The thorny problem of inconstant judges

One of the periodic themes of this journal is that the reality of power is everywhere and always messy. I have described my conception that the most important high-level problem to be solved is well-defined and secure property rights in the state itself. This is a slightly more formalized way of saying "secure power".  I'm certainly not claiming originality in this idea - Moldbug's formalism is what got me started thinking about this.

In viewing matters this way, I think it's important to know what we're studying. Perfectly secure power in a governing regime seems to be somewhat akin to a perfectly efficient engine. 

In both cases, it's easy to design one on paper. The process is entirely straightforward! Fuel is mixed with air, then inducted into the cylinder, then the spark plug ignites it. What could be easier than that? There's an absolute monarch, and everyone just follows his orders.

And then when you actually implement the thing, you find all sorts of leakages due to annoying complications in details of the machine that you'd largely abstracted away from. Understanding these turns out in many ways to be more of an engineering problem than a pure science problem. 

But even though the perfectly efficient engine or perfectly secure monarch may be a platonic ideal, that doesn't mean that the forces preventing you from getting there should be viewed as mysterious. Indeed, if you do that, you'll have a very hard time improving things. Maybe you can be a menshevik, and slightly improve the design. Maybe you need bolshevism, to start with a new design that doesn't produce these specific frictions (although, of course, it will produce others, perhaps others you hadn't encountered or thought about).

More importantly, in either case you should care very much about how far away you are from the platonic ideal. Otherwise you're just committing Asimov's Relativity of Wrong. Is your government the equivalent of a nuclear power plant, or a coal power plant? And if the latter, how might you change that? Moreover, the messy world of the social sciences makes things hard. Physicists love to mock the social sciences as being unscientific, but there's no escaping the fact that we have to design this particular power plant based on the computational output of a large number of meat sacks, all designed slightly differently, all interacting with each other. 

The modern world presents us with very few serious monarchs to examine. This also liberates us from focusing on the specifics of what went wrong in any one case (what could Louis XVI have done differently? Lots of things, as it turns out). 

A lot of people on the dissident right have thought hard about the problem of delegation, which is definitely a first order problem, probably the largest one. No man rules alone, and the sovereign's decisions have to implemented by his subordinates. What are their incentives to implement it honestly, or competently, or not divert resources to themselves?

But there is another problem that I think gets relatively less focus. Which is the following: how does the monarch prevent himself from being psychologically manipulated or pressured by those around him?

Among the closest modern analogs to an absolute monarch is a US Supreme Court Justice. The analogy is not exact, because there's a very small-scale democracy going on within the nine of them. But this is voting at a level where your vote often might matter, and you know the parties, and it's a repeated game. 

In the court context, the delegation problem is how to make sure the court's decisions get implemented by lower courts, and by other governmental agencies. This is still challenging - what happens if lower courts routinely ignore your precedent, and you have to slap them down over and over (or just let your decision get undermined)? What happens if people just refuse to follow it? That used to be a big problem but is less so these days. 

But if you're on the right, the delegation question is not the central problem with the court today. The Republicans have long made a point of trying to get better, more conservative justices appointed to the court. And yet, as night follows day, maybe half of the supposedly conservative justices turn out to become liberals. Maybe if we vote for Trump, we can get some more rock-ribbed conservative justices like Sandra Day O'Connor, Anthony Kennedy, David Souter, John Roberts, or, increasingly, Neil Gorsuch. 

This problem seems to be wonderfully emblematic of the failures of the mainstream right. They keep losing. They know they keep losing. They are unhappy about the fact that they keep losing. And yet, their state of the art solution is just "push harder!". More of the same should do the trick! More voting. More rallies. More donations to National Review. More Republican Senators and Presidents, so we can get more Republican-appointed judges, just like...the same ones that put us in the unsatisfying position.  For republicans, it's basically a coin flip. Appoint the guy to the court, and maybe he turns out to be a stalwart judicial conservative, like Scalia or Thomas. Maybe he turns out to be mushy, like Roberts. Maybe he turns out to be a complete liberal, like Souter. 

