Disdain for Factory Workers

William Kristol, who at times seems to look down on everybody, cautions both parties and the media about looking down at auto workers.

Today, G.M., Ford and Chrysler get no respect. Maybe they don’t deserve much. Detroit has many sins to answer for, and it’s been doing plenty of answering. But — and I say this as someone who grew up in non-car-driving family in New York and who is the furthest thing from an auto aficionado — there is a kind of undeserved disdain, even casual contempt, that seems to characterize the attitude of the political and media elites toward the American auto industry.

Was noblesse oblige a lesson taught at Irving Kristol's dinner table? Today, the wealthiest like to pretend that they were born with no advantage, that no serendipity, inheritance, and nepotism played no role in their success, and that if you are less fortunate it's an indictment of your lack of resolve.

By way of example, has Mitt Romney ever admitted the significance of his father's success and name to his own achievements, let alone acknowledged that he's the millionaire son of a millionaire in no small part due to the efforts of unionized auto workers? When he speaks of his father's blown opportunity to negotiate a new type of labor-management relationship with the UAW, could it be because George shared (perhaps inculcated) Mitt's contemptuousness of unions? Can you imagine candid admissions of how privileged childhoods and powerful parents paved a path to easy prominence from, say, Jonah Goldberg, George W. Bush, David Frum, John Podhoretz, Michael Reagan, Robert and Fred Kagan.... I'm not sure that Kristol has ever candidly acknowledged his own privilege, but this editorial suggests that he is aware of it. Sure, there's a cynical part of me that thinks he's advancing the political reality described by Dick Cheney - that causing the Big Three to fail will turn the Republican Party into the "Party of Hoover," and I'm not endorsing his simplistic analysis of the motivations of either party - but for now I'll give him the benefit of the doubt. Particularly given this:

Now there are other ways to explain the disparate treatment of G.M. and Citigroup. Finance is different from manufacturing, and banks from auto companies. It may be that the case for a huge bank bailout was strong, and that the case for a more modest auto package is not. Still, it seems to me true that the financial big shots haven’t been treated nearly as roughly in Congress or in the media as the auto executives, who have done nothing remotely as irresponsible as their Wall Street counterparts.

As you know, it's worse than that. Companies that would have collapsed in a free market are paying shareholder dividends, gargantuan salaries, and even larger "retention bonuses" (to workers who would otherwise... go where?) with taxpayer money.

Meanwhile, on the right, free-market analysts have explained that our regulatory scheme of fuel-efficiency standards is counterproductive. But despite the fact that the government is partly responsible for the Big Three’s problems, the right hasn’t really been stirred to enthusiastically promote a deregulatory agenda to help the auto companies. What excites it is mobilizing to oppose bailouts for unionized workers.

I have to take issue with that. Kristol's point might be stronger but for the fact that every major car company that is not failing is headquartered in a nation that imposes greater regulation, and in which tax policies have long created high gas prices. Congress has been complicit in preventing the regulations it passes from having teeth, such that the domestic auto makes were able to build huge gas guzzling fleets outside of the limits set by CAFE, but it now appears that had those regulations been more comprehensive, the Big Three would not have experienced their huge drop off in sales the second gas hit $4/gallon. If a regulatory lesson is to be learned, it's that Congress could have better shaped the product line of domestic manufacturers by raising gas taxes than through a body of complex, loophole ridden regulations.

Last week, Senate Republicans picked a fight with the U.A.W. on union pay scales — despite the fact that it’s the legacy benefits for retirees, not pay for current workers, that’s really hurting Detroit, and despite the additional fact that, in any case, labor amounts to only about 10 percent of the cost of a car. But the Republicans were fighting Big Labor! They were standing firm against bailouts! Some of the same conservatives who (correctly, in my view) made the case for $700 billion for Wall Street pitched a fit over $14 billion in loans for the automakers.

Whoah - Kristol's actually bringing facts into the debate. Is that allowed?

I personally don't think the case was made for the $700 billion financial industry bailout, save in the sense that "we don't know what will happen if we don't try to bail out the banks". Sure, you can get my support to build a $700 billion wall between myself and a freight train if I can't otherwise avoid being hit, but that leaves no time for serious reflection or evaluation of how that money is best spent. I'm not convinced at this point that we should continue to bail out financial institutions - they have not been responsible with the money that's been given to them, they're not using the injected liquidity to increase lending, and there does not appear to be any good reason why the government can't tell them, "You have time to put together Chapter 11 plans, so do that. If you're failing, come to us and we'll try to arrange for you to be taken over by a stable institution, or perhaps help ease you into that Chapter 11 reorganization."

The real issue is, should it be the role of government to bail out businesses? Should we (supposedly) champion free markets then declare, "That company is 'too big to fail'" the moment managerial incompetence threatens the viability of a large company, stepping in with a multi-billion dollar bailout? Kristol is right to question why self-professed conservatives are pitching a fit over a $14 billion bailout after signing on to a $700 billion bailout. But he errs in suggesting that it's the size that matters - that if you support the large, it follows that you should support the small. The fundamental question, if you actually believe in free markets, is whether you should bail out any companies at all. Had the managers of these financial giants seriously believed that Uncle Sam would tell them to go to bankruptcy court, at least some of them would probably have made better decisions. And it would be harder to feel sorry for those who didn't. (Assuming it's possible to feel sorry for them.) But back to Kristol's larger point:

Whichever party can liberate itself from its well-worn rut to propose policies that help both American businesses and workers has a great opportunity. That party’s leaders could begin by offering management and labor at the Big Three a little more sympathy, and heaping upon them a little less calumny.

Oh, I'm not sure how much sympathy they deserve, and I somehow doubt that Kristol is the hugging type. But some understanding?

No Union Busting Here, Folks....

In an unsigned editorial, the Washington Post prevaricates,

Ms. Rhee has been accused of trying to break the union when, in truth, she rejected a plan to bring in a firm adept at union-busting in favor of working one-on-one with local labor officials whom she believed shared her philosophy that children come first.

A more realistic interpretation is that she was told by the union busting firm, "It's not going to work here."

It tells you something about Rhee that, before opening negotiations, she even considered hiring a "firm adept at union-busting" to attack the teacher's union. It tells you something else about Rhee (and the Washington Post) that the dream plan she has for teachers - the plan the Post gushes over every week or two - is a highly classified secret, and isn't available anywhere for people, be they curious outsiders like me or teachers who are told how wonderful it is, to read. Rhee's not interested in union busting? Perhaps Fred Hiatt and his editorial writers should, you know, read their own paper.

Mayor Adrian M. Fenty and Schools Chancellor Michelle A. Rhee are discussing a dramatic expansion of their effort to remove ineffective teachers by restoring the District's power to create nonunionized charter schools and seeking federal legislation declaring the school system in a "state of emergency," a move that would eliminate the need to bargain with the Washington Teachers' Union.

Nope... not even a slight interest in union busting there....

I'm prepared to believe that Rhee's proposal is the best thing since sliced bread. But if it truly is such a wonderful plan, and is sustainable, why isn't she focusing her energies on publicizing the plan rather than keeping it under wraps?

All You Need Is A Perfect Product!

After months of describing how the Big Three need to be forcibly reinvented, and required to build cars under government-imposed environmental and fuel efficiency standards that don't apply to their foreign competitors, Thomas Friedman has shifted course. Sort of.

Over the years, Detroit bosses kept repeating: “We have to make the cars people want.” That’s why they’re in trouble. Their job is to make the cars people don’t know they want but will buy like crazy when they see them. I would have been happy with my Sony Walkman had Apple not invented the iPod. Now I can’t live without my iPod. I didn’t know I wanted it, but Apple did. Same with my Toyota hybrid.

It says something about Friedman's candor that he writes "Toyota" instead of "Lexus", and "hybrid" instead of "SUV hybrid". There's a world of difference between Toyota's least fuel efficient hybrid and the Prius. Had Friedman wanted a roughly equivalent vehicle at a slightly lower price, with slightly greater fuel efficiency, he would have purchased a Highlander hybrid. Was he paying extra for the additional power of the Lexus, even at the expense of fuel efficiency? Real wood trim instead of plastic?

I have a Toyota hybrid. It's nice, it's quiet, it has very low emissions, it's... fuel efficient for a car with its feature set, but hardly the most fuel efficient vehicle on the market. Could I live without it, or easily substitute another vehicle for it? Sure. It's a car. I would love to hear Friedman explain why he can't live without his hybrid, rather than having him simply suggest that it rounds out his life like his... iPod. The fact is, Friedman can easily afford a luxury SUV. He can easily afford the gas that fills it, and could easily afford it at $4, $6, or $10/gallon. When he has argued for higher gas taxes to force consumers to buy vehicles like... his? He sounds a bit like a modern Marie Antoinette.

As for building the cars people want to buy, let's go back a year ago to Friedman's et tu, Toyota, after that company joined the Big Three in opposing more stringent CAFE standards.

Now why would Toyota, which has used the Prius to brand itself as the greenest car company, pull such a stunt? Is it because Toyota wants to slow down innovation in Detroit on more energy efficient vehicles, which Toyota already dominates, while also keeping mileage room to build giant pickup trucks, like the Toyota Tundra, at the gas-guzzler end of the U.S. market?

