He's President of... What Country, Again?

The New York Times editorializes that despite Obama's effort to move forward on the issue of an Israeli-Palestinian peace accord, the various actors involved have been resistant to his requests. They conclude,

Israeli leaders do not often risk being at odds with an American president, but polls show broad support for Mr. Netanyahu’s resistance. President Obama, a skilled communicator, has started a constructive dialogue with the Islamic world. Now he needs to explain to Israelis why freezing settlements and reviving peace talks is clearly in their interest.

No, actually, he doesn't. His job is to explain to Netanyahu the current position of his administration, why he expects certain steps to be taken by Israel in the interest of U.S. foreign policy interests, and the consequences that will follow from Israel's choice to stand in the way of those interests. It's then Netanyahu's job to justify his own administration's response to Obama's requests and demands, and why Israel might be better served by non-compliance than by cooperation.

I would be fascinated to read a New York Times "draft speech" for Obama, explaining in their terms why Israelis should support the Obama Administration's policies. I am having a hard time imagining any such speech that would not come across as patronizing, condescending, and ultimately prove counterproductive. Does the New York Times truly believe that Israelis don't understand the nature of the settlements, or that those who have chosen for more than forty years to disregard the realities of the settlements are going to suddenly change their mind in response to a speech by a foreign leader - even a U.S. President?

The New York Times tiptoes around the issues of settlements, mentioning growth but deliberately omitting the numbers that could give its readers perspective on why the settlements are such a big issue. But, what a surprise, Fred Hiatt's gang at the Washington Post, doesn't even offer a limited context. The Times notes,

Under pressure from Washington, Mr. Netanyahu’s government has dangled a possible compromise: a temporary freeze in new construction, as long as 2,500 units now in process can be completed and Arab East Jerusalem is exempt. It is a weak offer.

The Post doesn't much care how weak the offer is:

Rather than pocketing Mr. Netanyahu's initial concessions - he gave a speech on Palestinian statehood and suggested parameters for curtailing settlements accepted by previous U.S. administrations - Mr. Obama chose to insist on an absolutist demand for a settlement "freeze."

By "administrations", the Post really means "Administration" - specifically the second Bush Administration. It certainly isn't describing the policy toward settlements advanced by the first Bush Administration. And to the extent that it means to allude to what happened under Clinton, it should be observed that at the start of peace talks under Clinton Israel had about 200,000 settlers in the West Bank and East Jerusalem, and by the end it had about 400,000 settlers. Under Bush, that grew to about 500,000. A more honest gang than Hiatt's would acknowledge that one of the reasons Obama is moving away from the "parameters for curtailing settlements accepted by previous U.S. administrations" is that they've been a total failure.

At the end of the day, both papers should accept the self-evident: That Barack Obama is not the President of Israel, and his job is to advance American foreign policy. The whys and wherefores, this time around, should be self-evident to anybody conversant on the issues. Appearances to the contrary, I believe the anonymous authors of both editorials understand that. But Obama's explanations are owed to the American people - the people who elected him to advance their collective interests. I'm not saying it wouldn't be nice if there were a magic speech Obama could give that would transform Israeli public opinion, but to the extent that it's the job of any political leader to explain to the Israeli people the costs and benefits of following U.S. policy toward Israel's settlements, that leader's name is Netanyahu.

Preventive Care and Cost Savings

Among those who crunch the numbers, the consensus is that providing people with preventive care doesn't offer appreciable cost savings to the healthcare system. To oversimplify, the bulk of your medical costs will occur when you die, or when you're in a catastrophic accident. Preventive care won't stop either.

This is used by some to advance the disingenuous argument that preventive care therefore has no real value, and shouldn't be covered by insurance. A common formulation of this argument is that it's "like auto insurance covering oil changes or new windshield wipers". Well, no. It's like preferring a dealer or car manufacturer that offers free oil changes and wiper blades as an incentive to buy or get service from them - if you want to, in effect, prepay for those services, all the more power to you. (The analogy, also, works much better with wiper blades than with oil changes, but for now I'll give that issue a pass.)

Here's the argument, nestled into a greater heap of disingenuousness:

Congress’s health plan pays for routine expenses like office visits and vaccinations, for example, which is like auto insurance covering oil changes or new windshield wipers. As a result, the premiums are steep — upwards of $13,000 a year for a family (69 percent of which is paid by the government). To provide the 50 million Americans who are now uninsured with such a plan would require scary tax increases.

I don't doubt that the cost of health insurance for those on the federal health plan now amounts to $13,000 per family, but you would have to be pretty dense to believe that the lion's share of that cost results from annual physicals and vaccinations, or that the cost would decrease by any appreciable amount if those benefits were eliminated.

In the county where I live, you don't need health insurance to get your child's routine vaccinations covered - the County will provide them. My child's doctor prefers to bill vaccines through the county without regard to a child's healthcare coverage, as it allows his office and his patients to avoid having to deal with copays and deductibles. Why would the county do such a "foolish" thing? Because there's a significant public health benefit in not having outbreaks of measles, mumps, polio, rubella, diphtheria, tetanus, even chicken pox.... Maybe vaccines weren't such a great example, either? But leaving that aside, as well, despite that cost being largely borne by the public the cost of health insurance isn't any lower here than it is in similar parts of the state or country. I suspect that for less than $200 per year per presently uninsured person above current expenditures, you could arrange a full annual physical, a reasonable battery of screening tests, and vaccines. After all, even for the fully insured, in a survey covering 2002 through 2004 "The average physical lasted 23 minutes and cost $116, including related laboratory and radiology services." Whatever the merits of the annual physical, like vaccines, their cost is a tiny part of the $13,000 insurance tab described, and it would not require "scary tax increases" to include vaccines and physicals in every health insurance plan in the nation.

The author doesn't do a good job maintaining internal consistency:

An alternative strategy for Congress would be the new “fitness club” model offered by some doctors, in which members pay $65 a month for same-day or next-day access to primary care services. This would involve no insurance companies, so it would save administrative expenses.

So the reason we pay $13,000 per year for health insurance is because of primary care - office visits and the like - but enormously improved primary care is readily available to anyone, insured or uninsured, for $780 per year? Do try again.

If you were to analyze the portion of the insurance premium that goes to end of life care or to chronic disease management, that number starts to look large and scary. So why the focus on vaccines and office visits? In the case of that particular author, apparently because the health care clients for whom he works favor HSA's and high deductible insurance plans. So it appears to be a sleight of hand - lobby for your clients, pretend that the cost problem comes from routine office care, and distract people from the fact that you're really trying to shift a huge portion of the cost of chronic disease management from the insurance company to the individual.

Yes, that form of health coverage can return huge savings to insurance companies and employers. It also creates huge costs for healthcare consumers. I commented on this last fall. Although the author doesn't actually argue that his proposed reforms will protect the pocketbooks of individuals - just to hold down the cost of insurance - he sure implies that he's trying to save people money (the federal insurance plan "does little to encourage people to be smart health care shoppers"). I think he should be more honest. For that matter, so should the newspapers that run his columns, both in relation to the fact that he's a healthcare industry consultant and in relation to the interests of the clients he serves and how their interests may diverge from those of the taxpayer or the insured individual.

An essay by the same author argues explicitly against insuring preventive care, but again without much internal consistency. (Granted, he admits this time around that vaccines offer a big payoff, but that creates an inconsistency with the argument he makes in his other editorial that insured vaccinations are like getting free wiper blades for your car.)

"Prevention gives you a better quality of life," says Uwe Reinhardt, a health economist at Princeton, "but I have never seen any analysis that shows that in the long-run a society that uses a lot of prevention will have lower health care costs."

I've already mentioned the public benefit that come from some forms of preventive care, such as vaccinations. It's worth elaborating on that. It may well be true that the cost of having somebody die young from a cancer that could have been treated with earlier diagnosis, or a heart attack or stroke that could have been prevented by a health screening followed by medication or surgery. In some cases it may cost more healthcare dollars to treat them now, followed by the cost of management of their condition, followed by the cost of whatever ends up killing them.

But what of that "quality of life" thing? Let's leave the benefits to the individual aside for the moment. Let's consider societal benefits. If "lower quality of life" means reduced productivity, disability, welfare dependence, etc., significant costs are imposed upon society. They don't happen to be healthcare costs, but they're nonetheless costs. Employers may lose a productive employee, the tax base is diminished by their shortened work life, they end up in a medical bankruptcy... the costs can be significant. If we're going to have an honest discussion of the benefits of preventive care, even if we completely discount the value of quality of life to the individual, we should be considering those costs to society.

