Why the Senate should confirm Garland

I didn't want to say anything in my tribute to Justice Scalia about the politics of filling the vacancy he left behind.  However, for what it is worth, I believe that the Senate should hold hearings and confirm Judge Merrick Garland to the Supreme Court.

Mind you, the Senate has NO constitutional obligation to consider any presidential nominee.  The Constitution says only that "The President shall nominate, and, by and with the advice and consent of the Senate, shall appoint..." judges.

The phrase "advise and consent" cannot possibly be regarded as mandatory, since that would imply that the Senate must consent, which is absurd since nobody questions their power to reject a candidate by voting them down.  Journalists and politicians who claim that the Constitution requires the Senate to "advise and consent" are abusing the meaning of these words.  The word "consent" cannot possibly mean "decide whether to consent".  And if the "consent" part is optional for the Senate, then the "advise" part must also optional for the Senate.  Nor can "advise" mean "hold hearings", since the Senate didn't regularly hold hearings on Supreme Court nominees until recently.  The phrase means only that IF the Senate provides its advice and consent, THEN the President may go ahead and appoint the nominee.

At best, the word "shall" imposes a duty on the President to nominate candidates.  However, the Supreme Court has rejected this interpretation, saying that filling vacancies is also optional for the President (Marbury vs. Madison)!

Nevertheless, just because there is no constitutional obligation to confirm the nominee, doesn't mean the Senate is justified in its obstruction.  There are other norms and conventions in politics besides constitutional norms.  Without them, the system could not function.

Until very recently there has been an expectation that the Senate will confirm any reasonable and moderate Supreme Court nominee proposed by the President.  Voting down, and even filibusters, have been discussed only in cases where (it has been claimed that) the candidate is unqualified, extreme or unacceptable in some other specific way.  And nobody has suggested that Garland is particularly extreme.  This is not to say he is a conservative, but he does seem to believe in some sort of policy of judicial restraint, which is as good as Republicans can expect from a Democratic president.

At the "object level" (as opposed to the "meta level" of the politics of filling vacancies) I would very much prefer for Scalia to be replaced by someone with a similar judicial philosophy.  However, the short term gain that comes from subverting the process for one nominee, will simply make it harder for Republicans to confirm nominees in the future.  No one gains from increasingly bitter "no holds barred" confirmation fights.  It's a game of interated Prisoner's dilemma, and both sides keep defecting!

Although pre-emptively announcing that one will not fill a vacancy is unprecedented obstruction in the modern era, one-up-manship in confirmation fights isn't at all unprecedented.  It is rather nauseating the way both parties routinely and hypocritically switch sides about whether obstructing nominees is good or evil, every time the Presidency changes sides.  (At least the current hijinks aren't blatantly illegal, the way the nuclear option was!)

In the long run, it's best to allow the President to fill any vacancies which arise during his term with reasonable candidates.  The alternative equilibrium, in which a party division between the Senate and Presidency leads to no appointment, will just make life harder for everyone in the long run.  The Republicans can't seriously believe that the Democrats won't retaliate once they retake control of the Senate.

Also, this seems like very bad timing for Senate Republicans to take this particular stand, seeing as the two people most likely to be President next care even less about the Constitution than the current one.  St. Hillary Clinton seems to believe that Congressional acts can and should change the meaning of the Constitution.  And I don't think Donald Trump (who would discriminate against Muslims, and already has abused the power of eminent domain) has any more genuine concern for the Constitution than he does for the teaching of Jesus!  (Maybe Republican pressure would keep him on the straight and narrow when it comes to appointments, but then again maybe not.)  Most likely it will be Clinton, in which case the Republicans will have eroded faith in the process without actually getting anything to show for it.

(Unless their previous posturing has caused St. Obama to nominate somebody more moderate than he otherwise would have, which actually seems fairly likely now that I think of it.  But this is only relevant if the Senate actually confirms Garland!)

Waiting to confirm based on who the next President is, also seems like a unwholesome habit for the Senate to acquire.  An 8 member court is not the end of the world, but 4-4 tie votes are a bit annoying.  Also, since the next Supreme Court term begins in October, delaying the confirmation until after the elections in November is awkward, since then Garland (if confirmed) would have to rehear any important cases.

So I think that the Senate should confirm Garland, who seems to be an all around decent person unlikely to try to shift court precedent extraordinarily far to the left.  At least, no more than one would expect from Scalia being replaced by a moderate.  (In fact I am a little concerned he believes in judicial restraint so much that he won't protect civil liberties quite as much as the current liberals do.)  But it is hard to determine his true opinions based on his current record as an appellate judge, bound to follow Supreme Court precedent.  In the event that he is appointed, we shall just have to see.

