The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Wednesday, May 19, 2010

Argument from Ignorance

Senator Sessions Should Consider the Evidence Against Himself Before Damning the Lack of Evidence Supporting Kagan

A man is sitting inside a warehouse that has a tin roof and no windows. Tin roofs are notorious for making lots of noise inside a building when it rains outside. The main in the warehouse cannot see outside, so he cannot tell directly if it is raining at a given time. But he can infer it indirectly, using, for example, the following argument – If it were raining now, I would know it by the noise. However, I do not hear any noise. Therefore, it is not raining now.

So begins the book Arguments from Ignorance by Douglas Walton, published in 1996 by the University of Pennsylvania Press. The hypothetical example above is an example of an argument from ignorance – a logical fallacy in which an individual claims a premise is proven true only because it has not been proved false or proven false only because it has not been proved true. Such reasoning often provides useful heuristics in uncertain situations. However, as Walton points out, this very reasonableness is exactly what makes arguments from ignorance so dangerous when applied as definitive substantiation.

“Such an argument might discourage us from proceeding to look for positive evidence to prove a hypothesis. Even worse, it might be used to deflect criticism away from one’s failure to provide such positive justification for a claim one has made. The requirement for fulfilling the burden of proof for a claim one has made is a fundamental principle of argument.”

Republican Senator Jeff Sessions of Alabama, the ranking minority member on the Senate Judiciary Committee, stands charged with providing advice and consent on President Obama’s choice of Elena Kagan as the next Supreme Court Justice over the next several months. This will likely prove troublesome for me, as Sessions is clearly a man sitting in a warehouse with a tin roof, listening with a tin ear.

If convention wisdom is correct, the GOP will not filibuster Kagan. Instead, it will attempt to make as much political hay as possible by criticizing Kagan’s controversial decision while Dean of Harvard Law School to bar military recruiters on campus over “Don’t Ask, Don’t Tell” and then confirm her.

Republicans failed at using the recruitment affair to derail Kagan’s confirmation as U.S. Solicitor General last year. However, Session’s colleague, Republican Senator Jim Inhofe of Oklahoma, explains the gravity of a lifetime federal judicial appointment sets a higher standard than that for a temporary political appointee. In fact, Inhofe takes it a step further. “If I believe someone is not qualified for a lower position, like a district level, how could that person be qualified for the United States Supreme Court? I don't think they could. The bar has to go up as you go up the courts.”

Now comes the part where Sessions enters the tin-roofed warehouse. His initial reaction to Kagan’s nomination was to release a statement that read, “Ms. Kagan’s lack of judicial experience and short time as Solicitor General, arguing just six cases before the Court, is troubling.” He fears what he does not know about her will end up hurting the nation. “What record does she have to demonstrate that she has been able to put aside her strongly held political views?” Session asks.

Since her lack of a record makes it impossible for Kagan to disprove she is a radical judicial activist, intent on gutting the Constitution, Session equates this to proving it is exactly what she intends to do. Her personal testimony is insufficient to allay his fear. After meeting privately with Kagan, Sessions told reporters, “I did ask her . . . She indicated she would be faithful to the law but of course every nominee says that.”

Interestingly, when former President Bush nominated Harriet Miers, his White House Counsel, for a Supreme Court vacancy in 2005, Sessions had no qualms with her lack of a judicial record. He released a statement the including the following – “It is not necessary that [Miers] have previous experience as a judge in order to serve on the Supreme Court. It’s perfectly acceptable to nominate outstanding lawyers to that position.”

Granted, Miers’s experience was mostly practical whereas Kagan’s has been primarily academic. Still, it is unclear why practitioners gain such increased competence and trustworthiness over those who gave them the knowledge and background to practice in the first place. The real problem in Sessions’s mind is probably the lack of an audit trail.

Sessions knows firsthand how dangerous audit trails can be. In 1985, he was serving as a U.S. Attorney when former President Reagan nominated him to be a federal district judge. Sessions had the backing of Republican Senator Jeremiah Denton of Alabama but hit a snag during his confirmation hearings, when four fellow Department of Justice lawyers all testified that he had made various racist statements.

