What Would Emerson Say?

According to the Volokh conspirators, jurors who are assumed to have ignored the law in order to provide a plaintiff with the level of damages they believe to be just are to be deplored. And praised.

Yes, folks, it all depends upon whose ox is being gored.

She's What?

"Oh, what a cute baby. She's about six months old? My baby is eight... no, ten... no wait... One year old."

One year old?

Wow.

More on Work Ethic

Coming from a profession which can demand arduous hours, with billable hour demands having increased substantially in recent decades for most of the nation's associate lawyers, some of my fellow lawyers may question whether my comments on work ethic also apply to our shared profession. They do.

Here, I'm not just speaking of the absolutely substandard work product that some lawyers and firms consistently produce - they are, in my opinion, the exception. I'm also not speaking of partners who complain about declining associate work ethic, even while imposing billing expectations on those associates that are substantially higher than those they had to meet at a similar stage in their careers.

I'm speaking of a different type of work ethic. Sure, lots of lawyers slave away at the office, six or seven days a week, and barely see their families. But what about their clients? When law firms take a "wink wink, nudge nudge" attitude toward creative and padded hourly billing, or pretend that a caffeine-stoked late-night hour at the office is just as productive as an hour of work after a solid night of sleep, they are not encouraging an atmosphere which is conducive to achieving the best value and best outcomes for their clients. The worst part is, they don't seem to want to do so - for fear of losing income.

No matter how many hours you work, if at the end of the day you put the firm's finances ahead of client welfare and accurate billing, there is a deficit in your work ethic.

Some predict the demise of the billable hour. Others question whether alternatives to hourly billing will primarily serve to add to law firm profits. One way or another, hourly or alternative, a bill should be honest.

Mincing Words versus Lying

The latest on Frist:

Senate Majority Leader Bill Frist (R-Tenn.) was given considerable information about his stake in his family's hospital company, according to records that are at odds with his past statements that he did not know what was in his stock holdings.

Managers of the trusts that Frist once described as "totally blind," regularly informed him when they added new shares of HCA Inc. or other assets to his holdings, according to the documents

* * *

"He [Frist] could have been more exact in his comments," said Bob Stevenson, spokesman for Frist. Stevenson added that Frist might better have said he did not know to what extent he owned HCA shares.

Nice euphemism.

Declining Work Ethic

Of all the things that seem to be hurting us in an era of globalization, a declining work ethic would seem to be near the top. If you look at productivity figures for U.S. workers, you might not immediately suspect a declining work ethic. But if you encounter a spectrum of U.S. workers, or even U.S. college students, it is hard to miss the decline.

Any thoughts as to what is behind this? Where does the sense of entitlement come from, that people think they should have well-paid employment, license to be rude to customers, break time whenever they want it, and not have to work hard? Oh, I grant some of it comes from the top - you can't see a Bernie Ebbers or Dennis Kozlowski-type CEO at the top of your company's organizational chart and be inspired to work hard for your company... quite the opposite. But perhaps that's less of an explanation, and more of a manifestation of how lousy work ethic and and an exaggerated sense of both self-importance and entitlement reach all levels of employment, public and private. (Chicken v. Egg - did the phenomenon start at the bottom or at the top?)

Under a "CEO President", this phenomenon can seemingly put the nation at risk.

Mr. Meaner

A significant number of people believe that the offenses they are charged with are "Mister Meaners" - or "Mistermeaners"... Which perhaps leaves them surprised that the charge they face is less serious than a seemingly far less sinister sounding "felony" offense.

(Don't get on my case about this post. I'm way tired its causing me to find humor in the weirdest things. ;-)

Wages + Benefits = Welfare?

In his latest editorial, while speaking to the very real effects of globalization, George Will replicates his traditional sneering attitude toward the notion that employers should be obligated to live up to their contractual obligations to their employees:

GM has been forced to allow product development, pricing and other decisions to be driven by the need to keep sufficient revenue flowing in so it can flow out in fulfillment of GM's function as a welfare state.

