Friday, July 31, 2009

It's almost immoral what they are doing

So says Speaker Nancy Pelosi about private insurance companies. What is immoral is their desire not to be forced out of business by a monopsonistic competitor who will - by taxpayer subsidy, market power or legal mandate - force prices to a level that drives them out of business.

That's what makes it a gaffe. An unintended statement of what she truly believes.

Low prices are, of course, generally a good thing, but not when achieved in this way. In the long run, they have to go back up or quality and innovation must suffer. This is why monopsony is considered a market imperfection.

It might be possible to design a public option in which this is not possible - or at least less likely - but I haven't seen any serious proposal to do that.

Which leads us to a more foundational question. Why must there be a public option? It is not required for a system of universal health care. The Netherlands and Switzerland don't have one (although private insurers are heavily - really overly - regulated).

There are three arguments. The first is that insurers make more money, the more they decline claims. One of the aspects of private insurance that has gotten little attention is that most people covered by their employers are not, for the most part, obtaining insurance from what they think of as the insurance company. The plan is self insured (possibly with stop loss coverage in case the whole company gets typhoid). In other words, the employer pays the claims and the "insurer" is compensated with a fee. While there could be incentives to hold down costs, the basic job of the "insurer" is to satisfy the employer. Keeping costs down is part of that, but so is keeping employees reasonably happy. The incentive structure for a public plan will be the same.

This brings us to the second argument. This one says that "profit" is a cost. It drives up the price and less profit is good. Certainly a consumer is uninterested in her seller's profit. She wants the best care at the lowest price. But we generally regard the profit motive as a spur to folks to figure out how to do that. If human beings didn't respond to incentives, communism would not have been a false God.

So we come to the third argument, candidly stated by Tammy Baldwin earlier this week. The public option is a way station to single payer. It is "how we get there."

The Speaker did not say that opposition to that would be almost immoral, although I wonder if she thinks so? Single payer systems tend to elevate at least the idea of equality of care over all other considerations (even though, as far as I know, almost no single payer system has achieved it - even in Canada, there is always Buffalo). One is willing to give up a certain amount of quality and innovation for an apparent (if not an actual) equality. That is very much a moral crusade, even if it is a misdirected one.

Tuesday, July 28, 2009

Dancing into the future

I just caught a bit of Charlie Sykes discussing - with my wife - the viral video in which a wedding party dances up the aisle to Chris Brown's "Forever." Charlie seemed surprised that she liked it and expressed some certainty that I wouldn't want to do it. I'm not so sure. I certainly wouldn't have somersaulted. In any event, I am skeptical that I would have done it well.

Some commenters thought the entrance inappropriate - particularly if one views marriage as a sacrament.

Not so.

If a sacrament is a sign or manifestation of God's love and grace in the world, then it seems to me that joy is an appropriate response. The end of the video - with the bride dancing into her future - was one of the more joyful things I've seen lately.

While I suppose that one could object to the secular nature of the music, a lot of wedding marches express no religious sentiment and the objection presupposes a duality that is decidedly non-Catholic.

On the other hand, I suspect that most wedding parties will do it poorly. While not all of the members of this party could dance, the surprise and aura (if not the fact) of spontaneity absolved them. That won't happen if this becomes a not unusual thing.

Monday, July 27, 2009

Why don't you know who I am?

I wasn't there when the Cambridge police arrested Henry Louis Gates. Based on the police report, it seems that Gates behaved boorishly. Gates' own version of the event,suggesting that he was arrested because he asked for the officer's name and badge number, seems implausible. Whether he deserved to be arrested is another matter, but I am not shocked that he was. It is not a crime to be obnoxious, but there is a point past which putting it on display might be. In any event, it seems that Gates was arrested because he was a jerk, not because he was black.

Apart from that, the President's comments at his press conference were stone stupid as was his insistence that he is "surprised" that anyone would find his remarks troubling. Using this incident as a point from which to give a lecture on racial profiling is tantamount to making a judgment about an event with which he was not familiar and, to the extent that whatever happened in Cambridge was not racial profiling (and it seems that it was not), his point is weakened.

I was interested to see an op-ed in the Journal Sentinel Friday by Harvard sociology professor Lawrence Bobo. I took Larry Bobo's deposition years ago in a desegregation case. My recollection is that he was a pleasant young fellow who added little to the case. I have no sense of what he has done since.

But I do know something about Harvard and the sense of superiority that it instills in its students and faculty. It doesn't surprise me a bit that a Harvard prof would be appalled that a functionary would question him. Bobo's column inadvertently demonstrates that when he says that Gates is an influential scholar and "one of the most readily recognized black men in America."

Please. Gates is a well known scholar among people who know scholars. This puts his name recognition at a fraction of 1% and his "recognizability" at little more than the average guy. For better or worse, Michael Jordan, Denzel Washington, Kobe Bryant, Al Sharpton, Samuel Jackson and a host of others are readily recognizable black men. Skip Gates is not. In fact, there are no Harvard professors who are among the most readily recognizable men or women in America.