If your best case scenario is a 50/50 chance at being right, congratulations, you getting to appoint every single judge results in a random walk over judicial appointments. Lose a single election, and it's downward drift.

At almost no point does it seem to occur to the mainstream right- why do half the Justices we appoint turn out to be traitors? And more importantly, what can we do to stop this happening? 

Perhaps, dear Republicans, this is a problem you ought to spend more time seriously studying, rather than just turning the same crank over and over and expecting different results

There are a few ways to think about what might be going on.

The first possibility is treachery. Everyone has to hew to a narrow set of Overton Window beliefs to get appointed. Prospective Supreme Court Justices are all skilled at concealing their true feelings, if such feelings should be undiplomatic. They're experts at saying the right thing to get ahead. Republican party chiefs will just never know what a person will do until he's finally unconstrained. Power tends to corrupt, and absolute power corrupts absolutely, as Lord Acton put it. These guys don't get absolute power, but they get enough of it that when you can't force them to do what you want, they do as they please.

The main problem with this hypothesis is that it stumbles on the fact that Democrats never seem to have this problem. When the chips are down, and the issue before the court is politically charged, rather than just some arcane matter of trusts law, Democrat appointees always seem to toe the party line.

So if this is our explanation, we've largely just kicked the can down the road a little. Why is there treachery among Republican appointees, but not Democrat ones? Even if the field is littered with sociopath traitors, is there nobody talented enough to get appointed by a Democrat, then drop the mask and reveal their inner Scalia?

Let us instead consider an alternative. All these justices started out intending to be conservative, but instead buckle under the social pressure brought to bear upon them. 

From the comfortable distance of one's armchair, this seems like a small thing. So what if some law school students don't like you? 

Reader, do you know what it's like to be hated? I mean, viciously hated, smeared in the New York Times, denounced as a stoolie or a rapist or sexual harasser or an Uncle Tom, day in, day out? Publicly stabbed in the back by people you helped and trusted, over and over? Like the pressure brought to bear on people by hostile journalists and the police, this is something that it's easy to sneer at until it happens to you. 

The reality is that most people just aren't good at dealing with being hated in a vicious and public manner. Despite their best intentions, it sways their choices. 

It's tempting to explain this in terms of concrete quid pro quo arrangements. If you switch to writing liberal judgments, you get invited to better parties and events, or have more fun friends or whatnot. This is definitely part of it. But I suspect there's a pure psychology aspect too. 

To pile metaphor on metaphor, look at the home team advantage in sports. Mosokowitz and Wertheim looked at this. The main driver of the home field advantage is not that it makes the players perform better. I was always skeptical of this myself,even before this study. These are professional athletes, with huge amounts of money at stake. Do they just not try their hardest without cheering? As it turns out, no, the effect seems to mostly be on the referees. And this is nothing but pure psychological pressure, on people literally selected and professionally rewarded for impartiality. The referee is anonymous. He's not getting invited to any swank parties. Even if he makes a lousy call, it's very unlikely that he's going to be harassed by name. The cost is just fifty thousand angry people yelling at you if you grant the penalty kick, and the same fifty thousand cheering if you just let it slide. 

And I suspect this is a large part of what's going on with Republican appointed justices too. Most of these people are law school strivers. They've been groomed for success for a long time, told they were the smartest in their class, voted most likely to succeed in high school, all that stuff. Then, they get made into some lower court judge, where they get less power, but almost total deference. Yes, your honor! No, your honor. And if you do something controversial, what happens?  You are mostly just "a federal court judge in Hawaii". You are the epitome of the machine - a cog, implementing something, replaceable with another cog. No sense hating the cog! But once you're on the Supreme Court, you are now Chief Justice Roberts, and your choices reflect on you, not the machine. 

Look at smiling John Roberts in his confirmation hearing:

Do you think that, before he took on the job, this guy had any experience of being hated? To ask is to laugh. The words on everyone's lips were "looks like nice guy". Good luck with that. He's a nice guy alright.

