Sometimes the Easy Thing is Also the Right Thing

This semester I'm taking a class called "Capital Punishment: Race, Poverty, and Disadvantage." It is shaping up to be a rather unsettling class, though obviously in ways that are a feature and not a bug. In any event, our reading for this week is Furman v. Georgia, the 1972 case in which the Court briefly declared the death penalty unconstitutional. This is what I like to call a "seriatim" case, one in which every single Justice wrote an opinion of his own (in addition to a per curiam announcing the judgment of the Court but not the reasoning); the word is used to describe the British practice, also followed during the first decade of our Constitution, in which there was no single opinion of the Court and each judge would always deliver his own opinion. Chief Justice John Marshall abolished seriatim decision-making to promote Court solidarity and enhance its power and prestige, but every so often (especially during the Burger Court, I've found) things break down and most or all of the Justices need to have their say.

Anyway, one of the opinions was of course by Justice Blackmun. Here's how it opened:

Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood’s training and life’s experiences, and is not compatible with the philosophical convictions I have been able to develop. It is antagonistic to any sense of “reverence for life.”

This was a dissenting opinion. Because, Blackmun says, his sentiments against the death penalty are purely those that should characterize legislative or perhaps executive decision-making, not the judicial disposition of cases. A little later on he says that:

To reverse the judgments in these cases is, of course, the easy choice. It is easier to strike the balance in favor of life and against death.

The implication is that, while it would be easy, it would not be correct, and it would not be correct because this is not a decision for judges to make. This is a pretty common trope, employed perhaps most often by Justice Felix Frankfurter, although Blackmun's opinion is unusual in a way. The typical Frankfurter line is that "whatever we may think of the merits of this policy," it is not unconstitutional and therefore the judiciary is powerless to stop it. Blackmun, on the other hand, tells us in no uncertain terms what he thinks of the policy; he goes into considerable depth about how it is contrary to all of his deepest values.  Blackmun closed by saying that:

Although personally I may rejoice at the Court’s result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement. I fear the Court has overstepped. It has sought and has achieved an end.

Of course, some several decades later Blackmun famously declared that he would "no longer tinker with the machinery of death." That is to say, he had become convinced not that capital punishment was inherently unconstitutional but that it could not be imposed through a system that was anything other than arbitrary and capricious, contrary to the Constitution's requirements.

There's a lesson in that, I think. From his childhood through his retirement from the Court and his death, Harry Blackmun felt nothing but revulsion toward the death penalty. When he joined the Court, he felt however compelled to ignore his own moral impulses and instead apply "the law," operating of course under the assumption that those were two disjoint categories. Justice Blackmun would not do the "easy" thing and strike down those laws he found so morally repugnant; no, he would follow the law. But the older, wiser Justice Blackmun eventually became convinced that the "hard" thing simply could not be done lawfully. He never took the position Justice Brennan forcefully (and, in my opinion, masterfully) espoused in Furman, that death was an inherently unconstitutional punishment. Rather he realized that judicial attempts to craft a system of procedural safeguards that would cabin the evils of the punishment, to "tinker with the machinery of death," were futile, that the system could never be good enough. That was the voice of experience, not naive idealism. It was rather naive when he once thought that such tinkering was worthwhile, that we could in fact build a good enough machine of death.* Experience taught him to follow his heart.

Yes, it is easy to strike the balance in favor of life and against death. There's a reason for that, and it's not just that it's the right thing to do, morally speaking (though it does follow from this basic fact). It's because a wrongful decision striking down these laws would have been no worse than any other decision wrongly denying legislative authority to the American people on some purported constitutional grounds, while a wrongful decision upholding them would have been far worse than any other decision wrongly permitting to them such legislative power, for it would have led the American government to kill people, human beings in its custody, in violation of the Constitution--perhaps the worst legal atrocity imaginable. Therefore, had I been in Blackmun's situation, I would not have voted to uphold the death penalty unless I was absolutely convinced that there was no possible legitimate constitutional argument for striking them down. This is ultimately the key point of Philip Bobbitt's theory of constitutional law: that the law is ultimately indeterminate, that there are different ways of making valid legal arguments and that these modalities can conflict, and that this is an acceptable, nay, indispensable part of our legal system because it allows us to choose. And that choice, between different possible legitimate ways of resolving a case, cannot help but be a place where conscience enters the legal system. For Bobbitt, this is the whole point.

In 1972, Harry Blackmun thought he didn't have a choice--or rather, he thought he had one choice that was easy and another one that was correct. But, fortunately, we live in a constitutional system that does make some room for conscience and for moral choice. And when we make those moral choices, when we follow our conscience in choosing between two visions of the law, of course those choices will feel easy. It should always feel easier to follow conscience than to disregard it. But just because it is easy doesn't mean it isn't also right.

Just ask Justice Blackmun.


*No, not that kind.