“Toyota wants to keep its green halo and beat G.M. in the big trucks, too,” said Deron Lovaas, vehicles expert at the Natural Resources Defense Council.

Friedman has consistently conflated two different questions - what vehicles consumers want, and how gas prices affect their choices. Remove gas prices from the equation and, as I quipped the other day, it appears that Americans want a vehicle the size of a small house that does 0-60 in less than 10 seconds and is available for a price between $20-$30K. Toyota's ability to produce vehicles that people want in an era of high gas prices comes, in no small part, from the fact that their domestic market has faced very high gas taxes, and thus very high gas prices, for many years. They, like the Big Three, also wanted to be able to take advantage of U.S. consumer preferences for large, low MPG vehicles.

When I was last shopping for cars, I really didn't see anything transformational. I saw a lot of sameness from one auto manufacturer to the next - domestic, European, Japanese, Korean.... Within the category of vehicles I was considering (and giant SUV's, trucks and Hummers weren't under consideration), my decision was made in part on fuel efficiency (a hybrid versus a non-hybrid model), but that was well behind issues of vehicle quality and expected longevity on my "wish list". My sentiment is apparently not atypical, and presumably is why Lexus offers Friedman's SUV in a better-selling non-hybrid model, and Toyota offers the Camry and Highlander in better-selling non-hybrid models.

But isn't that the rub? Friedman wants Detroit to develop a one-size-fits-all vehicle, popular with consumers regardless of gas prices, but also green and fuel-efficient. A wonderful concept, but something that nobody in the auto industry, including the most innovative, efficient, environmentally conscious manufacturers, believes exists. You want to force consumer choices in that direction? Go back to arguing for high gas taxes or setting floors on gas prices, such that consumers are compelled to buy the vehicles you want them to buy, but don't pretend that you're arguing for a context in which they will be able to buy the vehicles they want.

What A Pathetic Display

The Washington Post, observing that the only proposal to save the auto industry is failing in the Senate - due to, of all things, a Republican demand for what amount to wage caps on auto workers - "What's Plan B?" It astonishes me that a Republican President can't convince enough of his own party's senators of the urgency of action, that they drop their filibuster threat. In what seems like "business as usual", a scheduled vacation appears more important to the Democrats than actually forcing the Republicans to break out their encyclopedias and, if they truly wish to block the bill, actually filibuster.

The short answer to the question, "What's Plan B", appears to be to use TARP money for the bail-out, which could mean that none of the restrictions, compromises, or demands placed upon the Big Three by the bailout bill will be implemented. The Republican Party may be giddy with the idea of harming or breaking the UAW and benefitting the foreign auto manufacturers who are located in "red states", but G.W. is worried about the tattered remnants of his legacy.

"Because Congress failed to act, we will stand ready to prevent an imminent failure until Congress reconvenes and acts to address the long-term viability of the industry," Treasury spokeswoman Brookly McLaughlin said.

And, White House spokeswoman Dana Perino said it is considering using the Wall Street rescue fund to prevent the USA's strapped carmakers from failing.

I like that - it's "because Congress failed to act", rather than, "Because the President couldn't convince his own party to back a bill he supports." Perino elaborated that "it would be 'irresponsible' to further erode the economy by allowing failure in Detroit", but how about some honesty here about just who it is that the President is describing as irresponsible.

The Washington Post repeats some common, yet silly, complaints about the auto industry,

Furthermore, if the Detroit carmakers are going to survive, they will have to completely overhaul the way they do business - and start building cars that people will buy.

Lets look back a whole year:

General Motors announced today that it sold 9,369,524 vehicles worldwide in 2007, which puts it in a dead heat with Toyota for the title of world's best-selling automaker.

Now the Big Three deserve criticism for disregarding the end of cheap oil, but really... but for the spike in gas prices this summer and the current financial crises, at current gas prices those highly profitable gas guzzling vehicles "that no one wants" would be flying off of car lots across the nation. (If auto makers booked their profits when those vehicles sold, as opposed to when they were shipped to dealerships, they would be looking a lot healthier right now - because sales appear to be picking up.)

For that, they are going to need new leadership, a rational assessment of their long record of failure and, yes, a much larger infusion of government cash.

We're back to that "new leadership" thing.... Something the Post isn't demanding of the finance industry, despite a perhaps unparalleled record of failure and incompetence by its leaders. Heck, the Post doesn't even appear upset by the astronomical wages, bonuses, and even stock dividends that bailed-out financial companies are paying with taxpayer money.

Perhaps we need a financial industry czar - somebody who saw that derivatives were, let's say, a "time bomb" or as "financial weapons of mass destruction"... Oh, but let's be realistic. Nobody could have seen the financial industry's problems coming. We need to find a Warren Buffett for the intelligence community, and apparently we need a Warren Buffett for the auto industry. It's truly a shame we can't find a Warren Buffett for the financial industry.

I've already commented, but it bears repeating - where exactly does the Post imagine that the Big Three will find "magic men" to lead them in a new direction? Ford got its CEO from Boeing; Chrysler's CEO used to head, of all things, Home Depot. How far outside the industry is far enough to satisfy this ridiculous demand - and what's wrong with looking for people within the industry who actually know about cars and may even have a track record of developing vehicles that are suited to the future?

Nobody - including the carmakers - fully understands the depth of Detroit’s problems or how much money it will take to dig them out. Mark Zandi, chief economist at Moody’s Economy.com, told Congress last week that rescuing the companies would cost taxpayers $75 billion to $125 billion over the next two years. And that’s probably optimistic.

Now that's a fair criticism. Chrysler, for example, is pretending that the bailout will result in a quick return to profitability. Does it believe that, or is it spinning a fairy tale? If the former, there's good cause to question the competence of its leadership. If the latter, it appears to be part of a mendacious plan by Cerberus Capital Management to get a taxpayer subsidy that allows it to avoid taking a loss on a bad investment. As you already know, I think it's the latter.

If the Big Three are glossing over a future that, realistically, will require a taxpayer bailout exceeding $100 billion, we should be sending them back to revise their plans to reflect that reality - and to demonstrate how they could recover with a smaller infusion of taxpayer money.

Beyond the Post's dream that the Big Three will find "magic men" to take over for their present leadership, it whines,

And the bill doesn’t set any conditions to ensure automakers invest in fuel-efficient vehicles. Any long-term plan must make sure the automakers don’t simply keep making gas-guzzling trucks and sport-utility vehicles, whose popularity - unfortunately - has recovered as gas prices have declined.

There's not even a slight effort to achieve internal consistency. If the idea is to force auto manufacturers to build cars that consumers want, it appears that they are doing so - as long as gas prices are low. If the idea is to force them to give up their gas guzzlers in favor of fuel-sipping vehicles, that's something quite apart from getting them to build the vehicles people want to buy. Let's be blunt - if you could build a car the size of a small house, have it get 25 MPG, do 0-60 in less than ten seconds, and sell it in various forms for $20-$30K, it would be the most popular car in America. (The auto manufacturers are about as likely to be able to create such a car as they are to find the Post's "magic man" leaders, so don't accuse me of being unrealistic.)

It should go without saying, but it doesn't - so here we go again. If the goal is to create a competitive domestic auto industry, you can't do that by hamstringing auto makers and forcing them to build under fuel efficiency standards that don't apply to their competitors. If you want more fuel efficient cars on the road, build an even playing field by instituting new, meaningful CAFE standards that apply to everyone.

If the Post is correct, that it's going to take $75 - $125 billion to turn around the domestic auto industry, then perhaps its time to think about something far different from a bailout that tries to keep the three auto makers in business. There are a number of options, short of and including bankruptcy, that should be considered in the new year. Assuming GM and Chrysler aren't already in bankruptcy by then.

But how about at least passing a contingency plan - an authorization of aid to parts suppliers to keep them out of bankruptcy in the event that Chrysler and/or GM file Chapter 11. If we're going to risk that they fail, let's at least try to keep them from dragging Ford down with them.

Nice Ethics....

What am I supposed to think about this statement attributed to Alan Dershowitz?

I have been in touch with Claus repeatedly. I have not been in touch with OJ Simpson since his trial.

I'm sure it hurts OJ to have been dropped from the Christmas Card list but, whether or not he paid his bill,¹ I don't think his former lawyer should be publicly insinuating that he was guilty. Anybody else, opine away, but not the defense attorney.
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1. And we know that Dershowitz and the rest of OJ's legal team "got paid".

Vanity Fair on Henry Paulson

This seems like a pretty accurate capsule summary:

The original proposal by Treasury Secretary Henry Paulson, a three-page document that would have provided $700 billion for the secretary to spend at his sole discretion, without oversight or judicial review, was an act of extraordinary arrogance. He sold the program as necessary to restore confidence. But it didn’t address the underlying reasons for the loss of confidence. The banks had made too many bad loans. There were big holes in their balance sheets. No one knew what was truth and what was fiction. The bailout package was like a massive transfusion to a patient suffering from internal bleeding—and nothing was being done about the source of the problem, namely all those foreclosures. Valuable time was wasted as Paulson pushed his own plan, “cash for trash,” buying up the bad assets and putting the risk onto American taxpayers. When he finally abandoned it, providing banks with money they needed, he did it in a way that not only cheated America’s taxpayers but failed to ensure that the banks would use the money to re-start lending. He even allowed the banks to pour out money to their shareholders as taxpayers were pouring money into the banks.