About Aron Wall

In 2019, I will be studying quantum gravity and black hole thermodynamics as a Lecturer at the University of Cambridge. Before that, I read Great Books at St. John's College (Santa Fe), got my physics Ph.D. from U Maryland, and did my postdocs at UC Santa Barbara, the Institute for Advanced Study in Princeton, and Stanford. The views expressed on this blog are my own, and should not be attributed to any of these fine institutions.
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34 Responses to Why the Senate should confirm Garland

  1. steve hinrichs says:

    I agree, since there is little chance of the next president being republican it really is senseless for current republicans to not approve a moderate when the next option will obviously be more to the left. All they will have to show for is obstuctivisism.

  2. Andrew says:

    Really interesting choice. I'm 19 and I try to follow the politics in my own country (UK) but its interesting to hear from the US political system too.

  3. Aron Wall says:

    Andrew,

    On the other hand, people in the US often act as though US politics were the only important thing in the world, so we have our own little bubble over here...

  4. Andrew says:

    Interesting. So do you have any opinions on the 2016 election? Do you favour any particular candidate?

  5. Aron Wall says:

    Andrew,
    I will---very reluctantly---vote for Hillary Clinton because Donald Trump is an even bigger pathological liar than she is, who recognizes no constitutional constraints on his power, and would abuse the office for petty revenge. Also his policy proposals (religious discrimination, anti free-trade, withdrawing from NATO etc.) are awful. He is not really a conservative in the traditional American limited-government sense, instead he's some sort of weird xenophobic nationalist like you get in the far-right of European politics. And an ignoramus to boot. It would be a disaster not just for the country but also for the Republican party if that is allowed to become mainstream.

    I think it is somewhat more likely than not, that he would keep his promise to appoint conservative Justices to the Supreme Court. Normally I would consider that of great importance, but the worst case scenarios for irresponsible use of Executive power are a lot worse than the worst case scenarios for the Judicial branch!

    If there's one good thing that can be said about Hillary Clinton, it's that she's a grownup, who would would actually try to find out the facts before making decisions.

  6. Mactoul says:

    Wall,
    But surely you don't think that Clinton "recognizes constitutional constraints on (her) power, and would (not) abuse the office for petty revenge"?
    And surely voting for a declared supporter of entirely unrestricted abortion including partial-birth abomination is not better than simply abstaining from voting?
    Also, Clinton is gearing up to attack religious liberties in no uncertain terms.

    Are Trump's policy proposals (religious discrimination, anti free-trade, withdrawing from NATO etc.) are so awful that you would vote for pro-abortion, religion-attacking person that could not be trusted to keep national security secrets?

    Is free trade a bigger issue than religious freedom?

  7. Mactoul says:

    Does it not worry you that USA was running arms from Libya to Syrian jihadists when Clinton was in charge?. This charge, along with the statement that Beltway Republicans was complicit in this undertaking is made by Andrew McCarthy at National Review (which is by no means pro-Trump).
    Is she a grown-up?

  8. Aron Wall says:

    Mactoul,
    Of course Clinton's numerous flaws are concerning. But the scandals are partly a function of the fact that she has wielded political power for some time. Had Trump been in office for the last decade I think we would have seen even more concerning things. He already has an impressive record of abusing government power as a private citizen.

    And surely voting for a declared supporter of entirely unrestricted abortion including partial-birth abomination is not better than simply abstaining from voting?

    If voting for the lesser evil were a sin, we could never vote for anybody. I do not believe that voting for a candidate makes one guilty of all their sins, so long as they are the best candidate on offer with a reasonable chance of winning. Voting does not imply approval in all respects, but only that one believes that candidate to be better than the alternatives. Trump also supports abortion, or he did until he wanted the Republican nomination. And, deciding who is in charge of the nuclear launch codes is also potentially a pro-life issue!

    I also think it is likely that a Trump presidency would tarnish the Republican party sufficiently that there might actually be fewer Republican presidents in the next 30 years as a result of electing him. And that would be bad for the Supreme Court etc. One needs to take the long stategic view on some issues.

    I say all this as somebody who has never before voted for a Democrat in a Presidential election. Trump's proto-fascist tendencies are something genuinely new in recent Americal electoral politics.

    Also, Clinton is gearing up to attack religious liberties in no uncertain terms.

