All Cattle and No Hat?

The President has an odd job... One half "leader of the free world," one half "head cheerleader and ribbon cutter."

Perhaps some presidents enjoy the public relations aspect of their job - throwing a pitch to open the baseball season, helicoptering in to the scene of an emergency to give a speech, appearing at celebratory dinners and sharing some jokes, giving commencement speeches and collecting honorary degrees.... But it seems like these "responsibilities" expand with each President, with the creation of "customs" and expectations that are difficult for a successor to break.

Perhaps the P.R. side isn't excessively distracting from the President's official duties. And sometimes the country "needs" the President to appear to be in charge of an event, disaster or catastrophe, even if he has no actual control over the situation or if it's best deferred to others with more time, relevant experience and relevant skill.

But must the media be so shallow? How many pundits need to write a column that amounts to "President Obama is doing as well as anybody can, but he's not performing his cheerleader routine with sufficient aplomb." Take it from the queen of shallowness herself:

“The media may get tired of the story, but we will not,” he told Gulf Coast residents when he visited on Friday. Actually, if it weren’t for the media, the president would probably never have woken up from his torpor and flown down there.

Yeah.... The media can educate the public, explain why it's so difficult to stop the spill, investigate how we got into this situation, analyze the environmental consequences, or yammer that "The President is too Spock-like, so he needs to go to Louisiana to give a speech"... And Dowd's patting herself and her peers on the back for focusing exclusively on that last task, "waking" Obama up to the need to showboat?

Dowd skips over G.W., whose carefully staged and at times excessively dramatic public appearances provided cover for his general incompetence, suggesting that we need the return of President Clinton as a "Feeler in Chief." To somebody like Dowd, and an unfortunate number of her peers, the story will always be whether the President looks good in a jump suit, and how well he stood up to the G-forces of a fighter jet. Form over substance. If the right heartstrings are plucked, who gives a crap if the mission is actually accomplished.

The Difficulty of Aiding the Poor

Although he's writing about the U.K., Paul Vallely's comments on the difficulty of providing aid to the poor seem pretty universal for the developed world:

Here are two propositions most people would find it hard to contradict. First, people who are capable of work should work. Second, a decent society helps those in need and enables those people who are unable to work to nonetheless live with dignity.

So far, so good. The problem comes, as so often with dogmatic moral assertions, in acting on both of them at the same time....

The welfare dilemma is this: by helping those most in need we invariably help people who are perfectly capable of helping themselves. That costs.

Vallely observes that the return to a person on public assistance who gains work at or near the minimum wage is quite modest - they keep as little as 5% of their earnings above what they would receive on assistance. But even when the economy is good you can't overcome that problem by driving up the minimum wage to unrealistic levels, and if you significantly increase the amount of money that a low wage earner can keep while still qualifying for public benefits you'll expand the pool of people eligible for aid to even more of the people who are perfectly capable of helping themselves (and presently are doing exactly that).

Vallely analogizes the deduction of up to 95% of wages from public benefits to a 95% tax on bankers. Even if we ignore the fact that the money we're talking about here is not earned, and while acknowledging the argument (probably more applicable with the poor than with seven figure incomes) that a 95% deduction removes most of the financial incentive to work, the analogy doesn't work for me. In the longer-term, somebody who enters the workforce, gains experience and builds skill should be able to earn more money - it's terribly short-sighted to decline to get a job just because it doesn't provide a significant immediate monetary benefit. I also believe there are social and psychological benefits to carrying your own weight. (Vallely share's my opinion, writing "Work is more than just a right, or even a responsibility, it is a part of human fulfilment.") While I grant that some people who collect public assistance may not be disposed to look beyond the short-term, and some are unlikely to ever earn significantly above minimum wage, over time the majority should do much better for themselves and their families by taking even entry level jobs.

On the other side, you could increase the incentive to work by reducing benefits. Even if most people can be said to favor allowing the poor to live with some degree of dignity, there is room for disagreement as to what constitutes dignity. The problem, particularly with families, is that the financial pressure you place on adults ripples down to the children. Welfare reform in the United States did a lot to limit lifetime benefits, but not so much when minor children are part of the family unit. Limits can also have other negative effects:

[Secretary Ian Duncan Smith] also wants to restore an honesty to the system by addressing the nation's sick note culture which has transferred large numbers of people from unemployment to disability benefit – primarily because they get £25 a week more on the sick than on the dole. We currently have more people classed as invalids (2.65m) than we do as unemployed (2.5m). Almost 7 per cent of the working population is now said to be physically incapable of working.

When you signficantly reduce or eliminate benefits for marginal individuals, you can expect that a number of them will seek disability benefits, and many will get those benefits. Rather than being in a position where they can be pressed to enter the workforce, they're instead pushed in the other direction - they can be expected to take great care not to appear capable of work for fear of losing what can potentially be a lifetime benefit. As Vallely puts it, "If fundamental benefit reform was straightforward, it would have been done by now."

For Heaven's Sake, Don't Treat Us Like Grown-Ups....

Michael Tomasky describes what he believes to be President Obama's "Achilles Heel":

Gail Collins and David Brooks of the Times both agree that they're happy Obama has been strutting around declaiming these past few spillagey weeks. Brooks:

I persist in the belief that unless Barack Obama has a degree in underwater engineering that he's not telling anybody about, there's really not a lot, post-spill, he could be doing. Like you, I'm not a huge fan of presidential grandstanding. The idea that the president is the big national daddy who can take care of all our problems is silly.

It may be silly, but Obama has a habit of letting crises sneak up on him. You have to look like you're doing stuff even when you're not. A very crucial executive skill.

In contrast with Rudy Giuliani, a master in the art of contrivance and beneficiary of obsequious media coverage, Tomasky tells us that Obama is "being too measured, overly judicious, too resistant to rush to judgment. It'll cost him one of these days."

It's a shame we don't have better media and a more responsible political culture. Tomasky makes a point about the reality in which we're immersed - where Giuliani's incompetent choices and personality quirks put him in a position to project leadership after the 9/11 attacks and the media was more than happy to play along. President Obama does have to work within that political reality. But it's a shame that so much energy is devoted by politicians, pundits and talk radio hacks toward getting the public to respond in a knee-jerk, uninformed manner as opposed to encouraging, if not insisting, that we act like adults.

Update: "Where's the President, and why didn't he fix this with his magic wand?"

Update 2:

Spinning Law School Grades

I had missed the original article, but a letter to the editor brought my attention to the discussion of Elena Kagan's first year law school grades. The author of the letter argues,

Fresh out of lively liberal arts programs, especially brilliant students, taking their first law school exams, tend to digress into historical and philosophical explanations of the controlling legal rules. The Bs and B-minuses teach them to jettison all of that, and to write only what a judge will need to read to decide the case presented by the exam’s hypothetical.

The finest legal minds therefore often surface in the second semester, and thereafter. The arc of Elena Kagan’s grades, close to impeccable after the first Harvard Law School semester, shows her intellectual mettle.

From my own law school experience, I would take great issue with everything past the first sentence. In my experience it's true that, for a variety of reason, many very bright, engaged students can get grades that don't reflect their capacity. Some expect difficult material to come to them quickly and easily, and get tripped up when it does not. And it's likely true that some suffer for pursuing tangents or ideas that are somewhat afield of what the professor was trying to get at. But many suffer for the sin of writing what they actually believe, as opposed to what the professor wants to hear. The biggest lesson for a lot of bright law students in their first year is that they'll do better by anticipating and catering to their professor's philosophy of law.

There are some professors who are quite objective, both in how they structure their exams and how they grade them. Some legal subjects are better suited to objective examination, and some professors are more inclined toward objectivity as a matter of personality. The most dangerous professor is perhaps the one who reassures the class, "I don't take ideology into account while grading papers - I look only at the strength of the ideas." Why? Because professors who actually do that don't make their students nervous that they won't. But more to the point, the almost inevitable consequence is that the student who writes from a different perspective will be marked down, not for "disagreeing with the professor" but because in the professor's eyes the student's theories are inferior or incorrect. I have previously commented on this phenomenon:

A classmate who graduated with a very high GPA left one of our finals chuckling about some of the things he wrote on the final - what sounded to me like crude parodies of the law professor's philosophy. He got an A+. He had not been afraid to speak his mind in class, and his politics were pretty much the diametric opposite of the professor's, but he knew not just to keep his head down for the exam but to take obsequiousness to an entirely new level. I don't believe for a second that even with the same exam, absent blind grading, he would have received the same grade.

Sorry, but the idea that law school exams - or at least the majority of the exams I took at law school - taught me to hone in on what a judge might want to hear is simply incorrect. Law school requires a type of analysis that is certainly helpful when analyzing and presenting legal issues in court, but if I wrote appellate briefs with the type of analysis required by a law school hypothetical... ouch.

I knew more than a few students whose grades rose considerably during their second and third years of law school, but none of them argued to me then or now that this was because they were learning "to write only what a judge will need to read to decide [a] case". Some were highly selective in the professors they chose, preferring those known to grade on a higher curve or with whom they had previously obtained a high grade. Others learned to hone in on the professor - what are his interests and beliefs - and to write exam answers that catered to the professor. Few did so to the extent of the A+ student I previously mentioned, but that guy was a master of the art of reading professors. Most law students are mere mortals who might be thrilled to do better, but are content to get an A.

