The Milwaukee Chapter of the Federalist Society sponsored an interesting talk this past Monday by David Rivkin, a parter with the firm of Baker & Hostetler in DC.
Rivkin's argues that a Congressionally enacted mandate that individuals purchase health insurance would be unconstitutional, i.e., it would be outside the scope of Congress' authority to regulate commerce among the states. As a prescriptive matter, he is certainly right. Descriptively (i.e., would the Court so rule), its not as clear as Rivkin himself concedes.
Nancy Pelosi claims that Congress has an "essentially unlimited" power to regulate health care. This is an extraordinary claim and based on a view of the Commerce authority that says Congress may regulate any local activity if an effect on interstate commerce can be hypothesized.
That is not, however, quite what current doctrine holds. There are certainly cases in which the the Court has upheld Congressional regulation based on a fairly tenuous connection with interstate commerce. In Gonzales v. Raich, for example, the Court held that Congress could prohibit persons from growing marijuana at home for personal use because it is an "economic activity" that, by altering demand, affects the national marijuana market.
But, in two other reason cases, United States v. Lopez and United States v. Morrison, the Court held that Congress could not regulate certain local activities (carrying guns on or near school property and violent acts against women) that are not themselves economic even thought they certainly have an impact on the national economy.
I am not sure that this is a very useful distinction, but let's assume that it - or something like it - is the principle to be applied. Is purchasing insurance economic because it affects demand for a product or is it noneconomic in that it is not an occupation or business or a private activity that - in some sense - substitues for the services or goods provided by an occupation or business? (Or does it by being a form of self insurance?)
The ramifications of permitting Congress to mandate the individual purchase of insurance are matters of concern. As Rivkin puts it, to permit such a mandate, is tantamount to - or uncomfortably close to - the notion that Congress can regulate you because you are "there" and "being there" will necessarily cause an economic footprint that will affect - in some way - interstate markets.
If that is enough to permit Congressional regulation, then why couldn't Congress mandate that everyone join a health club or purchase vegetables or not purchase junk food?
The problem, it seems to me, stems from the Court's use of the Commerce Clause to permit Congress to do things that it is not constitutionally empowered to do. Enacting national health care is an effort to regulate the provision of health care and not commerce among the states (although it will have an impact on that commerce). Once we admit that impact on commerce justifies Congressional regulation, the idea of Congress as a body with limited and enumerated powers begins to fall apart.
Wednesday, December 02, 2009
Friday, November 27, 2009
Finding confirmation in Climatequiddick
The reaction of bloggers and pundits to Climatequiddick - the hacking and disclosure of e-mails sent and received by climate scientists at East Anglia University - follows two unfortunate patterns.
On the right, we hear folks proclaiming the end of the debate about anthropogenic global warming. They say, as I heard local talk show host Mark Belling claim, that claims of AGW have been shown to be based on "fraud." The e-mails are significant, but surely they don't do that.
On the left, we have denial expressed in the form of accusing "denialists" of "lies" and "ignorance" resulting in a failure and refusal to understand the supposedly innocuous content of the e-mails, which - despite references to tricks and suppression of opposing views - actually reflect scientific integrity. The hack is a nefarious plot to subvert the Copenhagen summit.
For the most part, neither group has the expertise - or is willing to take the time - to understand what they are talking about. I, for example, can't really say whether ignoring recent measurements of tree ring density in northern latitudes because they don't fit into certain models concerning the relation between such density and temperature is right or wrong.
But, being a reasonably informed observer of the global warming debate, it does seem to me that the e-mails reflect an ongoing problem with the matter of AGW. In my view, the most intelligent "popular" writer on the subject has been Jim Manzi.
Manzi, in short, makes the following points. First, is that the process claimed to result in AGW is based on sound physics. Increased atmospheric carbon could result in increased temperature. Second, it is by no means clear that it will do so because of many confounding and countervailing elements. Third, it is, therefore, virtually impossible to "predict" the fact or extent of warming. It makes far more sense to speak in terms of probabilities. Efforts to develop predictive models based on the historical record are particularly problematic because they are essentially unfalsifiable and, by certain defintions, cannot be "science." If we find data that contradicts the model, we can simply tweak the model ("hide the decline") until the data fit. What we can't do is run an experiment in which history is reconstructed under different conditions and see how often the model fits the data. Fourth, concern over AGW is prudent but it is unlikely to be the existential crisis that it is claimed to be and it is not clear that the best policy is abatement rather than accomodation. (Manzi does recognize that a small chance of a bigger problem requires a policy response but not the economic retrenchment that has been the typical proposed response.)
In that context, the e-mails become highly problematic - not because they "disprove" AGW - but because they reflect a rigid and unscientific commitment to orthodoxy. As Manzi points out, paleoclimatology is more like economics and political science than physics and chemistry. It is unlikely ever to achieve the certainty that we associate with certain questions in hard sciences and, therefore, the dogmatic commitment reflected in the e-mails is hard to see as frustration with those who won't accept the obvious and seems to reflect a set of closed minds.
This seems particularly so in the case of the website RealClimateChange (from which the Climatequiddick "deniers" seem to get their talking points). It doesn't read like most academic blogs. It is full of hyberbole, name-calling and smack talk.
The problem can't be assumed away by structuring the question as "selfless" defenders of the climate against self-interested industrially funded hacks. There is money to be made on both sides of the climate debate. That scientists might get lost in commitment to claims about the power of their discipline (here that science can predict the climate) and to their previous positions is a very well known - and very human - phenomenom.
On the right, we hear folks proclaiming the end of the debate about anthropogenic global warming. They say, as I heard local talk show host Mark Belling claim, that claims of AGW have been shown to be based on "fraud." The e-mails are significant, but surely they don't do that.
On the left, we have denial expressed in the form of accusing "denialists" of "lies" and "ignorance" resulting in a failure and refusal to understand the supposedly innocuous content of the e-mails, which - despite references to tricks and suppression of opposing views - actually reflect scientific integrity. The hack is a nefarious plot to subvert the Copenhagen summit.
For the most part, neither group has the expertise - or is willing to take the time - to understand what they are talking about. I, for example, can't really say whether ignoring recent measurements of tree ring density in northern latitudes because they don't fit into certain models concerning the relation between such density and temperature is right or wrong.
But, being a reasonably informed observer of the global warming debate, it does seem to me that the e-mails reflect an ongoing problem with the matter of AGW. In my view, the most intelligent "popular" writer on the subject has been Jim Manzi.
Manzi, in short, makes the following points. First, is that the process claimed to result in AGW is based on sound physics. Increased atmospheric carbon could result in increased temperature. Second, it is by no means clear that it will do so because of many confounding and countervailing elements. Third, it is, therefore, virtually impossible to "predict" the fact or extent of warming. It makes far more sense to speak in terms of probabilities. Efforts to develop predictive models based on the historical record are particularly problematic because they are essentially unfalsifiable and, by certain defintions, cannot be "science." If we find data that contradicts the model, we can simply tweak the model ("hide the decline") until the data fit. What we can't do is run an experiment in which history is reconstructed under different conditions and see how often the model fits the data. Fourth, concern over AGW is prudent but it is unlikely to be the existential crisis that it is claimed to be and it is not clear that the best policy is abatement rather than accomodation. (Manzi does recognize that a small chance of a bigger problem requires a policy response but not the economic retrenchment that has been the typical proposed response.)
In that context, the e-mails become highly problematic - not because they "disprove" AGW - but because they reflect a rigid and unscientific commitment to orthodoxy. As Manzi points out, paleoclimatology is more like economics and political science than physics and chemistry. It is unlikely ever to achieve the certainty that we associate with certain questions in hard sciences and, therefore, the dogmatic commitment reflected in the e-mails is hard to see as frustration with those who won't accept the obvious and seems to reflect a set of closed minds.
This seems particularly so in the case of the website RealClimateChange (from which the Climatequiddick "deniers" seem to get their talking points). It doesn't read like most academic blogs. It is full of hyberbole, name-calling and smack talk.
The problem can't be assumed away by structuring the question as "selfless" defenders of the climate against self-interested industrially funded hacks. There is money to be made on both sides of the climate debate. That scientists might get lost in commitment to claims about the power of their discipline (here that science can predict the climate) and to their previous positions is a very well known - and very human - phenomenom.
Tuesday, November 24, 2009
Talk Among Yourselves
Ilya Somin has an interesting post over at the Volokh Conspiracy on right wing populism. It's not so bad, he says, or at least it could be worse. Somin is a libertarian and is cheered by the idea that conservative populism has tended to emphasize limited government over what he would view as a dangerous aggrandizement of government power. He writes:
Of course, he notes that right wing populist "rhetoric is oversimplified, doesn’t take account of counterarguments, and is unfair to opponents. But the same can be said for nearly all political rhetoric directed at a popular audience made up of rationally ignorant voters who pay only very limited attention to politics and don’t understand the details of policy debates." In other words, the stuff you hear at Fighting Bob Fest isn't any better.
I don't buy Somin's argument about the disconnect between social conservatism and limited government, but I think he has a point. Could we say, however, that there has been a similar moderation in left wing populism? It is also "oversimplified, doesn’t take account of counterarguments, and is unfair to opponents" but aren't the hard left fantasies of the sixties a thing of the past?
On balance, however, the positions taken by the right-wing populists on these issues are basically simplified versions of those taken by the most sophisticated libertarian and limited-government conservative economists and policy scholars. There has been relatively little advocacy of strange, crackpot ideas or weird conspiracy theories. Indeed, efforts to paint the Tea Partiers and others as merely closet racists usually have to rely on unsupported claims about “unspoken” assumptions and subtexts.
Of course, he notes that right wing populist "rhetoric is oversimplified, doesn’t take account of counterarguments, and is unfair to opponents. But the same can be said for nearly all political rhetoric directed at a popular audience made up of rationally ignorant voters who pay only very limited attention to politics and don’t understand the details of policy debates." In other words, the stuff you hear at Fighting Bob Fest isn't any better.
I don't buy Somin's argument about the disconnect between social conservatism and limited government, but I think he has a point. Could we say, however, that there has been a similar moderation in left wing populism? It is also "oversimplified, doesn’t take account of counterarguments, and is unfair to opponents" but aren't the hard left fantasies of the sixties a thing of the past?
Sunday, November 22, 2009
Shark in the Cities
Over the weekend, the the Murphy Institute for Catholic Thought, Law and Public Policy at the University of St. Thomas Law School in Minneapolis hosted a conference entitled "Realism in Christian Public Theology: Catholic and Protestant Perspectives." It was an interdisciplinary conference bringing together law professors, theologians, ethicists and political scientists. I spoke on Friday, presenting a paper entitled "Christian Realism, Subsidiarity and the Economic Crisis."
The point of the paper is that the economic crisis - or really any crisis - presents a danger for the makers of law and policy. They may overreact both in terms of "fighting the last war," i.e., overemphasizing whatever is thought to be the present danger, or in seeing the crisis as an opportunity to remake society, i.e., to usher in a Kingdom on earth.
My argument is that there are two important theological concepts that can at least help us avoid this. The first is the Catholic notion of subsidiarity. i.e., the idea that a higer order should not do what a lower one can do for itself. I qualify that idea by arguing that subsidiarity is not simply a principle of jurisdiction but a recognition of the moral importance of human agency. Law and policy should help people and the associations that they form exercise freedom and creativity. It is, I argue, intertwined with the notion of solidarity, i.e., the imperative of concern for all persons.
This can have implications for both "liberal" and "conservative" positions. If we are to have George W. Bush's Ownership Society, ownership must be more than a theoretical possibility. Social assistance that is conservative must also be compassionate.
Health care reformers ought to remain mindful of the need for innovation and the moral value of individual choice and of human life. Efforts to fight global warming should not forget that much of what has improved the quality of our environment was not developed by centralized command and direction.
The second helpful theological concept is Christian Realism, a broad and sometimes amorphous body of thought associated with the Lutheran theologian Reinhold Niebuhr. I take two things from Niebuhr. The first is the call for Christians (but this could apply to persons of other faiths as well) to engage the world but to do so as they find it and not as they wish to be. The second is to recognize that human beings are sinful and broken and that efforts to, in the words of Bill Buckley, "immanentize the eschaton" are almost certain to fail and likely to bring unforseen danger.
Again, there are lessons for both conservatives and liberals. We ought to have known that efforts to create democracy in countries that had never been democratic would be harder than we expected. This is not to say that the wars in Iraq and Afghanistan were necessarily wrong, but we should have expected the unexpected.
On the other side of the aisle, President Obama claims that Niebuhr is his favorite philospher and he seems to understand the tension in Christian Realism between the call for engagement and the admonition to humility. But, as William Schambra explains in the inaugural issue of the journal National Affairs, Obama also seems to be what Daniel Patrick Moynihan called a "Policy President." He is in the tradition of early twentieth century Progressives who believed that "everything is related to everything" and that, as a consequence,"there are no social interests about which the national government does not have some policy or other."
Just as importantly, the policy approach eschews the notions of divided government and limited powers - as well as the rough and tumble of politics - because it will tend to prevent finely tuned comprehensive reform driven by technical experise. As Schambra puts it:
Of course, the "top down" nature of this approach raises subsidiarity concerns. But Realism also suggests that we view it with a critical attitude. During the campaign, President Obama suggests that we could create a Kingdom right here on earth. Realism suggests otherwise.
This doesn't mandate any particular policy approach. As the Popes have frequently said, the Church has no models to propose and God is neither a Democrat nor a Republican. Perhaps Obamacare - or something like it - can be justified in these terms. My modest suggestion is that subsidiarity and Christian Realism are useful heuristics.
Cross posted at Marquette University Law School Faculty Blog.
The point of the paper is that the economic crisis - or really any crisis - presents a danger for the makers of law and policy. They may overreact both in terms of "fighting the last war," i.e., overemphasizing whatever is thought to be the present danger, or in seeing the crisis as an opportunity to remake society, i.e., to usher in a Kingdom on earth.
My argument is that there are two important theological concepts that can at least help us avoid this. The first is the Catholic notion of subsidiarity. i.e., the idea that a higer order should not do what a lower one can do for itself. I qualify that idea by arguing that subsidiarity is not simply a principle of jurisdiction but a recognition of the moral importance of human agency. Law and policy should help people and the associations that they form exercise freedom and creativity. It is, I argue, intertwined with the notion of solidarity, i.e., the imperative of concern for all persons.
This can have implications for both "liberal" and "conservative" positions. If we are to have George W. Bush's Ownership Society, ownership must be more than a theoretical possibility. Social assistance that is conservative must also be compassionate.
Health care reformers ought to remain mindful of the need for innovation and the moral value of individual choice and of human life. Efforts to fight global warming should not forget that much of what has improved the quality of our environment was not developed by centralized command and direction.
The second helpful theological concept is Christian Realism, a broad and sometimes amorphous body of thought associated with the Lutheran theologian Reinhold Niebuhr. I take two things from Niebuhr. The first is the call for Christians (but this could apply to persons of other faiths as well) to engage the world but to do so as they find it and not as they wish to be. The second is to recognize that human beings are sinful and broken and that efforts to, in the words of Bill Buckley, "immanentize the eschaton" are almost certain to fail and likely to bring unforseen danger.
