The Smartest Supreme Court Choice of All

President Obama's smartest move on the Supreme Court would be to choose someone smart. The court is losing an articulate champion, and it needs a strong new voice - not just a vote - as balance.

Can Sonia Sotomayor out-reason Justice Scalia? More important, can she convince other justices, and other Americans, of her views?

Some liberals say that even asking the question is sexist or racist, though none of the other minority candidates, from Elena Kagan to Harold Koh, drew fire for perceived lack of intellect. And it's a good question to ask. A judge in the spotlight of history must be able to make not just the right decisions, but also convincing arguments.

Supporters of Sotomayor say the doubt is misplaced; after all, she went to Princeton and then Yale Law. But if a school record guaranteed intelligence, we could count on brains from anyone who attended Yale and Harvard, like our previous president. 

So what is a better measure?

Here are three good  yardsticks of intelligence:

First, an articulate speaker is a good sign. While some smart people can't express themselves well in words, you might consider it a requirement for a Supreme Court justice, who must convince a nation of the soundness of each judgement. Sotomayor's wooden reading of her dull acceptance speech doesn't bode well, though she may yet surprise us.

Second, the ability to see the implications of a choice matters greatly. Sotomayor will get grilled on her upholding of Ricci, the New Haven firefighter denied promotion when no minorities passed the advancement test. Whether the verdict is sensible or not, the opinion was a single, anemic paragraph - wholly unacceptable for a divisive, sensitive issue. She upheld the case but settled nothing.

Which brings us to the final yardstick for intelligence:  the ability to place decisions in the context of the most important principles.  Any tough decision has several principles in conflict, as does the Ricci case above. On the one hand, you want to promote someone who has earned the position, yet on the other, you want to encourage success for anyone of merit. A judge needs to define which principles are affected by each choice, preferably in a convincing opinion.

It's exceptionally easy to let lazy thinking overwhelm such reasoning. Even Antonin Scalia does it, as when he said,

'I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?'

While I actually agree that fair treatment varies with context, I've never railed against 'judicial activism,'  the interpretive reasoning applied by judges for such cases. Scalia hates it or endorses it, as the need suits him.

Would Sotomayor stand up to this inconsistency? Would she be convincing?

Look at this summary of her skills from today's Times:

Judge Sonia Sotomayor's judicial opinions are marked by diligence, depth and unflashy competence. If they are not always a pleasure to read, they are usually models of modern judicial craftsmanship, which prizes careful attention to the facts in the record and a methodical application of layers of legal principles.

That's another frightening sign of a mediocre mind,  however well-disciplined. Precedent matters, but so does sound reasoning. Look at these two smart opinions from Souter, one 'liberal' (attacking a death-penalty requirement) and one 'conservative' (setting limits on minority activism):

He dissented in a 5-4 ruling when the Supreme Court upheld the right of Kansas to require the death penalty in an unusual tiebreaker arrangement:

'A law that requires execution when the case for aggravation has failed to convince the sentencing jury is morally absurd, and the court's holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States.'

Yet he also wrote the unanimous court ruling that St. Patrick's Day parade organizers could refuse to include a troop promoting gay rights. Look at how well he recognizes value in both sides, and how clearly he places the priority:

'While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message, or discouraging a disfavored one, however enlightened either purpose may strike the government. ...'

Souter's elegant phrasing applies to all such cases, regardless of political bent; gay rights parades are not required to make room for a troop from the religious Right, nor must the NAACP provide a marching slot for the local Klan. Sensible, yes?

I'm skeptical that Sotomayor would be so clear.

But perhaps she'll convince me.

This post comes today for timely reasons, replacing next Monday's column. I'll post again the following Monday.

A Tax Conservatives Can Love

This week's Economist calls a spade a spade: the world needs a carbon tax.

That's right, a conservative magazine favors a tax. (This one puts a pollution surcharge on energy produced from burning coal and oil, among other things). And they should, for two good, conservative reasons.

• A carbon tax helps market forces work.

Usually, free-market advocates hate taxes because they introduce inefficiencies. But taxes can actually help set proper rates for items with societal costs.

If your neighbor buys a new lawn mower, you're better off when instead of a gasoline-powered one, he chooses a quieter, less-noxious electric model. But there's no price-cut for him if he does so, nor is there a surcharge for the gasoline model. There's a clear advantage to one choice, yet that isn't reflected in the price. The market needs a 'nudge' to set it right.

This is sometimes addressed through rebates, as with electric cars, but that's inefficient and far less precise than a tax. More often, the government steps in with an outright ban of the offending item, which brings us to the second reason to favor a tax:

• A carbon tax means less government interference.

Often, the offending item faces an outright ban, as with lighter fluid (in Los Angeles), fast-flow shower heads (in San Francisco),  and large-flush toilets (nationwide). That's both heavy-handed (I wish I could apply my fine water-saving habits toward a good shower) and unnecessary.

We face even worse with the cap-and-trade system proposed for carbon. Under that system, the government would issue permits to coal and oil and other companies, allowing them to pollute up to a certain amount. It's become popular in Congress because politicians feel, perhaps correctly, that they can steer credits to their own states.

