Sunday, July 26, 2009

Post No. 128: "You Can't Always Get What You Want"

© 2009, the Institute for Applied Common Sense

We’ll tell you up front. This is about the Supreme Court Sotomayer confirmation hearings, after some thought.

But first, a story.

Everyday we order lunch from our neighborhood Burger King. We get a kick out of having the guy in the King costume make the delivery, and spike a football as he departs. Plus, we can have our burgers “our way.”

BK has had an ad campaign for years with the theme, “Have It Your Way.” We recently questioned whether BK may have done a disservice to the nation, or the world for that matter, by suggesting everyone can have it their way.

“That’s ridiculous,” you say, “they’re only referring to how you want your burger.”

However, that ignores the sheer power of repetitive, subliminal messages. (Imagine what young kids think.)

Jim Jordan, legendary ad man and author of the original Burger King campaign, also believed that if you hit a tree in the same place enough times, it’ll fall.

We reached out to several people to help us recall songs, other than the Rolling Stones classic in our title, which conveyed the far more pragmatic message.

Douglas, one of our loyal followers, replied that he could not think of any others which conveyed the message as well. In his view, “Most songs are not about a general feeling of desire and frustration, but tell of unrequited love.”

He added, “Life is all about expectations and a desire to overcome [obstacles in pursuit of our] dreams and goals.

The Laughingman counters out that most songs are just that – songs. If you play a country song backwards, your pick-up won’t get fixed, your wife won’t come back, and your dog won’t come home.

On the other hand, music intended to change behavior might be more like hymns than hits.

In retrospect, it’s hard to tell whether you’re talking about the chicken or the egg; but if Woody Guthrie, Phil Ochs, and Bob Dylan didn’t change the public’s behavior, they certainly chronicled the changes with their music… much of which is still played today.

Which gets us back to Sotomayer.

We watched, with much distress, the hearings involving Clarence “Long Dong” Thomas, starring Anita “You Ain’t Going to Make It Up This” Hill, and watched the fun loving and engaging Robert Bork evolve into a pessimist following his rejection.

What has captured our attention over 30 years of justice nominee hearings has been the intensity of the effort by partisan forces, on both sides of the aisle, to achieve their particular goals. Even if it means smearing the nominee. Each side essentially claims that the nation, as we know it, will implode upon the ascension onto the Court by those who they oppose.

Both sides fear that the Devil may have all the best tunes (downloaded on his iPod).

In reality, it simply doesn’t work that way. First, the new justice is just 1 of 9. Then there is that very important issue of judicial precedent, and a host of other reasons the Court avoids unnecessarily making decisions.

And that’s not to mention it takes decades, if not longer, for any real meaningful shift in rulings to occur. (Take whether slaves were “men,” or something less, for example.)

Still, that folks expect that the cultural pendulum will not, or should not, swing back and forth, and that Newtonian physics are not applicable to life, is fascinating. Elected officials come with all points of view, and represent the full spectrum of values. Why shouldn’t the people who they appoint?

Interestingly, should any judge in any court answer any of the, “What are your views on…” questions posed, they would automatically be excused from sitting in judgment on that issue. And when the nominee properly refuses to answer (especially in response to a hypothetical set of facts), the ensuing inquisition produces less useful information by which to judge that person’s qualifications than one gets in a singles bar, or by participating in “speed dating” musical chairs.

To repeat a question we posed prior to the presidential election: Are we that concerned about the effect of the entry of just one person on our governmental institutions? Are they that unstable and subject to whim? Aren’t there checks and balances?

Our friends in college might well ask, "So what's all this got to do with me?" To avoid complications later, it might be good to appreciate certain concepts early in life:

Times Change, and You Can’t Stop That

Sentiments and Values Change, and You Can’t Stop Them Either

If You Can’t Achieve What You Want One Way, Try Another

Those Who Disagree with You are Not Necessarily Bad, Evil, Possessed People, with Bi-Polar Disorder

Disparaging People With Whom You Might Have to Work in the Future Can Have Long-Term Negative Ramifications

Not Every Battle Needs to be a Fight to the Death, Nor Does It Require Pulling Out All Stops

You Can’t Always Get What You Want

Life is not like ordering hamburgers.

Bob Dylan probably summed it up best, “The Times They Are A Changing.” We need to face it and deal with it.


  1. I have struggled with the concept of the general unfairness of life for, well, all my life. My mother said it best "Who ever said life was fair?" Which is just another way of saying you should not expect to get what you want.

    I have a problem with the concept of lifetime appointments, however. I understand why the USSC justices were originally given lifetime appointments but I think that this was a mistake. I now believe each appointment should be reviewed at 10 year intervals. This would, of course, take a Constitutional amendment so I doubt it will happen. And, of course, I certainly can't always get what I want.

  2. Forgive the odd input here on an incidental note but where you discussed whether slaves were men or something less I was reminded of a comment one of my emotionally troubled students made last year. In explaining the 3/5 compromise I tried to engage them on another angle saying if a slave counted as 3/5 of man what percentage of a man was a slave ? This kid Jeremy pipes up 60 % right ? Nice i tell him. Daaaag, he answers back, and on top a that he's about 75% water too. That's why I love when you come to class Jeremy, I said practically through tears of laughter, nobody spins it like you do... The Dylan disc my wife made a while back has been our mantra in the car this summer. My 11 and 9 year old sons listen to track 10 The Hurricane and I replay Things Have Changed repeatedly. I like the wizened Dylan as much as the younger one :
    I've been walking forty miles of bad road
    If the bible is right, the world will explode
    I've been trying to get as far away from myself as I can
    Some things are too hot to touch
    The human mind can only stand so much
    You can't win with a losing hand

  3. Douglas:

    Thanks for your input regarding other possible songs, and your thoughts about expectations and frustration.

