The sad fact is that he can't. Just like George W. Bush couldn't stop a hurricane or prevent its foreseeable impact on a city that took no care for its own welfare, Barack Obama can't plug an oil leak that is almost a mile below the surface of the ocean.
In a sense, he is being hoisted on his own petard. There are few, if any things, that he has been willing to admit that the federal government cannot do. This was supposed to be the moment when we begin to "provide care for the sick and good jobs to the jobless" and "when the rise of the oceans began to slow." Instead, it was the moment when we couldn't "plug the damn hole."
Of course, our expectations of the federal government have become oversized without regard to Barack Obama. We think that the President runs the economy and that the federal government ought to bend the laws of nature.
The irony is, having bought into and doubled down by these expectations, the President's first impulse was to blame BP. It was BP's fault. BP's mess. BP's problem.
All of this may be true, but, as he seems to have belatedly recognized, it was his problem as well. The more that he seemed to be blaming BP, the more it seemed that he was not accepting his own responsibility. As Peggy Noonan points out, Katrina fed a certain narrative about President Bush, i.e., that he was clueless and slow to respond. The oil spill underscores a developing narrative about President Obama, i.e., that he is aloof and arrogant. His indifference to concerns about illegal immigration, health care and the rather enormous increase in government spending is exacerbated by the impatient and peevish way in which he responds to criticism. His hectoring and defensive press conference did not help. He should wait at least another 309 days before doing it again.
Friday, May 28, 2010
Thursday, May 27, 2010
Don't Cry for Me, Arlen Specter
It's hard to imagine a good resolution for the Democrats on the Joe Sestak mess. If Sestak is telling the truth, there may have been a crime committed. (Rick Hasen has an explanation here.)Very bad for the Obama administration. If he isn't (or exaggerated), very bad for Joe Sestak. What is certainly not going to work is for Sestak and the administration to continue to say no more. I'd look for something tomorrow afternoon.
Don't Hate Me Because I'm Beautiful
Today's self serving award goes to Madison blogger Emily Mills who writes:
Imagine the Democratic Party as Darwin's Galapagos finches, closely related but still wildly diverse and ever-evolving, and the Republican Party as, let's say, a clan of Neanderthals facing a choice between extinction or inter-breeding with Homo sapiens.
There's some brutal honesty for you.
Imagine the Democratic Party as Darwin's Galapagos finches, closely related but still wildly diverse and ever-evolving, and the Republican Party as, let's say, a clan of Neanderthals facing a choice between extinction or inter-breeding with Homo sapiens.
There's some brutal honesty for you.
Friday, May 21, 2010
Rand Paul was wrong even on libertarian terms
It was a political and substantive error for Rand Paul to criticize those portions of the Civil Rights Act (largely Titles II and VII) that applied to private business. It is wrong as a matter of constitutional principle. A unanimous Supreme Court upheld Congress' ability to prohibit discrimination in public accommodations in Heart of Atlanta Hotel v. United States. Even if you believe that its scope goes beyond what should be subject to the commerce power (perhaps even even as applied to Ollie's Barbecue, a segregated restaurant that was among the plaintiffs in Katzenbach v. McClung, argued along with Heart of Atlanta and decided the same way), it does not seem unreasonable to think that Congressional authority under section five of the Fourteenth Amendment either supports federal intervention (perhaps to counter the impact of Jim Crow laws) or suggests a rationale for a broader reading of Congressional authority in matters of racial discrimination. In any event, the matter is water under the bridge.
Nor it seems to me do typical libertarian arguments against the need for legal proscription of discrimination work in the context of the 1964 Act. The argument, drawing on the work of economists like Gary Becker, usually says that the market is the best antidote to discriminatory practices. Irrational discrimination - not hiring the best workers or accepting profitable business on the basis of race - comes at a cost. The discriminating party acts as if the cost of hiring, say, an African-American is higher than it is or that the price paid by an African American customer is lower than it is. Thus, discrimination is economically detrimental and, in a market without entry barriers, nondiscriminating competitors will have an advantage.
But putting aside normal market perfections, the theory won't work if there is a pervasive economic demand for discrimination, e.g., if white employees won't work with blacks or if white customers won't sit at a lunch counter with black customers. Then the cost of hiring or serving African Americans really is higher and the market won't help us.
Of course, those are conditions under which laws prohibiting discrimination are unlikely to be passed. We weren't likely to see anti-discrimination legislation get through the Alabama legislature in 1960. But, in 1964, the areas in which there was a pervasive demand for discrimination were part of a larger community in which discrimination was, although certainly not eliminated, more broadly disfavored such that a coalition to pass a law prohibiting it could be formed. Under those conditions, it seems, a law prohibiting discrimination would change market conditions in the south and reinforce the principle of nondiscrimination throughout the nation. (The law has expressive as well as regulatory impact.)
So, even if Rand Paul is correct to say, that, were Titles II and VII to disappear overnight, we wouldn't see much more discrimination in today's world, that wasn't the case in 1964.
Having said that, I do think there is some value in the observation that the more effective barriers to a discriminatory practice are public attitudes and the market (which, of course, reflects public attitudes). While I am certainly not an expert, I have been a lawyer for quite a while and it has also struck me that age discrimination laws seem much less effective than laws prohibiting other forms of discrimination. Many - perhaps even most of us - don't really believe that age discrimination is wrong in the same way that racial discrimination is. In the eyes of many, age seems to be a more relevant factor than race and assumptions based on age are more likely to be true. The same moral stigma does not apply. I'm not sure that the mere fact of legal prohibition has done much to change those underlying attitudes.
Cross posted at Marquette University Law School Faculty Blog and Point of Law
Nor it seems to me do typical libertarian arguments against the need for legal proscription of discrimination work in the context of the 1964 Act. The argument, drawing on the work of economists like Gary Becker, usually says that the market is the best antidote to discriminatory practices. Irrational discrimination - not hiring the best workers or accepting profitable business on the basis of race - comes at a cost. The discriminating party acts as if the cost of hiring, say, an African-American is higher than it is or that the price paid by an African American customer is lower than it is. Thus, discrimination is economically detrimental and, in a market without entry barriers, nondiscriminating competitors will have an advantage.
But putting aside normal market perfections, the theory won't work if there is a pervasive economic demand for discrimination, e.g., if white employees won't work with blacks or if white customers won't sit at a lunch counter with black customers. Then the cost of hiring or serving African Americans really is higher and the market won't help us.
Of course, those are conditions under which laws prohibiting discrimination are unlikely to be passed. We weren't likely to see anti-discrimination legislation get through the Alabama legislature in 1960. But, in 1964, the areas in which there was a pervasive demand for discrimination were part of a larger community in which discrimination was, although certainly not eliminated, more broadly disfavored such that a coalition to pass a law prohibiting it could be formed. Under those conditions, it seems, a law prohibiting discrimination would change market conditions in the south and reinforce the principle of nondiscrimination throughout the nation. (The law has expressive as well as regulatory impact.)
So, even if Rand Paul is correct to say, that, were Titles II and VII to disappear overnight, we wouldn't see much more discrimination in today's world, that wasn't the case in 1964.
Having said that, I do think there is some value in the observation that the more effective barriers to a discriminatory practice are public attitudes and the market (which, of course, reflects public attitudes). While I am certainly not an expert, I have been a lawyer for quite a while and it has also struck me that age discrimination laws seem much less effective than laws prohibiting other forms of discrimination. Many - perhaps even most of us - don't really believe that age discrimination is wrong in the same way that racial discrimination is. In the eyes of many, age seems to be a more relevant factor than race and assumptions based on age are more likely to be true. The same moral stigma does not apply. I'm not sure that the mere fact of legal prohibition has done much to change those underlying attitudes.
