The Role of Judicial Review--Legal Affairs Debate Club

Interesting debate here on the role of judicial review (thanks to Professor Bainbridge) between Professors Tushnet and Chemerinsky, with the latter arguing that it's not needed. According to Tushnet:
"The core of your position seems to be that if there is disagreement over the meaning of the Constitution, there is no reason to prefer having the court make the choice rather than the political process. My view, in contrast, is that society is better off having an institution largely insulated from majoritarian politics determine the meaning of the Constitution and enforce it.
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In the argument I'm struck by the absence of a sense of history, which puts me more on Tushnet's side (pro judicial review). Over time, sober reflection will result in different positions than the push and pull of policy-making by elected politicians. And the country will often be better off. In democracies, politicians respond to the passions of the moment and act. Or flotsam rides the tidal wave up onto the beach. The passion cools, the tide ebbs, but democracy will not clean the beach of the flotsam.

Clutches and Shear Pins in the Bureaucracy--Metaphor

In days of old, good Americans drove American iron, built by Detroit, the bigger the better, and the engine was connected to the transmission through something called a "clutch" (now a "manual clutch" since almost all are automatic). A problem in learning to drive was engaging the clutch--feeding just enough gas to the engine with the shift in first gear, not second or third, so that the engine wouldn't stall. (This was a big problem for me.) The issue is meshing two mechanical systems--the internal combustion engine and the transmission and wheels--matching force and the resistance of inertia.

On the farm, our tractor had a "power take-off" (PTO) --a rotating shaft driven by the tractor engine. The mowing machine was driven by it--a sleeve slipped over the shaft, transferring the rotary motion to the mower, which had a "pittman bar" to transform the rotary motion to back and forth lateral motion, which operated the cutting bar. At some point in the transmission there was a "shear pin". If the mower jammed up, the pin would shear in two, disconnecting the mower from the tractor PTO. This safeguarded the mower--otherwise the force of the tractor could snap expensive parts of the mower. Another aspect of matching force and resistance.

I'm thinking of these as metaphors when reading commentary on Mark Felt and this Washington Post article on the new Secretary of Agriculture. The problem is matching the power and force of the political appointees with the capabilities and inertia of the bureaucracy. (Remember that "inertia" in physics, if I remember some 50 years ago, is the tendency of a body to continue as it was: if it was moving, it has inertia; if stopped, it has inertia.) If you have a mismatch, there will be problems. In the case of Johanns, he's carrying over some of Veneman's people and appointing people experienced with the issues. In the case of Porter Goss at the CIA, he appears to have brought in his own people, and his own agenda, so there was an explosion. In the case of L. Patrick Gray there was also an explosion.

So leaks may be symptoms of a mismatch of force and inertia, or may result in parts flying off, as bureaucrats are fired as in the Goss and Gray cases.

Smoking as a Marker of Political Difference

Liberals now think:

tobacco smoking is a dangerous and addictive habit foisted on unsuspecting consumers by the wiles of big corporate tobacco companies and their henchmen on Madison Avenue. Accordingly, the power of the state should be used to suppress smoking in all public areas.

pot smoking is helpful to the sick and an innocent recreation for those intelligent people who make rational decisions about how to run their own lives. Pot is grown in rural areas by people who believe in cooperating with nature and is dispensed by informal networks that are anti-capitalist. Accordingly, the power of the state should not suppress pot smoking.

Conservatives now think:

tobacco smoking is a recreation that people should be able to decide to indulge in, particularly in the case of Wall Streeters who enjoy cigars. Accordingly, the power of the state should not suppress tobacco smoking.

pot smoking is a dangerous and addictive habit that enslaves the young and damages their minds, a stepping-stone on the path to ever more dangerous addictions and more licentious behavior. Pot is grown and sold by evil people with beards, and often imported through violence-ridden conduits. Accordingly, the power of the state should suppress pot smoking.

Libertarians combine the liberals view on pot and the conservatives view on tobacco. Communitarians combine the liberals view on tobacco and the conservatives on pot.

FBI Culture and Software

The Washington Post has another article on the FBI's problems with software development:

"The 32-page report -- prepared by the House committee's Surveys and Investigations staff and obtained by The Washington Post -- indicates that the FBI passed up numerous chances to cut its losses with the doomed Virtual Case File (VCF), instead forging ahead with a system that ultimately cost taxpayers more than $100 million in wasted expenditures."