I would add, Paulson's refusal to hold a steady course, and his willingness to throw "no strings attached" billions at banks based upon criteria only he appears to know (assuming he actually has criteria) could not possibly have created confidence in the banking system, as it's been entirely unpredictable.

And Next We Find a Philosopher King, and....

David Ignatius urges Obama to find a Warren Buffet of intelligence to be the next director of national intelligence.

The right answer? Find the Buffett-like manager who can create a truly great U.S. intelligence system at DNI, then let that person pick a CIA director who will be nonpolitical. And then, as the late CIA Director Richard Helms liked to tell his trench-coated colleagues, "Let's get on with it."

Sounds good. But... where do we look?

Cheap Oil - Forever!

Or at least for five years? Does anybody know what Paul Day was saying about the price of oil a year ago? Perhaps he wasn't among those who believed that we would never again see oil below $80-$100/bbl, but I suspect that most of the people presently projecting five years of low oil prices were then projecting indefinite high oil prices.

These low oil prices are a mixed blessing. It's nice to be able to fill up a gas tank for less than $50, and that fewer people will be fretting over whether they can afford to heat their homes this winter. But if prolonged, low gas prices will lead again to short-sighted manufacturing decisions by carmakers, and short-sighted purchases by consumers. It will make it harder to argue for, or justify the budget necessary for, preparing for the inevitable future in which energy prices again hit record levels. If low oil prices persist, they also reduce the amount of exploration for, and development of, hard-to-reach sources of oil, where the cost of production may be $70-$80/bbl.

I suspect that a big part of the drop in oil prices is less a question of world demand, and has more to do with wealthy investors and hedge funds having to sell off their oil futures to cover margin calls. We seem to be in an odd state of uncertainty, in which those large investors are afraid to buy up certain commodities in case their value continues to drop, but where that lack of investment perpetuates a cycle - the falling prices force additional sales, but again with no buyers, so prices continue to drop (or at best hold steady). That uncertainty extends into other markets where the wealthy once thought it was safe to hold their money - anybody looking to buy some contemporary art? (Maybe Hank Paulson should buy up a few billion dollars worth, to restore confidence to the markets....)

Please, Not Centralized Planning....

David Brooks arguesthat there's a popular trend toward community,

If you asked people in that age of go-go suburbia what they wanted in their new housing developments, they often said they wanted a golf course. But the culture has changed. If you ask people today what they want, they’re more likely to say coffee shops, hiking trails and community centers.

Brooks declares,

To take advantage of the growing desire for community, the Obama plan would have to do two things. First, it would have to create new transportation patterns. The old metro design was based on a hub-and-spoke system — a series of highways that converged on an urban core. But in an age of multiple downtown nodes and complicated travel routes, it’s better to have a complex web of roads and rail systems.

Second, the Obama stimulus plan could help localities create suburban town squares. Many communities are trying to build focal points. The stimulus plan could build charter schools, pre-K centers, national service centers and other such programs around new civic hubs.

In other words, Brooks would have us spend tens or hundreds of billions of dollars on new roads, and would favor public transportation that can move small numbers of people, slowly, over short distances as opposed those that would quickly move large numbers of people over longer distances. Brooks would also encourage muncipalities to "build on today’s emerging patterns", then stick their hands out for billions from Obama to pay for their plans. Does Brooks think this is likely? No.

But alas, there’s no evidence so far that the Obama infrastructure plan is attached to any larger social vision. In fact, there is a real danger that the plan will retard innovation and entrench the past.

What "past" is Brooks talking about? The "golf course community" past of, say, five years ago? The "big cities, few suburbs" past of a century ago? The past that, five years ago, Brooks would have been writing while lamenting that the President's vision didn't focus on building the golf courses that people wanted as part of their new social landscape?

To put it mildly, Brooks' idea is bad. Here's an anecdote I previously related,

Later today I will be driving past a large, unattractive cement building, owned by a national newspaper chain. That location of that building will seem peculiar - it is, after all, a relatively new building, but its location will be on the main road to downtown, where it is apparent that many shops and homes once stood. It also is the sort of building that one would expect to be in an industrial park, or at the outskirts of a town, not right at the edge of downtown.

It seems that this town had a brilliant idea some decades back that it would "renew" its downtown area. It set about acquiring a large tract of property, with the goal of clearing off the old homes and businesses and building a large shopping mall. After the land was acquired and cleared, somebody finally asked the important question - "If we build it, will they come?" Okay, so that wasn't the actual question - "Private projects of this type and magnitude don't break ground until they have their anchor tenants signed to leases. Do we even have any potential anchor tenants who have expressed interest, let alone any who have signed leases?" Perhaps you have anticipated the answer to that question.

So the city was left with an empty stretch of land, once occupied by homes and buildings, and a revitalization plan which was not commercially viable. The best offer they got from a private enterprise for the land was from the newspaper company, hence the cement behemoth.

Meanwhile, in the city where I live, after an initial purchase price in the millions, hundreds of thousands of taxpayer dollars are being expended in relation to what is now a vacant lot because the city's desire for low-income housing on that land have failed to come to fruition. Almost next door in Ypsilanti, the city has struggled for a decade to reinvent an area near downtown into the very type of community Brooks claims everybody wants.

I don't particularly trust municipalities to plan the specifics of redevelopment of a community redevelopment - or even in relation to single lots. I have no problem with a municipality zoning or rezoning areas to encourage the development of more vibrant downtown areas. I have no problem with the federal government joining with cities to clear abandoned buildings and clean up environmental problems, creating brownfields where development will not otherwise occur. But do I want cities to try to impose a David Brooks vision of downtown centers including "restaurant and entertainment zones, mixed-use streetscape malls, suburban theater districts, farmers’ markets and concert halls" on the public? No, I don't.

I can walk downtown and enjoy several such zones - e.g., a Main Street area zone that is dominated by restaurants and upscale and specialty retail with a popular live music venue, the Kerrytown area with its farmer's market and upscale food and specialty shops, or the State Street/Liberty/South University area with its abundance of restaurants, coffee shops, boutiques, movie theaters, and live theater. I appreciate that the city's zoning allowed for that development to occur, and that the University of Michigan's budget allows for a lot of theater and cultural options that would otherwise be missing from this city. But had the city tried to dictate how those areas developed instead of leting them evolve, just as with its troubled effort to turn a single vacant lot into low-income housing, it would likely have impeded or prevented the successful development of those areas.

As for pretending that having "a complex web of roads and rail systems" helps prepare us for a future in which people are not dependent upon cars? While I respect the idea that public transportation should make it quick and easy to get from "point a" to "point b", and that hub and spoke systems can create delays and inconvenience that force people who would happily take a bus to instead drive a car, Brooks seems to be paying no heed to the cost of developing, operating and maintaining the "complex web" he desires. It's almost as if he's demanding, "Build a public transportation system I would use," without considering either the needs of others, or how in fact such a system could be created and operated in a cost-effective manner. (Or maybe that's exactly what he's demanding.)

"We're Almost Full"

I enjoyed this observation by Seth Godin, in relation to the overwhelming amount of data that's not just available to us, but is directed to us each and every day: "The internet isn't full, but we are."

You can't keep up with the status of your friends on the social networks. No way. You can't read every important blog... you can't even read all the blogs that tell you what the important blogs are saying.

That reminds me of advice I see directed at law firms - that they start blogs ("blawgs") and that they can generate clients and referrals through social networking. But that's simplistic.

The blogging advice typically goes along the lines of, "Pick a niche subject, start a blog, post regularly, and make yourself an expert." Blawg of dreams. I'm reminded of Orin Kerr's brief departure from the Volokh Conspiracy to start his own blog. He did all of that, and what? Went back to the much more eclectic, much less scholarly atmosphere of the group blog because it had the traffic. That was two years ago, and the marketplace is now far more crowded. Sure legal blogs can generate business or make people think of you as an authority, but so can a other approaches such as posting online articles, traditional networking, teaching CLE courses, or writing for traditional publications. You may find that, when costs and time are considered, those other approaches offer a far greater return on your investment.

It's amusing to me to read a typical article about the glories of legal blogging, as there seems to be remarkable overlap between the bloggers who are interviewed about their experiences, and they almost always also rely heavily on quotes from people who design and support legal weblogs. You may not get rich mining for gold, but that doesn't mean you can't get rich selling pickaxes to the miners.

Meanwhile, if you look at the ABA's top 100 blogs, how many of them are actually focused on client generation for practicing lawyers? I suspect that if you looked at the blogs that are the most successful at generating business from the public at large, I doubt you would conclude that many of the authors were leading experts in their fields (although they may say that they are on their blogs), and I doubt that you would add many (perhaps not any) to your blogroll. Creating a blog that establishes your expertise to other lawyers such that they refer you cases? That's a lot harder, as you have to get them to notice your blog. And follow it. And, as much as possible, to link to it.

