Monday, June 29, 2009

It's Brinksmanship

When heads of state clash over big issues, the question usually becomes "who blinks first?" Jackson Diehl whines that the Obama Administration took a maximalist position when negotiating with Israel over its expansion of settlements in the Palestinian territories:
Pressuring Israel made sense, at first. The administration correctly understood that Netanyahu, a right-winger who took office with the clear intention of indefinitely postponing any Israeli-Palestinian settlement, needed to feel some public heat from Washington to change his position -- and that the show of muscle would add credibility to the administration's demands that Arab leaders offer their own gestures. But, starting with a statement by Secretary of State Hillary Rodham Clinton in May, the administration made the mistake of insisting that an Israeli settlement "freeze" -- a term the past three administrations agreed to define loosely -- must mean a total stop to all construction in the West Bank and even East Jerusalem.
Diehl complains that expecting Israel to freeze its settlements doesn't demand enough of the Palestinians (er... demands on the Palestinians are a separate issue), that it's unobtainable due to Israel's internal political issues, and that he believes it to be unnecessary. Yet (although I grant, a temporary freeze is pretty meaningless) look who's blinking first:
Israel would be open to a complete freeze of settlement building in the West Bank for three to six months as part of a broad Middle East peace endeavor that included a Palestinian agreement to negotiate an end to the conflict and confidence-building steps by major Arab nations, senior Israeli officials said Sunday.
Odds are Obama will work with that short-term freeze (or perhaps even one that's broader), and use the six months to try to build a larger deal.

Persistent criticisms of Obama from the left are that he's often reluctant to draw a line in the sand, and that he appears too eager for bipartisan solutions and is willing to negotiate pretty much anything. But as far as I can see, since he took office, there's not yet been a time when Obama drew a solid line where he turned out to be the guy who blinked. Obama doesn't pick fights unless he expects to win.

Exercising Freedoms Responsibly

I wish Ross Douthat had taken the time to watch Idiocracy before writing his latest column, a pointless ramble about the sustainability of love and marriage. It might have given him a different perspective on this observation about the authors of the essays that inspired his column:
Their complaints about this world’s romance deficit are substantially overstated, obviously - and shot through with a dash of self-justification. (Tsing Loh had an affair; Nehring recently became an unwed mother.) But both do put their finger on a post-sexual revolution paradox - namely, that the same overclass that was once most invested in erotic experimentation ended up building the sturdiest walls against the passions it unleashed.
I was only able to read one of the essays Douthat references, Sandra Tsing Loh's Let's Call the Whole Thing Off. But with due respect to Douthat's recognition of the essay as self-justifying, I think he missed the larger point. My father has the opinion that marriages tend to continue, even if one or both partners are unhappy, until one of them finds somebody else. Then that person seeks a divorce. It's a simple point that, in my observation, largely rings true. Tsoh admits that she had a comfortable, stable marriage, so why divorce?
Heart-shattering as this moment was—a gravestone sunk down on two decades of history—I would not be able to replace the romantic memory of my fellow transgressor with the more suitable image of my husband, which is what it would take in modern-therapy terms to knit our family’s domestic construct back together. In women’s-magazine parlance, I did not have the strength to “work on” falling in love again in my marriage.
She fell in love with somebody else, and chose not to surrender that passion in favor of returning to a marriage that she believed (probably correctly) would never inspire a similar level of passion. That's part of the normal progression of relationships. Perhaps the issue is that Tsoh, who doesn't "generally even enjoy men", had never before experienced "falling in love", but if she wants to live the rest of her life with a similar level of passion she must eschew long-term relationships and marriage (or at least monogamous relationships and marriage), as over time the happy, giddy, "I just fell in love", "I never want to be apart from you" moments, will inevitably change and evolve into something else.

Tsoh also describes a friend of hers, married to a husband who is a gourmet cook, remarkably neat and organized, a good carpenter, and a fitness freak. She describes her friend as also consdering divorce:
“Ian won’t have sex with me,” Rachel says flatly. “He has not touched my body in two years. He says it’s because I’ve gained weight.” Again, we stoutly protest, but she goes on. “And he thinks I’m a bad mother—he says I’m sloppy and inattentive.”

The list of violations unfurls. Last week, Rachel mistakenly gave the wrong medication to the dog, a mistake Ian would never make. She also forgot to deglaze the saucepan and missed the window to book the family’s Seattle flights on Expedia, whose chiming bargains Ian meticulously tracks.
I don't doubt that Ian has managed to present his wife with a list of complaints that make her unattractive to him. But it's all window dressing. I would bet good money that, like Tsoh, the reason Ian is finding so much fault in a stable marriage is that he's having an affair. Care to guess how long ago the affair started, or at least when it got serious?

Douthat appears quite uncomfortable with any departure from traditional, or should I say "Ozzie and Harriet", gender roles:
So which is the real America? Is it Tsing Loh’s dystopia, where everyone “works” grimly on their relationships, and post-feminist husbands happily cook saffron-infused porcini risotto but rarely practice seduction on their wives? Or is it tabloid country: The land of Jon minus Kate, and governors who vanish to “hike the Appalachian Trail” — not to mention gossip-column fixtures like Britney Spears (rumored last week to be contemplating her third marriage in six years) and the mistress-parading Mel Gibson?
Perhaps Douthat doesn't eat at many restaurants, but the world of the gourmet kitchen has long been dominated by men. A speculative explanation in which Douthat would probably find comfort is that women have traditionally learned to cook in order to feed their families, while men have had the opportunity to be self-indulgent, to approach cooking as art instead of sustenance. But whatever the reason, Douthat seems to find fault with the fact that a documentary filmmaker who spends most of his time at home between assignments, and who loves to cook, in fact cooks for his "chronically overworked" lawyer wife. In Douthat's "pre-feminist" world, would she (a) quit her job so she could "properly care for her family," (b) order a lot of prepared foods, take-out and delivery, or serve up frozen dinners, or (c) somehow find an extra four hours per day so she could be home to cook breakfast and dinner, and package up box lunches for the kids?

Douthat pontificates,
As Nehring observes, our hyper-educated, socially-liberal elite is considerably more romantically conservative than its blasé attitude toward pornography or premarital sex would lead you to expect. The difficult scramble up the meritocratic ladder tends to discourage wild passions and death-defying flings. For bright young overachievers, there’s often a definite tameness to the way that collegiate “safe sex” segues into the upwardly-mobile security of “companionate marriages” - or, if you’re feeling more cynical, “consumption partnerships.”
Or it could be something else, entirely. It could be that people who exercise their freedoms responsibly believe that the state has no place peering through their bedroom windows and telling them, "Your sex partner is the wrong gender. No, sorry, anything but the missionary position is 'gross indecency.'" It could be that people who intentionally postpone marriage and child rearing until they're stable in their careers don't believe the government should be restricting their access to birth control, or that Douthat's brand of moral opprobrium is appropriate should they experience an unwanted pregnancy and have to choose how to proceed. Although in what is becoming his trademark, Douthat declines to follow through with any conclusions - his editorial suggests that he disapproves of single parenthood, but he can't bring himself to say that single mothers "should get married". In fact, he seems to be internalizing the stereotypes presented in Idiocracy - an "overclass" (his word) of austere yuppies forever postponing children until the "right time" versus a population that, I guess, Douthat would describe as the underclass.
Better, perhaps, if this dynamic were reversed. Our meritocrats could stand to leaven their careerism with a little more romantic excess. (Though such excess is more appropriate in the young, it should be emphasized, than in middle-aged essayists and parents.) But most Americans, particularly those of modest means, would benefit from greater caution and stability in their romantic entanglements.
I get that latter part - Douthat believes that the poor and uneducated should breed less often. But what am I supposed to make of the former part? "Meritocrats" should marry earlier? Have children outside of marriage? Have more affairs? Engage in more premarital sex? Douthat's usually short on specifics but come on. That's a contention he needs to explain. And how would any of that be consistent with the "pre-feminist" world for which he pines?

Douthat seems to be suggesting that there is a world of people who act responsibly, don't need others to tell them how to behave, and don't like it when the government or moralistic preachers start trying to regulate or criminalize their available choices. He also is suggesting that there's another population - "Americans, particularly those of modest means" who don't exercise sufficient caution or seek appropriate levels of stability "in their romantic entanglements." He doesn't find it obvious that politicians and religious leaders who lack self-control are often the vanguard of those who argue for more meddling in private romantic relationships, or that many of their "incautious" followers (and, for that matter, Douthat) don't understand why people restrain themselves out of anything less than the threat of prison or eternal damnation.

Funding Priorities

Shorter Glenn Easterbrook:
The government's wrong to spend money researching their pie-in-the-sky clean energy schemes that may never bear fruit. They should be directing the money into mine.

Sunday, June 28, 2009

Cost Versus Quality

The New Yorker provides an interesting essay on the cost of medical care, and how high costs don't necessarily translate into high quality, penned by surgeon and author Atul Gawande. He seemed to take the doctors he interviewed a bit off guard, particularly when he didn't buy the standard excuses they trotted out.
“It’s malpractice,” a family physician who had practiced here for thirty-three years said.

“McAllen is legal hell,” the cardiologist agreed. Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere.

That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn’t lawsuits go down?

“Practically to zero,” the cardiologist admitted.