Cross posted at Marquette University Law School Faculty Blog and Point of Law
Wednesday, May 12, 2010
Some Suggested Questions for General Kagan
My Marquette University Law School colleague Peter Rofes has suggested, with tongue placed strategically in cheek, four questions for Supreme Court nominee Elena Kagan. While I enjoyed Peter's contribution, I have a few of my own. Any Republican Senator or his or her staff may borrow all or any of this.
"General Kagan, several years ago, a majority of the Court held that due process did not require impartiality in the sense of an absence of a view on or commitment to a particular view of the law. The absence of any opinions about what the law is or should be, in the view of the Court, would not be evidence of the absence of bias, but of the absence of qualification.
You have have written that confirmation hearings ought to include discussion of a nominee's "broad judicial philosophy” and “her views on particular constitutional issues” including those “the Court regularly faces.” We on the Republican side of the aisle agree and, therefore, anticipate and look forward to your responses to the following questions.
First, significant growth in the size and scope of the federal government have once again raised questions about federalism and structural limitations (as opposed to those that inhere in individual rights such as freedom of speech or the right to equal protection of the laws) on the power of Congress.
Do you believe that there are any structural restrictions imposed on Congressional authority to impose a tax on persons who have failed to act in a way that Congress desires? If so, what are these limitations and, broadly speaking, how are they to be defined and applied? To cut to the chase, can Congress really impose a tax on people who fail to buy what Congress wants them to buy? Going further, apart from whatever protection might be provided by the Bill of Rights, can Congress impose a tax on persons whose way of life is said to affect commerce or impact a system of federal regulation in a way that is said to impose external costs?
Do you believe that the Commerce power enables Congress to regulate activity that is noncommercial in the sense that it does not consist of productive economic activity? Is there any sense in which the Commerce power might extend to noneconomic activity?
In short, General Kagan, are there any justiciable structural limits on the authority of Congress? Is there anything that is none of our business and what might that be?
Second, in connection with your nomination as Solicitor General, you stated that there is no federal constitutional right to same sex marriage. At the same time, you are reported to have said that traditional marriage laws, restricting marriage to unions between one man and woman, have no rational basis. Is the latter remark indeed your view? Would you care to explain why? If so, do you believe that traditional marriage laws may violate the Equal Protection Clause?
Putting it starkly, General Kagan, is it your view that those who believe that marriage ought to be limited to one man and one woman have no rational basis for that view and are, therefore, endorsing invidious discrimination?
Third, you have written that Justice Marshall's view that the judiciary ought to "show a special solicitude for the despised and disadvantaged" and "to safeguard the interests of people who had no other champion" is a "thing of glory."
Do you share that view? Do you believe that it is the role of the judiciary to act in a way that "evens" the political process? If so, is that role limited to the way in which the Court interprets enumerated rights and other textual provisions or might it extend to the recognition of unenumerated rights? Who are the "despised and disadvantaged" and persons "with no other champion?" Might they include the unborn and elderly? Could they be fundamentalist Christians and those with unpopular political views?
Put bluntly, is it the Court's role to interpret the Constitution in a way that politically empowers those that five justices believe do not have "enough" power ?
Fourth, in discussing a Supreme Court decision striking down a hate speech ordinance, you have written that it might be argued that "[i]f there is an ‘overabundance' of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might ‘un-skew,' rather than skew, public discourse."
While we appreciate that you may not have been endorsing that view in your article, let's explore what you do believe.
Is it ever appropriate for the government to act in a way which is intended to "un-skew" public debate? If so, how does one go about determining what an "ideal state of public debate" might be? May the government intervene to correct "imbalances" in the discussion of issues in media outlets?
If government may work to "redistribute" or "balance" speech due, say, to an inequality of resources among speakers, is government itself subject to some obligation of neutrality or balance in the messages that it communicates or subsidizes? If not, how do you reconcile the permissability of state intervention to correct imbalances in private speech with the deliberate creation of imbalances by goverment speech?
May the government act to restrict speech based on the harm that may be caused by the message conveyed? If so, under what circumstances?
In other words, is it the role of the Court to "improve" or "balance" political discourse?
We look forward to your responses. There may be follow-ups."
Cross posted at Point of Law.
"General Kagan, several years ago, a majority of the Court held that due process did not require impartiality in the sense of an absence of a view on or commitment to a particular view of the law. The absence of any opinions about what the law is or should be, in the view of the Court, would not be evidence of the absence of bias, but of the absence of qualification.
You have have written that confirmation hearings ought to include discussion of a nominee's "broad judicial philosophy” and “her views on particular constitutional issues” including those “the Court regularly faces.” We on the Republican side of the aisle agree and, therefore, anticipate and look forward to your responses to the following questions.
First, significant growth in the size and scope of the federal government have once again raised questions about federalism and structural limitations (as opposed to those that inhere in individual rights such as freedom of speech or the right to equal protection of the laws) on the power of Congress.
Do you believe that there are any structural restrictions imposed on Congressional authority to impose a tax on persons who have failed to act in a way that Congress desires? If so, what are these limitations and, broadly speaking, how are they to be defined and applied? To cut to the chase, can Congress really impose a tax on people who fail to buy what Congress wants them to buy? Going further, apart from whatever protection might be provided by the Bill of Rights, can Congress impose a tax on persons whose way of life is said to affect commerce or impact a system of federal regulation in a way that is said to impose external costs?
Do you believe that the Commerce power enables Congress to regulate activity that is noncommercial in the sense that it does not consist of productive economic activity? Is there any sense in which the Commerce power might extend to noneconomic activity?
In short, General Kagan, are there any justiciable structural limits on the authority of Congress? Is there anything that is none of our business and what might that be?
Second, in connection with your nomination as Solicitor General, you stated that there is no federal constitutional right to same sex marriage. At the same time, you are reported to have said that traditional marriage laws, restricting marriage to unions between one man and woman, have no rational basis. Is the latter remark indeed your view? Would you care to explain why? If so, do you believe that traditional marriage laws may violate the Equal Protection Clause?
Putting it starkly, General Kagan, is it your view that those who believe that marriage ought to be limited to one man and one woman have no rational basis for that view and are, therefore, endorsing invidious discrimination?
Third, you have written that Justice Marshall's view that the judiciary ought to "show a special solicitude for the despised and disadvantaged" and "to safeguard the interests of people who had no other champion" is a "thing of glory."
Do you share that view? Do you believe that it is the role of the judiciary to act in a way that "evens" the political process? If so, is that role limited to the way in which the Court interprets enumerated rights and other textual provisions or might it extend to the recognition of unenumerated rights? Who are the "despised and disadvantaged" and persons "with no other champion?" Might they include the unborn and elderly? Could they be fundamentalist Christians and those with unpopular political views?
Put bluntly, is it the Court's role to interpret the Constitution in a way that politically empowers those that five justices believe do not have "enough" power ?
Fourth, in discussing a Supreme Court decision striking down a hate speech ordinance, you have written that it might be argued that "[i]f there is an ‘overabundance' of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might ‘un-skew,' rather than skew, public discourse."
While we appreciate that you may not have been endorsing that view in your article, let's explore what you do believe.
Is it ever appropriate for the government to act in a way which is intended to "un-skew" public debate? If so, how does one go about determining what an "ideal state of public debate" might be? May the government intervene to correct "imbalances" in the discussion of issues in media outlets?
If government may work to "redistribute" or "balance" speech due, say, to an inequality of resources among speakers, is government itself subject to some obligation of neutrality or balance in the messages that it communicates or subsidizes? If not, how do you reconcile the permissability of state intervention to correct imbalances in private speech with the deliberate creation of imbalances by goverment speech?