For the Record

Mike Piazza made his MLB debut in 1992, and played in 1912 games until his retirement after the 2007 season. Over his 7745 plate appearances, he had 2127 hits, including 344 doubles and 427 home runs, and drew 759 walks against 1113 strikeouts, good for a batting line of .308/.377/.545. That gives him a wRC+ of 140. He drove in 1335 runs and scored 1048. Piazza was a catcher for at least part of 1630 of those games, 1602 of which as the starting catcher (the rest of his time split between first base and the designated hitter role), and while his 23% caught stealing mark was well below the league average of 31% and he wasn't the world's best pitch-blocker either, he is thought to have been one of the best catchers at history in framing pitches to produce extra called strikes, and his pitchers loved throwing to him. Add it all up and Piazza was worth 59.4 bWAR and 63.5 fWAR, the sixth- and fifth-highest marks all-time for a catcher, respectively (in both cases virtually tied with Yogi Berra). Versus a more stringent baseline, Piazza put up 35.7 bWAA and 38.4 fWAA*, and during the productive portion of his career, from 1993 through 2003, he accumulated 38 bWAA and 41.2 fWAA. Piazza also hit .242/.301/.458 over 133 post-season plate appearances, hitting six home runs and eight doubles and racking up 15 RBIs and 14 runs scored, and leading the New York Mets to the 2000 World Series with a monstrous .412/.545/.941 batting line in the NLCS and put up a .636 slugging percentage against the Yankees. Earlier today, in his third year on the ballot, Piazza received votes from 69.9% of Hall of Fame voters, just shy of the 75% necessary for enshrinement.

Craig Biggio made his MLB debut in 1988, and played in 2850 games until his retirement after the 2007 season. Over his 12504 plate appearances, he had 3060 hits, including 668 doubles and 291 home runs, and drew 1160 walks against 1753 strikeouts, good for a batting line of .281/.363/.433. That give shim a wRC+ of 115. He drove in 1175 runs and scored 1844. He also stole 414 bases, and was caught stealing 124 times. Like Piazza he came up as a catcher and caught in 428 games, but moved off the position. Biggio spent 363 games in the outfield but the vast bulk of his time at second base, appearing there in 1989 games. Though he won four Gold Gloves at second base from 1994 through 1997, available defensive metrics view him as having been mediocre at every position he played. Add it all up and Biggio was worth 65.1 WAR (per both sources), the twelfth- and tenth-highest totals for a second baseman ever, respectively. He accrued 28.7 bWAA and 24.3 fWAA, and during the productive portion of his career, from 1989 through 2001, he accumulated 35.6 bWAA and 30.0 fWAA. He also hit .234/.295/.323 over 185 post-season plate appearances, hitting two home runs and nine doubles with 11 RBIs and 23 runs scored, and was part of the 2005 Houston Astros team that made it to the World Series. (Biggio hit .295/.343/.377 in that post-season.) Earlier today, in his third year on the ballot, Biggio received the votes of 82.7% of the voters, and will therefore be inducted into the Hall of Fame later this year.

Mike Piazza was a better baseball player than Craig Biggio. This is, I think, incontrovertible. Piazza was the undisputed best-hitting catcher of all time. Biggio was a decent hitter and a decent baserunner, and maybe a decent fielder if we believe the people voting on Gold Gloves (though not if we believe the admittedly fairly primitive defensive metrics--in fact, both FanGraphs and Baseball-Reference have Biggio with more negative defensive value at his positions, and at less valuable positions), but nothing special in any regard. But Biggio wasn't a catcher (or at least, unlike Piazza, he had to stop being one early in his career), and so he played a lot more games than Piazza and stuck around long enough after he was still good to get 3000 hits. Also, because he wasn't renowned for his power, he manages to escape the pall of the Steroid Era, which Piazza apparently doesn't despite the abject lack of anything remotely resembling evidence that he cheated. There is a cogent argument that Craig Biggio should not be a Hall of Famer. There is no cogent argument that Mike Piazza should not be a Hall of Famer. For at least a year, Biggio but not Piazza will be in the Hall. That's absurd, and the writers had better not make the travesty last any further years.

Piazza 2016!



*FanGraphs does not actually give a Wins Above Average statistic, but it gives Runs Above Average statistics for the four major components of WAR (hitting, baserunning, fielding, and position), and I calculated the listed figures from those.

The Civil War Continues

In 1866, Congress proposed the Fourteenth Amendment, Section 1 of which was designed to force the states, and in particular the Southern states, to recognize equal civil rights for all, and in particular for the newly freed slaves. That Section, which is unambiguously the most important part of the current Constitution, has four operative provisions. The first overturns Dred Scott v. Sandford and declares that, yes, African-Americans are citizens of the United States. The second prohibits states from violating the privileges or immunities of American citizens. The third prevents them from depriving anyone of life, liberty, or property without due process of law, and the last requires them to provide the equal protection of their laws. These four provisions are, in essence, the terms of settlement of the Civil War.