“Come on,” the general surgeon finally said. “We all know these arguments are bullshit. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.
How has technology affected practice?
I gave the doctors around the table a scenario. A forty-year-old woman comes in with chest pain after a fight with her husband. An EKG is normal. The chest pain goes away. She has no family history of heart disease. What did McAllen doctors do fifteen years ago?

Send her home, they said. Maybe get a stress test to confirm that there’s no issue, but even that might be overkill.

And today? Today, the cardiologist said, she would get a stress test, an echocardiogram, a mobile Holter monitor, and maybe even a cardiac catheterization.

“Oh, she’s definitely getting a cath,” the internist said, laughing grimly.
The essay documents the high quality, lower cost approach of clinics like the Mayo Clinic, and how they've been able to export that model into Florida, a state associated with high medical costs. There are savings to be had, but apparently not if the "market" gets its way.
In El Paso, the for-profit health-care executive told me, a few leading physicians recently followed McAllen’s lead and opened their own centers for surgery and imaging. When I was in Tulsa a few months ago, a fellow-surgeon explained how he had made up for lost revenue by shifting his operations for well-insured patients to a specialty hospital that he partially owned while keeping his poor and uninsured patients at a nonprofit hospital in town. Even in Grand Junction, Michael Pramenko told me, “some of the doctors are beginning to complain about ‘leaving money on the table.’”
Dr. Gawande concludes that, more important than a public option, we must decide if we're building toward a Mayo Clinic-style future. I suspect he's right - the doctors he described are making their fortune largely off of Medicare patients.

Friday, June 26, 2009

When A Child Is A Parent's Meal Ticket

A couple of months ago my four-year-old became very interested in Michael Jackson. His "moves". She doesn't have much interest in his childhood work, but is absolutely fascinated by his dance sequences and choreography. She wanted to see him perform live. As I reflect on that, it didn't even cross my mind that Jackson was 50 years old. His changes of appearance were disturbing, saddening, but they had one of the effects he (owner of "Neverland") apparently intended. He did grow up but he became, in a sense, a man without age. Had he kept his original appearance, and become wrinkled and gray, I doubt that the public surprise at his early death would be quite the same.

The span of his career led to my daughter asking questions about his age in various videos, as well as his evolving appearance. The best explanation I had to offer for his surgeries was that I suspected that he didn't like himself. My daughter couldn't understand why somebody wouldn't like himself, and I'm grateful for that. But then, she didn't have Joseph Jackson raising her in an atmosphere of isolation and abuse. What a lovely guy.

Something that's apparent from Jackson's childhood is how readily people will ignore the abuse and mistreatment of children if it jeopardizes the gravy train. Tell me nobody saw Joseph make threats or administer beatings to his children, when they missed a step or a note during their childhood practices and performances.
He touchingly describes his humiliation at having severe acne as a child, and the relentless teasing by his brothers and father, who called him "Big Nose." "You didn't get that ugly nose from my side of the family," says father Joe Jackson, according to Michael. He also describes throwing up at the mere sight of his father who "threw him against a wall" and beat them with "anything that was handy."
Lisa Marie Presley comments on her relationship with Michael:
"I became very ill and emotionally/ spiritually exhausted in my quest to save him from certain self-destructive behavior and from the awful vampires and leeches he would always manage to magnetize around him," she wrote.
It's one of the strange thing people do... we develop coping skills to get us through our childhood, and have a hard time breaking out of those same patterns as adults, even when we have a "choice" and following the childhood pattern is self-destructive. It seems that Jackson was surrounding himself with versions of his father - people who would bleed him dry for their own devices. But as an adult, he could also choose people (or choose to end relationships with people) who wouldn't challenge him to break with the past and enabled his eccentric and self-destructive behaviors. I suspect that his pattern of conduct, relationships and surgeries was supposed to help him be happy, but instead provided at best brief moments of relief from the unhappiness they otherwise perpetuated. And I will not be surprise if, having expressed to Lisa Marie Presley the fear that he would "end up like" Elvis, his death involved a similar soup of pharmaceuticals - a maladaptive tool to escape from (and avoid) pain, physical and psychic, that probably ended up magnifying both.

A childhood only counts for so much. Jackson is responsible for the mistakes he made as an adult that led to his isolation in his final years. But if he's capable, I hope Joseph Jackson spends some time thinking about what he did to his children. That he's somehow able to feel shame, remorse, embarrassment for his role in the unhappiness of, dare I say, more than one of his children?
Update: More on this theme from Eugene Robinson:
Jackson once said his father used to beat him, perhaps because he was the "golden child." Joe Jackson has always denied being physically abusive, but in a sense it doesn't matter. It seems to me that attaching oneself to one's young son like a leech and denying that boy any semblance of a childhood qualifies as abuse.

* * *

The worst choice, of course, was the way he frolicked with children at his Neverland ranch. Jackson was acquitted of child molestation charges, but he also paid a reported eight-figure settlement to the family of one alleged victim. Let me be clear that no childhood trauma would excuse molestation. My question, though, is where were the staff members and the agents and the hangers-on - and the loving family members - who had an inkling that all might not be right at Neverland? Did they choose to look the other way?

I believe Jackson's story that he suffered from the skin disease vitiligo -- though I don't believe that vitiligo or any other infirmity was the reason for the disfiguring plastic surgery that turned his face into a pale, taut mask. It had to be self-hatred - not necessarily an attempt to make himself "white" but to make himself hideous.
I don't think Jackson was trying to make himself hideous - that seems to be the inevitable result of having too many significant cosmetic surgeries. I'm more inclined toward thinking, body dysmorphic disorder.

Healthcare "Rationing"

Michael Kinsley shares his views on healthcare and health insurance, opining,
Here is a handy-dandy way to determine whether the failure to order some exam or treatment constitutes rationing: If the patient were the president, would he get it? If he'd get it and you wouldn't, it's rationing.
Seriously, could he propose a less useful measure? Surprise! Every health insurance plan in the nation, from the worst to the best, is "rationing" because the President gets the undivided attention of Bethesda Naval Hospital when he gets, you know, an unexplained rash... or possibly even a splinter (there's a lot of old furniture, er, antiques, in the White House - it could happen). Certainly when he chokes on a pretzel or has a colon polyp. (And don't get me started on the "rationing" of fully staffed mansions, private jets, private helicopters, luxury retreats....)

Next, is Kinsley going to tell us that it's "rationing" that wealthy people can pay thousands of dollars to have a multi-day, multi-disciplinary physical examination at the Mayo Clinic, while most people get at best half an hour in the office of their family doctor? Sure, we can call it rationing, but even before considering costs there aren't enough doctors in the world to provide that level of care to every person in the U.S. And there's not a health insurance policy in the world that doesn't "ration" - by Kinsley's standard, severely ration.
It may seem absurd to worry about whether wealthy or well-insured people get every last test and exotic or speculative treatment when millions of Americans have no health insurance and millions more have gaping holes in their coverage. But the well-insured happen to include virtually all the people making the key decisions about health-care reform - members of Congress and their staffs, the White House staff, Washington journalists, and so on. These people's fears that they would lose the right to "choose my own doctor" (code for getting treatment with all the bells and whistles) helped kill Hillary Clinton's attempt to reform health care in the early 1990s. Fear of rationing could kill Obamacare for the same reason.
Let's assume its historical accuracy - that Kinsley and his friends got worked up at the notion that Hillary Clinton's healthcare reforms would have narrowed their coverage under their gold plated health insurance plans. Is Kinsley telling us that their narrow self-interest caused this nation's political and media leaders to lie to the public - to say, "You won't get to choose your own doctor," when they actually meant, "I would have to pay for more of my own healthcare"? And we're getting another round of deliberate lies from the same people, under the guise of "rationing"?

Another point Kinsley should make is that "rationing" under Obama's plan would only occur within the context of those who choose the public plan. You think you can do better under a private insurance plan? You want to buy supplemental insurance to cover things the public plan doesn't include? You'll have that right. So again, how is this "rationing" any different from the current system and how would it be worse to get additional choices?

Wednesday, June 24, 2009

The "Conservative" Solution to Healthcare Reform

Thanks to David Brooks, the secret's finally out. The "conservative" solution to healthcare reform is rationing and a tax increase. First, a tax on middle class workers who are fortunate enough to get health insurance through their jobs:
There was a long table of 13 experts, and a vast majority agreed that ending the tax exemption on employer-provided health benefits should be part of a reform package.

They gave the reasons that experts - on right or left - always give for supporting this idea. The exemption is a giant subsidy to the affluent. It drives up health care costs by encouraging luxurious plans and by separating people from the consequences of their decisions. Furthermore, repealing the exemption could raise hundreds of billions of dollars, which could be used to expand coverage to the uninsured.
The thing about money is that it's fungible. If you believe that a tax break gives too big of a windfall to the affluent, you don't have to remove or limit it for the middle class. You don't even have to modify it for the affluent; you can instead, for example, bump up their marginal tax rate, or create or increase some other tax. Any significant tax increase "could raise hundreds of billions of dollars" - that doesn't of itself make one tax increase superior to another.

