Continuum Thinking, Disjunction, and ICE

Curmie doesn’t go this far, but...

Curmie was extremely fortunate throughout his career to have encountered a number of extraordinary university lecturers.  At, or at least very near, the top of the list was Ron Willis, who was the professor of record for an Intro to Theatre class for which Curmie was a Graduate Teaching Assistant for a couple of years in grad school.  Ron would lecture to a couple hundred undergrads on Mondays and Wednesdays, and then the GTAs would lead discussion groups of 20 or 25 students each on Fridays.

What made Ron special wasn’t merely his intellect, his grasp of the subject matter, or even his wit, all of which were on ample display every time he stepped up to the lectern.  Rather, it was his insistence on what is too often trivialized as “thinking outside the box.”  The phrase is cliché; Ron’s lectures never were.  One of the basic concepts Ron emphasized keeps coming back into Curmie’s consciousness: the difference between disjunctive and continuum thinking.  It is hardly a novel idea, but Curmie hadn’t seen it applied quite so self-consciously or specifically outside the realm of probability theory. 

If the local high school basketball team takes on an NBA team (that’s actually trying) and loses by 15 points, they’ve still lost by double digits (disjunctively) but played extraordinarily well (on a continuum for high school teams).  Of course, whereas continuum thinking is to be encouraged in general terms, many, even most, situations will eventually require a disjunctive solution: we watch this movie or that, we try to avoid traffic by going a little out of our way or we don’t, and so on.  You can’t cast 62% of your vote for Candidate X, 35% for Candidate Y, and 3% for that interesting third-party candidate who’s kinda crazy but has this one really cool idea.

Real-life problems, then, generally involve some level of… “compromise” isn’t quite the right word.  “Accommodation,” perhaps?  Back in the Dark Ages when Curmie was first of voting age, he sometimes found two candidates roughly equally appealing: X is better here, but Y is better there.  Now, of course, neither candidate is appealing, but they’re roughly equally unappealing. 

The key is getting the order right.  First the continuum, the weighing of all the pros and cons, then the disjunctive decision.  Reversing that process leads to confirmation bias.  That is, if we decide that a particular point of view is correct, we inevitably search out “evidence” that supports our conclusion and ignore that which might contradict that impression.  We must remember that pols and pundits lie.  All of them.  Even the ones on “our side.”

Which brings us to a discussion of ICE.  Curmie doesn’t purport to speak for everyone whose politics are somewhere to the left of those of Louis XIV or Francisco Franco (Curmie antiphrastically avoids mention of that dude with the bad haircut and the funny mustache).  That said, he understands two things: that in the modern age some form of border patrol that seeks to protect the nation from those who actually are “the worst of the worst” is a net positive, and that some of the testimonials coming out of Minneapolis right now (and elsewhere in weeks past) may well be exaggerated or even falsified.

Let’s take the second point first.  What we face here is the possibility that the anti-ICE faction might not be providing objectively accurate information.  Indeed, much of what we see and hear comes from neighbors (and therefore friends?) of victims of ICE brutality, and from left-leaning media outlets.  Does that make the reportage suspect?  Maybe.  But the alternative is to believe the stories ICE and the Trump administration are spinning.  

We saw the murder of Renee Good.  We saw ICE deny a doctor the opportunity to attend to her.  We saw the priest get pepper sprayed for no reason.  We saw the veteran dragged from her car.  We saw the invalid dragged from hers.  We saw the protester sprayed in the face when he was already in custody, face down on the ground.  We saw the 5-year-old kids (yes, plural) in custody.  We saw the old man get tackled in the hallway outside the office where he was checking in on his application for citizenship.  We heard the police chief tell us that his off-duty BIPOC officers were harassed by ICE.