This is part of what soft power is. It's not always just a euphemism for hard power in disguise, the polite note before the US air force crushes your town. The reality is that psychological constraints are real constraints. We can't see them, but that doesn't mean they're not there. Most people simply aren't good at dealing with this pressure, or at a minimum, will be worse at dealing with this pressure than they think they will be if they haven't yet been subjected to it. It's reminiscent of the Randall Collins point about violence. Most people also don't like inflicting random violence on people, except in a limited range of circumstances. 

Most people also don't like being yelled at with curses and hatred, even if that hatred is very unlikely to result in actual violence to them. Monkey brain knows what's going on. Monkey brain knows that an angry crowd yelling at you is highly correlated with you being dismembered. Monkey brain responds, for the same reason that you get queasy when walking on a glass floored skyscraper walkway. 

To solve the problem of the social pressure being brought to bear on Supreme Court Justices is probably a coup-complete or regime-complete problem - something you can't solve without first changing the government. A good giveaway for such things is if at any point they involve the step "next, we reform or replace the New York Times".

But if you were of the menshevik mindset, there is probably still progress that can be made. The petrol engine can be improved, even if we can't yet turn it into a fusion engine. 

In particular, one useful rule of thumb when judging appointees - what experience do they have with being smeared and hated? And do they have a personality likely to be more resistant to this, inasmuch as it's possible to forecast this. Are they naturally combative and devil-may-care, like Scalia? Do they thrive on having haters? Do they have a history of being outspoken? Unfortunately, this tends to make it hard to get confirmed in the first place these days, so that may not be possible.

In an ideal world, they might have some concrete experience with similar jobs. One obvious case - running a medium sized business, and having to fire people. Yeah, you'd better believe that will toughen you up. Can you inflict pain upon people, and deal with their anger and contempt, while keeping your eye on the larger purpose? Have you had to command troops in battle, and know that making the wrong call on whether to breach that door will likely result in either your guys getting shot, or civilians being shot?

Ironically, the main pre-job exposure people have to being hated is from Democratic and media efforts during the confirmation hearings. While you have very small number of observations here, I suspect that Clarence Thomas being viciously smeared before he started probably had a searing effect on his choices. It likely made him permanently bitter, as there was basically no worse smears that could be thrown at him than what he faced before he started the job. But he knew what his enemies were like,  and exactly what their good opinions were worth, and wasn't going to cave to them after that. 

An interesting question will be to see what happens to Kavanaugh. I think it's easy to overextrapolate the Thomas outcome, and ignore the possibility that some people overreact in the other direction - they cave harder sooner in order to make the smearing stop, or they rationalise it. I'll show I'm the bigger man by not being the right wing monster they accused me of being, and instead implement this unprincipled exception for liberalism. 

You may think this doesn't really apply to monarchs. They can just fire the hostile press, or implement lese majeste laws to execute people who insult them. 

But remember, the pain point is psychology. What if you get a monarch who just really wants to be loved, and can't deal with being despised, or even just with causing necessary pain on citizens? 

I don't hold myself out as any kind of expert, but that's certainly the description I've read of Louis XVI. He wore civilian attire, rather than military. A man of the people! That worked out well for him.

Maybe you think this is all old hat. Very well. Here's a simple test. Take the sentence 

"Previously conservative judges are susceptible to public pressure, and probably will end up changing their views to conform to it."

Ask yourself - would this apply to...me? Would I be susceptible to public pressure, and change my views to conform to it?

Ha, no, of course not. Biases for thee, cold-iron robotic logic for me. 

If you are certain that the answer is "no", and yet you've never had any firm experience of resisting exactly such pressure, I suggest that there is a large chance that you may be greatly underestimating the forces at work here. 

To paraphrase one half of my nom-de-plume:

Hath not a judge eyes? hath not a judge hands, organs, dimensions, senses, affections, passions? If you scream in his face, does he not flinch? If you mock him, does he not feel stung? If you slander him, does he not bristle? If you selectively apply pain, does he not learn the lesson?