Given that Republicans have been happy to spin the possible planned expiration of tax cuts as a "tax increase". With a complicit, pliant Democratic Party, they giddily slashed taxes even while running up record budget deficits. By their own measure, this proposal is a tax increase - yet they're being allowed to avoid addressing their hypocrisy, or being asked to explain why this is different. We can't cut a subsidy to "Medicare Advantage" insurers that allows them to stay in business against the more efficient Medicare and we can't tax the income of hedge fund managers as income, but we can impose a massive tax increase on working Americans? And, quelle surprise, David Brooks is along for the ride.

There are some real problems to the status quo. Having health insurance tied to employment makes our nation's workers less mobile, and less likely to become entrepreneurs (particularly past 40), than they otherwise might be. The tax break has historically led some employers to offer more generous healthcare plans in lieu of pay raises. Even if you qualify for COBRA coverage, the cost of continuing health insurance after leaving a job can be prohibitive. (Even with the stimulus package subsidy, I know workers who can't afford COBRA.) There are a lot of good reasons to end or phase out the tax break. But at the same time, some people proposing eliminating the tax exemption have other goals in mind. Such as poisoning the middle class on the idea of healthcare reform on the grounds that it will cut their wages and perhaps also inspire employers to switch to less comprehensive plans. Even John McCain recognized the need for a tax credit to help balance out the effect of this tax increase, although that's not an elegant solution.

Brooks' endorsement of rationing was raised in that quoted passage - the idea that health insurance separates "people from the consequences of their decisions". It's sloppy thinking of Brooks to confuse that issue with his desired tax increase, unless he also believes that his tax increase will result in the broad loss of employment-based health insurance. The issue of utilization of healthcare is separate from the issue of how we pay for insurance. Brooks elaborates about the various health reform proposals,
But there is almost nothing that gets to the core of the problem. Under the leading approaches, health care providers would still have powerful incentives to provide more and more services and use more expensive technology.
Brooks could direct that criticism at himself. Except I think he has something in mind - a Newt Gingrich-type reform that makes people (other than himself) responsible for paying most of their own medical bills. When you're making six to seven figures a year, as Brooks does, it's not a big deal to pay a doctor $150 or so for an office visit, or to pay $50 or more for a needed medication. If you can't afford it, well, tough. I'm sure Brooks would argue that it's not rationing, because anybody who comes up with the money can still buy medical services, but that type of solution revolves around the idea that "responsible" healthcare consumers will choose to keep their money in their pockets (assuming they even have enough money to choose medical treatment over non-treatment.) His goal is to "save" money by denying care.

Brooks' conclusion is close to imbecilic:
Health care reform is important, but it is not worth bankrupting the country over. If this process goes as it has been going - with grand rhetoric and superficial cost containment - then we will be far better off killing this effort and starting over in a few years.
If healthcare inflation weren't absurdly high, with projected Medicare and Medicaid costs becoming prohibitive in the not too distant future, we wouldn't even be having this discussion. Putting off reform to the future in the hope that responsible politicians will suddenly emerge from the woodwork is beyond naive - disagreements aside, and as bad as things may look, there's never been a time when we had political leaders more capable of addressing this issue with reforms more likely to pass. Brooks isn't trying to punt in the hope that future leaders will do better - he's in the role of Lucy, hoping to snatch away the ball.

Brooks also ignores two huge culprits in healthcare inflation: end of life care, and the treatment of chronic illness. It may well be that an elderly person will "choose" to die, being unable to afford treatment that would extend care, but we as a society have difficulty telling the elderly that they're on their own for their life-saving treatments. When can we expect Brooks' column on how his proposed rationing will impact the elderly? Also, people with chronic diseases often require expensive medical treatments and medications on a recurring basis. Even when the needed medications are generic, costs can add up quickly. Brooks is going to tell, for example, insulin-dependent diabetics, people with end-stage renal disease, and AIDS patients, "Sorry, if you can't afford insulin, dialysis, or anti-retrovirals on your own, you need to find some place to curl up and die, preferably where I don't have to see it happen"? These are the consequences Brooks' approach dictates;1 when can we expect a direct, honest column addressing these issues?

1. There are, of course, no easy answers. The present approach is largely, "Don't set limits, spend vast amounts of money, and hope that technology eventually produces a series of miracle cures." Even if we assume that the public is ready for a rational, painful discussion of these topics... I used the words "rational" and "painful" - do I really need to add, "Our political leaders are not"? Note, these issues are not resolved by national health care plans, although the costs seem to be better controlled. Management of chronic illness is an area that is probably also best suited for government sponsored research, as the huge profits are in managing a chronic disease, not in preventing or curing it, so that seems to be where private research dollars go.

Tuesday, June 23, 2009

"Help Me Lie To My Ill-Behaved Children"

(Appropriately) via, somebody who's not up for the parent of the year award.
Premise: You will be the dog walker hired by daddy (me) to walk Skittles. I will introduce you to the kids, and you will tell them you are going to help Skittles get her exercise when Daddy is too busy to walk her. At that point you will walk Skittles to your car and take her to her new family 20 minutes from my place. Then return holding just a leash. The story will be that Skittles broke free of the leash and took off. At this point prepare for crying, things being thrown at you, and possibly cursing. My kids are young and dramatic, their girls.
Are you qualified?
This job is ideal for an actor looking to diversify their role base, or someone who genuinely likes to make children cry. Acting experience is a plus, but not necessary. Please inform me of any prior experience in this kind of situation.
No mention of whether you can get SAG credit....

Monday, June 22, 2009

The Axis of Evil Revisited

As we have a flame-baiter posting irrelevant comments about North Korea's placement in "The Axis of Evil", it seems appropriate to revisit the post I made the last time this happened. (Wanna bet it's the same person?)

Due Process

In a completely unsurprising 5:4 "bad facts make bad law" case, the Supreme Court denied a defendant the right to obtain DNA evidence from the state that might disprove his involvement in a crime.
Mr. Osborne is not a sympathetic character. He was released after serving 14 years and after telling a parole board he was guilty of the rape. Not long after his release, he was charged with kidnapping, armed robbery and burglary for a home invasion in which he allegedly duct-taped and pistol-whipped four people.
The fact that he confessed and expressed remorse in order to obtain parole is anything but surprising - had he denied responsibility and insisted upon his innocence, he very likely would have been denied parole. But the rest of it? The justices can protest all they want about their goal being to uphold the law, but it's anything but unusual for a nasty set of facts to presage a narrowing of defendants' rights. People like Osborne don't inspire a lot of public sympathy, and very often inspire a response to the effect of, "Even if he didn't do that crime, he still deserves to be in prison."

Blogger commentary tends to lean toward viewing this as a manifestation of "tough on crime" conservatism. I see it a bit differently - as part of the tension between those who believe in "substantive due process" and those who believe that there's no such thing. In simple terms, procedural due process asks, "Did the court follow the rules"? If all the i's were dotted and t's crossed along the way, then the defendant's procedural due process rights were respected and the conviction can be deemed sound. Substantive due process asks, "Was the correct result achieved?" At the extreme end, this can mean ignoring all of the procedural issues and looking only at the outcome on a case-by-case basis. And some, like Justice Scalia, are skeptical of the notion that there's any constitutional right to substantive due process:
There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of "Substantive Due Process." Only lawyers can walk around talking about substantive process, in as much as it's a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.

What substantive due process is is quite simple - the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It's a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.

Then we come to step three. Step three: that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don't think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.
There's another way to look at this "division". You could create a system of courts that had clear, easy-to-follow rules that lead inexorably to conviction. Even acknowledging his acceptance that the innocent will sometimes be convicted and imprisoned, I doubt that even Scalia would regard such a system as satisfying the constitution's requirement of granting due process. So it's not simply about procedure, but whether the procedures are likely to lead to a just outcome. At the furthest end, you could argue that the fiercest advocates of substantive due process aren't so much arguing for courts to ignore procedural rules as they are arguing that procedure should not prevent claims of innocence, or block a court from reviewing evidence of actual innocence.

If we approach this as originalists, if Scalia were to ask the framers of the Constitution if they were comfortable with a sovereign who was in possession of evidence that would clearly and unambiguously establish a defendant's factual guilt or innocence, but would not let the defendant access that evidence, do you really think they would respond, "No, we believe the sovereign should be able to withhold the evidence"? If so, but you don't want that outcome, or if you spurn the notion that we should even try to discern what the framers of the Constitution intended as opposed to what they put into writing, we can instead approach the issue as textualists, and decide that "due process" means that the court follows procedures sufficient to satisfy Scalia, even though innocent people will be convicted, but that we should ignore the namby-pamby Justices who would argue that nobody should be incarcerated for life or executed because the state won't let them access evidence that might establish their innocence of the crimes for which they were convicted? How is Scalia's position better supported by the text than the position of those who say, "When evidence is available that could quickly and easily establish guilt or innocence, it should be made available for testing"?

Scalia's not drawing a line based upon the text of the Constitution - it's based upon his personal political beliefs and his personal views of judicial economy and expediency. That's not to say that those on the other side of the issue are any better supported by the text of the Constitution; but it's a fair response that some of the language of the constitution was deliberately left broad or vague - and it's more than fair to point out that the idea that you can always infer objective meaning from text (let alone a text that is centuries old and includes broad, vague, and general provisions) is absurd. Scalia's correct to argue that the Constitution should not be subject to interpretation that rises to the level of de facto amendment, but some of the language has to be applied based upon factual contexts unknown to and unknowable by those who wrote the Constitution. But let's be honest - the biggest difference between Scalia and those he criticizes is that he's more consistent in his application of his favored rules of interpretation - but in my view that's more by happenstance than by either the superiority of textualism to other forms of interpretation or Scalia's actual desire to adhere to a single approach to interpretation. Scalia rapidly departs from textualism (as in the case of sovereign immunity) when it would lead to an outcome inconsistent with his personal philosophy of the Constitution.