And we’ve seen and heard Trump, Vance, Bondi, Noem, Bovino, Miller, et al., flat-out out lying about what happened.  Every.   Single.  Time.  And you know you we haven’t heard from?  Anyone on-site who witnessed these events live and can corroborate ICE’s narrative.  Anyone except ICE agents themselves, that is.  Is it possible that some of the specifics of some of the cases have been exaggerated or even fabricated by the left?  Curmie would say that’s not merely a possibility, but a likelihood.  Alas, that’s rather the way of the world.  And certainly the technology exists to make something appear to have happened when it didn’t.  It’s also true that people like Gavin Newsom seem much more interested in their prospective presidential runs in ’28 than in actually solving problems in the here and now.

So yes, there’s a continuum at play here.  We ought to be careful about what we believe.  One side might be lying.  The other side definitely is.  The only thing we should believe from anyone associated with ICE is when they say they “don’t care.”  Don’t care that you’ve done nothing illegal.  Don’t care that you’re a citizen.  Don’t care that you’re an asylum-seeker and can prove it.  Don’t care that you’re a doctor.  Don’t care that you’re a veteran.  Indeed, don’t care about literally anything but their presumed power.  They lack empathy, actual patriotism, humanity.  Oh, and courage.  Mustn’t forget that.

But let’s return to the other part of this analysis.  If, as those on the right would have it, ICE were detaining the “worst of the worst,” then the opposition would be significantly weakened.  And it is true, apparently, that a fair number of unsavory folks have indeed been apprehended: murderers, rapists, robbers, drug dealers, and the like.  But the percentage of detainees who fall into one of those categories is far too low.  It’s also important to remember that even accused murderers have 1st, 4th, 5th, and 14th amendment rights.  ICE doesn’t care.  Curmie does.

Curmie wrote about a variation on the theme back in 2012 when New York Mayor Michael Bloomberg was all about stop-and-frisk measures despite the fact that they were “successful” only once in every 879 stops, and that young black or Hispanic males were more than eight times more likely to be stopped than their percentage of the population would indicate.  Curmie wrote, 

If you search literally everybody without any provocation, chances are pretty good you’ll catch someone with a gun or drugs or an outstanding warrant. But the price is too high except in the McCarthyite universe inhabited by arrogant buffoons like Mike Bloomberg. Really, if the price of “law and order” is a state in which the authorities can do whatever the hell they want, I’ll take a little risk.

That’s still true.  By the way, how does one prove citizenship?  You can get a driver’s license without citizenship, after all.  A voter ID card, I suppose?  Curmie has never carried his except literally on election day, or his passport except heading to or from an international airport.   And if you happen to be on the other side of the state (or the other side of the country) from where those documents are stored (in Curmie’s underwear drawer, for example), there’s not a lot to be done to establish your right to be in this country.  

Curmie, being white (well, there’s a little First Nations heritage in there, but not enough that anyone would even suspect that by looking at him) and having English as his native language, is less likely than some of his friends are to be hassled by a goon squad that is longer on testosterone than on brain cells.  But “less likely” isn’t good enough, and what other folks, especially those who “look Hispanic,” have to deal with is absurd… or, rather, it would be if it weren’t so real.  Curmie has been loath to say this, at least this frankly, for the past year, but cannot now come to any conclusion other than that ICE is not merely primarily about the racism, but indeed virtually exclusively so.

Curmie does not argue here that there should be “no raids, no detention, no deportations,” as that one protester’s poster in the photo above reads.  But it is unreasonable at best to allow anonymous, largely untrained, “agents” to be able to do whatever they want, without warrants, without even probable cause (or at least without what any reasonable definition of probable cause would be), without oversight.  Take away their masks, their guns, and their ability to commit violence.  Make them work with local police: N.B., this does NOT mean that they’re the ones in charge.  No one can be detained if they are in fact obeying the rules—applying for asylum, seeking work permits, etc.  Any arrest without a judicial warrant or demonstrable exigent circumstances is felony kidnapping.  Make ICE follow the law, and Curmie has no objection to their continued existence.  But the current structure and leadership cannot endure.

So…  Yes, there have been some violent criminals taken off the street by ICE.  Yes, some of the allegations against them are no doubt inflated.  But ultimately the choice is disjunctive: we fund and tolerate ICE or we don’t.  Captain Bonespurs and the Gravy Seals would make a pretty good band name, but it’s no way to run a free country.  Time to melt the ICE.