That's right, folks - in George Will's mind, if an employer negotiates a compensation package that includes health benefits, the employer is acting as a "welfare state". And he apparently believes that any such contractual obligation should be one that can be discarded by the employer on a whim.

Concessions by the United Auto Workers will provide GM with annual savings of $1 billion in health care costs. But GM's hourly workers, who pay no health care deductibles and only nominal co-payments, will still enjoy coverage better than most Americans have. Since 2000, the percentage of American businesses offering any health insurance to workers has declined from 69 to 60.

Is it fair to interpret that last sentence as follows: "Yay!", declared George Will, "More of the working masses are uninsured!" And he also spits on the notion of a blue collar middle class,

Delphi proposes cutting the compensation - pay and benefits - of younger workers from $65 per hour to $20 or less, so it can fulfill the promise to retirees of a fixed percentage of their salaries.

Come back to Earth, George - a proposed slashing of wages by 2/3 is about a lot more than paying contractually dictated benefits to retirees. And if you think Delphi isn't going to try to dump those obligations onto the taxpayer via the Pension Benefit Guarantee Corporation or back onto GM through the course of its bankruptcy, you're pretty darn optimistic - Pollyanna Will. Oh, I'm giving Will way too much credit - he doesn't actually care if retirees see a penny of their pension benefits; he's trying to create an intergenerational conflict out of what the very quotes in his article indicate is in fact primarily the result of globalization.

[Robert "Steve" Miller, Delphi's chief executive] bluntly says that the social contract written after 1945 is being - must be - repealed because, given globalization, unskilled manual labor cannot be paid $65 an hour, with the cost passed on to consumers. "When you buy a Hyundai you get a satellite radio as your option, but if you buy a Chevrolet you get social welfare as an option. Long term, the customer is going to desert you if you try to price for your social-welfare costs."

You know what is quite telling about hypocrites like George Will? They have a philosophy of life where they are never willing to sacrifice anything themselves, but never stop demanding that others sacrifice for them, for their comfort, for their ideology. Has Will ever issued a whisper about excessive CEO pay? Did it not occur to him in applauding Delphi's abrogation of contract that he might make mention of the extraordinary severance packages it has afforded departing executives? Did it not occur to him to question why executives, CEO's, and the Republican-controlled House and Senate, are completely unwilling to address the cost of their own perks of office, salaries, benefits, and... yes, defined pension plans? Has he called upon his employers to pare back his own wages and benefits, contracts be darned, in the name of ending a "welfare state"? Has it occurred to him that these are contractual obligations, and some people actually believe that a signature on a contract is supposed to mean something more than "I can't screw you now - so I'll screw you later"? Has it occurred to him that shifting the cost of health care from employers of retirees, the blue collar middle class and working poor from employers onto the taxpayer is not the elimination of a "welfare state", but is instead an element of its creation?

Apparently not in this lifetime.

Industry & Health Care Costs

Commenting on "the big squeeze" on American wages and benefits, and the possibility that the Delphi bankruptcy will trigger additional bankruptcies in the auto industry, Paul Krugman comments,

If we had a Canadian-style system - which is enthusiastically supported by the Canadian subsidiaries of U.S. auto companies - the big squeeze might be averted, at least for a while. One more reason to be angry with auto executives is that they never threw their support behind national health care in this country, even though such a system is clearly in their companies' interest.

Long-term interest, perhaps, but short-term? The money for a national health care system has to come from somewhere. Granted the Bush Administration believes that deficit spending provides a bottomless pit of cash for anything it wants but can't otherwise afford, but the Republicans are not the party to reform health care (save, perhaps, in the sense of the cliché, "Only Nixon could go to China.") And I don't think any prior administration would have dreamed that they could get away with creating a national health care program without first finding a source of revenue for that program.

Also, national health care would not emerge overnight. It isn't as if you would go to sleep on one night paying for your employer-sponsored health care, wake up the next morning paying for national health care, and never even notice. If a new payroll tax were created to pay for health care during the transition, employees who are already paying a share of their own health benefits would be justifiably aggrieved. A more complicated system of credits and deductions might avoid taxing those who already pay, but would probably take a huge bite out of the paychecks of the working poor. It's hard to imagine a politician who would want to fund health care through an undisguised payroll tax.