No Justice on the Supreme Court would argue that procedure is irrelevant, and all that matters is getting the correct outcome. They're all going to recognize boundaries where judicial economy calls for finality, even if additional proceedings might eventually lead to a different outcome. But some aren't as comfortable as Scalia with deference to state power, and to a state's decision that DNA evidence should not be tested to establish guilt or innocence, even though the techniques available for testing at the time of the original trial were weak or non-existent. A fair question for Scalia: What's the state's interest in denying DNA testing under these circumstances? Were he less sympathetic to state power, Scalia would direct his trademark caustic questions at a lawyer who argued that it would be unduly burdensome for the state to be mandated to permit DNA testing at the defendant's expense in all cases where such evidence existed and had not been adequately tested.

Were this a "cold case", the state would not hesitate to conduct DNA testing to try to match old evidence to a DNA database of known sex offenders. This is different because, rightly or wrongly, somebody has been convicted? So it's more important to the state to have "finality" than it is to assure itself that, in the event that the defendant is telling the truth, a dangerous rapist is off the streets? What if the state's concern is actually that it will look bad - incompetent, unjust, corrupt - when DNA evidence proves a wrongful conviction and somebody takes a look at the processes by which the wrong man ended in in prison? Is it that we are to assume that the state's motives are pure - and if so, where can I find that presumption in the text of the Constitution? If it's not in the text then, once again, what makes Scalia and the other textualists any better than those they criticize?

Sunday, June 21, 2009

What if a School Principal Acted Like This

Rhee apparently won't talk to the Washington Post reporter who is primarily responsible for reporting on school issues.
It's not uncommon for public officials to temporarily slam the door on reporters who upset them. But this is unusual. Rhee's effort to transform the public schools is arguably the biggest story in the District and has gained national attention. Her pique has lasted months. Turque is the only reporter who covers her full time. And he works for a powerful hometown newspaper whose coverage is essential to taxpaying readers with a stake in the issue.

"Basically, she just stopped talking to me," Turque said. "She never gave me a direct explanation. I've had to sort of piece it together indirectly."
How does Rhee explain the brush off?
I e-mailed Rhee and asked her to specify her complaints about Turque. I also asked whether she wants Turque replaced on the education beat and why she would talk with Mathews and not him. She referred me to her spokeswoman, Jennifer Calloway, who said Rhee doesn't want to "rehash" the past.
The Post's ombudsman observes,
Rhee's reaction to The Post's coverage strikes me as petty and thin-skinned -- and perhaps calculated. She has been uncommonly cooperative with national media reporters who parachute in for big-picture profiles. But she has been overly sensitive when Turque, and Post education reporters before him, have pursued more granular coverage that is so essential to local readers.
But it also seems to me to be a fair question, would Rhee tolerate this kind of behavior if it were directed at her?

Wednesday, June 17, 2009

...But Can They Afford to Post Bail?

It would have made for an interesting entry on the customs declaration form:
Japan is investigating reports two of its citizens were detained in Italy after allegedly attempting to take $134 billion worth of U.S. bonds over the border into Switzerland.
They were nabbed by Italian authorities, and (if the bonds are real) could be fined up to 40% of the bonds' value.

Thursday, June 11, 2009

Rove's Dissembling on Health Care

Karl rove shares this anecdote:
It was a sobering breakfast with one of the smartest Republicans on Capitol Hill. We can fix a lot of bad stuff President Barack Obama might do, he told me. But if Mr. Obama signs into law a "public option," government-run insurance program as part of health-care reform we won't be able to undo the damage.
Anonymous? I don't think Rove's making the story up, nor do I think he's such a pariah that the politician at issue doesn't want people to know he still breaks bread with Rove. So the most likely reasons for the anonymity are:
  • The politician at issue doesn't want to have to defend his comments on the merits; or

  • The politician at issue was speaking of "bad stuff" in a very different way than Rove suggests. That is, he's using the term to mean the implementation of policies, no matter how sound, that make it more difficult for the Republican Party to regain power.

If Rove were an honest man, beyond naming his breakfast guest he would admit the following: It would be easy to kill a public plan that people found unsatisfactory. What scares him is not that it will work or be ineffective, but that it will be better, cheaper and more efficient than private health insurance plans and decades of fear mongering about "socialized medicine" will have been for naught. (Not to mention, $millions in health insurance industry lobbying dollars would disappear from Republican coffers.)
I'd go the Republican member of Congress one further: If Democrats enact a public-option health-insurance program, America is on the way to becoming a European-style welfare state.
"European-style welfare state"? I guess that's the new term for "socialist", that particular epithet having lost its traction. Perhaps Mr. Rove will elucidate: Which European countries are not "welfare states"? And which nations in the world are clamoring to imitate the U.S. model? (I might quip, why does Rove have so little faith in America that he believes we can't create a national health care plan as good as those people in countries like France and Canada have absolutely no interest trade for a U.S.-style scheme of insurance.)

Rove offers a number of flimsy arguments against a public option. For example he claims that "Advocates say a government-run insurance program is needed to provide competition for private health insurance. But 1,300 companies sell health insurance plans. That's competition enough." Except as he fully knows, the market for health insurance is not a normal market. The principal buyers are employers who, in the absence of a CBA mandating a minimum level of benefits, seek to minimize their expenditures. They look for the cheapest plan they can successfully foist on their employees. Most employees don't have a choice of plans, or at best get to choose from a handful of plans within their employer's price bracket. If they're not employed, the market's a near failure - individual plans tend to offer a glorious mix of extremely high cost, high deductibles, and poor coverage.

Rove speaks of savings brought on by competition in the Medicare drug plan, using high projected costs to spin the illusion that competition has reduced cost to the government, but neglects to mention that the Republicans deliberately excluded Medicare from using its market position to negotiate discounted drug prices - that is, they knew full well that without their legislative hamstringing, Medicare would have outcompeted the private plans. You don't believe me? Ask him to put his money where his mouth is, remove all restrictions on the government's ability to negotiate drug discounts, and prove that private plans are cheaper. He'll no doubt stammer out an excuse about how it's not fair for a government plan to be able to negotiate for discounts even though private plans are free to do so, but it will be a smokescreen.

Rove all but admits his deceit, arguing, "government-run health insurance would crater the private insurance market, forcing most Americans onto the government plan." His reasoning is that employers would see the government plan as, you guessed it, the cheapest option. And despite his regurgitation of the standard parade of horribles, about how doctors and hospitals won't get adequate payment for services (yet apparently would still participate), government bureaucrats will choose your doctor, and the cost will be higher than that of private plans (ostensibly because any government plan would be subsidized, but he's barely trying for internal consistency), people will voluntarily sign up with the government plan. Uh, yeah....
Health care desperately needs far-reaching reforms that put patients and their doctors in charge, bring the benefits of competition and market forces to bear, and ensure access to affordable and portable health care for every American. Republicans have plans to achieve this, and they must make their case for reform in every available forum.
Great, Karl. How about sharing those plans right here and right now? Or naming a single country where a public plan, in competition with private plans, has led to the outcome you describe? Oh, out of space? Why does that always seem to happen right when the discussion might become substantive.

As Rove obviously understands, its easier to run for election while claiming to have a "secret plan" than it is to do so while admitting that you don't actually have an answer. And, of course, that a lie told often enough becomes the truth.

Craving Coolidge

Well, at least he's not hankerin' for Hoover, but George Will is apparently smitten with the wit and wisdom of Calvin Coolidge. Will's in full-scale "angry old man" mode, shaking his stick angrily at all the whippersnappers who make irresponsible choices. His editorial is largely "stream of consciousness" - "things that bother me, right now" - rather than a coherent expression of anything (other than, perhaps, his appreciation for Coolidge).

One of Will's complaints is about the Smoot-Hawley tariff of 1930 (darn you, Herbert Hoover!), I mean, cap-and-trade:
The Smoot-Hawley tariff of 1930 ignited reciprocal protectionism that suffocated global trade and deepened the Depression. The cap-and-trade legislation passed recently by a House committee is Smoot-Hawley in drag: It contains provisions for tariffs on imports designated "carbon-intensive" - goods manufactured under less carbon-restrictive rules than those of the proposed U.S. cap-and-trade regime. Eco-protectionism is a recipe for reciprocity.
Yes, that could happen, whether as a result of cap-and-trade or any other tax on carbon emissions, although one hopes that the international trade organizations that have come into being since Hoover's era will help mitigate the imposition of tariffs and retaliation. But (other than ignoring science and pretending that global warming doesn't exist) what's Will's solution? No, wait, I think that is Will's solution.