That brings us to social networking. An article I read recently described a lawyer who was active on multiple social networks, and that his combined efforts on his networks generated about $100,000.00 in business for his firm over the prior year. The article conceded that he's an outlier. But it's more than that. It's safe to say he's a younger lawyer, and that his network primarily revolves around younger lawyers. Telling an older lawyer (and no, I don't mean "old" - just old enough to find social networking bit alien) "Find a social network, create a profile, connect to your peers, and learn to use it", will often not be a good use of that lawyer's time, as many of his peers won't be participating in the network, and of those who are many will be passively participating - they will have created a profile that they may or may not check on occasion, and that they may or may not update on occasion, but they're not actively using the network or the service's features.

As for a younger lawyer who is active in five or more social networks, keeps his profile up to date, responds to his friends, and generates referrals, let's not miss this: The emphasis is still on social. I doubt you'll find a person who is that active in social networks who joined and participates primarily for business purposes; but you'll find a lot who participate for social purposes, with a business element growing out of that social involvement. The importance of social networking is likely to rise, as more and more younger lawyers emerge from a generation that is heavily invested in social networks. But unless you're going to be an active social networker, it's unlikely to become a significant source of clients and revenue.

A big part of the problem is the information overload. There are too many blogs (and "blawgs"), and too many social networks. There will be an increasing tendency toward monopoly - just as there used to be many search engines and now there are really only three that matter, one of which is dominant, eventually there will be similar consolidation among social networks. Because even people who can afford to spend hours each day maintaining their profiles on five networks, few of whom work for law firms, will exhaust at six, or seven, or twenty. People who aren't into social networking don't want to be advised to pick between five or more options and hope that their participation leads to more business. They want to be told, "Use this one," and not have to worry about the others. Many would probably perfer a simple, specialized tool - e.g., an enhanced ABA membership that provides simple tools for members to connect to their peers, track practice areas, perhaps follow legal news and weblogs, and refer cases.

"No, I'm Not Getting Fatter"

It's cosmic expansion.

That "Why The Party Failed" Thing

In taking on Ross Douthat's tendentious piece on abortion, I didn't address his headline, ostensibly the thesis of his piece, that "Abortion Politics Didn’t Doom the G.O.P." Of course not. If the GOP's approach to abortion politics were to doom it, it would not be by driving away people like Kathleen Parker and Max Boot. It will be when the religious right gets tired of promises, promises, promises and no delivery, and the single issue anti-abortion voters either vote for a third party candidate or stay home. What doomed the Republican Party in the 2008 election was the Bush Administration's top-to-bottom, back-to-front incompetence, coupled with a dozen or so too many corruption scandals.

Which isn't to say that, within the foreseeable future, I won't be writing pretty much the same thing about a future Democratic administration....

Pushing For A False Center On Abortion

Ross Douthat is not a stupid man, so what am I supposed to make of this? Is there any way to assume that this is offered in good faith?

His editorial starts with a false premise - that factions within the Republican Party are blaming the pro-life movement for its election failure. Initially, it should be noted that when Republican stalwarts such as Kathleen Parker reach the point of being uncomfortable with "The evangelical, right-wing, oogedy-boogedy branch of the G.O.P.," it is a sign of trouble. Parker doesn't represent the center - she's considerably to the right - but appears concerned about a faction of the party that is unwelcoming to her.

It was one thing, during the election campaign, to turn a blind eye to Sarah Palin's version of campaigning and sneer that anybody who criticized her was "elitist". (Incredibly, Douthat suggests that "post-feminist realities" of Palin's lifestyle make it surprising that she was embraced by the religious right, as if Palin weren't a Pentacostal Christian, and as if he hasn't hear a single word she has ever said.) But now some of those within the Republican party who recognize science, accept evolution, want access to birth control, and see room for a certain level of abortion freedom - and perhaps even want people who are openly pro-choice to be comfortable as members of the Republican Party - are questioning their own fit. As Steven Waldman, co-founder of Beliefnet.com, stated,

More problematic, Waldman tells Fresh Air host Terry Gross, were Palin's comments about God's will and the construction of an Alaska natural gas pipeline.

"That's exactly the kind of religion and politics-mixing that the founding fathers were terrified of — and with good cause," Waldman says. "The slippery slope is when politicians claim to know what God's plan is, and try to figure out the policy in order to match it up to God's plan."

No surprises here - Republicans like Parker see the factions that reject science and call for a complete ban on abortion rights as "the other" who doesn't really fit with the party, while Douthat seeks those like Parker as "the other". It's silly and dishonest to caricature their concerns as suggesting that "If the Republican Party would only jettison its position on abortion, it would be back on its feet in no time".

Douthat later addresses anti-science factions associated with the pro-life movement,

As for the movement’s supposed antipathy to science and social change - well, no doubt you’ll find more believers in young-earth creationism or divinely ordained patriarchy at a pro-life rally than you would at the Harvard Faculty Club. But here, too, the easy stereotypes are increasingly detached from reality.

How does a factual description of people Douthat concedes actually exist become an "easy stereotype"? Douthat presents the following argument to suggest that it's unfair to view pro-lifers as anti-science:

For example, we’re coming off a decade in which pro-lifers responded to the embryonic stem-cell controversy by becoming better versed in the relevant science than their miracle-cure-promising opponents. They insisted, presciently, that scientific advances with non-fetal stem cells, rather than legal restrictions, would eventually offer a way forward.

Except for the fact that their early arguments, parroted by President Bush, were false and held back scientific research. And the subsequent arguments have been variations on a theme - that if we wait long enough we'll see alternatives to fetal stem cell research that are just as good as fetal stem cell research - something that's every bit as "miracle-cure-promising" as believing that stem cell research will bring about immediate miracle cures. Douthat sees every headline suggesting an alternative source of stem cells as vindication for obstructing science; but he neglects to mention that "we're not there yet".

Further, people who hope for miracle cures from stem cell research are not necessarily pro-choice or pro-life. Often they're people who are hoping for a miracle cure for themselves or a loved one. They're egged on by sensational media coverage of potential developments in medicine, just as Douthat is egged on by every article that suggests we will eventually be able to perform unimpeded stem cell research with stem cells derived from non-fetal sources. But neither side is giving any real heed to the science.

But beyond that, Douthat has changed the subject from the anti-science pro-lifers he admits exist, to another group that uses a lay understanding (and oversimplification, and often misunderstanding) of science to argue against stem cell research, without showing that there's any overlap. He presents no evidence that the anti-scientific factions of the pro-life movement have shifted even slightly in favor of science. There's also a maxim he has surely heard, "Even the devil can cite scripture for his purpose." It's one thing to learn to recite "scientific arguments" in favor of limiting stem cell research (or opposing the theory of evolution, or arguing that men and dinosaurs simultaneously walked the Earth), and quite another to actually understand and argue from science.

Douthat whinges that the pro-life movement is familiar with the criticisms of Parker and others:

Most abortion opponents can recite the litany by heart. Their movement should focus on changing hearts and minds, rather than the law. It should be more consistently pro-life, by helping human beings outside the womb as well as those within it. It should cease trying to roll back the sexual revolution and standing athwart science yelling “stop!” And above all, it should be less absolutist, and more amenable to compromise.

But Douthat next attempts a sleight of hand, claiming "pro-lifers have already taken much of it to heart"

Compromise, rather than absolutism, has been the watchword of anti-abortion efforts for some time now. Since the early 1990s, advocates have focused on pushing largely modest state-level restrictions, from parental notification laws to waiting periods to bans on what we see as the grisliest forms of abortion.

That's false, and Douthat writes about these issues with sufficient frequency that he has to know it's false. While there are unquestionably people within the pro-life movement that have embraced goals that fall well short of a reversal of Roe and a national ban on abortion, the largest pro-life organizations and their leaders unabashedly advocate for a 100% ban on abortion. How did Operation Rescue, for example, describe its goals in South Dakota?

Let there be no mistake. The Abortion Bill is an incremental approach to a ban on abortion. It does not represent the total ban sought by many for the sake of the unborn child, but it creates a prohibition of those abortions we can achieve at this time while laying the foundation for the long term goal of an abortion-free America.

So, basically, a law that came close to banning abortion and required doctors to make a highly misleading and inflammatory statement to women in order to discourage abortions, even if they believed it to be medically, factually and legally wrong, was part of a larger scheme to effect a complete ban. And this, to Douthat, represents "largely modest state-level restrictions"? Would he respond that it's an "exception" that is somehow beneath his notice?

Douthat makes no mention of contraception rights, and opposition to contraception and "the morning after pill" within the pro-life movement. Doctors should have the right to choose not to provide accurate, valuable medical information to their patients, without warning them up-front, "I'm pro-life and I won't fully inform you in relation to your legal choices"? And that "right" may even extend to informing patients about birth control? Again, where's the compromise? For that matter, does Douthat support broad contraception rights, given that in his book he is scornful of contraception and its effect on society? What's his level of "compromise" on that issue?