But Larry Bobo thinks so. And that says a lot about the attitude that got Gates into trouble. Gates thinks that the cop ought to have said "I’m sorry, sir, good luck. Loved your PBS series — check with you later!" Apologize and compliment.


Locally, James Causey writes about "the drill," i.e., knowing when to "keep your trap shut" when interacting with the police. With respect to the drill, he says "[m]any black men reading this column are now nodding their heads in recognition, and many whites are thinking, "Huh?"

In this, Causey reminds me a little of an Eddie Murphy SNL bit where he goes "undercover" as a white man and "learns" that white people don't have to pay for anything. Believe me, James, we know "the drill."

There's a reason for it. Police officers put their lives on the line everyday. We may know that we pose no threat to them, but they don't. They are all aware of seemingly innocuous situations that turned lethal in a matter of seconds. This doesn't mean you bow and scrape. It does mean that you don't behave in a threatening and hostile manner. It does mean that you don't hound them for doing their job. It may be that Skip Gates should not have been arrested for acting like a fool, but he should have known that is what he was doing.

Missing so many points on health care

I can't say that President Obama knows little about health care and misunderstands the free market, but, based on his performance at last week's press conference, both seem likely. The notion that there is no competition unless there is a government option is absurd. Although it is not really a free market, there is competition in the current system (whether we like the market equilibrium is another matter). What a monopsonistic public option is likely to do is destroy competition since it will tend to set prices in a way that will drive out private insurers and, as a result, stifle supply side innovation and quality improvements. That's elementary economics.

It is probably true that care decisions are driven by reimbursement schedules but that is a function, not of profit, but of third party payment. Any system of third party payment is likely to develop a set of rules about what can or cannot be paid for. In fact, Obama's central selling point is that he thinks the government can set up a centralized reimbursement schedule better than the ones that have emerged from competition between insurers and plan administrators.

This seems unlikely and, if it is possible, it's not because the government doesn't have to make a profit. Public choice theory tells us that the government is just as self interested as private actors.

Once again, Obama treats profit as economic rent or as a "cost" that must be wrung from the system. The notion that it might serve as an incentive for the development of new drugs, technologies, modes of treatment, etc., does not seem to have occurred to him.

That point is central to his failure to appreciate what is good about our current system. Poll after poll shows that an overwhelming majority likes their health care. They may want to pay less for it. They may want to feel more secure about it. But they like it and they should. The best health care in the world is available in the US. The oft cited WHO "ranking" and the reliance on aggregate statistics like life expectancy don't prove otherwise. The WHO ranking is weighted heavily toward state provided or guaranteed health care and aggregate stats on general well being reflect all sorts of things other than health care. Statistics that focus on what happens to people that actually get sick tend to support the notion that the US offers the best care. Many of the drugs and technologies that are available elsewhere were developed here where firms had incentives to develop them. Blowing up that system to address an access problem for a relatively small percentage of the population and to reduce costs seems counterintuitive.

Reform is certainly warranted but, once again, Obama shows a commitment to centralized solutions. A recent article in the Weekly Standard shows the difficulty in developing a nationalized system of health care records in which a computer would decide whether you need a stent or a bypass. Perhaps the federal government has the capacity to decide treatment regimes (as Obama puts it, whether to use the red pill or the blue pill) in a way that won't harm care and innovation. But I find it hard to believe.

In the end, its hard to see anything on offer from the President but an embarassingly caricatured view of the private sector (doctors will take out tonsils of someone who just has an allergy to make more money).

And he's not the only one. Paul Krugman won a Nobel Prize for Economics by doing something, but the studiously avoids any economic erudition in his New York Times column. On Saturday, he told the nation that insurance doesn't work. That's quite a surprise given the billions of dollars that people willingly pay not only for health insurance but for life, auto, liability, business interruption, property, etc. insurance.

The reason seems to be that insurance companies would prefer not to pay claims. The government, he implies, wouldn't mind at all. But we know that's not true (and we'd go bankrupt if it were). The difference is that insurance companies have to pay what they promised to pay. This is why they engage in what Krugman believes is the "socially harmful" business of claims administration. Insurers who stiff their policyholders tend to lose customers.

But, in a single payer system, the government can deny whatever and whenever it wants. The only solution is political and we see how well that has worked with the IRS, DMV and other bastions of customer service in the public sector.

Thursday, July 23, 2009

Statement of Policy

I have been retained by the plaintiffs in a case filed today captioned Appling v. Doyle. I will not comment on or accept comments regarding the case on this blog. I am representing clients in the case - it is their litigation and not mine - and that affects what I can and cannot say on the matter.

Wednesday, July 22, 2009

Coulee Catholic: Of loopholes and legislating

Wednesday, in a case called Coulee Catholic Schools v. Labor and Industry Review Commission, the Wisconsin Supreme Court held that the "ministerial exception" to state laws prohibiting employment discrimination applied to a teacher in a Catholic grade school. As a result, the teacher's claim against the school for age discrimination must be dismissed.