I think Kagan's academic record prior to law school amply demonstrated her "intellectual mettle". I suspect, though, that her first year was more of an adjustment to the realities of law school - that she could not expect to knock out a professor with her brilliant mind - and that she learned when it was necessary to shape her answers to suit the professor even though her personal beliefs were different.

Made Up Statistics

Not really anything new, and given the sensational subject matter it doesn't surprise me that statistics like this get fabricated and passed around, but stop and think for a moment:

According to the Justice Department, an estimated one million children in the United States are abused yearly in the production of child pornography, a $3 billion business annually.

The appeal to authority doesn't make the obviously false statistic any more true. There are approximately 62.84 million children below the age of 16 living in the United States. The entire market for legal pornography in the U.S. is approximately $12 billion per year. Not surprisingly, there's nothing even close to this claim anywhere on the Justice Department's CEOS subsite.

This is probably one of a handful of subjects where getting the facts wildly wrong is going to be excused by most people with the question, what difference does it make? And if we're honest, everybody gets things wrong at times, and everybody has at times accepted at face value statistics that have absolutely no basis in fact. But I do think the letters editor of a major newspaper has a responsibility to take note of obviously erroneous claims both when deciding which letters to publish and when choosing whether or not to attach a note disclaiming a false statement or presenting an accurate statistic. That is perhaps most important in a context such as this, where the emotional appeal of a statistic is more likely to inspire its acceptance at face value.

Enter the Dilettantes?

I don't know if George Will believes what he wrote about Wisconsin Senate candidate Ron Johnson, but his credulous take on Johnson's assertions deserves some review. I don't believe that Ron Johnson is either a dilettante or the folksy tea partier that Will depicts, so I'm left with the question of whether Will actually believes what he wrote, truly imagining Johnson to be some form of working class outsider who stumbled into politics, or is indifferent but is nonetheless offering Johnson a free campaign ad.

Let's start by addressing who Johnson is - the co-founder, back in 1977, and President of a substantial plastics manufacturing company, and one of several Wisconsin millionaires who sees the present moment as a good time to enter politics - with similar messages, even if Johnson found their campaign signs to be, perhaps, objectionable.

Three days ago Marc Ambinder told us, "He just got into the race; he doesn't even have a campaign website yet.", but he registered the domain name for his Senate site on February 24, and here he is, apparently in Wausau on that same day or perhaps earlier, posed in front of a campaign backdrop that prominently features his URL. He had a professional campaign staff in place weeks before announcing his candidacy:

"This is Ron being the person that he is. He's doing his due diligence," [Johnson's campaign adviser, Darrin] Schmitz said. "It's coming together quickly. It's coming together very well and he will make his announcement in the near future and when the time is right."

I'll take Johnson at his word that he is new to the idea of entering politics, but he doesn't strike me as the sort who would be casual about such a decision or about investing his own money in his campaign. So you'll excuse me for believing that he has carefully considered the image he wants to present in association with his campaign. His message so far will create some interesting moments in his campaign:

An accountant by training, Johnson said he believes the government has a role in regulating big banks. But he said the regulations in place failed by allowing banks to get too big to fail, saying they should have been broken up "in an orderly fashion."

As he will have to face questioning about whether he actually means that, as it's a position that's not shared by either the Republican Party or, save perhaps for a few on the fringe, the Democratic Party. Let's not forget, the "too big to fail" banks are still there, waiting I'm sure quite eagerly for Johnson's explanation as to how they should be regulated and broken up.

George Will introduces Johnson as a devotee of Ayn Rand and uncomfortable in a suit:

He is trim, gray-haired and suddenly gray-suited. For years he has worn jeans and running shoes to his office, but now, under spousal duress, he is trying to look senatorial - "My wife upgraded me to brown shoes."

Looking at his firm's website, I don't doubt that jeans are very popular, although it looks like Mr. Johnson already owned a sport coat and a pair of shiny black shoes. His comments to Will appear to me to be about cultivating a public image - exactly what you would expect from a politician, if Johnson's willing to admit that he now is one.

Will tells us that Johnson described Ayn Rand's "Atlas Shrugged" as his "foundational book", and thinks it is "too short" - a complaint I've never before heard, even from the most ardent, self-described Objectivist. Rand surely would have appreciated Johnson's declaration that "most basic right... is the right to keep your property" and his endorsement of low taxes for the wealthy. But his comments and Will's commentary leave me wondering if either have actually cracked the cover of that book. I mean, it would be easy to caricature Johnson as imagining himself as Galt, surrounded by peons at his factor that do nothing but leech off of his genius and accomplishment, and some of his comments do seem like a caricature of her philosophy (e.g., "[Massachusetts] is requiring [health] insurance companies to write polices at a loss" - sure, but that was in exchange for an individual mandate, and even in other states insurers are compelled to renew policies even when they know that the insured is going to cost them more money than they pay in premiums). But his departures from Rand's philosophy are more striking.

First, Johnson paints himself as a devout Christian - Lutheran according to Will, but I would otherwise guess Catholic - something I'm happy to assume is true. But nobody would mistake either Rand's philosophy or Atlas Shrugged as anything but contemptuous of religion - sacrificing reason to faith. As Galt puts it,

For centuries, the battle of morality was fought between those who claimed that your life belongs to God and those who claimed that it belongs to your neighbors–between those who preached that the good is self-sacrifice for the sake of ghosts in heaven and those who preached that the good is self-sacrifice for the sake of incompetents on earth. And no one came to say that your life belongs to you and that the good is to live it.

Similarly, Johnson describes himself as pro-life. Ayn Rand... not so much. Rand viewed abortion as an absolute right of a pregnant woman. Can you imagine her reaction to Johnson's attempt to insert both abortion rights and to trigger squeamishness through his reference to "partial birth abortion" into a political campaign?

"I would like to ask Russ, 'Have you ever witnessed a partial-birth abortion?' "

We were told earlier in the article that Johnson's newborn daughter had to undergo heart surgery. I expect that Rand would respond to Johnson that banning so-called "partial birth abortions" does not prevent an abortion, but changes the technique to one that's more dangerous for the mother, and that his sentimentality over how "icky" it might be to watch could also be applied as a rationale for banning "icky" open heart surgery until something more aesthetically pleasing could be devised.

It is really difficult for me to imagine a pro-life Lutheran (let alone Catholic) who could read Atlas Shrugged and deem it to be his "foundational book", let alone "too short". If he took the time to digest Rand's arguments and her contemptuousness toward religion, I would expect him to find the book discomfiting and completely incompatible with his religious beliefs. But I'm sure his claim makes for a good sound bite at tea party rallies. Of course he's also an outsider and a businessman, who will bring that experience to public office... never heard that one before. From what I have seen so far, it seems like he's a dyed-in-the-wool Republican, and a quick study in the art of politics, who believes he can ride a wave of tea party anger and a populist message into the Senate.

A Long Overdue Resolution of Kwame Kilpatrick's Probation Violation

So it's a prison sentence for Kwame, who (aptly) complains,

"In my own hometown, I still feel like a prisoner."

Perhaps it's the handcuffs?

Seriously, the system has bent over backwards to give Kilpatrick opportunities to come clean, to pay his restitution, to apologize for his past conduct. Time and time again he has been dishonest, hidden assets... or as he puts it, "I'm here because of my confusion with some of the written orders". I doubt that Kilpatricks' order is any more confusing than any other sentence of probation issued in the state, and he's certainly had many more lawyers than most defendants who at various time have surely explained the meaning of those orders to him. And yet he's "confused" about how concealing massive loans, apparently diverting assets to his spouse, claiming complete ignorance about who pays his household bills (including rent on his mansion) or where the money comes from.... Right. Confused.

[Kilpatrick's lawyer, Michael Alan ] Schwartz says allowing Kilpatrick to remain free is vital so that the former mayor can keep his job and continue paying back the city.

That would be at the $6/month rate that Kilpatrick's lawyers, apparently including Schwartz, previously argued was reasonable?

Kilpatrick assures us, "For the first time in my life I'm a great husband. I'm a new guy. and I know there's a lot of people who don't accept that". Maybe he has become a better husband. But that's not why he's on probation. He's not such a "new guy" that he has moved past what got him in trouble - obstruction of justice - as that's in effect what he has been doing throughout his probation violation proceedings. (Becoming a "new guy" is, you'll be shocked to learn, not a particularly unusual claim for a defendant to make at sentencing.)

The judge’s order also raises questions about whether Kilpatrick will continue to have a job with a Compuware subsidiary in Texas. Compuware chief Peter Karmanos had given Kilpatrick a six-figure sales job with Covisint in an office just outside Dallas after the ex-mayor’s release from jail in February of last year. But Karmanos said at the time that Kilpatrick’s continued employment was contingent upon Kilpatrick staying out of further trouble.

As I understand it, Kilpatrick was given a six figure job for which he has no experience, including an advance against future commissions. He also received a massive loan. It's my understanding that since he was hired by Covisint he has made no sales - but he has used his position to argue to the court that he has to live the life of Riley because he has to impress his potential clients. He has been in trouble over his restitution for more than a year.

Do you have any guesses as to why Covisint hired Kilpatrick, the son of a sitting Member of Congress, despite his felony violations and continuing legal problems, and under incredibly generous terms? Or why a collection of powerful, connected businessmen including the CEO of Compuware, Covisint's parent company, would secretly "loan" Kilpatrick $240,000, with the loan put into writing only after others found out about it? Does your guess leave you with the feeling that the principal reason Covisint might part company with Kilpatrick would be that it would be too obvious to continue to pay him while he sat in jail? But who knows, perhaps they can claim he's trying to expand their business into the corrections market.