Again, there are lessons for both conservatives and liberals. We ought to have known that efforts to create democracy in countries that had never been democratic would be harder than we expected. This is not to say that the wars in Iraq and Afghanistan were necessarily wrong, but we should have expected the unexpected.
On the other side of the aisle, President Obama claims that Niebuhr is his favorite philospher and he seems to understand the tension in Christian Realism between the call for engagement and the admonition to humility. But, as William Schambra explains in the inaugural issue of the journal National Affairs, Obama also seems to be what Daniel Patrick Moynihan called a "Policy President." He is in the tradition of early twentieth century Progressives who believed that "everything is related to everything" and that, as a consequence,"there are no social interests about which the national government does not have some policy or other."
Just as importantly, the policy approach eschews the notions of divided government and limited powers - as well as the rough and tumble of politics - because it will tend to prevent finely tuned comprehensive reform driven by technical experise. As Schambra puts it:
Echoing Moynihan's understanding of the implications of the policy approach, Obama suggests that tackling only isolated pieces of the problem, or trying to solve only one problem at a time, will merely introduce further distortions into what should be treated as a unified and coordinated system. A comprehensive policy approach will enable us to take maximum advantage of natural- and social-science expertise, displacing expensive or ineffective local practices by spreading system-wide those programs that have proven to be more effective and less expensive, as documented by thorough research and experimentation.
Of course, the "top down" nature of this approach raises subsidiarity concerns. But Realism also suggests that we view it with a critical attitude. During the campaign, President Obama suggests that we could create a Kingdom right here on earth. Realism suggests otherwise.
This doesn't mandate any particular policy approach. As the Popes have frequently said, the Church has no models to propose and God is neither a Democrat nor a Republican. Perhaps Obamacare - or something like it - can be justified in these terms. My modest suggestion is that subsidiarity and Christian Realism are useful heuristics.
Cross posted at Marquette University Law School Faculty Blog.
Saturday, November 21, 2009
How Not to Handle Divorce
While there is obviously a widely reported matter that prompts this post, it's really not about them other than whatever concern we may have for the people involved. No politics here. Please.
I have only ever represented one divorce client, but I get a lot of requests for initial advice on divorce and referrals to a divorce attorney. I don't claim to know a lot about it, but I am absolutely certain that I know one thing - from talking to other lawyers and from the experience that I and my friends and relatives have had on the matter. There should be a strong presumption against fighting over matters to do with the children. No matter how much your ex or what he or she has done to you rankles, the thing that you will forever regret is exacerbating the harm that the fact of divorce (which can't always be avoided) does to your children. Try not to fight over custody or placement. There is, for most of us, no amount of money that will make that OK.
And don't - really don't - make your divorce a public soap opera. This will not help you maintain the ongoing relationship with your your ex-husband or wife that will be necessary to shepherd your children to adulthood. The infidelity of a spouse hurts, but, even if it must end a marriage, the pain of a child whose home is disrupted is more important and demands that Mom and Dad conduct themselves in a way that will minimize it, i.e, that will allow the two of them to act together as parents and will allow their children to honor both mother and father.
I have only ever represented one divorce client, but I get a lot of requests for initial advice on divorce and referrals to a divorce attorney. I don't claim to know a lot about it, but I am absolutely certain that I know one thing - from talking to other lawyers and from the experience that I and my friends and relatives have had on the matter. There should be a strong presumption against fighting over matters to do with the children. No matter how much your ex or what he or she has done to you rankles, the thing that you will forever regret is exacerbating the harm that the fact of divorce (which can't always be avoided) does to your children. Try not to fight over custody or placement. There is, for most of us, no amount of money that will make that OK.
And don't - really don't - make your divorce a public soap opera. This will not help you maintain the ongoing relationship with your your ex-husband or wife that will be necessary to shepherd your children to adulthood. The infidelity of a spouse hurts, but, even if it must end a marriage, the pain of a child whose home is disrupted is more important and demands that Mom and Dad conduct themselves in a way that will minimize it, i.e, that will allow the two of them to act together as parents and will allow their children to honor both mother and father.
Thursday, November 19, 2009
Yet Another Post on Civility
I don't often pull comments to a previous post into a new one, but I feel compelled to do so by a comment posted by my WI-Interest editor, Marc Eisen, a lefty who, while he does many other things, has also been hired by a conservative publication (edited by the dread Charlie Sykes!) and for whom I have come to have a great deal of respect (in part because, in addition to doing the normal writerly scrutiny, he challenges my reasoning). Marc and I are headed for a showdown fueled by a few adult beverages in the near future. I think it will be great fun.
Marc thinks the ad on Reuben Mitchell was brutal and awful and illustrative of a degradation in our political discourse. While I don't think (as some do) that it defines Mike Gableman (about whom I have other sources of information), I don't disagree. But there are some additional things to be said.
The first is the problems presented by this type of ad is not unique or new. Our friends on the left don't want to see the demagoguery in their own messages. Spots accusing George W. Bush of indifference to the racially motivated murder of a man in Texas or suggesting that John McCain was advocating a huge middle class tax increase were despicable. Ads and robocalls sponsored by opponents of the Wisconsin marriage amendment were, by any measure, explicitly designed to mislead. Mike Gableman should not have run that ad, but he is hardly the first candidate to allow his consultants to get the better of him.
Campaigns are a bit like fist fights. Remember that, in the Gableman-Butler race, pro-Butler ads were run by independent organizations suggesting that Gableman was soft on sex predators and portraying him as a clueless, ethically challenged bobblehead.
So if Marc's point is that our political discourse has become degraded, I agree - although I am not sure that this is new. Political slander has a long history.
In the local blogosphere, there is very little engagement. Folks think that the value in a blog is the extent to which it validates and is validated by the like minded. So they take opposing arguments out of context or restate them inaccurately and in bad faith. "Shorter" Esenberg is a way to avoid confronting what Esenberg has to say. Bloggers crow about how silly and stupid and corrupt the "wing-nuts," "teabaggers" or "moonbats" are.
I don't mean to dismiss anyone who has ever had a little fun at the other side's expense. A little political smack is fine and there are certainly folks on both sides of the political spectrum that are deserving of ridicule, but there is a world out there with a full spectrum of colors. To ignore that is to miss something.
There are literally no ethical standards among political consultants who can, with some credibility and justification, claim that they aren't going to play by the Marquis of Queensbury rules while their opponents do not.
Marc wonders if "this corrodes the democratic spirit, makes voters cynical, and serves as a warning shot to citizens to not offer themselves up as candidates for fear their reputations will be destroyed in a lying 30-second commercial?" I think it does. When I was approached to run for public office, I worried about that alot although it is not the reason I decided not to run.
But that brings us to the second problem. I don't trust the state - i.e., the very politicians who offend - to fix it. While I am not prepared to say the the First Amendment leaves no room to sanction false political speech, I tend to think that room ought to be fairly small. It seems likely that the cure will turn out to be worse than the disease.
Marc thinks the ad on Reuben Mitchell was brutal and awful and illustrative of a degradation in our political discourse. While I don't think (as some do) that it defines Mike Gableman (about whom I have other sources of information), I don't disagree. But there are some additional things to be said.
The first is the problems presented by this type of ad is not unique or new. Our friends on the left don't want to see the demagoguery in their own messages. Spots accusing George W. Bush of indifference to the racially motivated murder of a man in Texas or suggesting that John McCain was advocating a huge middle class tax increase were despicable. Ads and robocalls sponsored by opponents of the Wisconsin marriage amendment were, by any measure, explicitly designed to mislead. Mike Gableman should not have run that ad, but he is hardly the first candidate to allow his consultants to get the better of him.
Campaigns are a bit like fist fights. Remember that, in the Gableman-Butler race, pro-Butler ads were run by independent organizations suggesting that Gableman was soft on sex predators and portraying him as a clueless, ethically challenged bobblehead.
So if Marc's point is that our political discourse has become degraded, I agree - although I am not sure that this is new. Political slander has a long history.
In the local blogosphere, there is very little engagement. Folks think that the value in a blog is the extent to which it validates and is validated by the like minded. So they take opposing arguments out of context or restate them inaccurately and in bad faith. "Shorter" Esenberg is a way to avoid confronting what Esenberg has to say. Bloggers crow about how silly and stupid and corrupt the "wing-nuts," "teabaggers" or "moonbats" are.
I don't mean to dismiss anyone who has ever had a little fun at the other side's expense. A little political smack is fine and there are certainly folks on both sides of the political spectrum that are deserving of ridicule, but there is a world out there with a full spectrum of colors. To ignore that is to miss something.
There are literally no ethical standards among political consultants who can, with some credibility and justification, claim that they aren't going to play by the Marquis of Queensbury rules while their opponents do not.
Marc wonders if "this corrodes the democratic spirit, makes voters cynical, and serves as a warning shot to citizens to not offer themselves up as candidates for fear their reputations will be destroyed in a lying 30-second commercial?" I think it does. When I was approached to run for public office, I worried about that alot although it is not the reason I decided not to run.
But that brings us to the second problem. I don't trust the state - i.e., the very politicians who offend - to fix it. While I am not prepared to say the the First Amendment leaves no room to sanction false political speech, I tend to think that room ought to be fairly small. It seems likely that the cure will turn out to be worse than the disease.
Tuesday, November 17, 2009
The State House Comes to Milwaukee
1. Barring some unseen development, it seems highly likely that two Milwaukeeans will square off in the race for Governor. Very few Governors have been from Milwaukee. The last, I believe, was Julius Heil, elected in 1938. And there were few before then.
2. This seems to me like an unusual matchup of two relatively personable and "cool" (in the McLuhan sense of being less obvious and more detached from the fray) candidates. Folks like Doyle, Loftus, Chvala, Garvey and even the garrulous Thompson were much more combative and tempermentally partisan. Going negative will be a challenge for both these guys.
3. It may be that the winner will have to be perceived as "from Milwaukee" but not "of Milwaukee," i.e., not associated with the more general view of Milwaukee as being a ungovernable and unsafe morass. Both candidates will have something to say on this, but, given what I expect will be the salience of fiscal issues, I suspect that Walker has the early advantage.
2. This seems to me like an unusual matchup of two relatively personable and "cool" (in the McLuhan sense of being less obvious and more detached from the fray) candidates. Folks like Doyle, Loftus, Chvala, Garvey and even the garrulous Thompson were much more combative and tempermentally partisan. Going negative will be a challenge for both these guys.
3. It may be that the winner will have to be perceived as "from Milwaukee" but not "of Milwaukee," i.e., not associated with the more general view of Milwaukee as being a ungovernable and unsafe morass. Both candidates will have something to say on this, but, given what I expect will be the salience of fiscal issues, I suspect that Walker has the early advantage.
Lies and the Lying Candidates Who Tell Them*
* It turns out to be Al Franken.
For those of you interested in the legal intricacies, I have a post on the Gableman recommendation up at the Marquette University Faculty Blog. But here at the old political blog, I'm wondering if those who are upset by the recommendation would really be happy with the implications of judicial review of political speech.
Chapter 60 of the Supreme Court Rules applies only to judicial candidates, but it is not inconceivable that legislatures would pass similar laws sanctioning false statements in other types of campaigns. In fact, Wisconsin has a law that makes it unlawful to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election.” That law was used for mischief last fall, although, at least under present interpretation, it does not provide a civil remedy.
At first blush, this may seem admirable. Why should there be a constitutional right to lie? The problem, of course, is that a lie is in the eye of the beholder. Local blogger Jay Bullock, it seems to me, regards many things as "lies" that are either contested questions of fact, matters of opinion or assertions that the speaker believes to be true. Determining whether a statement is false can be difficult. The three judge panel in the Gableman case could not agree on whether the statements at issue in that case were false. Figuring out whether the speaker knew it to be false is even tougher. That Justice Gableman agonized over running the ad before deciding to run it certainly could support an inference that he did not believe it was false.
In the past, I have used the example of Obama's allegation that John McCain's health care plan would result in the biggest middle class tax increase in history. I think that was objectively false. McCain would have eliminated the tax deduction for employer provided health care, but provided a tax credit that would have eliminated the additional tax for all but a handful of people. Was this a knowing lie?
Here's another example. Al Franken and the Democrats are pushing what they call an "anti-rape" provision in a defense bill and accusing Republicans who oppose it of wanting to sweep allegations of rape under the rug. What it actually does is prohibit certain government vendors from entering into contracts with their employees providing for arbitration of certain types of cases including, but not limited to, allegations of sexual assault. But those allegations - because they involve criminal conduct - are probably not subject to an arbitration provision and are certainly subject to prosecution notwithstanding the validity of any arbitration provision. The whole thing is a very cynical attempt to mislead. Should it subject Franken to prosecution?
Perhaps we could develop a taxonomy of lies in which certain statements could be identified that are so clearly and objectively intentionally false that sanctioning them would not be problematic. But the narrower the definition, the easier it will be to avoid. More to the point, litigation then becomes - if it hasn't already - another front in a political campaign; one that continues (and that can be used to hobble a successful candidate) long after the voters have spoken.
For those of you interested in the legal intricacies, I have a post on the Gableman recommendation up at the Marquette University Faculty Blog. But here at the old political blog, I'm wondering if those who are upset by the recommendation would really be happy with the implications of judicial review of political speech.
Chapter 60 of the Supreme Court Rules applies only to judicial candidates, but it is not inconceivable that legislatures would pass similar laws sanctioning false statements in other types of campaigns. In fact, Wisconsin has a law that makes it unlawful to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election.” That law was used for mischief last fall, although, at least under present interpretation, it does not provide a civil remedy.
At first blush, this may seem admirable. Why should there be a constitutional right to lie? The problem, of course, is that a lie is in the eye of the beholder. Local blogger Jay Bullock, it seems to me, regards many things as "lies" that are either contested questions of fact, matters of opinion or assertions that the speaker believes to be true. Determining whether a statement is false can be difficult. The three judge panel in the Gableman case could not agree on whether the statements at issue in that case were false. Figuring out whether the speaker knew it to be false is even tougher. That Justice Gableman agonized over running the ad before deciding to run it certainly could support an inference that he did not believe it was false.
In the past, I have used the example of Obama's allegation that John McCain's health care plan would result in the biggest middle class tax increase in history. I think that was objectively false. McCain would have eliminated the tax deduction for employer provided health care, but provided a tax credit that would have eliminated the additional tax for all but a handful of people. Was this a knowing lie?
Here's another example. Al Franken and the Democrats are pushing what they call an "anti-rape" provision in a defense bill and accusing Republicans who oppose it of wanting to sweep allegations of rape under the rug. What it actually does is prohibit certain government vendors from entering into contracts with their employees providing for arbitration of certain types of cases including, but not limited to, allegations of sexual assault. But those allegations - because they involve criminal conduct - are probably not subject to an arbitration provision and are certainly subject to prosecution notwithstanding the validity of any arbitration provision. The whole thing is a very cynical attempt to mislead. Should it subject Franken to prosecution?
Perhaps we could develop a taxonomy of lies in which certain statements could be identified that are so clearly and objectively intentionally false that sanctioning them would not be problematic. But the narrower the definition, the easier it will be to avoid. More to the point, litigation then becomes - if it hasn't already - another front in a political campaign; one that continues (and that can be used to hobble a successful candidate) long after the voters have spoken.
