To plumb the depths at the NY Times: I think David Brooks is worse than Paul Krugman. Krugman is a cynical deceiver, who distorts every fact to fit his lust for dictatorship. Brooks, who represents the worst strain of conservatism, actually believes his views, and those views are not just anti-freedom (Krugman) but anti-reason.
On Friday, Brooks’ column savaged every fundamental: objectivity, reason, identity, volition. And it’s all done out-of-focus. Here’s a sample:
Objectivity is a myth because: “People elevate and savor facts that conform to their pre-existing sensitivities.”
They do? Well, Mr. Brooks, is you a people? Then that statement is not objective, it is only a reflection of which facts you savored.
(This is an instance of “the contradiction of determinism.”) Later in the column, by the way, we learn that there are no facts. The column is on the Sotomayor nomination. His basic argument is that basing decisions on “empathy” is fine–in fact, it is unavoidable. But a Justice should be humble and cautious in doing that.
“Supreme Court justices, like all of us, are emotional intuitionists. They begin their decision-making processes with certain models in their heads. These are models of how the world works and should work, which have been idiosyncratically ingrained by genes, culture, education, parents, and events. These models shape the way judges perceive the world.”
Right out of the mouth of, say, Jacques Derridas–who picked the philosophical pocket of Immanuel Kant. The unvarying line is: we necessarily filter reality, so there’s no objectivity. It is unimportant whether the filters are “categories of the understanding” inherent in any rational consciousness (Kant) or “models” set “idiosyncratically” by genetics or environment. In either case, we are forced to apply these unchecked and uncheckable premises to everything.
So don’t come to him talking about truth. Truth is in the model of the beholder.
So intent is Brooks on destroying reason, that he fails to note that his argument doesn’t even apply to judicial rulings. He makes a feeble effort to apply it, but the result isn’t convincing. His premise is that we’re all inherently emotionalists. To put it in Objectivist terms, our value-premises determine which facts we “savor” and which we do not. But, even if that were true, so what? Judicial decision is not about a hierarchy of values. It’s not about what the law ought to be but about what the law is.
Yes, judicial interpretation makes use of value-concepts (like “rights” and “property”), yes there are questions about what is fundamental and what is derivative, but one would think a
conservative writer would know that the job of Supreme Court justices is not to make law, not to impose their own feelings about right and wrong, but to decide what the law says and how that applies to the case at hand.
Here’s Brooks’ pitiful example of how there’s no such thing as objective judicial interpretation:
“two judges look at the same situation and they have different perceptions about what the most consequential facts are. One judge, with one set of internal models, may look at a case and perceive that the humiliation suffered by a 13-year-old girl during a strip search in a school or airport is the most consequential fact of the case. Another judge, with another set of internal models, may perceive that the security of the school or airport is the most consequential fact.”
You see the “model” of judging he’s trying to put across here. The judge’s role, he implies, is to decide how things should be–not to decide what the law says and apply it. He evades this issue by using the package-deal term “consequential.” The two elements smeared together by his use of that term are: “what the law is” and “what I’d like the law to be.”
In fact, even a judge who disagrees with the morality of a law can, if he chooses, know what it says, and apply that. For example, I disagree with the morality of taxation, but the Constitution explicitly gives Congress the power to tax, so despite the fact that my “model” is anti-tax, I can see that taxation, though immoral, is not unconstitutional. (Ultimately, what is required here is an Amendment to the Constitution to eliminate the section granting taxing power.)
Brook’s approach is really slimy. After arguing that we get our ideas from hidden subconscious processes, not logic, he says that once the idea is “articulate in your consciousness”:
“You can edit it or reject it. You can go out and find precedents and principles to buttress it.”
Notice what is sneakily missing from what you can do with an idea. He never says you can determine whether the idea is true or false. You can edit it (i.e., push it in a bit here, let it out a bit there), you can reject it (why? because you feel like it), you can rationalize it (“buttress” it). But missing is the crucial act: objective judgment of the idea’s truth or falsehood.
With consistent inconsistency, Brooks tries to combine his subjectivism and determinism with an objective value-judgment, proclaiming a difference between good judges and bad: “The good judges seem to derive a profound emotional satisfaction from the faithful execution of [. . . wait for it . . .] time-tested precedents and traditions.”
So, in answer to the leftist doctrine of a “living, evolving Constitution,” he says: yes, but let it evolve slowly. Why is slower better? There’s no possible answer for a subjectivist. But his stated answer is the argument from uncertainty: “is [Sotomayor] aware of the murky, flawed and semiprimitive nature of her own decision- making, and has she accounted for her own uncertainty?” (Well, yes, actually, she has. So what?)
Along with subjectivism comes nominalism: “If we were logical creatures in a logical world [!], judges could create sweeping abstractions . . . But because we’re emotional creatures in an idiosyncratic world [!], it’s prudent to have judges who are cautious, incrementalist and minimalist.”
How do we extract a concept of “prudence” from our murky, flawed, semiprimitivism? If we are illogical and the world lacks identity, how do we know anything, including what is or isn’t prudent? Clearly, we can’t. There’s no standard for deciding whether caution or boldness is better. For instance, do you want the surgeon removing your cancer to take a “cautious, incrementalist and minimalist” approach–removing only 10 percent of the tumor?
The only thing that explains Brooks’ preference for “time-tested precedents and traditions” is the psychology of the second-hander.
Logically enough, Brooks closes by lauding “right-leaning thinkers from Edmund Burke to Friedrich Hayek.” Burke and Hayek were each explicitly anti-reason. Burke wrote: “We are afraid to put men to live and trade each on his own private stock of reason.” Hayek last book was titled “The Fatal Conceit”–the conceit that we can base morality on reason.
Brooks has scribbled a Subjectivist Manifesto. But subjectivism is self-refuting. All it comes to is: “I feel that subjectivism is true.
“Reason is weak,” he writes, “and emotions are strong.” I grant that that is true in his “idiosyncratic world.” But my response is to quote the hero in Ayn Rand’s The Fountainhead, Howard Roark, “Peter, why betray so much?”