A Few Thoughts about Empathy

Curmie came across the meme you see here a few days ago, and was struck by its timeliness.  For one thing, it provides a stark contrast between the ideology of MAGA and of one of the seminal thinkers of the twentieth century.  If nothing else, there are few if any better representations of what Arendt called “the banality of evil” than the Pompous Plutocrat, or at least his acolytes. 

Musk is no deep thinker; his weltanschauung is founded on little but greed, hypocrisy, and a little warmed-over Nietzsche, who was at least honest enough to state forthrightly that he was in fact arguing against the fundamental principles of both classical and Judeo-Christian thought.

Musk is, in a word, sadistic.  Nothing makes him happier than hurting or humiliating someone who isn’t like him: those who are interested in literally anything but the accumulation of material wealth or political power, those who care about justice or truth or even security, those who think elections are not commodities to be bought and sold.  Unfortunately, Donald Trump, who used to be simply oblivious to the damage to others (or to the country) if it benefited him personally, is now trending towards Muskian malevolence.

But this essay isn’t about Trump or Musk or anyone else in that evil cabal.  It’s about us.  By “us,” here, Curmie is referring to the overwhelming majority of the folks who will read this blog: people who, like Curmie, would vote for the Sauron/Voldemort ticket before they’d vote for the Manchurian Cantaloupe. 

There are some readers, of course, who may have even voted for Trump, seeing him as the lesser of two evils.  Let’s face it, Kamala Harris was, to put it kindly, way over her head, and the unwillingness of those in the know to convince Uncle Joe to step aside when his mental decline became obvious does not speak well of the leadership of the Democratic Party.  Nor does the anointing of Harris as the nominee without any opportunity for the party faithful to have any say at all in the process.

Curmie doubts that many actual MAGAs will find their way here, but they are welcome, and if the have arguments superior to those one would hear from a fourth grader, Curmie would very much like to hear them. 

In the piece linked above, Curmie wrote “Is it likely that a second Trump presidency would destroy the democratic (lower-case ‘d’) principles on which the nation was founded?  ‘Likely,’ no; ‘plausible,’ yes.”  Curmie miscalculated.  Less than two months into this regime, we’re already past “likely” and into “probable”; the hope is to prevent “inevitable.”

It’s not worth attempting to enumerate all the stupid and authoritarian actions undertaken by this administration.  Let’s just say that if it seems to you, Gentle Reader, that every fucking stupid idea Trump yammered about in the campaign has already been put into action and everything actually positive he said he’d do is already a broken promise… well, then you and Curmie are on the same page.

But.  And as they used to say in burlesque houses, it’s a big but.  It used to be that lefties were very much proud of the fact that, unlike the nonsensical proponents of “owning the libs,” we actually cared about everybody.  It is certainly true that a lot of MAGAs share at least some of the lack of empathy embodied in their heroes: they’re all for slashing budget lines that don’t affect them personally.  That said, a lot of them are feeling the pinch now.  They were taken in by a grifter and, unlike some diehards who still think Trump is a hero (and a fair number of GOP pols who know better but pretend not to), they’re regretting their foolishness.

They got suckered.  That happens to everyone.  All of us have voted for someone who turned out to be an idiot, or bought a stock that proceeded to plummet in value, or taken any kind of stance we later wish we hadn’t.  Trump is a skilled and experienced con man, and his romanticized vision of American exceptionalism has its superficial appeal.

It’s true, of course, that those folks bear no little responsibility for the mess we’re in right now.  Still, all the jokes about face-eating leopards and the like are ultimately counter-productive.  Real people, our fellow travelers, are hurting, and they’re openly regretting their past actions.  This part, the realization, should be applauded.  Yes, they made a mistake, but now they’re trying to set things right to the extent that they can.

We ought to be applauding their new awakening, but too many of us aren’t.  Humiliating them because they voted for the wrong candidate and now have come to realize that fact is akin to teasing the fat guy at the gym.  It accomplishes nothing good, and in fact discourages others from also speaking out.  Arrogantly strutting our perceived ethical and intellectual superiority succeeds only in alienating erstwhile Trump supporters.  We come off as assholes.  That’s not to anyone’s benefit.