Monday, November 16, 2009
Shark Returns
I was in DC at the end of last week to attend the National Lawyers Convention of the Federalist Society for Law & Policy Studies. It's always a great meeting with great panels presenting a diversity of views. That's something that folks who view the Federalist Society as the Opus Dei of the legal profession don't understand. (They don't understand Opus Dei either, but that's another matter.)
For example, on a panel discussing the relationship between capital and labor, we heard from two conservatives, Amity Schlaes and Todd Zywicki, But we also heard from Harold Meyerson of the American Prospect and Damon Silvers of the AFL-CIO. This is standard practice at FedSoc events. One of the more interesting discussions was a presentation by Burt Neuborne, a prominent liberal law prof at NYU, of his recent paper advocating a structural reading of the Bill of Rights (to, in effect, read the document in the manner of a poem)and Randy Barnett's thoughtful response.
It's also a great opportunity to draw energy from and connect with national figures and folks with similar interests around the country. I had, for example, the privilege of sitting at dinner with Abigail and Stephen Thernstrom and was able to discuss the possibility of the two of them doing an event at Marquette.
But, because I was there, I wasn't here to blog on the Gableman decision or the decision to try certain Guantanomo detainees in New York or Tom Barrett's decision to run for Governor. Watch this space for more.
For example, on a panel discussing the relationship between capital and labor, we heard from two conservatives, Amity Schlaes and Todd Zywicki, But we also heard from Harold Meyerson of the American Prospect and Damon Silvers of the AFL-CIO. This is standard practice at FedSoc events. One of the more interesting discussions was a presentation by Burt Neuborne, a prominent liberal law prof at NYU, of his recent paper advocating a structural reading of the Bill of Rights (to, in effect, read the document in the manner of a poem)and Randy Barnett's thoughtful response.
It's also a great opportunity to draw energy from and connect with national figures and folks with similar interests around the country. I had, for example, the privilege of sitting at dinner with Abigail and Stephen Thernstrom and was able to discuss the possibility of the two of them doing an event at Marquette.
But, because I was there, I wasn't here to blog on the Gableman decision or the decision to try certain Guantanomo detainees in New York or Tom Barrett's decision to run for Governor. Watch this space for more.
Tuesday, November 10, 2009
Hatred in the Name of "Compassion"
I am sure - or at least I suppose - the Chris Liebenthal is a decent enough guy in real life. Loves his family. Is kind to his friends. Doesn't kick puppies.
What is it, then, in politics that prompts this kind of inhumane nastiness. If the point is that Sarah Palin, in asking a normal human question, "why us" is supposed to have demonstrated that she is unaware that her child's birth was "caused" by her age, his comment is both a stretch and, in and of itself, reflects ignorance. Although the likelihood of a Down's child increases dramatically with age, it is still the case that less than 3% of live births at the maternal age of 44 are of babies with Downs.* She might, in a moment of anxiety about what will follow, wonder why it had to be her and her husband who drew the short straw.
And, of course, he misses the point of the story which is her husband's response. There is, he said, no reason that it could not be us and, in the end, we need to accept that. And that's what they did. The point is not that they cannot accept the consequences of what Liebenthal calls their "irresponsible actions (which, as far as I can tell, was marital intimacy), but that they should - and did - do precisely that.
But, beyond that, what is it about political disagreement that causes people to assume they have license to treat others with disrespect and hatred? Would Chris Liebenthal say that to a woman - any woman - that he knows? Tell her she is stupid because has a normal reaction to a difficult cirtcumstance? I doubt it and, if I am wrong, he ought to get out of the social work business.
I can anticipate the excuses. Sarah Palin supports policies that Chris Lieberthal thinks are bad so he can say whatever he wants about her. Certainly reasonable people can not disagree about whatever Chris Liebenthal happens to think is right.
"There are conservatives who do it too." I'm sure there are, but I don't (at least I try hard not to) and I don't see much of it among the writers and bloggers that I read. But the fact that some conservatives treat liberals in the same way that Chris Liebenthal thinks he can treat Sarah Palin only underscores my question. It takes an enormous amount of intellectual arrogance to think that those you disagree with are idiots or immoral. It poisons the public debate and ... more than that ...
... it's boring.
*His suggestion that a Down's child could be the result of the youthful marijauna use that Sarah Palin is meritless. Yeah, marijuana - particularly if used during pregancy (but I doubt that even the Governor of Alaska was getting baked in the state house) - is associated with some birth defects, but that doesn't "explain" what happened or even make it likely. If it did, my whole generation would be raising Downs kids.
What is it, then, in politics that prompts this kind of inhumane nastiness. If the point is that Sarah Palin, in asking a normal human question, "why us" is supposed to have demonstrated that she is unaware that her child's birth was "caused" by her age, his comment is both a stretch and, in and of itself, reflects ignorance. Although the likelihood of a Down's child increases dramatically with age, it is still the case that less than 3% of live births at the maternal age of 44 are of babies with Downs.* She might, in a moment of anxiety about what will follow, wonder why it had to be her and her husband who drew the short straw.
And, of course, he misses the point of the story which is her husband's response. There is, he said, no reason that it could not be us and, in the end, we need to accept that. And that's what they did. The point is not that they cannot accept the consequences of what Liebenthal calls their "irresponsible actions (which, as far as I can tell, was marital intimacy), but that they should - and did - do precisely that.
But, beyond that, what is it about political disagreement that causes people to assume they have license to treat others with disrespect and hatred? Would Chris Liebenthal say that to a woman - any woman - that he knows? Tell her she is stupid because has a normal reaction to a difficult cirtcumstance? I doubt it and, if I am wrong, he ought to get out of the social work business.
I can anticipate the excuses. Sarah Palin supports policies that Chris Lieberthal thinks are bad so he can say whatever he wants about her. Certainly reasonable people can not disagree about whatever Chris Liebenthal happens to think is right.
"There are conservatives who do it too." I'm sure there are, but I don't (at least I try hard not to) and I don't see much of it among the writers and bloggers that I read. But the fact that some conservatives treat liberals in the same way that Chris Liebenthal thinks he can treat Sarah Palin only underscores my question. It takes an enormous amount of intellectual arrogance to think that those you disagree with are idiots or immoral. It poisons the public debate and ... more than that ...
... it's boring.
*His suggestion that a Down's child could be the result of the youthful marijauna use that Sarah Palin is meritless. Yeah, marijuana - particularly if used during pregancy (but I doubt that even the Governor of Alaska was getting baked in the state house) - is associated with some birth defects, but that doesn't "explain" what happened or even make it likely. If it did, my whole generation would be raising Downs kids.
Monday, November 09, 2009
Public Financing of Supreme Court Races: The Legislature Whacks A Mole
In a forthcoming article in the Harvard Journal of Law & Public Policy, I argue ( the metaphor is not original with me) that campaign finance reform is like a game of Whac-A-Mole™ in which the moles always win.
The state legislature has passed public financing for state Supreme Court elections. I have no problem with public financing in general but this bill is likely to enhance what most people disliked about our recent hotly contested Supreme Court races. Most of the money in the two hotly contested races was spent by independent groups. For a variety of reasons, those ads tend to be negative which, in a judicial race, means calling your opponent "pro-criminal" or displaying photos of he sex predators that he did not send away for a long enough time.
The bill doesn't restrict independent expenditures (that would be constitutionally difficult) although it does try to counter their impact by providing increased public financing to candidates who face independent expenditures calling for the defeat of that candidate or the election of her opponent when, in the aggregate, those expenditures exceed 120% of the public financing benefit, i.e., $ 300,000 for the general election. These "matching" public funds are capped at three times the public financing benefit, e.g, $900,000 for the general.
I argue in the Harvard piece that additional public funding provided in response to independent issue advocacy is probably unconstitutional. The problem is that it penalizes the exercise of a constitutional right by providing additional public funding in response to speech in a way that can be expected to deter that speech. The Supreme Court has used similar reasoning to strike down a federal law that raised the contribution limits of candidates facing self financing candidates who have spent more than a specified amount. The increased limits were seen as an unconstitutional burden on the self financing candidate's speech rights.
This bill tries to get around that problem by providing additional funding only when the independent expenditures fund express advocacy of the election or defeat of a clearly identified candidate. That shows that someone was thinking.
But I don't think it works. The problem is this: The Supreme Court has upheld regulation of express advocacy (i.e., calling for the election or defeat of a candidate) because of the state's interest in preventing actual or apparent corruption. Thus Wisconsin could pass a law that required express advocacy - at least during election season - to be funded with regulated contributions.
But Wisconsin hasn't done that, suggesting that it does not see express advocacy funded with "soft money" as presenting a threat of corruption. If that's so, then it's interest in providing additional public funding in response to independent express advocacy is - presumably - to level the playing field.
The current Supreme Court has not been hospitable to restrictions on speech justified by a desire to level the playing field. Thus, the matching funds provision may well be unconstitutional. (The matter is further complicated by the fact that there is a case currently pending before the Court that may substantially modify doctrine on these questions - perhaps eliminating the distinction between express and issue advocacy by independent parties.)
Even if the provision providing for enhanced public financing in response to independent expenditures is upheld, it is easily avoided. The independents will simply run issue ads criticizing the candidate they don't like. That's what most of them do already.
So this is what we will have accomplished. By making it harder for the candidates to raise their own money (the bill reduces the maximum contribution from $10,000 to $1000), the voice of the independents will be enhanced. By deterring express advocacy by the independents (assuming the enhanced funding provisions are upheld), we will encourage "issue advocacy" which, in practice, means attack ads.
Virtually all efforts at campaign finance "reform" are swamped by their unintended consequences. Money, like water, seeks its own level.
But, in fairness, although the bill will do nothing about independent expenditures, it's not entirely meaningless. The current public financing amounts is so low that no viable candidate would choose to accept it. Although $300,000 doesn't buy much in a state wide race, there will be candidates for judicial office who can't raise that amount of money. For example, Randy Koschnick raised only a bit over $100,000 in his challenge to Chief Justice Shirley Abrahamson. She spent around $ 1.2 million. Even if the bills provision for increased public funding for candidates facing a nonpublicly financed candidate who spends in excess of the public financing level (something I also believe is likely), the basic public financing benefit of $300,000would have made him a much more credible candidate.
But it probably would not have been enough. The last two incumbents to run for reelection raised well in excess of $300,000. Louis Butler raised almost $800,000 and, as noted above, the Chief Justice raised about $ 1.2 million. Moreover, had Koschnick had even $300,000 to spend, I suspect that independents supporting the Chief Justice would have spent more heavily. (As it was they did not need to.) Koschnick had very little independent support, although perhaps he would have had more had he been seen as a more viable candidate.
So, even while the public financing scheme may have helped a weak candidate like Koschnick, the limitations on what a candidate can raise probably enhances the advantage of incumbents who are going to be able to raise money from more people because they are incumbents (and some lawyers are reluctant to tell a judge's campaign committee "no.") But favoring incumbents has long been a consequence, if not the intent, of campaign finance reform.
Of course, it will be harder for candidates to raise amounts in excess of the amount provided by public financing because of the reduction in the maximum campaign contribution in supreme court races from $10,000 to $1000. To the extent that this results in public financed campaigns capped at $300,000, the effect of the bill will be to enhance the role and impact of the independents.
The moles win again.
Cross posted at Marquette University Law School Faculty Blog.
The state legislature has passed public financing for state Supreme Court elections. I have no problem with public financing in general but this bill is likely to enhance what most people disliked about our recent hotly contested Supreme Court races. Most of the money in the two hotly contested races was spent by independent groups. For a variety of reasons, those ads tend to be negative which, in a judicial race, means calling your opponent "pro-criminal" or displaying photos of he sex predators that he did not send away for a long enough time.
The bill doesn't restrict independent expenditures (that would be constitutionally difficult) although it does try to counter their impact by providing increased public financing to candidates who face independent expenditures calling for the defeat of that candidate or the election of her opponent when, in the aggregate, those expenditures exceed 120% of the public financing benefit, i.e., $ 300,000 for the general election. These "matching" public funds are capped at three times the public financing benefit, e.g, $900,000 for the general.
I argue in the Harvard piece that additional public funding provided in response to independent issue advocacy is probably unconstitutional. The problem is that it penalizes the exercise of a constitutional right by providing additional public funding in response to speech in a way that can be expected to deter that speech. The Supreme Court has used similar reasoning to strike down a federal law that raised the contribution limits of candidates facing self financing candidates who have spent more than a specified amount. The increased limits were seen as an unconstitutional burden on the self financing candidate's speech rights.
This bill tries to get around that problem by providing additional funding only when the independent expenditures fund express advocacy of the election or defeat of a clearly identified candidate. That shows that someone was thinking.
But I don't think it works. The problem is this: The Supreme Court has upheld regulation of express advocacy (i.e., calling for the election or defeat of a candidate) because of the state's interest in preventing actual or apparent corruption. Thus Wisconsin could pass a law that required express advocacy - at least during election season - to be funded with regulated contributions.
But Wisconsin hasn't done that, suggesting that it does not see express advocacy funded with "soft money" as presenting a threat of corruption. If that's so, then it's interest in providing additional public funding in response to independent express advocacy is - presumably - to level the playing field.
The current Supreme Court has not been hospitable to restrictions on speech justified by a desire to level the playing field. Thus, the matching funds provision may well be unconstitutional. (The matter is further complicated by the fact that there is a case currently pending before the Court that may substantially modify doctrine on these questions - perhaps eliminating the distinction between express and issue advocacy by independent parties.)
Even if the provision providing for enhanced public financing in response to independent expenditures is upheld, it is easily avoided. The independents will simply run issue ads criticizing the candidate they don't like. That's what most of them do already.
So this is what we will have accomplished. By making it harder for the candidates to raise their own money (the bill reduces the maximum contribution from $10,000 to $1000), the voice of the independents will be enhanced. By deterring express advocacy by the independents (assuming the enhanced funding provisions are upheld), we will encourage "issue advocacy" which, in practice, means attack ads.
Virtually all efforts at campaign finance "reform" are swamped by their unintended consequences. Money, like water, seeks its own level.
But, in fairness, although the bill will do nothing about independent expenditures, it's not entirely meaningless. The current public financing amounts is so low that no viable candidate would choose to accept it. Although $300,000 doesn't buy much in a state wide race, there will be candidates for judicial office who can't raise that amount of money. For example, Randy Koschnick raised only a bit over $100,000 in his challenge to Chief Justice Shirley Abrahamson. She spent around $ 1.2 million. Even if the bills provision for increased public funding for candidates facing a nonpublicly financed candidate who spends in excess of the public financing level (something I also believe is likely), the basic public financing benefit of $300,000would have made him a much more credible candidate.
But it probably would not have been enough. The last two incumbents to run for reelection raised well in excess of $300,000. Louis Butler raised almost $800,000 and, as noted above, the Chief Justice raised about $ 1.2 million. Moreover, had Koschnick had even $300,000 to spend, I suspect that independents supporting the Chief Justice would have spent more heavily. (As it was they did not need to.) Koschnick had very little independent support, although perhaps he would have had more had he been seen as a more viable candidate.
So, even while the public financing scheme may have helped a weak candidate like Koschnick, the limitations on what a candidate can raise probably enhances the advantage of incumbents who are going to be able to raise money from more people because they are incumbents (and some lawyers are reluctant to tell a judge's campaign committee "no.") But favoring incumbents has long been a consequence, if not the intent, of campaign finance reform.