Douthat also describes the conflagration over "partial birth abortion" as "bans on what we see as the grisliest forms of abortion". I recognize that this was sold to the public on the basis of gore, but what sort of basis is that for public policy? Have you ever seen a cesarean section? The surgeries to treat severe craniofacial disorders such as Crouzon Syndrome? A pneumonectomy to remove a cancerous lung? When a doctor devises a treatment that he considers to be the best for his patient, the concern should never be whether somebody might pop into the surgery from the street and find it "grisly".

As for Douthat's claim that efforts have largely shifted from a "culture of (sometimes violent) protest" to "pro-life energy is being channeled into grassroots efforts, from crisis pregnancy centers to post-abortion counseling", how exactly do those "crisis pregnancy centers" typically work? Mostly, it seems, by masquerading as objective providers of information and assistance, then attempting to indoctrinate pregnant women with pro-life propaganda. You don't believe that they're out to lie and deceive? Then tell me, why of all names did pro-life propagandists start publishing under the name "ProChoice.com":

Abortion... When is it safe?

No medical procedure is 100% safe so the answer is never Completely,
and less safe than many procedures. To be 100% safe don't have one.
Risks are:

• Severe Bleeding
• Having problems in future pregnancy
• Becoming sterile
• Needing a Hysterectomy
• Not completing the job
• Severe infection
• Developing Breast cancer
• Psychological issues
• Death

Is there truly a moral high ground in spreading falsehoods and using dishonest scare tactics? Also, as Steven Waldman suggests, those of faith who argue for abortion reduction over anti-abortion absolutism are, in many pro-life circles, viewed as allied with the enemy. Where can I find Douthat putting in their place those of his pro-life peers who accuse Obama of supporting infanticide?

In relation to the Supreme Court, Douthat questions whether the pro-life movement can stop attempting to impose "an abortion litmus test for Republican presidential nominees", and then suggests that the real problem is "the inflexibility of the Supreme Court’s abortion jurisprudence." He argues that there are many alternatives to the U.S. model of abortion rights, an argument he's made before:

The trouble with seeking common ground on abortion is that the legal regime enacted by Roe and reaffirmed in Casey permits only the most minimal regulation of the practice, which means that any plausible "compromise" that leaves Roe in place will offer almost nothing to pro-lifers. Even the modest restrictions that prevail in many European countries (and that, not coincidentally, coincide with lower abortion rates) are out of the question under the current legal dispensation.

Did you catch that? Things coincide with each other, but not by coincidence? He's an editor, and he didn't catch that? Or was that the best alternative word he could find for "correlate", and he wished to avoid telegraphing that he is arguing that correlation equals causation. Douthat seems predisposed to present sweeping claims as fact, without any indication that he's actually tried to find out if what he's saying is true. Another consistency? If he has evidence to support his sweeping claims, he is consistent in his failure to present it. Perhaps somebody whispered a few facts in his ear, as European policies don't merit mention in his Times editorial.

Douthat next feigns interest in compromise:

The public is amenable to compromise: majorities support keeping abortion legal in some cases, but polling by CBS News and The Times during the presidential campaign showed that more Americans supported new restrictions on abortion than said it should be available on demand. And while some pro-lifers would reject any bargain, many more would be delighted to strike a deal that extends legal protection to more of the unborn, even if it stopped short of achieving the movement’s ultimate goals.

But no such compromise is possible so long as Roe v. Wade and Planned Parenthood v. Casey remain on the books. These decisions are monuments to pro-choice absolutism, and for pro-lifers to accept them means accepting that no serious legal restrictions on abortion will ever be possible - no matter what the polls say, and no matter how many hearts and minds pro-lifers change.

Unless I assume that Douthat has absolutely no familiarity with the court rulings in Roe and Casey, how can I regard that as anything less than intentional dishonesty? Roe gives broad protection to first trimester abortion rights, but allows for significant state regulation beyond 12 weeks. Casey reviewed several state restrictions on abortion rights - parental consent, "informed consent" with 24-hour waiting periods, spousal notification, and certain reporting requirements on abortion providers - and found only the spousal notification requirement to be impermissible. There's obviously a lot of room for regulation that makes it difficult for many women and girls to obtain abortions, even as the basic right is upheld. Fundamentally, Roe isn't much broader a protection than exists under the "modest restrictions" Douthat describes as being in effect with Europe, where abortion is generally available during the first twelve weeks of pregnancy (although a woman may have to recite a talismanic phrase, such as "I'm in a state of distress", in order to trigger that right).

There's really only one reason to wish to overturn those cases - to open the possibility to a complete ban on abortions. That, of course, is Douthat's personal goal, so it should be no surprise that it's his conclusion. But what a treacherous web he weaves in trying to make his maximalist position consistent with "compromise". Was he chuckling when he wrote "that if Americans want laws that better reflect their muddled sentiments on abortion, it is pro-choice maximalism, not the pro-life movement, that’s really standing in the way"?

There are highly principled people on both sides of the abortion debate, presenting cogent arguments. The majority of Americans are torn on the issue, respecting that there should be some basic right to abortion but being uncomfortable articulating what that right should be or what restrictions should be allowed. Women who face abortion still face stigma, and thus even in largely pro-choice communities it's often kept secret. Within this context, it is a shame that Douthat is choosing to be disingenuous, as his brand of faking moderation while working for an abortion ban makes it much harder from those who are trying to reach honest compromise.

Argh, No!

Thomas Friedman again announces how the auto industry must design future products if it is to be rescued:

You want my tax dollars? Then I want to see the precise production plans and timetables for the hybridization of all your cars and trucks within 36 months. I want every bailed-out car company to move to hybrid electric drive trains, because nothing would both improve mileage and emissions more - and also stimulate a whole new 21st-century, job-creating industry: batteries.

Hybrids represent a tiny percentage of the domestic auto market, and represented a tiny percentage even when gas prices peaked. Hybrid technology is expensive. The cheaper, more efficient batteries Friedman wants? They're still vaporware - they don't exist. And there aren't factories lined up to manufacture millions of batteries for new hybrids - with the increased demand for the Prius this past year, Toyota had to disappoint prospective purchasers with long waits because the supply of batteries is limited.

If anything has been vindicated by the fall of the Big Three, it's Friedman's long-standing (and sometimes peculiar) call for higher gas taxes. What happened when gas prices hit $4/gallon? Friedman's dreams came true - the conspiracy between the Big 3 and Congress to carve enormous exceptions to CAFE standards collapsed, and the market for gas guzzling vehicles plummeted. That is to say, until Congress grows a backbone, the better approach to trying to change the vehicles that Americans buy is by hitting them in the pocketbook.

If Friedman's ideas are adopted, domestic autos may be modestly more fuel efficient than imports, but due to the cost of the hybrid technology it will cost about $2,000 more for a roughly equivalent car. People already have the choice of paying a premium for hybrid technology and, in overwhelming numbers, they're keeping that $2,000 in their pockets and buying more fuel efficient, conventionally powered vehicles.

Set an even floor. If it makes sense that every vehicle on the road be a hybrid (and, as the owner of a hybrid, in my opinion it does not make sense), then require that of every car manufacturer serving the U.S. market. Don't handicap the domestic manufacturers at a point in time when they're struggling to stay alive by pricing them into a segment of the market that, even as gas prices peaked, couldn't get more than 3% market penetration. Given Friedman's concern for emissions, it's worth noting that battery technology is pretty dirty - mining and smelting nickel is dirty enough, but Friedman's demand for instant hybrid gratification will probably lead to the wide use of lead-based batteries.

Meanwhile, perhaps Friedman should take a step back and ask, which car company is it that's trying to use breakthrough, cleaner battery technology in a future generation of hybrids. Not that I want to diminish the advances Toyota has made with its NiCad hybrids, but, could it be... GM with the LIon-powered Chevy Volt?

Friedman also presupposes that nothing better will come along. Forcing the domestic auto makers to spend tens of billions locking themselves into a 100% hybrid fleet, and to do it so quickly that they really have no other room for R&D (even assuming Friedman's proposed law permits them to explore other technologies), may make Friedman feel better, but it puts them at a disadvantage in developing other forms of clean, fuel efficient vehicles.

Yes, the Big 3 need to change their ways. Yes, their past contempt for fuel efficiency is part of why they're in so deep a hole. Yes, their past contempt for environmental concerns is reproachable. (And is it ancient history to bring up how they helped destroy public transportation?) But for all of their faults, dictating the details of their future products has the potential to impair their future competitiveness, preventing them from developing fuel-efficient gasoline and flex fuel vehicles, while impeding the development of cleaner, more fuel-efficient non-hybrid vehicles.

At the end of the day, it's a bit like calling on Congress to legislate that the New York Times overcome its financial struggles and create a newspaper for a new century by publishing entirely through Twitter. It's one thing to know enough about something to be dangerous; Friedman's not even quite to the point of knowing that much about cars.

The Scary Part Is, It Was Close

Louisiana voters have booted William "Cold Cash" Jefferson out of office.

Well, There You Go....

Rumor has it, Cerberus sees Chrysler as being worth more as a write-off than as an investment:

Meanwhile, Chrysler is understood to have retained a law firm that specialises in bankruptcy proceedings to begin a liquidation process if Congress does not agree to lend the money it needs to survive.

Cerberus doesn't need government money to keep Chrysler afloat. It needs government money to avoid taking a loss on what turned out to be a bad investment.