    Whereas Trump will only persecute anyone who gets under his thin skin? When one votes, one has to be concerned with the whole country.

    I agree Clinton would likely take interpretation of religious freedom in a more restrictive direction, and that this will be a bad thing, but we are talking about redrawing edges around the boundaries here, things that will matter to a comparatively small fraction of the population. We are not talking about rounding up the Christians and putting them in concentration camps or killing them, which is what "attacking religious liberties" can mean in other countries. This is not to say that protecting religious freedom in the US is not important, but it is one of several important issues.

    But surely you don't think that Clinton "recognizes constitutional constraints on (her) power, and would (not) abuse the office for petty revenge"?

    Not very much, but these things come in degrees. It's not an all-or-nothing thing. I think the Clinton style is to engage in corruption around the edges where it won't get them in trouble, while Trump is likely to make even important decisions in a flippant and irresponsible manner.

    Is free trade a bigger issue than religious freedom?

    Excluding immigrants (some of them persecuted refugees) from our country on the basis of their religion is both bad economic policy AND a religious freedom issue. And no, I don't believe that any one social issue is so important that it can entirely exclude thinking about the economic and foreign-policy impacts of the Presidency. Economics and foreign-policy are also moral issues.

  9. Mactoul says:

    Gun-running alone should be sufficient to disqualify Clinton, even against a "proto-fascist" (whatever that word means).

    The term "fascist" as applied in political discourse merely means "what I dislike".

    "If voting for the lesser evil were a sin, we could never vote for anybody"

    Sin is not a word I will use in this context. However, my question stands, why can't one abstain?

  10. Andrew wells says:

    Yeah I understand your reasoning. Personally I really like Bernie Sanders and Jill Stein but obviously Sanders is out and Stein hasn't got a realistic chance of winning.

  11. Aron Wall says:

    Mactoul,
    One of the two candidates (with a chance of winning) is worse. Whichever one that is, I have the moral duty not to abstain, in order to keep that one out of office. That just seems obvious to me.

    And giving guns to bad people in 3rd world countries (in order to stop groups believed, at the time, to be even worse) is pretty mild sauce when it comes to the US Presidency. Haven't they pretty much all done that sort of thing?

    PS "Fascist" is one of those "boy who cried wolf" things. When people use it in a meaningless way, that makes it harder to recognize the real thing when it comes along... but I am convinced that Trump would try to take the country in a significantly more authoritarian, nationalist direction. Whether he would succeed or not is another question. Maybe he doesn't even have the attention span to do it. I used the prefix "proto" because the rule of law is strong enough in this country that I don't think one man, however awful, could make us that kind of country all by himself, but it would move us in a very concerning direction.

  12. Aron Wall says:

    It is quite possible that "fascist" was intemperate language on my part, but the serious point is that a democratic republic must safeguard its own institutions if it going to preserve them for the future. "Eternal vigilance", and all that. The failure mode from a Trump would doubtless look different from that of a Mussolini. But it's scary to have a Presidential candidate who doesn't seem to get, at a fundamental level, the idea that there could be legal and constitutional constraints on what he can do. Clinton understands this, at least in the sociopathic-politician way, of pretending there are constraints in order to conform to the appearences. Trump doesn't seem to.

  13. Robert Childress says:

    As to the moral duty not to abstain, I have trouble understanding that. It seems to me that I'm being offered up a choice between two monsters. Perhaps one is more damaging and dangerous than the other, but the proper moral position seems to be to keep shouting, "No, stop, please just stop. No, none of these. None of these!"

    The electable options are not very representative of me. Yet if I vote for one of them -- even if it's as a "lesser of evils" kind of vote -- then policy decisions will be made as though I fully endorse the candidate because my vote *does* fully endorse the candidate. Whether I like it or not, a vote for either of these candidates supports policies and approaches to policies to which I am ardently opposed.

    It's not about demanding perfect candidates. It's that these candidates are really bad. And supporting the policies of monsters does not strike me as being part of our moral obligations. That may not be a practical approach, but I think sometimes being moral involves being principled over being pragmatic.

    Then there's also the vanishingly small probability that my vote could ever meaningfully influence the outcome of a national election -- which seems to make the principle of the thing all the more significant. My vote won't actually elect a candidate. It just informs the system that I fully endorse everything the candidate stands for.

  14. Aron Wall says:

    Robert,
    First of all, please read my argument that in general it is worthwhile to vote for the sake of making a difference, so long as you vote for altruistic reasons rather than for selfish ones.

