asked a bunch of sort-of-celebrities who they were voting for. It’s long and predictably full of pithy humor and yuck-yuck jabs at the candidates. It’s also chock full of anger and a omnipresent desire for vengeance; far, far, too many of the respondents answered that they’d be voting for Obama because they want to punish the Republican party.

The idea is that we should punish the Republicans for abetting the Bush administration. The Bush administration’s failures in this regard (there are many, so let’s be specific) are the militaristic foreign policy, the huge increase in entitlement spending, the rise of the deficit, the funding of sectarian religious organizations, and the erosion of individual liberty. All granted.

But in what universe does voting for Obama signal to anyone that those ideas are wrong? Obama has opposed the Iraq war, but he’s been surprisingly militant about Afghanistan, Iran and Darfur. Obama promises to expand existing entitlement programs and create new ones. He’s proposing tax increases and spending increases in the middle of a recession and seems unable to find a single government program that needs to be cut. He’s promised to maintain funding for faith-based programs. He promises to undermine property rights, is opposed to free trade, and his health plan is a disaster.

Voting for Obama signals to Republican party that you want more government and less individual liberty.

In a much more thoughtful piece at Reason, “Is There Any Hope For this Man?” Richard Epstein makes the point,

Unfortunately, on the full range of economic issues, both large and small, I fear that [Obama's] policies, earnestly advanced, are a throwback to the worst of the Depression-era, big-government policies. Libertarians in general favor flat and low taxes, free trade, and unregulated labor markets. Obama is on the wrong side of all these issues. He adopts a warmed-over vision of the New Deal corporatist state with high taxation, major trade barriers, and massive interference in labor markets. He is also unrepentant in his support of farm subsidies and a vast expansion of the government role in health care. Each of these reforms, taken separately, expands the power of government over our lives. Their cumulative impact could be devastating.

Voting for Barr would send a message to the Republican party. Voting for Obama would not. (I think it would cost us far, far too much to deliver that message.)

Todd Zywicki has a good post at Volokh,

And from what I can tell none of those libertarians or conservatives who are Obama supporters are attracted to because of his positions (other than those who care strongly about the Iraq war and foreign policy), but rather because of who he is. Obama is a compelling personality. But in reading these encomiums to him, I haven’t seen any explanation as to how Obama’s policies on tax, trade, spending, or regulatory would be friendlier to individual liberty than what is likely to be McCain’s (as weak as those will be). As someone observed somewhere recently, this is about the first time in history that you have endorsements from people who endorse Obama on the hope that he won’t do what he says he’ll do rather than because of what he says he’ll do.

Now, if you agree with Obama, then by all means, vote for him! But there is no plausible universe in which anyone can coherently argue that a vote for Barack Obama is a vote for free-markets, free trade, property rights, or fiscal discipline.

Gender, Sex, and Choice

An article by Hannah Rosin in The Atlantic about transgender children.

Since he could speak, Brandon, now 8, has insisted that he was meant to be a girl. This summer, his parents decided to let him grow up as one. His case, and a rising number of others like it, illuminates a heated scientific debate about the nature of gender—and raises troubling questions about whether the limits of child indulgence have stretched too far.

It’s tough reading; the stories of these kids are full of anguish and loneliness, hurt, despair and above all else, a maddening confusion that seems as bewildering as it is devastating. At the heart of the article is a discussion of treatment. In particular,

A recent medical innovation holds out the promise that this might be the first generation of transsexuals who can live inconspicuously. About three years ago, physicians in the U.S. started treating transgender children with puberty blockers, drugs originally intended to halt precocious puberty. The blockers put teens in a state of suspended development. They prevent boys from growing facial and body hair and an Adam’s apple, or developing a deep voice or any of the other physical characteristics that a male-to-female transsexual would later spend tens of thousands of dollars to reverse. They allow girls to grow taller, and prevent them from getting breasts or a period.

Of course, the practice has it’s detractors. And it’s certainly hard to cringe at the attitude of one parent,

“He’ll just basically be living life,” Jill explained about her (natal) daughter. “I already legally changed his name and called all the parents at the school. Then, when he’s in eighth grade, we’ll take him to the [endocrinologist] and get the blockers, and no one will ever know. He’ll just sail right through.”