A Better Ending for Lost

As Jack puts the plug back in place and the pool refills, the golden glowing energy turns into a searing white light. Cut to the outside, where Ben and Hurley watch in horror as a cloud of black smoke emerges from the cave.

Cut to a beach. Hurley and Jack are sitting next to each other, staring out at the water. Ben is standing nearby, watching and listening. Jack says, "You know, Hurley, I've decided I don't like the island after all. I'm leaving the first chance I get. If only I had a body...." Ben mutters, "Oh, crap. Here we go again." Fade to black.

Reducing the Overutilization of Emergency Room Care

The Washington Post recently offered an editorial on the subject from an emergency physician. While some of the ideas seem a bit simplistic and underdeveloped, I'll give the author the benefit of the doubt - you can't develop multiple ideas that complex inside the confines of the Op/Ed pages. It's a discussion we need to have, so it's worth a look.

Libertarianism Withering Under the Spotlight

I don't see much point in discussing libertarianism as a theory of government, as it's not much of a challenge to go after the low hanging fruit. Libertarianism has value. There's value in resisting the tendency of government to grow in size, scope and power, whether in relation to individual rights and freedoms or the regulation of business and industry.

Let's face it, when it comes to running a government, libertarianism is best left to dystopian science fiction. The best "defense" of libertarian government that you're likely to hear is that "we haven't tried it". It's the same thing that Marxists and communists argue - you can't judge their theories of government based upon history, because every implementation to date has been flawed. Libertarians can spot the defect in that argument when it comes to communism, but not when it comes to their own theories.

There are very few pure libertarians - those who truly embrace the extreme form of the theory that I've heard described as "anarchy with lawyers". If your neighbor builds a toxic waste dump in his back yard, it's his land. If the smell bothers you or the sludge is contaminating your land or water, you can sue him. What could possibly go wrong? (Never mind that lawsuits require laws and court rules, are time consuming and expensive, and can impose serious financial hardship or be unaffordable if you're going up against a defendant with deep pockets.) In fairness, next to nobody falls into that category. Libertarianism transforms itself into a theory of more limited regulation and government, with nothing approximating consensus between libertarians as to what lines should be drawn and where to draw them. It's not just that pure libertarianism, when explained, is unappealing to most people - it's unappealing to most libertarians.

The next problem is that most libertarians are either cafeteria libertarians - they'll pick and choose where the government can intrude on people's lives - or single issue libertarians. Rand Paul is getting a lot of flak over his "libertarian" approach to civil rights, and skepticism over his call for the abolition of the Department of Education, but when government intrusion and wealth distribution benefits him, he's the first to the trough. Should we consider a significant deductible on Medicare recipients? Sure, why not - that's consistent with being libertarian - but you have to make sure that compensation for doctors is not affected, and certainly that it's not cut. (Minimum wage, on the other hand, doesn't affect doctors' wages.) In fairness to Paul, he has previously distanced himself from the label, "libertarian", even though he seemed please to be regarded in that light.

When I hear Rand Paul's defense of BP, I can't help but wonder if, in a different context, he would be complaining about the violation of the rights and destruction of property of a business that did nothing more than successfully lobby for a tax cut. Tea Party hero, indeed.

The single issue libertarians can be a bit scary. Even with cafeteria libertarians it's often difficult to tell whether their beliefs are motivated by libertarianism, or if they embrace libertarianism as cover for their controversial beliefs. It's much more comfortable, after all, to attack the Civil Rights Act from the cover of libertarianism than... well, from any other angle. Then you encounter the brand of libertarian who seems to care primarily, if not exclusively, about abolishing age of consent laws, and... what do you make of that? But what you will often find is that the libertarian you're talking to is a lot like Rand Paul - they want to cut government programs and spending that don't directly benefit themselves, but want to perpetuate those programs that provide them with a benefit. You can find self-professed libertarians living in Section 8 housing.

The libertarian focus is often on "property rights" - you own a business, so what right does the government have to tell you that you can't exclude a particular individual from your business. "Racism is wrong and I don't support it," they may explain, "But market forces will prevail, and the business down the street that hires the best candidate regardless of race, or the business down the street that doesn't discriminate, will win out over the business that does."

Try pointing to the history of Jim Crow or apartheid, and you'll hear about the role of government in enabling and perpetuating institutionalized racism, as if that erases the fact that nothing short of massive government intervention could bring it to an end. You'll hear again about market forces, but no explanation as to why it took another thirty years, a massive lawsuit, and an eight figure payout before Denny's caught on that segregated seating in its restaurants was supposed to have been a thing of the past. The same market forces that perpetuated Jim Crow perpetuated that practice at Denny's, and it appears that the involved restaurants were responding to local market preferences. Just as with some members of the chain providing discounts for churchgoers. Sometimes discrimination boosts business, even if a few people are offended or a different class of people is excluded. Libertarians will tell you what a good thing it is that social clubs were exempted from anti-discrimination laws, but seem to forget the obvious lesson that the same reasons people may prefer the "exclusivity" of their social club can be paralleled in other contexts.

Let's say we grant the Rand Paul dream and let private businesses discriminate. What happens if an individual attempts to get service? What happens if there's a protest? What happens if there's a sit-in? How much force does the state license the business owner to use to enforce his right to discriminate against somebody who has the temerity to want a cup of coffee at a "whites only" business? If the business owner calls the police and says, "I have a trespasser in my business," will the person be arrested and prosecuted by the state for violating the business owner's rights - simply because he had the wrong color skin to patronize that business?

Whether it's through the sanctioning of violence or criminal prosecutions to enforce property rights, if the power of the state falls behind those who want to discriminate, how is that libertarian? Would the most libertarian solution be to allow the business owner to file a civil lawsuit against the unwanted patron, a "solution" not likely to satisfy anybody? (Maybe the trespasser could countersue, adopting the libertarian argument that the business owner was harming his business by discriminating, and was thus unjustly enriched through the unwanted patron's presence in the store.)

There is a cure for all of this - it's called "thinking things through". Once you do that, you'll find that you may be sympathetic toward libertarianism, and even embrace the notion that the government has next to no role in certain areas of our business and personal lives. You may embrace limited government. But by the time you're through, if you still call yourself a libertarian it will be in a similar sense to calling yourself "a vegetarian who enjoys an occasional steak."

Update: Charles Lane offers what may be a more clear statement of my point about how private discrimination would rely upon state power for its enforcement.

Infidelity

Sure, anybody can be unfaithful, but infidelity doesn't "just happen" - it's a choice. It can't "happen to anyone" because anybody can choose marital fidelity. (via TPM.)

What we may be witnessing is the end of the "What happens in D.C. stays in D.C." mindset that, sure, makes it easier to be unfaithful but does not take away your free will.

OMG - There's a Deficit!

Remember when Michael Gerson was head cheerleader for the Bush Administration, before entering his permanent audition to be chief water carrier for the Republican Party? Looking back on those days, Gerson himself admitted "I am not generally a deficit hawk." As I previously commented,

No, a guy who was cheerleader in chief for a President who turned record budget surpluses into record deficits, refused any sensible tax policy, refused any sensible spending policy, and decided to deficit spend our way through an extraordinarily expensive war of choice (also supported by Gerson) is not a deficit hawk. (Meanwhile, that same President failed to notice or take action to prevent an alarming crisis in the nation's financial industry that has precipitated the need for massive stimulus spending and trillion dollar bailouts.)

As the political winds have shifted, Gerson has pretty much transformed himself into a full-fledged, fear mongering deficit hawk. So why not, after all, open his latest attack on the Obama Administration with a false statement?

The Obama administration's budget proposals would dramatically increase publicly held debt as a percentage of the economy over the next decade, eventually slowing economic growth, fueling inflation and making America more dependent on the kindness of creditors.

I'll be the first to admit that I don't like the size of our projected deficits, but that doesn't mean we should ignore the facts.

As you would expect from a Republican water carrier, there's only one plausible solution to the problem - slash spending on programs that benefit the middle class. Remember a month or two ago (was it even that long) when the Republicans were spouting off about how allowing a tax cut to expire is the same thing as a tax increase? How it is unacceptable under the tax pledge signed by most Republican Members of Congress to eliminate a tax break, even in the name of balancing the budget, if it raises he payer's marginal tax rate? Well, that's only when we're talking tax policies that benefit the rich, or corporate welfare.

This round [of deficit reduction] may require not only the means testing of Social Security and Medicare but also the reduction or elimination of middle-class entitlements such as the mortgage interest deduction and the employer health-care exclusion.

See? It's "different" because it's a "midle class entitlement", so like magic it's no longer a "tax increase" to eliminate tax deductions or credits. But outside of that context, tax increases mean doom, even if history suggests otherwise. Unless, of course, it's a VAT, something Gerson now endorses as the next best solution to slashing government spending (without regard for how that might impact the economy). I'll refer back to my skepticism that Republicans oppose a VAT. Like every other idea Gerson offers, it's gloriously regressive.

It is of course fascinating that the Republican Party marches in lockstep against malpractice reform, and against any notion of single payer or even a public option, while ignoring the fact that every western nation, even those with significantly better outcomes and typical levels of service, spends far less on health care per capita than the United States. It's almost enough to make you think they're not serious about reducing the deficit - that they have another agenda. (I'm not saying the agenda's not shared by the Democratic Party, which was instrumental, after all, in killing off even a public option, but can't we be honest about the fact that a majority of Members of Congress prioritize the elevation and protection of corporate profits above all other concerns?)