You gotta love this, as well:
Trillions of dollars of capital are being allocated sub-optimally, by politically tainted government calculations rather than by the economic rationality of markets. Hence the nation's prospects for long-term robust growth - and for funding its teetering architecture of entitlements - are rapidly diminishing.
I recognize that those who worship at the altar of the free market will always find a way to blame the government for bubbles, inflation, recessions, whatever. But the Chrysler and GM bailouts hardly register in relation to the financial industry meltdown. Will may be correct that the better approach would have been for G.W. Bush to simply let market forces prevail, and for AIG, Citigroup, and others to go through bankruptcy, but if that's what he believes, why does he focus on the auto industry bailout? And if it's not what he believes, what business does he have focusing on the auto industry bailout, beyond the fact that the specifics of that bailout were defined by Obama's administration instead of Bush's? Is his answer, once again, that when faced with a global crisis the government should do nothing?

As for Will's swipes at entitlements and Social Security, I'm wondering... is he true to his convictions, or is he channeling Grandpa Simpson? That is, is he turning down Medicare and Social Security benefits, or protesting, I didn't earn it, I don't need it, but if they miss one payment I'll raise hell!"

Wednesday, June 10, 2009

Looking Away in Horror

Way back during my high school days, the biology teachers shared a small office between two classrooms. There, they kept a number of old biology texts that were available to all students, but which were primarily for their own reference and mostly disregarded by the student body. One of the texts was a reprint of an early 20th century book on fetal abnormalities. The text focused on severe, mostly lethal abnormalities, and each entry was accompanied by a photograph of a stillborn baby illustrating the abnormality. Some of the pictures looked scarcely human, some looked like the babies had been the victims of torture, and a few weren't even recognizably human.

Sensitivities have changed since the original publication, which described the babies it depicted as "monsters". At the time of its publication, you might have seen babies (real or fake) with similar deformities preserved in formaldehyde and presented at "freak shows". Historically, in much of the Christian world, a child with this type of deformity who survived (or even one with far lesser deformity or genetic abnormality) might have been shuttered away from the world, their parents and siblings keeping their very existence a secret, or institutionalized.

Ross Douthat's latest essay on abortion rights is mostly a restatement of what he's said before, and a lot of people have taken issue with the points he makes. But I have yet to see this addressed:
Over the last week, there’s been an outpouring of testimonials, across the Internet, from women (and some men) who lived through these hard cases. They help explain why Tiller thought he was doing the Lord’s work, even though that work involved destroying something that we wouldn’t hesitate to call a baby if we saw it struggling for life in a hospital bed. They help explain why so many Americans defend his right to do it.
Why, then, did Douthat's Catholic forbears accept the labeling of such children as "monsters" and "grotesques"? Why did it countenance the keeping of their births and existence a secret? Why did it help perpetuate a culture of shame around having a child with a birth defect? What's its explanation for why God would create a baby, destined to struggle for life for minutes, days, weeks, or perhaps even a few excruciatingly pain-filled years, before inevitably succumbing to a congenital or genetic abnormality? A baby who might inspire somebody, not prepared to see it, to avert her eyes in horror? How is this consistent with God's infallibility? I don't mean to single out Catholicism in this regard; but that's the prism through which Douthat sees the world.

As usual, instead of stating a clear position, Douthat waffles and begs the question. Following up on the straw man proposition that the "argument for unregulated abortion rests on the idea that where there are exceptions, there cannot be a rule", Douthat proclaims,
As a matter of moral philosophy, this makes a certain sense. Either a fetus has a claim to life or it doesn’t. The circumstances of its conception and the state of its health shouldn’t enter into the equation.
It wouldn't take much courage for Douthat to state what his arguments, present and historic, suggest that he believes: That a fetus has a claim to life without regard to the circumstances of its conception and the state of its health. I'm not sure whether Douthat chooses not to do so out of some sense that he can depict himself as unbiased on these issues, or simply because he lacks courage. Instead of taking a position he lectures,
But the law is a not a philosophy seminar. It’s the place where morality meets custom, and compromise, and common sense. And it can take account of tragic situations without universalizing their lessons.
Douthat confuses law with politics. It's very simple to draft a law that says "Abortion is illegal under all circumstances" - perhaps Douthat should consult his Priest about something called "canon law". The fact is, if you deviate from the dogmatic line that abortion should be prohibited in all circumstances - whether it be to allow "abortions on women facing life-threatening complications, on women whose children would be born dead or dying, on women who had been raped, on 'women' who were really girls of 10" - you're pro-choice. The only difference between you and somebody who favors few (or even no) restrictions on access to abortion is where you choose to draw the line.

If Douthat were interested in that debate, he would spend less time building straw men or making statements so absurdly false (e.g., "Under current law, if you want to restrict abortion, post-viability procedures are the only kind you’re allowed to even regulate") that the most charitable interpretation is that they betray a level of ignorance that should disqualify him from writing on this issue.

It's About Time?

The Washington Post is concerned about negotiations between D.C. teachers union and Schools Chancellor Michelle Rhee. It asserts,
Maybe it's time for parents to get a look what's going on in these closed-door talks. More than pay scales are at stake. Every aspect of classroom life - from the size of bulletin boards to teacher planning times to when principals can ask to look at lesson plans - is being decided. Given that secrecy hasn't helped Ms. Rhee and Ms. Weingarten work out their differences, why not give the public more than a glimpse and some sound bites about the competing proposals? Each side claims to have a plan that will further the interests of students. Let them prove it.
Well, great.... Except why didn't this matter to the Post during the many times in the past it advocated strongly in favor of Rhee's secret package of reforms?

Given it's history, the Post may well hope that the details of the discussion - class planning time, equipment to be provided to classrooms, etc. - overwhelms the big picture. I suspect they're hoping that disclosure will enable Rhee's supporters to try to hide the forest by pointing to trees, real or imagined - "Look, they want to have a contractual right to a large bulletin board" - rather than on the issues central to the negotiation. The devil may be in the details, but what would be most beneficial would be a point-counterpoint on the issues Rhee deems most necessary to effecting her reforms. If a dispute over the size of bulletin boards is on the list, or is even competitive for last place, I won't be left with much faith in Rhee. (But it won't be.)

Tuesday, June 09, 2009

What Would Freud Say?

I thought the days of comparing Obama to starlets were over. Apparently Pat Buchanan didn't get the memo:
Obama, however - like some Hollywood actress seeking sympathy and public approbation with her tell-all biography detailing how she was abused by her father - trolls for popularity with America’s adversaries by reciting for the benefit of the world all the sins his country has allegedly committed.
I mean, seriously, don't most people outgrow "You're a girl" as an insult somewhere around adolescence?

Monday, June 08, 2009

Testifying Before Congress

I'm not reassured....

If you're an inspector general, called before Congress to testify, you might do well to understand the scope of your job and responsibilities.

Friday, June 05, 2009

Democracy and Armed Insurrection

I recognize that, while couched in very broad terms, this editorial is a statement is principally about Hezbollah and Hamas in Lebanon and the Palestinian territories, and we're supposed to nod our heads without noticing that it's entirely self-serving, but... I'm nonetheless left wondering. Does Livni know the history of any country or region in the world, including her own?

Wednesday, June 03, 2009

Why Shouldn't The Government Be The Senior Creditor

I'm sorry. Although I support the creation of a new bankruptcy chapter for companies deemed "too big to fail", and I support proposals to keep "too big to fail" from being an excuse in the future to bail out companies that should go through bankruptcy or otherwise be allowed to fail, I find myself completely unable to get worked up about the idea that certain Chrysler and GM creditors are getting a raw deal in bankruptcy.

The concept seems to be this: Even though the auto companies survive solely on government bailout funds, and can make their way through bankruptcy only with the government guaranteeing their debt and warranties and providing additional cash support, and even though the creditors objecting to the proposed distribution would be receiving far less but for the government bail-out, and even though to give them more increases the government's future exposure through the Pension Benefit Guarantee Corp., it's hideously unfair that the government is using its position to bring about a settlement that doesn't provide a greater transfer of taxpayer money to cover the private losses of GM and Chrysler investors.

Why are these people so willing, eager, to regard taxpayer dollars as meaningless. No, that's not quite right. As a justification for a wealth transfer from the taxpayers to investors who made a poor investment. What if we had a perfectly reasonable law that, when a major business falters and is deemed "too big to fail", but cannot obtain the private capital it needs to maintain its operations, in the event of bankruptcy any loans or other aid it receives from the government to get it through the crisis must be paid back to the penny before any other creditor may receive a distribution? How would that be unfair? Yet in the context of GM and Chrysler, the deal being offered to creditors is far more generous.

With all due respect to those who pretend that nobody can bid against Fiat for Chrysler because nobody has had time to figure out what Chrysler is really worth, how hard is it to beat a bid of $0? What reason is there to believe that Obama would be anything but pleased with a higher bid, a bidding war, or a bid from a domestic company? Seriously, Chrysler was privately held by Cerberus Capital Management, a company that deems itself a turnaround specialist, and I don't think they would have hesitated to provide a detailed prospectus to anyone who was willing to outbid Fiat. I also don't accept that Fiat is the only company that noticed Chrysler was for sale, and spent a bit of time kicking the tires and looking under the hood.

I expect that the legal challenges to the proposed resolution of Chrysler's bankruptcy will fail. I agree that what we're doing here (and, outside of the bankruptcy process, with major financial institutions) is far from ideal. I am anything but thrilled with the prepackaged bankruptcies we're looking at, and would very much have preferred to keep GM's ownership in private hands. But this notion that keeps rearing its head, that it's unfair not to give investors, financial industry employees, and others a windfall at taxpayer expense - where their investments would be worthless or they would be out on the street without government intervention - just doesn't move me.