Of course, it will be harder for candidates to raise amounts in excess of the amount provided by public financing because of the reduction in the maximum campaign contribution in supreme court races from $10,000 to $1000. To the extent that this results in public financed campaigns capped at $300,000, the effect of the bill will be to enhance the role and impact of the independents.
The moles win again.
Cross posted at Marquette University Law School Faculty Blog.
Sunday, November 08, 2009
Green Bay Agonistes
You can occasionally see the precise moments when Packer coaches lose their jobs. For Bart Starr, it was when he stood with folded arms and sat on his timeouts while the Bears ran down the clock and kicked a short field goal to knock the team out of the '83 playoffs. Ray Rhodes did the same thing against the Panthers.
Yesterday, Ted Thompson lost his job (there really is no need to wait until the end of the season)and Mike McCarthy will need a miracle to keep his. While I believe that Aaron Rodgers is a star in the making, I continue to believe that Thompson threw Favre under the bus a year too early. But that's not the problem.
He knew he had major problems on the offensive line and did nothing. He knew that he did not have the players (in particular, people that can pressure the quarterback from the linebacker position) to play the 3-4 and he did not do enough. (He did draft Clay Matthews.) While he has done a nice job of drafting in the lower rounds, he can't hit on the first pick to save his life. (Matthews, being a possible exception, although he was the second pick in the first round.)This has resulted in a lack of impact players. He has allowed unspent cap dollars to collect interest.
McCarthy is not in much better shape. You should have seen some improvement in the offensive line play by now. Rodgers should be making quicker decisions by now. The special teams shouldn't still suck.
It's not so much that they lost to Tampa Bay. Any team in the NFL can beat you. It's that the same things keep happening again and again. These guys will be lucky to make .500.
Yesterday, Ted Thompson lost his job (there really is no need to wait until the end of the season)and Mike McCarthy will need a miracle to keep his. While I believe that Aaron Rodgers is a star in the making, I continue to believe that Thompson threw Favre under the bus a year too early. But that's not the problem.
He knew he had major problems on the offensive line and did nothing. He knew that he did not have the players (in particular, people that can pressure the quarterback from the linebacker position) to play the 3-4 and he did not do enough. (He did draft Clay Matthews.) While he has done a nice job of drafting in the lower rounds, he can't hit on the first pick to save his life. (Matthews, being a possible exception, although he was the second pick in the first round.)This has resulted in a lack of impact players. He has allowed unspent cap dollars to collect interest.
McCarthy is not in much better shape. You should have seen some improvement in the offensive line play by now. Rodgers should be making quicker decisions by now. The special teams shouldn't still suck.
It's not so much that they lost to Tampa Bay. Any team in the NFL can beat you. It's that the same things keep happening again and again. These guys will be lucky to make .500.
Shame on President Obama
There are some criticisms of Barack Obama that go too far. For example, I did not share the outrage about his belated reference to the Fort Hood shootings. Yes, it was tone deaf, but that's about it. But his decision not to travel to Berlin for the twentieth anniversay of the fall of the Berlin Wall is more than tone deaf. This was one of the most significant and improbable events of the past fifty years; brought about, in large part, by constancy in American policy. To stay away is to send a message and it is the wrong message. Whether he seeks to placate the Russians, repudiate American exceptionalism or refuse to acknowledge a Republican accomplishment, rejecting what brought about one of the most remarkable and peaceful victories over tyranny is shameful. For the winner of a faux peace prize to ignore one of history's singular triumphs for peace is an embarassment.
Wednesday, November 04, 2009
Myron Gordon, R.I.P.
I only really knew Myron Gordon as a judge on senior status and tried only one case before him. It was a challenge by the NAACP to the method of electing judges in Milwaukee County. The plaintiffs alleged that county wide elections of judges denied black voters the opportunity to elect candidates of their own choice and sought election of judges on the basis of sub-county districts. We represented the Wisconsin Judges Association who had intervened as defendants. They did not want to be elected from smaller districts in which voters might not appreciate the array of considerations facing a judge. I remember, in particular, the testimony of one of our client's members who said that he did not wish to depend only on his neighbors in a North Shore suburb for reelection. He felt that it would make it very difficult for him to give a defendant from the inner city the benefit of the doubt.
At the time we tried the case (1996), black candidates for judicial office had not done well in Milwaukee County. That has changed but not because the plaintiffs prevailed. Judge Gordon ruled in our favor and the Seventh Circuit affirmed. I'd like to think that events - subsequent successes by black candidates on a county wide basis - have validated his judgment, but I may not be the best one to make that judgment.
Judge Gordon wasn't - on the bench - a warm person. He was demanding. He expected good lawyering and strove to deliver good judging. He was one of the first judges in the district to impose time limits on trial lawyers. Although he occasionally sliced that loaf a bit too thin, he was right in recognizing that a command to brevity concentrates the mind.
Yet he wasn't unreasonable. It was not about his calendar and how delay made him look. It was not about how much more he knew than the lawyers before him. It was about doing justice in a way that people had a right to expect and about which we involved in the process could be proud.
I think he made the lawyers before him better. I think he made himself better. I know that, in the few instances when I appeared before him, he made me better.
R.I.P.
Cross posted at the Marquette University Law School Faculty Blog.
At the time we tried the case (1996), black candidates for judicial office had not done well in Milwaukee County. That has changed but not because the plaintiffs prevailed. Judge Gordon ruled in our favor and the Seventh Circuit affirmed. I'd like to think that events - subsequent successes by black candidates on a county wide basis - have validated his judgment, but I may not be the best one to make that judgment.
Judge Gordon wasn't - on the bench - a warm person. He was demanding. He expected good lawyering and strove to deliver good judging. He was one of the first judges in the district to impose time limits on trial lawyers. Although he occasionally sliced that loaf a bit too thin, he was right in recognizing that a command to brevity concentrates the mind.
Yet he wasn't unreasonable. It was not about his calendar and how delay made him look. It was not about how much more he knew than the lawyers before him. It was about doing justice in a way that people had a right to expect and about which we involved in the process could be proud.
I think he made the lawyers before him better. I think he made himself better. I know that, in the few instances when I appeared before him, he made me better.
R.I.P.
Cross posted at the Marquette University Law School Faculty Blog.
For Tom Barrett, the Challenge of Staying Put
George Lightbourn had a great column in yesterday's Milwaukee Journal Sentinel. His point is that Tom Barrett must choose between running for Governor and a mayoral takeover of the Milwaukee Public Schools. The point is that a mayoral takeover, if it is to accomplish anything, must shake up the status quo and afflict the organized interests that have dominated the making of policy in MPS.
Mayoral control won't do that in and of itelf. The idea is that school board elections attract low interest and turn out. In those circumstances, special interests (defined as organized interests with an intense interest in school policy) will dominate. Because more people care about election of the mayor, transferring control to his or her office will make school policy more responsive to the public at large.
Doing that well will almost certainly require upsetting some interests that are rather powerful in Democratic politics, including the teachers' union. If the Mayor must pull his punches in pursuit of an office he does not yet hold, the takeover will not work as intended.
Although Tom Barrett as Mayor would certainly be subject to political pressures, an entrenched incumbent may be better able to deflect them than an aspiring gubernatorial candidate.
I have no idea whether Barrett will run and, of course, most Republicans would prefer that he not if only because there does not seem to be another credible Democratic candidate around. But it remains the case that Barrett, if he stays at City Hall, may have a chance to do something of far greater significance than anything he could hope to accomplish as Governor.
Mayoral control won't do that in and of itelf. The idea is that school board elections attract low interest and turn out. In those circumstances, special interests (defined as organized interests with an intense interest in school policy) will dominate. Because more people care about election of the mayor, transferring control to his or her office will make school policy more responsive to the public at large.
Doing that well will almost certainly require upsetting some interests that are rather powerful in Democratic politics, including the teachers' union. If the Mayor must pull his punches in pursuit of an office he does not yet hold, the takeover will not work as intended.
Although Tom Barrett as Mayor would certainly be subject to political pressures, an entrenched incumbent may be better able to deflect them than an aspiring gubernatorial candidate.
I have no idea whether Barrett will run and, of course, most Republicans would prefer that he not if only because there does not seem to be another credible Democratic candidate around. But it remains the case that Barrett, if he stays at City Hall, may have a chance to do something of far greater significance than anything he could hope to accomplish as Governor.
Monday, November 02, 2009
Not our fairy tale
I knew it was a high risk proposition but we decided to go to yesterday's Packer-Vikings game. It was one of those things that could have gone better.
Brett Favre has certainly got his validation in that he is still an outstanding quarterback. But Aaron Rodgers showed that - today - he is just as good, if not a little better. Favre is making better decisions than he ever did as a Packer but there were very few years (if any) in which he had the supporting cast that he has now. Rodgers could, I suppose, make some decisions more quickly but he matched Favre blow for below without the advantage of a hall of fame running back and a competent offensive line.
But that brings us to Ted Thompson's real sins. It was criminal to go into this season with that offensive line. They played better in the second half (and Rodges may have been making better reads) but they cannot run block and are porous against the pass rush. You cannot build a team today while almost completely abjuring free agency. Give Rodgers time to throw and there are few teams he couldn't pick apart.
But there is more than personnel at work here. Much of offensive line play is coaching. Avoiding penalties is coaching. I think it remains an open question whether moving to the 3-4 was wise with the players this team has.
Whatever the truth of the latter point, I would love to see stats on how long Favre had to throw as compared to Rodgers. I am not sure that Favre was hit until the fourth quarter. He had forever to throw and boulevards for passing lanes. Rodgers was sacked six times and avoided at least that many with his mobility.
The difference in this came was not Brett Favre. It was the offensive lines and Percy Harvin. But Favre is playing at a Pro Bowl level.
Brett Favre has certainly got his validation in that he is still an outstanding quarterback. But Aaron Rodgers showed that - today - he is just as good, if not a little better. Favre is making better decisions than he ever did as a Packer but there were very few years (if any) in which he had the supporting cast that he has now. Rodgers could, I suppose, make some decisions more quickly but he matched Favre blow for below without the advantage of a hall of fame running back and a competent offensive line.
But that brings us to Ted Thompson's real sins. It was criminal to go into this season with that offensive line. They played better in the second half (and Rodges may have been making better reads) but they cannot run block and are porous against the pass rush. You cannot build a team today while almost completely abjuring free agency. Give Rodgers time to throw and there are few teams he couldn't pick apart.
But there is more than personnel at work here. Much of offensive line play is coaching. Avoiding penalties is coaching. I think it remains an open question whether moving to the 3-4 was wise with the players this team has.
Whatever the truth of the latter point, I would love to see stats on how long Favre had to throw as compared to Rodgers. I am not sure that Favre was hit until the fourth quarter. He had forever to throw and boulevards for passing lanes. Rodgers was sacked six times and avoided at least that many with his mobility.
The difference in this came was not Brett Favre. It was the offensive lines and Percy Harvin. But Favre is playing at a Pro Bowl level.
Saturday, October 31, 2009
More on the recusal rules
I didn't have a lot of time to explain why I think the state supreme court seems to have gotten it right in rejecting a proposed rule changes advanced by the League of Women Voters and retired Justice William Bablitch and in adopting changes advanced by WMC and the Wisconsin Realtors Association.
The LWV proposal was always a nonstarter. It would have required recusal whenever a party or a lawyer in a case had made a contribution in excess of $1000.00 or engaged in a "mass communication" on behalf of a judicial candidate. A mass communication could have consisted of as few as 50 phone calls, letters or e-mails. That would have made it impossible to raise a meaningful sum of money in judicial campaigns in all but the smallest counties. It was a massive assault on public participation and it is proposals like this that have rendered groups like Common Cause, the LWV and the WCD largely irrelevant in making public policy.
A proposed amendment by former Justice William Bablitch was more reasonable. It would have required recusal for direct or indirect contributions amounting to $10,000or more(cash or in kind) by an attorney or party with a direct or indirect interest in the case.
I think this still goes too far - particularly in large counties and definitely for state wide races. Because it applies to "in kind" expenditures, I would think that it would require recusal for any significant GOTV effort or any significant communication of an endorsement by an advocacy organization. It would, again, make it extremely difficult for their to be significant public participation in judicial elections and would strongly tilt the playing field in favor of incumbents.
This is not to say that a $10,000 contribution or expenditure might not create a circumstance in which recusal is appropriate. It might - particularly in a circuit court race. But I don't think it is fair to say that such a contribution would always create a potential for bias such that recusal should be warranted notwithstanding a judge's subjective determination that she can decide the matter impartially.
But the largest problem, I think, is the suggestion that an "indirect interest" might create cause for recusal. While I would be reluctant to say that can never be so, I am concerned that - without further definition - it may be read to imply a broad duty to recuse based upon supporter's ideological interest. Without getting into the details, this might be at odds with the what I believe to be the best application of first amendment jurisprudence to this area of the law, i.e., that the predispsotion to a particular legal position is not improper bias.
Justice Bablitch himself conceded that the term "indirect support" was problemantic and in need of further definition. But I think there is a problem with the endorsement of recusal standards that read more broadly than they can or should be applied. They permit unwarranted attacks on the legitimacy of the courts and the integrity of judges.
And that brings us to the rule changes that the Court did adopt. They most certainly do not amount to the Court "thumbing its nose" at the United States Supreme Court decision in Caperton. Although they might be improved, I think that the are properly read as perfectly consistent with that decision. They do not mean that contributions and independent expenditures can never create a potential for bias such that recusal is in order.
Rather, they make clear that recusal cannot be required "solely" due to lawful endorsements, contributions and independent expenditures. That seems right to me and saying so may have been necessary given some of the irresponsible calls for recusal made by groups like the WDC and OWN. The idea that Annette Ziegler ought to have recused herself because WMC filed an amicus brief in a case was wholly without merit and would have created an unworkable precedent.
I don't think that the rule means that contributions and expenditures are to be ignored in assessing a question of recusal or that there cannot be circumstances in which they do create a potential for bias in which recusal is necessary. But the mere fact that contributions and expenditures have been made cannot, without more, require recusal.
Having said that, it's not clear to me that the adopted rules could not be improved. They could be clarified to, for example, more clearly state what, at least in my view, they are intended to mean (e.g., making clear that they do not say lawful expenditures can never warrant recusal). They might be extended to offer more guidance. But they are, I think, better rules than the alternatives before the court.
Cross posted at Marquette University Law School Faculty Blog
The LWV proposal was always a nonstarter. It would have required recusal whenever a party or a lawyer in a case had made a contribution in excess of $1000.00 or engaged in a "mass communication" on behalf of a judicial candidate. A mass communication could have consisted of as few as 50 phone calls, letters or e-mails. That would have made it impossible to raise a meaningful sum of money in judicial campaigns in all but the smallest counties. It was a massive assault on public participation and it is proposals like this that have rendered groups like Common Cause, the LWV and the WCD largely irrelevant in making public policy.
A proposed amendment by former Justice William Bablitch was more reasonable. It would have required recusal for direct or indirect contributions amounting to $10,000or more(cash or in kind) by an attorney or party with a direct or indirect interest in the case.
