The Yin Blog

How do you measure the "smartness" of really smart people?

Lots has been written about the letter that Harvard law prof Laurence Tribe sent to President Obama last year, urging the President to pick Elena Kagan and not Sonia Sotomayor or Diane Wood to replace David Souter on the Supreme Court.  I found the following assessment in the letter quite striking:

Diane Wood -- who is more powerful intellectually than Sonia Sotomayor or any of the others mentioned as plausible prospects at the moment with the sole exception of Kagan, who is even smarter -- would be likely to serve nearly a decade less than Elena . . . .

It's safe to say that being smart is a valuable trait for a Supreme Court justice.  It's less clear that additional units of smartness continue to add value once you're beyond a certain level of smartness, which one would have to stipulate that Sotomayor, Wood, and Kagan all surpass easily.  It seems unlikely that additional smartness is of increasing linear value, and even less likely that it's of increasing  exponential or geometric value.

But putting that aside, I am curious as to the methodology that one would employ to determine who is smarter between Kagan and Sotomayor, or Wood and Sotomayor, or Wood and Kagan.  This isn't like asking, "Who is the best baseball player today?," for which there at least are numerous relevant statistics that can get crunched into a single stat like "wins above replacement value" -- which is still subject to debate about its validity.  How "smart" someone is, is much more subjective.

It would be one thing for Tribe to opine on his perception of the relative intelligence between Kagan and, say, Kathleen Sullivan (also mentioned in his letter), since both were his students at one point.  Even then, one has to wonder whether being a student's professor provides enough context to assess how "smart" a person is, but at least there's some comparative basis there.  Although a statement like "X is the best student that I've seen in my N years of teaching" has some possibility of error as well, I'm at least using the same basis for measuring the students in the comparison.

Sotomayor, however, went to Yale for law school, not Harvard; and Wood went to Texas for law school.  Therefore, Tribe didn't have either one for a student, and can't compare them on that basis with Kagan.  Both have been judges for a long time, with many judicial opinions, and as a constitutional law expert, Tribe is certainly capable of evaluating the quality of those opinions.  And he no doubt has had interaction with the two of them in various fora.  But is that really enough context to make a sweeping statement along the lines of who is more powerful intellectually?

To be sure, I'm not suggesting that one can opine about one's perception of relative intelligence only when you have seen the candidates in the exact same context.  When I was clerking, I started to develop a sense of which judges I thought were pretty sharp even though I wasn't clerking for them.  But that's making a broad distinction, in the sense of sharp or not sharp, and not something as fine-tuned as "the #1 smartest judge on the 9th Circuit"; "the #2 smartest judge on the 9th Circuit"; and so on.

For what it's worth, elsewhere in the letter, Tribe does raise a number of points in Kagan's favor -- "an appealing public persona," "a well-grounded image of justice as fairness and of law as common sense"; "dynamic personality"; and "extraordinary diplomatic gifts for inspiring confidence"; and "best Harvard dean" in Tribe's time at the law school. The letter seems more persuasive and sensible when arguing these positive traits of Elena Kagan than when engaging in the esoteric and probably meaningless exercise of whether supersmart person #1 is smarter than supersmart person #2.

Defining yourself into an extreme position?

A Portland resident writes in today's Oregonian:

Either Chris Dudley is or is not pro-choice. To be pro-choice a candidate for governor must support laws that assure full access to reproductive health services. Dudley says he is open to restrictions to these services. He says he is pro-choice, yet he says he opposes age-appropriate, scientifically accurate health education. Dudley is not pro-choice. (emphasis added)

Is this really how being "pro-choice" is defined, that you cannot support any restrictions on the right to abortion?  People are free to define their terms however they like, but requiring rejection of any restrictions on abortion as the definition of "pro-choice" would make an overwhelming majority of the U.S. population not-pro-choice.  According to this polling report, which includes 2010 surveys, anywhere from 60-66% of the population would be pro-life under this letter writer's definition.  On the other hand, if one defines pro-choice more broadly as supporting the right to abortion in at least some circumstances, then the picture is flipped: only 18-26% of the population would be pro-life.