Strangely, despite his new found zeal to balance the budget at all costs, Gerson has forgotten to endorse cuts in spending in areas other than those that benefit the middle class and poor. Such as cuts in military spending, cuts in corporate welfare and agricultural subsidies.... Is it that he lacks the brains to recognize the potential for savings, or lacks the stomach to stand up to his party?

That Last 10%

As a perfectionist,* I've long been fond of the maxim that the first 90% of the work takes 90% of the time, and the last 10% takes the other 90% of the time. Today, Seth Godin does a good job explaining why.
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* Except when blogging, in which context I readily acknowledge my imperfections. ;-)

The Oil Spill Shell Game

Look who's coming to the defense of BP: The former President of Shell Oil. We're assured that BP will survive the oil spill, this is really our fault for wanting oil, and that we're "greedy consumers" for wanting it to be produced in a manner that allows us to avoid the "taste, touch, see or smell it or its production". Perhaps Shell could fix that by lightly spraying consumers with a mist of crude oil at its gas stations - teach us some appreciation.

In the fullness of time the Gulf incident will be an anomaly: deadly, expensive and unfortunate, unprecedented in 40 years of offshore operations. The industry knows what it is doing.

We can hope that this spill is an anomaly. But the spill belies the argument that "the industry knows what it is doing", at least once you move past the question of how to remove deep sea oil from the ground. From the moment of the accident, the cleverest minds in the industry have been scrambling to find a way to slow or stop the gusher. (Was it those same minds, or the captains of the industry, who preferred to save money by blocking a requirement for potentially effective, but extremely expensive, untested technology that might have already stopped the spill?) The author complains, in the form of a non sequitur,

Shell and the other US oil majors have known all this for a century. They're unlikely to share their knowledge. They'd face an anti-trust charge.

Exactly what is it that the major oil companies can't share without facing an anti-trust charge? The auto industry has shared patented safety technologies (such as Audi's patented automatic shift lock) without problem. If Shell is sitting on technology that would enable BP to stop the leak, or would allow for deep sea drilling with a much lower chance of accident, color me skeptical that they would get anything but praise for sharing their discoveries.

But you know, the author has a point. The citizens of Bhopal, India didn't complain when they were earning wages producing chemicals at the local Union Carbide plant, but release a few tons of poison gas into the air and they never forgive you. Even though it's been twenty-five years and we haven't had a recurrence on that scale. Or, in the similar context of this oil spill:

In addition they have recruited 13,000 people to clean up, opened their website and telephone lines to every offer of help and damning complaint from the public, kept the media well informed, met with sceptical federal officials from an array of agencies, organised for legal recriminations – and kept their head while running the rest of their company. This takes capacity and competence.

You know what would have demonstrated BP's capacity and competence even better than a prompt effort to control the public debate, lobby politicians, point fingers at the other companies involved in the disaster, attempt to develop repair technology after-the-fact, and hiring even large numbers people to clean up a continuing, major oil spill? I'll give you one guess.

Maybe it's boring or unexciting to live the life of a competent executive who prevents disasters, as opposed to one who handles the post-disaster P.R. game with aplomb. But we greedy consumers want so much - like seeing the latest incarnation of "Brownie" do a "heckuva job" before we lavish him with praise.

We Already Knew She Was On Law Review....

Almost a decade ago, David Brooks attempted to brand bookish Princeton students as "Organization Kids"¹, speculating that they came from homes with highly structured schedules of activities, leading to college schedules that "sounded like a session of Future Workaholics of America". Recognizing that not everybody goes to Princeton, in order to get some balance for his piece Brooks went to... Harvard. Yeah. One of my brothers was at Michigan State University at that time and he was a different sort of "Organization Kid", I suppose - he organized quite a few raves.... David, you need to get out more.

Brooks returned to that subject in relation to Elena Kagan, reminding us,

About a decade ago, one began to notice a profusion of Organization Kids at elite college campuses. These were bright students who had been formed by the meritocratic system placed in front of them. They had great grades, perfect teacher recommendations, broad extracurricular interests, admirable self-confidence and winning personalities.

If they had any flaw, it was that they often had a professional and strategic attitude toward life. They were not intellectual risk-takers. They regarded professors as bosses to be pleased rather than authorities to be challenged. As one admissions director told me at the time, they were prudential rather than poetic.

If you listen to people talk about Elena Kagan, it is striking how closely their descriptions hew to this personality type.

Let's see.... Elena Kagan did graduate from Princeton, but in 1981. So either she was way ahead of her time, or Brooks was about twenty years too slow on the uptake.

I was reminded of the Brooks column as I chuckled at parts of a recent New Yorker column by Ian Frazier. If you've been exposed to law students, particularly the high achievers who go on to elite clerkships, you are probably more likely to chuckle at the picture he paints of Supreme Court Clerks, nervous about their presence at an event in the White House Rose Garden, instructed by Justice Stevens not to worry and to "Just keep your eyes on me, and do exactly what I do." But unbeknownst to the law clerks, a bee crawled into Justice Stevens' collar,

A few minutes passed before Justice Stevens became aware of the bee under his shirt, just at the base of his neck. In an attempt to dislodge the insect, the Justice raised his right shoulder, then his left. Faithful to our instructions, all twenty-six of us clerks immediately did the same. The tactic had no effect, however, so Justice Stevens repeated it, now moving alternating shoulders up and down more rapidly and jiggling his arms. None of us clerks quite understood how these gestures could be necessary for the ceremony, but, trusting implicitly in our kind mentor, we moved our shoulders and jiggled our arms just as he had done....

Looking over his shoulder as he shimmied uncontrollably across the Rose Garden lawn, he saw twenty-six clerks shimmying behind him, and in a near frantic attempt to get through to us began to wave his hands back and forth and cry, “No! No! Quit copying me!” We, assuming this was just part of the drill, waved our hands and cried, “No! No! Quit copying me!”

Returning from the world of fiction, back during my undergraduate days I heard a professor at a blue collar state university comment that he didn't like to teach honors students, because they were too afraid of being wrong. But you know what? You are probably going to do better at law school by reflecting your professors' ideology back at them, than you are by challenging your professors' ideas. A classmate who graduated with a very high GPA left one of our finals chuckling about some of the things he wrote on the final - what sounded to me like crude parodies of the law professor's philosophy. He got an A+. He had not been afraid to speak his mind in class, and his politics were pretty much the diametric opposite of the professor's, but he knew not just to keep his head down for the exam but to take obsequiousness to an entirely new level. I don't believe for a second that even with the same exam, absent blind grading, he would have received the same grade.

Kagan was strategic? She was effective "at playing her cards"? She avoided disclosing her ideology? And... yes, she made law review, served as Supervisory Editor, and graduated magna cum laude. And I could picture her doing the "bee dance" at a White House event, not because her background makes her different from her peers, but because it's anything but atypical.

In a big picture sense, Kagan's not a big mystery. She's openly aligned herself with the Democratic party and the political left. She clerked for Thurgood Marshall. She worked for the Clinton Administration and the Obama Administration. To the degree that she's circumspect, it's primarily been by avoiding a public record on litmus test issues.

Picture a columnist for the New York Times who is associated with a political party and ideology, but who avoids writing on the hot button issues. Who is instead known for taking the party's message and trying to massage it into something that seems more moderate or centrist, while fastidiously avoiding the issues where that's not possible. Who do you have, if not David Brooks. I can't help but wonder if his closing,

She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.

is meant as a laugh line.
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1. I understand why syndicated columnists want to inject certain words into the popular discourse - "the world is flat", and all that - it helps build their brand. But it's annoying, and if it hasn't caught on despite years of repetition, perhaps it's time to give it a rest. Or if you just can't let go, take ownership and stick a little "™" symbol after each use to emphasize the proprietary nature of your phrase.

Don't Look for Salvation in the Tea Party Movement

Reihan Salam is a smart guy, but I don't know what to make of this:

If large numbers of Republicans outside of the South and the Mountain West win seats in 2010, particularly suburban swing seats, there will be a built-in constituency for a more pragmatic brand of center-right politics. The Tea Party could pave the way for a more inclusive political movement that embraces the same fiscal conservatism while leaving aside more polarizing cultural messages, as seen in the Scott Brown campaign. This would parallel the evolution of the antiwar movement between 2003 to 2008, from a fringe movement that alienated moderates to a tendency that came to embrace a large majority of the public.

The Tea Party movement could help increase GOP turnout in the midterm elections, which of course could help the GOP win seats. Given that, statistically speaking, the opposition party should pick up seats in the upcoming election, and anti-incumbent sentiments are high, all's the better for the GOP.

But Scott Brown is not "the exception who proves the rule." Scott Brown got a lot of support because he was a Republican poised to win "Ted Kennedy's seat". If he were an incumbent in Arizona or Utah, the same Tea Partiers who sent him checks would be launching a primary challenge and calling for his head on a platter. The Tea Party movement is not about making the rest of the nation more like Massachusetts. For better or for worse, Scott Brown cares about being reelected, so you can expect that he will be playing to the larger population of Massachusetts voters as opposed to trying to meet Tea Party litmus tests.