There a few points worth making. First, it is inaccurate and misleading to call the decision, which was written by Justice Michael Gableman and joined by Justices Prosser, Roggensack and Ziegler, "legislating from the bench." Although this exception is not spelled out in the applicable statute, it is fairly implied from the free exercise clause of the First Amendment and the freedom of conscience clause in Article I, sec. 18 of the Wisconsin Constitution. In fact, courts everywhere recognize it and it is consistent with a general reluctance on the part of courts to examine the internal decision making of religious organizations on matters that implicate the organization's religious mission and precepts. To determine whether the plaintiff in this case was terminated due to her age, an administrative agency or court would have to examine the school's decision in light of its religious mission and that would lead to state evaluation of religious judgments.

Second, it is also unfair to say that the Court found a "loophole" although I can see that there is some poetic justice in the charge for critics of Gableman campaign ads that used that term in connection with certain of the Court's criminal law decisions. People use the term "loophole" in connection with judicial decisions to imply that the principle of decision is either unimportant or not intended for the purpose to which it has been put. Constitutional guarantees, whether in the criminal law or religious freedom context, are never unimportant and often the question of whether they are or are not intended in the way that the Court has used them is precisely the issue before the Court. I may believe that the Court has misinterpreted constitutional protections for criminal defendants, but it is not helpful to think about loopholes. Although the use of that term in campaign literature might communicate my substantive conclusion, it really doesn't help me make it.

Third, it is also wrong to suggest that the Court modified its own precedent or preferred the decisions of courts from other jurisdictions to its own. There was no controlling state Supreme Court precedent on the issue. There was a Court of Appeals decision that is not consistent with the method adopted by the Court but that is hardly binding on the Supreme Court. What the Court did was adopt a "functional analysis" approach to the ministerial exception asking whether the duties of the employee is questions are sufficiently "important or closely linked" to "the fundamental [religious] mission of [the] organization." This test is in distinction to the test used by most courts which is to ask whether the employee's "primary duties" are religious.

Fourth, it would be fair to say that the Court's decision demonstrates at least a favorable nod in the direction of New Federalism, i.e., the idea that state constitutional provisions might be interpreted differently than parallel federal provisions. Although it does not appear that the Court's decision turns on that (and the federal and state provisions at issue here are not identically worded), it is unsurprising. Wisconsin has previously interpreted its freedom of conscience clause more broadly than the United States Supreme Court has interpreted the free exercise clause.

Fifth, Justice Crooks suggestion in dissent that the Court's decision calls into question its prior decision in Jackson v. Benson, upholding the constitutionality of the school choice program seems rather weak. While Coulee Catholic certainly recognizes the idea that religion is suffused throughout the curriculum of at least certain religious schools, Jackson was not based on any assumption to the contrary and the fact that religious schools are religious does not mean that vouchers to students attending those schools violate the Establisment Clause. In fact, the Supreme Court in Zelman v. Simmons-Harris held that it does not. Thus Jackson could be in trouble only if the state Supreme Court were to hold that the state constitution's anti-establishment principle is somehow broader than that of the First Amendment. That has not traditionally been the view of the state Supreme Court.

Justice Crooks seems to think that the idea that the state may not interfere with what is "important or closely linked" to the religious mission of schools calls into question a provision in the school choice program requiring that students be permitted to "opt out" of religious activities (as opposed to subjects that are secular, even if taught in service of the school's religious mission). Perhaps it does. But there is little reason to believe that the outcome in Jackson turned on the opt-out provision. In addition, while Coulee Catholic certainly suggests the rather obvious notion that the state could not compel religious schools to permit students to opt out of religious activities, it is far from clear that such a requirement could not be a condition of state vouchers. That gets us into messy law regarding, among other things, unconstitutional conditions and, suffice it to say, the outcome is hazy.

Sixth, I think that the Court probably got the legal standard right. Even employees of religious organizations whose primary duties are not religious may play a sufficiently important role in their employer's religious mission that decisions regarding their hiring or firing are inextricably tied up with that mission such that the state could not examine these decisions without having to assess religious judgments.

Monday, July 20, 2009

July 20, 1969 ... and 1944


July 20, 1969 was the day of a great human accomplishment. Watching the rebroadcast of bits of Cronkite's newscast, I was struck by how much we have lost the sense of wonder that was felt around the world that day and abandoned the sense of adventure that made it possible.

But I want to talk about a different thing that happened on July 20.

On July 20, 1944, a group of German military officers and civilians made one last attempt to overthrow the Nazi regime. This one came the closest to success. As we all know, the plan was to kill Hitler and then to use a Nazi contingency plan called Operation Valkyrie (Unternehmen Walk├╝re) to remove resistance from the regime with the regime's own resources. Once accomplished, a new government would be established. By a series of three misfortunes, Hitler survived and the plan failed. Had any of these three not occurred, he would have died on that day and perhaps the war would have ended nine months before it did, sparing hundreds of thousands - if not millions - of lives and avoiding the forty year Soviet occupation of Germany.