Also, I'm personally of the opinion that primary care providers benefit from seeing their patients over time, both in terms of spotting changes in health and in terms of learning how to interview, diagnose and treat other patients. It's fun to imagine that a doctor fresh out of medical school is every bit as skilled as a doctor with twenty or thirty years of practice behind her, but on the whole experience does count. Taking the argument at face value, can we be sure that the lack of obvious financial return on preventive care "proves" that the care returns nothing to the healthcare system? Or should we explore the impact of depriving patients and doctors of any sort of long-term relationship, particularly in relation to the growth of a doctor's skill set? Also, the relationship goes both ways - some patients will be a lot more comfortable discussing their health with a doctor they know and trust.

And then, this:

The potential game-changer over the long-term isn't prevention per se but behavior change. Prevention - taking meds and getting special checkups and the like - may be good for us, but it also imposes societal costs that may outweigh any savings, and often involves folks who've already got serious ailments to manage.

* * *

Changing the way kids view fruits and vegetables versus potato chips and candy bars could eventually bend the cost line, says Len Nichols of the New America Foundation. If we reduce obesity and the incidence of new chronic ailments over time - and thus cut the presence of super-costly multiple chronic conditions when people reach the end of their lives - Nichols says, "the impact could be profound."

So he does endorse a pretty massive form of preventive care. I guess he just thinks this form will somehow be free.

Update: Bill Moyers interviews a former insurance company executive who describes what Matt Miller's lobbying for. Toward the end of the executive's tenure in the health insurance industry,

Well, I was beginning to question what I was doing as the industry shifted from selling primarily managed care plans, to what they refer to as consumer-driven plans. And they're really plans that have very high deductibles, meaning that they're shifting a lot of the cost off health care from employers and insurers, insurance companies, to individuals. And a lot of people can't even afford to make their co-payments when they go get care, as a result of this. But it really took a trip back home to Tennessee for me to see exactly what is happening to so many Americans

Ironically, Miller trots out his past role in the Clinton Administration to try to claim credibility on these issues, while in fact "the industry is resorting to the same tactics they've used over the years, and particularly back in the early '90s, when they were leading the effort to kill the Clinton plan" - wherever Miller stood last time, this time it's fair to infer that he's advocating for his industry clients.

This Isn't Religion

It may be narcissism. It may be mental illness. But this is not religion:

A central Wisconsin father charged with reckless homicide for not taking his dying daughter to a doctor told police that he believed God would heal her and that he thought she was simply sleeping when she became unconscious.

* * *

The family does not belong to an organized religion, and Neumann's wife, Leilani Neumann, testified Tuesday that she and her husband have nothing against doctors. But, she said, she viewed Madeline's illness as "something spiritual."

I'm not particularly impressed by people who let their children die in the name of an organized religion, either, but how do you defend it when what you call your "religion" is pretty much something you make up as you go along?

Beer With Obama @ Blogspot.Com?

I'm wondering if I should change the name of my blog, then try to say or do something sufficiently stupid, inflammatory or insensitive to result in my invitation to have beer with the President. (Maybe a citizen's arrest of Ray Tanter?)

Healthcare Bipartisanship

Ruth Marcus offers a peculiar editorial today, urging the President to consider two "bipartisan" healthcare proposals. She defines "bipartisan" as "Supported by at least two members of Congress, at least one of whom is from each major party."

Now, don't get me wrong, if there's a good bipartisan solution it should be considered by the rest of Congress and the President. But by any sensible measure of bipartisanship, a bipartisan solution would be one that is likely to pass with the support of both parties. And there should be appreciable support. If you can't get a majority, you can still reasonably paint as bipartisan a solution that passes with only 30 - 40% support in the minority party. But it's a bit of a stretch when you're talking about a handful of defectors, even before considering that minority party members of a "Gang of 14" or equivalent are often motivated by factors quite apart from the best interest of their party and its supporters.

When you're talking about a proposal that seems to have the support of only one member of the opposition party, and perhaps no greater amount of support in the majority party? How is that bipartisan in any meaningful sense of the word?

Marcus also provides an odd explanation of why bipartisanship is necessary:

You may dispute the entire premise of this column - that bipartisanship is essential to this enterprise - and argue that Democrats, with firm control of both houses, should get everything they want.

My answer is that it's not so firm. The current standoff with Blue Dog Democrats suggests the need for some compromise, and the 60-vote Senate Democratic majority is far from monolithic.

It's hard to see the logic for the holes. First we have the straw man - if you don't think that bipartisan is essential to healthcare reform, you must want the Democrats to act unilaterally and get everything that they want. Nonsense. The majority party should not have to weaken healthcare reform, or any other reform, in the interest of drawing in the single Republican vote that would make people like Marcus sigh, "Ahhh... bipartisanship...." The goal should be putting together the best possible package that can pass.

Beyond that, if Ruth Marcus put Chuck Grassley and Robert Bennett, the two Republicans she identifies into a room with the instruction, "Don't come out until the two of you agree on a single healthcare reform bill," is there any reason to believe that they would come to agreement? Further, why does Marcus believe bipartisanship must come at a bill's inception? If the participation of one Republican is sufficient to render a bill "bipartisan", why wouldn't a Democratic reform bill be sufficiently "bipartisan" if at least one Republican supports the end product? And what if the principal goal of the Republican Party is that expressed by some of its members - to defeat healthcare reform in order to damage Obama's Presidency? If the goal of the minority party is to tear the wheels off of the cart, it makes little sense to ask them for design tips.

Further, while political parties can at times be disciplined and vote or act as blocs, it's perfectly normal for a political party in this country to include politicians with different views and ideas. Heck, put any two people in a room, no matter how closely ideologically aligned, and you're going to find points of disagreement. Does Marcus truly find it surprising that fissures and factions form when you bring together 256 politicians and tell them to come up with a major overhaul of the multi-trillion dollar healthcare system? That's inevitable, even before you consider possible external motivators (industry ties, campaign contributions, etc.).

Now if Marcus were arguing that the Democrats could overcome opposition to a perfectly reasonable healthcare reform bill, coming from a tiny faction of Blue Dogs, by bringing in enough Republicans to pass the bill - whether or not the views of those Republicans was representative of their party - that would be what the media used to applaud as "bipartisanship" when Bush was President. For some reason, Marcus no longer deems that sufficient. Why not?

The gist of Marcus's argument appears to be that bipartisan solutions are always better and thus, even if a solution must be weakened or broken in order to get bipartisan support, that support should be obtained. I wonder if she would propose that the National Council of Churches resolve its theological disputes by granting veto power to Richard Dawkins.

Douthat's Weak Grasp of History

I was planning to make some snarky comments about Douthat's attempt to compare the occupation of Iraq to the occupation of the Philippines, but instead I'll defer to Spencer Ackerman and Robert Farley. But this?

But America’s most important interest remains a stable, unified Republic of Iraq, even if takes longer than any domestic faction wants. Afghanistan may be “the good war” to most Americans, but Iraq’s size, location, history and resources mean that it’s still by far the more important one.

Yes, the 9/11 plot got its start in a chaotic, conflict-ridden Afghanistan. But a Middle East-wide war could get its start in a chaotic, conflict-ridden Iraq. Indeed, before the surge, it almost did. This reality will keep us heavily involved, one way or another, long after our “withdrawal” is complete.

Seriously, can Douthat answer these three questions:

1. How, exactly, can we transform Iraq into the nation we want instead of the nation it is?

2. Exactly how much will we have to invest in terms of time, money, and lives to make that happen, and what costs will the Iraqi people absorb as we fulfill our goal?

3. How do you know that things won't progress at least as well, or perhaps even better, if we do our best to leave and let the Iraqis run their own country?

If he can't be exact, approximations will suffice - shall we say, plus or minus five years? Plus or minus the lives of one thousand U.S. soldiers? Plus or minus the lives of 10,000 Iraqis? Plus or minus $100 billion U.S. taxpayer dollars?

When Douthat scored his gig at the times, people talked about how he was a good thinker. I'm trying to keep an open mind... Yet while I have discovered his certitude and can't miss his cornucopia of platitudes, I have yet to develop the sense that his still waters run deep. He's good at spotting issues, he's good at describing problems, and he's good at polite condescension toward those with whom he disagrees, but he either believes that's where the job ends or is incapable of further analysis. Am I wrong to expect more?