I reiterate:

I would offer Chrysler loans on one of two conditions:

1. Cerberus first sells Chrysler to a publicly traded firm, divesting itself of any and all interest in Chrysler (and yes, this still works as a subsidy to Cerberus, as it will increase the selling price); or

2. Cerberus guarantees the money Chrysler borrows, putting up its portfolio of investments as security.

If they are asking that this money be loaned to Chrysler Holdings LLC, with no recourse against Cerberus itself, I would tell them to kiss off.

That, of course, is exactly what they're asking.

Bush Didn't Make Any Mistakes, But Obama Should Learn From Them

As part of his continuing series of columns in which he demonstrates his eagerness to be invited to Bush's new Dallas home for supper, Michael Gerson shares more thoughts on the incoming Obama Administration.

Part of the appearance of security is rooted in seven years without additional terrorist attacks in America - itself a triumph against violence. It is difficult for a leader to take credit for a negative achievement - for the absence of failure. But here credit is due.

Apparently we're talking about international terrorism, in which case the seven years Gerson sees as warranting credit to Bush represent almost as much time as the eight year period between the first and second attacks on the World Trade Center. Gerson's correct that the passage of seven years doesn't justify complacency, but so far Bush's track record isn't better than Clinton's. If a terrorist attack were to occur in 2009, is Gerson more likely to pen a column describing the failure of Bush's policies, or to accuse Obama of taking his eye off the ball? As if Obama had warnings from the outgoing administration about the threat of al-Qaeda, and a memo on his desk declaring that they intended to attack within the United States, but focused on other priorities?

But there's another way to look at this: After supposedly ramping up to deal with large-scale terrorist attacks, the consequence of which could mirror the effects of a natural disaster, how did the Bush Administration perform? If anything should move us away from complacency, it's that track record.

Gerson sees the Congressionally approved tools used to combat terrorism as non-controversial, but finds room to learn from Bush's excesses:

Yet some methods designed for exceptional cases, such as waterboarding, were ethically disturbing and eventually counterproductive - causing self-inflicted ideological wounds in a largely ideological struggle.

I had almost forgotten that torturing people is "ethically disturbing". It's good to have a "compassionate Christian" around to remind us of that.

And there is little doubt that some administration claims of executive power invited a judicial backlash and undermined the power of future presidents.

Others might argue that the level of judicial deference to Bush is more problematic than the few cases that went against him. Gerson's right that future Presidents will have to remember that their office has limits, and those limits will at times be enforced by the courts. But he's confused about the source of those limits, as they in fact arise from a document the President is sworn to uphold, the Constitution. Gerson continues to explain the consequence of Bush's extra-constitutional actions:

If the administration had sought congressional backing for military commissions in 2001, and later for rules to hold combatants, the resulting legal framework would probably have been upheld by the courts - and would probably have been closer to administration goals than the eventual result.

So had Bush respected the Constitution and separation of powers, and acted accordingly, there would have been less litigation and the outcome would have been closer to what he wanted? That's the consequence Gerson sees from a "judicial backlash [that] undermined the power of future presidents"? The horror!

Gerson is apparently concerned that "enhanced" forms of interrogation won't be available to the CIA:

Or should the CIA be allowed to employ still-classified "enhanced" techniques short of torture? During his campaign, Obama promised the universal application of the Defense Department approach - but that is easier for a candidate than a president to pledge.

Sure, and Obama will have access to classified information that will help him make that assessment. But if we look at the interrogation techniques that worked in finding and killing Abu Musab al-Zarqawi, not only was torture unnecessary, by all appearances it would have been counter-productive. If one is needed, the fact that the result of the investigation was a bombing run intended to kill al-Zarqawi is a reminder that warfare carries a very different set of ethical balances than peace. But it's one thing when you are forced to make tough decisions that challenge your values due to the realities of war, and quite another to repeatedly make ethical concessions out of loyalty to a particular politician or administration without examining the reasoning behind those policies or considering their efficacy.

The hardest issues concern detained terrorists. Guantanamo will and should be closed as a public diplomacy nightmare. Perhaps half of the detainees will be sent home, leaving about 100 exceptionally dangerous men.

Well, so far that doesn't sound very hard. Why, though, do we still have 250 detainees at Guantanamo if it's so easy to sort out the "really bad ones" from the rest, and to send the others home?

The Obama administration will need to decide on a format for trials - much improved but politically discredited military commissions, ordinary civilian courts or some kind of national security courts created by Congress and supervised by the federal judiciary.

But the administration will not be able to try everyone. Some detainees will be too dangerous to release but too difficult to convict in a normal court setting using unclassified evidence. And any president will need the ability to hold and question newly captured terrorists outside the procedures designed for American criminals.

The reality is that you're unlikely to find any of that 100 who cannot be convicted and sentenced to life in prison based upon less sensational charges that don't require public disclosure of classified evidence or investigative technique. Remember John Walker Lindh, who if convicted at trial could have received up to three life sentences plus an additional 90 years in prison? There are many charges that can be brought against those defendants that will prevent them from ever again stepping outside the walls of a federal prison.

But let's assume for a moment that there are a few whose trials would somehow require public disclosure of material that would undermine our continuing efforts to fight wars and combat terrorism. That no number of court orders or protective measures could allow a fair trial without disclosure of that information. What would Gerson suggest then?

Unless Obama returns to a simple exertion of executive authority, he will require congressional authorization to detain people.

So Gerson is suggesting that Obama can spare himself a lot of headaches and better protect the nation by eschewing Bush's unilateralism in favor of constitutional process?

And this will expose a major tension between the new president's military responsibilities and the views of supporters who believe that detainees should be held only in preparation for trial.

Assuming, in fact, it's necessary for Obama to request extraordinary power in relation to some of the detainees. But you know what? There aren't many Obama supporters who actually fit the description Gerson provides - there may not even be any. The vast majority of Obama's supporters have always acknowledged the reality of the situation. Extending habeas corpus rights to detainees held in U.S. prisons is not the same thing as saying "detainees should be held only in preparation for trial" - it relates to whether or not detention is justified. It's a check on abuses and the potential for abuses. You shouldn't have to be much of a student of history to understand why the Founding Fathers were sufficiently concerned about that potential that they inserted habeas corpus rights into the body of the Constitution.

Friedman's Constant Call for Muslim Protests

It's one of those days when Thomas Friedman phones in his column. Yes, again (and again, and again) it's "if only the Muslim world would take to the streets to protest Muslim terrorism" columns. It's not that in a larger sense he doesn't have a point - it would be nice if there were a greater outcry against terrorism within the Muslim world. But it's just plain silly for Friedman - a man whom I doubt has ever participated in the public protest of anything - to keep returning to this notion that the only meaningful Muslim reaction to terrorism would be their taking to the streets with torches and pitchforks.

Friedman complains that if Muslims take to the streets to protest offenses against other Muslims and their religion, they should take to the streets with the same vigor over crimes committed by other Muslims. We'll leave aside for the moment that nobody seems to actually do that - people sometimes take to the streets to protest the actions of their own government, but I can't recall a single instance, anywhere, of people of any religion taking to the streets to protest the actions of terrorists merely because they happen to share their faith or ethnicity. But let's pretend for the moment that Muslims are unique in that respect. Perhaps we should look at how somebody described protests in the Muslim world:

Where Islam is imbedded in authoritarian societies it tends to become the vehicle of angry protest, because religion and the mosque are the only places people can organize against autocratic leaders. And when those leaders are seen as being propped up by America, America also becomes the target of Muslim rage.

It's also worthy of note that those authoritarian regimes take advantage of what one might deem "fake issues" - things they don't really care about, but which stir up the people - as an opportunity to let the people take to the streets and vent rage that might otherwise be directed at the government.

But where Islam is imbedded in a pluralistic, democratic society, it thrives like any other religion.

That, apparently, is why Friedman doesn't call upon the Muslims of India to protest acts of terror by other Muslims. Although it would be easier for them to do so.

What would be the goals of the protests Friedman wants to see? Somebody once suggested,

Throughout history, successful social protest movements have had one thing in common - a clear, simple message and objective. Whether it was the women's rights movement or the anti-Vietnam-War movement, the mere uttering of the name immediately conjured up who the protesters were and what their objective was.

Friedman takes note of Pakistani expressions of concern, anguish and solidarity, but that's not enough for him:

But while the Pakistani government’s sober response is important, and the sincere expressions of outrage by individual Pakistanis are critical, I am still hoping for more. I am still hoping — just once — for that mass demonstration of “ordinary people” against the Mumbai bombers, not for my sake, not for India’s sake, but for Pakistan’s sake.

Why? Because it takes a village. The best defense against this kind of murderous violence is to limit the pool of recruits, and the only way to do that is for the home society to isolate, condemn and denounce publicly and repeatedly the murderers - and not amplify, ignore, glorify, justify or “explain” their activities.

What's the simple message that Friedman expects the protest to convey? "Hey, hey, ho ho, Lashkar-e-Toiba has got to go"? How many Lashkar-e-Toiba members does Friedman believe hang out in Islamabad? How many members of that group do you think care about the opinion of anybody in Pakistan who is not on board with their cause? A protest is going to change that?