The better argument is that we should have let Ford and GM enter bankruptcy last fall, without federal support, and let the market deal with it. It's highly questionable whether, three or five years down the road, this will look like the best use of the taxpayer money we're pouring in, with the short-term goal of saving jobs and perhaps allowing viable companies to emerge from the ashes of their former selves. Will it still look like it was a good idea to keep the companies going, in order to prevent huge numbers of their employees from becoming jobless in the middle of a difficult recession? It's hard to know - there is a serious price to worsening or perpetuating the recession. But while I hope I'm wrong, I don't think it is ever going to look good in terms of "dollars spent per job saved".

Ross Douthat's Supreme (Court) Ignorance

Sometimes you need a sounding board. I sometimes get the sense from Ross Douthat's columns that I would enjoy discussing issues with him. He seems reasonably bright, reasonably informed, and sufficiently capable to challenge my opinions so as to make our conversations interesting, without the narcissism or dogmatism that can turn political debates into a futile bore. (He has some sacred cows, sure, but so does everybody.)

But I am losing the sense that he would enjoy discussing issues with me. Because if he were the type to truly enjoy debate, or to seek challenge of his opinions rather than looking for affirmation, I doubt that his column on the Supreme Court would have come out in quite the same way. It reads like a mediocre undergraduate essay, foggy on the facts, weak on the logic, without any clear basis for the "cure" he proposes. I suspect that he's raised the same issues before, perhaps even blogged about them, but in contexts where he had a sympathetic audience and could avoid or ignore criticism.

Douthat opens with a fair criticism of the judicial nomination process. Sotomayor will establish herself as a sufficiently learned jurist but, when confronted with serious controversies, will hide behind the excuse that she can't comment on an issue that might come before the court. Never mind that in order to establish her judicial bona fides, she will comment on any number of non-controvercial subjects that the court might be asked to revisit - it's those 5-4 and 6-3 issues that are off the table. But that won't be a standard she created - that's the standard the Senate created and perpetuates. I suggested a possible work-around - the Senate could ask a candidate to state the best arguments on both sides of a controversial issue without picking a side. What a choice for a Senator... having already decided not to filibuster, do you press hard on the issues or preen for the camera?

Douthat proceeds to suggest that the politicization of the Supreme Court is a bipartisan problem, but that it is somehow more of an issue now than at any prior time in the nation's history. Granted, it's unusual for a conservative to admit that the Republicans have done their best to build an activist judiciary, and to resolve cases through the judiciary when they can't prevail legislatively (even in contexts where they control the legislative and executive branch, as was the case for most of G.W.'s tenure, or after John Engler created his activist "conservative" court in Michigan). But new? I suggest that Douthat pick up a dusty old case reporter from 1803, and read the case that in large part created the dynamic he now deplores - Marbury v Madison. Perhaps he should also grab a reporter, just a few volumes down the shelf, and read Martin v Hunter's Lessee.

The context for the Supreme Court acting as the final arbiter of federal constitutional questions was resolved centuries ago. Does Douthat believe that, at that time, nobody noticed a political aspect to the court's direction, rulings, and expansion of its own power? Politicization and the consequences of a bad ruling are more significant now than, say, back in 1857, when the Supreme Court kinda sorta made a bad ruling that, in the view of many (although granted, a view disputed by some historians) kinda sorta contributed to the subsequent civil war? Or when the post-Civil War Supreme Court decided to limit the reach of the 14th Amendment's and roll out the red carpet for Jim Crow laws? Or when FDR threatened to stack the Supreme Court with new justices? (How did that one get past Douthat?)

Douthat's contention that complaints about the Supreme Court's power "have more merit now than ever" is based not on any substantive review of their rulings, but on statistics.
According to calculations by the Harvard law professor Jed Shugerman, the Court has gone from overturning roughly one state law every two years in the pre-Civil War era, to roughly four a year in the later 1800’s, to over 10 a year in the last half-century. So too with federal law: Prior to 1954, the Court had struck down just 77 federal statutes in a century-and-a-half of jurisprudence; in the 50-odd years since, it’s overturned more than 80.
To anybody slightly conversant with Supreme Court history, what of that would be surprising? Subsequent to the Civil War, the Supreme Court has incorporated most of the rights enumerated to in the Bill of Rights to the states, meaning that they could start reviewing state laws as violative of federal rights. It's a bit like arguing, "The Supreme Court made no decisions under the Thirteenth, Fourteenth or Fifteenth Amendments before the Civil War, then suddenly for no reason I can see they started overturning laws as violating those Amendments."

There's another factor, one Douthat should know about. There's a whole body of Supreme Court precedent that might be described as the "what about now" decisions. States, confronted with a ruling that a particular statute is unconstitutional, often take a "try and try again" approach. It's unconstitutional to ban abortions? Well then, how about we impose a seven day waiting period... no? How about 48 hours? How about we require spousal notification... no? Then how about parental notification? How about we give state funds directly to K-12 parochial schools... no? Then how about we give them free textbooks, and create a voucher program where parents decide where to use the voucher? There are many other examples. Once you decide that a line can be drawn, you're going to get a lot of subsequent argument over where to draw that line, and the decisions start to look more like the making of policy than the neutral application of law. (Rival paper or no, Douthat might benefit from reading George Will.)

In terms of federal legislation, let's see... What happened in 1954? I'm sure it was nothing significant. Seriously, it's like there's a huge blind spot in Douthat's understanding of history - we have a civil war, get a new set of constitutional amendments resulting in Supreme Court scrutiny of state laws, and suddenly more state laws are reviewed. We have a seminal case that overturns "separate but equal" and paves the path for integration and the civil rights era, and suddenly the Supreme Court is doing crazy things like overturning state anti-miscegenation laws.

You also have the evolution of the court, post-FDR, with justices being asked to review commerce clause cases that aren't particularly sexy or interesting to laypersons (probably not to most lawyers) but play a part in the increased scrutiny of state and federal legislation. We found ourselves moving into an era where the federal government was increasingly regulating state activities, often by attaching strings to grants of federal money, with judicial review of whether those strings were constitutional, whether state efforts to circumvent the strings were permissible, whether the strings constituted "unfunded mandates".... etc. We have also seen an explosion in the quantity of federal law, including the creation of a huge body of federal criminal law, and a federal "war on drugs" (now accompanied by a "war on terror") that is often held up as justification for rolling back protections extended under the Bill of Rights. We had the development of a highly mobile society, the rise of information technologies, and the extension of federal laws and regulations into areas prior generations couldn't have imagined.

The change wasn't the consequence of the flipping of a magic "judicial activism" switch. A lot was going on. This is a context where statistics may be interesting, but prove nothing.
The public doesn’t seem to mind this increasing assertiveness: The Supreme Court regularly shows up in polls as the most respected branch of government. But settling so many vexing controversies with 5-to-4 votes — effectively making Anthony Kennedy the nation’s philosopher king — is an awfully poor way to run a republic.
Except that when you have a 5:4 decision, every vote on the majority side is arguably the "swing vote". It's not as if Kennedy's not predictable - for the most part you know where he's going to come out on any given case. This is really no different from Scalia's years of writing lengthy dissents. Now he falls into the majority. Or during the period when we were told that both O'Connor and Kennedy were "swing votes", but we were still ending up with a lot of 5:4 decisions. Has it not occurred to Douthat that there's a reason we have an odd number of Justices? That we've known since the dawn of the Republic that they would be deciding issues by majority vote, and would sometimes vote 5:4 on difficult issues? That sometimes being a "swing vote" reflects that you're giving an issue more careful thought and consideration than a Justice who sits as an immovable anchor on one side or the other?

Let's say you have a split among the federal circuits, with most circuits having ruled on a particular interpretation of the Sherman Antitrust Act, with a narrow majority of circuits favoring a particular approach to the law. Four Justices vote to grant certiorari, the issue is well-briefed, well-argued, and is debated among the Justices. They come back with a 5:4 decision. To Douthat, this is a bad thing? That they've just unified the interpretation of a difficult issue of law, creating predictability and uniformity across the nation in relation to an issue that has previously triggered a lot of extremely expensive litigation? It's as if he thinks the Supreme Court does nothing but make personally motivated decisions on reproductive rights cases. In fact, that seems to be exactly what he thinks:
The modern Court’s most enduringly controversial power grabs — with Roe v. Wade leading the way — were usually the work of liberal justices, and even the more modest liberal theories of jurisprudence tend to depict the Justices as soldiers in the progressive cause, constrained primarily by what the political climate allows them to get away with.
I obviously hang out in the wrong circles, because when I randomly ask one of my peers, "Which case represents an enduringly controversial expansion of power that has the most profound impact on our daily lives", I'm not going to hear about Roe. I'm going to hear about the Commerce Clause, and cases like Wickard v Filburn. Douthat's so focused on a single tree, that he can't see that he's standing in a forest of Commerce Clause issues.

There's another point to be made here: Roe v Wade limits the state's ability to control the lives and actions of citizens, to intrude into the private medical and reproductive choices of competent, rational adults. As a social conservative, Douthat sees an action that frees people from state control as a "power grab". Were he a libertarian, he might still find fault in the court's reasoning, but he would argue instead that it's an area the state has no business regulating at all - the power grab would lie in the state's removing the choice from the individual. This is a context where Douthat apparently prefers the power of the state over either the rights of the individual or the power of the federal government to limit state intrusion. But that seems more opportunistic than "conservative".