The Senate, The Media and the Supreme Court

Via LGM, Jeff Toobin offers a good analysis of the disservice done to the public by Supreme Court confirmation hearings, and by the tepid media analysis of those hearings.

Where Did I Leave My Sack of Hammers

Oh, never mind. As it turns out, Bill O'Reilly's offering himself up as a reasonable substitute.

Newsclowns At Work

Covering healthcare reform is too hard.

Update: As if on cue, Richard Cohen.

The Importance of High Expectations

Quite a few years ago I represented a young man who had been arrested for selling crack cocaine. He had been raised by his grandmother who was too old for the job of raising a troubled teen, but his parents were lost to addiction. During his sentencing, I described him (accurately) as "intelligent". Of all the things people said about him in court, including the prosecutor and probation officer, that was the only one that got a reaction out of him - he did a double-take. I suspect that it was the first time he'd heard himself described in that manner. (Ask anybody who knows me, or read this blog and judge for yourself - "intelligent" is not a word I apply to people who don't deserve it.)

I had a similar sense of some of the kids when I was substitute teaching. That some kids, perhaps most noticeably at twelve or thirteen, were internalizing very negative self-perceptions - that they're trouble-makers, stupid, lazy, etc. - but that they could be steered toward being both more positive about themselves and, as a related consequence, better students. I'm not going to start advocating mindless self-esteem exercises, used in some schools; that's not what I'm talking about. But an aware teacher backed up by some school and community tools (tutoring, a decent school counselor, mentoring programs) could make a big difference for some of those kids.

A while back I discussed the experiences of two Teach for America teachers - where two TFA corps members in the same school had very different experiences. One was quick to blame his students, other teachers, and school administrators for the fact that he was unable to motivate his students, unable to motivate himself, and unable to make a difference. The other was in full-blown TFA mode, a beacon of positivity, fully convinced that if he went into the classroom with high expectations they would be met.

It's not that I think everything can be overcome by teacher expectations, or that every personality type is suited to becoming a teacher of that second variety. But I do think that TFA is correct that a teacher with a positive attitude who is convinced that her teachers can excel is much more likely to achieve that result than a peer who is negative and cynical - or an experienced teacher who is negative, cynical or burned out. Students do pick up on what their teachers think, and I believe a majority will ultimately live up or down to their teachers collective - and often also individual - expectations. The type of drive and positivity TFA demands is most important in troubled schools, as they've become context where low expectations, negativity and fatalism have often become the larger school culture. Really, the first time a smart kid hears somebody say that should be in school, not criminal court.

Creating Career Paths

The New York Times suggests,

President Obama talks a lot about a bright future with high-paying green technology jobs. It is imperative to plan and work for that future. But a concerted effort must also be made to improve the opportunities for workers in the types of low-wage jobs that are going to be most plentiful for years to come.

That means working with unions, professional associations, community colleges and employers to build so-called career ladders so workers can attain the skills they need to advance, say, from a very-low-paid home care aide, to a low-paid nurse’s aide, to a higher-paid licensed vocational nurse. Partnerships between unions and employers in hospitals, casinos and factories have pioneered such skill-building efforts, combining on-the-job training with classroom instruction.

A mish-mash of ideas but, I think, missing the point. In my experience there is a natural "career ladder" for minimum wage workers. Those who have the capacity to supervise others can, in relatively short order, become supervisors. Those who do reasonably well as supervisors can become shift managers, and can work their way up to general managers. When there's not a career path with one employer, they can find jobs with other employers where there's opportunity for advancement.

I'm not going to argue that this career path is fun or easy - it can involve doing unpleasant work, having an unpleasant shift schedule, and even management jobs in the service industry can return mediocre wages. But as a society we need to accept that there are some people who languish in low-wage jobs with no chance of advancement not because of the nature of the job, but because of their own issues - low intelligence, drug or alcohol addiction interfering with their reliability or performance, mental illness, etc.

The notion of unions helping minimum wage workers is interesting, but it's not their job. Does the Times imagine that they'll raise union dues to fund these activities? Also, I don't imagine that many of the employers of low wage workers, such as Walmart, would be overjoyed at the prospect of having union representatives enter their workplace to coach their employees on how to obtain promotions or get higher wages. What role does the Times envision?

Community colleges are already supposed to be offering opportunity, short of a four year college degree, to learn a trade or earn a certification. When employers are short of employees in needed areas, they often do select employees for training programs or even help them with two or four year college degree programs. But when employees with the appropriate skill set are plentiful, unless it helps with retention or productivity, it makes little sense to offer such opportunities - you're training people to have entry level skills for jobs where there are already adequate numbers of more experienced applicants.

Further, even in the face of a shortage of qualified employees, it can be difficult to project tomorrow's employment needs based upon what's happening today. By the time the need is identified and the time you complete your program, you can find that the job market is glutted by people who graduated a bit sooner than you, with people returning to that job market from other fields or even from retirement, or that the "dream job of the future" didn't pan out - it wasn't so long ago that people were suggesting that anybody could become a web designer earning $40K+. Now basic web design is commoditized.

It's tough to try to formulate a career path - and odds are, your actual career path is going to look (or already looks) quite a bit different from what you imagined back in high school or when you took your first "real job". I do think employers should be encouraged to help employees advance from within, and to support employee training programs that help their employees serve their present and future needs - that seems like a win-win. But I think it's better, on the whole, to help people with the interest and aptitude get into a college program of their own choice, feel their way around a bit (perhaps even changing programs) and graduating with a degree or certification that's a good fit, rather than one picked based upon a job market that probably hasn't existed since they enrolled.

Larison on Brooks

"If Brooks’ heart has been broken by Republican failure, it is a self-inflicted wound."

Take it From One Who Knows....

Michael Gerson chastises,

Some may accuse such moderates of lacking in boldness or ambition. It is better than lacking in responsibility and good judgment.

And he should know; he's lived his professional life both ways - sometimes simultaneously.

Contrast Harold Meyerson, who knocks down the irresponsibility that passes for "centrism" in today's politics.

Pat Buchanan Channels James Watt

James Watt, 1983:

"I have a black, a woman, two Jews and a cripple. And we have talent."

Pat Buchanan, 2009:

Six nominees have been sent to Congress by Democrats since 1964: Thurgood Marshall, an African-American, four Jewish nominees - Arthur Goldberg, Abe Fortas, Ruth Bader Ginsburg and Stephen Breyer - and one wise Latina woman.

It's hard to know what to make of Buchanan's thought exercise - although he nominally asks, "Why No Evangelical Justice?", his argument are at odds with the positions he recently articulated to Rachel Maddow. If I were to give him the benefit of the doubt, I would say that his essay is meant to illustrate the absurdity of Watt's brand of "diversity by the numbers", attributing it to his political opponents, then (ostensibly ironically) suggesting that it be used to advance a political agenda with which he sympathizes:

Republicans should now be searching for highly qualified Evangelical Christian judges and constitutional scholars, women as well as men - and, when falsely accused of being “anti-Hispanic” or “anti-woman,” ought to reply: “What do you liberals have against white Christians, man or woman, not to have named one in 45 years?”

The problem for Buchanan is that James Watt-style bean counting, and similar appeals to grievance against whites, are part and parcel of his entire intellectual career. Here he is in 1971:

My recommendation is now and has been that the Administration - in placing minority members in visible jobs — stop concentrating on the “media’s minorities” (Blacks, Mexican Americans, Spanish-speaking) which are tough to crack, almost solid Democratic — and begin focusing on the large ethnic minorities (Irish, Italians, Poles, Slovaks, etc.), the big minorities where the President’s name is not a dirty word, where the President’s personal beliefs and political actions are more consistent with their own.

In concrete terms,

[I]nstead of sending the orders out to all our other agencies - hire blacks and women - the order should go out - hire ethnic Catholics preferable women, for visible posts. One example: Italian Americans, unlike blacks, have never had a Supreme Court member - they are deeply concerned with their “criminal” image; they do not dislike the President. Give those fellows the “Jewish seat” or the “black seat” on the Court when it becomes available.

Buchanan is a living, breathing embodiment of his "ironic" argument, and there's little to indicate that he's ever favored meritocracy when it came to anything other than impeding the progress of minorities. Does he expect his readers not to know that? Buchanan alludes to his opposition to the nomination of Harriet Miers to the Supreme Court, ostensibly a matter of her being "unqualified", but where in his historic writings can we find any suggestion that he would not have found her to be qualified based on the same résumé, had she only been Catholic? Similarly, in relation to Sotomayor, had she only been conservative... and possibly Italian?

