Part of the symptoms associated with being a political junkie, which I am, is an interest which borders on addiction to seeking out political analysis and political trivia from a variety of sources. It manifests itself on Sunday mornings whenever possible by my being drawn to watching and listening to “The Talks”, i.e. “Fox News Sunday”, “This Week with George Stephanopolis”, “Face The Nation” and “Meet The Press”. On weekdays, “Morning Joe” (Scarborough) entertains me.
This past Sunday and many before it found me in front of my television waiting patiently while guests whose few newsworthy remarks I likely had already heard during the preceding week’s 24/7 news cycle repeated themselves in response to questions from moderators. All the while I eagerly anticipated the moment when the moderator uttered the magic words —- “ Let’s go to the Panel”. “The Panel”, which increasingly as a result of a movement on all of these shows toward presenting an ideologically and politically diverse set of perspectives includes conservatives George F. Will, Britt Hume, Laura Ingraham, and Liz Cheney paired with Nera Tanden, who is the CEO of a liberal think tank, and Juan Williams, a center –left analyst on of all shows, “Fox News Sunday”. “This Week With George Stephanopolous” in that same spirit often includes the traditional conservative editor of The Weekly Standard, Bill Kristol with liberal Donna Brazille and George F. Will again representing all of the eclectic conservative pundits in the world. “Meet The Press” follows a similar pattern often with Washington Post Writer and Editor Bob Woodward and MSNBC Commentator Andrea Mitchell sharing the spotlight with National Review Editor Kevin Lowery and a Heritage Foundation spokesman.
This week my attention was drawn to the apparent difficulty both policy-makers (Guests) and analysts (Panelists) had in commenting coherently and accurately on “complex” political and policy issues as well as the actions and motives of the political leaders who are developing and implementing those policies. Their difficulties also highlighted the semantics and other techniques that policy makers including judges use to confront increasingly complex situations in the world we now live in.
Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit sitting in Chicago, Illinois writes on “complexity” in its different forms. Posner also comments on the methods used by judges and I suggest leaders, policy –makers, and managers of the other two branches of government to confront that complexity. Posner cites as an example the subject of the sentencing of convicted criminals as illustrating complexity in the form of what we sometimes describe as “the law of unintended consequences.”
When federal sentencing guidelines were mandatory, a judge simply plugged numbers into a formula designed to remedy the perceived relatively simple problem of glaring disparities in federal sentences handed down by different judges in different parts of the country for the same crime. Those mandatory guidelines based solely on the severity of the crime and the criminal history of the convicted criminal definitely reduced the amount of arbitrariness in criminal sentencing in federal courts. They also produced in many instances unfair and arguably illogical and cruel sentences which neither deterred nor rehabilitated the criminal. These guidelines also did not address the needs of the victims of the criminal’s conduct except perhaps to provide retribution.
When these guidelines were made voluntary the question of why the average or mean sentence imposed by judges for similar crimes was always the appropriate sentence was immediately presented with all of its complexity exposed. In fact, all of a sudden criminal sentencing became much more complex because instead of mechanically plugging numbers into a mathematical formula or a “bright line rule” the judges had to consider the multiple disciplines of psychology, sociology, economics, and law in criminal sentencing of offenders.
This phenomenon although not directly analogous does bear a striking resemblance to the dilemma face by the President of the United States in establishing a “Red Line” which Syria would violate if it used Chemical weapons or The President saying “Assad must go”, but then having to back track on both these statements when the situation became more “complicated”, i.e. The U.S. needed Assad to remain in power to surrender his chemical weapons and the leadership of both the Executive and Legislative branches of the U.S. government after assessing what it would take to carryout its stated policy was unwilling to accept the necessary tradeoffs. The Executive Branch of government and the judiciary however don’t have anything on the Legislative Branch of government which regularly ignores or evades complex political and economic issues by establishing “Talking Points” which rhetorically simplify and either ignore or trivialize the subjects so that their complexity goes unnoticed.
The complexity of the world we live in persistently intrudes on the wish for a less complicated world by our more simple minded citizens and some of their elected representatives at every level of government. This results in suggestions that range from general denunciations of “globalization” which to any objective observer will not be curtailed or even slowed by any peaceful political means available to man to threats of impeachment of judges who dare to even mention or reference international or foreign law in their opinions or even speeches.
Supreme Court Justice Stephen Breyer has written and spoken on this subject thoughtfully, recently confronting a Virginia Congressman who objected to Supreme Court Justices and other judges referring to “other countries courts “ by commenting as follows:
“They don’t bind us, what other countries do. It’s not binding, but they have problems like we do and they’re similar and they have constitutions more and more like ours and trying to protect liberty and trying to protect a democracy. And they have jobs where the judges have some role to play. So if I have a person with a job like mine, problem like mine, you know a Constitution like mine, why don’t I read what he says. I don’t have to follow it. But why not read it? I might learn something. Whether we refer to or don’t refer to questions that come up abroad or answers that foreign courts give or what the law’s like in some other places has noting to do with what you’re worried about. It is the world that’s changed and our docket has changed….If you want to preserve our American values, you better learn something about what’s going on elsewhere because that affects directly what we do.”
So how do we address the increased complexity in our world. Judge Posner suggests “greater use of “experts”. This is both in addition to and possibly in lieu of experts hired by the parties as adversaries in litigation particularly where the economics of the case and the practice of law dictate it. I would add to that recommendation the use of qualified neutral experts in the collaborative development by stakeholders of recommended public policies which can then be legislated or implemented by executive action to address increasingly complex realities created by complicated human beings. More on that in a later column.
To paraphrase John F. Kennedy who when we still believed in the ability of government to do good said “This will not happen in the first 100 days or even the first 1,000 days ––But let us begin!”