A variation on the theme can be found in the brouhaha about Slava Ukraini protesters in Cincinnati.  JD Vance tweeted, “Today while walking my 3 year old daughter a group of ‘Slava Ukraini’ protesters followed us around and shouted as my daughter grew increasingly anxious and scared… if you’re chasing a 3-year-old as part of a political protest, you’re a shit person.”

OK, leaving aside the misplaced modifier (Curmie couldn’t resist pointing that out), this is an interesting tweet.  Is it possible that Vance made up the whole bit about his daughter being scared?  Absolutely.  Indeed, the protesters claim otherwise, also saying they happened upon Vance; they weren’t following him.

Vance is, to be sure, dishonest even by politician standards, and certainly not above the Elon Musk technique of using his kid as a human shield, albeit a little less literally.  There is, however, a video of a conversation between Vance and the crowd of protesters.  He is indeed accompanied by his daughter, although we barely see her, and it’s impossible to tell whether she’s upset, although she very well might be.  The audio isn’t always as clear as one might hope, but Vance does say something at the end about his having traded five minutes of conversation in exchange for the crowd’s not shouting at his daughter. 

The chances are pretty good, then, that Vance isn’t completely making up the story.  Yes, he’s a despicable human being, and yes, as a number of leftie talking heads have claimed, three-year-olds in Ukraine experience a lot worse on an ongoing basis than having their fathers yelled at a few times.  But the daughter is an innocent.  She didn’t choose her parents and wasn’t consulted when her dad accepted the VP nomination.  Nor is it her fault her father is a lapdog to a lapdog.  Making her uncomfortable isn’t the worst thing in the world, but neither is it acceptable behavior.

By all means, exercise those First Amendment rights of free assembly and free speech.  Rage against the machine, to coin a phrase.  But don’t glory in the woes of others, even if they voted for someone you despise.  Don’t harass your fellow citizens for being led astray, especially if the reason you can do so is that they are admitting their mistake.  And leave the kids out of it.

We’re better than that.  Or at least we damned sure should be.

Skeezix, Gaza, and Empathy

Here’s a cat cafe in Gaza
It seemed appropriate.

Those who know Curmie personally know that he and Beloved Spouse recently came to the awful but necessary decision to have their elder cat, Olivia (aka Skeezix), euthanized.  That sent him back to his “other,” seldom-used blog, to a post about when Skeezix was the younger cat in the family and her older “sister,” Helena (Catbert), was dying. 

As I wrote five years ago:

...seeing her sister’s lack of appetite, Olivia made sure that her sister had had first shot at anything she might want. It was more important to her that Helena eat than that she herself get the choicest food. She didn’t make a big deal of it; she just did it. And then, when it became clear that Catbert wasn’t going to be wanting any food [when we came home from the vet’s without her, clearly very sad], she calmly reverted to her normal behavior. 

It is a sad but ultimately ennobling fact for our species: our pets have better ethics than we do.

Olivia was always a great comfort to Curmie and Beloved Spouse; whenever we were ill or sad, she magically appeared on the scene to help us through the bad times.  She never got along quite as well with her younger sister, Hermione (Snippet) as she did with Helena, but in Skeezix’s last days, Snippet showed obvious concern for her sibling, touching noses in what was clearly a gesture of compassion, for example.  Her yielding of the choicest morsels to her elder sister wasn’t as obvious as Skeezix’s had been, but it was there.  Empathy is not merely a human quality; it is innate across much if not all of the animal kingdom.

It’s also worth noting that the outpouring of sympathy and support from friends (over 200 reactions on Facebook alone) to our loss has been both overwhelming and much appreciated.  Curmie has heard from more than a few former students he had no idea were still on Facebook, and from professional colleagues he’s never even met in person.  Current students (Curmie is back in the classroom as a sabbatical replacement this semester) who barely know me have been especially kind, and, no, I don’t think it’s to increase their chances of a good grade.  We are, in some way, hard-wired to care about others.