A Little Consistency?

Pat Buchanan argues,

Listen, it certainly is. Look at her own words in "The New York Times," from the tapes. It's in "The New York Times," June 11th. She said, "I'm an affirmative action baby." ... I got into Princeton on affirmative action. I got into Yale. I didn't have the scores that these other kids did.

How did she get on Yale law review? Affirmative action. How did she get on the federal bench by Moynihan? Moynihan needs a Hispanic woman just like Barack Obama needs a Hispanic woman.

That is not the criteria we ought to use, Rachel.

He later argues,

I would-I think the Republicans had an outstanding Latino who had outstanding grades, who was brilliant and was gutted, Miguel Estrada.

Estrada's résumé seems quite similar to Sotomayor's - that is to say, both attended top schools, made law review, graduated with honors, worked as government attorneys.... Beyond his being conservative and male, why does Buchanan give Estrada the benefit of the doubt in relation to his qualifications while attributing all of Sotomayor's achievements to affirmative action?

Nominating The Best Legal Minds

When I think back to law school, I recall some of my professors as being downright mediocre, some as intellectually gifted but poor communicators, some as being very bright and incredibly hard-working, and a few as being on a different intellectual plane - where once you caught up with their ideas you might be pretty amazed, but at the same time wonder if their conceptions had any place in the real world. Other than the first group, were we choosing among law professors for Supreme Court nominees, how would we quantify which are the best legal minds? If we are focusing on brilliant, innovative thinkers, I think that last group wins out... and their opinions would likely make for the most interesting reading. But I'm not sure that's what we actually want.¹
--------------
1. Can you imagine trying to practice law where every Supreme Court opinion came in the form of a plurality?

Cue Final Jeopardy Music

Richard Cohen offers up yet another column that makes you wonder how he got his job.... He expresses that Judge Sotomayor was qualified to be made Justice Sotomayor, but is perplexed as to why she was chosen from among other qualified candidates.

But she has no cause, unless it is not to make a mistake, and has no passion, unless it is not to show any, and lacks intellectual brilliance, unless it is disguised under a veil of soporific competence until she takes her seat on the court.

Yes, the brilliant Richard Cohen sees no evidence of cause or passion in the résumé of a former director of the Puerto Rican Legal Defense and Education Fund. But, you know, let's take him at face value. Cue the music...

• What are the "causes" and "passions" of the other Justices presently serving on the Supreme Court?

• Where and when has Richard Cohen praised their passionate, cause-driving lives, or criticised them for an apparent lack of passion or causes?

• Same questions, but in relation to a lack of obvious brilliance, or in relation to Justices "hiding" their brilliance by being consistently competent?

As for competence being "soporific", what does Cohen think appellate judges do? He expects legal opinions to read like Harry Potter novels? I suspect he's in fact telling us about himself - that he tried to find evidence of bias in Sotomayor's opinions, but found the actual search for facts to be too boring, so he instead served us up a helping of his usual mind-slop.

In the meantime, Sotomayor will do, and will do very nicely, as a personification of what ails the American left. She is, as everyone has pointed out, in the mainstream of American liberalism, a stream both intellectually shallow and preoccupied with the past.

Cue the music: Which opinion columnist, named Richard Cohen, is widely considered to be intellectually shallow and to personify what ails the American left? (Did I give him a big enough hint?) I mean, seriously, this sort of ad hominem is fun, and all, but Cohen would be better served by leaving it to the likes of Ann Coulter. Case in point:

What, though, about a jurist who can advance the larger cause of civil rights and at the same time protect individual rights? This was the dilemma raised by the New Haven firefighters' case. The legal mind who could have found a "liberal" way out of the thicket would deserve a Supreme Court seat. As an appellate judge, Sotomayor did not even attempt such an exercise. She punted.

This is what. Cohen's seventieth¹ column on the firefighter's case? And he's offered what, other than whininess, as a "'liberal' way out of the thicket"? In fairness, I suppose, he's not claiming that he deserves a Supreme Court seat, but it's a bit tiresome to have people like Cohen set as benchmarks for qualification tests they're woefully unprepared to meet themselves, while pretending to be competent to speak on the issue.

She was similarly disappointing on capital punishment. She seems to support it. Yet it is an abomination. It grants the government a right that it should never have, one that has been abused over the years by despots, potentates and racist cops. It is always an abuse of power, always an exercise in arrogance - it admits no possibility of a mistake - and totally without efficacy. It is not a deterrent, and it endorses the mentality of the killer: Human life is not inviolate.

Cue the music: Which Supreme Court Justice, at his or her confirmation hearings, expressed that the death penalty is unconstitutional? Where are Cohen's columns decrying the other nominees who did not?

Contrast her approach to this and other problems with what Antonin Scalia has done with issues close to his own heart. Where in all of Sotomayor's opinions, speeches and now testimony is there anything approaching Scalia's dissent in Morrison v. Olson, in which, alone, he not only found fault with the law creating special prosecutors but warned about how it would someday be abused?

Oh, that's cute. Cue the music:

• How much of a factor have the opinions and dissents of Justices, not yet written and on cases they have not yet heard, played in past confirmation hearings?

• What made Scalia's dissent legally correct, as opposed to according with Cohen's personal political views post-Kenneth Starr?

• How consistent was Scalia in subsequent opinions during Clinton's Presidency, when he appeared happy to bless any lawsuit, investigation or other action against a sitting President - albeit one who he politically opposed?

What are the odds Cohen read any of those opinions....

My admiration for Scalia is constrained by the fact that I frequently believe him to be wrong. But his thinking is often fresh, his writing is often bracing; and, more to my point, he has no counterpart on the left. His liberal and moderate brethren wallow in bromides; they can sometimes outvote him, but they cannot outthink him.

Is Cohen speaking about the Justices he perceives as being on the "left" or is he speaking of himself? Where can I find Cohen's columns where he takes a decision in which Scalia is in the minority, with a majority decision written by a Justice from the "left" of the court, and explains how Scalia was wrong but that the majority opinion is flawed? Let alone one that describes how it was flawed? I can't, you say? How surprising....

Scalia's a smart man, and many regard him as the smartest member of the Supreme Court. But all Cohen's doing here is "drinking the Kool-Aid". He, himself, is wallowing in bromides, albeit bromides about Scalia. Can the columnist who admits that competent, well-reasoned legal opinions make him fall asleep really pretend he's competent to compare the performance of different Supreme Court Justices?²

Cue the music: Which of Scalia's opinions convinced Cohen that Scalia offers a fresh, bracing style of writing? (I know he singled out the dissent in Morrison v. Olson, but... have you read it? Has Cohen?)

The present case began when the Legislative and Executive Branches became "embroiled in a dispute concerning the scope of the congressional investigatory power," United States v. House of Representatives of United States, 556 F.Supp. 150, 152 (DC 1983), which -- as is often the case with such interbranch conflicts -- became quite acrimonious. In the course of oversight hearings into the administration of the Superfund by the Environmental Protection Agency (EPA), two Subcommittees of the House of Representatives requested and then subpoenaed numerous internal EPA documents. The President responded by personally directing the EPA Administrator not to turn over certain of the documents, [p700] see Memorandum of November 30, 1982, from President Reagan for the Administrator, Environmental Protection Agency, reprinted in H.R.Rep. No. 99-435, pp. 1166-1167 (1985), and by having the Attorney General notify the congressional Subcommittees of this assertion of executive privilege, see Letters of November 30, 1982, from Attorney General William French Smith to Hon. John D. Dingell and Hon. Elliott H. Levitas, reprinted, id. at 1168-1177. In his decision to assert executive privilege, the President was counseled by appellee Olson, who was then Assistant Attorney General of the Department of Justice for the Office of Legal Counsel, a post that has traditionally had responsibility for providing legal advice to the President (subject to approval of the Attorney General). The House's response was to pass a resolution citing the EPA Administrator, who had possession of the documents, for contempt. Contempt of Congress is a criminal offense. See 2 U.S.C. § 192. The United States Attorney, however, a member of the Executive Branch, initially took no steps to prosecute the contempt citation. Instead, the Executive Branch sought the immediate assistance of the Third Branch by filing a civil action asking the District Court to declare that the EPA Administrator had acted lawfully in withholding the documents under a claim of executive privilege. See ibid. The District Court declined (in my view correctly) to get involved in the controversy, and urged the other two Branches to try "[c]ompromise and cooperation, rather than confrontation." 556 F.Supp. at 153. After further haggling, the two Branches eventually reached an agreement giving the House Subcommittees limited access to the contested documents.