The plotters were not themselves at great risk of death during the final months of the war and they knew that the regime would soon be eliminated. They understood that the plan was a long shot and failure meant certain death. They knew that the Allies would nevertheless insist on unconditional surrender. When asked whether, in light of this, it was worth it, one of the plotters, Colonel Henning von Tresckow observed that everyday the war continued, 16,000 people were murdered and more soldiers died in battle. They acted to show that someone was willing to stand up for what is right. Shortly before he took his own life to avoid capture, torture and execution, von Tresckow wrote:

God promised Abraham that He would not destroy Sodom if just ten righteous men could be found in the city, and so I hope that for our sake God will not destroy Germany. None of us can bewail his own death; those who consented to join our circle put on the robe of Nessus. A human being's moral integrity begins when he is prepared to sacrifice his life for his convictions.



It took great courage to fly to the moon and we ought to acknowledge the accomplishment. But Neal Armstrong and his colleagues are not the only heroes of 20 July.

Cross posted at Marquette University Law School Faculty Blog

Friday, July 17, 2009

Day 4 Reflections - What we can agree on

Here is something that we can all agree on. Over at PrawfsBlawg, Howard Wasserman of Florida International says that the Sotomayor hearings have been "inane and meaningless." This has been a widely shared reaction among liberal legal academics and lawyers. They are disappointed in (even if they are willing to excuse) her retreat into a caricature of judicial restraint. They are put off (even if they are willing to rationalize) the fog of platitudes and non sequiturs with which she has responded to questions.

Here's an example. Our own Senator Feingold asked her what the test is for incorporating provisions of the Bill of Rights into the 14th amendment:

FEINGOLD: But what would be the general test for incorporation?

SOTOMAYOR: Well...

FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

And so the framework established in those cases may well inform -- as I said, I've hesitant of prejudging and saying they will or won't because that will be what the parties are going to be arguing in the litigation. But it is...

FEINGOLD: Well...

SOTOMAYOR: I'm sorry.

FEINGOLD: No, no. Go ahead.

SOTOMAYOR: No, I was just suggesting that I do recognize that the court's more recent jurisprudence in incorporation with respect to other amendments has taken -- has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court's decision how it looks at a new challenge to a state regulation.


"What is the test" is a question that she could and should answer. Her response is "well, there'll be one."

Here is another response to a Feingold question.

FEINGOLD:

...

So, I'd like to hear your thoughts a bit on whether you see any common themes or important lessons in the Court's decisions in Rasul, Hamdi, Hamdan and Boumediene. What is your general understanding of that line of cases?

SOTOMAYOR: That the Court is doing its task as judges. It's looking, in each of those cases, at what the actions are of either the military, and what Congress has done or not done, and applied constitutional review to those actions.


Her understanding of the cases is that they were cases.

When Sarah Palin responded to questions by playing a game of Scrabble, folks wondered whether she knew what she was talking about. Here we assume that Judge Sotomayor is just taking the traditional evasion of Supreme Court nominees to a new level.

This vitiates the Senate's "advise and consent" function at least if we believe the hearings should be a vehicle through which it exercises that function. There is no way that anyone, based on these hearings, could know whether Judge Sotomayor is of Supreme Court or, for that matter, district court caliber. It's an exaggeration, but only a bit of one, to say that, based only on the hearing, I don't even know if I'd hire her as an associate.

Of course, her answers at the hearings are not all we know. She has a career to point to. She graduated from a top law school and worked as a prosecutor and at an excellent law firm She has functioned as a competent federal judge for many years. Nor is it evident that hearings will lead to better consideration of a nominee. While all of the Senators' questions are not incomprehensible or ill conceived, many are both.

In addition, hearings including interrogation of the nominee have not always been thought to be part of the confirmation process. Justice William O. Douglas, during his hearing in 1939, waited outside the hearing room and sent in a message asking if there were any questions. There weren't.

But this was during a time when people really did seem to believe that judging was a mechanical function and that the measure of a judge was pretty much limited to his objective qualifications. Justice Douglas, ironically, did more than most to put the lie to that.

Given the fondness of the Congress (and the Senate in particular) for its prerogatives, I can imagine a desire for pushback. Professor Wasserman worries that it may take the form of impeachment when someone like Judge Sotomayor rules in a way that is inconsistent with what was said at the hearings. He says that such an effort is unlikely to get out of the House but that it would be an awful development. I agree.

The only real way for the Senate to pushback is to refuse to confirm someone who is insufficiently forthcoming at his or her hearing. But, in our current circumstance of relatively high political and legal division, its hard to imagine that either the Democrats or Republicans would place, depending on your view, institutional privilege or constitutional function, above a vote on the Court.

And that's the real story behind this hearing. Quite apart from the affirmations to just "apply the law" or to embrace the lessons of one's experience and in spite of the characterizations of Judge Sotomayor as a technician or an activist, everyone knows - or thinks they know - how she will vote on a variety of issues. Like Chief Justice Roberts and Justice Alito before her, that is why she was nominated. It is why she will be confirmed. Whether everyone was right will remain to be seen.