May the government act to restrict speech based on the harm that may be caused by the message conveyed? If so, under what circumstances?
In other words, is it the role of the Court to "improve" or "balance" political discourse?
We look forward to your responses. There may be follow-ups."
Cross posted at Point of Law.
You Have the Right to Remain Silent
This morning I spent an hour debating David Cole of Georgetown on Wisconsin Public Radio. The question was whether we should read Miranda rights to suspected terrorists. Not a lot of sparks. I tend to believe that the public safety exception to Miranda should be broad enough to include (in some way that requires further definition) questioning undertaken to protect the public from an ongoing terrorist operation or to determine that there is no such ongoing operation. I don't agree that Miranda is completely off the table just because the suspected charge is terrorism. While Professor Cole wants a more immediate geographically bound exception that I'd draft, the devil is in the details.
On more fundamental level, it doesn't seem that deferring Miranda rights is among the most difficult legal trade-offs in the war on terror. Both its value to national security and its imposition on the rights of suspects is limited.
I would have preferred to discuss Professor Cole's views in Holder v. Humanitarian Law Project, a case currently pending before the Supreme Court in which he represents the plaintiffs.
The case presents, among other things, a facial challenge to 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any *** service, *** training, [or] expert advice or assistance,” to a designated foreign terrorist organization ...."
The case, which was argued on February 23, presents some interesting constitutional questions regarding the impact of the law on constitutionally protected speech and rights of association. It raises some fascinating question regarding whether it is possible to distinguish the "peaceful" and "violent" aims of terrorist organizations.
Professor Cole did manage to mention the case and to point out that the government had conceded at oral argument that the law could apply to filing an amicus brief.
It's true that the government's lawyer did say at oral argument (pp. 47-49; although the position was also taken below) that the statute might apply to filing an amicus brief for a terrorist organization if the organization itself was the amicus party (although not a brief that might take a position favorable to the position of such an organization.)
The government's lawyer? Solicitor General Elena Kagan. I'm not sure what to make of that, but I thought it was interesting.
Cross posted at Marquette University Law School Faculty Blog.
On more fundamental level, it doesn't seem that deferring Miranda rights is among the most difficult legal trade-offs in the war on terror. Both its value to national security and its imposition on the rights of suspects is limited.
I would have preferred to discuss Professor Cole's views in Holder v. Humanitarian Law Project, a case currently pending before the Supreme Court in which he represents the plaintiffs.
The case presents, among other things, a facial challenge to 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any *** service, *** training, [or] expert advice or assistance,” to a designated foreign terrorist organization ...."
The case, which was argued on February 23, presents some interesting constitutional questions regarding the impact of the law on constitutionally protected speech and rights of association. It raises some fascinating question regarding whether it is possible to distinguish the "peaceful" and "violent" aims of terrorist organizations.
Professor Cole did manage to mention the case and to point out that the government had conceded at oral argument that the law could apply to filing an amicus brief.
It's true that the government's lawyer did say at oral argument (pp. 47-49; although the position was also taken below) that the statute might apply to filing an amicus brief for a terrorist organization if the organization itself was the amicus party (although not a brief that might take a position favorable to the position of such an organization.)
The government's lawyer? Solicitor General Elena Kagan. I'm not sure what to make of that, but I thought it was interesting.
Cross posted at Marquette University Law School Faculty Blog.
Monday, May 10, 2010
"Harvard," I spoke the word/ as if a wedding vow
Now that the President has nominated to the United States Supreme Court a woman whose signature (and not inconsiderable) accomplishment in life was to serve as Dean of the Harvard Law School, I expect (with apologies to Bob Dylan) that the name of my alma mater will be invoked reverently and frequently over the next month or so.
If for no other reason than to temper the vainglorious monster that beats in the chest of every son and daughter of Harvard, it is right and meet (see what I mean?) that we be reminded that having "Harvard" on your resume does not mean that you are immune from saying or writing ill considered things.
No, this is not about Elena Kagan (I'll get to her). Nor is it about me although I suppose I could find plenty of examples. My subject is Harvard law professor Noah Feldman who suggested in yesterday's New York Times that the next nominee to the U.S. Supreme Court should be a "young person" by which he appears to mean under 40. (Professor Feldman is 39.) He has been disappointed but the point still deserves a response.
Note that the point is not that we should be open to the possibility that someone under 40 might be as suitable nominee. No, we need someone who is under 40. In support of his call for chronological diversity, Professor Felman offers up - there is no better way to say it - every brainless conceit that the young have about the ways in which they are smarter and way cooler than their elders. The reason that I know is that I used to believe such things myself.
According to Professor Feldman, we need to get past Baby Boomers for whom the internet is a "new fangled contraption" (cute choice of words) as if Pa Kettle and his old lady don't surf the web for Woodstock memorabilia or text each other about scoring some weed (actually they'd call it pot) for the next Tom Petty concert. (If you don't believe me on the latter, just go to one of those things. Breathe and you'll be high by "I Won't Back Down.")
Young people, says Professor Feldman, have lived through "not only a technological revolution but a demographic one" and so are "comfortable with people who look and think differently."
Dude, please.
Who hasn't lived through some type of social or technical revolution? Remember the Civil Rights movement? Feminism? Those were ours*, whippersnapper! Boomers may not have been assigned "Heather Has Two Mommies" for extra credit, but I seem to recall (when I can recall anything - it gets hard) a number of university administration buildings being seized in conjunction with demands for black studies programs.
Remember the aforementioned Woodstock ? Boomers have been the Kings and Queens of flying (or letting the next guy fly) that freak flag for longer than Professor Feldman has been alive. Indeed, our singular contribution to the culture may have been the notion that virtue consists in never making a judgment about anyone or anything (other than, of course, our own conviction that we are ineluctably special.)
Professor Feldman reminds us that people over 40 voted for John McCain (another old guy!). Let's pick a justice from Barack Obama's America (but not one so ancient as the President himself). In this, I suppose he demonstrates that Gen X truly is comfortable with "the other." Boomers wouldn't trust anyone over 30.
As an example of the wisdom of youth, Professor Feldman offers us Justice William Douglas who is, in his view, an exemplar of the "openness, new ideas and energy" that comes with youth. Apparently borrowing from the the then new science of thaumatury, Justice Douglas, starting with nothing but penumbras and emanations, conjured - or (in Professor Feldman's circumlocution) "devised" - "the right of privacy that gave us reproductive freedom."**
Whatever one thinks of abortion rights, Justice Douglas (who, in fairness, did retain an energetic interest in young people as he aged) was famously unimpressed in any disciplining methodology other than the wisdom of William O. Douglas. Professor Feldman might have picked a better example. Let's try Clarence Thomas who was only a bit older than Douglas at the time of his confirmation.
Justice Thomas has also been an energetic proponent of unorthodox ideas. He would not have "devised," "materialized," or even "imagined" a constitutional right to abortion, but he has tried to revitalize structural limits on Congressional authority.
And, notwithstanding the obvious fun I'm having, therein lies my point. The distinctive views of youth tend to fade over time as we gradually accept responsibility for the world and stop defining ourselves in opposition to our elders. We become who we are. To use some examples from the legal academy, there are young scholars like Noah Feldman and Goodwin Liu. There are young scholars like Richard Garnett and John Yoo. The only thing they have in common as potential Supreme Court nominees (and I suspect that each would differ in significant ways from the other three) is that they would have a chance to serve for a very long time.