It seems to me that in the rhetorical battle over abortion rights, it's better to be inclusive rather than exclusive.  Saying that nearly 4 out of 5 people are pro-choice, even if it's an understanding of choice that admits the possibility of some restrictions, sounds a lot better than saying only 30-40% of people are pro-choice.

Thoughts on some of the 2010 Oregon ballot measures

One of the not-so-pleasant things about moving back to the West Coast is the fact that my voting ballot is once again clogged with all kinds of ridiculous voter-sponsored initiatives.  At least here in Oregon there aren't competing ballot measures on the same issue, as happened frequently in California when I was living there.

I presumptively vote against ballot measures unless there's some compelling reason to vote otherwise.  That's because, as bad as politicians tend to be, I still believe in the republican form of government, where we elect representatives and hold them accountable for what they legislate and don't legislate.

In any event, here are some interesting ballot measures this year:

Measure 73 would raise the mandatory minimum prison for certain repeat (i.e,, 4 time) sex offenders from 70-100 months to 300 months; and set a minimum 90 day sentence for the third DUI conviction.

As a parent, I'm concerned about sex offenders, but 70-100 months is a pretty long time.  Recidivism rates for sex offenders are, I recall from editing a classmate's law review comment, about average among all criminals, so there doesn't seem to be any special need to add to the sentence in terms of protecting society, at least, not relative to financial crimes, which do have a higher recidivism rate.

I have even less tolerance for repeat drunk drivers, and I do think Oregon's sentences are absurdly low.  If you are racking up a third DUI, it's pretty good evidence that you cannot control yourself and you are a menace to society; after all, the difference between DUI and vehicular manslaughter is largely that someone was unlucky enough to be in the way in the latter case.

Yet . . . Measure 73 would require that we increase prison capacity to house these repeat sex offenders and repeat DUIers.  Either we build more prisons and hire more prison guards -- a dubious proposition given the massive budget deficit that Oregon already faces -- or we end up releasing existing prisoners early to make room for the new prisoners.  I would be on-board with giving prison time for repeat DUI offenders as part of a rational re-allocation of prison time across the board for all crimes.  As one of my colleagues puts it, prison space/time should be treated as a scarce resource.  We need to consider which crimes merit use of that scarce resource.  But I'm not going to vote for simply increasing demand on that scarce resource.

Measure 74 is some kind of a stealth marijuana decriminalization proposal.  In the abstract, I think I would support a measure calling for outright decriminalization of pot, treating it like alcohol and tobacco as an adult-only product subject to high regulatory taxes.  The problem with Measure 74 is that it proceeds along with the Oregon/California fiction that all of the pot to be legalized under its terms will be for "medicinal" purposes.  I have no personal experience/knowledge, but I accept the assertions of some medicinal pot use proponents who say that it is their only effective pain relief medication.  The problem is that I highly doubt that the vast numbers of Oregon residents who currently have medical cards to buy pot for such uses actually fall in that category.  The problem, of course, is that this is the only avenue for getting pot legally in the state.

Worse yet, Measure 74 establishes a "low income cardholders' assistance program."  Wha??  Now we're going to be subsidizing poor pot smokers?  To be fair, the measure envisions that the subsidies will be paid for through the sale of marijuana to other more affluent cardholders.  Nonetheless, I'm concerned that that firewall will not hold.  If "every" cardholder needs pot for medical purposes, and not enough money is generated to cover the subsidies, isn't it plausible to believe that there will be pressure on the state to provide funding for people who need their "medicine"?

I would much rather vote on a straight decriminalization proposal, which would reduce the impetus for people to claim "medicinal need" for pot.  That in turn would allow a more rational look at how to subsidize people who truly need pot for pain relief and who can't afford it.

