Meritocracy, lack of bias, and other myths (~2,400 words; 5 - 8 minute read)

There are a number of events in this week’s news that are extremely disturbing.

Top of the list is the US Supreme Court’s imminent reversal of Roe v. Wade. 

From this week’s draft news post (these quotes may change as the week progresses): 

a leaked  draft opinion - which draws on opinions from domestic abusers and rape in marriage apologists, some from the 1700s - suggests the US Supreme Court is about to send the USA even further backwards by overturning the privacy-based Roe vs. Wade decision to decriminalised abortion ... this also shows the utter farce of claiming appointments to judiciary are merit-based and thus free of political bias - and the dangers of nominees lying ... ;

I’m going to present this in bluntly worded dot points - I’m recovering from illness, overwork, and family issues, and have neither time, inclination, nor energy to use word-smithing, so here goes: 

• Decisions that are basically about rights should ideally be based on the relevant human rights principles.
  However, the USA is set up with many flaws that are, at times unconscionable (such as the filibuster), and thus that doesn’t happen - actually, that problem exists elsewhere as well, but I’ll stay on the USA for now.
  In the case of Roe v. Wade, the decision was based on privacy rather than
  (a) personal integrity and
  (b) the rights of the child to a properly resourced life where the child is loved (which is far less likely when people have unplanned pregnancies, or are too poor to afford medical procedures - including abortion, but that’s a whole rant and a half on its own)
  - or, personal integrity and the rights of the child on one side vs. freedom of religious / moral beliefs on the other side (I’ll come back to that).
  
  This also happened, I understand, in the case of Muhammad Ali’s refusal to be conscripted (drafted, as the USA seems to term it) - which, as portrayed in this film, was presented as being based on a legal technicality, rather than the TRUTH that black Muslims were genuinely opposed to all wars as an article of faith: the “convenient fiction” (my words) was chosen to prevent a large group being able to remove themselves from conscription . . . but that was what a fair and just outcome would have been. Instead, the decision aided the US government’s continued fighting of a morally questionable war - and made the US Supreme Court, in my opinion, an accessory to that morally questionable action, thereby diminishing itself as well as allowing the US government to diminish itself morally.
  
  
• This shows the role that personal beliefs and biases - some unconscious - have in almost all decision making (even those who claim computerised decision making is free of such forget that unconscious biases are a major problem on the part of those doing the programming - and thus such systems are subject to challenge on racism and sexism).
  In my home state, there are training programmes to help judges recognise and deal with this factor - which is excellent, but means we are still subject to past decisions that are not just no longer relevant (such as the law requiring a small boy to carry a flag in front of a car), but outright wrong and morally indefensible (such as the many laws which enabled racist abuses).
  
  More pertinently to today’s post is that such biases also are of significance when it comes to appointing judges. This decision, and the decades of contention in the USA over Republican vs. Democrat appointees shows that it is widely, if tacitly, accepted that judges have preferences or inclinations, if not outright biases. Now, some of that is ultimately beneficial, when it leads to dissenting opinions that are realised as being accurate and appropriate later (this was also illustrated in Gideon  Haigh's book “The Brilliant Boy: Doc Evatt and the Great Australian Dissent”, about an opinion of Doc Evatt’s which, while unsuccessful at the time, later led to increased public safety by ensuring trenches had measures to prevent people accidentally falling in), or challenging questioning such as this, but is it possible that there is a better way of selecting judges for appointment in the first place?
  
  
• Now, before I get into that, I also want to emphasise a few points: 
• I consider the rule of law essential in providing fairness and equity in societies. If we did not have that, we would be going back to eras when more powerful nations invaded and subjugated other nations at whim, and where groups of powerful people (whether physically powerful  mobs, or politically powerful, or powerful in other ways) could impose their will on others with impunity; 
• the history of the rule of law is, in some ways, a history of improvements - or attempting to make constant improvements - and the fact that appeals processes exist is both acknowledgement of that and a valid and often adequate attempt to deal with such problems: however, there can be backsliding along the ways of history, as the US Supreme Court appears to be about to illustrate; 
• no matter where we are in this process of kaizen, it will be imperfect, and thus there are times when pragmatism has a role.
  Geoffrey  Robertson’s autobiographical book “The Justice Game” included a story (e-location ~301) about Sir Garfield Barwick getting 12 communist Malaysians acquitted on the basis of “a very short and technical point about the validity of the execution warrant”, whereas the thirteenth had engaged someone else who missed that point but otherwise argued exactly the same case and lost - his client was legally murdered. Geoffrey Robertson writes: “The moral of this story, I suppose, was that lawyers best serve the cause of human rights by attention to detail, rather than by waxing passionate about evils like capital punishment. As a student, I found it shocking rather than amusing.”
  The key point here for this post is not to gloat too much over using a device to obtain a morally good outcome: the question as to whether such problems can be prevented (without creating problems elsewhere) needs to be in the back of someone’s mind. 
• On that, the first step towards finding a solution is to recognise that a problem or issue exists - and I'm definitely not going to be getting to a solution in this, just fleshing out a few comments about the problem.
  
  
• And to be clear on that: the problem I am writing about is imperfection in the appointment of judges.
  
  There unquestionably has to be a minimum standard of legal competence and other necessities for the role(s) that must be met, but what else can be done?
  
  Robert  Reich has a suggestion for a larger US Supreme Court, but that limits consideration of the problem to the currently accepted political spectrum.
  
  My inclination is towards demonstrating how the candidate would address: 
• “changes of climate”, as opposed to changes of weather (as illustrated in the movie “On the Basis of Sex”, about Ruth  Bader  Ginsburg), including how they would recognise that (perhaps a useful test would be to ask at what stage of history they would have decided to ban slavery, or allow women to vote, or ban discrimination against LGBTIQ+ people); 
• balancing competing rights - and Roe v. Wade is the currently hot topic, but there is also hate speech vs. freedom of political expression, for instance.
  