Being second half baby boomer and having been a precocious little nerd, I can recall (over the rumble of the ever lengthening freight train of years) when then President Richard Nixon dipped a goose feather into an ink well and signed the Twenty Seventh Amendment lowering the voting age to 18. Pundits said that he was signing a death warrant of the Republican Party because the rising and very groovy baby boomers were never going to vote for them. Some serious people - even an Ivy League law professor like Professor Feldman - thought that we were going to usher in a "revolution by consciousness" that would create a new way of life and a New Man. So did we.
And then, dag nabbit, we went and voted for John McCain. We had some revolutions (some might say counterrevolutions), but they were lead by people like Ronald Reagan, Margaret Thatcher and the Pope. Had we known, it would have seemed, at the time, like that famous stage announcement at Woodstock (" ... the brown acid that is circulating around us is not specifically too good ...") had come to pass.
In fairness, I admire Professor Feldman's work. I enjoyed his book Divided By God and have cited it and some work he has done on the history of the Establishment Clause quite extensively. He is an accomplished and productive scholar.
But, dude, think!
Cross posted at Point of Law and the Marquette University Law School Faculty Blog
* Actually, for people my age, it was our older brothers, sisters and cousins who tended to hog everything before we got a chance. But that's another story.
**Unless, if I may be permitted an editorial comment, one turns out to be the collateral damage of reproductive freedom.
.
If for no other reason than to temper the vainglorious monster that beats in the chest of every son and daughter of Harvard, it is right and meet (see what I mean?) that we be reminded that having "Harvard" on your resume does not mean that you are immune from saying or writing ill considered things.
No, this is not about Elena Kagan (I'll get to her). Nor is it about me although I suppose I could find plenty of examples. My subject is Harvard law professor Noah Feldman who suggested in yesterday's New York Times that the next nominee to the U.S. Supreme Court should be a "young person" by which he appears to mean under 40. (Professor Feldman is 39.) He has been disappointed but the point still deserves a response.
Note that the point is not that we should be open to the possibility that someone under 40 might be as suitable nominee. No, we need someone who is under 40. In support of his call for chronological diversity, Professor Felman offers up - there is no better way to say it - every brainless conceit that the young have about the ways in which they are smarter and way cooler than their elders. The reason that I know is that I used to believe such things myself.
According to Professor Feldman, we need to get past Baby Boomers for whom the internet is a "new fangled contraption" (cute choice of words) as if Pa Kettle and his old lady don't surf the web for Woodstock memorabilia or text each other about scoring some weed (actually they'd call it pot) for the next Tom Petty concert. (If you don't believe me on the latter, just go to one of those things. Breathe and you'll be high by "I Won't Back Down.")
Young people, says Professor Feldman, have lived through "not only a technological revolution but a demographic one" and so are "comfortable with people who look and think differently."
Dude, please.
Who hasn't lived through some type of social or technical revolution? Remember the Civil Rights movement? Feminism? Those were ours*, whippersnapper! Boomers may not have been assigned "Heather Has Two Mommies" for extra credit, but I seem to recall (when I can recall anything - it gets hard) a number of university administration buildings being seized in conjunction with demands for black studies programs.
Remember the aforementioned Woodstock ? Boomers have been the Kings and Queens of flying (or letting the next guy fly) that freak flag for longer than Professor Feldman has been alive. Indeed, our singular contribution to the culture may have been the notion that virtue consists in never making a judgment about anyone or anything (other than, of course, our own conviction that we are ineluctably special.)
Professor Feldman reminds us that people over 40 voted for John McCain (another old guy!). Let's pick a justice from Barack Obama's America (but not one so ancient as the President himself). In this, I suppose he demonstrates that Gen X truly is comfortable with "the other." Boomers wouldn't trust anyone over 30.
As an example of the wisdom of youth, Professor Feldman offers us Justice William Douglas who is, in his view, an exemplar of the "openness, new ideas and energy" that comes with youth. Apparently borrowing from the the then new science of thaumatury, Justice Douglas, starting with nothing but penumbras and emanations, conjured - or (in Professor Feldman's circumlocution) "devised" - "the right of privacy that gave us reproductive freedom."**
Whatever one thinks of abortion rights, Justice Douglas (who, in fairness, did retain an energetic interest in young people as he aged) was famously unimpressed in any disciplining methodology other than the wisdom of William O. Douglas. Professor Feldman might have picked a better example. Let's try Clarence Thomas who was only a bit older than Douglas at the time of his confirmation.
Justice Thomas has also been an energetic proponent of unorthodox ideas. He would not have "devised," "materialized," or even "imagined" a constitutional right to abortion, but he has tried to revitalize structural limits on Congressional authority.
And, notwithstanding the obvious fun I'm having, therein lies my point. The distinctive views of youth tend to fade over time as we gradually accept responsibility for the world and stop defining ourselves in opposition to our elders. We become who we are. To use some examples from the legal academy, there are young scholars like Noah Feldman and Goodwin Liu. There are young scholars like Richard Garnett and John Yoo. The only thing they have in common as potential Supreme Court nominees (and I suspect that each would differ in significant ways from the other three) is that they would have a chance to serve for a very long time.
Being second half baby boomer and having been a precocious little nerd, I can recall (over the rumble of the ever lengthening freight train of years) when then President Richard Nixon dipped a goose feather into an ink well and signed the Twenty Seventh Amendment lowering the voting age to 18. Pundits said that he was signing a death warrant of the Republican Party because the rising and very groovy baby boomers were never going to vote for them. Some serious people - even an Ivy League law professor like Professor Feldman - thought that we were going to usher in a "revolution by consciousness" that would create a new way of life and a New Man. So did we.
And then, dag nabbit, we went and voted for John McCain. We had some revolutions (some might say counterrevolutions), but they were lead by people like Ronald Reagan, Margaret Thatcher and the Pope. Had we known, it would have seemed, at the time, like that famous stage announcement at Woodstock (" ... the brown acid that is circulating around us is not specifically too good ...") had come to pass.
In fairness, I admire Professor Feldman's work. I enjoyed his book Divided By God and have cited it and some work he has done on the history of the Establishment Clause quite extensively. He is an accomplished and productive scholar.
But, dude, think!
Cross posted at Point of Law and the Marquette University Law School Faculty Blog
* Actually, for people my age, it was our older brothers, sisters and cousins who tended to hog everything before we got a chance. But that's another story.
**Unless, if I may be permitted an editorial comment, one turns out to be the collateral damage of reproductive freedom.
.
Friday, May 07, 2010
Does This Stuff Fan the Flames?
In the wake of the huffing over the Arizona immigration law, I posted this on our faculty blog.
To provide a local twist, Christine Neumann-Ortiz, director of Voces de la Frontera and subject of a hagiographic profile in the Milwaukee Journal Sentinel, calls the Arizona law a product of the forces of hatred and bigotry that will lead to a “return to Jim Crow segregation and violence."
Given that the federal law mimics state law and allowing that a national community has a right to regulate the presence of - and even to exclude - outsiders, this is over the top.
And it isn't it also at least just a tad irresponsible. Tell me how that is different from the worst that we hear from Glenn Beck and Rush Limbaugh? I am sure that Ms. Neumann-Ortiz doesn't seen herself in this way. I appreciate that political operatives must talk smack.
But her comments are the political equivalent of "shut up." It makes the issue something it is not as reflected in the Phoenix Suns' odd adoption of "Los Suns" jerseys. To turn the issue into whether one is for or against Hispanics (the Suns are for!) is just as silly as saying that anyone who is concerned about the potential abuse of the law is indifferent to the need to control illegal entry into the country (the Suns hate Arizona!).
To provide a local twist, Christine Neumann-Ortiz, director of Voces de la Frontera and subject of a hagiographic profile in the Milwaukee Journal Sentinel, calls the Arizona law a product of the forces of hatred and bigotry that will lead to a “return to Jim Crow segregation and violence."