Cross posted at Marquette University Faculty Blog

Thursday, July 16, 2009

Day 3 reflections

I think one can conclude that Judge Sotomayor is a competent judge, but not an exceptional one. She has made a couple misstatements of the law but I can't imagine that one could be grilled for three days without a few. What she hasn't done is demonstrate a particularly strong legal mind. Part of the reason may be strategic. Commentators on the left and right are fairly unanimous that she has been playing not to lose, refusing to engage the Senators and offering herself as an exemplar of a caricatured view of judicial restraint. She can't possibly believe the latter since even conservative jurists, scholars and lawyers don't think that the interpretive process is as determined as she has suggested it is.

When you go into a shell, it's hard to impress people. And she hasn't been impressive. But, at the same time, she hasn't shown herself to be unqualified or done anything that would make it tough for Democrats to support her.

As others have noted, it says something that a judge who no one really believes is restraintist feels she must pretend to be one even when the Democrats have 60 votes and the President remains popular. If, as some have said, we are all legal realists, we sure don't want to admit it.

Wednesday, July 15, 2009

Day 2 reflections

Judge Sotomayor will certainly be confirmed. The administration knows it and their hearing strategy is quite clearly to play not to lose.

But one of the more interesting reactions to Day 2 of the hearings is from those on the legal left who are frustrated by Sotomayor's repetition of what they believe to be inaccurate conservative memes about the judicial role. As I blogged earlier this week, these folks - and most legal academics - hate Chief Justice Roberts' umpire analogy. I am not so negative on it, although even I think it is better when modified as I suggested in my post.

But Judge Sotomayor has gone all in on the "nothing but the law" approach to the extent that her testimony is difficult to reconcile with her earlier comments on the indeterminancy of the law and the role of multiple perspectives in judging.

My own view is summed up by Professor Randy Barnett. I do not believe that the law is radically indeterminate, but it is more underdetermined than Judge Sotomayor as witness has allowed. I think that there are ways to deal with undetermined law that are more consistent with the rule of law, separation of powers and democratic legitimacy than others. For example, I am not persuaded to adopt any form of epistemological privilege for the dispossessed.

But others - maybe even Judge Sotomayor (based on her consistent remarks over the years) - may disagree and some of those who do are not happy with her performance. Professor Michael Seidman (a man of the left), blogging at the Federalist Society's website, says it this way:

Speaking only for myself (I guess that's obvious), I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.


H/T: Randy Barnett and Jonathan Adler

Tuesday, July 14, 2009

The law and epistemological privilege

As the Sotomayor hearings proceed, I thought I would turn again to the issues raised by the Judge's oft-cited "wise Latina" speech and similar remarks suggesting that there may be a connection between judicial decision making and the judge's ethnicity and background.

One common approach is to wonder whether this is "racist." Shortly after the nomination was announced, I did a segment with Joy Cardin on Wisconsin Republican Radio. She seemed perplexed that I refused to assume the "racism" position, playing a clip of Tom Tancredo making that charge as if it to tell me that I wasn't a team player.

But I think it is unfair to say that she was making a claim for some form of racial superiority.

Another common approach is to say that she was simply suggesting that judges need to be aware of the biases that arise from their backgrounds so that they can check them and that a panel consisting of persons with different backgrounds will be more likely to, collectively, identify and deal with these biases.

I think that Judge Sotomayor almost certainly believes this and I agree that there is a great deal of truth in it, although I may be less likely to believe that gender or ethnicity implies common histories and assumptions.

The reason that the debate has not - and should not - end with the second approach is that it is - literally - not what she said, both in the La Raza article and on other occasions.

Although it seems reasonable to explore these statements during the hearings, I am not confident that it will be done by the Senators in an incisive way or that Judge Sotomayor will depart from her talking points. What's happened so far this morning confirms that.

I would suggest a third meaning - or group of meanings. Judge Sotomayor may have been saying something like a juridical version of the concept of the epistemological privilege of the poor advanced by liberation theologians. The idea is that the oppressed have a special insight into the nature of and reasons for their oppression. John Yoder, for example, writes that if you see things from below, you will see them as God does.

Of course, Judge Sotomayor was making no theological claim, but she may have been saying that, given her understanding of the nature of our society, the perspective "from below" may be more accurate.

A "thinner" variation of this view might be something like John Hart Ely's argument for a juridical hermeneutic that concerns itself with protection of those who may be less able to protect themselves in the political process.

For a variety of reasons, I disagree with both variations on this view, but I am not unsympathetic with its underlying rationale and don't think it's fair to call it racist. Perhaps it is not at all what Judge Sotomayor had in mind. Still, I think that the extent to which a judge believes and is informed by the assumptions that inform it and its implications for judicial decision making is fair game.

