Neal Katyal And George Conway’s Incomplete Legal Advice

In an Op-Ed for the New York Times, Neal Katyal, the “acting solicitor general under President Barack Obama and…a lawyer at Hogan Lovells,” and George Conway III, “a litigator at Wachtell, Lipton, Rosen & Katz,” argue that Donald Trump’s appointment of Matthew Whitaker as the the Acting Attorney General is unconstitutional. Roughly, according to the Appointments Clause of the US Constitution, Article II, Section 2, Clause 2, “principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.” Whitaker is a principal officer, and he has not been confirmed by the Senate.  So, “Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States…is unconstitutional. It’s illegal.”

(Katyal and Conway buttress this argument by invoking the words of Justice Clarence Thomas, who argued last year that the appointment of the general counsel of the National Labor Relations Board without Senate confirmation, which was ruled invalid on statutory grounds, was unconstitutional for precisely the same reason – it violated the Appointments Clause.)

Katyal and Conway sign off with a rhetorical flourish that should be familiar to anyone who has read claims alleging the unconstitutionality of a statute or executive action:

[T]he Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”

We must heed those words today.

Stirring words. Exemplary legal analysis. Alas, something is missing. How can we “heed those words”? What legal redress do American citizens have? Can I call a police officer and ask him to arrest the President? Who will step forward to address this violation of the  law? Illegal acts have been committed; what can be done? Katyal and Conway do not bother to tell us. They tell us that something is is illegal and then they drop the mic.  Unconstitutionality Alleged! Boom!

What Katyal and Conway have failed to do is tell us who has standing to sue.  Standing is “the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case” or “the requirement that a person who brings a suit be a proper party to request adjudication of the particular issue involved.”

So, who, if anyone, has standing to sue in this case? I am not a lawyer or a legal expert. I do not know what the rules are for standing to sue alleging constitutional violations. Mea culpa – my civics lesson were clearly inadequate. It would be nice if a pair of expert lawyers, who enjoy access to one of the the nation’s most visible media platforms, would tell me.

This complaint is a more general one. In the years since Donald Trump has become president, a veritable blizzard of op-eds have descended upon us, alleging some kind of illegal behavior by the administration. (Most of these are admittedly allegations that some norms, rather than laws, have been violated.) In almost none of those is the reader informed of how the citizens of this nation can find legal remedies. An opportunity for a little civics lesson, a little legal education, is missed out in each case. And the impression that citizens have, that the laws of this nation simply do not check the actions of the powerful, is reinforced. From a political standpoint, polemics are of little use if they do not include some call to action: here is the legal violation, this is what must be done to redress it. Elementary rules of composition for political or legal writing, I think.

As things stand, Whittaker is Acting Attorney General. And for all we can tell, no one can do anything about it. If that is the case, it would be nice to know why.

Cussin’ In The Classroom

Of late, I’ve noticed that I have begun using more profanity in the classroom than I ever have previously in my teaching career. (Strictly speaking, I do not ‘use’ more profanity; I ‘mention’ it. That is, rather than using the word ‘fuck’ in a sentence like “This is a fucking crazy argument,” I mention it as in ‘Then someone might say, “Look, fuck it, I’m not going to obey the law.’ In the first case, I have used the word ‘fuck’ myself; in the second, I have quoted someone using it.) I do not exactly know why this is the case. For the first dozen or so years of my teaching career, I studiously eschewed mentioning profanity in the classroom; my style of teaching saw me stick pretty close to the assigned reading and the written notes I had prepared on it. Of late, my teaching has become more unstructured; I rely less on notes and more on the text (and on student responses to it); I consider most of the teaching in the classroom to happen when my students and I build on the textual material to explore applications of it in our daily lives. I supply more examples to my students now, and spend considerable time making them as elaborate as they need to be in order to illustrate the point I am trying to get across. I’m also more comfortable now in my skin as a teacher, more confident about the material I teach (even as many new existential doubts have also crept into my self-assessments of my intellectual and pedagogical worth.) These changes have, over a period of time, resulted in–when things are going well–a more informal classroom space.