On the Toppling of Statues

In the latest round of the imbroglio involving the death of George Floyd, the focus has moved from looting stores to toppling statues. This probably serves multiple purposes. First off, some of the stores represent actually important economic interests, and blue city mayors still somewhat know who’s paying the bills. Not so much that they’re willing to stand up to a mob in the process of looting, of course. But enough that if rage can be directed towards more socially useful outlets, like destroying statues of people liked by conservatives, then so much the better. It keeps the mob fired up in the leadup to the 2020 elections, but harms no vital interests of anybody important.

The initial outrage focused on monuments to the Confederates. It’s 2020, so the Civil War that ended in 1865 is of course a pressing political issue. Among the various ironies is that today’s progressive mob takes a far harsher line than the actual men who fought and died to defeat the Confederacy. Lincoln told the band to play Dixie. Grant let the surrendering Confederate officers keep their weapons and horses. Reconstruction may not have been much fun if you were a civilian in the South, but there’s no doubt that there was a genuine attempt to unify the country after the war finished, and respecting each other’s heroes was a way to preserve a cultural truce. If we’re all going to be stuck together in the Hotel California of countries that you can check out of but never leave, we may as well try to rub along together. This is not a very popular sentiment anymore, it suffices to say.

But as has been obvious to anyone paying attention, the people who wanted statues toppled were never going to stop with the Confederates. Eventually they would assuredly come for Jefferson, Washington, and anyone else who owned slaves. Sure enough, Washington statues have been vandalized in New York and Portland. The city of Columbus, Ohio, recently took down their statue of Columbus, proving that the "is this headline from the Onion or the NYT" game gets harder every day. In case you thought this was part of a principled and thought out set of targets, they also vandalized statues of Norwegian anti-slavery crusaders, Catholic saints, and Cervantes, who was himself a slave. 

Like many things that seem obvious in hindsight, statues exist in only two types of societies – those with a very high level of trust, and extremely heavily-policed authoritarian states. This realization is only slowly occurring to people as it becomes obvious that America is no longer a high trust society, and all sorts of institutions that relied on this now fail to work. Accurate political polling is another casualty, for instance. “Hello stranger who we just called! You don’t know who we are, but do you support the government? You’ve got no financial incentive to tell us, and we’re recording your answer in a database!”. The amazing thing is that anybody ever answered truthfully at all.

A statue in a public space is like the cultural equivalent of a foreign embassy. In the face of concerted domestic opposition, it is completely indefensible from a military point of view. In theory, the domestic government could expend huge resources to police it night and day to stop the mob burning it down. But this is rarely worth it, either for an embassy, or a statue. At the point that you have to do this for any extended period of time, you’re facing a losing battle, and you should probably pack it up and go home. A statue is even worse – an embassy is at least trivially protected against minor attacks, because it has to defend the lives of real people who are important at least to the home country. A statue is physically solid, but socially fragile – an undefended object of art and beauty that can only exist with the consent of a huge majority of the populace. This can be because the person is almost universally revered. It can be because people are tolerant of other people’s heroes, even if they’re not their own. It can be because there’s very strong norms against vandalism. Or, like the statues of Saddam, it can be a flex on the populace under threat of being killed or mutilated for disrespecting the sovereign.

Increasingly, none of these conditions hold in modern America. This may seem hyperbolic to say. But let’s put it this way. Suppose you are in charge of an insurance business. Someone comes to you wanting to obtain insurance for their statue. What annual premium, in terms of percentage of replacement cost, would you charge for a randomly chosen statue in America right now? I’d say the lowest would be the Martin Luther King statue in DC. But the rest? If the cost were less than 25% of replacement, I’d be kind of amazed. There'd probably be a considerable number where the premium would be above 100%, on the assumption that if it got rebuilt, it would be torn down again before the year was out. 

The whole thing is strikingly reminiscent of Godwin’s Law:  “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.” 

Every day, the line between frenzied internet discussion and real life gets blurrier. Social media, which has been a complete poison on society, amplifies and shortens the clickbait/outrage/vindictive response/ schadenfreude/retweet cycle. Americans have become addicted to the pleasure of righteous indignation, and the media, traditional and social, happily provides.