Meanwhile, the Tea Party has not come out for one thing - not one thing - that would substantively improve the nation. When they were talking about protesting the auto industry bailout in Detroit, Motor City Tea Partiers objected. They're not for Medicare cuts - they're in the "Keep your government hands off my Medicare" camp. In fact, one of the things that seems to motivate them is the thought that healthcare reform might be funded in part by cuts to Medicare. They're not for Social Security reform. They're not for cuts in military spending. They're not for cuts in subsidies for agriculture or ethanol. They're not for ending the mortgage interest deduction. Sure, they're for cuts - but only cuts that affect other people. In that sense they're part of a grand American tradition, but....

Meanwhile, in Maine,

In Maine, the newly adopted GOP platform outlines various changes, although its ambiguous language leaves the meaning of many sections open to interpretation. There’s a call to restore “Constitutional Law as the basis for the judiciary,” to “reassert the principle that ‘Freedom of Religion’ does not mean ‘Freedom from Religion,’ ” to “return to the principles of Austrian Economics,” and to remove “obstacles created by government” to the private development of natural gas, oil, coal, and nuclear power.

Other parts are clearer: a rejection of the UN Convention on the Rights of the Child, elimination of the US Department of Education and the Federal Reserve, and a freeze and prohibition on stimulus spending. Healthcare is “not a right” but “a service” that can be addressed only by using “market based solutions.”

To the extent that the Tea Party is responsible for that platform, as is suggested by the article, what part of it sounds like a sensible, carefully crafted platform for the future, and what part of it sounds like reactionary populism? (For "more of the same," see also the "Contract From America".) Is that platform more likely to help or hinder the state's GOP candidates?

Reihan suggests that the Tea Party movement will allow the GOP to move away from "more polarizing cultural messages". Well, if the Contract From America signifies anything, that movement won't include religious tolerance. And if Arizona signifies anything, it won't be a greater tolerance toward immigrants. Whether or not it's mentioned, being pro-life will remain a central part of the GOP platform. So... when and how does the party shift back from cultural issues to the economic - freed by the Tea Party to cut any spending it wants, except for the military, Medicare, Social Security, and agricultural or energy subsidies?

Yes, the Tea Party may transform the Republican Party, and may help it gain seats. But really, what political ideology improves itself by harnessing itself to a populist movement, at best substituting one set of litmus tests for another - and more realistically, adding the Tea Party's litmus tests to those already adopted through years of similar dependence on the religious right.

In his final comment on the anti-war movement, Reihan confuses the message with the messenger and ends up with a bad analogy. Sure, some of the groups that organized anti-Iraq war protests were unpopular with the public, but before we went into Iraq the anti-war movement was winning the debate. As one would expect, once the war was launched the public got behind the war, the President, and the armed forces.

Is That a Torte...

Or maybe a bombe? The sort of dessert that, one might say, takes the cake.

Let's Do The Time Warp Again.....

I've commented on 3 AM calls (and their close cousin, 2 AM calls) and their practical significance before.... First, a flashback to Applebaum:

The defining moment of [Barack Obama's] presidency may well come at 2 a.m. some day when he picks up the phone and is told that the Israeli prime minister is on the line: Israel has just carried out a raid on Iranian nuclear sites. What then?

Now, fears of paralysis on Downing Street:

Picture the scene: it's 3am and the phone rings in No 10. A bleary-eyed David Cameron finds Barack Obama on the end of the line. An attack on the Iranian nuclear reactor in Bushehr is imminent and "we need Britain with us on this", says Obama. "We need your base in Diego Garcia, we need logistical support in the Persian Gulf, and above all, we need you to stand with us in the UN."

Yes, imagine Barack Obama getting that 2 AM EST call, taking an hour to figure out a plan that involves Britain and... issuing an emergency order suspending the world's time zones so that he can reach the Prime Minister by 3 AM GMT?

I'll grant, it's more realistic for the Prime Minister to be awakened by what would be a late evening call from the President but, leaving aside for the moment the conceit that any attack on Iran would be kept secret from allied nations whose cooperation is deemed essential until it's underway, truly, these commentators are not aware of time zones? We truly must imagine all of the worlds crises somehow occurring between 2 and 3 AM, no matter where people are on the planet?

Here's a wild idea - perhaps they could ask Tony Blair or Gordon Brown, "How many times did the President wake you up in the middle of the night?" Or ask G.W., "How many times did somebody rouse you from your scheduled slumber to inform you of an international crisis?" Nah. Why contaminate this stuff with facts?

How Lost Will End

Okay, I have to admit it, I made this ending up. But for real this time....

Who's the mystery candidate - the guy Jacob sent Jack to spy on from the lighthouse. Wallace, right?

What's the secret of the island - a little cave full of a golden, glowing light that everybody wants, right?

A non-linear plot, lots of violence, heroin use, gangsters and hit men....

Yes, you figured it out. The final episode is going to be a 2-1/2 hour "safe for broadcast TV" version of Pulp Fiction. Watch out, Widmore - Marcellus Wallace (Again - Wallace from the lighthouse episode) wants that briefcase full of... golden, glowing light that everybody desires. And remember this:

"The path of the righteous man is beset on all sides by the iniquities of the selfish and the tyranny of evil men. Blessed is he who in the name of charity and good will shepherds the weak through the valley of darkness, for he is truly his brother's keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know my name is the Lord when I lay my vengeance upon you."

Complete with role ambiguity:

But I saw some shit this mornin' made me think twice. See, now I'm thinkin': maybe it means you're the evil man. And I'm the righteous man. And Mr. 9mm here, he's the shepherd protecting my righteous ass in the valley of darkness. Or it could mean you're the righteous man and I'm the shepherd and it's the world that's evil and selfish. And I'd like that. But that shit ain't the truth. The truth is you're the weak. And I'm the tyranny of evil men. But I'm tryin', Ringo. I'm tryin' real hard to be the shepherd

(Just when you thought the producers were making this up as they went along.)

As for the attempted robbery:

Normally, both your asses would be dead as fucking fried chicken, but you happen to pull this shit while I'm in a transitional period so I don't wanna kill you, I wanna help you. But I can't give you this case, it don't belong to me. Besides, I've already been through too much shit this morning over this case to hand it over to your dumb ass.

Bad language or no, tell me that's wouldn't be an understandable response to a robbery attempt from somebody who just got off the island with a briefcase full of its magic light.

Hurley, of course, owns Big Kahuna Burger, a natural adjunct to the chicken business.

All questions answered. Sort of.

After All, It's Not An Insult

Reading David Bernstein's commentary, I can't rule out the possibility that he is genetically predisposed to be less intelligent. (There's no possibility that he would take offense at that, right?)

To be fair, perhaps he somehow missed the fact that, in our society, high intelligence is generally regarded as a positive attribute and low intelligence is generally regarded as a negative - perhaps he was brought up in an exceptional household that took no notice of intelligence, or viewed it as a negative. Perhaps he believes that comments about ethnicity and height, something that has a known genetic basis and that (at most) few would regard as directly correlated to genetic superiority, is truly analogous to comments about race and intelligence, despite the long history of overt racists arguing that the allegedly lesser intelligence and intellectual capacity various ethnic or racial groups demonstrates their "inferiority".

The Danger of Buyouts

Matt Miller suggests that schools will benefit from a bailout that provides them with funds to buy out the contracts of teachers who are no longer effective. He notes, quite reasonably, that teachers' contracts protect senior teachers against layoffs, and that schools could benefit from an approach that encourages underperforming senior teachers, many of whom will also be among the highest paid teachers in a district, to retire. He suggests that this approach could also save school districts in future pension obligations.

What's the problem? You can't simply single out underperforming teachers for such a buyout. You have to offer it to everybody who is similarly situated. By the time you offer an incentive that will entice the lowest performers to retire early, you've likely sweetened the pot to the point that many of the better performing teachers will jump at the offer.

A number of years ago I was living in a city that, following a change of administration, decided it wanted its attorney to retire. It put together a very generous package and, after the deal was signed, found out it was obligated to make the same offer to any number of similarly situated senior employees. There was a stampede to the doors. But even when the offer is less generous, similar results can occur. I recall a program implemented by a county court to encourage some of its more expensive employees to retire. A valuable employee retired and, under the terms of the retirement package, agreed that he was ineligible to be rehired by the county for a number of years. The county ended up hiring him back as a consultant at a significantly higher rate of compensation. Perhaps on the whole the court saved money, but you can see where this type of offer can lead.

Simply put, a teacher who is competent and motivated may see the grant of a year (or more) of salary, and perhaps a few years of credit toward her pension, as a great opportunity to pursue a new opportunity. A teacher who has no other viable prospects may find the offer tempting, but could easily decide that certain employment and a larger pension significantly outweigh the short-term benefit of the early retirement package.

Miller closes by suggesting that if Randi Weingarten won't get on board with his ideas, she's not a visionary and "we'll need a leader respected by all sides to champion and broker this breakthrough." Um... I suggest he take a few steps back and consider the full potential consequences of his vision, such that we're sure that his proposed cure won't be worse than the disease.

"In Touch" is One Thing....

Kathleen Parker reminds us,

President Obama has made clear his desire to nominate justices who are in touch with "ordinary Americans."

Then complains,

But the president adheres to the ordinary-people principle, and so the question must be asked: Does Kagan meet the standard? She may have other qualifications, including her willingness at Harvard to invite conservative scholars to her faculty. But a New York City girl who attended a prep school, Ivy League colleges and law school -- who once barred military recruiters from Harvard's recruitment office and was an adviser to Goldman Sachs -- can't be characterized as anything close to mainstream America.