But what conservative would trust the government to get the levels right? And what liberal trusts companies to pass on to consumers the value of their new permits they've received?

It's far better to let the market work. Set a simple tax on pollution, then apply some of the revenue toward green solutions. That means less government intervention, less bureaucracy, and a greater chance for the market to work its magic.

What conservative wouldn't love that?

The Doomsayers and the Retirees

How can opposite sides of a debate both be right?

Doomsayers insist that Social Security has no 'trust fund' and will run out of money sooner than 2037, the new date listed in this month's official new projections.

Optimists say Social Security is well-funded and can continue with little additional money, if any.

They're both correct, at least partially so.

The doomsayers have latched on to a concept few media outlets understand: we're spending the Social Security surplus, and that means there's no 'trust fund.' Currently, Social Security takes in more money than it spends; that will change as we get more retirees per worker. Most news sources then report that the extra money Social Security has taken in - including this year and last - can then be spent to cover the gap until 2037.

But since we're spending that money now, there isn't any 'saved.' The surplus money goes into the general fund, which is spent by Congress on defense, education, and the like (see 'Where do your Taxes Go?').

It's as if you give $100 to your best friend in exchange for an I.O.U. while he or she then spends that cash. When you turn in your I.O.U., your friend needs to get that new money from someplace, since it hasn't been saved.

For Social Security, the I.O.U.'s are notes from the Treasury Department (or technically, they're an accounting entry made in the ledger for Social Security). To pay them off, the government will either need to borrow more (by issuing Treasury Bonds), or raise the income through taxes. There just isn't any saved. Really.

Optimists say the Treasury Department never defaults on payments, and that's true, too. Next week, we'll see why they're right: even though there isn't money saved, Social Security is not in crisis.

Words are Terroristical

Surprise! Barack Obama is a fascist, say GOP commentators, bloggers, and even politicians, including ex-presidential candidate Ron Paul.

Unless, of course, Obama is a socialist, as claimed by many of the same people, including Ron Paul and other folks at the first link above. Saul Anuzis, a contender for GOP party chair, explains that party supporters weren't getting enough traction from 'socialist,' so they're trying the new 'fascist' tag.

'We've so overused the word 'socialism' that it no longer has the bad connotation it had 20 years ago, or even 10,' says Anuzis. 'Fascism - everybody still thinks that's a bad thing.'

Or maybe President Obama is a Communist - people still hate Communists, right?

That link, like the previous one, comes from FreeRepublic.com, which used to be my favorite amusing conservative site until they kicked me off for offering opposing views. (Really! That's why you'll never read a dissenting opinion there. They don't allow them.)

Even if you can't ignore such trash (the above article states a KGB agent admits Obama is a secret Communist), you can use your head. Can he be all three at once?

Remember that it was the Communists who fought the Fascist government in Spain, and that makes sense. They're at opposite ends of the political spectrum; they combine no better than the Yankees and the Red Sox. Those pundits are just spouting play-yard taunts, and they might as well call Obama a 'poopy-head.'

We've seen this before, most recently with abuse of the word 'terrorism,' which has devolved into meaning only, 'something you don't like.' As you know, 'war is terrorism,' as is ignorance. Hate is terrorism, as are global warming, and of course - of course! - taxes.

Such word-napping aside, it's actually useful to have a word that describes the deliberate targeting of civilians. War is awful, of course, but there's a moral chasm between shooting an armed assailant and planting a bomb on a school bus. Equating the two elides an important distinction, and when we muddy the words, we cloud our thinking.

So don't believe the name-callers when they toss around the 'fascist' label, nor the 'socialist' one. You know the difference, or if you don't, you still know there is one.

After all, you're no poopy-head.

Handling Obama Derangement Syndrome

When conservative pundit Jonah Goldberg recently praised Barack Obama's handling of the Somali pirate incident, his email inbox overflowed with "snark and bile" from readers unable to stomach the good words.

Of course, there was nothing wrong with the actions themselves.

If Ronald Reagan had taken the same steps - sending Navy forces to the area and ultimately rescuing the American ship captain after killing his captors with astoundingly accurate sniper fire - conservative magazines would feature the Gipper on Mt. Rushmore.

What better response from the conservative perspective? We used military might to rescue an American hostage. You'd think that would win cheers from everyone without tie-dyed sheets, yet Republicans still sneer (see 'Obama Derangement Syndrome' in the Economist).

'There's no pleasing some people' takes on a special significance today, as the phrase has more literal meaning than in the past. The radical right will be pleased by nothing, absolutely nothing, undertaken by Barack Obama or his party, just as the radical left refused to endorse any action by George W. Bush (even such liberal-friendly acts as increasing AIDS treatment funding for Africa).

So why try to make the radicals happy? A better option is to ignore them completely.

No more trying to please the opposition. No more making tax cuts the single biggest part of the stimulus package, because the other guys will still hate you. No more resisting calls from both sides of the aisle to nationalize banks, because the opposition will still call you a socialist or a fascist or a communist... or even all three at once. (See the Economist article above.)

In fact, that's the very topic of next week's post, Words are Terroristical.