I think this still goes too far - particularly in large counties and definitely for state wide races. Because it applies to "in kind" expenditures, I would think that it would require recusal for any significant GOTV effort or any significant communication of an endorsement by an advocacy organization. It would, again, make it extremely difficult for their to be significant public participation in judicial elections and would strongly tilt the playing field in favor of incumbents.
This is not to say that a $10,000 contribution or expenditure might not create a circumstance in which recusal is appropriate. It might - particularly in a circuit court race. But I don't think it is fair to say that such a contribution would always create a potential for bias such that recusal should be warranted notwithstanding a judge's subjective determination that she can decide the matter impartially.
But the largest problem, I think, is the suggestion that an "indirect interest" might create cause for recusal. While I would be reluctant to say that can never be so, I am concerned that - without further definition - it may be read to imply a broad duty to recuse based upon supporter's ideological interest. Without getting into the details, this might be at odds with the what I believe to be the best application of first amendment jurisprudence to this area of the law, i.e., that the predispsotion to a particular legal position is not improper bias.
Justice Bablitch himself conceded that the term "indirect support" was problemantic and in need of further definition. But I think there is a problem with the endorsement of recusal standards that read more broadly than they can or should be applied. They permit unwarranted attacks on the legitimacy of the courts and the integrity of judges.
And that brings us to the rule changes that the Court did adopt. They most certainly do not amount to the Court "thumbing its nose" at the United States Supreme Court decision in Caperton. Although they might be improved, I think that the are properly read as perfectly consistent with that decision. They do not mean that contributions and independent expenditures can never create a potential for bias such that recusal is in order.
Rather, they make clear that recusal cannot be required "solely" due to lawful endorsements, contributions and independent expenditures. That seems right to me and saying so may have been necessary given some of the irresponsible calls for recusal made by groups like the WDC and OWN. The idea that Annette Ziegler ought to have recused herself because WMC filed an amicus brief in a case was wholly without merit and would have created an unworkable precedent.
I don't think that the rule means that contributions and expenditures are to be ignored in assessing a question of recusal or that there cannot be circumstances in which they do create a potential for bias in which recusal is necessary. But the mere fact that contributions and expenditures have been made cannot, without more, require recusal.
Having said that, it's not clear to me that the adopted rules could not be improved. They could be clarified to, for example, more clearly state what, at least in my view, they are intended to mean (e.g., making clear that they do not say lawful expenditures can never warrant recusal). They might be extended to offer more guidance. But they are, I think, better rules than the alternatives before the court.
Cross posted at Marquette University Law School Faculty Blog
Conference on the Wisconsin Supreme Court: Review and Preview
At the beginning of this semester, I proposed that the law school host a conference on the Wisconsin Supreme Court. Dean Kearney lent his support and we were fortunate enough to obtain the co-sponsorship of the Appellate Practice section of the State Bar of Wisconsin.
So yesterday we hosted a sold out gathering of over 100 lawyers for "Conference on the Wisconsin Supreme Court: Review and Preview." Our meeting began with a plenary panel discussing the question of judicial recusal predicated on campaign contributions and speech. The discussion was moderated by the Hon. Diane Sykes (L'84) of the Seventh Circuit Court of Appeals and the panelists included Attorney Robert Henak (who has filed motions to recuse Justice Michael Gableman is connection with certain campaign ads and support), along with our own Chad Oldfather and me. Much of the discussion focused on the implications of the recent decision in Caperton v. A.T. Massey Coal Co. and the recent consideration by the Wisconsin Supreme Court of competing rules on recusal.
This discussion was followed with breakout panels discussing business and criminal law cases, respectively. The business discussion was chaired by Professor Ed Fallone and the panelists were Foley & Lardner partner and adjunct professor Thomas L. Shriner, Jr., and prominent bankruptcy lawyer Len Leverson. Our criminal panel was moderated by Dean Michael O'Hear and featured DOJ lawyer Greg Weber (L'87), Madison defense attorney and adjunct professor Dean Strang and former circuit judge Michael Brennan.
The group then came together for a plenary session to discuss the ongoing debate over th role of the judiciary in the context of the court's recent history. This panel was moderated by Michael Brennan and consisted of Lester Pines, an experienced supreme court advocate, the Hon. Lynn Adelman of the United States District Court of Wisconsin and me. The group tried to clarify terms like "activism" and "restraint" and considered their use in relation to judicial campaigns.
Break our sessions followed lunch. A great discussion of the court's cases in the civil rights area, largely focused on Coulee Catholic Schools v. LIRC, was moderated by Dean Strang and included Reinhart Boerner shareholder Dan Kelly and ACLU lawyer Karyn Rotker. At the same time, a panel on the court's liability cases was chaired by our own Jack Kircher (L'63) and featured two adjunct professors, Habush partner Tim Trecek (L'93) and Ralph Weber of Gass Weber Mullins. The group engaged in a lively discussion of the movement toward adoption of the Third Restatement in product liability cases.
The group came together one last time to preview cases on the Court's docket for the '09-'10 term. Panelists were Tom Shriner, Lester Pines and adjunct professor and chair of the Appellate Practice section, Anne Berleman Kearney, principal of the Appellate Consulting Group. Cases selected by the panelists illustrated the incredible breadth of the court's work.
In addition to Dean Joseph Kearney who generously and enthusiastically supported this project, I would like to thank our participants and all who helped put it together including Christine Wilczynski-Vogel, Carol Dufek, Ryan Rau, Kay Amhaus and Debbie Moore. I would also like to thank chair Anne Kearney and her colleagues on the board of the Appellate Practice section for their generous co-sponsorship and support.
To all who participated or attended, we'll see you next year in Eckstein Hall!
Cross posted at the Marquette University Law School Faculty Blog.
So yesterday we hosted a sold out gathering of over 100 lawyers for "Conference on the Wisconsin Supreme Court: Review and Preview." Our meeting began with a plenary panel discussing the question of judicial recusal predicated on campaign contributions and speech. The discussion was moderated by the Hon. Diane Sykes (L'84) of the Seventh Circuit Court of Appeals and the panelists included Attorney Robert Henak (who has filed motions to recuse Justice Michael Gableman is connection with certain campaign ads and support), along with our own Chad Oldfather and me. Much of the discussion focused on the implications of the recent decision in Caperton v. A.T. Massey Coal Co. and the recent consideration by the Wisconsin Supreme Court of competing rules on recusal.
This discussion was followed with breakout panels discussing business and criminal law cases, respectively. The business discussion was chaired by Professor Ed Fallone and the panelists were Foley & Lardner partner and adjunct professor Thomas L. Shriner, Jr., and prominent bankruptcy lawyer Len Leverson. Our criminal panel was moderated by Dean Michael O'Hear and featured DOJ lawyer Greg Weber (L'87), Madison defense attorney and adjunct professor Dean Strang and former circuit judge Michael Brennan.
The group then came together for a plenary session to discuss the ongoing debate over th role of the judiciary in the context of the court's recent history. This panel was moderated by Michael Brennan and consisted of Lester Pines, an experienced supreme court advocate, the Hon. Lynn Adelman of the United States District Court of Wisconsin and me. The group tried to clarify terms like "activism" and "restraint" and considered their use in relation to judicial campaigns.
Break our sessions followed lunch. A great discussion of the court's cases in the civil rights area, largely focused on Coulee Catholic Schools v. LIRC, was moderated by Dean Strang and included Reinhart Boerner shareholder Dan Kelly and ACLU lawyer Karyn Rotker. At the same time, a panel on the court's liability cases was chaired by our own Jack Kircher (L'63) and featured two adjunct professors, Habush partner Tim Trecek (L'93) and Ralph Weber of Gass Weber Mullins. The group engaged in a lively discussion of the movement toward adoption of the Third Restatement in product liability cases.
The group came together one last time to preview cases on the Court's docket for the '09-'10 term. Panelists were Tom Shriner, Lester Pines and adjunct professor and chair of the Appellate Practice section, Anne Berleman Kearney, principal of the Appellate Consulting Group. Cases selected by the panelists illustrated the incredible breadth of the court's work.
In addition to Dean Joseph Kearney who generously and enthusiastically supported this project, I would like to thank our participants and all who helped put it together including Christine Wilczynski-Vogel, Carol Dufek, Ryan Rau, Kay Amhaus and Debbie Moore. I would also like to thank chair Anne Kearney and her colleagues on the board of the Appellate Practice section for their generous co-sponsorship and support.
To all who participated or attended, we'll see you next year in Eckstein Hall!
Cross posted at the Marquette University Law School Faculty Blog.
Thursday, October 29, 2009
SCOWIS Conference Sold Out
If you snoozed, you lost. Tomorrow's conference on the Wisconsin Supreme Court at Marquette University Law School is sold out. Unfortunately, it cannot be podcast due to some technical problems. But you can read the highlights here.
The Supreme Court Gets It Right
It won't surprise anyone that I think the state Supreme Court did the right thing yesterday in rejecting the recusal standard proposed by the League of Women Voters and clarification of what, in and of itself, should not require recusal. The latter was, I think, required by what I think has been wildly irresponsible - and ideologically imbalanced - allegations and hints of bias from groups like the Wisconsin Democracy Campaign and One Wisconsin Now.
So I am also sympathetic to Justice David Prosser's impatience with Michael McCabe. The problem is not simply Justice Prosser's understandable irritation at the partisan way in which WDC pushes its "reform" agenda, but the way in which WDC itself undercuts public confidence in the court by its cynical promotion of extremely naive notions about the way in which the process works.
There may be judges who would sell themselves for the price of a lawful campaign contribution or endorsement but I have yet to meet one. It is certainly the case that elected judges worry about reelection. One judge has famously referred to the subject as a crocodile who sits in the bathtub while you're shaving. You try to ignore him, but you can't.
But nothing proposed by LWV would change that. If it worked the way folks like McCabe want it to, it would hand judicial elections to incumbents and insiders. What it would really do is complete the process of handing them to independent groups.
So I am also sympathetic to Justice David Prosser's impatience with Michael McCabe. The problem is not simply Justice Prosser's understandable irritation at the partisan way in which WDC pushes its "reform" agenda, but the way in which WDC itself undercuts public confidence in the court by its cynical promotion of extremely naive notions about the way in which the process works.
There may be judges who would sell themselves for the price of a lawful campaign contribution or endorsement but I have yet to meet one. It is certainly the case that elected judges worry about reelection. One judge has famously referred to the subject as a crocodile who sits in the bathtub while you're shaving. You try to ignore him, but you can't.
But nothing proposed by LWV would change that. If it worked the way folks like McCabe want it to, it would hand judicial elections to incumbents and insiders. What it would really do is complete the process of handing them to independent groups.
Monday, October 26, 2009
Shark Music: I won't stop
As I have shamelessly promoted here earlier, this Friday we are holding a conference on the past and future term of the Wisconsin Supreme Court at Marquette University Law School. If you are a lawyer in need of CLE or some one interested in the court or Wisconsin constitution, please come. I am in awe of the great lawyers who have agreed to participate.
This week I'll post a little on the state constitution, but will also offer some pertinent musical selections. (Music about the Wisconsin Constitution? Some would shrink from the challenge. Not me.)
Our state's constitution has an oft amended internal improvements clause, restricting the ability of the state to "contract any debt for works of internal improvement, or be a party in carrying on such works." There are lots of qualifications and judicially approved "work arounds" of this provision and, for reasons that my students can recite, I don't think it has much meaning today. But its genesis was in concern over the way that other states (as of the mid 19th century when our constitution was adopted) had gotten into financial difficulty over what we would call public works projects. One oft cited example was New York's construction of the Erie Canal. Bruce Springsteen has recently done a fantastic version of Thomas Allen's 1905 composition:
This week I'll post a little on the state constitution, but will also offer some pertinent musical selections. (Music about the Wisconsin Constitution? Some would shrink from the challenge. Not me.)
Our state's constitution has an oft amended internal improvements clause, restricting the ability of the state to "contract any debt for works of internal improvement, or be a party in carrying on such works." There are lots of qualifications and judicially approved "work arounds" of this provision and, for reasons that my students can recite, I don't think it has much meaning today. But its genesis was in concern over the way that other states (as of the mid 19th century when our constitution was adopted) had gotten into financial difficulty over what we would call public works projects. One oft cited example was New York's construction of the Erie Canal. Bruce Springsteen has recently done a fantastic version of Thomas Allen's 1905 composition:
Sunday, October 25, 2009
Halloween Is Here
It's the Season of the Witch
Welcome to My Nightmare
Well, honey, it's no rock and roll show
But the beat is coming nearer
So watch out for the boogie man
Welcome to My Nightmare
Well, honey, it's no rock and roll show
But the beat is coming nearer
So watch out for the boogie man
Friday, October 23, 2009
Obama's Fox Folly
Obama's war on Fox News is just plain stupid. It is, of course, utterly without merit. Fox News offers reportage and shows featuring opinion journalism and interviews hosted by conservatives. The news hours are fairly straightforward and even the opinion shows tend to feature a diverse set of guests. In this, I fail to see any distinction between Fox and, say, MNBC where the hosts tend to be liberal. Keith Olberman and Rachel Maddow are not any more "mainstream" or "objective" or "civil" than the Fox hosts.
But put that aside. You have a reputation for being coddled by the media. You are increasingly obtaining a reputation for being prickly when challenged? Why would you underscore those impressions by picking a fight with a news network who is "too critical"?
And why would you create a martyr? People in the TV news business will tell you that the Fox audience is far more politically diverse than that of the other cable news networks. Maybe that's why the administration feels the need to marginalize it, but isn't the greater danger that you will simply seem paranoid and imperious. Maybe "Nixonian" doesn't have the freight it once did, but the character flaws that it stood for are still very unattractive.
But put that aside. You have a reputation for being coddled by the media. You are increasingly obtaining a reputation for being prickly when challenged? Why would you underscore those impressions by picking a fight with a news network who is "too critical"?
And why would you create a martyr? People in the TV news business will tell you that the Fox audience is far more politically diverse than that of the other cable news networks. Maybe that's why the administration feels the need to marginalize it, but isn't the greater danger that you will simply seem paranoid and imperious. Maybe "Nixonian" doesn't have the freight it once did, but the character flaws that it stood for are still very unattractive.
Wednesday, October 21, 2009
The court is split, but on what?
I am not sure what Ed Garvey thinks he knows in suggesting that Mike Gableman's colleagues are split three to three.
Split on what?
What to do with the recommendation in the pending disciplinary action? It hasn't been made yet.
Whether to require him to recuse himself in criminal cases? It would surprise me if there are even two votes for that. And, if I'w wrong, how many votes will there be for the proposition that the Chief Justice who ran an ad in which she was promoted as "law enforcement's ally" ought to step down in criminal cases?
Whether to recuse himself in what Garvey calls "cases involving WMC?" If, by that, he means cases in which WMC has taken a position or filed an amicus brief, I doubt there would be even one vote. And, if there is, then how many cases will require require recusal because of the interests of public employee unions, casinos, plaintiffs lawyers, etc.? Who needs a Supreme Court anyway?
Ed seems to think that the Gableman campaign's now infamous "loophole" ad won the election. I doubt that. It was, as I understand it, a very small buy (the campaign had little money) and most of the times that it was ever ran was in the context of the controversy around it. I suspect that hurt Gableman (some politicos have told me that they think it stopped his momentum and almost beat him)in that the average voter simply apprehends that a candidate has been accused of doing something wrong.
