Friday, June 13, 2003

I agree with William Safire, and the many others who've said the same thing, that the case the prosecution is bringing against Martha Stewart (as opposed to the one they haven't) sets a bad precedent. But by that standard, the Bush administration should be in far worse shape than she is.

Jack Balkin is fun to read in complex legal argument, and his response to Orin Kerr at Volokh is unfailingly polite, but no less clear. In the post before it, however, Balkin makes a defense, on the grounds of his intelligence, seriousness and skill, of Richard Posner, and explains why Bush should, but will not, pick him to replace Rehnquist if (when) he retires. From what I've read of Posner, in debates with Ronald Dworkin and small pieces here and there, he is an unimaginative technician, able to gather volumes of information in defense of ideas that are otherwise shallow and simplistic. He knows his way around the law, follows the rules of civil discourse, and shows respect for the fraternity, but should that be enough? Can we not decide to oppose someone on the basis of their principles, even if those principles are sincerely and courteously argued? When has the right wing shown such deference? This is not a discussion of whether he would be better than what Bush is going to try to give us. And here, at least, I am not talking about practicality as politics now requires it, or perhaps has ever required it. In this I agree with Balkin. But that doesn't mean I have to offer the ideas themselves any respect. On the contrary.

There is an old Sufi proverb: "If you want to impress a fool, praise him. If you want to impress a wise man, improve yourself." Curiosity is a means and an end. It is the be-all and the end-all of an imaginative mind. In a democracy, predicated on a multiplicity of ideas and voices, is it appropriate to have a philosophy predicated on only one? Is it not logical, even rational, given that we can not legislate that one voice be allowed to silence another, that we demand our spokesmen and judges have an understanding of the conflicts that are the result of such variety? It is not necessary to argue that aquisitiveness and curiosity are themselves antithetical, but it is wrong and even immoral to allow those who would speak for us to define our freedoms in terms of only one desire, or one form -accepting that greed is such a form- of the curiosity that defines democratic society.

That last paragraph is very dense. I can't judge it I wrote it in a hurry and have to go to work.
If it needs fixing I'll do it later. The bit of Sufi wisdom was in no way meant as a comment on Prof. Balkin. If it was meant for anyone, other than for the foolish and incurious in general, it would be Posner, who I think argues their case.

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