At least that way society would know what we have in our various judiciaries, and people could make informed choices about whether to risk bankruptcy by pursuing a legal case, and planning social activism.

To some extent, one aspect of this is the vexed topic of “expertise” - vexed not only because of a trend towards society ignoring or being suspicious of experts (there is an interesting book by Tom Nichols on this: “The Death of Expertise: The Campaign against Established Knowledge and Why it Matters”), but also because experts shoot themselves in the foot. 

Before getting on to the topic of experts shooting themselves in the foot, the relevance of this to Roe v. Wade is that it contributes to a distrust of decisions made by judges that may oppose what one thinks decisions should be. This is, to some extent, being overcome by increased publicity and education (well, here in my home state, at any rate), but in the USA such distrust seems to me to contribute to a paranoid presumption of bad  faith, and thus an insistence that judges be from one’s own political party. 

So, on the topic of experts shooting themselves in the foot, that is exemplified, in my opinion, by: 

• a professional organisation arranging a webinar to discuss “what you need to know” about the election, but only having a representative from one political position, someone who was notoriously focused on only one aspect of that issue
  (to illustrate that, when I started in engineering I was told many times “just choose the best solution” - which, in the case of the social dinosaurs saying that, meant choose the lowest construction cost, with no regard to operational cost / safety, let alone environmental impact . . . I was unpopular when I chose other options, but the subsequent use of things like multi-criteria assessments has proven me to be correct and the social dinosaurs - may wherever their bones rest roll over - were wrong . . . excuse me while I have a cup of gloating coffee 😊 );
  
  
• I am currently reading Dean I. Radin’s book “The Conscious Universe: The Scientific Truth of Psychic Phenomena”, which describes a four step response to new concepts: 
• “In science, the acceptance of new ideas follows a predictable, four-stage sequence. In Stage 1, skeptics confidently proclaim that the idea is impossible because it violates the Laws of Science. This stage can last for years or for centuries, depending on how much the idea challenges conventional wisdom. In Stage 2, skeptics reluctantly concede that the idea is possible but that it is not very interesting and the claimed effects are extremely weak. Stage 3 begins when the mainstream realizes not only that the idea is important but that its effects are much stronger and more pervasive than previously imagined. Stage 4 is achieved when the same critics who previously disavowed any interest in the idea begin to proclaim that they thought of it first. Eventually, no one remembers that the idea was once considered a dangerous heresy.”
  
  
• as someone who works as a professional in my day job, in my opinion too many (NOT all) experts aka professionals are unjustifiably arrogant about themselves and their alleged expertise - especially when they use that to move into making pronouncements about areas that are outside their expertise, or when they are stick-in-the-muds (continuing professional development can reinforce biases). Having said that, professionals usually have access to a wealth of information that others don’t;
  
  
• This aspect has partly been included in this post because of a separate news item. Again, from this week's draft news post:
     police ignoring an expert’s advice on the ineffectiveness of wrist X-rays is a gravely concerning abuse of power. 

Equally, a lot of this problem arises out of social attitudes for the reasons outlined when consider the loss of trust of experts:

as happened in the Azaria Chamberlain case, a woman’s public stoicism led to emotionally incompetent (and possibly emotionally crippled) and often hypocritical (such as one woman I knew at the time of Azaria’s disappearance - “I would never cry in front of the media” in some circumstances, but “why isn’t she crying” in other circumstances) people - some using false "science" - to WRONGLY  condemn the mother of a disappeared child as a suspect ... what would have happened if they hadn't been so professionally incompetent?;

There are a lot of unconscious assumptions being made (by judges, and by others) about the type of woman who would need an abortion, whether a supportive parenting situation could be created (some people - staggeringly - even seem to think such a relationship could be made with a rapist!), etc - and what the motivations of all involved might be, and I suspect the overwhelming majority of those - often unconscious - assumptions are WRONG. 

Related to that, people - which includes all voters - also make their decisions, which creates the socio-political soup we all live in, and thus the pressures on politicians around issues such as the appointment of judges, on the basis of unconscious biases, and other problems - such as fear (including of social disapproval) and/or selfishness. 

This also cropped up in this week’s news, with some people in Germany afraid of Germany helping Ukraine because it might involve them even more directly in Putin’s illegal invasion of Ukraine, or it might expose Germany to the risk of direct retaliation - in other words, from this week’s draft news post:

some people are still reacting on the basis of fear and/or selfishness

The reality is that the world is already involved in Putin’s illegal invasion of Ukraine - in part for having allowed that situation to develop and occur, but also because any escalation to nuclear weapons may involve us all. 

However, trying to put one’s head in the sand and pretend problems don’t exist will not help - that, in my opinion, is exactly the same as pretending there is no personal / political influence in the appointment of judges or how judges formulate their decisions. 

Courage is an unavoidable part of seeking to live a good life, whether one protests in the streets or not.

That courage also includes being able to follow up the identification of a problem with “I don't know what the solution is”.

As a final thought, Pastor Dietrich Bonhoeffer, who was murdered for his anti-Nazi activities, also apparently came to the conclusion (see this video) that: 

“This much is certain, stupidity is in essence not an intellectual defect but a moral one. There are human beings who are remarkably agile intellectually yet stupid, and others who are intellectually dull yet anything but stupid.”  

It is problematic, given the use of the word “stupid” in abusing disabled people - whether intellectually disabled or not, but I can see how some people are morally stupid, and that contributes to the problems I am writing about.

Upon reflection, however, I’ll stick to something along the lines of “morally flawed”, but I need something stronger than “flawed” . . . maybe “morally incompetent” will fit the bill . . .