This ‘loosening up’ has, I suspect, also loosened my tongue somewhat. I do not mind the tangents I go off on; I’m more inclined to be facetious in class, to invoke levity into its proceedings. Some of my students have told me that they quite enjoy my historical asides, the stories I tell to supply some historical context to a particular philosophical debate; this has encouraged me to be more discursive in my working through the material being discussed in a class. And so, I have found that often times, when constructing some imaginary conversation for an example, to illustrate some political or ethical issue, I will throw some profanity into the mix to make the reported conversation more dramatic, more realistic. I hope.

My students do not seem to mind; no one ever looks shocked. Most students occasionally snicker; there is a noticeable relaxation in the classroom atmosphere. (For some strange reason, this is also the case whenever the topic at hand invokes the legalization of marijuana for recreational purposes.) I suspect that to a certain extent, my language humanizes me for my students–for better or worse. I’m ‘distant’ from my students in many ways–this language brings me ‘closer’ to them, again, for better or worse. I do not think that I’m currying favor with my students by employing this language; it has come naturally to me as my classroom methods of interacting with students have changed. For what it is worth, I curse a lot in my conversations outside the classroom, so I’m slipping into a mode of discourse that comes naturally to me. About fucking time.

That Alex Honnold MRI In ‘Free Solo’

One of the most commented on segments of Jimmy Chin and Chai Vasarelyhi‘s ‘Free Solo‘–the film that details Alex Honnold‘s incredible free solo climb of El Capitan in Yosemite National Park–is that of the MRI of Honnold’s brain. This MRI is performed in an attempt to solve the mystery of how Honnold is able to calmly scale a three thousand feet cliff without any ropes or aids, without apparently suffering the terror that would afflict most human beings engaged in any task that approximated Honnold’s feat. We learn that Honnold’s amygdala–the part of the brain supposedly activated by our fear–just doesn’t light up all that much in his case. See? He’s just built differently from us.

But we were also given some psychological insight, of course: Honnold himself is asked how he does it and he offers some interesting introspective takes on it on fear, risk, consequences, and existential choices; other climbers–like Tommy Caldwell and Jimmy Chin–also chime in. And those around Honnold offer us some explanations of his behavior and attempt to determine its psychological foundations.

Such explanations do not satisfy all–especially those who find MRI scans more convincing than verbal reasons for human behavior:

Unfortunately, Free Solo suffers when Vasarhelyi and Chin psychologize Honnold or attempt to explain his drive for death-defying climbs. It’s understandable why the filmmakers would want to examine Honnold’s psyche, given that his Spock-like demeanor and curiously casual approach to soloing does raise certain questions about his mental stability or lack thereof. Yet every “answer” they ascribe to him (or he ascribes to himself) feels pat and unconvincing. Honnold mentions his father, who was emotionally unavailable to Honnold’s mother but also spurred his son’s interest in climbing. He describes his “dark soul” as a child and his “bottomless pit of self-loathing.” There’s some talk about being a loner in school. Yet none of those explanations are as persuasive as an MRI diagnosis that simply concludes he requires more stimulus than most people. Similarly, Free Solo’s fixation on how soloing affects Honnold’s relationship with his girlfriend feels transported from a more banal film altogether. At best, this material is uninteresting filler, and at worst, it’s a distraction

Now, I hate to have to break the news but ‘pat psychologizing is what we do all the time, every single day of our lives. In fact, if we didn’t indulge in it, we wouldn’t know how to live with each other. Think about our language of everyday social, political, and ethical interaction–replete with wants, desires, beliefs, motivations, the whole gamut of psychological attitudes. We use this language all the time to predict and anticipate the reactions of others; we do not go around conducting MRIs to find out what our fellow humans want or desire or believe; we observe their behavior, we ask them questions, we correlate their behavior with their verbal pronouncements for further refinement and we muddle right along. In courts of law, when we want to know why someone did something, we ask them or other human beings to explain their behavior; we don’t cut open skulls or run scans to elicit reasons–though some neuroscientists want to do just that. All of which is to say that there is nothing ‘pat’ about the psychologizing in ‘Free Solo’; we make this assessment at the risk of being similarly dismissive of most of our daily conversation and our best tool for dealing with other humans.