Measure 75  would allow a private casino to be built in Oregon.  Color me skeptical on the claims that this will bring in money and revitalize Oregon's economy.  I can see how the casinos in Las Vegas actually help Nevada's economy, because it's hard to see why people would otherwise go visit Vegas.  The casinos make Vegas a big vacation destination, just as Disney World undoubtedly boosts central Florida's economy.  I do not see a casino in Oregon as bringing visitors to Portland.  Who would come to visit Oregon because of a casino?  That's not to say that someone already planning on visiting Oregon might not also stop in the casino, but that's not someone you're getting to visit because of the casino.

So who are likely to be the bulk of the patrons?  Local Oregonians (and I suppose, some southwest Washington residents).  So we're going to have the problems associated with gambling, but we're not really going to reap the benefits of driving much external traffic.  No, thanks.

The Multmomah County Charter Amendments include a number of potential changes to the county rules.  I like the one that says if you are a County Commissioner and you move out of Multnomah County, you are deemed to have resigned your position.  The least we could expect is that our county commissions actually live in the county so that if they vote for big property tax increases, or other painful county laws, they are subject to them too.

Ann Althouse takes Obama to the woodshed on DADT

Ouch:

But, as the linked blog post (by Jane Hamsher) indicates, he doesn't have the votes in the Senate and he hasn't put the weight of the presidency behind getting Senators to vote for repeal. He seems like he's using the statute as an excuse, so that he can play both sides on this issue. I understand the political motivation for that, but it amounts to breaking his promise to end DADT.

That's just an excerpt.  There's a lot more that Prof. Althouse criticizes effectively.

At one point, President Obama had 60 votes in the Senate and a majority of the House.  He could have tried to push through statutory repeal of DADT then.  That he chose instead to push TARP, health care reform, and financial regulatory reform was neither unreasonable nor irrational.  But it does suggest a certain hierarchy of issues, and gay rights was not at the top of that hierarchy.

We're #2!

Forbes ranks Portland as the second safest city in the U.S. based on violent crime and traffic fatality stats.  

To be fair, Chicago wasn't included in the study because it did not provide complete crime data to the FBI, whose ranking was used.  I think, however, I'm on safe grounds in assuming that Chicago would not have come in ahead of Portland.

Does Dahlia Lithwick find President Obama's view of the courts and Congress to be weird?

Last month, Slate editor Dahlia Lithwick criticized Senate candidate Christine O'Donnell's notion that legislators should determine for themselves if they believe pending legislation to be constitutional before voting for it:

I have been fascinated by Christine O'Donnell's constitutional worldview since her debate with her opponent Chris Coons last week. O'Donnell explained that "when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional." How weird is that, I thought. Isn't it a court's job to determine whether or not something is, in fact, constitutional? And isn't that sort of provided for in, well, the Constitution?

Hmm.  The Obama Administration hasn't made a decision yet on whether to appeal a district court ruling that the "don't ask, don't tell" policy is unconstitutional.  But it sounds like it will, because "President Barack Obama has made it clear he wants Congress to repeal the policy -- rather than having it blocked by the courts."

This is entirely consistent with the Obama Administration's decision to appeal a different district court's ruling that the federal Defense of Marriage Act was unconstitutional:

Although Obama opposes the law, a Justice Department spokeswoman said that the administration was defending the statute because it was obligated to defend federal laws when challenged in court.

But wait, "don't ask don't tell" is essentially codified at 10 USC s 571, which makes it a federal statute.  So presumably the same principle applies -- the Justice Department must defend it.

In any event, notice how "weird" this all is under Dahlia Lithwick's mindset.  President Obama disagrees with "don't ask don't tell" and with DOMA.  Courts have come to his rescue and struck both of those down.  Yet, President Obama opposes what the courts have done because he thinks Congress should have the last word.