The recurrent theme to Friedman's columns is his professed belief that, "Muslim protests against terrorism by Muslims would dry up the pool of recruits." The first problem is, Lashkar-e-Toiba isn't focused on the "three rivers of rage" that somebody sees as the basis of al-Qaeda-type terrorism. Its primary goals are territorial - ejecting India from Jammu and Kashmir. So in this context it's much less like the analogy Friedman makes, to protests against cartoons about Mohammed, and is more akin to the IRA - a conflict that was nominally "Catholic versus Protestant", but was in fact grounded in a territorial dispute. (Need it be said that Friedman never called for the world's Catholics to rise up in mass protest of IRA bombings in London, let alone argued that such protests would dry up the IRA's ability to recruit members?)

The second problem is that Friedman's calls for mass protest within the Muslim world is an assignment of collective guilt. He apparently sees all Muslims, whatever their sect or nationality - and perhaps especially those who live under autocratic regimes - as having essentially the same values, beliefs, and sympathies toward terrorism. Despite arguing that the roots of Muslim terror emerge predominantly from living under autocratic governments that keep their people "voiceless and powerless and prevent them from achieving their full aspirations in a world where they know how everyone else is living" and that Islam will peacefully thrive as part of a "Multi-ethnic, pluralistic, free-market democracy", his taking to the streets "solution" does nothing to address what he, himself, has declared to be the cause of the problem.

This leaves the question, does Friedman truly believe that the Islamic world is monolithic, such that a terrorist act by a Muslim is attributable to all Muslims unless it is denounced by a "mass demonstration of 'ordinary'" Muslims? That we should assume in relation to Islam (and only Islam) that if there is not a mass protest then there must be mass acceptance?

But at the end of the day, terrorists often are just acting on what they sense the majority really wants but doesn’t dare do or say.

Is this a dodge, "I don't believe that to be true of Islam, but the terrorists do?" If so, it's a distinction that gets past the biggest fans of this type of column. Oh, I know, it's not Friedman's fault if people misunderstand his columns and use them to advance anti-Islamic bigotry - but it's not something he's going to, you know, protest.

In short, Friedman is correct to call on the Muslim world, and perhaps particularly Muslim communities in the free world, to be much more vocal in deploring terrorism that is committed in the name of Islam. If you oppose terrorism that is being committed in your name, quietude is not the answer. If the Muslim communities of the world can take to the streets over blasphemy against Islam from outside of their faith, there's room for demonstration (in not in the form of protests, then at least in the form of public vigils) protesting blasphemy from within - the acts and attitudes of certain Muslims that suggest that terrorism and violence against civilians and "infidels" is legitimate under Islam. When it comes to condemning terrorism, the words of the Islamic community should be loud and sincere. And Friedman is correct that actions often speak louder than words.

At the same time, I disagree with Friedman's implication all terrorist acts committed by Muslims are rooted in religion and are attributable to the collective attitudes of all Muslims. He's also far too simplistic in his suggestion that the type of mass protest movement he demands would have any appreciable impact on terrorist groups, or that even if some protests occurred there would emerge a coherent, sustainable movement.

The type of attitude shift Friedman wants will have to start with the opinion leaders and religious leaders, particularly those within the Islamic communities that are most inclined to spawn terrorists. And it must be facilitated by the political leaders of Arab states - the same autocratic, non-democratic leaders who facilitate and benefit from the status quo that Friedman deplores and describes as the principal cause of Islamic terrorism. It really wouldn't hurt if the U.S. and the regimes of the Arab world started working to dry up the "three rivers of rage" that Friedman sees as the principal causes of Islamic terrorism.

Bailing Out Chrysler

When Cerberus Capital Management, LP, comes to Washington D.C. to ask taxpayers to bail out its failed investment, I can't help but think, "No!"

My objection doesn't arise from a lack of concern for the workers. I know some Chrysler workers who are likely to be laid off whether or not there is a bailout. Hate unions if you will, but auto industry job losses will cause extreme hardship for a lot of good people.

But here's the wrinkle. Unlike GM and Ford, Chrysler is not a public company. It's in the portfolio of a wealthy private equity firm:

Cerberus Capital Management, L.P. is one of the world's leading private investment firms. Cerberus specializes in providing both financial resources and operational expertise to help transform undervalued companies into industry leaders for long-term success and value creation....

Cerberus holds controlling or significant minority interests in companies around the world. In aggregate, these companies currently generate over $100 billion in annual revenues.

That's right - a company that is supposedly a leader in providing financial resources and operating expertise to failing companies wants U.S. taxpayers to paper over its losses.

As a private company, Chrysler doesn't have to publish financial statements and it doesn't appear that Cerberus is going to open its books. We're told that CEO Bob Nardelli gets a salary of only $1, with no benefits, but he receives other income that's not disclosed - what is it, and why is it a secret? Given his glorious golden parachute from Home Depot, he doesn't actually need to be paid, but let's not pretend he's actually earning a mere dollar. Chrysler has told Congress that it expects an operating profit of $2.6 billion in 2010, with slightly lower profits in 2011 and 2001. If that's what they truly believe, why isn't Cerberus happily financing its own bail-out? Why is it suggesting that absent an infusion of taxpayer money, Chrysler is likely to enter bankruptcy?

If Chrysler is going to fail without additional working capital, it's not because Cerberus can't afford to pay. If it wished, it could sell part or all of one or more of its other holdings or borrow money against those holdings to keep Chrysler running. If it won't, it's safe to conclude that it doesn't think Chrysler is a safe or worthy investment. And if that's what it thinks, why should taxpayers subsidize their billionaire's version of "flip this house"?

Further, there's cause to question whether Chrysler can survive as an independent company. If it cannot, why should taxpayers bear part or all of the loss Cerberus faces as it carves up the company and sells off its viable parts? From what I can see of its present cost-cutting measures, it is not planning to remain independent - given the manner in which it has reduced its professional workforce, it's not even clear that it still has the capacity to develop a new generation of vehicles. At the same time, the announced round of job cuts will save a suitor a lot of trouble, as there will be a much lower level of redundancy if Chrysler is acquired by another auto company.

I would offer Chrysler loans on one of two conditions:

1. Cerberus first sells Chrysler to a publicly traded firm, divesting itself of any and all interest in Chrysler (and yes, this still works as a subsidy to Cerberus, as it will increase the selling price); or
2. Cerberus guarantees the money Chrysler borrows, putting up its portfolio of investments as security.

If they are asking that this money be loaned to Chrysler Holdings LLC, with no recourse against Cerberus itself, I would tell them to kiss off.

Governing Like Bush?

Michael Gerson's the latest to pen an "OMG! He's Just Like Bush!" column about Barack Obama - the type of column that suggests that his only sources of information about Obama are party memos and McCain's campaign ads.

Conservatives have generally feared that Obama is a closet radical. He has uniformly voted with liberal interests and done nothing to justify a reputation for centrism.

Until now.

Because there is no evidence that Obama is a cautious politician with a history of working from consensus and not making waves. Oh, wait. I guess there is plenty of evidence if you base your analysis of Obama's record on, you know, his record. I believe Larison overstates his case in respect to the implications of this:

Most people in the broad “middle” seem to be relieved by Obama’s moves in the last few weeks, so I have to conclude that they don’t have much of a problem with conventional Washington thinking, either. The majority is not just getting the government they deserve, but apparently it is also the government they want. When it fails them, as it is going to do, I don’t want to hear them complaining about the problems of the status quo.

Our system is constructed to impede radical change. If you want disappointment, elect your ideological hero in the form of a Dennis Kucinich or a Ron Paul, and see how his agenda for reform never even gets out of the starting blocks. But that aside, it's always been readily apparent that Obama's far from being the socialist revolutionary the McCain campaign, and portions of the right-wing punditocracy, attempted to argue. But back to Gerson:

Obama's appointments reveal not just moderation but maturity - magnanimity to past opponents, a concern for continuity in a time of war and economic crisis, a self-confidence that allows him to fill gaps in his own experience with outsize personalities, and a serious commitment to incarnate his rhetoric of unity.

Again, which part of this wasn't apparent from Obama's record?

Obama is benefiting from being the only player on the stage - all his pretensions of moderation could be quickly undermined by a liberal Congress, unhinged by its expanded majority. And Obama's social liberalism could still turn Washington into a culture-war battlefield.

I suspect that Gerson means this as a caution, or as a distinction from G.W. - But if you look at the history of G.W.'s administration, perhaps instead he's warning us that Obama's first term could look like G.W.'s administration, during his first eight months and starting again with his reelection, where his popularity plummeted and he ran both his administration and (with their active complicity) his party into the ground.

Though Obama's campaign savaged the administration as incompetent and radical, Obama's personnel decisions have effectively ratified Bush's defense and economic approaches during the past few years. At the Pentagon, Obama rehired the architects of President Bush's current military strategy - Gates, Gen. David Petraeus and Gen. Raymond Odierno. At the Treasury Department, Obama has hired one of the main architects of Bush's current economic approach.

This continuity does not make Obama an ideological traitor. It indicates that Bush has been pursuing centrist, bipartisan policies - without getting much bipartisan support.