Given that the federal law mimics state law and allowing that a national community has a right to regulate the presence of - and even to exclude - outsiders, this is over the top.
And it isn't it also at least just a tad irresponsible. Tell me how that is different from the worst that we hear from Glenn Beck and Rush Limbaugh? I am sure that Ms. Neumann-Ortiz doesn't seen herself in this way. I appreciate that political operatives must talk smack.
But her comments are the political equivalent of "shut up." It makes the issue something it is not as reflected in the Phoenix Suns' odd adoption of "Los Suns" jerseys. To turn the issue into whether one is for or against Hispanics (the Suns are for!) is just as silly as saying that anyone who is concerned about the potential abuse of the law is indifferent to the need to control illegal entry into the country (the Suns hate Arizona!).
Obey Says Goodbye to All That
Republicans and Democrats differ about the retirement of Dave Obey. The former want to say that he read the handwriting on the wall and dropped out rather than, as Reince Priebus put it, have a knife fight at 72. The Democrats say that an old soldier, having passed health care, has decided it's time to fade away. For his part, Obey says that his "progressive district" will never elect a Republican.
My guess is that there is a little truth in all of it. It's hardly shocking for people in their seventies to retire. But the health care reform that was passed was not the reform Obey wanted and, whether or not it can be repealed, it is hardly a finished product. It would require ignoring the obvious to think that the Seventh wasn't potentially in play and Obey must have anticipated at least the possibility that the 112th Congress will be much more Republican than the 111th. A younger Obey may have decided to stay and fight to preserve - or to reshape - such important legislation.
Nor can he be sure that his seat will stay blue. The district is hardly firmly "progressive." Although President Obama carried it comfortably in 2008, it was a toss-up in the preceding two presidential elections. It may very well elect a Republican.
A more plausible scenario is that Obey was disappointed in what the Democrats, with extraordinary - perhaps even unprecedented majorities (large Democratic majorities in the past contained many more conservatives) - and understands that things are, from his perspective, going to go south for awhile. Rather than risk having a long career end in defeat or frustration, he decided to call it a career.
The legacy of that career is a huge mess. He may have, as he likes to say, outlasted George W. Bush, but the fiscal disaster that has been brewing ever since Mr. Obey went to Washington outlasted him.
My guess is that there is a little truth in all of it. It's hardly shocking for people in their seventies to retire. But the health care reform that was passed was not the reform Obey wanted and, whether or not it can be repealed, it is hardly a finished product. It would require ignoring the obvious to think that the Seventh wasn't potentially in play and Obey must have anticipated at least the possibility that the 112th Congress will be much more Republican than the 111th. A younger Obey may have decided to stay and fight to preserve - or to reshape - such important legislation.
Nor can he be sure that his seat will stay blue. The district is hardly firmly "progressive." Although President Obama carried it comfortably in 2008, it was a toss-up in the preceding two presidential elections. It may very well elect a Republican.
A more plausible scenario is that Obey was disappointed in what the Democrats, with extraordinary - perhaps even unprecedented majorities (large Democratic majorities in the past contained many more conservatives) - and understands that things are, from his perspective, going to go south for awhile. Rather than risk having a long career end in defeat or frustration, he decided to call it a career.
The legacy of that career is a huge mess. He may have, as he likes to say, outlasted George W. Bush, but the fiscal disaster that has been brewing ever since Mr. Obey went to Washington outlasted him.
Wednesday, April 28, 2010
Some one has apparently failed to get Rich Lowry a copy of the catechism.
Now that the semester is over (but for the grading of 122 exams and, to borrow the expression of a friend, that is every bit as special as it sounds), I should have more time for blogging.
I want to deal with the issue at greater length, but I am amused by the controversy over the supposed "epistemic closure" of the conservative movement, encapsuled in the controversy between Jim Manzi and Mark Levin that has played out over on National Review Online.
There is, of course, a meta point in all of this that is overlooked by all the clucking about how sad it is the conservative mind has closed. The controversy is being played out on ... National Review Online. I recall reading, over the weekend, a nice piece on the way in which some conservatives have come to misunderstand supply side economics and the Laffer curve - thinking that tax cuts always pay for themselves. I was interested because I made the same point here. The funny thing is that I read this criticism of a point commonly made by conservative talked in ... the pages of National Review.
I have commended the work of Jim Manzi on this blog on several occasions. But Jim - who things that there is anthropogenic global warming but that its impacts are exaggerated and the most commonly offered solutions are ill advised - was brought to public prominence by ... National Review. They actually gave him a cover.
The idea that conservatives are uniquely close minded while folks on the left walk around enraptured by intellectual curiousity is risible. Rhetoric from the President and folks like Harry Ried on the financial crisis and reform has largely been unreflective demagoguery. (This is not to say that there is no need for financial reform but the framework of a nation of Tiny Tims cheated by the pre-enlightenment Scrooge isn't very helpful.) Ignorance of complexity is just as much a Democratic as a Republican problem.
This is not to say that I don't think that something that can be called epistemic closure is not a problem for us all or that both parties don't have their own forms of magical thinking. But my friends on the left who think that they have identified a uniquely conservative problem are suffering from a certain lack of self awareness.
I want to deal with the issue at greater length, but I am amused by the controversy over the supposed "epistemic closure" of the conservative movement, encapsuled in the controversy between Jim Manzi and Mark Levin that has played out over on National Review Online.
There is, of course, a meta point in all of this that is overlooked by all the clucking about how sad it is the conservative mind has closed. The controversy is being played out on ... National Review Online. I recall reading, over the weekend, a nice piece on the way in which some conservatives have come to misunderstand supply side economics and the Laffer curve - thinking that tax cuts always pay for themselves. I was interested because I made the same point here. The funny thing is that I read this criticism of a point commonly made by conservative talked in ... the pages of National Review.
I have commended the work of Jim Manzi on this blog on several occasions. But Jim - who things that there is anthropogenic global warming but that its impacts are exaggerated and the most commonly offered solutions are ill advised - was brought to public prominence by ... National Review. They actually gave him a cover.
The idea that conservatives are uniquely close minded while folks on the left walk around enraptured by intellectual curiousity is risible. Rhetoric from the President and folks like Harry Ried on the financial crisis and reform has largely been unreflective demagoguery. (This is not to say that there is no need for financial reform but the framework of a nation of Tiny Tims cheated by the pre-enlightenment Scrooge isn't very helpful.) Ignorance of complexity is just as much a Democratic as a Republican problem.
This is not to say that I don't think that something that can be called epistemic closure is not a problem for us all or that both parties don't have their own forms of magical thinking. But my friends on the left who think that they have identified a uniquely conservative problem are suffering from a certain lack of self awareness.
Friday, April 23, 2010
Look, we sued the Pope !
Lawyers for the Vatican have called the lawsuit against Pope Benedict and the Holy See a "publicity stunt." I wouldn't go so far as to say that - it has a chance of surviving a motion to dismiss and there may be, embedded in its fifty four pages, a theory that might get to the jury. But there is a sense in which that a publicity stunt is precisely what it is and there may be some larger lessons here about the American liability system.
The lawsuit arises from the predations of a pedophile priest in Milwaukee named Father Murphy. It's a nasty case. Murphy abused numerous young boys at a school for the deaf, largely in the fifties and sixties, but perhaps extending to the early seventies when he was (quite improperly) quietly shuffled away to an early retirement. It is clear that the Milwaukee Archdiocese - in particular Archbishop Meier - failed to act in ways - during the 1960s - that would have halted the abuse. There is no evidence that the Vatican, much less the Pope, had any knowledge of or involvement with Father Murphy during this period. By the time the Vatican (and then Cardinal Ratzinger as head of the Office for the Propagation of the Faith) became aware of Murphy's offenses, it was the late 90s. The Milwaukee Archdiocese had brought a belated action to defrock him.