Sail right through. Sure.

She can be so cavalier about the future happiness of her child because she knows exactly why her child is confused. It’s because although her child’s sex is female, in his mind, his gender is male. This parent and people like her believe that gender is determined, their kids are hardwired to see themselves as a particular gender, regardless of what their bodies might indicate otherwise. Describing the history of one of the kids that the article focuses on,

She insisted on peeing standing up and playing only with boys. When her mother bought her Barbies, she’d pop their heads off. Once, when she was 6, her father, Mike, said out of the blue: “Chris, you’re a girl.” In response, he recalls, she “started screaming and freaking out,” closing her hand into a fist and punching herself between the legs, over and over. … When Chris turned 11 and other girls in school started getting their periods, her mother found her on the bed one night, weeping. She “said she wanted to kill herself,” her mother told me. “She said, ‘In my head, I’ve always been a boy.’”

The hormone treatment seems to be successful. “According to Dr. Peggy Cohen-Kettenis, the psychologist who heads the Dutch clinic, no case of a child stopping the blockers and changing course has yet been reported.” At a transgender convention, the older transgendered wish they’d had the chance, and the younger ones (the 10 year olds) look forward to it.

The problem, of course, is that even when life is horribly, wretchedly complicated, sometimes it’s even more mystifying than we thought.

But about a month after that, everything began to change. Chris had joined a softball team and made some female friends; her mother figured she had cottoned to the idea that girls could be tough and competitive. Then one day, Chris went to her mother and said, “Mom, I need to talk to you. We need to go shopping.” She bought clothes that were tighter and had her ears pierced. She let her hair grow out. Eventually she gave her boys’ clothes away.

Now Chris wears her hair in a ponytail, walks like a girl, and spends hours on the phone, talking to girlfriends about boys. Her mother recently watched her through a bedroom window as she was jumping on their trampoline, looking slyly at her own reflection and tossing her hair around. At her parents’ insistence, Chris has never been to a support group or a conference, never talked to another girl who wanted to be a boy. For all she knew, she was the only person in the world who felt as she once had felt.

Chris’s parents didn’t purse hormone treatment. They went to an opponent of early hormone treatment, Dr. Zucker. Now chris seems happy and adjusted. Her childhood was difficult, but she’s grown and is making her own choices. Dr. Zucker,

explains gender dysphoria in terms of what he calls “family noise”: neglectful parents who caused a boy to over­identify with his domineering older sisters; a mother who expected a daughter and delayed naming her newborn son for eight weeks. Zucker’s belief is that with enough therapy, such children can be made to feel comfortable in their birth sex. Zucker has compared young children who believe they are meant to live as the other sex to people who want to amputate healthy limbs, or who believe they are cats…

Dr. Zucker treats children with a kind of hyper-Freudian therapy:

They turned their house into a 1950s kitchen-sink drama, intended to inculcate respect for patriarchy, in the crudest and simplest terms: “Boys don’t wear pink, they wear blue,” they would tell him, or “Daddy is smarter than Mommy—ask him.” If John called for Mommy in the middle of the night, Daddy went, every time.

Such rigid gender roles seem archaic and absurd to a modern liberal ear, but Zucker’s therapy reports results. The participants in this therapy don’t actually believe what they’re saying to their kids, they’re just trying to mold them. Which, really, is exactly what the parents who begin hormone treatment are trying to do. In both cases, the parents are trying to impose an identity on the child, either in an effort to make the gender match the sex or vice-versa.

Which brings us to the case of David Reimer. David was born a boy, but a botched circumcision destroyed his penis. His parents saw a profile of John Money, a psychologist who argued that gender identity was a purely social construct. Under Money’s guidance, David was fully castrated and his parents raised him as a girl. Money reported the case as successful and published his results to much acclaim, but that was a lie. As Rosin notes,

Reimer had never adjusted to being a girl at all. He wanted only to build forts and play with his brother’s dump trucks, and insisted that he should pee standing up. He was a social disaster at school, beating up other kids and misbehaving in class. At 14, Reimer became so alienated and depressed that his parents finally told him the truth about his birth, at which point he felt mostly relief, he reported. He eventually underwent phalloplasty, and he married a woman. Then four years ago, at age 38, Reimer shot himself dead in a grocery-store parking lot.