Wow... so fresh... so bracing. I feel like I'm crossing the Gulf of Mexico by sailboat, salty wind in my face....

This is the sad state of both liberalism and American politics. First-class legal brains are not even nominated lest some senator break into hives at the prospect of encountering a genuinely new idea. The ceiling is further lowered by the need to season the court with diversity, a wonderful idea as long as brilliance is not compromised. The result has been the rout of sexism: The women are as mediocre as the men.

Cue the music: Which female columnists for a major national newspaper are as consistently mediocre as Richard Cohen? When was the last time Cohen served up "a genuinely new idea"?

From all we know, Sotomayor is no Scalia. She is no Thurgood Marshall, either, or even a John Roberts, who is leading the court in his own direction.

Cue the music: What is the difference between an Associate Justice and a Chief Justice?

A million lawyers in America and something Jimmy Carter used to say comes to mind: Why not the best?

Cue the music:

• When was the last time "the best" legal mind (or let's say, one of the top 100) was nominated to the Supreme Court?

• When was the last time Richard Cohen cared?

I picture Cohen going home with the consolation prize....
--------------
1. If you need the explanation, yes, I sarcastically exaggerated the number of columns.

2. If you replied, "Yes, he can - right there, on the pages of the New York Times," touché.

Er... We Do What?

Did you know, this is how you eat your food:

Adopting the American habit of using only a fork to eat your meal, however, represents a revolution in table manners that's both seismic and deeply unwelcome.

The single-fork manoeuvre requires the diner to cut up his food into handy bite-size portions, before transferring the fork to the right hand to begin the spearing and eating. What a ghastly, babyish way of behaving – as if Nanny used to cut up your meat and potatoes in the nursery, and you never grew out of it.

The only person in my household who eats in a manner akin to that is our four-year-old, and as the author indicates that's appropriate. I've been to a lot of restaurants and eaten in various other public settings and... what is this guy talking about?

I can understand, as can he, the British rebellion against their sometimes absurd table manners.

Few domestic metal objects carry more precarious symbolism for the British than cutlery. Employing the wrong edge of the spoon to drink your soup, holding your knife like a fountain pen, putting a knife in your mouth, shovelling peas onto your fork – these are gaffes that consign you to social perdition, as surely as drinking tea out of the saucer.

Even as a child, the British rule for the proper use of a fork seemed silly to me. Let me see... rather than doing something unseemly like "shoveling" peas into my mouth or spearing them on the fork, I am to mash them to the bottom of my fork then eat with the fork, tines down. And if they don't stick very well, I can use my mashed potatoes as glue.... How attractive?

Come to think of it, I can't remember the last time I was served peas while in England. Perhaps that's the solution? When proper table manners make eating a particular food item completely unattractive, don't serve it in public?

Debenhams' Civilised Dining Campaign is a welcome attempt to halt the Americanising of table manners, before we're required to abandon cutlery altogether and behave like the cowboys eating beans with their fingers, in the campfire scene in Blazing Saddles...

How about a Sensible Dining Campaign? You know, a happy compromise where you can at times eat with a fork, tines up, or where it's more important that you food neatly reach your mouth than that you filled your soup spoon "back to front" or that you're sipping from from the front of your spoon instead of the side?

"First Thing, Get a Job At Your Dad's Investment Banking Firm...."

Law.com offers what, to me, is a peculiar article about a former lawyer who is supposedly starting a consulting business to tell other lawyers how to leave the profession. I have met a lot of lawyers who would be happy to move into other fields, but are held back by concerns about what alternative field to enter, earning potential, and stability of income. What answers does this person have?

• Figure out your alternative career field for yourself: this is "about: transitioning to your own business, one with low overhead and a predictable monthly income, all while 'doing something you love.'"

• Don't expect to maintain your income: "'Tonight's not about making a million dollars,' Berman said to a gathering of about 25 people."

• You can't afford it. Seriously - "'How can you afford this?' Berman asked. 'First of all, you can't.'"

I'll give Berman some slack on that last point, as he appears to be suggesting that you have to make a serious investment of time and money to get your business off the ground. Yet at the same time, during his prior ventures Berman "continued part time as outside counsel to [his former employer] to help pay the bills" and for his current venture "he's working full time at Berman Capital, his father's investment banking firm in North Beach (though not as a lawyer". Is this a pitch for creating an alternative career path, or is he arguing that lawyers should moonlight in their copious spare time?

Seriously, if this were a pitch for setting yourself up for an alternative career, he might be more convincing to me. Find something you love, figure out a business angle, learn all about it, start exploring the financial angles - financing, time to profitability, etc. - and if it works, run with it. And if it doesn't work, at least you were doing something you love. But if this truly is a pitch to find a way to quit legal practice, it falls into a heap of books, products and seminars that profess to help lawyers generate ideas, but practically speaking do nothing to help with the transition. (I once read a book about alternative careers for lawyers that mostly listed "careers" ostensibly to help lawyers brainstorm; although it was unquestionably inclusive of career options, it lost a bit of credibility with suggestions like "bus driver".)

But let's take a look at the specifics:

Having launched a number of companies already - and sold one - now [Casey Berman's] launching another: a consultancy called Leave Law Behind through which he'll hold the hands of disillusioned lawyers who want to start their own businesses.

Okay, so he has his idea, he has an audience, he has the attention of the national legal media....

Once armed with an idea, a person can take free and low-cost steps like starting a blog and registering a domain name, Berman said. Print some business cards and you have a conversation starter at a networking event.

So if I search the web for "Leave Law Behind" I'll come up with his weblog and the "Leave Law Behind" website? Apparently not. (But, even if he hasn't put up even a placeholder site, at least he snatched up the URL I would expect for his venture.) What sort of business ventures is he steering people toward?

[Berman] said the experience [starting a fashion brand] taught him a good lesson - that he didn't want to work with products. Since then, he's stuck to companies focused on services and electronic content, such as Web sites.

I hope he's describing his own passion, and not his advice to lawyers, as there's an incredible amount of money to be made in traditional businesses. But whatever he's arguing, I would be interested in learning more about Berman's websites and their profitability.

I recall attending a few seminars back when I was in law school about career options. The "alternatives" tended to be people describing either government jobs of various sorts, or careers that required an impressive résumé on top of a law degree (but paid well). I recall one seminar from a guy who billed himself as a specialist in finding alternative career paths for lawyers, but it turns out that most of his focus was on MBA's wishing to transition to different companies, and he was trying to attract lawyers into his paid seminars even though he had little knowledge of the legal field or how lawyers could actually transition to other job fields. But he did encourage brainstorming - come up with your own idea, and go for that. But really, I don't need to pay somebody to tell me that I can come up with my own idea for alternative employment that I can start in my spare time and that may never turn a profit.

Honesty, Transparency and Taxes

Absolutely, our legislators are cowards when it comes to taxes. I would like to see a lot of rethinking, simplification, and transparency in our byzantine tangle of tax laws. But that would require more courage than most politicians seem to have, not only in explaining what should be obvious - that modifications of tax rates, with elimination of some taxes and increases or decreases of others should be viewed in the aggregate, rather than with the howl that anything other than a cut (unless it's a tax increase on the middle class) will destroy the economy and possibly the world - but also in tackling wealthy, powerful and politically well-connected special interests that benefit from loopholes, shelters, and other devices that, whether by accident or design, are built into the current system.

Paying for Health Care

The Washington Post correctly states,

Pretending that "the rich" alone can fund government, let alone the kind of activist government that the president and Congress envision, is bad policy any way you look at it.

The thing is, even in the context of its discussion of paying for health care, it's senseless hyperbole. Nobody has suggested any such thing.

In terms of paying for health care, the Post continues to be excited about a middle class tax hike:

A far better way to pay for health care would be to end the tax break for employer-provided health benefits, a subsidy that not only artificially pumps up demand for expensive treatments but also disproportionately benefits upper-income earners. Eliminating or, at least, capping it would be good health-care policy as well as good tax and budget policy.

This is a two-pronged argument, first that because people have good health insurance they are able to take advantage of treatments they could not otherwise afford, driving up the cost of healthcare. But isn't that the whole point of having insurance - so you can get the "expensive treatments" you need without going broke? The second prong suggests that this could be fashioned primarily as a tax increase on the wealthy, even though the target is a benefit that goes primarily to the middle class.