    There are of course also symbolic aspects of voting. But I staunchly deny that voting for a candidate implies in any way that you "fully endorse" the candidate. At most it implies that you like them better than the alternatives. And (unless you tell other people your decision, as I have here) the odds of 1 more person in column A making any difference to anyone else's interpretation of the election are also tiny. Even if you stay home from the election, whichever candidate wins will still take the fact that they won as a mandate to implement their proposed policy positions, because they won among the people who cared enough to vote.

    But in this particular election, any reasonable pollster knows that when a Republican votes for Clinton, it's probably because they are anti-Trump rather than because they are pro-Clinton. That sends a message specifically to the Republican party not to nominate horrible people anymore. Whereas if I voted for Trump to stop Clinton, I don't think it's a symmetrical situation: people might think I actually support him!

    You are of course free to shout "No, stop, please just stop. No, none of these. None of these!" as much as you like as a matter of public discourse, but once you enter the voting booth you have a choice, and that choice is secret except insofar as it affects the total vote counts. Your only alternatives are to A) vote for a 3rd party candidate as a protest (of course they will have their own flaws), or B) abstain from that particular ballot choice. If you do decide to use up your vote for symbolic reasons, it seems to me that (A) is far more effective than (B) as there are many other reasons why people might stay home from the polls besides disgust with the candidates on offer. It also (by the choice of 3rd party candidate) provides a possible hint about which direction you would prefer the country to go instead.

    Another possible way to communicate reservations is to vote split-ticket (a different party for Congress than the White House) in the hope that one will act as a check on the other. For example I will be voting Clinton for the President but (very likely, I haven't looked at the candidates yet) Republicans for Congress. That being said I live in New Jersey, which is not a swing state, so in that case the mathematical argument for voting in close elections doesn't necessarily apply, and hence there is a case to be made for voting for symbolic reasons.

    Yeah, I do believe it is part of our moral obligations to support the lesser evil sometimes (when the greater evil might otherwise win, and when there is no 3rd alternative that would lead to even better outcomes.) I believe in maximizing expected goodness, not in keeping my own hands pure while the country burns.

  15. Mactoul says:

    Aron,
    As a matter of general theory, I do not hold
    "it is part of our moral obligations to support the lesser evil sometimes (when the greater evil might otherwise win, and when there is no 3rd alternative that would lead to even better outcomes.)"

    It depends upon the lesser evil. Sometimes it is incumbent to oppose both evils. Sometimes it may be incumbent to leave normal politics altogether and take up extra-political means. This may be required to maximize expected goodness.

  16. Robert Childress says:

    Thanks for the link to your prior argument -- I hadn't read that, yet.

    For what it's worth, I intended my shouting "none of these" to be representative of a write in for "none of these," which admittedly isn't abstaining in a strict sense (I was thinking of it in a loose sense as abstaining from voting for an electable candidate). Actually, for all I know write-ins like that are tossed out... but they shouldn't be. Regardless, I didn't mean sit at home. I meant vote defiantly.

    It's not about keeping my hands pure while the country burns, it's that the electable candidates are bad. It's about avoiding picking up the kerosene to feed the fires and encouraging others to do the same. Granted, you may be picking up a smaller container of kerosene with Clinton than you would be with Trump (I doubt that, personally -- I think it's just different colored cans poured out in different places where some screams can be heard more clearly than others), but your vote is still feeding those flames. You're still saying candidates like Clinton are electable as presidents. You're still supporting her policies.

    It's a trolley problem where I pull a lever one way to kill X people or I pull the lever the other way to kill X different people. And I'm saying it's better to stick a foot out against the wheels to try to brake the machine. Is it going to work? Of course not. But it's the only sensible thing to do.

    It's tremendously frustrating to want to participate in the system but to have no suitable candidate. I don't mean that in a selfish sense -- as though I'm looking for some personal benefit from my vote. I also don't mean that candidates have to reach perfection before we support them. I mean that a vote for either of these our current candidates supports or encourages policies that are or will be significantly destructive to the well-being of others.

    And as long as people remain quite willing to participate in electing monsters I can't help but think that our demand will continue to be supplied.

  17. Robert Childress says:

    I think the talk of watching countries burn moved me off topic. Obviously, you don't see the two electable options as equally damaging so there's a disconnect between us. So maybe I can rephrase/reframe this to try to find common ground. You said:

    "One of the two candidates (with a chance of winning) is worse. Whichever one that is, I have the moral duty not to abstain, in order to keep that one out of office. That just seems obvious to me."