    Consistent with our underlying premise, if all nominees, after confirmation, serve for life, then it's about as equal as it can get. Each President has an opportunity to create similarly situated positions.

    In theory and in practice to some extent, justices are not supposed to be subject to the moods, whims, and constantly changing attitudes of the public. They are to be governed by the law, by the Constitution, and not be subject to outside, political or societal factors.

    In our humble opinion, having justices reviewed periodically would subject them to the same problems and complications faced by politicians - trying to satisfy too many people too much of the time with respect to too many issues.

    It would also inject money into the mix, both for purposes of getting re-appointed and public relations campaigns, and potentially create opportunities for bribes and other influences, such as lobbyists.

    Having to justify what you've done, although generally a good thing and in the spirit of accountability in most professions, has its problems for someone who is sworn to follow the law strictly. The law is arguably above the static, transient desires of a vocal or agitated group of citizens at a particular point in time.

    There are numerous examples of this tension throughout history, with Kozematsu probably being the most obvious, and the decision there remains controversial to this day.

    Judges should be able to make unpopular decisions even when all the citizens are against the principle. Being subject to public scrutiny makes that far more problematic.

    One thing that we did not mention in our piece. If the justice is corrupt, a criminal, mentally unsound, dishonest, or a host of other conditions which make him or her UNFIT to judge, that's dramatically different than whether one simply disagrees with the justices interpretation of or views on the law. We have mechanisms for the removal of judges who are corrupt, dishonest, or engage in criminal behavior.

    We should all keep in mind that the Constitution was designed to protect us from ourselves.

    We keep going back to an extreme type of example to argue our point about the Constitution, and the rule of law. Let's say that 95% of the citizens of New York feel that Bernie Madoff should be executed. In theory, a judge who is not answerable to the people would not allow this, whereas someone subject to public review might be more tempted to allow the citizens to have their way, in order to save his or her seat.

    We frequently forget that a corruption virus is intravenously fed into elected officials upon taking office. The public wants results, not necessarily good behavior and strict adherence to the law. Look at Huey Long. We theoretically do not want justices to have those pressures and influences from society.

    Unfortunately, whether it existed in centuries past, or is just a relatively recent phenomenon, we have a situation where many believe that folks with different views of the world, with whom they disagree, are bad, evil people, or morons, imbeciles, vermin, or clowns.

    A lifetime appointment helps a justice remain somewhat insulated from that ... whatever you call it....

  4. Rastamick:

    Great story and great input. Thanks much.

  5. I see. So, you are saying that more often than not, judges that are subjected to elections (whether to attain or to retain their position) should be considered less reliable and more likely to be either actively corrupt or passively corrupt?

    Do you believe that potential USSC appointees lobby for their appointments? Or perhaps for appointments to lower court appointments from which most USSC appointments are made?

    We do have, of course, that impeachment process to remove any judge or elected official.

    Friedman argues that Justices are subject, subliminally or by the fact that they are human beings, to popular opinion... even while you argue that the reason for lifetime appointment removes that as a factor.

    I am not asking for elections, just reviews. I don't expect it to ever happen, however. And I believe it would probably not work out the way I would like. But my reasoning is that there would be a likely change in what political party is in power during the 10 year interval, in addition to a public understanding of the impact of rulings a justice has made.

  6. I believe that the lifetime appointment makes the justices of the SCOTUS less susceptible to political pressure. Whether it would make them less susceptible to popular opinion would probably be a factor based on the psychological makeup of the individual justice.

  7. Rodak: You wrote:

    "I believe that the lifetime appointment makes the justices of the SCOTUS less susceptible to political pressure. Whether it would make them less susceptible to popular opinion would probably be a factor based on the psychological makeup of the individual justice."

    You're probably pretty much right on the money. However, if one studies Supreme Court Justices, one will quickly determine that they are a different breed. Ordinary folks, with a few exceptions, do not get nominated or appointed. This is a different group of people, for good or bad. They're not your average Janes or Joes in terms of life experiences.

    The piece which we plan to post within the next 24 hours about what the Prof. Gates incident may reveal to us about ourselves will have some applicability to the Sotomayer nomination also.

  8. No matter what one thinks of this particular candidate, there were many for hundreds of years, who preceded her and who were clearly racist, sexist, not nearly as intellectually sound, and made up their own version of the law. They were confirmed without any real objection.

    Now, some new amorphous standard is being applied to a minority woman who obviously had to be fairly conservative and adopt a mainstream lifestyle and behave accordingly just to get to this point in her life.

    Like she's some radical extremist. Unf---ingbelievable. She's just not a member of "The Club."

  9. Although she managed to get past the Senate Committee, and the views of the tweeting public have no practical significance, when we examined the tweets on her nomination this weekend, tweeters were overwhelmingly against her (roughly 97%).

    We understand that it is not some carefully picked and monitored representative sample, but the lop-sidedness surprised us.

    Today when we checked, it was roughly 90% against.

    How did that happen? Does that surprise you? Where are her supporters? Are they afraid to express her support? Is she really that bad or dangerous a potential justice compared to others in the past? Why such a lop-sided sentiment on Twitter?


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