True, there's a difference -- he wants Congress to decide on a policy basis, not because it thinks the statutes are unconstitutional.  But to take the decision away from the courts and to give it to Congress . . . doesn't that imply that he either disagrees with the merits of the decisions of the courts, or that he believes in legislative supremacy over the courts? That is, it sounds like President Obama is saying to the federal courts, "You may think these are unconstitutional, but these decisions are for us politicians to make, not you judges."

Obviously, I think Lithwick's criticism of O'Donnell is silly.  Marbury v. Madison does (more or less) stand for the proposition that when the Supeme Court strikes down a statute as conflicting with the Constitution, the political branches can't undo that decision except by constitutional amendment.  It does not, however, stand for the proposition that the legislators are thereby freed from the obligation or powerless to make their own determination of whether to vote in favor of legislation they believe to be constitutionally invalid.

Bob Woodward on extraordinary rendition and assurances of non-torture

Rendition is the use of any non-extradition process to obtain custody over a person in a foreign jurisdiction.  Kidnapping a person from, say, Mexico to bring them to stand trial in the United States is a form of rendition.  Extraordinary rendition is a subset of rendition where the person is captured from one foreign country to be delivered to another foreign country.

The Clinton Administration started using extraordinary rendition to send suspected terrorists to other countries, generally to be prosecuted.  George W. Bush's administration used it to send such unsavory persons to be interrogated by foreign governments.  Most of these governments were known to engage in very harsh interrogation tactics, if not torture (not to mention harsh punishments for convicted criminals).  Because the Convention Against Torture, which the United States signed, prohibits the sending of persons to other countries "where there are substantial grounds for believing that he would be in danger of being subjected to torture," U.S. practice has been to secure assurances that the persons being rendered would not be tortured.

I must admit that I have been skeptical about whether these "assurances" are at best pro forma and at worse orchestrated charades.  But there's an interesting passage in Bob Woodward's new book, Obama's Wars, where outgoing CIA Director Michael Hayden flips out after seeing nominee Leon Panetta imply in his confirmation hearings that the CIA had knowingly rendered suspects to be tortured.  Hayden gets word to Panetta that he had better "walk[] that sentence back tomorrow in his public testimony, or we will have the spectacle of the current director of the Central Intelligence Agency saying the prospective director . . . doesn't know what he's talking about."  Taken alone, that might be written off as just political butt-covering.

However, *before* delivering that message, Hayden -- according to Woodward -- checked with the counterterrorism center chief, who answered that the CIA always sought assurances.  Hayden pressed harder: "And beyond the assurances, you used all the tools available to an espionage agency to ensure they're living up --"

The counterterrorism chief reportedly responded: "All the time."  Woodward's narration indicates that this meant "the CIA was using spies and communications intercepts from phones, computers and room microphones to ensure foreign intelligence services were not torturing the suspected terrorists dispatched to them by the agency."

If Hayden were only interested in browbeating Panetta, that conversation would have been unnecessary.  Of course, one can argue about whether the chief misled Hayden, but it's hard to imagine that the chief and Hayden would have staged this private conversation just in case Woodward or some other reporter happened to ask about it two years down the line.  One can also dispute whether the monitoring steps are enough in reality to ensure that rendered suspects are not being tortured.  But there seems to be some objective evidence that the CIA went beyond pro forma assurances of no torture in connection with the renditions.

* All this rests, of course, on Woodward's reliability/credibility as a journalist.

Torture, reliability, and the Ghailani case

The Obama Administration's first prosecution of an al Qaeda suspect in a federal court ran into a serious obstacle yesterday when US District Judge Kaplan barred a key government witness from testifying, because the government learned of the witness only as a result of coercively interrogating Ahmed Khalfan Ghailani in a secret CIA prison.  The witness, Hussein Abede, allegedly sold the explosive TNT that Ghailani used to blow up the US embassy in Tanzania in 1998.

The legal issue is a variant of the fruit of the poisonous tree doctrine.  It's not just the evidence (or confessions) obtained illegally that are subject to suppression, but also potentially evidence that the government is directed to as a result of the illegal search or seizure.  The government has to show that the "taint" of the initial illegal search or seizure has been "attenuated."