    I took that to be without reservations. But later you said:

    "Yeah, I do believe it is part of our moral obligations to support the lesser evil sometimes (when the greater evil might otherwise win, and when there is no 3rd alternative that would lead to even better outcomes.)"

    Given the "sometimes," would you agree that sometimes even the lesser option could be too evil to support with a vote, even in response to a greater evil?

    My difficulty was in thinking you were saying that regardless of how evil the lesser evil is, it would be immoral not to vote for that lesser evil. I don't think that is true. I see this current election as an example of when we ought not vote for the lesser evil -- and you do not -- but can you imagine some case where even the lesser evil is so disastrous that the only moral thing to do is to vote for anything but those candidates, even if that vote will effectively be ignored?

  18. Aron Wall says:

    If an election were held and the only choices were Hitler and Stalin, I would pick one. I do not endorese the idea that there are some candidates so bad that one should never endorse them regardless of the other options available. In other words I endorse:

    That being said I do not unqualifiedly reject the idea of abstaining or voing for 3rd party candidates, it's just that I would do this only if I thought it would actually do some good. If Gandhi were also on the ballot (as a hopeless 3rd party candidate) and if voting for him would in fact successfully send an important message that there are alternatives, then I'm not saying you can't vote for Gandhi. I'm just saying you have to weigh this against the importance of actually helping to decide what happens. In other words I endorse:

    * Always choose lesser evil UNLESS option which does even more expected good is available,

    but not

    * If Candidate badness > some amount X, do not vote for them regardless of what other options are available.

    Anyway, I doubt very much that Clinton and Trump are equally bad so that they can't be distinguished. The difference between two large numbers is more likely to be large than the difference between two small numbers, if they seem indistinguishably bad that seems like it might just be caused by sensory overload. In my view, the worst case scenarios for a Trump presidency are a lot scarier than for a Clinton presidency. If Trump uses nuclear weapons I'm sure the two candidates won't seem very similar any more. The worst case scenarios for the Presidency are really bad and we can't round them all off to "eh, can't possibly support that"!

    Of course it's possible there are actually some genuine disagreements about the importance of various issues involved here. Do you think Hillary Clinton is way worse than Bill Clinton? Because, although I disagree with him on a lot of issues and his personal ethics are in the dumpster, the country actually did pretty well in the 90's. In any event we already know the country can survive a Clinton, whereas Trump would be a radically new thing.

  19. Mactoul says:

    Aron.
    "If an election were held and the only choices were Hitler and Stalin, "
    It would be an act of utmost folly, and indeed it proved to be folly, to choose between Hitler and Stalin by voting. They needed to be opposed by arms. Have you forgotten the American Revolution?

  20. Mactoul says:

    Aron,
    You do not seem to be realizing certain aspects of the political theory as pertaining to the elections.
    Elections are not generally not meant to choose between staggeringly different alternatives. They are not meant to choose between evils e.g. Hitler or Stalin. Elections are meant to choose between different ways to reach a good that is common between two candidates. That is, good of the country. That good may be different but can not be greatly so. You can not have an election to choose between capitalism and communism. You can not have an election to choose between slavery and non-slavery.

    So, there are normal elections, there are constitutional conventions and there are revolutions.

    Constitutional conventions (peacefully) and revolutions (not peacefully) define the fundamental good that a state should pursue. While normal elections are meant to choose between slightly different ways the state pursues its end. Simply put, normal elections are not meant to choose between evils.

    PS Leaving the candidates for the being, the Democratic party platform celebrates intrinsic evils and the Republican does not. Your choice of voting for an intrinsically evil platform is puzzling indeed.

  21. Aron Wall says:

    Mactoul,
    Obviously if one could prevent Hitler or Stalin by military action, great! But why not do both? (Obviously getting ready for military action might prevent one from making it to the voting booth, but I can imagine situations in which it might not...)

    Anyway, I do not think that military revolution is the correct response to Clinton vs. Trump, so that puts us back in the realm of voting and protesting, right?

    You can not have an election to choose between capitalism and communism.

    Sure you can. I'm having difficulty reading this as anything other than a statement of fact which happens to be incorrect. It has happened in many countries in the 20th century. Maybe we didn't want it to happen but it did. Admittedly picking the communists often resulted in them abolishing free elections in the next cycle. Or sometimes it resulted in the US giving arms to an anti-communist military group that overthrew the communists. And (obviously) the communists have also often come to power by means besides elections. But the elections thing, that has happened.