For more on David Reimer, There’s John Colapinto’s 1997 story in Rolling Stone. Wikipedia here. Book here. More here.)

It took 25 years for the failed experiment that ultimately cost David Reimer his life to be fully discredited. Hormone blocking has been performed on pre-teen adolescents for less than 10 years. The simple truth is that we don’t know what adulthood will bring for these children.

In all this discussion of transgendered children, queers, and he-shes, there’s only one thing that’s really taboo: individual agency.

The debate is torn between two positions. Gender is either a social construct or it’s biologically hardwired into the brain. The possibility that it could be both, or some different combination of the two for any given person is unthinkable. I suspect that introducing individual agency into the debate would shake too many shibboleths. The above quote above, comparing the transgendered child “to people who want to amputate healthy limbs, or who believe they are cats…” is only a partial quote. It continues,

, or those with something called ethnic-identity disorder. ‘If a 5-year-old black kid came into the clinic and said he wanted to be white, would we endorse that?” he told me. “I don’t think so. What we would want to do is say, ‘What’s going on with this kid that’s making him feel that it would be better to be white?’”

The idea of a doctor giving a 10 year old child drugs to lighten the color of his skin and alter his facial features so that he could pass as white is almost impossible to imagine. It is simply understood that racial heritage is always and everywhere a significant and necessary component of identity. It is also understood that racial identification is absolutely non-optional.

We have completely accepted the idea that individuals are no more than the sum of collective interests. We are no longer individuals, we are black-lesbian-atheist-democrats, white-transgendered-wiccan-environmentalists, and Asian-male-catholic-republicans. Our identity is now defined by a trailing list of categories to which we have been assigned. Whether that assignment is made by society or determined in utero by a combination of hormones, we are sure that whatever the mechanism, we should submit to the identity to which we have been assigned.

So the question is now, “What should Brandon be?” Rather than, “What does Brandon want to do?” Rather than treat Brandon’s gender as a part of an emerging identity that he can shape and create as he grows, his gender is treated as a fixed and determinate given. It is not something that he designs, but rather something that his parents, doctors, and psychologists must divine. If he’s a “boy” then he should play with trucks and guns and have a penis. If he’s really a “girl” then he should wear dresses and play with dolls, suffer hormone treatments, and off goes his willy. But why can’t he be herself, whatever that is?

It is too easy to believe that David Reimer’s story is a caution about the dangers of social conditioning, and that therefore, the biological determinists are making sound choices for their children. But the real lesson in David Reimer’s story is that these decisions are far too intimate, far too personal for anyone other than the affected individual to make. David Reimer’s story is a caution against authoritarianism. The tragedy of David Reimer’s life is that the opportunity to shape his identity was stolen from him.

These children are in pain. They are undoubtedly troubled. But they don’t all suffer from the same condition. For some the problem is social identity, as one parent said, “We call it the disorder we cured with a skirt.” For others it might lie deeper; a fundamental issue with self-identification. For some it will be a temporary phase while others will battle with questions of gender and sexuality for the rest of their lives.

Childhood is difficult. Growing up is hard work, and it’s largely work that the child needs to do on his own. If Brandon wants to be called Bridget, then call him Bridget. Buy him dresses, use the feminine pronoun, but don’t foreclose on the idea that she might decide, on her own, to go back to he.

The Intersex Society of North America says it succintly,

In cases of intersex, doctors and parents need to recognize, however, that gender assignment of infants with intersex conditions as boy or girl, as with assignment of any infant, is preliminary. Any child—intersex or not—may decide later in life that she or he was given the wrong gender assignment; but children with certain intersex conditions have significantly higher rates of gender transition than the general population, with or without treatment. (ISNA)

We don’t think we can ever predict, with absolute certainty, what gender identity a person will grow up to have. What we can predict with a good degree of certainty is that children who are treated with shame, secrecy, and lies will suffer at the hands of medical providers who may think they have the best of intentions and the best of theories. (ISNA)

For most of us, our gender, sex, and sexuality are defining parts of our identity. For some of us, however, one or some or all of those aspects of life matter less, or are more a source of confusion and turmoil than markers for a stable identity. If confusion does reign, then trying to force a decision is bound to be disastrous. There’s no reason to assume that for all people and all children that a person’s gender must match their sex, or that their sexuality should be determined by either.