Talk about a giant leap. No, Kathleen, it is not necessary to apply the, "Which Presidential candidate would you rather have a beer with" test to the Supreme Court... That would be a bad idea, and it's not what anybody could realistically infer from the concept of being "in touch" with ordinary people.

The type of personality that is drawn not only to a career in law, but a career path that is at all likely to lead to the Supreme Court, is not the type of personality that you're likely to find on a neighboring bar stool at your favorite watering hole. Parker knows this. But rather than addressing the reality of the situation, she chooses to be part of a noise machine. In comparison to recent appointees, based upon their paper records and my impression of their personalities, I would venture that both Kagan and Sotomayor are a lot more approachable and a lot more attuned to the lives of everyday folk than are Alito and Roberts. In a sense, sure, that's damning them with faint praise, but help me out here, Ms. Parker - where can I find somebody who has a strong law school record, made law review, clerked for a federal appellate judge, clerked for a Supreme Court Justice, entered academia, became a federal judge, scholar, or (for goodness sake) Solicitor General, and did so walking hand in hand with the common folk?

Way back when I was in law school, I recall a professor speaking somewhat longingly of the job of Solicitor General. He saw it as the closest thing to being on the Supreme Court - an intensely academic job focused on Supreme Court practice. Despite the potshots others have taken at Kagan's intellectual record, Eugene Volokh (who would certainly prefer others for the job) finds it solid. Which is about what you would expect from a Supreme Court nominee, but... no, not something you find from your pal at the neighborhood bar. "Didja catch that sports game?" "Oh, man, I wanted to see it, but I had to revise my law review article."

"Consumption Taxes" and Cheating the Tax Man

In response to an increase in taxes, the Globe and Mail has published an article, quite literally, offering Tips for cheating the harmonized sales taxman. Some of the ideas are actually about avoiding taxes, not evading or "cheating", but assuming provincial tax laws are similar to those of U.S. states, some of the ideas would cross the line into the illegal.

A couple of years ago I commented on how people, especially the wealthy, could cheat a "FairTax" system. But needless to say, I'm not The Globe and Mail and "FairTax" is an idiotic fantasy. It's interesting to see how the concept of "cheating" high sales taxes on goods and services can become mainstream.

"Right to Remain... What?"

The present controversy over Miranda rights reminds me how impossible it is for people overseas to see U.S.-made television shows and movies, such that they're not imprinted with their "rights", even though they live in nations that aren't governed by our Supreme Court's rulings. In fact, they're so insulated from the concept of Miranda rights, we can count on their ignorance even if they have lived in the U.S.

Also, it's good to be reassured that although we train our own soldiers and agents to resist harsh treatment and torture in contexts where nobody expects Miranda-like rights to be offered, our nation's enemies completely neglect the subject. I mean, if you had somebody arguing against reading somebody his Miranda rights because he was brimming with important information that he would confess but for being informed of those rights, you would not find them arguing that they resist interrogation to the point of being repeatedly waterboarded ad which time they'll thank you for freeing them to confess. That is, unless either were deeply stupid or they believed you to be deeply stupid (or if it were the continuation of some kind of contest.)

We can accept the Mark Thiessen argument that foreign-trained terrorists are more resistant to torture, or whatever he chooses to call it, than our own troops - that they won't give up until we exhaust them with physical interrogation techniques, at which time they'll thank us for freeing them to confess. Or we can accept the Thiessen argument that the very same people would be founts of valuable intelligence as long as we don't read them their Miranda rights.

I've also seen a number of people who should know better suggest that if you don't read a suspect his Miranda rights you can't convict him. There also seems to be a widely held belief that if you don't read a suspect his Miranda rights, nothing he says can be used in court against anybody. No, Miranda rights relate only to custodial interrogation and self-incrimination. If you don't want to interrogate a suspect, or if you don't care about using the suspect's statements against him in court, there's no need to read the suspect his rights - and failure to do so is anything but a "get out of jail free" card.

Do suspects confess after being instructed of their Miranda rights? Absolutely. And let's be honest, as I was suggesting in my opening paragraph, Miranda is anything but a state secret. Most elementary school kids can recite the Miranda warnings from memory, and if not at least get the gist of them. And that effect carries over to other nations where U.S. crime dramas are popular... which is to say, pretty much all of them. The idea that a "trained" terrorist won't have been instructed, "If you're caught, you don't have to talk," or "If you're caught, ask for a lawyer", and will be completely ignorant of his Miranda rights seems silly.

The police are very good at getting self-incriminating information out of people after reading them their Miranda rights. Back when I practiced criminal defense, I can't even begin to tell you how many police reports I read where the suspect confessed after being read his Miranda rights, or even after initialing each enumerated right and then signing and dating an "advice of rights" form - it wasn't long before I simply lost count. I had to disappoint any number of suspects who thought that the failure of the police to read them their rights would automatically defeat the prosecution, but not a one of them claimed to be unaware of what the Miranda rights include. Including the foreign nationals.

From a defense perspective, trying to argue that a post-Miranda confession is involuntary is quite difficult. Judges and juries are both resistant to the idea that a suspect, having been formally instructed of his rights, would then decline to exercise those rights or that their statements weren't voluntarily made. For Miranda cases, the "bad facts make bad law" phenomenon has led to the narrowing of the effects of the Miranda ruling and also to the creation and expansion of various exceptions - because nobody, not even a life-tenured federal judge, wants to let a confessed murderer out of prison "on a technicality".

The police are also quite good, and I would assume that the FBI is better, at determining when it is necessary to read a suspect his Miranda rights - the point at which an interview becomes custodial, or the point at which preliminary inquiries that may elicit self-incriminating information ("How much have you had to drink tonight?") reach a point that Miranda rights should be given. I don't think it's unreasonable for A.G. Holder to be asking Congress to clarify the parameters of the public safety exception to Miranda, but the question will ultimately be resolved by the courts.

The long and the short of it? I very much doubt that the police professionals involved in capturing and interrogating suspected terrorists are jeopardizing their ability to collect evidence or to build their cases by reading suspects their Miranda rights. So far, as the facts have come out, it appears that law enforcement officers have done an admirable job of eliciting information from the suspected terrorists they've captured. It's childish - and par for the course, unfortunately - for right-wing propagandists to attack the Obama Administration and its officials for following the law with no sign that their doing so has jeopardized any investigations or anybody's safety.

Lieberman Has Never Cared About the Constitution

But he never shies away from the opportunity to be an opportunist. In that sense, I guess it makes sense that he's teaming up with Scott Brown who, more by accident than design, was handed the opportunity of a lifetime through the series of events leading up to his election, and whose sole present goal in life appears to be achieving reelection.

Just remember, when you hear Lieberman spouting populist nonsense about how we must shred one aspect of the constitution or another, he has a long history of contempt toward the Bill of Rights.

How to explain Lieberman? I'll refer you back to "Another Round of 'Stupid vs. Mendacious'".

Exit Through The Gift Shop, Featuring Banksy

Fake but fun? The movie, "Exit Through The Gift Shop" is getting some attention.

Allegedly, the doc was made by Banksy who – this too is certain – is an actual street artist of real renown and carefully cultivated anonymity. We glimpse him, or perhaps someone purporting to be him, in the opening frames. A hooded figure shot in low light and speaking with a rough English accent, he explains the film’s subject: “It’s about a guy who tried to make a documentary about me, but he’s a lot more interesting than me.”

I have a suspicion that, if people found out who "Banksy" really is, they would be surprised by what a brazen, commercial exploit his "art" is, from start to finish. Not subversive, but corporate and motivated by profit from day one: making bank(sy).

Is "The Breast Cancer Society" a Worthy Charity

I received a solicitation phone call from "The Breast Cancer Society", or more correctly from a phone bank they use to solicit donations, presumably because I have donated to other breast cancer charities in the past year. The phone bank had a decent script, concise and designed to inspire emotion with a dose of guilt at the end ("can the children count on you"), although I have to assume that the last line got crossed with the final appeal for another of the phone bank's charities.

I am always skeptical of donating money to charities through a phone bank, because the costs of those fundraising programs are so high. The phone bank takes a significant cut, from what I've heard between 40% and 90%. They also want a decision "now, now, now", diminishing your opportunity to figure out if they're a legitimate charity or a sound-alike charity - a charity that has picked a name that sounds a lot like a bona fide charity, but which has neither the integrity nor the track record of the charity from which their name is derived.

While on the phone I tried looking up "The Breast Cancer Society" in Charity Navigator. No dice. So I told the woman on the phone to call back later after I had a chance to investigate "The Breast Cancer Society" and figure out why it wasn't on Charity Navigator.

The answer to that last question is pretty simple. It's too new. The Breast Cancer Society doesn't have the necessary history of Form 990 filings with the IRS to support an entry in Charity Navigator. But wait a second... There's the Cancer Fund of America, run by the same people, which has a poor overall rating. The BBB has this to say:

Cancer Fund of America solicits donations across the U. S., including locally, through telemarketers, direct mail and online. The BBB found that more than 99 percent of all cash donations to the organization pay professional fundraising costs, salaries for charity officials, consultant fees and other expenses related to the charity’s operations.