    Elections are meant to choose between different ways to reach a good that is common between two candidates. That is, good of the country. That good may be different but can not be greatly so.

    Ideally, one would like this to be the case. But your statement is obviously too strong. Suppose one candidate is good and the other is evil. Surely picking the good one cannot be regarded as a fundamentally illegitimate use of elections. Even if one would prefer not to be in that circumstance in the first place.

    Also I don't accept the Catholic distinction between intrinsic evils (which cannot be chosen in any circumstance) and nonintrinsic evils (which are still bad but can sometimes be chosen to prevent worse things from happening). Evil comes in degrees but I do not believe in a sharp categorical distinction between one and the other. (Few things are more obviously bad than cutting out a person's heart with a knife---but a surgeon may ethically do this as part of a heart transplant procedure.)

    But even if I did accept that framework, it would not follow that voting for a candidate who supports an intrinsic evil, would necessarily itself be an intrinsic evil.

    Basically, you are saying that sexual morality and abortion are more important than any other issue no matter what. But decisions about wars, stopping nuclear proliferation, crime, and (in some circumstances) poverty, public health, immigration, and ecology can also foreseeably result in more or less people dying or even being killed. All of these things are moral issues! (In fact it is a conceptual mistake to divide types of goodness into "moral" and "nonmoral"; morality just is the rational pursuit of the good.) And if the good people think "morality" is limited to preventing unchastity and the direct taking of life, that means that the bad people will get to decide how all the other issues get resolved and those things will spiral out of control.

    In the Bible, economic justice is emphasized just as frequently, or more so, than sexual morality (even though both issues are important). The fact that breaches of sexual morality tend to be more obviously identifiable does not mean that the underlying issues are less important. Thus I am sympathetic to the economic concerns of Democrats (although I don't support them on economic issues in general because I think their solutions to those problems are often not particularly well conceived, and sometimes do more harm than good, but I agree with them that these issues are morally important!).

  22. Mactoul says:

    Aron,
    There are too many conversations in this, but to pick on the political theory first
    "It has happened in many countries in the 20th century."
    Pls give an example where communism was chosen via an election. To abolish private property, which is what communism is, would be to change the constitution. And this is not what elections are supposed to be about.

    "Suppose one candidate is good and the other is evil."
    You are not in the realm of normal politics when you are able to say that a candidate is evil. I wonder if you realize how strong and extra-ordinary this statement is.

    Essentially, you are missing the idea that normal politics presumes a great deal of consensus, for instance that the loser will respect the electoral verdict. Now this can be only so if losing does not matter a very great deal. For instance, if losing were to meant loss of property and livelihood, then the losers would be justified not to respect the verdict. Indeed, they should have not contested the election in the first place in which loss meant an unacceptable change.

    For instance, consider what might happen if 2nd Amendment is redefined in way unacceptable to the mass of gun-owners. Should they accept the normal political way it was done?

  23. Mactoul says:

    "I don't accept the Catholic distinction between intrinsic evils (which cannot be chosen in any circumstance) and nonintrinsic evils (which are still bad but can sometimes be chosen to prevent worse things from happening)."

    I am not a Catholic either but this distinction seems correct. Murder is always wrong, by definition. Adultery is also an intrinsic evil. Would you say that adultery or murder can "sometimes be chosen to prevent worse things from happening"?

  24. Robert Childress says:

    Thank you for the clarification. So I'm back to having trouble with your position, but at least I can understand how you're calculating moral obligation here. I think there's just a fundamental difference in our approach.

    I think there are times when voting for a lesser evil (and I'm using the term "evil" here in a bit of a colloquial sense) is a good idea. But I also think there's a threshold beyond which we cannot support a candidate and I think it's perfectly legitimate to say "no" to both candidates. There's obviously a sense in which voting for candidate A is a vote against candidate B. But I can't separate that from the clearer sense that a vote for candidate A is a vote for candidate A. If I am morally opposed to the policies of A, then A is ruled out by my moral obligations. I cannot in good conscience support A. And if B is even worse, I cannot support B either.

    The only way I can vote "no" to both candidates is to vote for anything other than those candidates. If the madding crowds that support A and B outnumber me sufficiently, of course my vote will be effectively meaningless. I can't control those crowds. But that doesn't mean I ought to join in with them. That kind of reasoning prevents progress. It perpetuates a spiraling downwards from one level of "evil" to the next level of "evil."