But the attitudes expressed in the review above are not outliers. ‘Pop psychology,’ ‘psychobabble,’ ‘amateur psychologizing’–these are all apparently Bad Things; we should look for more Scientific Explanations. A laudable sentiment, but one which is too caught up in reductionist fantasies to be anything more than grossly misleading. In the realm of human behavior, psychological explanations are useful, elegant, and successful; and it is neuroscientific ones that have a long way to go:

The fundamental problem…is the urge to ‘reduce’ psychology to neuroscience, to reduce mind to brain, to eliminate psychological explanations and language in favor of neuroscientific ones, which will introduce precise scientific language in place of imprecise psychological descriptions.  This urge to eliminate one level of explanation in favor of a ‘better, lower, more basic, more fundamental’ one is to put it bluntly, scientistic hubris….It results in explanations and theories that rest on unstable foundations: optimistic correlations and glib assumptions are the least of it. Worst of all, it contributes to a blindness: what is visible at the level of psychology is not visible at the level of neuroscience. Knowledge should enlighten, not render us myopic.

The urge to rely on neuroscientific explanations is easy to understand: human beings are complicated creatures; we are creatures of biology, culture, and psychology; to understand what makes us tick is hard.  Some pat neuroscientific explanations seem quite tempting. But what at cost? What, if anything, have we learned about Honnold from his MRI that is genuinely useful–especially since that MRI rests upon a series of as yet unconfirmed assumptions?  That ‘pat psychologizing’ that Honnold and those around him indulge in is far more enlightening; they place Honnold’s behavior in the domain of human relationships and motivations, far more comprehensible for us as human beings, and far more amenable to utilization in our future interactions with our fellow human beings.

Wittgenstein’s Lion And Solaris

Kris Kelvin, Snow, Gibrarian, and Sartorius are all puzzled and perplexed; as other educated and intelligent residents of Station Solaris–a sophisticated scientific laboratory–have been before them. They are stumped and bewildered by their interactions with the planet Solaris, with the ocean that covers its surface, the one that plays host to mimoids and symmetriads and asymmetriads and vertebrids extensors and fungoids and other strange and wondrous physical forms, which seems to be able to conjure up, out of its own chosen raw materials, facsimiles of the human form–like Kelvin’s former, dearly beloved, and now sadly departed love–that are good enough to induce genuine confusion about their identity on the part of those who would interact with them.

Does the ocean live, is it conscious, does it have a body or a mind? Is it intelligent? Is it communicating with human beings? Does it speak a language? Does it possess knowledge of mathematics or computation? Does the surface of the ocean on Solaris engage in computations; is that what the changes in its physical form signify?Are these human forms, the ones that look like the ones we love, are they forms of communication on the part of the planet? Has it scanned our brains, discovered our obsessions and physically realized them in an attempt to establish contact with us? Has it performed a series of vivisections on our brains and psyches, treating us flippantly like objects for experimentation–the way we have treated physical materials and other species on this planet?

The planet is, of course, Wittgenstein’s lion. It has spoken and we do not understand it. All that the scientists on Station Solaris can bring to bear on their interactions with the planet is their knowledge of themselves and other human beings–and their interactions with each other; this knowledge–of their particular ‘forms of life’–forces them into a particular interpretive stance with respect to the planet, one whose prisoners they remain, and which does not afford a unique and determinative understanding of what the nature of the planet is, and or what it might be trying to say–if it is trying to say anything in the first place. The planet has its own ‘form of life‘ that regulates and determines the form and content of its interactions with the human beings engaged with it; there is little guarantee that this communication is set up to enhance, or even make possible, understanding on the part of its human interlocutors.

Kelvin and Snow and Sartorius and Gibarian have come to realize that these concepts they trade in–life, mind, consciousness, thought, persons, intelligence, brain, language–find their meaning with respect to a particular form of life and being–they do not transcend it. They do not allow for the determination of whether the planet, a ‘being’ perhaps radically similar or dissimilar to them, traffics in similar concepts, or anything like them. If they were to ascribe a ‘life’ or a ‘mind’ to Solaris, it would be an asterisked one–‘life as we know it’–and perhaps that’s all we can or should aspire to.

Vale Satadru Sen (1969-2018)

It is with great sadness that I make note here of the sudden passing of my friend and CUNY colleague, Satadru Sen (of Queens College’s History department),  on October 8th, 2018–he would have turned fifty in January. The news of his death came as a shock; my family is united in grieving with his family, friends, students, and colleagues.