Another alternative would be a transitional corporate tax, meant to fund the transition and the initial period where the uninsured become insured, while a new payroll tax (and matching tax) is created to be phased in as employer and employee contributions to existing plans are phased out. The corporate tax should not be presumed to eventually go away, but would likely remain in effect to "make up for" employer contributions that need no longer be paid. Even with a dollar-for-dollar deduction, such that every cent spent on an existing private plan is credited against the transitional tax, some major employers would probably still see their expenses go up as the wages of their contract workers would trigger transitional taxes, and their non-unionized domestic suppliers would face the additional tax. Even if at the end of the day, the dust settles with a less costly, more stable national insurance plan, and a health tax burden significantly less than the present cost of private insurance, the major domestic auto makers (a) have a poor history of long-term thinking, and (b) could have difficulty financing the transition.

Granted, tax policy isn't my forté - is there something I'm missing which would allow the easy implementation of a national health care plan?

Liberals On Campus

I know you're all crying about Times Select preventing you from reading John Tierney... that is, the little you can't glean from the headline for his column and his first sentence....

He recently wrote a rather incredible piece entitled "Where Cronies Dwell", which whines that it isn't fair that people accuse Bush of hiring cronies while not objecting to the faculty search process at law schools and journalism schools. Apparently he read a David Horowitz screed about the ratios of registered Democrats to Republicans at a handful of elite schools, accepted Horowitz's notion that "Democrat = Liberal" and "Republican = Conservative", ignored any faculty who did not register for either of the major parties (or did not register at all), and concocted "liberal to conservative" ratios based upon that childish analysis. Yes, folks, when Zell Miller taught at the University of Georgia, Tierney and Horowitz would have us believe that the faculty became more liberal.

Needless to say, neither Horowitz nor Tierney paid any heed to the fact that if Bush followed a search process similar to a typical faculty search, he would not have been able to hire the parade of fools he has appointed to important positions, let alone hit the 100% mark in preferred party affiliation. The Bush Administration is unabashed in pressing for Republican-only hiring policies on K Street, and from what I hear even within the lower levels of civil service (where party affiliation is not supposed to be considered). Although in some fields, or with some applicants, ideology may well be suggested by past published works, in many fields of law or journalism there won't be anything obvious about a prospective faculty member's publications which suggests a party affiliation - and the search committee can't ask. Tierney really thinks that there is a parallel?

For some reason - and one can hardly guess why - Tierney and Horowitz also present no estimates of the ratio of "liberals" to "conservatives" at top engineering schools or business schools. (They also don't complain about a lack of conservative professors at top schools of social work... I can only imagine how may hardcore conservatives are clamoring to get faculty appointments, and how many novitiate social workers are traumatized by the left-wing bent of their faculties.) You know what? Different academic fields attract different types of people, often offering them significantly less money than they could otherwise earn, and rewards specific types of thinking and analysis. If you are surprised that certain fields attract disproportionate numbers of "liberals" and others attract disproportionate numbers of "conservatives", you haven't been thinking very hard.

And despite the experience of crybabies like Ann Coulter, I don't recall that the even the most stauch conservatives in my law school class feared retalation, and many were very outspoken in class. I looked up what a couple of them, the most obvious and outspoken of the conservatives in my section, are doing today... One is a partner with a large law firm, and another is a VP and general counsel with a Fortune 30 company. Oh, how they suffer. As for Tierney's suggestion that "more than 80 percent" of the nation's press corp is Democratic, that does not appear to be even close to true:

Another highly regarded study, the 2002 American Journalist Survey, found that 37 percent of journalists called themselves Democrats (just a few points above the proportion of Democrats in the general population), 18.6 percent said they were Republicans, and 33.5 percent were independents.

Does this mean that in TierneyWorld, if you're not a Republican you must be a Democrat? He seems to have lost his center.