The literal mob has become indistinguishable from the mob of the Facebook feed. And as outrage porn and mob violence goes on, the probability that someone crazy and motivated decides that a given statue is actually comparable to Hitler goes to one.

Eventually, all the statues will get torn down.

If you don’t believe me yet, don’t worry, you will.

And there are many things one could opine about regarding this. The loss of aesthetics. The loss of historical understanding and tradition. The loss of heroes.

But I want to focus on one bit in particular.

When the statues of Washington and Jefferson all get removed, and nobody stands for the national anthem any more so they stop playing it, and cities and towns start deciding they don’t want to celebrate the 4th of July because America’s founding was racist back in 1619, and first the loonie fringe then the New York Times start writing articles wondering if we should rename Washington DC to Kingtown…

…at what point in all this do people realize that there are literally no more symbols that unify Americans as a people anymore?

That there are no more symbols of the general feeling of mutual camaraderie and shared history and purpose as a nation, because there actually is no general feeling of mutual camaraderie and shared history and purpose as a nation?

And if you, like me, think that the above statements already apply, then the current governing arrangements and general social compact may be a great deal more fragile and brittle right now than most people give it credit for.

People think about governmental collapse like death – something that only happens to other people, but never to me personally. Well, one day, for the nation as a whole, it will. And when it did, for nations in the past, it was generally not anticipated by most of the major parties very shortly beforehand, whether it’s the Fall of Rome, the Russian revolution, or the fall of the Berlin Wall. This doesn’t mean it’s going to happen soon in America, of course. But it does mean that your feeling that it probably isn’t likely now is not actually a strong signal one way or the other, because it never seemed likely, even when it was imminent. So you should revert at least to the unconditional probability, which is low, but not that low.

And if you were to start wondering about useful conditioning information, a pretty good place to start would be widespread belief among the elites of the illegitimacy of the governing regime. 

Of course, we struggle to see this in America, because we don’t have clear language with which to express what “the governing regime” is. We can say if people disliked Czar Nicholas II, or even the Communist Party. But what would it mean to dislike the US government as a whole? It certainly doesn’t map to disliking Trump – in that case, there’s near universal elite hatred. Are people still sentimental about elections and the democratic process? The attachment seems to mostly exist as an expression of hate – a way to stick it to the other side. It’s been a very long time since I’ve heard the left express the sentiment that, sure, our guy lost, but they lost in a democratic election, and in the end that’s more important. If Trump loses, I don’t expect much of this on the right either, save the obviously useless grifters of the professional Never Trump class. And if not that, then what? The civil service? Don't make me laugh. Our robust economy creating broad prosperity? Bueller?

In other words, if there is no substantial opposition to the current governing arrangements, this may simply stem from a) a lack of imagination about alternatives, and b) a lack of clear coordination on what would replace the status quo. In East Germany, you had both. Levis and Rock and Roll were on display on the other side of the wall, and collapse just meant handing over the keys to City Hall to those guys. Now, it’s a little thornier. But if you were to characterise USG as a “regime”, the way that Communist East Germany was a regime, or Czarist Russia was a regime – do you see very much love for the USG regime going around at the moment, on either side of the political aisle? It's hard to see this, because a regime is always "them" - the governing, as opposed to the governed. Americans are trained to see themselves as the governing, due to the absurd fiction about the importance, both practical and spiritual, of  the pico-watt of political power they get to exercise at the polling booth every four years. This delusion holds true, notwithstanding that pushing the same button keeps producing the same unsatisfactory results. This delusion, plus sheer inertia, may be the only glue holding this jalopy together. Every year, it gets a little dicier.

At the moment, I don’t see anything dramatic happening before the election at least. I was somewhat nervous on the main Saturday night of protests recently, however, notwithstanding my previous post.

But let’s put it this way. If there were a VIX index for political outcomes, my estimate of the 5 year value just went up substantially this past month.

You cannot have a nation destroy all the symbols of itself and expect everything to just proceed as before.