In US v. Ceccolini, 435 U.S. 268 (1978),  the Court considered a somewhat analogous situation -- though minus coercion or torture.  There, a police officer violated the defendant's privacy rights by conducting a warrantless search of an envelope belong to the defendant.  Months later, another officer used the information obtained in that illegal search to interview a woman who eventually became a key witness against the defendant.  The Court denied the defendant's motion to exclude the woman, because:

Evaluating the standards for application of the exclusionary rule to live witness testimony in light of this balance, we are first impelled to conclude that the degree of free will exercised by the witness is not irrelevant in determining the extent to which the basic purpose of the exclusionary rule will be advanced by its application. This is certainly true when the challenged statements are made by a putative defendant after arrest, a fortiori is true of testimony given by nondefendants. 

The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness. Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And, evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live witness testimony than other kinds of. evidence. The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness' willingness to testify.

The difference is that in Ceccolini, the witness's identity was already known to law enforcement, whereas Abede was apparently unknown until Ghailani named him.  Thus, the government was unable to persuade Judge Kaplan that the "taint" of the coercive interrogation had been dissipated.

The consequences are severe, but that is true in any high-stakes criminal case in which a suppression motion is at issue.  If the judge's factual determination is that the taint of the illegal government conduct remains, then the doctrinal conclusion is suppression of the evidence/witness.

What is worth noting, though, is that in the debate over whether torture/coercion is justified, it's a common argument that torture is ineffective because people being tortured will say whatever they need to say to make the torture stop.  Therefore, the argument runs, torture is ineffective because it leads to unreliable information.  It's hard to dispute this as a general matter, particularly if what is being extracted is not actionable information, but an uncorroborated confession.  It's easy to imagine that a person being subjected to waterboarding will admit that he "did it" to stop the waterboarding.

But Ghailani's case suggests that sometimes coerced information may be reliable.  It appears that Abede was prepared to offer seemingly inculpatory testimony against Ghailani.  (Of course, if the government has roughed up Abede, that would be different.  But on the assumption that Abede has not been coerced or mistreated, he would be a reliably inculpatory witness.)  Because of whatever was done to Ghailani, he named Abede.  The government found Abede.  And Abede turned out to have relevant, probative information about Ghailani's alleged role in an act of terrorism that killed dozens of persons and injured hundreds of others.

To be clear, I am NOT arguing that Abede should be allowed to testify or that the discovery of Abede justified the coercive interrogation of Ghailani.  My point is more narrow: arguments against the use of torture, particularly in response to "ticking time bomb" scenarios, leave a gap to the extent they rely purely on the presumption of unreliability of information obtained through torture.  That presumption is a good argument against torture, but it fails in certain cases, including perhaps Ghailani's.  For those cases, the anti-torture position needs more deontological arguments (i.e., "it's just wrong").

Rating the 2010 TV remakes (Nikita and Hawaii 5-0)

Does Hollywood have any imagination?  It seems like many movies are sequels or remakes, and television is hardly immune to that syndrome either.

This fall, CW's "Nikita" is a re-imagining (the new term for remake that hopes to be different from the inspiration) of the excellent 1997-2001 USA Network series "La Femme Nikita," and CBS's "Hawaii 5-0" is a re-imagining of that same network's 1968-1980 series.  How do these rate?

To start off, let's look at what I consider to be examples of really bad and really good remakes.  "La Femme Nikita" started as a 1990 French movie directed by Luc Besson and starred a feral Anne Parillaud in the title role.  Although it was released here in the U.S., Hollywood decided to remake it just three years later, with Bridget Fonda as Nikita.  This was a really bad remake, mostly because it was essentially a copy of the original version with different actors.  Many scenes were shot identically.  I think the ending veered off a little but there was far too little imagination put into the remake.  Lesson: if you're going to do a remake, you have to have your own vision.