Good grief, does Gerson pay attention to anything? When Obama launched his campaign, we were told of the superiority of Bush's war policy, and that Obama's call for ending the war and fixing a date for withdrawal of the troops was defeatism that would reward terrorists. Around that same time, Bush brought in Gates to replace the disastrous leadership of Donald Rumsfeld and within months "every single one of the top commanders running the war ha[d] been replaced." Bush has since negotiated a timetable for the withdrawal of U.S. forces from Iraq. That is, in the face of significant public opposition to his war and his policies, Bush shifted his position from his prior (failed) partisan policies to something to what he would formerly have described as letting the terrorists win.

Gates was appointed by the Senate in a 95-2 vote. When Bush started moving from partisanship toward the positions shared by the majority of Congress and the majority of the American people, he got plenty of support. It isn't Obama who has shifted on these issues - it's Bush.

In terms of treasury, Gerson is apparently talking about Timothy Geithner. There's good reason to believe that Geithner has worked with Henry Paulson to fashion the response to the present crisis in the financial industry, but... you know, funny thing, you would expect the president and CEO of the Federal Reserve Bank of New York to be involved in this sort of crisis. Although I am not at all impressed with Paulson's inconsistent approach to this crisis, or his tendency to indiscriminately and unconditionally throw money at banks while refusing to hold bank executives responsible for their incompetence, he's clearly been given a lot of discretion to respond to this crisis. To some degree you have to credit Bush with giving him that discretion, but Bush's desperation is hardly reflective of centrist policy. In normal times, the political center would be horrified by what Paulson has been doing - actually, it's hard to imagine any segment of the political spectrum that wouldn't be horrified. So again, this is a horrible example of Bush's supposed centrism.

Particularly on the economy, Bush has never been a libertarian; he has always matched a commitment to free markets with a willingness to intervene when markets stumble.

I'm not sure what Bush has been "on the economy", other than a failure by the measure of the political left, political right, job market, stock market, housing market.... But I'll grant, he's no libertarian.

Third, Obama is finding the limits of leading a "movement" that never had much ideological content.

This notion of a "movement" seems to emerge from two separate phenomena - the fact that some individuals and loose-knit groups projected their own political goals onto Obama (as, frankly, happens with pretty much any new, charismatic political leader who builds a coalition sufficient to win a national election), and the caricature advanced by people like Gerson. But you know, there's one person whom I've not once heard speak of Obama as a leader of a cohesive "movement" - Barack Obama. And there's a guy who has been willing to disappoint large groups of his supporters on issues such as Iraq policy and FISA, even before he was elected. (Can Gerson guess his name?) But then, Gerson was apparently taken surprise that Obama reappointed Gates, despite, you know, Obama promising to reach across the aisle when composing his cabinet.

Reappointing Gates is also politically savvy, as it makes it harder for Republicans to blame Obama if the Iraq phase-down goes poorly. But whatever Obama's motivations, take a step back and think about what it means for Gates to be accepting this reappointment. He had the alternative of cashing in, big time with a book deal, private sector jobs... think Cheney at Halliburton. It's a testament to his character that he's continuing in the job, and a testament to Obama that he's again willing to disappoint supporters who wanted a clean break from past war policy in order to retain somebody who may in fact be the best available choice for the job. So with regard to Gates, although my reasoning is different, I'll accede to Gerson's conclusion - That's centrism we can believe in.

As for Gerson's having his hopes raised by Obama's "disappointing the ideologues", he may be onto something. After all, had Bush been more willing to stand up to factions exemplified by PNAC, the Club for Growth, the domestic energy industry, etc., his administration might not have been such a miserable failure.

Doorbuster Sales

Following the death of a Wal-Mart worker, NYC appears poised to require additional security during "major sales". Despite the tragedy, given that security measures appeared to be at least adequate at all stores except the one where the death occurred, it's reasonable to question the necessity of the law.

But if you want to be sure that this won't happen again, is security really the problem? Or is it that the concept of a "doorbuster" sale became too literal. The fact is, when you offer an array of loss leaders designed to attract huge crowds to stores, and offer an additional array of discounts that are only valid for the first few hours of the shopping day, bargain hunters must mass at the doorways at opening time in order to even have a chance for the best deals.

Loss leaders are, of course, quantity limited discounts meant to bring in those big crowds. The idea is that, although few shoppers will be able to take advantage of those discounts, people attracted by the possibility will buy other merchandise. The only thing that differentiates a loss leader from "bait and switch" is that your ads specify that quantities are limited (e.g., "Only 200 available at this price).

If you want to keep crowds from massing at the doorway, classify the advertisement of limited quantity loss leaders as a form of "bait and switch", require issuance of rain checks when quantities run short, and require all specials to be offered through the entire business day. Stores would object, as you would be removing elements that help create the frenzied atmosphere that allows them to clear their shelves of stuff that a calmer crowd would probably leave behind. But you won't have people trampling store clerks, beating up other shoppers, or shooting each other over the possibility of missing that "doorbuster" deal.

Alternatives to the War on Drugs - The (Uncomfortable) Third Way

CrimProf blog tells us what anybody should already know - the "war on drugs" as presently fought is an extraordinarily costly failure, and the drug situation is not likely to improve unless we focus on demand instead of supply. But it's simplistic to suggest that treatment programs are the key to winning the drug war. Unless you're going to expand the meaning of "treatment" beyond the comfort zone of a lot of Americans.

Drug treatment is remarkably ineffective, not because we don't now have some pretty good programs and models for treating addicts, but because until an addict is ready for sobriety the odds of successful treatment are close to zero. If you're not an addict, this is really hard to grasp. I still can't quite fathom why somebody would spend time in a jail or prison, be completely broken from any physiological addiction to cigarettes, but then light up the moment they get out. It doesn't make sense, but that's addiction at work.

In a "war on drugs" parallel, a couple of years ago I met an addict who was in the process of detoxing from heroin, who described how he had previously spent a full year in a very expensive residential treatment center - about $30,000 per month. He had agreed to drug treatment as part of a one year drug diversion sentence for possession. His dad had picked up the tab to keep him out of jail. He indicated that although he was "clean" for the full year and passed all of his drug tests, he spent the entire year waiting for the moment his year was up. Within an hour of the court appearance at which he was discharged as having "successfully" completed the diversion program, he had a needle in his arm. He was back in treatment because he had been arrested again. My guess is that he's since again relapsed.

Meanwhile in Switzerland, they're experimenting with prescription heroin, administered in a clinical setting for a class of addicts for whom all else has failed. It's a bit jarring, but in fact if you want to reduce the demand for street drugs, sometimes you have to make their equivalent available in a clinical setting. This approach offers some benefits that may not be immediately apparent, including providing the addict with pharmaceutically pure drugs (the poisons and toxins in street drugs can carry serious health consequences), and opening the door to drug education, counseling, and the possibility of treatment. The U.S. has moved uncomfortably into the drug substitution and maintenance model, through methadone clinics, but an addict's participation in that type of program is often a result of desperation - they've reached a point in their addiction where their need for drugs exceeds their supply - and not about recovery.

Like it or not (and I don't), addiction is a part of human nature, and a consequence of human biology. There's not a country in this world that doesn't have a "drug problem", and there never will be. It makes sense to move into a model of a "war on drugs" that involves a sensible use of resources, and as much as possible removes the criminal element from the drug trade while treating addiction as a public health problem. But if the only tools we apply to the problem are "drug treatment" and "cutting off supply", we should not expect the situation to improve.

More On The Financial Mess

The AP covers how, in 2005, the Bush Administration's contemptuousness of regulation and deference to lobbyists led to its rejecting regulations that could have helped diminish the bad lending practices that contributed to the housing bubble.

The Bush administration backed off proposed crackdowns on no-money-down, interest-only mortgages years before the economy collapsed, buckling to pressure from some of the same banks that have now failed. It ignored remarkably prescient warnings that foretold the financial meltdown, according to an Associated Press review of regulatory documents.

"Expect fallout, expect foreclosures, expect horror stories," California mortgage lender Paris Welch wrote to U.S. regulators in January 2006, about one year before the housing implosion cost her a job.

Bowing to aggressive lobbying — along with assurances from banks that the troubled mortgages were OK — regulators delayed action for nearly one year. By the time new rules were released late in 2006, the toughest of the proposed provisions were gone and the meltdown was under way.

Also, CJR covers a Wall Street Journal article observing that, while the financial industry is presently being given a free pass for the incompetence of its management, it has a lot more in common with the auto industry than Congress has so far acknowledged:

For their part, banks have found lots of causes for their predicament aside from their own failings. The crisis, they have argued, is down to an impossible-to-predict perfect storm, predatory hedge funds, panicked investors, unrealistic accounting rules and economic changes that emerged so quickly there was no way to be prepared for them.

If only. The reality is the crisis is due to bad lending and investment decisions. And those, after all, form the core of the banking business. In auto terms, it’s as if banks designed cars that suffer from catastrophic mechanical failures, or can’t be driven during snow storms.

CJR concludes that the author is "right to point out there’s more urgency with fixing the banking system, and right to point out that doesn’t mean they should come out looking the same."Bush