Today, Tierney's follow-up offers the teaser: "Liberals on campus have become so used to hearing their opinions reinforced that they have a hard time imagining there are intelligent people with different views." Oh, I doubt that. But if Tierney's logic is supposed to pass for an example of what Liberals fail to find persuasive... that's nobody's fault but his own.

Tierney whines that the number of "liberal" faculty members, presumably based upon the child-like analysis he cribbed from Horowitz, is increasing. Well, you know what? The ratio of conservatives on the nations courts, particularly the federal courts, seems to be increasing faster. Although Tierney has yet to identify a single qualified conservative who was unable to obtain an appointment to an elite law school or journalism school, he is offended by the concept that such discrimination might occur. (Tierney instead resorts to the standard evasion, "many conservatives do want to become scholars, but they can't find work on campus" - many? How many? How qualified are they? How many faculty jobs have they attempted to obtain? How did they compare to the people who got the jobs? While I would not contend that "Righties Can't Teach", it is somewhat amusing to note that in asking "Why Righties Can't Teach" Tierney fails to distinguish opportunity from ability.) The real world? I guess Tierney is trying to impress us that he, himself, truly is an "academic" by observing the caricature that academics are stuck in the ivory tower, and are oblivious to the real world.

Judicial Activism, or Asleep On The Bench?

The Greatest American Lawyer takes on the Michigan Supreme Court.

Pet Peeves

David Brooks quotes Harriet Miers as writing for the Texas Bar Journal,

More and more, the intractable problems in our society have one answer: broad-based intolerance of unacceptable conditions and a commitment by many to fix problems.

* * *

An organization must also implement programs to fulfill strategies established through its goals and mission. Methods for evaluation of these strategies are a necessity. With the framework of mission, goals, strategies, programs, and methods for evaluation in place, a meaningful budgeting process can begin.

The article at issue reminds me of medical reports I have read, annotated "dictated but not read", or perhaps something automatically generated with this.

The Dog Ate My Homework

"Harriet Miers has tons of experience with Constitutional issues, and has provided first-rate work product."

"Can we see any of it?"

"No."

GW - Failed President?

Unless GW gets very lucky, very quickly, I think he will go down in history as a failed President. The primary basis for my anticipated future assessment is the Iraq fiasco. It is possible at this point that tomorrow's vote on a new constitution will lead to stability - but I doubt that the stability will emerge prior to GW's exit from office. It remains possible that GW will concoct a brilliant strategy to end the insurgency, stabilize Iraq, and foster democracy - but again, absent unexpected good fortune, such a strategy is unlikely to visibly change the security situation before he leaves office. Once he leaves office, his successor will lay claim to any successes. If things haven't markedly improved since that time but improve afterward, the successor will claim that new policies and approaches led to any success. If things don't improve, eventually a President will announce our withdrawal from Iraq and be credited with getting us out of Bush's quagmire. Either way, absent a quick payoff to the present constitutional gamble, Bush would lose.

Meanwhile, one way or another, his reckless fiscal policies will catch up with us. And as much as it is nice to speak of an economic "recovery" that favors the rich, the blue collar middle class is likely to eventually come to resent globalization that results in their downward spiral to lower middle class or working poor. Take a look at the Delphi bankruptcy - which appears to be focused on avoiding union contracts, reducing wages by 2/3, and avoiding present and future health care obligations. (Prior to declaring bankruptcy, Delphi demanded wage concessions of up to 61% as well as significant reductions in its health care obligations - with, of course, no parallel sacrifice by its generously compensated executives - even those executives who are being laid off are receiving an 18 month severance package.)

At the same time, bankruptcies to avoid pension obligations shift more and more corporate debt onto the consumers, through the Pension Benefit Guarantee Corp., and it is likely that additional major employers (such as GM and Ford) will follow Delphi's lead. Now it is possible that some of the major bankruptcies (such as Ford or GM) will occur after Bush leaves office, which could cause the public to perceive some of the responsibility as falling on his successor, and it is probable that the history books will acknowledge the global trends which contributed to this result. But unless he does something quite surprising and out-of-character, Bush will still be the President who didn't even attempt to formulate a coherent response to globalization. Even a failed attempt is better than none at all.