At the other extreme, the SciFi Channel remake of "Battlestar Galactica" turned a cheesy 1970s "Star Wars" rip-off into a dark, gritty, philosophical military thriller.  The end of the series got out of hand but was still way better than, say, "Lost"'s ending.  What made the new "BSG" so good is that the series creators took the starting premise of the original show and adapted it to the post-9/11 context in which the new series would be airing.  Characters were altered, radically in some instances, to suit the new storyline, even though some of these changes were controversial.

Hawaii 5-0

Since this debuted in 1968, I didn't really watch it first-run, though I may have caught some of the later seasons live.  It's known for (1) the opening theme music; (2) the Honolulu setting; and (3) the square jaw of lead actor Jack Lord.  Otherwise, it was a fairly standard police procedural.

The new version keeps the theme music and the Honolulu setting.  Lord has been replaced by CBS's favorite actor, Alex O'Loughlin, who previously headed two doomed CBS series ("Moonlight" and "Three Rivers").  The biggest change is that the previously all-male Five-O unit now has Grace Park as a fresh out of the police academy member of the team.  (Interestingly, Park is 36 but playing someone at least ten years younger.)

This "Hawaii 5-0" feels modern, but it's mostly in the production values.  The pilot episode introduced the four main characters and showed how they got together, but what might have been a long-running character motivation arc (the bad guy who killed O'Loughlin's dad) is resolved quickly.  Thus, it appears that the episodes will be mostly self-contained, with occasional reference to family matters (Scott Caan's daughter, etc.).

Thus far, I've enjoyed "Hawaii 5-0" and have kept the Season Pass on my TiVo.  It's not what I would consider great TV, or even thought-provoking, but sometimes comfort food is just what you have a taste for.

Nikita

More ambitious is CW's "Nikita," starring Hong Kong actress Maggie Q (who had a minor role in "Mission Impossible 3").  In the USA Network version, Nikita was a street loser who was convicted of murdering a police officer (but perhaps she was framed?) and sentenced to die.  But instead of being executed, she was taken to a top secret supra-national antiterrorism organization called Section One.  There, she was trained as an elite counterterrorism operative and sent on deadly missions around the world.  What made Section One stand out compared to earlier incarnations of this sort of idea (like "Mission Impossible") was that Section One was ruthless in its missions.  Torture was routinely inflicted on captured bad guys to get information, innocent people were occasionally sacrificed for the greater good, and weak operatives were "cancelled" (i.e., killed) or put in "abeyance" (i.e., sent on suicide missions).  Nikita wanted to keep her humanity, but Section One took its toll on her.

(In case it isn't already obvious, the people behind the original "La Femme Nikita" TV series were the same ones who created "24" -- and those two series shared many of the same actors.)

The CW "Nikita" is definitely not a copy or continuation.  Here, Maggie Q's Nikita has escaped Division (not Section One) and is now intent on destroying it.  Most of the same characters are in place, at least under the same name -- Nikita's trainer and romantic interest, Michael; tech nerd Birkoff -- but they too have been changed in personality.  Birkoff is smarmier and has a nasty streak; Michael is even more amoral and decidedly less competent; and so on.  There's a new Division recruit named Alex (female) who serves the purpose that Nikita did in the original series, as the entryway into the world of Division.

All this is to say that the new version is quite different from the old version.  But is it good?

Well, it's still on my TiVo list, but it's definitely lacking something.  In the USA Network version, Section One posed an interesting question that's since been given more prominence by "24": should mega-terrorism be stopped by any means necessary?  The leaders of Section One ordered the operatives to do horrible things, but it was never out of a sense of personal corruption.  In the CW version, however, Division does not seem to serve any benevolent purpose.  That makes it easier to root wholeheartedly for Nikita to succeed without stopping to ask whether the world would be better off with Division.  I like my TV shows to have murky ambiguity, not to resolve into clearly good or bad sides.