Well, most of us are.

In one of those coincidences that lead to blog posts from people like Curmie, I happened across an essay decrying the media’s presumed obsession with chronicling the suffering in Gaza.  The inhabitants asked for it, you see, by electing Hamas, and the Israeli military is just trying to protect their citizens from further attacks by a terrorist organization.

To this, Curmie responds in a manner familiar to his students, especially in his Asian theatre classes: yes and no.  I have no sympathy for Hamas, but of course they’re not the ones bearing the brunt of the Israeli attacks, because active belligerents make up only a small percentage of the residents.  It may indeed be true that the average Gazan now supports (as opposed to “joins”) Hamas, but it doesn’t take a strategic genius to figure out the idea that someone might be less likely to align with the folks who are bombing you than the ones opposing the bombers.  “The enemy of my enemy…” and all that.

It’s also more than a bit of a stretch to say that current Gazans elected Hamas.  Half of the people in Gaza weren’t even born the last time there was an election there.  Half of those who were hadn’t reached voting age.  Not everyone voted.  Oh, and Hamas got a plurality, not a majority, of the votes; they got a majority of the legislative seats, but not of the votes.  In other words, the number of Gazan residents who ever voted for Hamas is perhaps as high as 10%.

Is this relevant?  Sort of, to the extent that the pro-Israeli arguments are rendered less legitimate.  The overwhelming majority of those dying, starving, and otherwise in peril in Gaza have done nothing to warrant punishment.  They’re simply in the wrong place at the wrong time.  Of course, that is the way of war.  Those who make the decisions are seldom the ones who suffer most.  The citizens of Melos in the Peloponnesian War, of Antwerp in World War I, of Hiroshima in World War II (to name but three from literally hundreds of examples), were innocent, but that didn’t save them.  Those who perished in the Twin Towers on September 11, 2001, were similarly targeted without cause.

It is certainly possible to view at least many of the untold deaths in similar circumstances over the last three millennia or so in primarily strategic terms: had this horrible thing not happened, then an even worse fate would inevitably have occurred.  

Sometimes.  But the key word in that sentence is “primarily.”  It is reasonable enough to argue that capitulation to tyranny is never acceptable.  Curmie is a native of New Hampshire, where the state motto is “live free or die.”  I get it.  And whereas it makes us uneasy to think in terms of how much “collateral damage” is acceptable, it is naïve to believe that such conversations are anything but commonplace… and necessary.  Military decisions are in a different category than what to watch on TV tonight.  There are significant real-world consequences, both positive and negative.

Getting into the weeds and weighing considerations like responsibility and proportionality is fraught with peril.  Everything becomes a matter of perspective, and decisions are likely to tell us more about the decision-maker than about the relative merits of opposing positions.  Curmie isn’t going to get involved in such disputes, as there is much to be said on both sides.  He’ll go only so far as he’s already gone, when he wrote “Are the Israelis the “good guys” here?  No.  They’re the less despicable guys.” 

All that said, Curmie just can’t wrap his head around the utter lack of even a modicum of sympathy for those caught in the proverbial crossfire through no fault of their own.  No, Gentle Reader, they didn’t fucking “ask for it.”  They’re just trying to survive a horrific set of circumstances that they had little if anything to do with creating.

Even if we don’t agree that politico-military decisions should override humanitarian concerns in at least some such cases, we can grant that there’s an argument to be made.  And concentrating exclusively on the suffering of one set of victims (in this case, innocent Gazans) while ignoring another set of victims (equally innocent Israelis) is at best sloppy journalism.

But anyone who insists that basic human compassion and empathy for those who suffer are unwarranted simply because of who they are and what a minority of their ancestors thought was a good idea… such a person is just a little too close to a monster for Curmie’s taste.  And Skeezix would not approve.