Satadru and I met because we had to: we taught at CUNY; we were Indian immigrants who moved to the US at similar ages (Satadru in high school, I moved after my first degree); we loved cricket (Satadru wrote a few guest posts on my old cricket blog, and reviewed my book Brave New Pitch); we had a taste for Indian military history (he reviewed my book on the air component of the 1971 war between India and Pakistan); we liked traveling in the American West (he went on long motorcycle rides across its vast expanses and came back with stunning photographs.) We exchanged notes on our backgrounds and inclinations; we cursed the descent into fascism of the US and India; we fretted and fumed at CUNY bureaucracy, at the stupidity and obduracy of many of its administrative decisions; we were perplexed and enthralled by our students; as we became fathers, we discussed the trials and tribulations of parenting. (Our wives were in law school when we first met, and soon, we were the fathers of young girls–thus allowing for points of resonance between our families.)

Satadru was a genuine scholar and intellectual. As his department made note:

His scholarship was his passion; through it he sought to expose the inequities and hypocrisies wrought by colonial regimes in South Asia and in the Indian Ocean World.  His research ranged from the institutionalization of discipline and punishment to the global celebrity of a cricketer-turned-politician and its implications for understanding the experiences of subjects in imperial contexts.

Satadru’s five single-authored monographs include Disciplining Punishment: Colonialism and Convict Society in the Andaman Islands(Oxford University Press, 2000), Migrant Races: Empire, Identity, and K.S. Ranjitsinhji (Manchester University Press, 2005), Colonial Childhoods: The Juvenile Periphery of India, 1860-1945 (Anthem Press, 2005), Savagery and Colonialism in the Indian Ocean: Power, Pleasure and the Andaman Islanders (Routledge, 2010), and Restoring the Nation to the World: Benoy Kumar Sarkar and Modern India (Routledge, 2015).  In addition to these are two collections of essays and one co-edited volume.

That publication list is one component of the claim I made above; far more germane was the quality of his writing and scholarship. His writing had flair and passion–visible quite clearly too, in his blog essays, marvelous long-form ventures of analysis and observation. (I reviewed his book on Ranjitsinhji for ESPN-cricinfo; in retrospect it might have been the best academic book on cricket I’ve ever read.)

Satadru and I met infrequently, but we exchanged mails and messages often; sometimes we met for drinks or coffee in our neighborhood; after we became fathers, we met with our families for teas and play-dates. On each occasion, we found time to retire to a  corner to trade our mordant little notes on academia, cricket, history, and the like. His observations were sharp and informed; I trust he enjoyed his interactions with me as well.

I’ll miss him; so will his family and friends and all those who learned from him and were enriched by his scholarship and companionship.

Mitchell Langbert, An Advocate For Sexual Assault, Desperately Needs Attention

Mitchell Langbert is a professor of Business at Brooklyn College. Here is what he has to say about the Kavanaugh hearings:

If someone did not commit sexual assault in high school, then he is not a member of the male sex. The Democrats have discovered that 15-year- olds play spin-the-bottle, and they have jumped on a series of supposed spin-the-bottle crimes during Kavanaugh’s minority, which they characterize as rape, although no one complained or reported any crime for 40 years.

The Democrats have become a party of tutu-wearing pansies, totalitarian sissies who lack virility, a sense of decency, or the masculine judgment that has characterized the greatest civilizations: classical Athens, republican Rome, 18th century Britain, and the 19th century United States. They use anonymity and defamation in their tireless search for coercive power.

The Kavanaugh hearing is a travesty, and if the Republicans are going to allow the sissy party to use this travesty to stop conservatism, then it is time found a new political party. In the future, having committed sexual assault in high school ought to be a prerequisite for all appointments, judicial and political. Those who did not play spin-the-bottle when they were 15 should not be in public life. [Addendum: this post has now been edited by Langbert; see notes below.]

Professor Langbert is unafraid to be a man, a real man, a very virile and masculine man. He’s not a pansy; he isn’t a sissy; he doesn’t wear tutus. (The mind boggles.) Negating the consequent of his opening sentence generates the conclusion that if someone is a member of the male sex, then they committed sexual assault in high school. At the very least, Langbert seems to be ‘fessing up to details of his own high school career. Make no mistake about it, Langbert is a misogynist piece of work. And he wants you to know about it. Loudly and publicly.

