Court Commentary: Nominee to the Court

As I've said before, the Supreme Court is one of the parts of government I get most excited by (even going so far as to daydream of serving on it), so I'm watching with rapt attention to see how the replacement of John Paul Stevens plays out.

Here's my hope for what the nominee encapsulates. I'll leave out the identity politics, because that basically turns into a game of "which underrepresented minority most deserves the next seat." Also, it is funny to me that Protestant is an underrepresented minority.

Here's my qualifications:

• Trial Judge: I was shocked when I found out that Sonia Sotomayor is the only trial justice on the Supreme Court. Trial judges are often the ones dealing with trials that need the clearest and the fairest system of law. The Supreme Court has a hard time dealing with human rights -- after all, with the notable exception of Brown v. Board of Education, most advances in rights have come from the legislative (the Constitution and its amendments, the Civil Rights and Voting Rights acts, etc.) and not from the courts; the courts merely defend the rights that Congress have established. But on the issue of fair trials and the rights of the accused, the Supreme Court is the first line of defense. When it comes to our national defense and war on drugs policies, it takes a trial judge to know how the legal system works in actual practice. Whereas policymakers and voters tend to believe that criminals should be treated as criminals, trial judges remember innocent who also have to go through the same legal system, and that a legal system that is abused can hurt the innocent.
• Can't Have a Middle Name that Starts with G: Antonin G. Scalia, John G. Roberts, Stephen G. Breyer -- clearly people with the middle name G. are over-represented.
• Strongly Anti-Executive: I'm not particularly anti-executive myself -- balance in all things -- but although I don't think the court is necessarily too conservative, but it is true that although the Court is moderate in many areas, it has been pushed more strongly in the direction of a strong executive branch with the inclusion of John Roberts and Samuel Alito. Particularly in the wake of the Bush Administration,
• Southern: Regionally, it would be helpful if the nominee came from the South. The only currently serving candidate from the south is Clarence Thomas, and we all know he doesn't count:
  

  Thomas had gone 2 years and 144 cases without speaking up during oral arguments. "It is a period of unbroken silence that contrasts with the rest of the court's unceasing inquiries," the AP wrote at the time.
  

  The First, Second, Third, Seventh, and Ninth Court of Appeals are all represented on the Court, as well as the D.C. Court of Appeals. The Fourth, Fifth, Sixth, Eighth, Tenth, or Eleventh all have a different sort of background from the ones represented on the Court, and it would be useful to have some sort of representation from them.
  
  Politically, by the way, this might be a helpful as well (secondary to the judicial gains of diversity).
• Corporate-Skeptic: I don't want to say that I would select him/her to overturn a particular ruling (although I think we all know which one I would want overturned). But the general outlook should be that the Supreme Court should not simply be skeptical of the power that the federal government (and particularly the Executive Branch) can exert over individuals, but also the power that corporations have over people in realms where they are not over-ruled by the government. Net Neutrality, for instance, has a high likelyhood of sitting in front of the high court after an appeals court ruled that the FCC's net neutrality regulations are legally improper. There, the corporations show that they have a control over the information we receive, and can do so because of a difficulty in competition and a lack of transparency over the tactic.

I'm sure there are other important things to look for in a nominee, but those are the things that stick out to me.

Responding to Unreasonable Hopes

So, Tom over at TACT looks at a young student with a seemingly unreasonable and unshakable faith that one day, he will be famous. He says:

He is a victim of what I have come to call the “fame factor” in theatre education. It exists not only in theatre, of course, but across the culture. Created almost entirely by the pervasiveness of mass media, young people no longer pursue success; they pursue fame as well. The writer of this email simply believes he will be famous someday and win the Academy Award, and he needs nothing but the simple fact of his belief in that idea to make it come true for him (except maybe a little more help from me with his acting, as if I could make such a difference – another illusion).

(...)

The sad truth is that, for all their dreaming of fame, the statistics say that most of our students will not achieve their dreams. Perhaps for 15 minutes, maybe. If we want to be honest educators, we need to start telling students the truth, and build better options for them for their theatrical futures. It can be done if we have the will, and perhaps if we are willing to re-think our own dreams of fame.

99 Seats disagrees strongly, saying:

Let's think about it this way. A student in a history seminar takes a liking to the course work, even though she's not a major and writes the professor a message saying, "I know my last paper's haven't been great, but I'm really excited by this material and the coursework and I want to be the best student I can be. And, who knows, maybe I'll wind up as President and can invite you to the inauguration! I hope so!" Do you think the professor should respond with, "Well, since no women and only 43 people have ever been President of the US, it's not a very realistic or conceivable goal. You should think about your other options right now!"? Is that going to further this student's career? Their growth? Honestly, we wouldn't even expect a teacher to say that. And way more folks have won Academy Awards in acting (nearly 300) than have won the presidency.