One of the parents in Rosin’s article says, “the biggest sex organ is not between the legs but between the ears.” That gets it exactly wrong. The sex organs are what they are. The brain is an organ of choice, volition, ideas, and identity. Nurture those characteristics and let adults decide how their sex organs should look.

Virtual Murder

Following up on yesterday’s item about virtual theft is a story about virtual murder in Japan. (Again, from Eugene Volokh.)

Like the theft, this virtual murder was accomplished through the use of real-world force.

A 43-year-old Japanese piano teacher’s sudden divorce from her online husband in a virtual game world made her so angry that she logged on and killed his digital persona, police said Thursday.

The woman used login information she got from the 33-year-old office worker when their characters were happily married, and killed the character. The man complained to police when he discovered that his beloved online avatar was dead.

Volokh argues that,

Had she engaged in the “virtual killing” from her own account, by using a feature of the game that made such action possible, or even exploiting a bug in the game that made such action possible, it seems to me that this would just be an interesting extra twist in the game’s narrative. Such action should be dealt with by whatever mechanisms the game’s operators provide (perhaps including expulsion of the misbehaving user, if the operators view such conduct as misbehavior), or at most by a breach of contract lawsuit for violating any user license agreement terms — not by the real-world criminal law.

One interesting aspect of this is the amount of harm caused. In the virtual world (Maple Story, in this case) it should be possible for the administrators of the game to restore the dead avatar to life. In which case, the harm inflicted by the virtual murder amounts to at most a few days lost playing time. (And as it happens, Maple Story is free to play.)

This is a great example of the kind of issues that in-game, virtual courts could help resolve conflicts. The game has officially sanctioned marriages, creating invitation and reception mechanisms and even going so far as to reward the marrying couple with wedding rings. But the game did not provide a mechanism for divorce. The AP story is thin, but it seems as though some in-game mechanism to resolve disputes may have mollified the virtual wife.

Again, these cases are currently oddities only because the amounts of money involved in the disputes is still small. But the value of virtual goods will continue to rise, and as they do, these cases will become more common and more serious. (Maple Story is free to play, but players can purchase in game currency and special items by buying Nexon cash with hard currency.)

One absurdity: Maple Story prohibits “same-sex” marriages. Presumably because they think it would be wrong for two 12 year-old boys to virtually marry. Unless one is pretending to be a girl of course. Then it’s OK.

Virtual Law

From Eugene Volokh at, well… at Volokh.com

A Dutch court has convicted two youths of theft for stealing virtual items in a computer game and sentenced them to community service….

The Leeuwarden District Court says the culprits, 15 and 14 years old, coerced a 13-year-old boy into transferring a “virtual amulet and a virtual mask” from the online adventure game RuneScape to their game accounts.

“These virtual goods are goods (under Dutch law), so this is theft,” the court said Tuesday in a summary of its ruling….

Now this might sound odd — why should the legal system police “virtual theft,” especially since the ability to steal, defraud, and the like within a game may be an important part of the game? But things become much clearer when one reads the longer story, from Radio Netherlands Worldwide:

The culprits, who cannot be named due to their age, kicked, hit and threatened their classmate with a knife before the 13-year-old gave in and transferred the Runescape items, an amulet and a mask, to his attackers’ online accounts.

He makes the point that in this case real harm was done and so the ruling isn’t really all that surprising or notable. But he also says, “I continue to think that generally speaking the law shouldn’t prohibit purely in-game “theft,” “murder,” “rape,” and so on.”

I wonder.

Virtual economies are growing ever larger and more influential. The exchange rate for World of Warcraft gold (based on some admittedly back of the envelope calculations) is somewhere around 2.8 cents per gold piece, which means that one WoW gold is equal to about half a Yen.