Douthat returns to statistics:
But in practice, the main divide between liberal and conservative judges tends to be over the responsibilities of the federal government, not judicial activism per se. During the last decade of the Rehnquist Court, for instance, the conservative Clarence Thomas and the arch-liberal John Paul Stevens were almost equally willing to vote to strike down legislation. It’s just that Thomas was much more likely to rule federal actions unconstitutional, while Stevens was more likely to vote to overturn state laws.
Once again, Douthat ignores court history, substituting statistics and shallow political labels for substantive analysis. It's reminiscent of Cheney's trying to write Colin Powell out of the Republican Party, or Douthat's sneering at Arlen Specter as a "centrist" and arguing that "Rockefeller Republicans" aren't conservatives. Political labeling as name-calling, with no apparent grounding beyond "I'm conservative, so people who disagree with me are not." If Stevens is "ultra-liberal", what was Justice Blackmun? Justice Brennan? Justice Marshall? Chief Justice Warren?

What makes Thomas the paradigm "conservative" Justice? Back in the day when Thomas was best known for joining Scalia in dissent, how did this divide manifest itself? I suspect that Douthat cherry-picked Thomas, because he has been around long enough to have a track record and, of the longer serving conservative Justices, was the most likely to strike down federal laws. But that doesn't make the case that he's representative of either conservatives or conservative justices. Also, is Douthat offering an inference about the court, or about a particular justice of the court? If it's the former, the voting record of an outlying judge is peripheral to even the statistical argument. If it's the latter, looking at only those cases where a statute is overturned tells you only part of the story, and may not even be representative of the whole - you must also look at the justice's dissenting opinions.
There are bipartisan ways that the Court could be reined in, and the legislative branch reinvigorated. Shugerman, Caminker and others have proposed a supermajority rule, for instance, requiring a 6-to-3 vote to overturn federal legislation.
I suggest that Douthat pick up a dictionary, and look up the term "coequal." The fact that the Supreme Court can overturn legislation is not an accident of history. It's part of the design. I pause for a second to ask, does the name-dropping carry any significance to the average reader? Who hears the name "Caminker" and thinks, "Oh, yeah, Evan, from U of M"? Who's going to think, "Didn't those guys write about this issue, six or so years ago? Out of concern about the activism of the Rehnquist court?" These are the most prominent voices that Douthat can find? In fairness, one of the reasons you don't find much discussion of these ideas is that they can't get past the idea stage without a constitutional amendment. They're thought exercises but, as policy, are something that would require judiciousness by a court and a Chief Justice who favors consensus over expediency.

Caminker's concern was the reversal of federal statutes on federalist grounds. He saw the series of 5:4 decisions as inconsistent with past practices and insufficiently deferential to the presumption that federal laws are constitutional. But that begs the question of whether or not those decisions were sound. History includes some outrageous Supreme Court rulings that had clear majority support. It also overlooks the fact that the change was brought on in no small part due to Justice Rehnquist's becoming Chief Justice. Rehnquist favored expediency over consensus, and wanted to limit or overturn a number of historic cases. He was ultimately joined by other justices who scorn stare decisis and deference in relation to laws they regard as wrong, namely Scalia and Thomas. And if Douthat was paying attention to Caminker, he would have some idea that the Rehnquist court turned its sights on the progeny of the Great Society cases and the associated expansion of federal reach under the Commerce Clause. In terms of the evolution of the court, Douthat might have noted that the "conservative majority" responsible for those decisions was described as Chief Justice Rehnquist along with "Justices O’Connor, Scalia, Kennedy, and Thomas" - as previously noted, Kennedy can be quite predictable.

So what's magic about the number "six", or even the number "seven"? If Douthat believes that some special weight should be given to a Supreme Court decision that's decided by a clear majority... let's say, 9:0, why does he mark 1954, most notable for it's unanimous decision in Brown v Board, as the beginning of the end? Why does he spend so much time fretting over Roe v Wade, a 7:2 decision?

And, oh my goodness, Douthat takes this thought experiment seriously:
To get conservatives on board, the rule would have to be extended to state legislation as well. This isn’t as crazy as it sounds - versions of the supermajority idea have been batted around by left and right alike since Reconstruction, and merely proposing it might spur the Court toward greater consensus, and perhaps greater modesty as well.
It's bad enough that Douthat doens't understand the concept of coequal branches of government as applied to the Executive, Legislative and Judicial branches. Now he seems to be operating under the belief that the U.S. Supreme Court owes deference to state legislation that contravenes the U.S. Constitution. This, he believes, is conservative? And how puzzling... who would have thought that there would be people arguing to impede U.S. Supreme Court review of state laws following reconstruction, at least up to the point the Court declared itself to be cool with Jim Crow laws? What might their goal have been? Douthat says these same concerns started rearing their head again after 1954 and Brown v Board? What a remarkable coincidence.

Douthat continues,
Absent such constraints, the best reform would be term limits for the Justices, instead of lifetime tenure. Give them 12 years, rotated on a regular schedule, and then send them on their way.
I've previously noted that term limits for justices are silly and largely unworkable. But Douthat's goal here seems to be something far less than admirable: He seems to be hoping that term limits will further politicize the court:
Such limits wouldn’t reduce the Supreme Court’s power directly, but it would help us see the Court for what it has become - a deeply political institution, as fallible as any other, and answerable, when all is said and done, to us.
Same as it ever was.

It's hard to take this argument seriously, even granting Douthat's weak grasp of the court's history and its role as an institution. Douthat woud no doubt argue that, were term limits imposed, the incumbents should somehow be grandfathered in and their retirements staggered. Otherwise, I sense that Roberts and Alito would suddenly feel very lonely.

Of course, the biggest question raised by Douthat's sudden recognition of Republican judicial activism, and his concern for depoliticizing the court and impeding its ability to review state court decisions, is "Why now?" He says this has been a problem for more than fifty years, that things got a lot worse more than thirty-five years ago, and the conservative-dominated Rehnquist and Roberts courts represent more than two decades of "justices gone wild".

The answer, if you've read any appreciable amount of Douthat's work, is implied when he mentions Roe v Wade, and also by his lack of awareness of federalism and commerce clause controversies. He's concerned that there will soon be a 5:4 majority that's skeptical of state limits on abortion rights, and he hopes to make it more difficult for the Supreme Court to review or revisit state restrictions on abortion laws. And if he can't do that, he wants to shout from the rooftop that the only reason the Supreme Court could disagree with his (religion-based) opposition to abortion is that it's a political body. His goal here is to preserve the status quo through a few more Supreme Court retirements, and it's not something he would be proposing if the court were shifting toward an anti-Roe position - it's little different from a call to stack the court.

What would Douthat think of a rule that a Supreme Court precedent can't be overruled or limited unless an equal or greater number of justices vote for the change? Brown v Board would prevail over Plessy v Ferguson, as it was a 9:0 decision. You would get a great deal of stability, and any chief justice who wanted to build a legacy would have to strive for broad consensus, obviating any need to try to (unconstitutionally) legislate a supermajority standard or amend the Constitution to impose one. Except most of the restrictions on reproductive rights that followed Roe v Wade would have to be tossed, because they didn't get the support of seven or more justices. What do you say? Do we have a deal?

Tuesday, June 02, 2009

Non-Creative Destruction

The demise of stage coach companies and of the rail barons was arguably "creative destruction" at work. Companies that didn't see the future, and didn't invest in the next generation of technologies, were eclipsed by air carriers and auto manufacturers.

It may be a sign of the future that GM and Chrysler are in bankruptcy. That there's little interest by other companies in acquiring them. That nobody's trying to start a new major automotive manufacturing concern to take their place. Arguably, the world is ready for the successor to the automobile.

But there's no successor technology on the horizon. GM and Chrysler succeed or fail in a market that's going to keep producing cars and trucks, pretty much the way they have for the past half-century.

It's not clear what product will replace the car in the era of $4, $5, $8/gallon gas. Perhaps we'll be looking at alternative fuels, electric cars, new hybrid technologies, etc., as many people project. But I have a sense that any auto company that isn't prepared for that future, even those that are currently comparatively strong, should consider itself on reprieve.

But What Might Have Worked

Leaving out an enormously important element of Obama's foreclosure prevention plan, the Washington Post opines,
A continuing steep drop in home prices combined with rising unemployment is powering a new wave of foreclosures. Unfortunately, there’s little evidence, so far, that the Obama administration’s anti-foreclosure plan will be able to stop it.
What did they leave out? Obama's plan included cram down to market value in bankruptcy, but that provision was defeated by the Senate. The Post laments that Obama's plan doesn't include "a robust anti-foreclosure plan should directly address the plight of underwater homeowners by reducing the loans’ principal balance." - um... that would have been the cram down provision that was defeated. How does the Post propose that Obama would be able to disregard that defeat and proceed with cram down as a cornerstone of his foreclosure prevention program?