Garvey finishes with the white whale of "reform." We should have public financing. But, as I explain in a forthcoming piece in the Harvard Journal of Law & Public Policy, public financing schemes are not likely to work because independent money will swamp the publicly funded candidates (just as it has swamped the privately financed campaign of the candidates under our present system).
If you want to hear a better discussion of these issues (from the perspective of both the right and left) come to Marquette University Law School on October 30.
In fact, maybe Ed should come too.
Split on what?
What to do with the recommendation in the pending disciplinary action? It hasn't been made yet.
Whether to require him to recuse himself in criminal cases? It would surprise me if there are even two votes for that. And, if I'w wrong, how many votes will there be for the proposition that the Chief Justice who ran an ad in which she was promoted as "law enforcement's ally" ought to step down in criminal cases?
Whether to recuse himself in what Garvey calls "cases involving WMC?" If, by that, he means cases in which WMC has taken a position or filed an amicus brief, I doubt there would be even one vote. And, if there is, then how many cases will require require recusal because of the interests of public employee unions, casinos, plaintiffs lawyers, etc.? Who needs a Supreme Court anyway?
Ed seems to think that the Gableman campaign's now infamous "loophole" ad won the election. I doubt that. It was, as I understand it, a very small buy (the campaign had little money) and most of the times that it was ever ran was in the context of the controversy around it. I suspect that hurt Gableman (some politicos have told me that they think it stopped his momentum and almost beat him)in that the average voter simply apprehends that a candidate has been accused of doing something wrong.
Garvey finishes with the white whale of "reform." We should have public financing. But, as I explain in a forthcoming piece in the Harvard Journal of Law & Public Policy, public financing schemes are not likely to work because independent money will swamp the publicly funded candidates (just as it has swamped the privately financed campaign of the candidates under our present system).
If you want to hear a better discussion of these issues (from the perspective of both the right and left) come to Marquette University Law School on October 30.
In fact, maybe Ed should come too.
First Annual Conference on the Wisconsin Supreme Court
Pne of the many reasons blogging has been light to nonexistent here is that I have been organizing a CLE seminar on the Wisconsin Supreme Court which will take place at Marquette University Law School on October 30. If you are a lawyer, we're applying for five CLE credits for 40 bucks - lunch included. If you haven't signed up yet, now is the time.
Conference on the Wisconsin Supreme Court:
Review and Preview
Sponsored by
Marquette University Law School and
Appellate Practice Section of the State Bar of Wisconsin
Friday, October 30, 2009
Marquette Law School – Sensenbrenner Hall, 3rd floor
8:15 a.m., registration and coffee
8:45 a.m., program begins
3 p.m., program ends
$40 per person
Lunch will be provided
Limited space
Reserve your spot by October 16.
5 CLE credits applied for
This conference will review the 2008-09 term of the Wisconsin Supreme Court, preview the term just begun, and address ongoing matters concerning the role of the Court and the impact of campaign speech and finance on its work.
Panels will address the Court’s past term in the areas of business law, torts, and product liability; substantive and procedural criminal law; and public law. Separate panels will address the ongoing debate concerning the Court’s jurisprudence and questions of judicial independence in the context of recent election cycles and the United States Supreme Court’s developing jurisprudence on due process and free speech, including the 2009 decision in Caperton v. A.T. Massey Coal Company. The tentative schedule follows here.
CONFERENCE SCHEDULE—MORNING
8:45 a.m., Welcome, Dean Joseph D, Kearney
Session 1—Plenary
Speak Up and Stand Down?
Judicial Elections and Independence After Caperton
Moderator
Hon. Diane S. Sykes, L’84
United States Court of Appeals for the Seventh Circuit
Panelists
Richard M. Esenberg
Marquette Law School
Robert R. Henak
Henak Law Office, S.C.
Chad M. Oldfather
Marquette Law School
Session 2—Concurrent Sessions
Business Cases During the 2008-09 Term
Moderator
Edward A. Fallone
Marquette Law School
Panelists
Thomas L. Shriner, Jr.
Foley & Lardner
Adjunct Professor of Law
Leonard G. Leverson
Leverson & Metz SC
Criminal Law Cases During the 2008-09 Term
Moderator
Michael M. O’Hear
Marquette Law School
Panelist
Michael B. Brennan
Gass Weber Mullins LLC
Greg Weber
Wisconsin Department of Justice
Session 3—Plenary
Whither Activism and Restraint: Has the Court Changed and How?
Moderator
Michael B. Brennan
Gass Weber Mullins LLC
Panelists
Hon. Lynn S. Adelman
United States District Court for the Eastern District of Wisconsin
Richard M. Esenberg
Marquette Law School
Lester A. Pines
Cullen Weston Pines & Bach LLC
LUNCH (noon, to be provided)
CONFERENCE SCHEDULE—AFTERNOON (begins at 1 p.m.)
Session 4—Concurrent Sessions
Liability Cases in the 2008-09 Term
Moderator
John J. Kircher
Marquette Law School
Panelists
Timothy S. Trecek, L’93
Habush Habush & Rottier SC
Adjunct Professor of Law
Ralph A. Weber
Gass Weber Mullins LLC
Adjunct Professor of Law
Civil Rights and Liberties
Moderator
Dean A. Strang
Hurley Burish & Stanton
Adjunct Professor of Law
Panelists
Daniel R. Kelly
Reinhart Boerner Van Deuren S.C.
Karyn L. Rotker
American Civil Liberties Union Foundation of Wisconsin
Session 5—Plenary
A Preview of the 2009-10 Term
Moderator
Richard M. Esenberg
Marquette Law School
Panelists
Anne Berleman Kearney
Appellate Consulting Group
Adjunct Professor of Law
Lester A. Pines
Cullen Weston Pines & Bach LLC
Thomas L. Shriner, Jr.
Foley & Lardner
Adjunct Professor of Law
Conference on the Wisconsin Supreme Court:
Review and Preview
Sponsored by
Marquette University Law School and
Appellate Practice Section of the State Bar of Wisconsin
Friday, October 30, 2009
Marquette Law School – Sensenbrenner Hall, 3rd floor
8:15 a.m., registration and coffee
8:45 a.m., program begins
3 p.m., program ends
$40 per person
Lunch will be provided
Limited space
Reserve your spot by October 16.
5 CLE credits applied for
This conference will review the 2008-09 term of the Wisconsin Supreme Court, preview the term just begun, and address ongoing matters concerning the role of the Court and the impact of campaign speech and finance on its work.
Panels will address the Court’s past term in the areas of business law, torts, and product liability; substantive and procedural criminal law; and public law. Separate panels will address the ongoing debate concerning the Court’s jurisprudence and questions of judicial independence in the context of recent election cycles and the United States Supreme Court’s developing jurisprudence on due process and free speech, including the 2009 decision in Caperton v. A.T. Massey Coal Company. The tentative schedule follows here.
CONFERENCE SCHEDULE—MORNING
8:45 a.m., Welcome, Dean Joseph D, Kearney
Session 1—Plenary
Speak Up and Stand Down?
Judicial Elections and Independence After Caperton
Moderator
Hon. Diane S. Sykes, L’84
United States Court of Appeals for the Seventh Circuit
Panelists
Richard M. Esenberg
Marquette Law School
Robert R. Henak
Henak Law Office, S.C.
Chad M. Oldfather
Marquette Law School
Session 2—Concurrent Sessions
Business Cases During the 2008-09 Term
Moderator
Edward A. Fallone
Marquette Law School
Panelists
Thomas L. Shriner, Jr.
Foley & Lardner
Adjunct Professor of Law
Leonard G. Leverson
Leverson & Metz SC
Criminal Law Cases During the 2008-09 Term
Moderator
Michael M. O’Hear
Marquette Law School
Panelist
Michael B. Brennan
Gass Weber Mullins LLC
Greg Weber
Wisconsin Department of Justice
Session 3—Plenary
Whither Activism and Restraint: Has the Court Changed and How?
Moderator
Michael B. Brennan
Gass Weber Mullins LLC
Panelists
Hon. Lynn S. Adelman
United States District Court for the Eastern District of Wisconsin
Richard M. Esenberg
Marquette Law School
Lester A. Pines
Cullen Weston Pines & Bach LLC
LUNCH (noon, to be provided)
CONFERENCE SCHEDULE—AFTERNOON (begins at 1 p.m.)
Session 4—Concurrent Sessions
Liability Cases in the 2008-09 Term
Moderator
John J. Kircher
Marquette Law School
Panelists
Timothy S. Trecek, L’93
Habush Habush & Rottier SC
Adjunct Professor of Law
Ralph A. Weber
Gass Weber Mullins LLC
Adjunct Professor of Law
Civil Rights and Liberties
Moderator
Dean A. Strang
Hurley Burish & Stanton
Adjunct Professor of Law
Panelists
Daniel R. Kelly
Reinhart Boerner Van Deuren S.C.
Karyn L. Rotker
American Civil Liberties Union Foundation of Wisconsin
Session 5—Plenary
A Preview of the 2009-10 Term
Moderator
Richard M. Esenberg
Marquette Law School
Panelists
Anne Berleman Kearney
Appellate Consulting Group
Adjunct Professor of Law
Lester A. Pines
Cullen Weston Pines & Bach LLC
Thomas L. Shriner, Jr.
Foley & Lardner
Adjunct Professor of Law
Wednesday, October 14, 2009
When the Answer is No: Constitutional Protection for Faith Healing?
The tragic case of Kara Neumann highlights one of the problems with robust protection for the free exercise of religion. Kara died of untreated diabetes because her parents chose to pray rather than take her to the doctor. Both have been convicted of second degree reckless homicide. How does their prosecution square with robust protection of religious freedom?
The difficulty with strong free exercise protection is not simply how to cabin the freedom (by saying that the state may restrict it only if necessary to serve a compelling state interest) but how to define what constitutes a religious claim and to assess the strength of the religious claim asserted. The problem is that the notion of religious freedom cuts against the evaluation of the strength or reasonableness of religious claims and that leaves us with a potential universe of claims that is limited only by Revelation or imagination. That is no limit at all.
This is, I think, one of the reasons that the United States Supreme Court has not afforded generous protection to free exercise, holding that neutral laws of general applicability not aimed at suppressing religious exercise are not subject to heightened scrutiny. But Wisconsin interprets the protection of religious belief and freedom of conscience included in its Constitution differently. It does afford strict scrutiny to the substantial burdens on the free exercise of religion.
State law prohibits charges of child neglect based solely on healing by prayer. But it provides no such exemption for more serious charges such as reckless homicide. There are, I think, two principal questions.
First, must the state permit parents to heal by prayer? My own view is that the state has a compelling interest in protecting life and that interest can justify interfering in parental prerogatives.
Second, does a more robust protection for religious free exercise require any - or a broader - exemption from criminal prosecution? It is, after all, one thing to say that one has no right to deny medical treatment for one's child and another to say that, if one does so, one should be prosecuted. Not everything that can be prohibited (or prevented) ought to be criminalized.
Perhaps Wisconsin has it right. Maybe the state's interest in prosecuting such conduct does not become compelling until it inflicts the more substantial injuries that support a charge other than child abuse, such as reckless homicide or the infliction of substantial bodily injury.
Cross posted at Marquette University Law School Faculty Blog.
The difficulty with strong free exercise protection is not simply how to cabin the freedom (by saying that the state may restrict it only if necessary to serve a compelling state interest) but how to define what constitutes a religious claim and to assess the strength of the religious claim asserted. The problem is that the notion of religious freedom cuts against the evaluation of the strength or reasonableness of religious claims and that leaves us with a potential universe of claims that is limited only by Revelation or imagination. That is no limit at all.
This is, I think, one of the reasons that the United States Supreme Court has not afforded generous protection to free exercise, holding that neutral laws of general applicability not aimed at suppressing religious exercise are not subject to heightened scrutiny. But Wisconsin interprets the protection of religious belief and freedom of conscience included in its Constitution differently. It does afford strict scrutiny to the substantial burdens on the free exercise of religion.
State law prohibits charges of child neglect based solely on healing by prayer. But it provides no such exemption for more serious charges such as reckless homicide. There are, I think, two principal questions.
First, must the state permit parents to heal by prayer? My own view is that the state has a compelling interest in protecting life and that interest can justify interfering in parental prerogatives.
Second, does a more robust protection for religious free exercise require any - or a broader - exemption from criminal prosecution? It is, after all, one thing to say that one has no right to deny medical treatment for one's child and another to say that, if one does so, one should be prosecuted. Not everything that can be prohibited (or prevented) ought to be criminalized.
Perhaps Wisconsin has it right. Maybe the state's interest in prosecuting such conduct does not become compelling until it inflicts the more substantial injuries that support a charge other than child abuse, such as reckless homicide or the infliction of substantial bodily injury.
Cross posted at Marquette University Law School Faculty Blog.
Sunday, October 11, 2009
Sunday Music - Nobel Laureates Division
The nominees:
And the winner (because the 15 year old Shark had a crush on her):
And the winner (because the 15 year old Shark had a crush on her):
Nobel is same old
Although the award itself was bizarre and self destructive, the debate following Obama's Nobel Day is of a piece with what we've been seeing for quite some time.
First, there is still the effort - diminishing but still breathing - to hang on to the Transcendent Obama - the figure who is salvific by virtue of who he is rather than what he does. The DNC trotted that out, repeating the tired notion that opposition to the President is opposition to the nation. We have to feel pride in the President's honor or be accused of "throwing our lot in" with the Taliban and placing politics above patriotism.
We have to take pride in an award that everyone agrees (and the Nobel Committee concedes) was given to the President not for his accomplishments, but because the Norwegian leftists who hand it out want to encourage what they understand to be his policies. Whether or not we believe that the policies that the Committee sought to endorse would be disastrous for the nation and the world, we have to celebrate the award.
We have to - at the risk of suggestions of treason - because ... why? We have to celebrate Obama and his policies (for there is nothing to be "proud of" here but the policies)because Obama is America? Geez, if you don't want to encourage over the top Hitler references, that's not a good approach to take.*
The second theme is ... see ... the world loves us now. No, they don't. We are the same as we always were. What they would love is an America that does not use its power in support of its interests. What they would love is an America that, if it offers its power in support of world peace, does so at the direction of and in service to a mythical international community.
Maybe that would be a better America but whether it would or would not has nothing to do with whether European socialists think so.
The third - advanced by conservatives - is that this shows that Obame is headed in precisely the wrong direction. Think of it as the mirror image of the second theme. When Scandanavian socialist internationalists love us, something is very wrong. Again, the truth of the matter is or is not in its substance and not in the company it keeps.
Finally, it advances the current political theme that Obama is a joke. It isn't merely that he has not accomplished anything. There is, after all, still a long way to go. The theme has power because he became President without really accomplishing anything of Presidential stature and (this is critical) he and his supporters repeatedly act like he is ready for Mount Rushmore. Never has so much been claimed by so many for so little.
And this brings me to a point of speculation. Are the folks in Oslo really that clueless? This prize does not help Obama. Couldn't they see that? Did they really bestow this award without any communication with the White House? Are they that impressed with themselves?