    What would happen if morally inclined individuals would unify in their rejection of voting for "evil"? Well, probably nothing. Our system doesn't allow for that... but that's a separate issue. I do think that soundly rejecting all terrible candidates (voting, but not voting for either of the major options) gives us a greater chance of effecting a change for the good of the future than continuing to support bad candidates, though.

    The idea that supporting "evil" now will somehow serve to improve options in the future is optimistic (and I don't say that in a derisive manner: I like optimism), but I don't think it will cohere with reality. We are going to teach no one any lessons by voting for Clinton. The republican party by and large didn't like Trump, they just didn't unify behind anyone else and Trump's supporters were more consistent/fervent. (And the voters in this country believe that they can only vote for a candidate that stands a chance of winning, making popularity more important than policy, capability, and character.) I don't know where the party is headed from here, but I also don't think voting for Clinton will fix anything.

    But of course, we can't vote for Trump either. None Of These, 2016!

  25. Mactoul says:

    The mistaken idea that one is morally obliged to vote for the lesser evil is precisely what has led to the flood of unacceptable options a traditional-minded person is faced with.
    For if one takes part in electoral process, one is committed to honoring the result. So, if there was an unacceptable option, for instance a candidate that stands for partial-birth abortion, you are taking the chance that the candidate favoring the unacceptable thing wins. And now you must honor the results of the election and what has happened is that the unacceptable thing got accepted. And you have played a part in legitimizing the unacceptable thing.
    For elections are a sort of argument and arguments proceed to conclusions only if the arguers agree on the premises. But what premise would you share with those standing for unmitigated evils?

  26. Mactoul says:

    Aron,
    "you are saying that sexual morality and abortion are more important than any other issue no matter what."

    1) These things strike against the institution of family.
    2) Abortion is the biggest danger to world peace as Mother Teresa said. If a mother could kill her child legally, then what could not be done?
    3) Legalized abortion means that the country no longer bows its knees to God. It is no longer a Christian nation.

  27. Mactoul says:

    Aron.
    "177 Democrats in the House voted against the bill to punish a surgeon who kills a child who has survived an abortion. The Democrats have now taken the position that the right to abortion is not confined to the pregnancy; that it entails nothing less than the right to kill the unwanted child born alive."
    Hadley Arkes at Catholic Things.

    But supposedly Democrats are better on immigration, poverty and ecology so it is morally incumbent to vote for infanticides.

  28. Aron Wall says:

    Robert,
    You've been kind enough to share the emotional backdrop behind your arguments, so I'll give you mine: If Republicans not voting leads to Clinton winning, I would personally feel icky---like I don't have the courage of my convictions---not being willing to admit that to myself square on. What is the point of pretending that actions don't have consequences? If I am not going to support Trump then it seems nobler to be able to look myself in the eye and know that I'm choosing (however reluctantly) the consequences of that decision.

    Mactoul,

    Murder is always wrong, by definition.

    There are plenty of exceptions to the rule against killing humans, e.g. just war, self-defence, capital punishment. It's just we don't call it murder when we think killing is morally justified, because (by definition) murder refers to wrongful homicide.

    Pls give an example where communism was chosen via an election.

    Socialist Federal Republic of Yugoslavia

    Czechoslovak parliamentary election, 1946

    Kerala State, India

    West Bengal

    Chile

    Moldova

    Abortion is the biggest danger to world peace as Mother Teresa said. If a mother could kill her child legally, then what could not be done?

    Um, this seems like hyperbole at best. There are plenty of Americans who sincerely believe that a fetus doesn't count as a person, and while this is tragic and no doubt morally corrupting, it doesn't imply that they have no ethical standards in any other area in life. It would be slander to say that they would support any other crime whatsoever. (For example, are less likely to be in favor of torture than Republicans are.) And I know of no studies that indicate that countries that allow abortion are more likely to go to war than countries that do not.

    It is no good to just stare at them as incomprehensible monsters of wickedness who have no reason for thinking what they do, because they think that a certain minimum level of consciousness or whatever is necessary for human lives to have moral worth. Instead we should say Father, forgive them, for they know not what they do.

    Legalized abortion means that the country no longer bows its knees to God. It is no longer a Christian nation.

    The USA was never was a Christian nation. We have a secular republic, in which any establishment of a particular religion is forbidden. Of course that does not give our country moral license to allow killing of innocents, but at least the wicked actions of our government aren't done in God's name!

    For instance, consider what might happen if 2nd Amendment is redefined in way unacceptable to the mass of gun-owners. Should they accept the normal political way it was done?