At that rate of exchange, it’s common to find virtual items with significant real-world exchange value. If in-game theft or fraud robs a person of significant real-world value, I’m not sure that should exist outside the scope of law. Right now, the issue is complicated by terms-of-service agreements that generally prohibit selling virtual items for real cash, but such restrictions are not universal. At some point (sooner than later, I think), virtual fraud and virtual theft will rise to a level of actual harm that will be impossible for real-world law to ignore. I think the question of jurisdiction will be particularly interesting, as will be the development of virtual courts and virtual arbitration.

The largest virtual game worlds make for fascinating social laboratories. Since the worlds are essentially completely planned economies under the control of autocratic rulers with god-like powers, it’s especially fun to watch them struggle with the classic problems of a managed economy, like inflation. Friedrich Hayek would have loved World of Warcraft.

He’d have been a Gnome Tinker, of course.

Also, check out The Synthetic Worlds Initiative at Indiana University.

Smart & Principled

Todd Zywicki and Orin Kerr have a couple of interesting posts up at Volokh on how voters measure intelligence.

Zywicki muses about the possibility that there’s a tendency among some people to equate glibness with intelligence,

Some thoughtful people simply have a tendency to confuse intelligence with the ability to be glib, or more precisely, to bs. And I think that is much of what it comes down to–if Palin doesn’t know the answer to a question, she just isn’t that good at making something up. Biden, by contrast, is a master bs’er, as his debate performance exhibited. As a general rule, the less informed he was about the answer to a question, the more assertive he was in answering it, such as his extraordinary answer about the legislative role of the Vice-President. It is clear that he had not the slightest idea what he was talking about, yet he just plowed ahead throwing out assertions with rhetorical flair. Classic bs. Even on issues that were supposedly in his area of expertise, such as the Constitution, he wasn’t even in the ballpark of being correct. Hoven picks up on Biden’s whopper of answer about kicking Hezbollah out of Lebanon, but it is pretty much the same thing–aggressive bs covering a complete lack of any clue what he is talking about.

He makes a good point. It’s more important that an ignorant executive be cautious than decisive. On that score, Palin is the only candidate in either ticket that seems even mildly conscious of her own ignorance. When foundering in ignorance, Obama reverts to platitudes, Biden makes stuff up, McCain suspends his campaign, and Palin asks for clarification.

Kerr points out that it’s really not so much about how intelleigent the candidate really is, it’s about how much the candidate agrees with us.

…. we often end up filtering these questions through the lens of how much they agree with us. Politicians who agree with us are necessarily intelligent. After all, they have the raw candle power and the judgment to see that we are correct! And politicians who don’t agree with us are presumed to be much less intelligent: They either lack the candle power or judgment to “get it.” These sorts of intuitive judgments mix together with some of the more objective evidence (academic pedigrees, great writing or speaking skills) to form our judgments of a candidate’s intelligence.

But really, isn’t the intelligence debate a little silly? No matter how intelligent a person is, it would be impossible to master every subject and every issue that a President would face in his term of office. The range of knoweldge is simply too diverse. That’s why a President has advisors, experts in specific fields who offer advice and counsel.

Identifying those experts and weighing their counsel is the primary job of a President. And those decisions are the primary product of the President’s principles. Those principles are much more important to the health of the nation than the President’s college grades, SAT scores, or oratorical skills.

The question in this election, as in every other, is whose principles (to the extent they are identifiable or consistent) are better?

Where McCain has identifieable or consistent principles they seem to be a mish-mash of fuzzy and indistinct notions like Western American independence, anti-intellectual populism, and the virtue of stubborness–with a smattering (but just) of limited government federalist republicanism.

Obama’s principles, where they’re identifiable, are more coherent. Obama appears to be a fairly straightforward progressive. He’s adamantly redistributionist, authoritarian, statist and anti-republican.

For me, the true test of principles are the extent to which they actually make life better, as opposed to the extent to which they claim to make life better. The extent to which principles are grounded in reality is the extent to which they are good principles. The extent to which principles hie to abstractions and float freely detached from reality is the extent to which they’re not only wrong, but actively counter-productive.

In McCain’s case, because his principles are sort of haphazardly assembled and largely incoherent, the chance that he’d actually apply good, effective principles as President is essentially random. In Obama’s case, that chance is even smaller. While Obama’s principles are coherent and largely consistent, they’re also almost entirely wrong.