* * *

Cancer Fund of America and a related support group, Cancer Fund of America Support Services, Inc., reported they raised slightly more than $17 million in 2007, the most recent year in which public information is available. Of that total, Cancer Fund of America reported it donated $54,000 in cash to unrelated groups or individuals – or about 3/10 of 1 percent. Of that $54,000, however, $50,000 went to a court directed cancer charity as part of a settlement with the Georgia Governor’s Office of Consumer Affairs. The state alleged the charity gave out deceptive and misleading solicitations to consumers.

The salaries and benefit packages for charity president James T. Reynolds, Sr., two sons and a son-in-law totaled more than $537,000 for the same period.

The charity responded to the BBB that, having raised $17 million in cash donations and $5.8 million in non-cash donations in 2007, it should get credit for the "$3.3 million in non-cash donations the charity gave to individuals and other organizations in 2007."

However, several of the organizations listed in the charity’s federal report appear to have little direct connection with cancer causes.

A spokesperson for Angelic Ministries, an organization that works with the poor in the Knoxville region, said it receives “oodles” of items from Cancer Fund of America. Cancer Fund of America reported it gave about $317,000 in donated items to the ministry in 2007, and the spokesperson said much of that was over-the-counter pain and cold medications. She said about half the drug items were expired, but usually only by a few months, and the drugs remained effective.

Cancer Fund of America also reported giving nearly $230,000 in donated items to Trinity Rescue Mission of Jacksonville, Fla. A spokesperson there said that organization deals largely with the homeless and not specifically with cancer patients. She said she had no record of ever receiving any donations from Cancer Fund of America, although she said the items could have come through another organization. Reynolds failed to respond when asked specifically about the rescue mission donation.

The article provides further detail on the organization's management, expenses, and activities. In terms of related organizations:

Also, Federal records show Cancer Fund of America Support Services, Inc. received slightly less than $8.2 million in cash donations in 2007. That organization’s only outgoing grant was for $750,000 – to Cancer Fund of America. The report says its fundraising expenses totaled about $6.1 million. James T. Reynolds Jr., a son of James T. Reynolds Sr., is listed as president of the support group.

Rose Perkins, who formerly worked with her husband, Reynolds Sr., at Cancer Fund of America, left that organization several years ago and currently heads Children’s Cancer Fund of America of Powell, Tenn. Records show that Children’s Cancer Fund of America received about $5.4 million in cash donations and $2.2 million in non-cash donations in 2007. She reported direct cash to patients at about $382,000, or about 7 cents of every $1.00 raised. Fundraising expenses were reported at nearly $6.3 million, with $3.4 million going to Associated Community Services.

Perhaps that's the organization whose script was crossed with The Breast Cancer Society's, as that would explain why I was asked if the children could count on me.

Recent news accounts say that James T. Reynolds Jr. recently became head of yet another cancer organization, this one in Mesa, Ariz., and called The Breast Cancer Society. That charity has not operated long enough to file a federal report with the IRS.

Charity Navigator highlights this family of charities on its list of "10 Non-Profits That Make Ebenezer Proud"

Cancer Fund of America Support Services & Children's Cancer Fund of America

Both of these organizations are affiliated with the 0-star Cancer Fund of America. All three are run by one family - James Reynolds Sr., James Reynolds Jr. (son of James Reynolds Sr.), Joshua Loveless (son-in-law to James Reynolds Sr.), Claudette Perkins (sister-in-law to James Reynolds Sr. and sister to Rose Perkins) and Michael Reynolds (son of James Reynolds Sr.). According to their most recently filed Forms 990, both the Cancer Fund of America Support Services and the Children's Cancer Fund of America spent at least 85% of their budgets on fundraising and just 11% on programs and services.

Are you surprised that, after I instructed them that I would investigate them before making a donation, I have not heard back?

Update:

Fame in the Age of the Internet

With perhaps a few more inquiries, "Aren't you the person who...", over the course of your life, your fifteen minutes of fame will come and go, just as it did in the past.

But your fifteen minutes of infamy will dog your heels for the rest of your life.

Handling Sensitive Topics at Law School

The Volokh Conspirators are apparently being approached by worried Harvard law students. Eugene Volokh has passed along an email, without comment, the following:

I wish I were a tenured professor, and was able to say reasonable and true things freely, like the idea that things that haven’t been proven yet remain unproven.

Instead, I’m an incoming student at Harvard Law next year. And even though I’m neither interested in nor well-informed about the IQ-race correlation debate, I am scared to even mention my opinion on the subject to my friends or roommates, or ask them about it. I have no idea what I would say if someone asked me if I could categorically rule out the possibility that there was a correlation between race and IQ... but the funny thing is, I have no idea what anyone would say. The reasonable thing to say has been tabooed.

The law student just said, "I’m neither interested in nor well-informed about the IQ-race correlation debate", so it would seem to me that the reasonable thing to say would be, "I'm not interested in having this conversation."

It would also be quite reasonable to consider why somebody would present you with that particular challenge. I honestly cannot recall somebody, out of the blue, asking me a similar question during my entire three years of law school. If the person is trying to stir up trouble, you don't have to worry about formulating a sensitive - or even a polite - response. If you're not sure what's motivating the person to ask you such a question, it would be reasonable to respond, "What's your game? Are you being deliberately provocative?"

The answer that the author apparently considers to be both "reasonable" and "taboo" is, "I don't know." Apparently he believes that if he answers, "I'm not aware of any genetic link between race and intelligence, and in the absence of evidence I see no basis to assume that such a link exists," he'll be trapped by the snarky retort, "Ahah! You refuse to rule out such a link!" But then, if he believes somebody is trying to trap him into saying "I don't know," so that they can accuse him of being a racist, he should refer to the prior paragraph.

If he believes that the question is being asked in good faith, or if he feels compelled to respond to a snark, why not point out that the question is inherently flawed? Has he not considered the response, "I'll answer your question as soon as you tell me how to prove a negative"? Or, "Can you categorically rule out the possibility that God exists"? Or, "I'm not going to let you shift your burden of proof - if you believe that there is a correlation between race and intelligence, make your case"? (If the interrogator denies that such a link exists, we're back to, "Then what's your game?" If they assert that such a link exists but can't offer any evidence, it's reasonable to say, "I'm sure you can find somebody who is interested in having this debate with you, but I'm not.")

Meanwhile, Oren Kerr offers advice to a law student who is worried about how to respond "if someone asked me if I could categorically rule out the possibility that Jews tend to be greedy moneylenders". There is consistency here - both supposedly worried law students imagine that they'll be left dumbstruck by an obnoxious interrogator who wants them to prove a negative. No, really, look at the phrasing - the odds are overwhelming that we're dealing with the same individual:

But the funny thing is, I have no idea what anyone would say. The reasonable thing to say has been tabooed.

That's the same closing used in the email to Professor Volokh. (Note: Kerr may have rewritten the first email to illustrate some of the same points I'm making, clever man that he is, in which case my comments about his response are implied by his response.)

Now, I have to say, had somebody asked me such a question during law school, I wouldn't have been particularly worried about being polite, but Professor Volokh suggests approaching the query with "judgment and tact". How about, "If you have any sense of the history of anti-Semitism, you have to know that's an offensive question. If your inquiry is sincere, why did you phrase it in such an inflammatory manner?"

The supposed law student writes, "I am scared to even mention my opinion on the subject to my friends or roommates, or ask them about it" - he imagines himself, out of the blue, approaching his friends and saying, "You know what? I have absolutely no idea whether the stereotypes about Jews being greedy moneylenders are true"? He pictures himself asking his friends, "Do you think Jews are greedy moneylenders"? How - and why - does he imagine himself bringing this topic into a conversation?

Further, if the supposed incoming law student fears being inextricably trapped by the inquiry, "Can you categorically rule out the possibility that Jews tend to be greedy moneylenders", I pity his future clients. Kerr gives the person much more attention than the query deserves, explaining,

some arguments have to be approached with great caution not because of their logic but because of their history.... If you make the argument without any caveats, those listeners [familiar with the history] may wonder if (or even assume that) you share the racist beliefs of the people who made that same argument in the past.

Seriously? Because if our law student in fact has no experience that would suggest that "Jews tend to be greedy moneylenders", rather than giving a dissertation about his awareness of historic stereotypes before equivocating it seems that it would be much easier to respond as described above, or simply to answer, "That has not been my experience". It's difficult to imagine a context in which the interrogator's retort, "Ahah! You didn't disprove it!" would do anything more than make the interrogator look bad. "Disprove what? Your anti-Semitic assumptions?"

Assuming Genetic Racial Inferiority in the Absence of Evidence

Maybe I'm not giving Ann Althouse a fair shake, being as I don't regularly read her blog and when I follow a link it's usually to some of her more absurd proclamations (like "OMG, that feminist has boobies"), but it seems like every time I stumble across one of her posts... calling it "inane" would be to lavish it with undue praise. The latest case in point, her defense of the statement, "I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent".

Althouse's argument is, in effect, an argument in the alternative. First, "I don't see how that comment can be interpreted to mean that, as a group, African Americans are genetically predisposed to be less intelligent than other racial groups, maybe it means the opposite," and second, "Even if the speaker did mean that African Americans are genetically predisposed to be less intelligent, maybe she meant it as a compliment." The first defense is inconsistent with the plain language of the email under discussion; the second defense is, well, pathetic.