It is quite clear Langbert wants to be a free speech martyr, to be criticized for his rant above, and hopefully, to be formally disciplined by Brooklyn College administration; when asked for comment by a Brooklyn College student newspaper, he doubled down. For as long as I’ve known of him and his activities here at Brooklyn College, Langbert has been desperately hoping the right-wing assault troops of the new media will elevate his otherwise nondescript life and academic career to the headlines. Imagine: receiving a phone call from Fox, for the Hannity show, or perhaps from Ben Shapiro or Ann Coulter or Dinesh D’Souza or Jordan Peterson. Imagine: a chance to hold forth on national television about how a brave man who spoke the truth on campus was vilified by millennial snowflakes and attacked by liberal administrators! Maybe he could even score a book deal if he was lucky enough. How else would Langbert bring his, er, ‘writings’ and ‘thoughts’ to the attention of the American people? By advocating for sexual assault, that’s how.

PS: By commenting on Langbert’s idiotic blog post, I’m playing along with his game; that’s a drag, but it’s also a good idea to shine the light on this dark corner on campus.

PPS: In the last fifteen minutes, Langbert has edited his piece to now call it a work of satire. What a fucking coward. Stand by your original words. A screen shot of the original post can be found in the Excelsior article linked above. I had copied and pasted the entire text of the blog post; everything else that appears in the version now online is a late edit, a cowardly run for cover by an intellectual and moral midget.

A Pro-Bono Offer To Teach Brett Stephens Some Epistemology

This morning, I mailed the following letter to the New York Times Education section. I do not expect a reply.

Greetings,
I’m a professor of philosophy of Brooklyn College and I’m writing to offer to teach epistemology (the study of knowledge) to Brett Stephens, your Op-Ed columnist. His last three essays (‘This Revolution Too, Will Eat It’s Children‘, ‘This I Believe About Blasey vs. Kavanaugh,’ ‘Believability is the Road to National Ruin‘) have shown an alarming ignorance of some basic principles of epistemology–the kind that we introduce to our beginner undergraduate students in elementary introductions to philosophy or in our elective epistemology class. (The study of epistemology goes back all the way to Plato and a firm grounding in its fundamentals is essential for any student, not just philosophy majors.)

To wit,  Mr. Stephens does not understand the relationship between beliefs and action. He does not understand the difference between belief and knowledge. He does not understand the difference between different epistemic standards employed in differing contexts–as such, he does not understand the difference between legal standards of belief and knowledge, and how they pertain to legal decisions, and ‘normal’ or other standards of belief and knowledge and how they apply in different contexts. These are elementary distinctions and everyone, especially every adult and every responsible citizen of a democratic republic, should be aware of them. It is entirely possible that Mr. Stephens has never taken a class in philosophy or epistemology and perhaps he has never been introduced to the notion of ‘epistemic standards’ and how these might vary across different ‘epistemic contexts.’ But that is no reason for him to remain ignorant of them.

Which is where my pro-bono offer to teach Mr. Stephens some basic epistemology comes in. I also teach philosophy of law, and would be happy to introduce Mr. Stephens to some basic jurisprudential debates about the nature of belief formation in legal contexts and how even within legal domains, there can be differing epistemic standards that generate varying epistemic contexts.

I write in the spirit of offering to perform my civic duty. Mr. Stephens has a prominent and powerful pulpit from which he can address the American people, and he is, as I am, concerned about the state of the American Republic. I believe, as I’m sure he does, that his writing would be improved if he did not trade in the sorts of elementary confusions that are on display in his writing. Mr. Stephens indicates in his pieces the need to keep an open mind; I appreciate that spirit, and in keeping with it, would like to help educate Mr. Stephens.

I do not have contact information for Mr. Stephens and would appreciate it if you could please forward this email to him. I can be reached at my work email address above. I look forward to hearing from him, given his avowed commitment to open inquiry and fair thinking.

best,
Professor Samir Chopra
Department of Philosophy
Brooklyn College
2900 Bedford Avenue
Brooklyn, NY 11210