So that’s our choice. It’s not a choice between Goofus and Gallant, or between Change and Different Change, or between smart and dumb. Our choice is between random and wrong.

New WPA?

Inanity from Wired:

Note to Next President: Modern-Day WPA Will Save the Economy

Beyond providing jobs — analysts say every $1 billion spent on transportation projects creates 35,000 jobs — a modern-day WPA would produce lasting benefits….

A country that’s gridlocked, crumbling, and collapsing isn’t going to serve us well. Spend the money now, enjoy the benefits later.

Mindless repeating falsehoods won’t make them true.

But in 1935 the Works Progress Administration came along. It is known today as the very government program that gave rise to the new term, “boondoggle,” because it “produced” a lot more than the 77,000 bridges and 116,000 buildings to which its advocates loved to point as evidence of its efficacy. The stupefying roster of wasteful spending generated by these jobs programs represented a diversion of valuable resources to politically motivated and economically counterproductive purposes. (Larry reed, FEE)

But hey, the political logrolling would be something to watch.

Borrow your way out of debt. Tax your way out of unemployment.

Hope and Change. Hope and Change.

Crisis of capitalism

David Boaz has a good piece up defending the relative “failure” of capitalism:

Harold Meyerson in the Washington Post has a column titled “Gods That Failed.” He’s referring to a famous book:

In 1949, a number of famous writers, among them Arthur Koestler, André Gide, Richard Wright, Stephen Spender and Ignazio Silone, wrote essays explaining why they were no longer communists. The essays were collected in a volume entitled “The God That Failed.”

And then he makes this analogy: “Today, conservative intellectuals might want to consider writing a tome on the failure of their own beloved deity, unregulated capitalism. “

Where to begin? Certainly we haven’t had any unregulated capitalism lately. As I put it the other day, the kind of capitalism that has encountered the current crisis is “the kind in which a central monetary authority manipulates money and credit, the central government taxes and redistributes $3 trillion a year, huge government-sponsored enterprises create a taxpayer-backed duopoly in the mortgage business, tax laws encourage excessive use of debt financing, and government pressures banks to make bad loans.”

Meyerson’s column is the worst kind of nonsense: not only is it morally insidious, it’s also wrong as a matter of science.

“The credo of budget-balancing has become nonsensical with the economy seemingly headed for a deep recession.”

Meyerson’s solution to deep debt, increasing foreclosures, and a decline in the value of real assets? More debt! It’s not just wrong, it’s grossly irresponsible and dangerous.

Energy Independence

One of the most numbing and continually irritating sound bytes that keeps coming up in this election cycle is “Energy Independence.” Both candidates are equally to blame.

Apparently, in the world these people live in, buying oil from Canada is dandy. Buying from Venezuela or Saudi Arabia is like peeing on the American flag. It’s almost as if they believe that Canadian oil is somehow a sweeter, prettier grade of crude that just feels better in our refineries.

Oil is a fungible commodity. That means that a barrel of light crude that’s pumped in Texas is exactly the same as a barrel of light crude that’s pumped in BabyKillingTerroristIstanAbad-Zuela. Exactly the same.

Oil is a commodity traded on international markets. That means the barrel of sweet, sweet Canadian light crude costs exactly the same amount as a barrel of disgustingly foul putrid light crude that comes from Iran. Even if we could buy all our oil from Canada, Mexico, and Care Bear Land, our purchasing would have the same effect on prices that it would have if we bought the oil from Satan himself.

This is a great analogy (courtesy of Reason)

S. Fred Singer [of the Science and Environmental Policy Project] came up with the best analogy. He described the global oil market like a big bathtub. All the oil production is dumped into one bathtub and all consumers have straws sucking oil out. [For all economic purposes] it’s like we’re all sucking from the same common pool. To say you are not gonna buy Saudi oil, or Algerian oil—it’s crazy. For example, the U.S. hasn’t purchased a dime of Iranian oil—except for a small amount in the early ‘90s, but for the most part no Iranian oil since 1979. And that hasn’t stopped Iran from supporting Hezbollah.