I don't see that the article adds much to previous developments, but I would segue over to retired agent I.C.Smith, whose book "Inside" I just read. He writes clearly about his career in the FBI, including counter-intelligence and ending with a stint in charge of the Little Rock office. Nothing sensational, mildly interesting, with peripheral takes on Whitewater, Chinese campaign finance, Hanssen, etc. but no new dirt. Reading between the lines, the FBI culture was hard-drinking, as one might expect of a law-enforcement, very masculine fraternity. He divides agents into "risk takers" and "wimps". It's hard for me to believe that anyone involved in requirements specification or software development would qualify as a "risk taker" in his eyes--they'd be wimps.

In that climate, it's hard to admit mistakes and failure--the temptation is to try to plow through the obstacles. That's often a counterproductive attitude to take to software, particularly if the software isn't essential to operations so the users can just not use it. (When my old agency computerized in the mid-80's, we had the field offices by the short hairs because they had to write checks through the new system, and writing checks was the raison d'etre of the whole operation.) With the FBI, you'd have to have the U.S. attorneys requiring computerized information in order to have a similar hammer to enforce use of software.

The "Mesa Effect"

Because of various problems with e-mail, I'm copying my comment on Deep Throat from
Achenblog: Daily Humor and Observations from Joel Achenbach: "As you said, history sometimes operates with the butterfly effect. It's also fascinating to see the 'mesa effect' in operation: the passage of time erodes away detail and certain people start to emerge and dominate the scene, at least as represented in popular memory and history. You can see that operating here. First there's the idea that 'All the King's Men' played up 'Deep Throat' to make a stronger narrative. Now popular commentary seems to be saying the Post brought down Nixon and Deep Throat was the source for the Post. (I see Bradlee resisted that idea in the interview on msnbc.com) The whole drama gets simplified as time goes on--Judge Sirica, the prosecutors, the Senate committee, Saturday Night Massacre, all get omitted in the retelling. (The main exception to the simplification is the multiplication of conspiracy theories by the nuts.) It's plausible that Felt had several different reasons to confirm Woodward's info and guide his research, but the soap opera requires that he be either piqued villain or idealistic hero, not an ordinary human operating with mixed motives."

Bureaucratic Axes

Professor Stephen Bainbridge quotes pieces on the Watergate/Mark Felt background and goes on to say:

"DC turf wars make the story a lot less romantic, don't they? But it also speaks to my point about anonymous sources: Might we not have evaluated Woodward and Bernstein's work with a more informed eye if we knew they were being fed stories by somebody with a bureaucratic axe to grind?"

I think his vision is a bit blurred. Almost every story relating to a bureaucracy is sharpening someone's axe. If the story is an official press release, it's on behalf of the head of the bureaucracy. If it's a leak from within the bureaucracy, the person has his or her own motives. But as a bureaucrat, it's very likely that the motive is partly or wholly bureaucratic in some sense. In Felt's case, there were several possible motives: pique at being passed over for the Director's position; concern that L. Patrick Gray was in the pocket of the White House, unlike J. Edgar; desire to torpedo any rival "black bag" shops authorized to operate domestically; "big shot-itis"--the desire to show oneself as having knowledge no one else had; general discomfort with Gray as a "new broom" (recall the problems at CIA when their new director took over) and a desire to get rid of Gray (see Edward Jay Epstein's 1974 piece, thanks to Powerline) and finally idealism. Somehow a 35 year veteran of Hoover's FBI isn't a likely idealist.

On the other hand, most people have mixed motives for many things they do. It's possible that all of the above motives had a place in Felt's mind, but without the possibility of applying an idealistic veneer he wouldn't have chosen to leak. And, one has to remember that this is a dyadic relationship--why was Woodward willing to receive the leak? Ambition, obviously. But as a young reporter he may have needed the whiff of idealism.

Taking a Walk

Actually, my morning routine is a run/coffee/walk combo, with possibly some gardening thrown in. I ran cross country in high school, so now that I'm old running again gives me the illusion of youth. I can almost feel young again, except that when I try the final sprint to Safeway/Starbucks I can only manage about 10 yards before slowing again. (The coffee is the reward I give myself for the running.)