Increases in poverty, the beginning of the end for the blue collar middle class, increasing numbers of workers who are without adequate health care coverage, a quagmire in Iraq, absurd debt accumulated while slashing taxes for the rich, record prices for energy (with record profits for energy companies, who nonetheless receive billions of dollars in new subsidies) which may even bring back stagflation.... Well, you tell me - what you you think the history books will have to say?

Sovereign Immunity

Oren Kerr makes a funny.

Testing Against More Than Placebos

It has been suggested (with prior discussion here) that a better approach to new medications would be to require not just that their efficacy be tested against placebos, but also against medications already available to consumers. The British Medical Journal lends support to that position:

In British Columbia most (80%) of the increase in drug expenditure between 1996 and 2003 was explained by the use of new, patented drug products that did not offer substantial improvements on less expensive alternatives available before 1990. The rising cost of using these me-too drugs at prices far exceeding those of time tested competitors deserves careful scrutiny. Approaches to drug pricing such as those used in New Zealand may enable savings that could be diverted towards other healthcare needs. For example, $350m (26% of total expenditure on prescription drugs) would have been saved in British Columbia if half of the me-too drugs consumed in 2003 were priced to compete with older alternatives. This saving could pay the fees of more than a thousand new doctors.

Credit: Health Care Renewal.

Mallaby on DDT

Today, Sebastian Mallably argues that the E.U. needs to give Uganda room to implement a DDT program.

DDT also helped to eliminate malaria in Europe and parts of Asia, and in 1970 the National Academy of Sciences estimated that the chemical had prevented 500 million deaths. And yet, despite that astounding number, DDT has all but disappeared from the malaria arsenal. Some 500 million people still get the disease annually, and at least 1 million die, but the World Health Organization refuses to recommend DDT spraying. The U.S. government's development programs don't purchase any of the chemical. In June President Bush made a great show of announcing a new five-year push against malaria; DDT appears to play no part in his plans.

But the worst culprit is the European Union. It not only refuses to fund DDT spraying: In the case of at least one country, it has also threatened to punish DDT use with import restrictions.

My initial reaction to this editorial was to be, well, skeptical. Four years ago when I was in Thailand not only was the country full of tourists from E.U. nations, many of the buildings in which I stayed were clearly marked with the last date they had been sprayed with DDT. What makes Uganda different, such that Thailand can spray residential structures but Uganda supposedly cannot - given that Mallaby purports this debate to be over "the limited spraying of houses" and not widespread agricultural spraying? It didn't take much Googling to find first that this is something of an old story, breaking in February, and second that the issue is not about DDT spraying of itself, but of residue on food exports:

Unless proper safety measures are put in place, the spraying of DDT to kill malaria-carrying mosquitos could severely hurt Ugandan exports of fruit, produce and other flora to EU countries, officials said.

"If Uganda is to use DDT for malaria control, it is advisable to do so under strictly controlled circumstances and in consultation with other countries in the region which may be affected," the EU said in statement released here.

It said that if Kampala began DDT spraying, it would be forced to set up a monitoring system to test for the presence of the pesticide in exports.

The chief of the EU mission in Uganda, Sigurd Illing, said there could be dire consequences for outgoing trade with Europe -- which accounts for more than 30 percent of Uganda's total exports -- if DDT was detected in such goods.

So the E.U. has warned Uganda not that it faces a ban on imports if it implements DDT, but that it should coordinate its spraying with neighboring countries, and that if its spraying raised DDT levels above certain limits its produce would not be permitted into E.U. markets. Now Mallaby may well believe that concerns about DDT in the food supply are overblown, but there's a world of difference between threatening a country with trade sanctions if it uses DDT and applying the same standards to that country's exports as presently apply to every other nation which chooses to use DDT. The U.S. has limits on DDT residue on food imports - what's the difference, other than the fact that we don't import appreciable quantities of Ugandan produce?