The post doesn't mention cram down by name, although it does suggest that an alternative might be "a temporary program of loans or grants to help them pay [financially troubled homeowners] pay their mortgages while they look for another job." It's a Post editorial... you knew lemon socialism was going to rear its head, didn't you? If the Post truly wanted to live by its words, and its supposed support for cram down despite its concession that "mortgage industry has resisted this approach", it should be turning its sights on the mortgage industry, its lobbyists and on the senators who voted to defeat cram down. Would that be too honest?

Brooks on GM

David Brooks devotes his column to the GM bankruptcy, and... serves up a blog post. What do I mean by that? Blog posts have a tendency to focus on faults without offering solutions. There's nothing wrong with that, as such, but it's a type of analysis that in my opinion doesn't justify a six figure salary. (From a corporation that, to put it mildly, is struggling, yet still pays such large salaries for such tiny amounts of work....)

I'll note up front that I find the plan for GM to be highly problematic. I have sympathy for the argument that we need to "save" GM during the present financial crisis, as this is a really bad time to be losing a major employer, and potentially bankrupting tens of thousands of its employees, suppliers, and distributors. But I would much rather see GM somehow coming through this as an independent company. But with decades of bad management followed by a refusal to be honest, perhaps even with itself, about what it would take to get back to profitability, that may not have been possible even in better times.
First, the Obama plan will reduce the influence of commercial outsiders. The best place for fresh thinking could come from outside private investors. But the Obama plan rides roughshod over the current private investors and so discourages future investors.
That claim is silly on two levels. First, it's inevitable that when a company fails and has to be bailed out by the government, the influence of commercial outsiders is reduced - if commercial outsiders had their way, we would be looking at a Chapter 7 liquidation, not a Chapter 11 reorganization. What Brooks is in fact advocating is another round of lemon socialism - the taxpayer still dumps in tens of billions of dollars, but the benefit goes to the speculators who hoped that GM would not in fact go bankrupt, and the bondholders who (like Chrysler's) held out for far more money than any market force would justify.

Second, how is it Obama's fault that a investors shy away from a bankrupt company? Where was Brooks when other former titans went bankrupt, and shareholders were wiped out? That wasn't a problem? I suspect that Brooks doesn't care about the stockholders - that he perceives the "real" investors as bondholders (and possibly secured lenders) who are supposed to be better protected in bankruptcy even as shareholders are wiped out. Obama's condition for government funding to keep Chrysler and GM alive has been that shareholders accept more of the pain, so that the taxpayer (ideally) won't have to put even more billions into bailing out GM and Chrysler pensions. For people and organizations like Brooks, the Washington Post, and the AEI. Fierce champions of lemon socialism.

Brooks' lament, "Say farewell to a potentially powerful source of external commercial pressure"? How comical. GM's been publicly traded for how many decades? During that time, have its managers been punished or rewarded for their abysmal decisions? Have their salaries gone up or down? The fact is, the government intervention is necessary both because of a failure of investors to bring about change in GM, and because no private investor wants to take it on. The abysmal failure of the Cerberus plan to flip Chrysler, more than anything else, highlights the risks investors face. Fiat was willing to take Chrysler for $0, and nobody else even put in a bid. How much would the government have had to pay "private" investors to take over GM?
Second, the Obama plan entrenches the ancien régime. The old C.E.O. is gone, but he’s been replaced by a veteran insider and similar executive coterie. Meanwhile, the U.A.W. has been given a bigger leadership role.
Here, it's not clear what Brooks wants. Obama should bring in managers who have no knowledge or experience with the auto industry? Is Brooks joining Friedman and Romney in their quest for a "magic man" CEO?

As for the unions, Brooks sputters that they did their job really well, negotiating great pay and retirement packages for their members. Sorry, David, that's not a fault of the union - it's another example of incompetence by GM management, and when Brooks laments that the union is "not an organization that represents fundamental cultural change", when was that ever the job of a union? Brooks conveniently elides the fact that the union's stake represents funding for future retiree benefits, and the conveyance of stock falls a great deal short of the cash they were originally supposed to get for that purpose.

But in his knee-jerk contempt for unions, Brooks also forgets that the nature of the union-employer relationship in this country comes in no small part from a management-driven legislative agenda that has weakened unions, and an associated management and media culture where it's easier (and fashionable) to blame unions for the failures of management. (Hello, Mr. Brooks.) Don't get me wrong - the union culture played a big role in the failure of the Big 3 to create a culture of quality and increased their cost of operation. But going back to Mitt Romney's anecdote:
The new management must work with labor leaders to see that the enmity between labor and management comes to an end. This division is a holdover from the early years of the last century, when unions brought workers job security and better wages and benefits. But as Walter Reuther, the former head of the United Automobile Workers, said to my father, “Getting more and more pay for less and less work is a dead-end street.”
In other words, the UAW came to the Big 3 and said, "Our current path is a dead-end - let's find a way to work together," and Big 3 management replied, "No." And management still speaks in the hypothetical about forming an effective union-management relationship. Go figure. And when GM and the unions tried to form a new kind of partnership for Saturn, it wasn't long before GM management decided that the road was too difficult and to put Saturn on the slow road to failure.
Third, the Obama approach reduces the fear that impels change.
That's a platitude. Further, what type of "fear" does Brooks imagine is required? If losing your job, your stock options, your stock investments, etc., doesn't inspire enough "fear" to bring about change, what will? Remembering also that the alternative to the bail-out is dissolution, is it Brooks' contention that by not allowing GM to completely fail other companies will say, "That didn't look so bad - maybe we should go bankrupt!" Because a dead GM would be... dead, not something that would change in response to fear.

Brooks suggests that GM's new management won't have to fear liquidation, because "Democrats" will continually bail them out. This supposition is premised upon... nothing. Well, that's not fair. It's premised upon Brooks' assumptions about Democrats... I might be charitable and assume that he would say "Republicans" if this were a Republican bail-out, subsidy, or bad economic choice, but it's safe to say from Brooks' history that in such a context he would instead refer to "government" and the philosophy would likely be "we can afford this".

In fairness, the future is not known and GM's probably a long way from stability, let alone profitability. But I fully expect the Obama Administration to get out of GM as quickly as it reasonably can. I don't know if that means that GM's management will succeed, allowing the government to sell its shares on the stock market, or if GM doesn't prove viable and will end up being sold off as a whole or in parts. But I don't share Brooks' assumption that the government is an owner for the long haul. I suspect Brooks doesn't either, but he's pandering to the "Obama the Socialist" faction of the Republican Party.
Fourth, the Obama plan dilutes the company’s focus. Instead of thinking obsessively about profitability and quality, G.M. will also have to meet the administration’s environmental goals.
I've long stated my opinion on this - the playing field should be level. To the extent that the administration wants to pursue policy goals that press auto makers to go in one direction or another, they should apply the same policies to all manufacturers. The lesson of the marketplace that should have been drawn from the collapse of GM and Chrysler is not the Brooks model that "if you alienate hedge fund investors, institutional banks and bondholders, you'll flounder." It's "If you alienate consumers by not offering vehicles that suit their wants and needs, you'll collapse." Brooks is correct that there will be a great deal of pressure on the "new" GM to "built the right cars" as opposed to those that are likely to sell well. You can quip that this wouldn't actually distinguish "new" GM from the "old" version that overspent on its development of the overpriced Chevy Volt - that it's a distinction without a difference. But really, to make GM viable the new company has to sell vehicles people want to buy.
Fifth, G.M.’s executives and unions now have an incentive to see Washington as a prime revenue center.... In the years ahead, G.M.’s management will have a strong incentive to spend time in Washington, urging the company’s owner, the federal government, to issue laws to help it against Ford and Honda.
This is a distinction without a difference. Big 3 lobbying coupled with Congressional complacency and acquiescence to their demands played a big role in why foreign automakers fared better when gas prices spiked. Suddenly, many of the successful lobbying efforts - tariffs on foreign trucks that encouraged foreign companies to produce cars, treating SUV's as trucks instead of passenger vehicles for CAFE compliance, preventing changes in CAFE standards that would have forced greater fuel efficiency, etc. - made the Big 3 less competitive in a world of $4+/gallon gas (a world to which we will return). When exactly does Brooks believe that domestic auto manufacturers stopped lobbying?
Sixth, the new plan will create an ever-thickening set of relationships between G.M.’s new owners — in government, management and unions. These thickening bonds between public and private bureaucrats will fundamentally alter the corporate culture, and not for the better.
Ah, yes. Because the only thing more destructive to a company than having management and a union with interests that diverge is to create a set of common interests in bringing about profitability and increasing stock value.

Further, what in the world is he talking about? Does he want to bring European or Japanese labor laws to this nation, under the belief that U.S. labor organization laws are too strong? Does he believe that the German government's bailout of Opel proves that the German government would never bail out a domestic auto manufacturer? Is he ignorant of the fact that, for example, the German state of Lower Saxony owns about 20% of VW?

Beyond that, and without questioning that some companies founded with significant public investment survive almost exclusively on continued public investment, and that others demonstrate better growth and profitability once partially or fully privatized, we're back to the earlier point. If market forces were so perfect, given the comparative weakness of U.S. unions, the comparative lack of regulation in the U.S., and the supposed primacy of the U.S. stock market and its financial institutions, why didn't market forces long ago force GM to become lean, mean and profitable? There's nothing wrong with taking note of the dangers of government ownership, but this is a context where it's absurd to be worshipping at the altar of the markets.