*Die Partei ist Hitler - und Hitler ist Deutschland, gerade da Deutschland Hitler ist! - Rudolph Hess (1934)
First, there is still the effort - diminishing but still breathing - to hang on to the Transcendent Obama - the figure who is salvific by virtue of who he is rather than what he does. The DNC trotted that out, repeating the tired notion that opposition to the President is opposition to the nation. We have to feel pride in the President's honor or be accused of "throwing our lot in" with the Taliban and placing politics above patriotism.
We have to take pride in an award that everyone agrees (and the Nobel Committee concedes) was given to the President not for his accomplishments, but because the Norwegian leftists who hand it out want to encourage what they understand to be his policies. Whether or not we believe that the policies that the Committee sought to endorse would be disastrous for the nation and the world, we have to celebrate the award.
We have to - at the risk of suggestions of treason - because ... why? We have to celebrate Obama and his policies (for there is nothing to be "proud of" here but the policies)because Obama is America? Geez, if you don't want to encourage over the top Hitler references, that's not a good approach to take.*
The second theme is ... see ... the world loves us now. No, they don't. We are the same as we always were. What they would love is an America that does not use its power in support of its interests. What they would love is an America that, if it offers its power in support of world peace, does so at the direction of and in service to a mythical international community.
Maybe that would be a better America but whether it would or would not has nothing to do with whether European socialists think so.
The third - advanced by conservatives - is that this shows that Obame is headed in precisely the wrong direction. Think of it as the mirror image of the second theme. When Scandanavian socialist internationalists love us, something is very wrong. Again, the truth of the matter is or is not in its substance and not in the company it keeps.
Finally, it advances the current political theme that Obama is a joke. It isn't merely that he has not accomplished anything. There is, after all, still a long way to go. The theme has power because he became President without really accomplishing anything of Presidential stature and (this is critical) he and his supporters repeatedly act like he is ready for Mount Rushmore. Never has so much been claimed by so many for so little.
And this brings me to a point of speculation. Are the folks in Oslo really that clueless? This prize does not help Obama. Couldn't they see that? Did they really bestow this award without any communication with the White House? Are they that impressed with themselves?
*Die Partei ist Hitler - und Hitler ist Deutschland, gerade da Deutschland Hitler ist! - Rudolph Hess (1934)
Friday, October 09, 2009
Norway loves Obama
At least President Obama had the grace (or at least the political instinct) to acknowledge that he had not really done anything to earn the Nobel Peace Prize. The Prize has been largely devalued by the tendency of the Norwegian politicians who award it to use it for political purposes. This year they made that intention quite explicit. They wanted to "respond" to what they see as Obama's change in US foreign policy.
But what is that change? I guess that Obama has made clear that he would not have wanted to waterboard those three Al Qaeda operatives. He has given some speeches that, depending on your perspective, present either a "kinder and gentler" America or a weaker one unwilling to assert its moral authority and military power in service of its own interests or those of democracy - at least in a way that is not endorsed by an international "consensus."
It is possible, I suppose, that this approach might lead to a greater degree of world peace. But there is not much historical reason to think so. And there is reason to believe that it will lead much injustice to go undeterred. As Jonah Goldberg observes, there is an irony to today's announcement:
And what is - precisely - that this "response" or statement of support is supposed to accomplish? Is the President supposed to be guided by the sentiments of those who honored him? Are world leaders supposed to be more favorably disposed to Obama initiatives (if there any) as if Iran would have developed a nuclear weapon but, since a Nobel laureate asked it not to ....
But what is that change? I guess that Obama has made clear that he would not have wanted to waterboard those three Al Qaeda operatives. He has given some speeches that, depending on your perspective, present either a "kinder and gentler" America or a weaker one unwilling to assert its moral authority and military power in service of its own interests or those of democracy - at least in a way that is not endorsed by an international "consensus."
It is possible, I suppose, that this approach might lead to a greater degree of world peace. But there is not much historical reason to think so. And there is reason to believe that it will lead much injustice to go undeterred. As Jonah Goldberg observes, there is an irony to today's announcement:
The only thing that really bothers me is that this comes just days after
the Obama administration turned a blind eye to the Dalai Lama and told the world
that it's at least considering a separate peace with the Taliban. That's
grotesque. Meanwhile, there are real peace activists and dissidents out there
whose dungeons will stay just as cold and dark for another year because of this.
Indeed, this news comes during a year when the Iranian people rose up against
tyranny and were crushed. Surely someone in Iran — or maybe the Iranian
protesters generally — could have benefited more from receiving the prize than
a president who, so far, has done virtually nothing concrete for world
peace.
And what is - precisely - that this "response" or statement of support is supposed to accomplish? Is the President supposed to be guided by the sentiments of those who honored him? Are world leaders supposed to be more favorably disposed to Obama initiatives (if there any) as if Iran would have developed a nuclear weapon but, since a Nobel laureate asked it not to ....
Friday, October 02, 2009
Throat clearing at the Times
Other responsibilities have kept me off the blog, so here's some catching up.
In a recent column, National Review's Jonah Goldberg observes that one of the political advantages for conservatives is that the left will never take us seriously. They will never try to understand what we are saying and formulate a response. While that certainly isn't true across the board, it is - and always has been - a large part of the progressive response to political challenge.
New York Times columnist Thomas Friedman is worried about the tone of our political debate and frets that political opposition has become so hyperbolic that the outs can't recognize the legitimacy of the ins. This makes impossible the unity that he believes is necessary to solve urgent problems. He exploits our fear of political violence.
This would come a little easier if Friedman, now so concerned about intemperate criticism or disturbed rantings against the President Obama had expressed similar concern about the same things directed at President Bush. Joe Wilson should have listened to the President in silence. So should the Democrats (note the plural) who booed the State of the Union Speech in 2005. Obscure facebook pages that discuss assassination are disgusting. But remember that Michelle Malkin had enough material during the Bush 43 administration to fill an ongoing thread on "assassination chic."
Friedman's paean to unity would be a bit more convincing from someone who hadn't just written a column suggesting that one party rule ain't all bad. When you are upset that others are criticizing your side for its statist and technocratic tendencies, you ought to avoid feeding their fears.
Paul Krugman has been on this case all summer and, earlier this week, suggests that conservatives hate Obama more than they love America because of the schadenfreude that greeted the President's failure to capture the 2016 Olympics for Chicago. People at the Weekly Standard cheered the announcement and Rush Limbaugh was gleeful. But the comment that he referred to at the Standard was a bit tongue in cheek, claiming that they cheered Obama's "jingoist" privileging of imperialistic America's grab for the Games. Although Krugman doesn't say so, Limbaugh said he was "gleeful" because he does not want Obama to succeed (that again) in putting into place policies that will hurt the country. If he loses political capital over a failed effort to score points on something as unimportant as Chicago's Olympic bid (over which even Chicagoans were sharply divided), then Limbaugh's glee is understandable.
In any event, had Bush been foolish enough to invest the same political capital in New York's bid for the 2012 games, I suspect that we could have found comparable reactions on the left.
The stunning cluelessness and hypocrisy of those who are claim to have discovered a "disturbing new vitriol" in our political debate is uncontestable. While Friedman says he has concerned about the delegitimization of the President, he is himself engaged in delegitimization of opposition to the President. In that project, he's part of the crowd at the Times.
In a recent column, National Review's Jonah Goldberg observes that one of the political advantages for conservatives is that the left will never take us seriously. They will never try to understand what we are saying and formulate a response. While that certainly isn't true across the board, it is - and always has been - a large part of the progressive response to political challenge.
New York Times columnist Thomas Friedman is worried about the tone of our political debate and frets that political opposition has become so hyperbolic that the outs can't recognize the legitimacy of the ins. This makes impossible the unity that he believes is necessary to solve urgent problems. He exploits our fear of political violence.
This would come a little easier if Friedman, now so concerned about intemperate criticism or disturbed rantings against the President Obama had expressed similar concern about the same things directed at President Bush. Joe Wilson should have listened to the President in silence. So should the Democrats (note the plural) who booed the State of the Union Speech in 2005. Obscure facebook pages that discuss assassination are disgusting. But remember that Michelle Malkin had enough material during the Bush 43 administration to fill an ongoing thread on "assassination chic."
Friedman's paean to unity would be a bit more convincing from someone who hadn't just written a column suggesting that one party rule ain't all bad. When you are upset that others are criticizing your side for its statist and technocratic tendencies, you ought to avoid feeding their fears.
Paul Krugman has been on this case all summer and, earlier this week, suggests that conservatives hate Obama more than they love America because of the schadenfreude that greeted the President's failure to capture the 2016 Olympics for Chicago. People at the Weekly Standard cheered the announcement and Rush Limbaugh was gleeful. But the comment that he referred to at the Standard was a bit tongue in cheek, claiming that they cheered Obama's "jingoist" privileging of imperialistic America's grab for the Games. Although Krugman doesn't say so, Limbaugh said he was "gleeful" because he does not want Obama to succeed (that again) in putting into place policies that will hurt the country. If he loses political capital over a failed effort to score points on something as unimportant as Chicago's Olympic bid (over which even Chicagoans were sharply divided), then Limbaugh's glee is understandable.
In any event, had Bush been foolish enough to invest the same political capital in New York's bid for the 2012 games, I suspect that we could have found comparable reactions on the left.
The stunning cluelessness and hypocrisy of those who are claim to have discovered a "disturbing new vitriol" in our political debate is uncontestable. While Friedman says he has concerned about the delegitimization of the President, he is himself engaged in delegitimization of opposition to the President. In that project, he's part of the crowd at the Times.
Tuesday, September 29, 2009
Shark in Mizzou
We spent the weekend in Missouri visiting our niece Monica who is a freshman at the University of Missouri in Columbia and watching the Packers play the Rams. Mizzou has a very nice campus and probably the best student rec center that I have ever seen. The Edward R. Jones Dome is nice enough (and I am a huge proponent of downtown stadiums) but football should not be played indoors. I am not sure how it looked on TV but the place was full of Packer fans. In our section, it was about 90% green and gold.
The Packers did not play well, but the offensive line seemed to improve as the game continued. If that improvement is replicable against someone other than St. Louis, I think we saw what the Packers can do in the deep game.
On the other hand, I don't see them maintaining a 9:1 takeaway ratio for the rest of the year.
The Packers did not play well, but the offensive line seemed to improve as the game continued. If that improvement is replicable against someone other than St. Louis, I think we saw what the Packers can do in the deep game.
On the other hand, I don't see them maintaining a 9:1 takeaway ratio for the rest of the year.
Wednesday, September 23, 2009
Real man of financial genius?
It's just too easy to point out the hypocrisy and silliness in the story line about conservative rage and racism. If you want to see expressions of simple outrage over public policy (be it the war in Iraq or the President's health care plan), go to a public meeting. They're pep rallies. If you want considered arguments about these things, read the New Republic or National Review. (What you read won't always be well considered, but you'll get the reasons for the outrage.)
What's more interesting is whether this is a good strategy for the left. I understand that bloggers enjoy all the snickering about "tea bagging" (itself reinforcing the popular image of liberals as sexual libertines) and their posture of superiority. But none of this is particularly appealing to the unconverted. The President increasingly seems pedantic and his party comes across as petulant and arrogant. You can pretend that significant expansions in the size and role of government do not raise profound and troubling questions, but you won't convince a majority in that way.
So why do it? The answer is suggested by Democratic Party leader Mike Tate, recently castigated by Charlie Sykes for his intemperate rhetoric. Charlie sarcastically calls Tate a "real man of political genius."
But maybe, in a way, he is. Of course, he sounds like a bit like an automaton filling in the blanks about how awful the other side is.
But doesn't that raise money?
What's more interesting is whether this is a good strategy for the left. I understand that bloggers enjoy all the snickering about "tea bagging" (itself reinforcing the popular image of liberals as sexual libertines) and their posture of superiority. But none of this is particularly appealing to the unconverted. The President increasingly seems pedantic and his party comes across as petulant and arrogant. You can pretend that significant expansions in the size and role of government do not raise profound and troubling questions, but you won't convince a majority in that way.
So why do it? The answer is suggested by Democratic Party leader Mike Tate, recently castigated by Charlie Sykes for his intemperate rhetoric. Charlie sarcastically calls Tate a "real man of political genius."
But maybe, in a way, he is. Of course, he sounds like a bit like an automaton filling in the blanks about how awful the other side is.
But doesn't that raise money?
Thursday, September 17, 2009
Prognostication About a Judicial Ethics Complaint
Yesterday a three judge panel heard oral arguments on the disciplinary complaint against Justice Michael Gablemen. You can review the offending ad here and my recent discussion of it on Prawfsblawg there.
There are two rules that are pertinent. The first sentence of 60.06(3)(c) provides "[a] candidate for a judicial office shall not knowingly or with reckless disregard for the statement's truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent." This is the proscription that the Judicial Commission says was violated by the Mitchell ad.
But there is a second sentence. It states that "[a] candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system."
The difference between "shall" and "should" is significant. The preamble to the Judicial Code states that "[t]he use of "should" or "should not" in the rules is intended to encourage or discourage specific conduct and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined." (emphasis supplied)
Everyone agrees that the ad contained a series of statements which, read in isolation, are true. Almost everyone agrees that this same series of statements, when read together, conveys or implies a message which is, in one or more respects, false. The ad says "Butler found a loophole. Mitchell went on to molest another child." Someone hearing the ad would likely conclude that it means "Butler found a loophole. As a result, Mitchell went free. And then Mitchell offended again."
But there is a potential problem. Gableman has free speech rights and it is not an easy question to define the circumstances under which the state can punish speech that it determines to be false. Indeed, some would argue - and Gableman does - that it can only punish speech that is defamatory subject to certain additional constitutionally required qualifications. Because 60.06(3)(c) is not so limited, it is facially overbroad and should be declared unconstitutional.
I don't see that happening.
But the other day, while discussing the case with a reporter for the National Law Journal, I concluded that this might.
The panel may construe 60.06(3)(c) narrowly to require a literally false statement in much the same way that prosecution for perjury generally requires such a statement. Or it may conclude that it is unconstitutional if applied to statements that are literally true but claimed to convey or imply a false message.
Why would the panel do this? Don't I think - shouldn't they think - that the ad is false? I do and they probably do too, but I am - and, by the questions put at oral argument, they are - concerned about the state taking on the responsibility to determine whether political speech - something which is at the core of first amendment protection - would be understood to convey a false message.
This is particularly so in the context of campaign ads that are highly truncated messages (often no more than thirty seconds long) that almost must oversimplify the issues that are discussed.
For example, during the Presidential election, the Obama campaign ran some ads that claimed John McCain would "tax your health care benefits." That was literally true. It is not unreasonable to further claim that it would be understood by most people to mean that they would have to pay new taxes under McCain's plan.
But that understanding would be false. McCain was also proposed providing a tax credit that would offset any new taxes for almost everyone. The Obama campaign read some ads that mentioned this credit but others that did not. Still others, while mentioning the tax credit, also referred to a middle tax class hike and asked whether "you" could afford it? Should the first amendment permit the sanctions for such ads? My initial reaction is "no."
This concern is magnified here because finding a violation of the first sentence of 60.06(3)(c) raises the question of discipline and, while that discipline might be limited to a reprimand or a fine, other potential sanctions - suspension or removal - raise uncomfortable issues about disciplinary proceedings interfering with the result of an election. They aren't going to happen.