The vehemence of Mallaby's position would seem to suggest that DDT is a miracle cure for Malaria, and that no alternative is available. DDT is, to put it simply, a pesticide. There are many alternative pesticides available and, even accepting that many concerns about DDT are overblown, many of those present significantly lower environmental concerns than those acknowledged to result from widespread DDT use. But DDT is cheap - and as long as cost is an option it will remain the only viable pesticide in parts of the developing world. Mallaby does not claim that the E.U. doesn't subsidize spraying programs involving alternative insecticides, despite the relevance of that question to his overall claim. Personally, Idon't think he bothered to look into the issue in sufficient depth to either know that there are alternatives or what the E.U.'s policies are toward mosquito spraying programs that don't involve DDT.

As for Mallaby's notion that it is unfair for western "food-safety paranoia" to get in the way of the developing world's ability to export what the west deems to be contaminated food? I think if he pressed that issue he would find that food safety isn't just a "liberal" or "environmentalist" issue, but crosses the political spectrum. We regulate a lot of chemicals, and arguably many of the limits we impose are arbitrarily low - but it's either naive or dishonest (perhaps in Mallaby's case, a little of both) to confuse "erring on the side of safety" with "paranoia". (A "libertarian" solution might be to have DDT content labels on fruit, such that consumers can make their own decision - but Mallaby presumably would insist that consumers be kept in the dark on the basis that their concerns are "paranoid" and thus need not be respected.)

Unqualified? Mediocre?

Perhaps it is just me, but when I hear people who know next-to-nothing about the law or legal practice, let alone Supreme Court jurisprudence, squawking that Harriet Miers is "unqualified" or has a "mediocre" record, I have to question their motives. When I hear somebody who actually has a law degree, and a history of non-legal writings and columns which play fast-and-loose with the facts, join that reactionary circus... well, then I know I'm hearing somebody who probably knows better. (Is Coulter truly mad because Bush didn't pay homage to the Federalist Society? Does she truly believe that only a conservative nerd from an elite law school is qualified to serve on the Supreme Court? Perhaps she's jealous?)

Let's be honest about the panoply of right wing judges who were groomed and positioned to take the seat now to be filled by Miers - their resumes which ostensibly qualify them for the job are a product of politics. This isn't to say that they aren't bright, or even brilliant - but it is beyond question that they have been guided from above through what had been deemed a necessary series of jobs and judicial positions to ensure that they would be deemed "well qualified" by the ABA, while avoiding any public position that would mark them as extremist. The goal was not only to create a list of possible Supreme Court candidates who had the required resume and judicial philosophy, the goal was also to create a range of candidates who would win confirmation even were there a Democractic majority in the Senate.

The criticism of the Miers nomination that I feel is most relevant is that found buried in George Will's invective:

The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.

In an essay that is only slightly less puerile - falling somewhere between Will's call for experience with the issues and Coulter's ire that the carefully groomed roster of right-wing candidates was ignored - Charles Krauthammer agrees:

To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution.

The Bush Administration's response, that she's some sort of an outsider with real-world experience, who will improve the Court by being unfamiliar with precedent, is unappealing - and one that I wish Miers herself would disclaim. At least if it is untrue. ("I'm not pleased with the way my car is running... maybe I should add some Coca Cola to the gas tank.")

I cannot imagine that the right-wing angst is truly about Miers' resume, the law school she attended, or the firm where she worked. Had Miers spent a few years serving as a federal appellate judge - a position to which she would have been easily confirmed with her conservative critics pouring scorn on anyone on the left who raised their present objections - their complaints would seem petty. But had that occurred, it is more likely that they would know her - that is, have some sense of her capacity as a judge and her approach toward the law and Constitution.

I don't think they care at all that Miers is not a law review editor from an elite law school, who clerked for the Supreme Court and worked for an elite firm before moving into government work and, ultimately, being appointed to the federal bench. I think they are concerned because they recognize that somebody who has not spent a great deal of time contemplating constitutional issues is unpredictable. Her politics may be perfect, but that doesn't mean she won't set politics aside if she is persuaded that the law dictates a different result. And it doesn't mean that, when she is compelled to think deeply about constitutional law issues during her service on the Court, she won't find that deeper thought leads her to reconsider her prior position.