Cross posted at Marquette University Faculty Blog

Monday, July 13, 2009

Shark with really good graphics

My column in WI Interest debuts today. I guess they are calling it Culture Con.

Hearing reflections - Day One

Yesterday, the New York Times took on the analogy between judges and umpires. Almost as if in coordination, a number of Democratic Senators riffed on it.

Of course, judge as umpire is not a perfect analogy. I tend to think it is better expressed in terms of the tale of three umpires. The first says that he calls them as they are. The second says he calls them as he sees them. The third says that they are nothing until he calls them. A judge - at least in a court of last resort - is closer to the second umpire. There are judgment calls but he ought to believe that there is something called a strike zone and that he needs to conform his calls to it rather than his own sense of what is good for the game.

Last week, the Brennan Center - a left wing policy center associated with the NYU Law School - released a study showing that Judge Sotomayor's record is much like that of her Second Circuit colleagues. It's an interesting bit of work. But the most illuminating thing about it is that there are not large differences between any of the judges on the Second Circuit. As the study notes, over 90% of the constitutional decisions in which she participated were unanimous. That won't be true on the Supreme Court where only the most difficult and unsettled cases will be heard. That's why aggregate stats of the kind pushed by the Brennan Center are of limited value.

Am I missing something or was Senator Leahy's summary of what happened to Miguel Estrada (he was nominated during the time that the Republicans controlled the Senate and did not get a hearing) enormously deceptive? Fifteen days after Estrada was nominated, Senator Leahy's colleague from Vermont began to caucus with the Democrats and control of the Senate flipped. What prompts people to make such shoddy arguments?

Sunday, July 12, 2009

Sunday Night Songs

Sometimes I get push back for my Sunday musical selections. Why do I it? Because I can. And because I have found out about things I liked in the oddest places and maybe someone else will too.

Today I turn to my occasional theme of, in my son's words,"quirky chick singers." I am not generally a fan of country music and I don't know that she is particularly quirky, but I do like Miranda Lambert.







And since I am on country music tonight, I am reminded that a few years ago, the Reddess and I went to a couple shops on Rodeo Drive in ball caps and sun glasses. They were really nice to us. I am convinced that they thought we were Reba McEntire and her manservant.

Saturday, July 11, 2009

Politics as Total War

A few years ago, a Department of Defense official called for a boycott of tony law firms that represented - on a pro bono basis - Guantanamo detainees. He was roundly - and I think justly - criticized.

But his view of politics as total war - something to be imported into nonpolitical walks of life - seems to be gaining currency. Earlier this year, One Wisconsin Now organized a phone campaign in which it urged its supporters to call and complain to a large local law firm about one of its young associates' pro bono work. This young woman was apparently donating her time in support of Wisconsin's marriage amendment. The objective was to use a law firm's natural desire to avoid controversy and her economic vulnerability to shut her up and deny a party the legal representation of its choice.

Paul Soglin's WMC Watch and full court press for disclosure of donors to political conduits is concerned, at least in part, with a desire to place pressure on businesses that don't behave politically in much the way that Epic Systems forced a contractor off WMC's board.

Is there something wrong with this? Shouldn't we all vote with our pocketbooks? Isn't the personal political? The problem, it seems to me, is that this type of think absolutizes our political differences and destroys dialogue. We either shut up (withdraw from the battle) or escalate turning debate into, as I said, total war.

This is increasingly the way that our political wars are fought. My law school classmate Robert George recently put it this way in the context of the debate over same sex marriage:

[
An] insidious and brutal way in which many advocates of sexual liberalism deploy cultural power in the cause of redefining marriage is by depicting their opponents as bigots. Across the country, they have pursued a strategy of intimidation against anyone who dares to dissent from their position in a public way. Their appalling treatment of Carrie Prejean is merely one example. Their relentless personal attacks on her were designed to send a clear message to others who aspire to succeed in any area of public life, from beauty pageants to careers in journalism and politics: “If you oppose us, if you have the temerity to express support for the conjugal conception of marriage, we will smear you as a rube and a bigot, make your life hell, and do our best to ruin you.


As I noted at the outset, this isn't a tactic limited to the political left. While I appreciate that this post could be seen as special pleading (I pretty much work with the trifecta of the betes noires to the left), I'd like to think that our common life would be a lot better and our political debates much more productive if we faced each other with a presumption of good faith and respect. I think we'd all be better off if we didn't believe that the proper response to our political opponents was to search and destroy.

H/T Rick Garnett (as to George's comments).

Cross posted at Marquette University Law School Faculty Blog

Thursday, July 09, 2009

Lies about lying

One of the most overused charges in the blogosphere is that someone has "lied." One of my scholarly projects (currently on hold) is a consideration of political lying and when the law might provide a remedy for it. In connection with that, I have given some thought to a taxonomy of political falsehoods.

In common parlance, we say that someone has "lied" when they say something that is untrue and know that it is untrue. This is what gives the charge its sting. It is - or it can be (are there "white lies"?)- immoral to deceive. We generally don't think its immoral to be mistaken.