    So, if there was an unacceptable option, for instance a candidate that stands for partial-birth abortion, you are taking the chance that the candidate favoring the unacceptable thing wins. And now you must honor the results of the election and what has happened is that the unacceptable thing got accepted.

    You'd better believe I would honor those results! Are you hinting that you would supprt armed rebellion against the United States government if candidates who disagree with you about these issues get elected? Because if so, that would be advocacy of treason, which is traditionally regarded as a more severe crime, even than crimes against an individual.

    Only the most extreme circumstances justify violent revolution. When you are starting with one of the freest countries in the world, and have at best a minority of the population on your side, there is nowhere to go but downhill.

    But what premise would you share with those standing for unmitigated evils?

    Well, one premise I share with my fellow Americans is the premise that we should resolve important issues peacefully through democratic means. Civil war is not the best way to prevent innocent deaths.

    I'm tired of arguing about abortion because it's too depressing, and we both agree that it's evil. So don't expect any further replies from me if you continue to post on that topic in this thread. I need to devote my time to other things now.

  29. Mactoul says:

    Aron,
    I make distinction between a communist party winning elections--in Indian provinces- and communism itself being chosen.

    "Only the most extreme circumstances justify violent revolution."
    The point is whether one is to accept everything done through elections or not. Pls note I am not talking of violent revolutions but simply of non-participation in the elections. A great many people never vote, I have myself never voted, and I do not believe that there is a moral obligation to vote for anybody, much less to vote for a "lesser evil".

  30. Aron Wall says:

    Mactoul,
    Yugoslavia seems to meet that condition. At least, to the extent that the reality of communism ever matches the picture on the label...

  31. Mactoul says:

    Aron,
    I don't know about that. WW2 and communist partisans don't bode well for elections. But surely this is unexceptional that to implement communism, i.e outlaw private property requires at least a constitutional change, and a pretty fundamental at that.
    What would you say to a party that after obtaining 51% vote, seeks to outlaw private property?

  32. Robert Childress says:

    Hey Aron,

    I can absolutely respect the sentiment you've expressed. It's the kind of back to the walls, bloody knuckled grip on the haft of an axe, besieged on all sides by giants, but determined to land some stinging blow against the enemy mentality that I can appreciate. Figuratively speaking.

    I think if I saw Trump as more of a threat, then I might regard that course of action as appropriate. I tried turning a question I asked you back on myself and I didn't like it. Instead of a choice between Hitler or Stalin, though, I considered having a choice between Hitler/Stalin or Clinton. If I really viewed Trump as a dangerous threat -- something like _that_ -- would I forsake my convictions of abstaining from the support of what I view as evil in order to resist some greater evil?

    I'd certainly feel a strong psychological drive to do so, to which I think I'd succumb. At the same time, my moral calculus would be computing that in so participating I'd be willing evil to try to conquer evil. So I'm not certain that's the right answer. But maybe it is once enough evil can be stopped. Though I think not in cases where the scales are more balanced.

    Never the less. Carry on, brother man, you do good work.

  33. Aron Wall says:

    Robert,
    Thanks for your understanding. ;-)

    Mactoul,
    I think your question is a bit ambiguous.

    It would of course be very unwise for a polity to make fundamental changes like that on the request of a slim majority of the population. On the other hand, the particular change in question (abolishing private property) wouldn't be wise even if everyone agreed to it!

    Whether or not it would be legal depends on the prior legal regime of the country. In some countries, new constitutions or amendments are approved by a majority-vote plebiscite. But in the USA, we require a supermajority to amend the Constitution. In the UK, a majority of Parliament can in theory change ANYTHING, including how Parliament works. Technically Royal Assent is required, although the last time it was withheld, the year was 1708.

    Finally, if the question is whether it is historically possible for this kind of thing to happen, the answer is yes, since it has happened.

    In any case, I don't think that, under normal circumstances, voting against a proposition legitimates it. (Assuming it has any apparent legitimacy to begin with.) Unless there is a serious possibility that the results might be ignored because not enough people showed up, trying to vote it down seems like a better strategy than abstaining (while hoping somebody else nullifies the result).

  34. Mactoul says:

    "voting against a proposition legitimates it."

    Actually, it is the mere presence of a proposition being put to the public, that legitimizes it.
    For example, abortion, even partial-birth abortion is a legitimate proposition in America but communism isn't. And how did it came about?. Because the anti-abortionists treated abortion as a proposition that could be posited in the political sphere. Were they to be faithful to the Constitution and the theory behind it, they could have realized, that abortion, exactly like slavery, is not a normal political proposition but requires an extra-political response.

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