That is to say, I think the primary concern among the right about Harriet Miers is not that she will be a thoughtful judge who will consider the issues, and not legislate from the bench. I think their fear is that she will do exactly that. When they protest that they don't want a judge who will "legislate from the bench", they mean that they want a judge whose politics both known and set in stone, and who can be expected to consistently apply those politics from the bench. A call for a Justice "in the mold of Thomas and Scalia" is a call to upset a century of precedent that most Americans take for granted. The argument that their activism is acceptable because it ostensibly "undoes" past activism seems hypocritical.

As for President Bush, I don't think he cares that his preferred nominee doesn't have "the right pedigree". He personally believes she is a suitable candidate, and he learned a lesson from the Roberts nomination that if you nominate a candidate whose views are unknown, you leave your opponents little to work with. He does not seem to have the patience to appoint her to the Court of Appeals and hope that another Supreme Court opening comes along - and I think that he views such a move as unnecessary resume padding, particularly given the Republican Senate majority. I believe that he fully expects her to advance his agenda, and the assertion that somebody needs to be "more intellectually qualified" for a job seems to raise his hackles. (Despite the Krauthammer-style prattle - "There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president?" - Miers has a better resume than what? Probably 99.5% of practicing lawyers?)

On Bill Maher's show last night, Ann Coulter responded to the question of why the political right found Miers to be unacceptable, while it had acquiesced to the repeated appointment of underqualified and unqualified nominees to a host of government positions. Her response was to the effect that "The Supreme Court is different". Without endorsing Coulter's implicit suggestion that it is okay to nominate poorly skilled people to other federal posts, I think that the Supreme Court truly is different. But President Bush has never given me the slightest impression that he shares that perspective. If anti-Miers conservatives are not comfortable with how President Bush approaches his job, well, perhaps they should have gotten to know him better before working so hard to elevate him to the Oval Office.

It's When They're Quiet....

Conventional wisdom is that you don't have to worry about what your kids are up to if you can hear them playing - it's when they get quiet that you have to worry. When kids cook up mischievous schemes, they think it will help them avoid detection if they are quiet. I just didn't realize how early this starts....

My wife was in the kitchen, I was in my study, and our 11-month-old baby decided to crawl out of the kitchen toward the study - a distance of about four feet. I heard the "pat, pat, pat" of her hands as she headed toward me, then... silence. Only a second or two passed before my wife asked, "Did the baby go into your office?" She hadn't - and she was maintaining complete silence. ("Silent baby" generally translates to "sleeping baby". Their wakeful state is pretty noisy.)

My wife surveyed the kitchen, while I checked the hallway, then we both went into the only possible remaining destination - the living room. Quickly scanning the room, we didn't see the baby. Suddenly the silence was broken with loud peals of baby laughter - she had positioned herself around the corner and against a wall where she was hard to see, but where she could easily see everything in the room. Judging from the volume of her belly laugh, her parents' reaction to her few seconds of "disappearance" was the funniest thing she had ever seen (in all eleven months of her life).

Huge Gas Taxes - The Tierney Cure-All

It's a bit hard to follow the writings of John Tierney these days, at least without paying money to the New York Times. Still, I stumbled across a reproduction of one of his recent columns in which he proposes higher gas taxes. I will admit some amusement that the person reproducing the editorial wrote, "Curb the deficit (Democrats would like that) and start to solve the US gas hunger." - it wasn't so long ago that the Republicans were supposedly the party that wanted to balance the budget.

For many, many years, a very left-wing radio host in the Detroit area, Peter Werbe, has been calling for an increase in the gas tax, proposing that the revenues from the gax tax be channeled into public transportation - that is, you make it more expensive to drive a car, while making it cheaper and easier to get to the same destination through public transportation. As a left-winger, he's of course attuned to the fact that an increase in the cost of gasoline without improvement in public transportation could translate into an immediate, regressive tax on the working poor who are dependent upon cars to get to work. And I have heard many others on the political left, including environmentalists, call for higher gas taxes as an incentive to reduce energy consumption. I recall hearing many arguments against Bush's demand for oil exploration in ANWR on the basis that, even assuming significant oil reserves, much greater energy savings could be achieved through conservation.