The first prong has nothing to do with paying for healthcare reform. It's great to propose a social experiment where working people pay more taxes while simultaneously getting their health benefits slashed, but it's not at all clear that this is fair, or even that it would work. It won't much affect one of the leading areas of healthcare expenditure - end of life care - as that's normally covered by Medicare and Medicaid. If it affects another huge area of expenditure, payment for the management of chronic health conditions, it's not clear that it would do so without simply shifting that cost onto the taxpayer, with the government being forced to provide care to prevent people from becoming disabled, or to pay disability benefits and healthcare costs when their unmanaged chronic health conditions leave them unable to work. Accident victims will still get care at the emergency room. People who become seriously ill will still require expensive treatments. So how does the Post imagine that taking people who are adequately insured and shifting them into the category of the underinsured will reduce healthcare expenditures?

The Post complains about directly taxing high income people to pay for healthcare reform:

The traditional argument against sharp increases in the marginal tax rates of a very narrow band of Americans is that it could distort their economic behavior -- most likely by encouraging them to put more of their money into tax shelters as opposed to productive investments. This effect could be greatest in certain states, such as New York, where a higher federal rate would add to already substantial state income taxes. The deeper issue, though, is whether it is wise to pay for a far-reaching new federal social program by tapping a revenue source that would surely need to be tapped if and when Congress and the Obama administration get serious about the long-term federal deficit.

Another two-pronged argument. The first prong is silly. Sure, the wealthy may shelter their money to avoid taxes. But they already do that. Whether they're paying more taxes due to the taxation of their healthcare benefits or because of a surtax, higher is higher. More to the point, let's take somebody making $500,000 per year. Let's assume that means, under the surtax, they will pay a 1% surtax on $150,000 of their income - $1,500. Now let's assume they have a pretty good healthcare package, worth $24,000 per year. Let's say they're currently paying 23% in taxes (using the Post's figure for the "average rate paid by the top 1 percent of households"). If their healthcare benefits become fully taxable, they would face a tax increase of $5,520. Paging Fred Hiatt: Which tax increase is higher? Whatever argument you can make that a middle class tax increase is better than a surtax on the wealthy, it's a bit silly to argue that the latter is more likely to inspire the sheltering of income until we're talking about stratospheric income levels - where it's difficult to believe people aren't already maximizing their use of shelters.

The second prong is just as silly. Money is fungible. If the Post imagines us raising taxes on the middle class today, and taxes on the wealthy in a year or two, what difference does the order make? Further, why even raise the sheltering argument if you're going to turn around and suggest that we use a surtax on the rich to balance the budget? If the Post believes that taxing the middle class is truly better policy than taxing the rich, it could at least strive for some internal consistency.

Mavericky Goodness on "Cap and Trade"

How long ago was it that we had a guy named John McCain, along with a running mate named Sarah Palin, proposing how to address carbon emissions? What did he call his plan, again... could it have been cap and trade? And he's been proposing various "cap and trade" schemes since... 2003, if not earlier? The conflict with Obama's plan appears to focus on how permits are allocated - Obama supports an auction, while McCain proposed a giveaway to the nation's biggest polluters.

For quite some time, opponents of caps on carbon emissions have been trying to come up with a catchy way to make fun of "cap and trade". Their problem seems to be that the term "cap and trade" sounds innocuous, but at the same time is very difficult to understand. (So we have McCain arguing for years in favor of "cap and trade", but now arguing that it's bad if permits to pollute are obtained through auction as opposed to being distributed, for free, to big polluters who (presumably) would then profit handsomely by selling permits they did not actually need to smaller companies. The "best" term they've come up with so far is "cap and tax", which is also "clear as mud" to anybody who isn't familiar with the concept of "cap and trade". It's policy formation on the level of Beavis and Butthead ("Heheheh. He said 'tax'. Heheheheheheh.) The sad part is, such "rebranding" has been quite successful at times in the past - just ask Frank Luntz.

Whatever it's merit, "cap and tax" is now part of the Republical lexicon, to be used at all times - even by erstwhile supporters of "cap and trade" like John McCain. I would like to see him explain how his "cap and trade" proposal would limit pollution without imposing any cost on anybody, but... what sort of self-respecting reporter would ask such a direct and relevant question to a maverick? Oh, the horror of imposing a tax on business during a recession. We should instead... impose a massive tax increase on middle class wage earners who receive employer-sponsored health care, right? (Starting with McCain, there appears to be huge Republican support for that tax increase, but they are quite coordinated in their refusal to acknowledge it as such.)

In any event, somebody handed Sarah Palin the party memo on "cap and tax" or, perhaps more realistically, handed her a completed editorial and said, "Hey, why don't you submit this to the Washington Post?" And sure enough, now the Post offers a platitudinous regurgitation of the anti-"cap and tax" talking points under Palin's byline. She offers claims like this:

There is no denying that as the world becomes more industrialized, we need to reform our energy policy and become less dependent on foreign energy sources. But the answer doesn't lie in making energy scarcer and more expensive! Those who understand the issue know we can meet our energy needs and environmental challenges without destroying America's economy.

Okay, let's assume that Obama's "cap and trade" will "destroy the economy", while the McCain/Palin model will not. Palin is clearly depicting herself (somebody ignorant of her own state's energy production) as an expert on the issue. She is being given a grand opportunity to make her case to the American public right on the pages of the Washington Post. As you have probably already guessed, she offers up plenty of nothing.

The ironic beauty in this plan? Soon, even the most ardent liberal will understand supply-side economics.

Oh, what a cute little dig at "liberals". From somebody whose running mate used to unabashedly admit that he didn't understand economics, and who has little apparent understanding of economics herself. Pot, kettle, and all that.

All Palin manages to do in the article is shill for existing energy interests - Alaska's oil and gas industry, and coal producers - and impliedly for major polluters. Not one idea on reducing carbon emissions. Not one suggestion of how Obama's plan could be improved. Her intellectual gas tank, it seems, is empty.

The Innumerate Michael Kinsley

It should, perhaps, go without saying that you shouldn't take financial advice from a guy who can't do simple math, but in case you somehow glossed past this doozy from Michael Kinsley on healthcare reform:

My list would start with malpractice reform. An achingly balanced CBO report last year cited a study showing that victims of medical negligence are 2 1/2 times more likely to get compensation than people who were not victims. This was an argument against reform: that for every dollar going to victims of malpractice, "only" 40 cents goes to plaintiffs who have no case at all.

Does it need to be explained that his conclusion isn't supported by his claimed data? Nothing in the snippet he presents describes either the frequency of claim by people who are "not victims" or the relative amounts of recovery.

Kinsley could have easily tracked down the study online. It's easier than ever - before I had even finished typing the third word of the title into Google, it was offering to auto-complete the title as a search term. Ten seconds.

Looking at some of the data from the study, the issue seems to be this: The study found that of 1452 malpractice claims, 889 involved both error and injury. Of those claims, 73% of claimaints received compensation. In contrast, by the study's criteria, 515 claims involved injury without medical error at 37 claims involved neither injury nor medical error. Of those claims, 151 (27%) resulted in compensation. 73% is "approximately 2 1/2 times" 27%.

But as the study plainly states:

Our findings point toward two general conclusions. One is that portraits of a malpractice system that is stricken with frivolous litigation are overblown. Although one third of the claims we examined did not involve errors, most of these went unpaid. The costs of defending against them were not trivial. Nevertheless, eliminating the claims that did not involve errors would have decreased the direct system costs by no more than 13 percent (excluding close calls) to 16 percent (including close calls). In other words, disputing and paying for errors account for the lion's share of malpractice costs. A second conclusion is that the malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter. In a sense, our findings lend support to this view: three quarters of the litigation outcomes were concordant with the merits of the claim.

That is, Kinsley would have difficulty being more wrong if he tried.

Since Kinsley raised the subject, though, it is fair to ask "Exactly what would this 'malpractice reform' look like?" Would it diligently ferret out all actual claims of malpractice - as the study indicates, "the great majority of patients who sustain a medical injury as a result of negligence do not sue." Apparently not. Even if administrative costs were pared to the bone for such a system, that approach would significantly increase expenditures on medical malpractice claims. What if there were better ways to ferret out claims without merit?

Although one third of the claims we examined did not involve errors, most of these went unpaid. The costs of defending against them were not trivial. Nevertheless, eliminating the claims that did not involve errors would have decreased the direct system costs by no more than 13 percent (excluding close calls) to 16 percent (including close calls). In other words, disputing and paying for errors account for the lion's share of malpractice costs.