There is a controversy over how that proceeding was conducted and whether it ended prematurely. But it could not have prevented any further abuse and it is almost certain that, however it was handled, Father Murphy would have (as he did) die before it could be completed.
Here is where the publicity stunt begins. What makes this case newsworthy - what puts you in the New York Times and on the networks news - is the defendant in the Apostolic Palace.
There are multiple legal problems with bringing an action against the Pope and Holy See under the Foreign Sovereign Immunities Act. Two circuit courts of appeals have allowed part, but not all, of such cases to go forward. The outcomes are not consistent with each other and, in one, a cert petition is pending before the Supreme Court. Without getting into the details, the reasoning in these cases is far from unassailable.
But the theories that have been permitted - largely negligent supervision and a rather curious notion of respondeat superior - have either been rejected or are unlikely to be recognized by Wisconsin law. The Wisconsin Constitution has been interpreted to confer rather broad protection for church autonomy. Even if these problems are not fatal, the actions complained seem to be almost certainly barred by the statute of limitations.
And, as this is important, the wrongs alleged to have been committed by Pope Benedict himself could not have averted any of the very real harms suffered by the plaintiffs. Father Murphy's predations had ended long ago. They - and the feckless response of the Milwaukee Archdiocese - were well known within the deaf community. (It was pressure from that community that lead to the charges against Murphy.) The Milwaukee District Attorney had, rightly or wrongly, already declined to prosecute him. Unless one buys into the dubious notion that the failure to a religious institution to impose discipline long after the fact is a legally cognizable injury, the naming of Pope Benedict XVI is, notwithstanding the sympathetic nature of the plaintiff and the very real horror to which he was subjected - a publicity stunt.
There are a few larger implications. Litigation, in this instance, is being used as a front in a larger war to affect Vatican policy in the future. Although advocates say that something "must change," the fact is that almost everything about the Church's response to clergy abuse has changed. The gravamen of the complaint is to have outsiders manage that change. Once again, we see an attempt to take traditional common law notions of duty and liability and extend them to form the basis for prospective regulation - something which, I would argue, strains judicial competence and usurps prerogatives of civil society - particularly where the institution to be regulated is a religious institution.
Second, a theme in the complaint is that the Vatican should have acted in a way that would have publicized what it calls, at a least one point, "the practice" of child sex abuse. The harm in its failure to do so, it seems, was not limited to the predations committed by known abusers who were placed in a position to abuse again, but in the failure (or so it seems) to let people know that, in general, "priests abuse kids."
This reminds me of other cases in which the theory of liability has been that the defendant (I think of the lead paint and tobacco cases, although those were stronger examples of the approach than this is) should have fallen on its sword. There are numerous difficulties with this theory in this context, but, once again, it strikes me as a questionable spin on traditional notions of common law duty.
Finally, we have the problem of our repeated inability to discuss these matters rationally. When I wrote an op-ed in the Milwaukee Journal Sentinel a few weeks ago arguing that it might not be a good idea to completely abolish Wisconsin's generous statute of limitations for cases like this, I was accused of siding against "victims" and not appreciating the gravity of Father Murphy's offenses. Neither charge is fair.
Just as lawyers know that being "against crime" does not mean that we ought to do away with constitutional protections for criminal defendants, we also know that empathy for those to whom bad things have happened doesn't mean that all limitations on liability - even for those "deep pockets" whose relationship with the wrong is indirect - ought to be swept aside.
Cross posted at Point of Law
The lawsuit arises from the predations of a pedophile priest in Milwaukee named Father Murphy. It's a nasty case. Murphy abused numerous young boys at a school for the deaf, largely in the fifties and sixties, but perhaps extending to the early seventies when he was (quite improperly) quietly shuffled away to an early retirement. It is clear that the Milwaukee Archdiocese - in particular Archbishop Meier - failed to act in ways - during the 1960s - that would have halted the abuse. There is no evidence that the Vatican, much less the Pope, had any knowledge of or involvement with Father Murphy during this period. By the time the Vatican (and then Cardinal Ratzinger as head of the Office for the Propagation of the Faith) became aware of Murphy's offenses, it was the late 90s. The Milwaukee Archdiocese had brought a belated action to defrock him.
There is a controversy over how that proceeding was conducted and whether it ended prematurely. But it could not have prevented any further abuse and it is almost certain that, however it was handled, Father Murphy would have (as he did) die before it could be completed.
Here is where the publicity stunt begins. What makes this case newsworthy - what puts you in the New York Times and on the networks news - is the defendant in the Apostolic Palace.
There are multiple legal problems with bringing an action against the Pope and Holy See under the Foreign Sovereign Immunities Act. Two circuit courts of appeals have allowed part, but not all, of such cases to go forward. The outcomes are not consistent with each other and, in one, a cert petition is pending before the Supreme Court. Without getting into the details, the reasoning in these cases is far from unassailable.
But the theories that have been permitted - largely negligent supervision and a rather curious notion of respondeat superior - have either been rejected or are unlikely to be recognized by Wisconsin law. The Wisconsin Constitution has been interpreted to confer rather broad protection for church autonomy. Even if these problems are not fatal, the actions complained seem to be almost certainly barred by the statute of limitations.
And, as this is important, the wrongs alleged to have been committed by Pope Benedict himself could not have averted any of the very real harms suffered by the plaintiffs. Father Murphy's predations had ended long ago. They - and the feckless response of the Milwaukee Archdiocese - were well known within the deaf community. (It was pressure from that community that lead to the charges against Murphy.) The Milwaukee District Attorney had, rightly or wrongly, already declined to prosecute him. Unless one buys into the dubious notion that the failure to a religious institution to impose discipline long after the fact is a legally cognizable injury, the naming of Pope Benedict XVI is, notwithstanding the sympathetic nature of the plaintiff and the very real horror to which he was subjected - a publicity stunt.
There are a few larger implications. Litigation, in this instance, is being used as a front in a larger war to affect Vatican policy in the future. Although advocates say that something "must change," the fact is that almost everything about the Church's response to clergy abuse has changed. The gravamen of the complaint is to have outsiders manage that change. Once again, we see an attempt to take traditional common law notions of duty and liability and extend them to form the basis for prospective regulation - something which, I would argue, strains judicial competence and usurps prerogatives of civil society - particularly where the institution to be regulated is a religious institution.
Second, a theme in the complaint is that the Vatican should have acted in a way that would have publicized what it calls, at a least one point, "the practice" of child sex abuse. The harm in its failure to do so, it seems, was not limited to the predations committed by known abusers who were placed in a position to abuse again, but in the failure (or so it seems) to let people know that, in general, "priests abuse kids."
This reminds me of other cases in which the theory of liability has been that the defendant (I think of the lead paint and tobacco cases, although those were stronger examples of the approach than this is) should have fallen on its sword. There are numerous difficulties with this theory in this context, but, once again, it strikes me as a questionable spin on traditional notions of common law duty.
Finally, we have the problem of our repeated inability to discuss these matters rationally. When I wrote an op-ed in the Milwaukee Journal Sentinel a few weeks ago arguing that it might not be a good idea to completely abolish Wisconsin's generous statute of limitations for cases like this, I was accused of siding against "victims" and not appreciating the gravity of Father Murphy's offenses. Neither charge is fair.