I was reminded of this yesterday in discussing a collegue's paper on ethical limitations on rhetoric and by a link to Andrew Sullivan's list of Sarah Palin's "lies." I think you can put together a list like this for just about any politician, but my point is not to consider whether Palin is "better" or "worse" than, say, Joe Biden. Some of Sullivan's examples may be examples of a deliberate falsehood. Some of them may not even be false. A large number, it seems to me, are mistakes. Others are one view of contested facts and some are even matters of opinion or of Palin's subjective state of mind.

My point is not to engage in more talk about Sarah Palin (so commenters can forget about trying to provoke a response from me on that). There are many examples of people calling Obama a "liar" when the fact is that he was mistaken or taking a position that, in the writers' view, cannot be supported. My point is one that every lawyer understands. Mistakes are not lies. Opinions other than your own are not lies no matter how silly you think they are.

The hard cases are statements that might be literally true but seem intended to communicate - or have the effect of communicating - something that is false. (Yes, the ad at the heart of the Gableman ethics complaint may be an example of that.) Harder still are cases of wild hyperbole - Bush is a fascist, Obama is a communist. Are these lies or just silly exaggerations?

Tuesday, July 07, 2009

Stereotypes all around

One of the better bloggers on the left is Michael J. Mathias.* In a recent post regarding the Fred Dooley's "tweet" forwarding a racially derogatory joke about the stimulus package, he writes the following:

Racially tinged language and jokes are a staple of right-wing talk radio programming like the Rush Limbaugh and Michael Savage shows, but individual Republicans and conservative interest groups seem to be increasingly bold in distributing racist attacks, especially through e-mail and social media sites.


Let's put aside the standard talking point about "racist" right wing radio. While Savage is a different story (and has become, like Pat Buchanan, something of an ideological hybrid), this is an old and tired slur. What about all of these bold Republicans and conservatives who are "distributing racist attacks."

It's a huge country and I - or Michael - can probably find multiple examples of just about anything, but he cites four instances other than our local episode. One is a message from an Alaska state e-mail account. Did it come from a "Republican" or conservative?" I don't know and neither does Michael. Another was from a "former College Republican" who was working as an intern for - Michael doesn't say this - a Democrat in the Tennessee legislature. A third was from a person he calls a legislative aide to a Republican but who was actually a career secretary and the fourth was from a guy named Dean Grose who was mayor of Los Alamitos, California - a town of 12,000 people. Is Grose a Republican or conservative? He might be but his biography does not tell us that and the election that he won was nonpartisan.

These jokes are all stupid and in bad taste. They aren't funny. Although the people who tell them may not intend to be making a claim for racial superiority, they can be taken that way and, given our history, they ought not to be told.

But Michael offers pretty weak tea in support of the notion that "conservatives and Republicans" have become "bold" in distributing racist attacks.

As for Fred Dooley, he should be ashamed of himself and apologize (as he has). But I guess I am uncomfortable calling for someone to lose his job. He claims that he was recovering from surgery and associated the stereotypical notions in the joke with the south and not with African Americans. While that isn't the best explanation I've ever heard, this is a guy who has been writing on the internet for a number of years. Shouldn't we judge people by the body of their work rather than one incident?


* I say that Michael is a good blogger, notwithstanding his reference to me as Julaine Appling's "intellectual handmaiden" in 2006. Just so he knows, I never met Julaine Appling until after the November 2006 elections. But he's entitled to poetic license.

A stake through the heart

Yesterday's post on Sarah Palin sort of proved its own point. The idea was not that Sarah Palin will - or even should - become the GOP Presidential candidate, but that she represented something that conservatives want and liberals fear. Call it the Great Female Hope - a woman who would embody the values espoused by social conservatives with the chops to play at the national level.

Palin didn't have the chops - at least not in 2008 - although she was hardly the moron she was portrayed to be. She did poorly in interviews with Charles Gibson and Katie Couric. She delivered a killer convention speech and bested Joe Biden (who has said at least three stupid things for every one from her)in their debate. She was insufficiently informed and did not have a clear economic message. She often drowned questions in evasions (as does Obama and most other politicians) but wasn't as good at making it sound like she had really said something. Whether or not she could change that for a run in 2012 or 2016 is unclear.

But quite apart from the merits of Palin, the vitriol heaped upon her was extraordinary. David Kahane, in a piece today on National Review, put it this way:

And so the word went out, from that time and place: Eviscerate Sarah Palin like one of her field-dressed moose. Turn her life upside down. Attack her politics, her background, her educational history. Attack her family. Make fun of her husband, her children. Unleash the noted gynecologist Andrew Sullivan to prove that Palin’s fifth child was really her grandchild. Hit her with everything we have: Maureen Dowd of the New York Times, taking a beer-run break from her quixotic search for Mr. Right to drip venom on Sister Sarah; post-funny comic David Letterman, to joke about her and her daughters on national television; Katie Couric, the anchor nobody watches, to give this Alaskan interloper a taste of life in the big leagues; former New York Times hack Todd “Mr. Dee Dee Myers” Purdum, to act as an instrument of Graydon Carter’s wrath at Vanity Fair. Heck, we even burned her church down. Even after the teleological triumph of The One, the assault had to continue, each blow delivered with our Lefty SneerTM (viz.: Donny Deutsch yesterday on Morning Joe), until Sarah was finished.