When I first read the exchange, I was very solidly on the side of "Let-them-have-their-dreams." After all, we're living in the "Yes We Can" era when hope turns out to be a strategy, in some regards. And if you don't aim high, you won't have anything to lose out on. Either you settle now, or you settle later -- or, if you're one of the lucky few, you look out on Oscar night and say "And thank you to Professor Tom Loughlin for always believing in me."

But then I read a little further down my blogroll, and I saw Ian Moss' response to the Internship conversation:

Here are my thoughts, in brief. I think there are two separate issues going on here. First, we should make a distinction between internships and “working for free.” There is a name for working for free; it’s called volunteering. Volunteering is done with the understanding that the volunteer is doing it for the good of the cause; the volunteer’s reward is the good he or she is doing for the community or the world through his or her work. An internship, on the other hand, is explicitly supposed to be an educational experience. In this context, whether or not the internship is paid is of secondary importance; what really matters is the nature of the internship, and whether it really is educational or is just an excuse for the hiring organization to unload some undesirable tasks on an unwitting subject. ... As such, the real issue is truth in advertising...

Emphasis mine. But I think that concept of truth in advertising is the bridge between the internships and the advice conversations.

There's two possibilities of the mindset of the young student coming to Professor Loughlin for some words of advice:

1. The student who looks ahead and sees a wasteland of terrible, strenuous years up until his hard work and talent pays off and he wins an Academy Award.
2. The student who thinks that he's talented, will find an agent who appreciates him and opens the right doors, and will win an Academy Award.

In other words, does the student know what he's getting into? If he knows what he's getting into, then who cares if he dreams big? He's going to need a big dream to make long hours at poor pay worth it. He's going to need to have something real at the end of whatever bullshit internships and volunteer gigs and summer-stock in Atlanta in a bear suit sweating bullets or whatever other horror stories are waiting for him.

If the student knows what's coming in the near future, then I say yes -- full speed ahead, batten down the hatches, and we're all behind you. But if the student has no clue how hard the real world is, then as a Professor (or really a human being) you are honor bound to let him know. This is not an easy thing you are going to do.

Throughout all of my training, I have been read the riot act ten ways come Sunday about how hard this is. Long before Outrageous Fortune, I knew I was going into a shit field with shit pay and shit conditions. My father always counselled me to take a second major in something that it will be easier to support myself on an entry level job, and I followed his advice (sort-of) without ever giving up my personally megalomaniacal dreams.

In The Audacity of Hope, Barack Obama talks about the state of race in America, and he says:

To think clearly about race, then, requires us to see the world on a split screen to maintain in our sights the kind of America that we want while looking squarely at America as it is, to acknowledge the sons of our past and the challenges of the present without becoming trapped in cynicism or despair.

Our mentors, teachers, and professors should be preparing us to enter this field with this split-screen vision: to see the world where we want it to be, and to know the world as it is.

I am here because I dream big.

My dream is that, like Bertold Brecht, I can offer new ways of tackling the theater, new tools for expanding its influence. So that people will use my writing to clarify their thinking and have some measure of debt to me in their own. Part of this dream is that when I write things, it will be published -- and not only that, but that I'll be on The Daily Show making the things I like relatable to the 17-35 market. I dream that I'll have my own little theater where I can make what I want and that it will find the audience that it resonates with, that I'll be considered part of the conversation, and that I'll while away my years in happiness.

But I also know that for the next few years I'm going to have to split my time between doing well at a job that isn't related to my personal life dreams, and working hard in evenings for little-to-no reward and likely at personal cost. Maybe I've accepted too much of the toil, and I should be holding out for better conditions, but the size of my dreams has not (hopefully) divorced me from reality. I hope I have the energy and the day job to be able to grind away at this however many years it takes to hit even a fraction of that dream.

This is not the only dream I've ever had.

When I was a child, I wanted to be President so very badly. Unfortunately, I can't:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President...

So instead, I dreamed about the Supreme Court. My hero is Justice Oliver Wendell Holmes (although I'm jealous of Taft for being both President and Supreme Court Chief Justice), whose utterances became central pillars of judicial precedent. He could write a phrase like "clear and present danger" and not only would it be a central legal tenet, it would also be the catchy title of a best-seller.

Why didn't I go and pursue Constitutional Law? Why did I give up on a dream and a life-path that will, let's face it, probably be more likely to pay off in the end than some pipe dream about experimental theater?

Because I realized, watching my aunt struggle through positions as a law clerk, that I realized I wasn't so enthralled about everything that leads up to being a chief justice. I didn't like all of the small things that lawyers do; all of the paperwork drafting and the contract reading and everything. Sure, some bit of it appeals to me, but long before I'd get to face up to judicial philosophy I would probably burn out on the tiny things that I'd be forced to do.