Just as lawyers know that being "against crime" does not mean that we ought to do away with constitutional protections for criminal defendants, we also know that empathy for those to whom bad things have happened doesn't mean that all limitations on liability - even for those "deep pockets" whose relationship with the wrong is indirect - ought to be swept aside.
Cross posted at Point of Law
Sunday, April 18, 2010
Judge Crabb's Establishment Clause Ambition
I am not going to go ballistic over Judge Barbara Crabb's decision that the National Day of Prayer - an event that has gone on for 58 years and mirrors, in many respects, actions of our federal government throughout the history of the Republic - violates the Establishment Clause.
She is, I think, wrong and may have been well served to have given more attention to a principle of legal analysis that has served me over the years: The law can be an ass, but it doesn't always have to be. Invalidating the National Day of Prayer seems intrinsically wrong and that sense, while not dispositive, needs to be given attention.
But Judge Crabb's decision rehearses the doctrine and the various arguments for and against the constitutionality of the matter. She did not mail it in. She did not ignore the obvious arguments against her decision, even if I don't think she handled them in the right way.
It would be hard for me to conclude otherwise. I have argued - here and here - that there is a trail in our Establishment Clause jurisprudence (and various trails, rather than structure, is all we have in this area of the law) that is overly ambitious. It seeks to protect against relatively small religious insult and utterly fails to deliver it because, to be consistent, would paralyze the government.
In particular, it is simply not possible to protect everyone from religious insult stemming from a government communication. The government will inevitably do things - teach sex education, values clarification or promote patriotism - that could cause religious dissidents to "feel like outsiders." The only way that you can avoid recognizing this is to declare certain forms of insult nonreligious, even if they are religiously based. This requires a truncated view of what constitutes religion and betrays the neutrality that the whole undertaking was designed to protect. An atheist can feel comfortable that his suppositions will not be accosted in a public school. A fundamentalist Christian may find hers challenged (or minimized) on a regular basis.
My suggested solution is to give up the game and realize that establishment requires something more than mere endorsement.
But there is a trail of cases that prompts my criticism and Judge Crabb follows it to find the National Day of Prayer to be unconstitutional - notwithstanding that it does not establish religion in any intuitive sense of the term. In doing so, she rejects (although she acknowledges and strives to distinguish) another line of cases in which noncoercive and generalized state affirmations of religion have been permitted - particularly if they are have a long pedigree.
The decision is one that almost has to move up to the Supreme Court (unless the Seventh Circuit reverses.) The Supreme Court can hardly let invalidation of the National Day of Prayer to rest with a district judge in Madison. I think Judge Crabb's position gets three votes. Justice Breyer, I think, will reprise his performance in Van Orden and conclude that striking down the National Day of Prayer would result in the complete abandonment of doctrine (the Lemon and endorsement tests -the ambitious Establishment Clause that I have criticized) that he would like to preserve.
Cross posted at the Marquette University Law School Faculty Blog
She is, I think, wrong and may have been well served to have given more attention to a principle of legal analysis that has served me over the years: The law can be an ass, but it doesn't always have to be. Invalidating the National Day of Prayer seems intrinsically wrong and that sense, while not dispositive, needs to be given attention.
But Judge Crabb's decision rehearses the doctrine and the various arguments for and against the constitutionality of the matter. She did not mail it in. She did not ignore the obvious arguments against her decision, even if I don't think she handled them in the right way.
It would be hard for me to conclude otherwise. I have argued - here and here - that there is a trail in our Establishment Clause jurisprudence (and various trails, rather than structure, is all we have in this area of the law) that is overly ambitious. It seeks to protect against relatively small religious insult and utterly fails to deliver it because, to be consistent, would paralyze the government.
In particular, it is simply not possible to protect everyone from religious insult stemming from a government communication. The government will inevitably do things - teach sex education, values clarification or promote patriotism - that could cause religious dissidents to "feel like outsiders." The only way that you can avoid recognizing this is to declare certain forms of insult nonreligious, even if they are religiously based. This requires a truncated view of what constitutes religion and betrays the neutrality that the whole undertaking was designed to protect. An atheist can feel comfortable that his suppositions will not be accosted in a public school. A fundamentalist Christian may find hers challenged (or minimized) on a regular basis.
My suggested solution is to give up the game and realize that establishment requires something more than mere endorsement.
But there is a trail of cases that prompts my criticism and Judge Crabb follows it to find the National Day of Prayer to be unconstitutional - notwithstanding that it does not establish religion in any intuitive sense of the term. In doing so, she rejects (although she acknowledges and strives to distinguish) another line of cases in which noncoercive and generalized state affirmations of religion have been permitted - particularly if they are have a long pedigree.
The decision is one that almost has to move up to the Supreme Court (unless the Seventh Circuit reverses.) The Supreme Court can hardly let invalidation of the National Day of Prayer to rest with a district judge in Madison. I think Judge Crabb's position gets three votes. Justice Breyer, I think, will reprise his performance in Van Orden and conclude that striking down the National Day of Prayer would result in the complete abandonment of doctrine (the Lemon and endorsement tests -the ambitious Establishment Clause that I have criticized) that he would like to preserve.
Cross posted at the Marquette University Law School Faculty Blog
Friday, April 16, 2010
Shark in San Diego
Earlier this week, I had the pleasure of making a quick visit to the University of San Diego Law School to engage in a debate on the case of Christian Legal Society v. Martinez, set for argument before the United States Supreme Court on Monday. The event was made possible by a grant from the Templeton Foundation and sponsored by the USD chapters of the Federalist Society, Christian Legal Society and PrideLaw.
I was on the ground for less than 24 hours, but San Diego is beautiful (although I think I picked the one day in the last ten years when the weather in Milwaukee in April was just as nice) and the USD campus is exquisite. My opponent (Professor Shaun Martin), the moderator (Dean Michael Kelley) and the student hosts were gracious. The lunch at La Gran Terraza was very good. What about the debate?
The case involves the refusal of Hastings College of Law (a public school that is part of the University of California system) to recognize the Christian Legal Society as a student organization because, although its events are open to everyone, voting members must affirm a statement of creedal Christianity and resolve to strive to live in accordance with certain moral standards, including to refrain from sexual conduct outside of marriage between one man and one woman.
No way, says Hastings. This constitutes discrimination on the basis of religion and sexual orientation and violates the Law School's unwritten policy which requires (or, so Hastings says, although it has heretofore not insisted) that all student organizations take all comers without regard to whether those comers support the organization's beliefs or ideals. The CLS can exist. Hastings might even allow it to use University facilities. (It has said that it will but there is some dispute over whether it has kept that promise.) But it can't be a recognized student organization.
Two things are clear. The CLS has an associational right to exclude those who don't buy into its mission. Hastings has no obligation to subsidize its speech or the exercise of its associational right.
But there is a complication.
In deciding to recognize student organizations who engage in expressive conduct, Hastings has created what has come to be known as a limited purpose public forum. Case law says that, when such a forum is created, participants may not be excluded on the basis of the viewpoint expressed, including, the Supreme Court has made clear, religious viewpoints.
Hastings says that they have not engaged in viewpoint discrimination. No organization can exclude anyone. Cats must live with dogs, Democrats must admit Republicans, the Sierra Club must welcome global warming deniers and the gay & lesbian student organization must allow its message to be voted on by congregants of the Westboro Baptist Church. They say that the educational purpose of their forum requires, not only diversity among groups, but within groups.
I don't believe the latter. Hastings student groups often have charters that require voting members to adhere to the ideals of organizations. (One, La Raza, even had racial requirements.) Although the parties have stipulated that this is Hastings policy, it seems clearly to have been an expedience contrived for litigation, suggesting that it is hardly essential to the law school's educational mission.