And in that settlement, as it was originally supposed to work, it was the first two Clauses that were supposed to do most of the work of guaranteeing substantive legal equality. After all, if blacks are citizens and you can't violate the rights of citizens, well, that sounds like black people have rights. Alas the Court has basically pretended that the second provision doesn't exist and that the first one has only a narrow technical meaning rather than a richer substantive one. As a result, the last two provisions are carrying a lot of weight they weren't originally meant to; the Equal Protection Clause in particular is the central doctrinal lynch-pin for just about all of the Court's equality jurisprudence. But the reason why it's there at all, back when they thought the Privileges or Immunities Clause was a thing, was because the Privileges or Immunities Clause addressed itself only to legislatures. But everyone knew that a Southern state could write the world's most even-handed, non-discriminatory legal code and yet legally entrench massive racial oppression, by the simple device of not enforcing those equal laws equally. The paradigm example of this would be a Southern state simply not punishing people who murdered black people.

Hmmm, where have I heard that before? Or, rather, where have I heard that since?

The thing about the Civil War is that it never really ended. We stopped having battles with armies but the central question that the Fourteenth Amendment was meant to settle as the terms of the peace, the question of whether black people are full and equal members of American society, has never quite been resolved. And not just legally: Michael Brown and Eric Garner are just among the latest Civil War casualties. And the failure to punish their killers isn't just racism, it isn't just institutionalized racism, it is quite literally unreconstructed institutional racism, in the very precise sense of being the exact problem that the key Reconstruction Amendment was meant to eradicate. Having this not happen is what we fought that war over. And that means we're still fighting.

The Rationalization of the United States Senate

There's an interesting thing about the Democratic Senators who were defeated for re-election last night, or who retired and saw their seats taken by Republicans: they were almost exclusively from red states. Kay Hagan of North Carolina. Jay Rockefeller of West Virginia. Mary Landrieu of Louisiana. Mark Begich of Alaska. Mark Pryor of Arkansas. Tim Johnson of South Dakota. Max Baucus of Montana. Only two came from "purple" swing states, namely Tom Harkin of Iowa and Mark Udall of Colorado, and in Colorado's case it has only recently started swinging. The result is that the losses tended to be concentrated among the more moderate Democrats, and therefore the Senate Democratic caucus which remains is more ideologically consistent than the current one.

Consider the following maps. First, here's the Senate on the eve of the 2006 elections:

Now here's what the Senate will look like next January:

That second map looks a lot more like your average Presidential election, doesn't it? Note that these Senates have similar numbers of Democrats, 45 in 2005 and 46 in 2015 (probably). But we've gained one net Democrat in Maine, New Hampshire, Rhode Island, Pennsylvania, Ohio, Minnesota, New Mexico, and Oregon, plus two new ones in Virginia and a gain in Missouri that's kind of anomalous for these purposes. We've lost, on the other hand, Democrats from Louisiana, West Virginia, North Dakota, South Dakota, Nebraska, and Iowa, along with anomalous losses in Wisconsin and Illinois and the loss of both seats in Arkansas. Almost all of that has had the effect of lining the two parties up better with the real political/cultural dividing-lines in the country.



And in 2016, the Democrats will have pick-up opportunities that are mostly on the Democratic side of this line. Pennsylvania, Illinois, Wisconsin, and New Hampshire are probably their best chances to gain seats. Those four would give us a 50/50 Senate that would basically be blue states in blue, purple states in purple, and red states in red. Really the only exceptions would be that Republicans would have a Senator from Maine and that Democrats would have Senators from West Virginia, Montana, and North Dakota. (Arguably Indiana is also an anomaly, but since Obama did win it one time it's hard to deny it its place among the vaguely purple-ish states at least.) Perhaps Democrats might also deserve one of North Carolina's two seats given that they have been competitive there of late, but Richard Burr should be somewhat vulnerable as well so that could happen. It's not impossible that Iowa will be competitive, or that Democrats could manage to take the second seat in Ohio. All of this would be entirely consistent with the basic geography of American politics.

And what all of this means, I think, is that if Democrats have a 2016 that's as fun as it should be, their restored majority caucus should be a lot more ideologically cohesive than their current one. So even though it will probably be smaller, say in the 51-53 range instead of the expiring 55, the median Senator may not have gotten much more conservative, and might even have moved somewhat to the left.

Of course, until then we have a median Senator who comes from the interior of an extremely cohesive Republican caucus, but it's not like the next two years were gonna be big ones for legislation anyway.

World Series Win Probability Leaderboards, Final

Madison Bumgarner, ladies and gentlemen. Madison Bumgarner. I have nothing more to say.

World Series Win Probability Leaderboards, Update #15

So, yeah, I meant to get this written before it was actually the middle of Game 7 already. I failed. Fortunately it's still early in Game 7 so there's not too much to say about how I already know this will change tomorrow. But it will change, probably a lot. Because tonight we get a game with a Leverage Index of 100%. But first, the penultimate update of the post-season. Hopefully this will be slightly more terse than my other updates.

World Series Win Probability Leaderboards, Update #14

Remember when I was all excited about the double-digit WSWPA swings caused by Ryan Vogelsong, Brandon Finnegan, and Pablo Sandoval in Game 4? Yeah, well... They don't seem so impressive anymore. There was surprisingly little movement last night, because one dude sucked up basically all the WPA. People not named Madison Bumgarner didn't really do that much.