The right's love/hate relationship with empathy

Much of my scholarly work consists of comparing things. Sometimes, as in the subject of my doctoral dissertation, the grounds for comparison are readily apparent: for example, how is Brendan Kennelly’s Antigone alike or different from the Sophoclean original? But of late I’ve found considerable satisfaction in finding connections no one had ever seen before. My most recent conference paper, for example, discussed two plays I suspect had hitherto never been mentioned in the same breath: an early Renaissance Italian comedy and a 1960s Irish domestic drama which happened to share a particular motif.

The two stories I’d like to connect in this essay are the recent Federal Appeals Court ruling in favor of Fred Phelps and the Westboro Baptist Church and the announcement of the imminent retirement of Supreme Court Justice John Paul Stevens—and the ensuing search for a successor. The thread that binds these stories together isn’t, for me, the fact that Stevens’s successor may be called upon to judge an appeal by Albert Snyder, who not only had a judge’s award of $11 million in a lawsuit against the Phelpsies first halved and then overturned, but who was then ordered to pay the Phelps’s court costs. I'll get to what it is in a moment.

In case you missed it, the background for this case is this: Marine Lance Corporal Matthew Snyder was killed in Iraq four years ago. The WBC showed up at the funeral on March 10, 2006 in a small Maryland town (one source says in Finksburg, another in Westminster) waving the all-too-familiar signs about how “God hates fags,” “Thank God for dead soldiers,” and similar endearments. (Here’s a charming photograph of two of the younger members of the Phelps clan and their picket signs outside LCpl. Snyder’s funeral.) According to the Citizen Media Law Project website, the church then posted on its website that Snyder parents had “raised [Matthew] for the devil,” “RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery,” “taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity,” and “taught Matthew to be an idolator.”

Albert Snyder, Matthew’s father, sued Fred Phelps, the WBC, and subsequently Phelps’s two daughters, Rebekah Phelps-Davis and Shirley Phelps-Roper, for defamation, invasion of privacy, intentional infliction of emotional distress, and civil conspiracy. The court dismissed the first of of these charges and part of the second, declaring that “[t]hese comments — as extreme as they may be — they are taken in terms of religious expression. This is not the type of language that one is going to assume is meant as a statement of fact.” (Side note: it would be interesting in this regard to cross-examine someone from the Phelps Klan: “So, either you would like to have your ugly rhetoric perceived as purporting to be factual, in which case you can be sued for millions of dollars, or you can tell me that you’re just a gaggle of crazies looking to get your names in the paper, in which case you’re legally off the hook, but revealed as hypocritical grandstanders. You choose.”)

The remainder of the case went to trial, with Mr. Snyder ultimately winning a $10.9 million verdict, $8 million of which was in punitive damages. This was in October, 2007. In February, an appeals judge, Richard D. Bennett denied the Phelps/Westboro appeal per se, stating that “[t]here was more than sufficient evidence to support the jury’s verdict that Defendants’ conduct before, during, and after the funeral of Matthew Snyder was outrageous, designed to inflict emotional distress upon Plaintiff, and that the intrusion upon the seclusion of Plaintiff and his family was highly offensive to a reasonable person.” The judge also noted that “Defendants cannot by their own actions transform a private funeral into a public event and then bootstrap their position by arguing that Matthew Snyder was a public figure.” That said, he also reduced the punitive damages against the WBC from $2 million to $1 million, against Fred Phelps from $2 million to $300,000, against Rebekah Phelps-Davis from $2 million to $200,000, and against Shirley Phelps-Roper from $2 million to $600,000. That’s still a lot of money.

But we’re not done. The defendants appealed again, and in September of 2009 the 4th Circuit Court of appeals overturned the judgment altogether, basing their opinion on such observations as that the “Epic” posted on the WBC website “utilized distasteful and offensive words, atypical capitalization, and exaggerated punctuation, all of which suggest the work of a hysterical protestor rather than an objective reporter of facts. Despite referring to the Snyder family by name, the Epic is primarily concerned with the Defendants’ strongly held views on matters of public concern.” I’m not sure that hysteria or lack of facility with the language ought to qualify as a defense, nor that we ought to ignore the specifics because the document is largely general, but ultimately there is a legitimate legal argument at play here: that the Phelpsies aren’t guilty of damaging Mr. Snyder or his family if no rational person would believe them. (Of course, no rational person would believe that Barack Obama was born in Kenya, either, but that’s another matter…)