One lawyer, J. Gerald Hebert, testified that Sessions had referred to the NAACP and the ACLU as “un-American” and “Communist-inspired” because they “forced civil rights down the throats of people.” He said Sessions also called a white civil rights lawyer a “disgrace to his race” for litigating voting rights cases. Herbert said the incidents he described were not isolated, characterizing Sessions as tending to “pop off” on such topics frequently.

Thomas Figures, an African-American Assistant U.S. Attorney who worked under Sessions, testified that Sessions said he “used to think [the Ku Klux Klan] were okay” until he found out some of them smoked pot. He further testified Sessions once forcefully remarked, “I wish I could decline on all” civil rights cases. Figures said that Sessions routinely referred to him as “boy” and once warned him to “be careful what you say to white folks” after he overhead Figures reprimand a secretary.

Senator Ted Kennedy of Massachusetts asked Figures if he had ever voiced objections to Sessions over his behavior. Figures replied, “Senator, I felt that if I had said anything or reacted in a manner in which I thought appropriate, I would be fired. I always felt that my position was very tentative around Mr. Sessions.” Then he added, “In all fairness to Mr. Sessions, however, I should make clear that the problems which existed in the area of civil rights were not present in other aspects of my case assignments.”

When it came his turn to testify, Sessions denied he was a racist. “I'm often loose with my tongue,” he admitted but insisted he was joking or misunderstood in the instances cited. Then he went on to say that the NAACP and ACLU could be construed as un-American when “they involve themselves in promoting un-American positions” in foreign policy. And he stood behind a statement he once made describing the Voting Rights Act of 1965 as a “piece of intrusive legislation.”

The Judiciary Committee ultimately voted ten to eight not to recommend Sessions and then voted nine to nine not to send his name to the Senate floor for a vote without a recommendation. Sessions was only the second nominee to the federal judiciary in forty-eight years whose nomination died in the Senate Judiciary Committee. Reagan had already received confirmation on over two hundred other equally conservative judicial candidates.

Republicans outnumbered Democrats on the Judiciary Committee by two votes but Republican Senators Charles Mathias of Maryland and Arlen Specter of Pennsylvania crossed over. Also voting against Sessions was Democratic Senator Howell Heflin of Alabama. Heflin had initially backed his fellow Alabaman but concluded Sessions’s ability to be fair and impartial was distinctly suspect, at least for civil rights cases. “My duty to the justice system is greater than any duty to any one individual,” said Heflin.

Sessions went on to become Attorney General of Alabama and ultimately won Heflin’s Senate seat upon his retirement. These were positions, unlike a judgeship, for which he only had to demonstrate popularity rather than competence. He eventually won a place on the Judiciary Committee, alongside some of the same Senators who had voted against him. With typical understatement, Sessions called that a “great irony.”

When turned down by the Senate, Sessions expressed the opinion that politicians were occasionally insensitive to the rights and reputation of judicial nominees. This has not kept him from voting “nay” on at least one judgeship nomination, in both the Judiciary Committee and on the floor for every year since he has been in the Senate. He has been particularly tough on nominees for the Ninth Circuit Court of Appeals, which he labels “the furthest-left [court] in the American judiciary.”

Sessions will get to ask his questions about Kagan but I have some questions of my own. If the lack of definitive evidence in Kagan’s favor as a fair judge is so damning, what to make of the overwhelming evidence condemning Sessions’s own fairness? Furthermore, to borrow from Senator Inhofe, how is Sessions qualified to conclude that Kagan is fit to be a Supreme Court Justice when his fellow Senators once found him unfit to be a federal district judge – you know, the one with a lower bar?

Sessions will get to ask his questions and then make his arguments against Kagan. However, for those of us capable of thinking outside the warehouse, any argument from Sessions about this or anything else is bound to be an argument from ignorance.

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