And that's why theater is the only place I can really truly belong -- because (like in a relationship), I love it so heartily at its worst. And I know what its worst looks like.

So to sum up: if that students knows the worst, and is committed to the worst, in sickness and in health, for richer or for poorer, for all the days of his life -- then let him dream. But only if he knows the worst.

And only if he's read that stuff about internships. Seriously, they blow.

Court Commentary:Citizens United v. Federal Election Commission

A brief juxtaposition. Here's Matthew Yglesisas on the campaign finance ruling that just came down in Citizens United v. Federal Election Commission, which basically said that because corporations are people (an idea with its own fascinating court history), there should be no limit on their campaign spending:

Something worth mentioning in the context of the Citizens United decision, though not directly tied to the issue at hand there, is that a group doesn’t actually need to spend vast sums of money to have a decisive influence on politics. It just needs to be able to credibly threaten to spend said sums. Bank of America, for example, dedicates $2.3 billion to marketing in 2008 so it’s clear that they’ve got the budget to mount a $100 million series of scathing attacks on a Senator who pisses them off and basically laugh that off (and note that in 2004 total spending on Senate campaigns was just $400 million). And if you can have it be the case that just one Senator goes down to defeat for having pissed off BofA then everyone else will learn the lesson and avoid pissing them off in the future. You don’t need to actually sustain that volume of campaign spending.

Here's a quote from Anne Bogart (h/t Monica Reida) about Athol Fugard and his views on censorship:

Athol Fugard, the South African playwright, described censorship as hesitation. For him censorship is not necessarily the proximity of government inspectors or a threat of imprisonment but, rather, on the physical hesitation of his hand while writing. Censorship is his own private vacillation provoked by whatever doubts are out to ambush him. Censorship is a physical hesitation in the light of fleeting thought or doubt about how his peers might receive what he is writing, whether or not they will like it or if it will be published.

Two writers writing in different contexts about the same phenomenon. I think both of them speak to the heart of why this case sincerely disappointed me.

Court Commentary: American Needle v. NFL

So, if senior year of high school I had realized that the arts had no future for me, I know exactly what I would have done. I would have gone into Constitutional Law and worked my ass off to work towards my deepest secret desire: to be a Supreme Court Justice. Seeing as I'm a non-native born liberal Israeli male, the odds of me getting onto the Supreme Court are low to none, but I might have made a Federal judgeship, and I think I'd be okay with that.

Anyways, I follow the Supreme Court closely when I can, and what I love are cases like this one: American Needle v. NFL.

The case, as I can sum it up:

• The 32 teams of the NFL license the NFL their logos, and the NFL in turn licenses those logos to a single merchandiser, Reebok.
• Another merchandiser, American Needle, sued the NFL, saying that it was a trust -- a collection of competing entities that had unified to distort the market.

The claim hinges around whether the NFL is a single, unique entity, or whether it is an umbrella organization for 32 entities in the same market. If it is the former, then it is not a trust. If it is the latter, then it is.

Anyways, as the oral arguments have progressed, it has seemed to me to be clear that the NFL is a trust.

1. The teams existed before the NFL, and came together to form it.
2. Teams such as the Harlem Globetrotters have proved that teams don't need the league to exist, and thus are not dependent on it.

But really, that's not the part of the case that interested my brain. I was interested in something my mother brought up. You see, my mother is not a sports fan. She kind of dismisses the entire notion of sports. When I told her this story, she waved her hand and said, "Oh, if the NFL is raising prices on Football hats, why not buy hockey hats?"

It made me wonder how you can define a market. Really, the question is "are the two products equivalent?" If, from the consumer's perspective, you can swap one product for another and they can be comparably equivalent, then they are in the same market.

Silly Illustrative Example 1: If I am shopping for a blue baseball cap, and they are out of blue baseball caps, it is not unlikely that I will buy a black baseball cap. This are roughly equivalent options.

Silly Illustrative Example 2: If I am shopping for a car, and they are out of cars, it is unlikely that I will buy a scooter. These are not roughly equivalent options.

But what about something like a sports jersey? Suddenly, people's emotions come into play. If a person wants to support the Bengals because Chad Ochocinco is the greatest person alive today, they will not accept a New York Giants jersey in exchange (by the way, apparently these are equivalent for Justice Breyer, who doesn't appear to give a shit about sports, unlike Justice Blackmun or Justice Sotomayor). There's some sort of emotionally distinguishing value. Football fans are a distinct crowd from hockey fans, and Bengals fans are a distinct crowd from Giants fans. Sometimes it seems like saying there isn't much difference between a Mets fan and a Yankees fan isn't that far from saying there isn't much difference between Arabs and Persians.

I wonder how that concept pays out in the arts.

This morning, when I first thought up this post, I had a brilliant insight on that score, but I was driving and now it's 1:30 AM and I can't remember.