This morning I ran to the closest of our community gardens (Reston sponsors them, mostly on the right of way of the gas pipeline that runs through the community). After doing a little weeding to keep abreast of nature, I resumed my jog, to the water fountain next to the soccer field, also on the pipeline right of way. The soccer field replaces the original Reston landmark, dating back to the late 60's, a riding stable. The stable was just off the right of way, while the riding rink (terminology check?) was on it. Unfortunately Reston didn't attract enough horse enthusiasts to make the stable really thrive, so when the stable collapsed under the weight of snow, if I remember correctly, rebuilding was a dubious proposition. On the other hand, enough of the horsey set insisted that the stable be rebuilt. They were vocal enough to immobilize the decision makers. So the insurance money from the stable collapse sat in the bank for several years. Finally enough of the horse people moved so the powers-that-be were able to build a soccer field and basketball courts and kids play area. Oh, and the parking lots needed for the cars to carry people to the exercise areas.

When they built the complex (probably 1986-8ish), they put in a water fountain. I'm sure there was no debate--people exercise, get thirsty, they need water, for water you need to have a fountain. A century ago you'd put in watering troughs for the horses just as automatically. What the planners didn't realize was that technology was advancing. While Perrier water may have been the pricey option suitable for the rich then, entrepreneurs were starting to realize that people would pay good money for water in a bottle. Sure enough, when I paused on my jog for a drink, there was a Poland Springs bottle lying by the fountain. The fountain still works, but there may come the day when it becomes as unneeded as the horse stable that used to occupy the site.

Having depressed myself by this reminder of the march of progress, I went on to get my coffee.

What George Orwell Didn't Say

My wife and I went to Wolf Trap Friday night for Garrison Keillor. He used a quote from Orwell, which I later researched. The quote turns out to be apocryphal, as discussed here:

The Chestnut Tree Cafe - George Orwell FAQ: "Rough Men

Did George Orwell ever say: 'People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf?' Or: 'We sleep safely at night because rough men stand ready to visit violence on those who would harm us?'

Not exactly. But he did make comments that were along similar lines. In his essay on Rudyard Kipling (1942), Orwell wrote: '[Kipling] sees clearly that men can only be highly civilized while other men, inevitably less civilised, are there to guard and feed them.' (Thanks to Keith Ammann for this). And in his 'Notes on Nationalism' (1945) he wrote: 'Those who 'abjure' violence can only do so because others are committing violence on their behalf.' (Thanks to Parbety). Where the rough men crept in is anyone's guess."

On reflection, "rough men" sounds like political correctness. Would any good leftist today be comfortable saying that soldiers are "less civilised?"

Even Nobelists Nod

Gods and Nobelists occasionally nod. In this case, Professor Stephen Bainbridge is discussing potential limits on the power of hedge funds to control corporations, raising the issue of principal/agent relations:

ProfessorBainbridge.com: "In a very real sense, giving institutions this power of review differs little from giving them the power to make management decisions in the first place. To quote Arrow again: “If every decision of A is to be reviewed by B, then all we have really is a shift in the locus of authority from A to B and hence no solution to the original problem” of allocating control under conditions of divergent interests and differing levels of information."

What Nobelist Kenneth Arrow fails to reckon with is human nature. [Note: I recognize I'm critizing a quote without reading the source material. But this is a blog.] In my experience, if B always reviews A, the issue becomes one of the quality of A's action. If A is capable, you end up with a "pro forma" review. If A and B share trust, A will try to alert B to any problematic issue where B may have different interest or different information (a different "take" on the situation) and B, under conditions of too much work and too little time, will rely on such judgment. If A is neither capable nor trustworthy, the situation will not usually last.

What may happen is two parties, nominally separate and each with their own interests and sources of information, merge over time, blending their interests and information so that the legal organization does not reflect the reality. This might account for some of the failures by auditors during recent years.

Social Class and Immigration in US

Today's NYTimes article on class compares a Greek who immigrated after WWII and a Mexican who immigrated in 1990. The Greek has a NY restaurant, the Mexican worked as a cook for him until he was fired. What struck me was the change over the years. Scotch-Irish immigrants in the 18th and early 19th centuries (my great grandfather immigrated in 1824) had big problems even writing back to the home folks; a letter every 2-3 years was doing good. By 1946, immigrants had regular mail and telegraph service, with the possibility of phone service. And today immigrants regularly return to their hometowns on holidays and perhaps to retire. All this has got to make a difference, both in the immigrants mobility in their new country and in the effect on the old country. Query--is it really a zero sum game, modern communications/mobility means less upward mobility for the immigrant in the new country, but greater improvements and status in the old?