Althouse argues that it's unfair to characterize a refusal to rule out the possibility that African Americans, "on average, [are] genetically predisposed to be less intelligent" as suggesting that "black people are genetically inferior to white people" because the speaker was not saying that was the case, instead simply refusing to rule out the possibility. Althouse glosses over the fact that the speaker was defending her prior position, was unable to present any evidence to support her genetic theories, and instead engaged in a cheap rhetorical trick - reversing the burden of proof - to in effect argue that she was entitled to her beliefs until somebody proved them wrong. ("I would just like some scientific data to disprove the genetic position, and it is often hard given difficult to quantify cultural aspects.")

Althouse argues that we don't have the full context of the conversation. That's true. The person who leaked the email, whose identity as far as I know remains unknown, provided only the one email and we have to infer what else might have been said. As I understand the back story, the person who leaked this email got into some sort of dispute with the speaker and, six months after-the-fact, decided to try to damage her career - pretty deplorable. But Althouse's pretense that we can't know what position the speaker was taking - that she could have been "criticized by someone else for ruling out the possibility" that "African Americans are, on average, genetically predisposed to be less intelligent", is a demonstration of either willful or inept misreading of the email.

I don’t think it is that controversial of an opinion to say I think it is at least possible that African Americans are less intelligent on a genetic level, and I didn’t mean to shy away from that opinion at dinner.... I would just like some scientific data to disprove the genetic position, and it is often hard given difficult to quantify cultural aspects.

Althouse follows up with an attack on the law school dean who spoke against the statement, first speculating on where the dean falls on the "nature vs. nurture" debate, then adding:

But consider Minow's other interpretive leap — that to be less intelligent is to be inferior. Why isn't that an even more outrageous statement than what the student [name omitted] said?

Well, let's go back to the statement at issue:

This suggests to me that some part of intelligence is genetic, just like identical twins raised apart tend to have very similar IQs and just like I think my babies will be geniuses and beautiful individuals whether I raise them or give them to an orphanage in Nigeria.

Althouse can read that passage and truly remain confused on the question of whether the speaker believed high intelligence to be a positive attribute and low intelligence a negative?

In what might be a form of anticipatory self-defense, Althouse argues the case that less intelligent people might not be "inferior". First she presents a quote from Brave New World, in which sleeping children are programmed to believe that they should be happy to be "Betas" because they don't have to work as hard as Alphas and are better than Gammas, Deltas and Epsilons... that is, the children are being programmed to accept their situation in life, in what amounts to a caste system.

“They’ll have that repeated forty or fifty times more before they wake; then again on Thursday, and again on Saturday. A hundred and twenty times three times a week for thirty months. After which they go on to a more advanced lesson.”

Althouse argues, "Betas don't think they're inferior! They are less intelligent though." Um... yeah, Ann - they accept their lot in life after their brainwashing sessions are complete. Althouse would probably have been better served by quoting J.K. Rowling's "sorting hat" story from the first Harry Potter book, because at least there it's a conscious wish to be something other than a "Ravenclaw".

Althouse next tries to save herself by quoting conservative satirist P.J. O'Rourke. Like him or hate him, I am not sure that it's possible to see O'Rourke perform without recognizing that he's an intelligent man - and that he knows it. When he writes something like, "I’m sure up at Harvard, over at the New York Times, and inside the White House they think we just envy their smarts," he's not saying it's good to be stupid - he's playing up to his audience with the caricature that "left wing elites" condescend to them and think they're stupid. Having won a Woodrow Wilson Fellowship to attended Johns Hopkins, even if with a non-scientific major, O'Rourke has little room outside of his satire to make fun of Harvard graduates as thinking themselves smart - the distinction from his fellow Johns Hopkins alums would be what?

But more to the point, the issue is not whether O'Rourke thinks of it as being good to be a C student... good, I would have to presume, for other people... With all due respect to O'Rourke's quip,

The Mayflower was full of C students. Their idea was that, given freedom, responsibility, rule of law and some elbow room, the average, the middling, and the mediocre could create the richest, most powerful country ever.

Even if we were to assume O'Rourke to have meant that as an expression of historical fact, by the time of our nation's independence the founding fathers had a very clear sense of a natural aristocracy, with any number of checks and balances imposed in the Constitution to make sure that the nation's "C students" didn't take over. Although she appears to take no offense, herself, I'll assume that Althouse has read enough of the Constitution to understand why, more than two centuries later, assertions that African Americans are inferior to whites might continue to rub many other people the wrong way. Really - Althouse thinks, "Maybe she meant it as a compliment" is a viable defense?

Further, it's again obvious from the comment on its face that the speaker views intelligence as a positive attribute. What other inference would Althouse have us draw from the assertion, "I think my babies will be geniuses and beautiful individuals" - bad is good, up is down, and she hopes that her children will be burdened by beauty and genius?

Then there's the inevitable question, why is Althouse attempting to defend the statement? Even if we assume the first defense to be in good faith, based upon a clumsy or inept reading of the contentious email, why the "It's not bad to be less intelligent" defense? Does she imagine that people offended by the original statement will read her defense and say, "Maybe the speaker thought her statement was a compliment" or "Whether or not there's a genetic component, we shouldn't see the comment as insulting because being less intelligent is a good thing"? Seriously?

Were Althouse to think about the issue of IQ and race, it might occur to her first that the value of the claim that race correlates with intelligence is of minimal benefit, because there is no valid dispute that a randomly selected African American may be more intelligent - even vastly more intelligent - than a randomly selected person of a different race, the Harvard student who authored the email or, dare I suggest, Professor Althouse herself. Second, there's no clear definition of what it means to be African American. Do we apply the "one drop" rule, in which case the assertion becomes that the genetic influence of that one drop is so profound that it impairs the intelligence of the recipient and his descendants for untold generations? If not, why doesn't intelligence more closely associated with skin color - does it need to be explained that African Americans are not uniform in color?

And wow, to assume that the genes for skin color and intelligence are somehow linked? Scientists, ranging from absolute hacks to the sincerely misguided, have spent generations pursuing dead-ends such as phrenology or other "scientific" measures of the human body in order to try to find "objective" evidence of the biological superiority or inferiority of one ethnic group or another. Need I post a Nazi illustration of the "Jewish Nose" for it to click where this brand of scientific racism can lead? Althouse finds it in some way defensible for somebody who has no evidence of her own to offer to resurrect those discarded notions while rejecting their attempt at objective measure, and simply arguing that the key correlate to genetically superior intellect is African skin pigmentation (but not the genes that lead to dark skin in other ethnic groups)?

There's an intrinsic element of racism in the assumption, based upon "personal experience", that a particular ethnic group is "less intelligent" than another - and, as she waits for her assumptions to be disproved by others, that's all the author of the email has to offer. It's a natural human tendency, but it's not even close to scientific, to see somebody from our own ethnic group struggle with a problem and attribute their struggle to something extrinsic - education level, their upbringing, etc. - while attributing the same struggle by an ethnic minority to something intrinsic - their genes. People have to train themselves, or be trained, to consider such factors as sample size and their own biases. The author of the email gives no indication of how intelligence should be measured or what measure she has applied, beyond her own assumptions, in her determination that it's possible for African Americans, on the whole, to be genetically programmed to be less intelligent.

Further, recent scientific research indicates that aspects of intelligence, even of the structure of the brain, that many have believed to be innate or fixed are in fact far more flexible than we've previously thought. Meanwhile we have identified genes that govern hair color, eye color, skin color... and there's no indication that any of them correlate to intelligence - let alone define "race".

It's interesting that although Althouse finds it horrible that people have assumed, based upon the plain language of the controversial email, that its author believes that African Americans are, on the whole, less intelligent, she plays a game with the statement of the dean who responded to the statement,

It's possible — possible! — that Minow thinks that everyone less intelligent than her is inferior, but for reasons having only to do with nurture. This must be an interesting subject for her, because she's the daughter of a highly successful man, Newton Minow (the FCC chairman who called TV a "vast wasteland"). Does she trace her high intelligence only to environmental factors?

It's also possible - possible! - that Dean Minow believes that there is a genetic component to intelligence, but not one that correlates with race. It's also possible that she recognizes the huge amount of interracial mixing in the African American community and, particularly in light of the aforementioned "one drop rule", finds the notion of a genetically based "African American" race to be absurd.

Althouse links with approval to "neoneocon" who writes,

As for me, I don’t happen to think that African Americans are genetically inferior in this arena. But I do think that banning speculation and/or research into the question is both intellectually dishonest and an affront to liberty.

We can start by noting that unlike Althouse, neoneocon had no trouble recognizing the remarks for what they were - an assertion of racial inferiority. But wait a second. Scientists are researching genes as they relate to physical appearance. Scientists are also researching genes that may be linked to intelligence, however defined. There's nothing scientific about assuming something to be the case in the absence of evidence. When you say something along the lines of, "I don't have any evidence to support my position, but until you show me proof to the contrary I'm absolutely not going to rule out the possibility that African Americans are, on the whole, genetically programmed to be less intelligent," the problem is not that you're suggesting that an answer could be reached through research.

Althouse is correct in this statement,

There is a difference between "suggesting" something is true and conceding that you don't have a basis for excluding the possibility that something is true.

For example, there is a difference between saying "Professor Althouse is an idiot" and saying "I don't have a basis for excluding the possibility that Professor Althouse is an idiot." Yet I suspect that if Professor Althouse were to hear that second statement from her peers, or to overhear it in a conversation between students, she would take offense. (I don't want to be presumptuous - I'll leave open the possibility that she would shrug and think to herself something along the lines of, "Maybe they only know me from my 'BoobGate' posts.")