Given the fact that the ACLU filed an amicus brief on behalf of the WBC, a right-winger might be forgiven for thinking the lunatic left was furthering their assault on God and Country by siding with a congregation so hateful that even the likes of Rush Limbaugh and Bill O’Reilly can’t stand them. One might think that, at least, until one realizes that the 4th Circuit is widely viewed as the most conservative in the country, that two of the three judges who unanimously decided the case, Dennis Shedd and Allyson Kay Duncan, were appointed by that well-known leftist George W. Bush, and that the former, a Strom Thurmond protégé, was confirmed only narrowly (55-44) by the Senate, having been vehemently opposed by even mainstream Democrats, largely for his record on civil rights. True, the fact that a Clinton nominee and two Bush nominees agreed doesn’t mean they reached the correct conclusion, but it does suggest, at least, that choosing sides in this dispute is a bit more complicated in legal terms than on the basis of emotionality alone.

The last straw for supporters of Mr. Snyder came last month, when the 4th Circuit ruled that Snyder would be responsible for over $16,000 of the WBC’s court costs; a significantly higher amount is still in dispute. It doesn’t help that Snyder is apparently being charged 50 cents a page for photocopying charges, even for documents not directly relevant to the case. Must be the WBC won’t use Kinko’s because of the name… It does indeed seem curious that the 4th Circuit would weigh in on the issue of court costs prior to the (inevitable) appeal to the Supreme Court without a demonstration of urgency by the Phelpses.

Anyway, there was predictable outrage from all quarters: this was probably the most universally despised court ruling since the Kelo eminent domain case in 2005. No one—not the left, not the center, not the right—thinks this was a good decision. Particularly vocal has been Bill O’Reilly, who offered on his television show on March 30 to “pay Mr. Snyder’s obligation,” arguing that the Westboro protesters “should have been arrested, but our system is so screwed up… that loons are allowed to run wild.” And now the rest of us are left with an extremely difficult dilemma: when Bill O’Reilly and Ann Coulter are on one side of a dispute and Fred Phelps is on the other, who’s to root for? Well, how about the one who's in the right this time?

I find three things in particular interesting about O’Reilly’s commentary. First, he feels compelled to spin off his denunciation of the Westboro “loons” to close with yet another in an interminable series of whines that left-wing crazies don’t get as much notoriety as their right-wing counterparts do. In other words, O’Reilly uses the Snyder/Westboro case primarily as evidence of “hatred of America,” which, in his rhetorical construction, is code for anyone to the left of Jim Imhofe.

Second, I find it interesting that O’Reilly’s outrage came a little late in the game. I don’t recall anything similar from O’Reilly when Phelps and his gang first came to national attention by protesting at the funeral of Matthew Shepard, who was, sloppy ABC journalism to the contrary notwithstanding, murdered simply for being gay. I don’t remember it when theatre-goers attending the national tour of Angels in America (I was one of them) were screamed at by the Phelps mob. I don’t remember it when the cast, crew, and audience of a production at the University of Kansas were subjected to loud, lengthy, and offensive screeds because the undergraduate director of the play in question happened to be the son of someone Phelps couldn’t silence. I don’t remember it even when the WBC picketed a wedding on the KU campus because the ecumenical center at which the service was held had been used earlier in that week for a meeting of an LGBT and friends organization. No, Phelps and his flock are never happier than when confirmed in their self-righteousness by the disgust of everyone else, and they figured out long ago that protesting military funerals—funerals of soldiers who lived in a structure which openly discriminated against homosexuals but didn’t outright persecute them—would be a great away to attract headlines and enemies, the two things these hateful little creatures can’t exist without. And, of course, O’Reilly rose quickly to the bait, defending anything associated with the military with the fervor that only a born-again ex-draft-dodger can muster (Cf. Cheney, Richard).