Apparently Tierney missed all of that. In his world, all that the political left has demanded are subsidies for alternative sources of energy, and for regulations which require appliances to be more energy efficient. He complains that the former hasn't worked, and that the latter causes appliances to become more expensive (which he asserts amounts to a regressive tax). In relation to cars,

Besides being costly, conservation rules produce unintended consequences. The fuel-efficiency standards for cars led to that environmentalist nightmare, the S.U.V., which became popular because of a loophole in the rules.

Consumers who wanted a big car had to buy one pretending to be a truck because carmakers were forced to downsize their fleets. As cars became lighter, they
also became more dangerous, resulting in an additional 2,000 deaths per year, according to the National Research Council.

Interesting. So nobody ever "had to" buy a full-size van or minivan, before SUV's hit the market? And we're to pretend that the "loophole" wasn't an open secret - one which, Congress willing, could have been easily closed with the stroke of a pen?

Further, it is generally accepted that when fuel prices reach certain levels, people very much take fuel efficiency into account when purchasing vehicles. That is to say, whether the increase in efficiency comes from CAFE rules being extended to SUV's or from an extra $0.50 to $1 per gallon under the Tierney gas tax, people will still move toward those vehicles Tierney describes as lighter and more dangerous.

His arguments on alternative energy present a similar question - if people won't invest in alternative energy (e.g., solar panels on their homes) because even with any present subsidy they are more expensive than the status quo, their incentives presumably will change if traditional energy sources are made subject to a substantial new tax or tax increase. You might not invest in a solar panel for your roof to save $5/month in electricity; you might think again, though, if due to a tax increase your savings would suddenly jump to $50/month.

Tierney seems to believe that a gas tax, and perhaps consumption taxes in general, are good because they "make people figure out on their own how to burn less gasoline". (Or, conversely, free people to burn as much gasoline as they want assuming they are willing to bear the cost - as Tierney also notes, "Individuals don't always make the best choices about energy use.") But unless phased in over time, a significant gas tax would be immediately regressive, hammering the working poor at a time when higher gas prices are already taking a bigger bite out of their paychecks. (But perhaps I'm forgetting that Tierney doesn't live here - he lives here - he can shrug off concerns about the working poor with "why don't they ride the subway.")

Assuming, though, that the Tierney tax is implemented, what should be done with the revenues? Improve the nation's infrastructure? Subsidize conservation programs? Invest in research into alternative energy sources? Pour it into the general fund? Nope. Tierney is apparently proposing that his "solve-everything" tax be diverted into new privatized Social Security accounts ("By raising the federal gas tax and putting the revenue in new Social Security individual accounts, we can save energy and reform Social Security.") So in the name of individual choice, we'll have the government impose a significant increase on the gasoline tax, place the money into mandatory "individualized" savings accounts that we can't control, and the world will magically be made better on all fronts. While people who must drive their old cars to low-paying jobs five or six days a week will rejoice at being liberated from oppressive CAFE standards?

Leaving aside my natural skepticism of any plan where the government supposedly allocates a new revenue stream to a specific purpose (consider, e.g., the sleight of hand by which lottery revenues "went to schools" without any net increase in school funding), and the seemingly obvious question of whether it would make more sense to increase the Social Security tax to pay for a new Social Security program... beyond "choosing" how to pay my bills despite having my pocketbook lightened by a new tax, in the world of those less privileged than Tierney, what does any of what he proposes actually do to advance individual choice?

Comment Verification

So... as unpleasant as it already is for many to comment using Blogger's interface, why do I now require comment verification (even as anonymous comments remain enabled)? Because comment spam is becoming a problem.

Which is weird, because any good spammer should know that blogger has implemented "rel=nofollow" tags for comments, so their spam does them no good in the major search engines. And I doubt that their links are so appealing that they generate natural traffic....

DeLay Battles Vast Left-Wing Conspiracy

Details here... sort of.