So what precise reforms does Kinsley propose that will save us the 13-16% of current malpractice expenditures that go to defending against claims that should not have been filed?

The authors of the article explain why these cases are filed in the first place:

The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers. Previous research has described tort litigation as a process in which information is cumulatively acquired.

Well, we could require the disclosure of the outcome of peer review to patients and their families. (You think doctors howl about malpractice... just try legislating public peer review.)

Having noted the fact that a huge factor in the cost of malpractice litigation lies in trying to penetrate the wall between the patient and information that can lead to proper assessment of malpractice cases, the authors of the study make this curious suggestion:

The combination of defense costs and standard contingency fees charged by plaintiffs' attorneys (35 percent of the indemnity payment) brought the total costs of litigating the claims in our sample to 54 percent of the compensation paid to plaintiffs. The fact that nearly 80 percent of these administrative expenses were absorbed in the resolution of claims that involved harmful errors suggests that moves to combat frivolous litigation will have a limited effect on total costs. Substantial savings depend on reforms that improve the system's efficiency in the handling of reasonable claims for compensation.

The authors' mistake, of course, is in assuming that malpractice reforms are primarily meant to reduce frivolous litigation. It should be patent from the result that they are designed to make it more difficult and enormously more costly to get any malpractice case to trial, to increase risk to the plaintiff's lawyer both by vastly increasing the amount of money it takes to litigate a claim and by forcing a significant expenditure to investigate other claims before they can even be properly reviewed for merit, and to place economic pressure on the plaintiff to settle by dragging out the litigation process and by imposing caps that limit the amount of damages that a severely injured plaintiff can recover.

If we truly wanted to create an efficient system that allowed plaintiffs' lawyers to minimize the number of questionable cases they bring, reduced the cost of litigation, shortened the time it takes to litigate a case, and ensured that people received fair and appropriate damages, a good place to start would be by jettisoning the "reforms" that have been implemented to date that largely benefit the insurance industry and taking a good hard look at other systems. I suspect that malpractice victims would be largely supportive of a two-track system, one of which involves fair, fast administrative review of malpractice claims but with limits on non-economic damages (perhaps even a schedule of damages) and limits on attorney fees similar to worker's comp, and a more traditional tort-based system. Mind you, a number of "small damages" cases that aren't economically viable under the current system (e.g., negligent misdiagnosis of appendicitis resulting in a rupture) might become viable under such a reform, but damage awards for such claims should be small. I'm not convinced that such a system would turn out to be cheaper, but it should turn out to be a lot more fair and a lot more efficient than a pure tort-based system.

In short, the study Kinsley indirectly relies upon suggests that we would get minimal savings from reforms directed at "frivolous" cases, but that the greater sin of the current system is that an even greater number of actual malpractice victims end up with no recovery. That is, if you were to somehow make the authors' wishes come true, and the system were made more accurate, you would end up increasing the cost of the system due to the appropriate grant of compensation to claimants who are wrongly denied recovery.

I don't think Kinsley's a stupid man. But given the magnitude of his errors on this subject, he should perhaps reflect on whether he should limit his writings to subjects he actually understands.

About Those Attacks on Family

Despite Palin's mewling about "attacks on her family", Did she ever have to deal with anything like this?

Is Dignity Just a Veneer?

David Brooks contemplates George Washington's effort to be a true gentleman, comporting his conduct to a set of rules that Brooks believes helped shape both his "inner morals" and "the outward man". I'm not sure how the rules Brooks cites,

“Lean not upon anyone,” was one of the rules. “Read no letter, books or papers in company,” was another. “If any one come to speak to you while you are sitting, stand up,” was a third.

would have any great impact on "inner morals," but I'm not arguing with the larger point. You can embark on a program of self-improvement that focuses both on how you approach others and on what's going on inside your own head.

But despite introducing us to the dignity and self-discipline of George Washington, Brooks quickly loses focus:

As the historian Gordon Wood has written, “Washington became a great man and was acclaimed as a classical hero because of the way he conducted himself during times of temptation. It was his moral character that set him off from other men.”

So, even a few hundred years ago, people saw Washington's brand of dignity as special and different? Among the founders of our nation, only Washington was dignified? Or is it that, while they respected Washington for his self-discipline, most others felt more free to depart from their dignified public personas when they were behind closed doors?

Washington absorbed, and later came to personify what you might call the dignity code. The code was based on the same premise as the nation’s Constitution - that human beings are flawed creatures who live in constant peril of falling into disasters caused by their own passions. Artificial systems have to be created to balance and restrain their desires.

I think Brooks' theory of the Constitution as reflecting some sort of "dignity code" is misplaced. (What language is he contemplating?) I think it would also be more accurate to say that the perspective on mankind as living "in constant peril of falling into disasters caused by their own passions", in need of artificial systems to impose restraint, is derived from Christian theology. Brooks simplifies his "dignity code" into three elements:

• "to endeavor to put national interests above personal interests "

• "to be reticent - to never degrade intimate emotions by parading them in public "

• "to be dispassionate - to distrust rashness, zealotry, fury and political enthusiasm."

Brooks tells us, "Remnants of the dignity code lasted for decades" - but it's fair to ask, did anything more than those "remnants" survive Washington's presidency? How does this "dignity code" mesh with the circumstances leading to John Adams' signing and enforcing the Alien and Sedition Acts?

Brooks elaborates on the code "remnants" that persisted.

For most of American history, politicians did not publicly campaign for president. It was thought that the act of publicly promoting oneself was ruinously corrupting.

Is Brooks arguing that this was correct? That it's undignified for politicians to campaign for office or promote themselves? Even if it means that the general public must vote for a President to whom they haven't really been introduced? Then, for goodness sake, why is he holding up Ronald Reagan, one of the most successful self-promoters in American political history, as the embodiment of dignity? Brooks' next point makes his reasoning more clear:

For most of American history, memoirists passed over the intimacies of private life.

Despite Brooks' commentary on Washington's inner character, it's apparent that what he's really speaking about is public image. It's okay for a politician to relentlessly self-promote, even as he divorces, remarries, and becomes estranged from his children, as long as the public image that results is suitably "dignified". A religious leader can chase every skirt in town as long as it stays out of the papers and he goes home to his wife at night. Why didn't JFK make Brooks' short list of "dignified" politician? His politics and public statements seem to directly evoke Brooks' "dignity code"? Was it the negative media coverage of his personal life?

Although Brooks doesn't give a long list of "dignified" people - beyond George Washington he names "in sports (Joe DiMaggio and Tom Landry), entertainment (Lauren Bacall and Tom Hanks¹) or politics (Ronald Reagan and Martin Luther King Jr.)" - it's interesting that he names only one woman. The term "dignity" is not one often associated with women, even though as I think about Brooks' explicit "dignity code" it's one that female public figures seem more apt to follow. The word seems a bit gender-loaded.

It's also interesting to see who makes the list and who does not. Katherine Hepburn is less dignified than Lauren Bacall? Or is it that there has been media coverage of her affair with Spencer Tracy? JFK is less dignified than Ronald Reagan? Don't JFK's words and political actions advance the "dignity code" rather explicitly? ("Ask not what your country can do for you....") In both cases, the remnants of the "dignity code", in which the media chose not to cover personal indiscretions, held up pretty well during their lives. Had the media chosen to continue to ignore their personal foibles, would they have made Brooks' list? (Was Thomas Jefferson dignified?)

Brooks next engages in hyperbole:

But the dignity code itself has been completely obliterated. The rules that guided Washington and generations of people after him are simply gone.

Come again?

But it’s not right to end on a note of cultural pessimism because there is the fact of President Obama. Whatever policy differences people may have with him, we can all agree that he exemplifies reticence, dispassion and the other traits associated with dignity.

Of the four men of politics Brooks can name as "dignified", three are from the past fifty years and one currently serves as President. How does that indicate a trend away from dignity? More to the point, isn't it absurd to argue that "the dignity code itself has been completely obliterated" when there continue to be many who strive, every day, to treat other people well and to maintain internal discipline? Does Brooks consider himself to be undignified?

Brooks lists the reasons for the "demise" of dignity:

• "First, there is capitalism. We are all encouraged to become managers of our own brand, to do self-promoting end zone dances to broadcast our own talents." - What does that have to do with capitalism, and how is that different from the rest of human history? Once we stopped allowing people to ascend to positions of political and military leadership based principally or solely on birthright, where can I find the glorious era where society sought out the talented wallflowers for positions of leadership? Even prior to the rise of capitalism it was pretty clear that the meek were not about to inherit the Earth.