My point was not about Sarah Palin as much as it was about the reaction to her and what it tells us. Much the same lesson can be learned from the unreasoned hatred of Clarence Thomas and the smear job on Miguel Estrada. Let's design a different Sarah - same women, same history but a degree from Harvard and better prepared for a national run. Such a woman would threaten to be, like Obama, the much-vaunted "transitional figure" (which really means nothing more than she'd tilt the electoral calculus).

As I said, Sarah Palin was not that woman in 2008. As I said, she may never be. But the comments largely consisted of more Sarah bashing. Part of that is joy through snarkery but part of it reflects the notion that, if she's down, she must stay down.

Monday, July 06, 2009

There's something about Sarah


If Sarah Palin has national political ambitions, I can't see the decision to resign as Governor of Alaska as helping them. When your problem is gravitas and lack of experience, bailing on the principal way to get those things seems like throwing in the towel. My initial impression was that she wanted out, but little things like the ad on the right suggests that's not the case.

So maybe we won't have Sarah to kick around anymore and it is the kicking around that I want to consider. The invective and snarl around Palin was extraordinary. The left could not stand the idea of her.

And that was - or is - the something about Sarah. It was the idea of her. It's why she appealed so strongly to the conservative base. The base wanted her to be true. A feisty and intelligent conservative woman who is accomplished but adheres to traditional values. All of us know scores of women like that. Why not run one for President?

But that idea scared the sanctimony out of the left. Such a person would be dangerous. She had to be destroyed and the war against her was without rules.

Sarah Palin wasn't - and may never be - the person that conservatives wanted and liberals feared. She has strong political skills (as demonstrated in her convention acceptance speech and debate with Biden)but she wasn't quite ready for prime time. After the election, the hope (and fear) was that she would grow into national stature. She may yet, although resigning from the state house may make it less likely that anyone will ever see her that way.

But the right should not despair and the left should not be overly relieved. Sarah is inevitable, even if she isn't Sarah.

Sunday, July 05, 2009

A musical tribute to 1959

I've been reading Fred Kaplan's book 1959 subtitled the "year that changed everything." When I bought it, the young woman who rang up the sale at the Fox Point Borders pointed out that they also had a book claiming that 1968 was the "year that changed everything." I told her that there were several such books about 1968 and that, in fact, I have one making the same claim for 1973, Aspiring authors had better move fast. All of the years will soon be taken. Kaplan's book is ok. But I thought this Sunday is as good as any for a musical tribute to 1959.

You can't address the music of 1959 without acknowledging Buddy Holly who died in February of that year in the Plane Crash. Here's Holly on Arthur Murray's Dane Party two years earlier. He's a "rock and roll specialist" who we must appreciate to understand the "young people."



The Big Bopper also died in that crash.




The number one hit of 1959 was Bobbie Darin's version of "Die Moritat von Mackie Messer" from Brecht's Die Dreigroschenoper.



Kaplan is also a jazz critique who spends a fair amount of time on Miles Davis' class Kind of Blue that was released in 1959.



Kaplan spends a lot of time discussing modal jazz and building with scales and not chords. I am not sure I fully appreciate it, but he spends some time discussing the move to, if I recall correctly, 5:4 time in David Brubeck's Take Five which I include for Shark, Jr. and his memories of the Milwaukee High School of the Arts.

Thursday, July 02, 2009

The Hate Left and Socialist Right

Back to a series of posts last month on the charge that conservatives have somehow gone over the top, engaging in hateful and exaggerated rhetoric that might even incite violence.

Paul Krugman thinks opposition to the President's silly cap and trade bill is "treason." Matthew Iglesias looks at Mahmoud Ahmadinejad and sees Sarah Palin. Pro-life and opposition to same sex marriage. Stoning women for adultery and executing gays and lesbians. Whatever. At least Ahmadinejad is an economic progressive.

Along the same lines, Mark Steyn points out that the UK's neo-fascists are all about the workers as well. It turns out that Britain's racist National Party supports economic protectionism, transfer of ownership of private firm to workers, and state ownership of key industries. Steyn writes:

If you think the British elections are beginning to sound like the
dinner-theater production of Jonah Goldberg's book, you're right - if by dinner
you had in mind tripe, pork scratchings, and mushy peas washed down with 14
pints of brown ale and a knife fight. Economically, the BNP is the Labour Party
before the Blairite metrosexual makeover ....

Ricci Reax

You can read my reaction to the Ricci decision, along with those of Dave Kopel, Professor Ronald Rotunda, Maureen Martin and others at the Heartland Institute's website. More here when I get a chance.