But what about the second sentence of 60.06(3)(c)? It is not what the Judicial Commission relies upon, but might the panel nevertheless observe that the Gableman ad violates this aspirational rule. Maybe it is true, but it is certainly misleading. There cannot be a sanction for violating it, but there certainly can be criticism. Would official disapproval of political speech violate the First Amendment? I think not and it would avoid difficult questions about undermining the outcome of an election. (Although you might make the same argument about a reprimand, such an official disciplinary act may be different, particularly in a system of progressive discipline.)
Cross posted at Prawfsblawg and Marquette University Law School Faculty Blog.
There are two rules that are pertinent. The first sentence of 60.06(3)(c) provides "[a] candidate for a judicial office shall not knowingly or with reckless disregard for the statement's truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent." This is the proscription that the Judicial Commission says was violated by the Mitchell ad.
But there is a second sentence. It states that "[a] candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system."
The difference between "shall" and "should" is significant. The preamble to the Judicial Code states that "[t]he use of "should" or "should not" in the rules is intended to encourage or discourage specific conduct and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined." (emphasis supplied)
Everyone agrees that the ad contained a series of statements which, read in isolation, are true. Almost everyone agrees that this same series of statements, when read together, conveys or implies a message which is, in one or more respects, false. The ad says "Butler found a loophole. Mitchell went on to molest another child." Someone hearing the ad would likely conclude that it means "Butler found a loophole. As a result, Mitchell went free. And then Mitchell offended again."
But there is a potential problem. Gableman has free speech rights and it is not an easy question to define the circumstances under which the state can punish speech that it determines to be false. Indeed, some would argue - and Gableman does - that it can only punish speech that is defamatory subject to certain additional constitutionally required qualifications. Because 60.06(3)(c) is not so limited, it is facially overbroad and should be declared unconstitutional.
I don't see that happening.
But the other day, while discussing the case with a reporter for the National Law Journal, I concluded that this might.
The panel may construe 60.06(3)(c) narrowly to require a literally false statement in much the same way that prosecution for perjury generally requires such a statement. Or it may conclude that it is unconstitutional if applied to statements that are literally true but claimed to convey or imply a false message.
Why would the panel do this? Don't I think - shouldn't they think - that the ad is false? I do and they probably do too, but I am - and, by the questions put at oral argument, they are - concerned about the state taking on the responsibility to determine whether political speech - something which is at the core of first amendment protection - would be understood to convey a false message.
This is particularly so in the context of campaign ads that are highly truncated messages (often no more than thirty seconds long) that almost must oversimplify the issues that are discussed.
For example, during the Presidential election, the Obama campaign ran some ads that claimed John McCain would "tax your health care benefits." That was literally true. It is not unreasonable to further claim that it would be understood by most people to mean that they would have to pay new taxes under McCain's plan.
But that understanding would be false. McCain was also proposed providing a tax credit that would offset any new taxes for almost everyone. The Obama campaign read some ads that mentioned this credit but others that did not. Still others, while mentioning the tax credit, also referred to a middle tax class hike and asked whether "you" could afford it? Should the first amendment permit the sanctions for such ads? My initial reaction is "no."
This concern is magnified here because finding a violation of the first sentence of 60.06(3)(c) raises the question of discipline and, while that discipline might be limited to a reprimand or a fine, other potential sanctions - suspension or removal - raise uncomfortable issues about disciplinary proceedings interfering with the result of an election. They aren't going to happen.
But what about the second sentence of 60.06(3)(c)? It is not what the Judicial Commission relies upon, but might the panel nevertheless observe that the Gableman ad violates this aspirational rule. Maybe it is true, but it is certainly misleading. There cannot be a sanction for violating it, but there certainly can be criticism. Would official disapproval of political speech violate the First Amendment? I think not and it would avoid difficult questions about undermining the outcome of an election. (Although you might make the same argument about a reprimand, such an official disciplinary act may be different, particularly in a system of progressive discipline.)
Cross posted at Prawfsblawg and Marquette University Law School Faculty Blog.
Thursday, September 10, 2009
Obama promises what can't be true: Good politics or strategic blunder?
Does candor work in politics? By any measure, the President's speech on health care last night was chock full of misleading statements, misrepresentations and dubious speculation. We won't require you to change your existing policy even though millions of you will lose it. Mandating preventive care will save money even though studies show that it won't. I somehow won't cut medicare even as I reduce spending on medicare dramatically.
Now before you go all pot and kettle on me, I am fully aware that it wouldn't take long for someone to find a speech by a GOP leader that is similarly misleading. Health Savings Accounts are a a good idea but they are not the panacea that some on my side of the debate seem to think they are. I also understand that some people will believe that, even after you sort out what the facts really are, something like what Obama wants to do remains a good idea.
The problem is that politicians want to prevent that major changes can be painless. Think about this. Jim Geraghty sums up what the President wants to do:
This will supposedly cost only $ 900 billion over ten years. I don't believe that. In fact, I don't see how you can even cover 45 million Americans for that. Even if all the money were dedicated to that single purpose, this would mean that those folks can be covered for $2000/year. The type of coverage that the President wants to provide will cost several times that.
I understand that this figure is net of new taxes but that is misleading. New taxes are part of the cost.
But we'll have cost savings! Cost savings that won't cause anyone to give up anything that they want except those nasty old excess profits earned by insurance companies, drug companies and health care providers.
It is implausible to the point of being ridiculous. People don't believe it because they shouldn't. But its seen as essential to the passage of a massive new entitlement. In a moment of candor, Robert Reich, argues that misleading the public as to its cost is essential. Reviewing a book on the politics of health care, he notes:
Reich is not bothered by this. He notes that Johnson's economic advisors were right about Medicare, conceding that it "is well on its way to bankrupting the nation." But the economists must still be kept "at bay."
Is this good strategy? It may be the conventional wisdom, but I wonder if it works here. By making claims that are so blatantly false, Obama provides the GOP with a target rich environment.
Now before you go all pot and kettle on me, I am fully aware that it wouldn't take long for someone to find a speech by a GOP leader that is similarly misleading. Health Savings Accounts are a a good idea but they are not the panacea that some on my side of the debate seem to think they are. I also understand that some people will believe that, even after you sort out what the facts really are, something like what Obama wants to do remains a good idea.
The problem is that politicians want to prevent that major changes can be painless. Think about this. Jim Geraghty sums up what the President wants to do:
keep everything the same for those who have health insurance through their jobs, Medicare, Medicaid, or the VA; mandate coverage of pre-existing conditions; ban caps on coverage; mandate coverage of routine checkups and preventive care, like mammograms and colonoscopies; offer health insurance to 30 million uninsured; provide tax credits for small businesses; painlessly mandate coverage for the young healthy uninsured; provide hardship waivers; provide choice and competition; keep insurance companies honest; avoid taxpayer subsidies for public option plans; keep out illegal immigrants; not pay for abortions; and not deny care to the elderly because of cost-benefit analyses, all while not adding one dime to our deficits – either now or in the future.
This will supposedly cost only $ 900 billion over ten years. I don't believe that. In fact, I don't see how you can even cover 45 million Americans for that. Even if all the money were dedicated to that single purpose, this would mean that those folks can be covered for $2000/year. The type of coverage that the President wants to provide will cost several times that.
I understand that this figure is net of new taxes but that is misleading. New taxes are part of the cost.
But we'll have cost savings! Cost savings that won't cause anyone to give up anything that they want except those nasty old excess profits earned by insurance companies, drug companies and health care providers.
It is implausible to the point of being ridiculous. People don't believe it because they shouldn't. But its seen as essential to the passage of a massive new entitlement. In a moment of candor, Robert Reich, argues that misleading the public as to its cost is essential. Reviewing a book on the politics of health care, he notes:
Blumenthal and Morone’s most provocative finding is that presidents who have been most successful in moving the country toward universal health coverage have disregarded or overruled their economic advisers. Plans to expand coverage have consistently drawn cautions or condemnations from economic teams in every administration, from Harry Truman’s down to George W. Bush’s. An exasperated Lyndon Johnson groused to Ted Kennedy that “the fools had to go to projecting” Medicare costs “down the road five or six years.” Such long-term projections meant political headaches. “The first thing, Senator Dick Russell comes running in, says, ‘My God, you’ve got a one billion dollar [estimate] for next year on health. Therefore I’m against any of it now.” Johnson rejected his advisers’ estimates and intentionally lowballed the cost. “I’ll spend the goddamn money.” An honest economic forecast would most likely have sunk Medicare.
Reich is not bothered by this. He notes that Johnson's economic advisors were right about Medicare, conceding that it "is well on its way to bankrupting the nation." But the economists must still be kept "at bay."
Is this good strategy? It may be the conventional wisdom, but I wonder if it works here. By making claims that are so blatantly false, Obama provides the GOP with a target rich environment.
Sunday, September 06, 2009
Nasty debate is easy
This month I am guesting at Prawfsblawg, a national lawprof blog. I posted yesterday on President Obama's speech to schoolchildren. I don't have a problem with a speech, but there is an etiquette that should be followed when a President presumes to speak apolitically in his capacity as head of state. The speech should not be about his agenda, disputed matters of policy or him. That his political opponents are suspect that this etiquette will not be followed and that the speech will be used to gain political advantage is not unprecedented (Democrats objected to a similar speech by Bush 41) and not surprising.
Perhaps the reaction is more vociferous today than it was then. I don't know, although it seems to me that we are increasingly less cordial and willing to engage what our opponents say. Mostly I think this is a function of the ability of people to live, if they choose, in an echo chamber. If Keith Olberman and Glen Beck repeatedly tell you that "we" are morally and intellectually superior, you might come to believe it.
But maybe there's more to it than that. It is absolutely incorrect to say that George W. Bush represented some sort of apogee of conservatism. On economic issues, in particular, he routinely betrayed conservative principles.
But he did outrage liberals with what they saw as an extreme reaction to the 9-ll attacks. They were concerned - with some justification - about the implications of preemptive war and what they saw as suspension of essential civil liberties. Even I, who believe that much of what the administration did was justified, recognized that the war on terror raised some very difficult questions and potentially dangerous precedents. Many on the left became overwrought in their concern and took leave of their senses (Bush was not a theocrat, fascist or war criminal)and this sullied our public discourse.
So it is with Obama. He has stunned conservatives with his commitment to statism and proposed expansion of the federal government. The type of centralized corporatism that he seems to favor is potentially a radical change in our society. Many on the right have become overwrought (he is not a communist or a nazi) and this has sullied our public discourse. Some liberals have, in my view, been complicit in this further degradation of debate by attempting to paint conservatives as the sum of their most objectionable elements. (Yes, some conservatives did that to liberals as well.)
I don't expect this to change. But I would suggest to my friends on the left and the right that if you have shown that the latest from Michael Savage or Markos Moulitas is intemperate and foolish (a worthwhile service), you've still got work to do.
Perhaps the reaction is more vociferous today than it was then. I don't know, although it seems to me that we are increasingly less cordial and willing to engage what our opponents say. Mostly I think this is a function of the ability of people to live, if they choose, in an echo chamber. If Keith Olberman and Glen Beck repeatedly tell you that "we" are morally and intellectually superior, you might come to believe it.
But maybe there's more to it than that. It is absolutely incorrect to say that George W. Bush represented some sort of apogee of conservatism. On economic issues, in particular, he routinely betrayed conservative principles.
But he did outrage liberals with what they saw as an extreme reaction to the 9-ll attacks. They were concerned - with some justification - about the implications of preemptive war and what they saw as suspension of essential civil liberties. Even I, who believe that much of what the administration did was justified, recognized that the war on terror raised some very difficult questions and potentially dangerous precedents. Many on the left became overwrought in their concern and took leave of their senses (Bush was not a theocrat, fascist or war criminal)and this sullied our public discourse.
So it is with Obama. He has stunned conservatives with his commitment to statism and proposed expansion of the federal government. The type of centralized corporatism that he seems to favor is potentially a radical change in our society. Many on the right have become overwrought (he is not a communist or a nazi) and this has sullied our public discourse. Some liberals have, in my view, been complicit in this further degradation of debate by attempting to paint conservatives as the sum of their most objectionable elements. (Yes, some conservatives did that to liberals as well.)
I don't expect this to change. But I would suggest to my friends on the left and the right that if you have shown that the latest from Michael Savage or Markos Moulitas is intemperate and foolish (a worthwhile service), you've still got work to do.
Wednesday, September 02, 2009
Public option and larger purposes
In response to my last post on health care, one commenter wonders why I am not reassured by the fact that public education hasn't eliminated private education. Doesn't this show that a public option won't crowd out private coverage?
I think this compares apples and oranges. A better comparison would be public v. private hospitals. A public coverage option to the extent that it becomes pervasive will affect the incentives for technological progress because it will tend to affect the market generally. It will tend to drive down the reimbursements to private health care providers (not insurers) in a way that stifles the incentives for innovation and that rations care through indirect means (wait times and reimbursements based on some centralized notion of "quality").
There could be, I suppose, clinics and hospitals that refuse to accept government insurance or to conform to its limitations. To the extent that the public option - because it is artificially cheaper - becomes pervasive, most people won't have access to it. That is consistent with the experience in many "universal care" systems and, indeed, is not entirely different than what happens with education (at least in the absence of vouchers.)
But the problem is deeper than that. There cannot be innovation for a private sector of the market that is too small to support it. Education seems different in that regard. One of the constant themes in the left critique of market economics is a failure to see what will not happen when the market is constrained. That's happening here as well.
Another commenter, TosaVoter, asks the following question:
That's easy to answer. It would be the patients. The test of the market is whether it produces a better outcome than a nonmarket system would. But that question can't be answered by finding market outcomes we don't like and then demanding that the government fix it by fiat without hurting anything else. Economic reality has a tendency to get it the way.
This whole debate has been about whether to throw out the baby with the bathwater. I say no.
I think this compares apples and oranges. A better comparison would be public v. private hospitals. A public coverage option to the extent that it becomes pervasive will affect the incentives for technological progress because it will tend to affect the market generally. It will tend to drive down the reimbursements to private health care providers (not insurers) in a way that stifles the incentives for innovation and that rations care through indirect means (wait times and reimbursements based on some centralized notion of "quality").
There could be, I suppose, clinics and hospitals that refuse to accept government insurance or to conform to its limitations. To the extent that the public option - because it is artificially cheaper - becomes pervasive, most people won't have access to it. That is consistent with the experience in many "universal care" systems and, indeed, is not entirely different than what happens with education (at least in the absence of vouchers.)
But the problem is deeper than that. There cannot be innovation for a private sector of the market that is too small to support it. Education seems different in that regard. One of the constant themes in the left critique of market economics is a failure to see what will not happen when the market is constrained. That's happening here as well.
Another commenter, TosaVoter, asks the following question:
I’d like to ask him a question. It’s a false choice, but then Shark himself asked a similar question so I think it’s fair: If God himself appeared before you and said, before you get into Heaven, you must answer this question: which would be your greater priority – the private market system and the health of private insurance companies, or patients?
That's easy to answer. It would be the patients. The test of the market is whether it produces a better outcome than a nonmarket system would. But that question can't be answered by finding market outcomes we don't like and then demanding that the government fix it by fiat without hurting anything else. Economic reality has a tendency to get it the way.
This whole debate has been about whether to throw out the baby with the bathwater. I say no.
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