• "Second, there is the cult of naturalism. We are all encouraged to discard artifice and repression and to instead liberate our own feelings." - Who's this "we"? Brooks wasn't raised to behave appropriately in public? To keep his impulses under control? He's raising his children in this fashion? Perhaps Brooks can't see the forest for the trees. It seems to me that most people in the country do pretty well on both fronts.

• "Third, there is charismatic evangelism with its penchant for public confession." - About a quarter of Americans identify themselves as evangelical or Pentecostal. I know that some of the leaders of that movement, or politicians associated with that movement, have engaged in spectacular public confession. But again... forest, trees. Also, how does this tie in with "the cult of naturalism" - is Brooks claiming that evangelical Christians embrace naturalism, or that it's equally an affront to dignity to embrace artifice and repression if you later publicly confess your transgressions?

• "Fourth, there is radical egalitarianism and its hostility to aristocratic manners." - So we're in another paradox - capitalism causes a decline of dignity, but so does any reaction to capitalism that encourages equality? Is Brooks arguing that dignified men like George Washington would scoff at radical egalitarian notions such as "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness"? That believing such a thing is truly inconsistent with being well-mannered?

Moreover, Brooks seems to be overlooking the fact that "scandal" has played a persistent role in human history. It might appear that Brooks favors greater consequence from scandalous behavior - being drummed out of polite society, banned from public office, etc. - but he appears to accept that you can remain dignified if your scandalous behavior is appropriately concealed from public view.² His principal complaints seem to be that scandals are no longer routinely covered up, but instead are often searched out and magnified, and that the media gives enormous attention to scandal. Brooks complains,

Then there was Sarah Palin’s press conference. Here was a woman who aspires to a high public role but is unfamiliar with the traits of equipoise and constancy, which are the sources of authority and trust.

Brooks would have preferred things to be handled the old, "dignified" way, where we would have learned virtually nothing about her during McCain's presidential campaign, the media would have ignored her family (even as she thrust them onto center stage), and her scandals of office (if covered at all) would have been buried somewhere around page 20? I'll grant, the coverage was often tiresome, as was Palin's concerted effort to keep the cameras rolling even as she whined about negative coverage. But is it truly worse that we got the opportunity to see Sarah Palin's actual character, instead of a "dignified" veneer that the media politely refused to puncture?
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1. Please, Dan Brown, don't get any ideas. I don't want the next movie trailer I see to be for Tom Hanks in "The Dignity Code".

2. (Added) I had no idea when I wrote this, that Brooks would be sharing the intimate details of "undignified behavior" that he tolerated from a Republican Senator... scarcely out of public view.

Lies, Lies and More Lies from Palin

It's a wonder she was supposedly worried about ethics investigations, given that she apparently has none. At least judging from this WSJ stenography of her lame excuses and fabrications for quitting:

"Attacks inside Alaska and largely invisible to the national media had paralyzed her administration," someone close to the governor told me.

Well, the Wall Street Journal qualifies as "national media" and John Fund, the author of this puff piece, was giving Palin's anonymous drones his undivided attention, so how about a "for instance"? I didn't think so....

This situation developed because Alaska's transparency laws allow anyone to file Freedom of Information Act requests. While normally useful, in the hands of political opponents FOIA requests can become a means to bog down a target in a bureaucratic quagmire, thanks to the need to comb through records and respond by a strict timetable. Similarly, ethics investigations are easily triggered and can drag on for months even if the initial complaint is flimsy. Since Ms. Palin returned to Alaska after the 2008 campaign, some 150 FOIA requests have been filed and her office has been targeted for investigation by everyone from the FBI to the Alaska legislature.

The author is conflating two entirely separate issues - FOIA and ethics investigations. Given Palin's run for Vice President, it's no small wonder that there were FOIA requests, and frankly 150 seems like a low number. Further, there would be no need for Palin to personally involve herself in any of those requests. But I guess there is a tie-in to Palin's ethics (or lack thereof) - she (or someone on her behalf) did involve herself in FOIA request in order to obstruct the release of information.

For ethics investigations, Palin should make a video of herself like GW's search of the oval office for WMD's. "Ethics? Not in the closet... not under the desk... nope, no ethics here." But there's another conflation going on. The FBI doesn't investigate "ethics violations", and doesn't initiate investigations based upon Alaska's "easily triggered" laws. It investigates federal crimes. Also, let's not forget that Palin herself built her career on challenging the corruption in Alaska's politics. What's sauce for the gander....

Oh, and let's not forget that Palin filed an ethics complaint against herself over Troopergate that cost the state $187,797 to investigate. That is well over half of the $296,000 the state has spent on all ethics investigations of her.

In the process, though, she accumulated $500,000 in legal fees in just the last nine months, and knew the bill would grow ever larger in the future.

How much of that has come out of her pocket? Any? I thought her legal defense fund was pulling in huge numbers.

Family considerations also played a role. Ms. Palin gave birth to a baby with Down's Syndrome in 2008, and also has a six-year old. Everyone in the family was weary of endless personal attacks, including mean-spirited suggestions on liberal blogs that all of her children should have been aborted and that she would run on a presidential platform promoting retardation.

Bad stenographer, bad editor. It's Down Syndrome.

It's not credible that Palin is withdrawing from politics due to the sudden realization that she has children. She had children when she entered politics. She had children when she ran for VP. Trig was born in April, 2008. She decided to run for VP in August, 2008. It's July, 2009. Give me a break.

As for the personal attacks, last time I saw Palin speaking out about them she was reveling in them, inflating them, claiming a (bad) joke about her adult daughter was about her young teen - a choice that inappropriately put her 14-year-old at the center of things - and all but accusing David Letterman of being a pedophile. Her supporters were rallying to her, declaring what meanies her critics are. So that doesn't ring true, either.

As for "mean-spirited suggestions on liberal blogs", the easiest thing to do if you find a blog where people say things you don't want to read is... not to read them. But that's giving the allegation more credibility than it deserves. A simple question: Which blogs? How about a "for instance"? I didn't think so....

Karl Rove acknowledges the unusual battering Ms. Palin has endured in recent months, but told Fox News that GOP leaders are still puzzled by her decision. "If she wanted to escape the ethics investigations and save the taxpayers money, she's now done that," he said. Unfortunately, he added, her decision "sent a signal that if you do this kind of thing to a sitting governor like her, you can drive her out of office."

Unusual how? Unusual in the sense that it wasn't orchestrated by Rove? If I were to compare the treatment of Palin to the treatment of the Clintons, or the treatment of her children to the treatment of Chelsea Clinton, it actually seems like Palin got off easy. If I compare her to the guy Rove allegedly accused of pedophilia, or the smear campaign Rove allegedly ran against McCain in 2004, again....

But Palin friends say such commentary misses the real point.... The real issue that should be asked is why a mean-spirited system has to treat people who run like that, instead of why someone may choose not to go through it."

The author of this piece had Karl Rove on the phone, and didn't ask that question? Go figure. He could also have asked Palin, herself.

In law, there's a practice disdained by experienced lawyers, that particularly on appeal can undermine you with a judge. The "kitchen sink" / "throw spaghetti at the wall" approach. When you're trying to make a compelling case, it's usually counter-productive to throw everything at the judge to see if something sticks. The strong arguments get lost among the weak.

But sometimes you only have weak arguments. Assuming you made the mistake of accepting a weak case and don't want to cut your losses, you then must try to pick the strongest of the weak bunch, make a desperate "spaghetti throw", or recognize that your case may be better made in the future when more facts or evidence are available. If this truly is the best Palin's camp can come up with, she should resist the temptation to have WSJ stenographers prattle about how unfair the world is. She should decide for herself why she quit, make that her story, and stick with it. I'm not expecting the truth, but any plausible reason would be better than a spaghetti throw.

Dead is Dead

I appreciate that there were a couple of decades of "Elvis sightings" before the truth sank in, but it shouldn't take a celebrity studded memorial service to understand the obvious.

Sorry, I know denial is part of the grieving process, but enough is enough. There won't be a comeback tour. No matter how huge a fan you were, no matter how celebrated a person is, no matter how badly you feel the press and public abused your hero, dead is dead.

Let these words sink in: Sarah Palin's political career is not coming back from the grave.

Unfortunately, though, I expect she'll live on in video.