Thirdly, and most importantly, O’Reilly followed up his initial offer of assistance two nights later, soliciting viewer donations to assist the Snyder family, presenting without comment Albert Snyder’s argument on “Good Morning America” that the WBC’s actions were “insulting,” and arguing that “the Westboro Baptist Church… does have a right to spew its hateful rhetoric, but it doesn’t have a right to be in your face.” I’m not a lawyer, but I do know that the fact that someone is “insulting” or “in your face” is insufficient legal cause to limit freedom of speech. I have studied the Constitution, especially the Bill of Rights, with some care… I don’t recall the “in your face” exception to the 1st Amendment (nor do I remember O'Reilly's invoking that distinction with respect to, say, the Tea Party crowd). There are complicating factors, and there’s much about the case I don’t know, but based on the law and only the law, the WBC's case seems pretty solid.

Of course, what O’Reilly and his brethren on the right are appealing to isn’t a legal argument at all. It’s, well, based on an empathetic response to Mr. Snyder. Certainly we all like him more than we like anyone associated with the Phelps clan, who are among the vilest creatures ever to slither across the planet since the dawn of time. The fact that the jury is still out (literally) on the legality of what the WBC did in Maryland is, to many, irrelevant. What matters is that we feel sorry for the unjust suffering endured by Mr. Snyder at the hands of an evil assemblage of people who intentionally made one of the worst days of his life even worse, and for what? To further their own psychotic socio-political purposes? To attract attention to themselves? Surely not to demonstrate anything that looks like the love embodied in the God described in the Bible they claim to have read. Legalisms and legalities be damned; we just want to whup the hate-mongers up ‘side the head with a 2x4. All of our empathy is reserved for Mr. Snyder.

“Empathy.” Hmm… now, where have I heard that word before? Oh, yeah… it was when the right wing went apoplectic at President Obama’s description of then-nominee Sonia Sotomayor as “empathetic.” “We don’t want an empathetic judge” cried the right. “We want a judge who will (only) interpret the law.” This Wall Street Journal editorial will serve as well as most to illustrate the point. Notice that empathy has migrated in the writer’s mind (interesting that the piece is unattributed) from being a credential, as it was described in the President’s introduction of his nominee, to being “as much or more than reason” a part of judging, in the characterization of the WSJ editorial-writer. I suppose there’s a point there, but it’s kind of a shaky one: that if empathy and reason are both essential attributes of anyone making any kind of decision about anything affecting others (and who would really argue otherwise?), that reason is no more essential than empathy. (N.B., to be fair, Mr. O’Reilly didn’t go down this particular path, confining his opposition to Judge Sotomayor’s candidacy to an active misinterpretation of non-judicial remarks made a decade ago and a little of his signature brand of latent racism and sexism.)

As Dr. Leon F. Seltzer wrote in Psychology Today “as a therapist, I'd always seen empathy as one of the most valuable things I had to offer my clients.” Dr. Seltzer continues, “There's nothing inherent about empathy that dictates a condoning response to that which is clearly wrong, villainous, or evil.” A little later, writing specifically about Judge Sotomayor, he writes, “Certainly to date there's nothing about her capacity for empathy that has been demonstrated to interfere with her ability to carry out her professional obligations. All that might be said is that given certain extenuating circumstances her empathy might incline her to consider making a more 'measured' decision than otherwise. And doing so would, I believe, promote a judgment not simply just, but merciful as well.” And I confess that this sounds to me like a pretty reasonable (Get it? Reasonable?) endorsement of the Sotomayor nomination.

But now the empathy, as it were, is on the other foot. President Obama’s nominee to fill the vacancy created by Justice Stevens’s well-earned retirement will no doubt be criticized for his/her empathy: here’s Tom Fitton posting today on Right Side News: “Obama's statement on the retirement of the arch-liberal Justice Stevens restates the empathy standard without actually using the word ‘empathy.’” Yep, that empathy thing sure sounds problematic. Unless, of course, we’re the ones appealing to it to over-ride the Constitution. Then, it’s a good thing.

La la, how the life goes on.