If we buy our oil from Canada, then China will buy oil from Iran. If we buy from Mexico, then Russia will buy from Venezuela. But more to the point, Oil is a commodity that is sold and resold. We don’t buy oil from the Canadian General Store or Fascists ‘R Us, we buy it from commodity brokers, who buy it from speculators, who buy it from brokers, who buy it in lots from all producers. Obama and McCain would have you believe that buying oil from Saudi Arabia is wrong and bad and evil, but buying oil from a Canadian broker that bought that oil from Saudi Arabia is just super keen. It’s absurd.

Finally, this is an issue where when Reason magazine (“The Impossible Dream of Energy Independence“) and Mother Jones (“The Seven Myths of energy Independence“) agree. That should say it all.

Obama and the Court

After watching the debate last night, one of my first comments was that Obama’s answer to the question about judicial nominations was quite frightening.

Obama said,

If a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.

Orin Kerr at Volokh cites a recent Rasmussen poll on this issue:

Should the Supreme Court make decisions based on what’s written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?

While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.

On this issue, it looks like the candidate and his supporters are very much on the same page.

The problem is that the court’s responsibility is not to make law, but to interpret law. In the specific case that Obama cited, Ledbetter v. Goodyear Tire & Rubber Co., the statute in question clearly indicated, “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” The Court held that because Ledbetter’s suit was brought after the 180 period had elapsed that she could not sue under that statute.

Obama would prefer that the Court ignore the law in question and instead issue a judgment based on some necessarily obscure sense of social fairness. But that way lies disaster.

Perhaps the most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy. (Wikipedia)

If we wish to seek a remedy for issues of social fairness, then we must look to the legislature. The legislature writes law. When we seek a remedy under the law, we look to the courts to apply the law as it is written, not as we might hope it may have been written.

The remedy for Lily Ledbetter lies with Congress to amend the law in question and extend the window of grievance. That Congress failed to amend that law may be failure, but the Court’s application of the law that Congress wrote is not.

If there is any principle of sound governance that I would hope we can all agree on it is the idea that the law should strive, at all times, to be clear, unambiguous, and applied without prejudice.

I don’t know

I find myself in an unexpected position: I don’t know who I’m going to vote for in the Presidential election.

I find that almost unbelievable. What am I? An idiot? how could I be undecided at this point?

I know.

Let me explain: I won’t vote for Obama. I find much to like about Barack Obama. He’s intelligent, committed, principled and well-spoken. He looks and sounds presidential. But he’s also wrong about too many things. He’s wrong on education, he’s wrong on health-care, he’s wrong on entitlement funding, he’s wrong on tax policy, and he’s woefully, woefully wrong about economics.

I am convinced, especially after watching last night’s debate, that Obama would vastly expand the size, scope and reach of federal government. With an agreeable, Democratic Congress, I fear that expansion would go largely unhindered.

I simply cannot, in good conscience, vote to expand the Federal government. That is unarguably the wrong thing to do. Especially when the economy is slowing.

But…

McCain is only marginally better.

McCain is less wrong on education, he’s less wrong on health-care, he’s less wrong on entitlement funding, he’s less wrong on tax policy, but he’s still woefully, woefully wrong about economics.

I am convinced, especially after watching the last three weeks of this campaign, that McCain would vastly expand the size, scope and reach of federal government. With a disagreeable, Democratic Congess, I fear that McCain will strive to find “common ground” and “reach across the aisle” to fund bi-partisan monstrosities very much like the recent bailout legislation.

McCain is erratic, philosophically chaotic, and in many ways, unpredictable. I don’t know that I trust him enough.

Nor can I vote for Barr. I spent too much time and too much energy in the Libertarian party to have any more illusions. There is much to like about Barr, but the Libertarian party has been utterly and completely corrupted by a relativism that is simply unconscionable. They are not responsible stewards of liberty or coherent advocates of reason. A vote for Barr is a vote to legitimize the Libertarian Party and that is something I can not do. Nader? Baldwin? Ha.

I won’t write myself, or anyone else in. That’s just silly.

So I’m left with a choice: I vote for McCain or I abstain. Right now, I’m inclined to abstain.

That doesn’t mean I won’t vote on November 5. I certainly will. I will vote in all local elections, but I may leave the Presidential lever alone.

I don’t know. Let me know what you think. Convince me to vote.