The former is belied by the fact that the policy discriminates against groups organized to advance a particular point of view (one might call them "creedal groups"). It seems weak tea to say that Hastings permits student groups to express all manners of views but won't allow them to exercise associational freedom in the task of advancing those viewpoints.
The right of free association has been found to be implicit in, and essential to, the right to speak. The freedom of associate has also been found to include the freedom to exclude those who do not share or, in the judgment of the group, would impair the group's expressive measure. The CLS does not seek to exclude on the basis of status (they will admit gay and lesbian students who affirm their statement of beliefs) but on the basis of belief and in a way which is intended to further its expressive activities.
In the end, it seems to me that Hastings policy will burden the expression of unpopular views whose message can be silenced by the requirement that they admit into their organization those who would silence it. It will, I think, result in a more narrow than broader range of discourse. It tells religious organizations that they must become debating societies - effectively excluding them from the university's forum.
Professor Martin argued ably against this view. The one thing that he and I agreed on is this is likely a 5-4 case. You can guess who the swing vote will be.
Cross posted at the Marquette University Law School Faculty Blog
I was on the ground for less than 24 hours, but San Diego is beautiful (although I think I picked the one day in the last ten years when the weather in Milwaukee in April was just as nice) and the USD campus is exquisite. My opponent (Professor Shaun Martin), the moderator (Dean Michael Kelley) and the student hosts were gracious. The lunch at La Gran Terraza was very good. What about the debate?
The case involves the refusal of Hastings College of Law (a public school that is part of the University of California system) to recognize the Christian Legal Society as a student organization because, although its events are open to everyone, voting members must affirm a statement of creedal Christianity and resolve to strive to live in accordance with certain moral standards, including to refrain from sexual conduct outside of marriage between one man and one woman.
No way, says Hastings. This constitutes discrimination on the basis of religion and sexual orientation and violates the Law School's unwritten policy which requires (or, so Hastings says, although it has heretofore not insisted) that all student organizations take all comers without regard to whether those comers support the organization's beliefs or ideals. The CLS can exist. Hastings might even allow it to use University facilities. (It has said that it will but there is some dispute over whether it has kept that promise.) But it can't be a recognized student organization.
Two things are clear. The CLS has an associational right to exclude those who don't buy into its mission. Hastings has no obligation to subsidize its speech or the exercise of its associational right.
But there is a complication.
In deciding to recognize student organizations who engage in expressive conduct, Hastings has created what has come to be known as a limited purpose public forum. Case law says that, when such a forum is created, participants may not be excluded on the basis of the viewpoint expressed, including, the Supreme Court has made clear, religious viewpoints.
Hastings says that they have not engaged in viewpoint discrimination. No organization can exclude anyone. Cats must live with dogs, Democrats must admit Republicans, the Sierra Club must welcome global warming deniers and the gay & lesbian student organization must allow its message to be voted on by congregants of the Westboro Baptist Church. They say that the educational purpose of their forum requires, not only diversity among groups, but within groups.
I don't believe the latter. Hastings student groups often have charters that require voting members to adhere to the ideals of organizations. (One, La Raza, even had racial requirements.) Although the parties have stipulated that this is Hastings policy, it seems clearly to have been an expedience contrived for litigation, suggesting that it is hardly essential to the law school's educational mission.
The former is belied by the fact that the policy discriminates against groups organized to advance a particular point of view (one might call them "creedal groups"). It seems weak tea to say that Hastings permits student groups to express all manners of views but won't allow them to exercise associational freedom in the task of advancing those viewpoints.
The right of free association has been found to be implicit in, and essential to, the right to speak. The freedom of associate has also been found to include the freedom to exclude those who do not share or, in the judgment of the group, would impair the group's expressive measure. The CLS does not seek to exclude on the basis of status (they will admit gay and lesbian students who affirm their statement of beliefs) but on the basis of belief and in a way which is intended to further its expressive activities.
In the end, it seems to me that Hastings policy will burden the expression of unpopular views whose message can be silenced by the requirement that they admit into their organization those who would silence it. It will, I think, result in a more narrow than broader range of discourse. It tells religious organizations that they must become debating societies - effectively excluding them from the university's forum.
Professor Martin argued ably against this view. The one thing that he and I agreed on is this is likely a 5-4 case. You can guess who the swing vote will be.
Cross posted at the Marquette University Law School Faculty Blog
Sunday, April 11, 2010
Forget about that local democracy bit
One of the insights of Public Choice theory (a way of viewing political actors as self interested agents) is that intensely interested parties may often be able to exercise disproportionate influence over public policy to benefit their own interests at the expense of the common good. This proposal to vest greater control over local school districts and school boards with the state Superintendent of Public Instruction strikes me as a prime example.
I have no idea whether placing MPS under the responsibility of the Mayor would have helped whatever one agrees are completely unacceptable outcomes. The idea was to place responsibility for the schools with a public official to whom more people pay attention and whose election and re-election is more salient, i.e., more people pay attention. School board races attract few voters and tend to be denominated by those who are self interested in the status quo or in particular proposals fro reform. This results in a weaker demand for acountability on the part of the general public. If the mayor had to run for reelection based, in part, on the performance of the schools, it is more likely that something would get done.
One of the arguments against the takeover, however, is that it would diminish the voters' direct control over the schools. Better, the opponents said, to place responsibility for the schools in the hands of officials who must run for relection based on the performance of the schools and nothing else. This, opponents said, would maximize local control - and, in particular, control on the part of the community most affected by MPS - over the schools.
So now the idea is to move a substantial amount of that control - not merely the few miles from Vliet Street to Water Street - but to Madison. And it appears that some who opposed empowering the Mayor support placing ultimate power over the schools with DPI.
This seems inconsistent until you remember the insights of public choice theory. The election of the State Superintendent of Public Instruction is an extremely low salience (spring in the odd years) race that is marked by an extremely low turnout dominated by those who are self interested in public education. DPI has long had a reputation as a wholly owned subsidiary of the teachers' unions because the teachers' union has a disproportionate influence in the election of the Superintendent.
This is not to cast aspersions on Tony Evers or any other state Superintendent. It is just to note that, in an election dominated by WEAC, candidates whose views (presumably sincerely held) are more favorable to WEAC are likely to win. In fact, I am unaware that a candidate not favored by the teachers' union has ever been elected State Superintendent - at least not in my increasingly lengthy adulthood.
When seen in this way, any inconsistency seems explainable.
So, I think that this is a
I have no idea whether placing MPS under the responsibility of the Mayor would have helped whatever one agrees are completely unacceptable outcomes. The idea was to place responsibility for the schools with a public official to whom more people pay attention and whose election and re-election is more salient, i.e., more people pay attention. School board races attract few voters and tend to be denominated by those who are self interested in the status quo or in particular proposals fro reform. This results in a weaker demand for acountability on the part of the general public. If the mayor had to run for reelection based, in part, on the performance of the schools, it is more likely that something would get done.
One of the arguments against the takeover, however, is that it would diminish the voters' direct control over the schools. Better, the opponents said, to place responsibility for the schools in the hands of officials who must run for relection based on the performance of the schools and nothing else. This, opponents said, would maximize local control - and, in particular, control on the part of the community most affected by MPS - over the schools.
So now the idea is to move a substantial amount of that control - not merely the few miles from Vliet Street to Water Street - but to Madison. And it appears that some who opposed empowering the Mayor support placing ultimate power over the schools with DPI.
This seems inconsistent until you remember the insights of public choice theory. The election of the State Superintendent of Public Instruction is an extremely low salience (spring in the odd years) race that is marked by an extremely low turnout dominated by those who are self interested in public education. DPI has long had a reputation as a wholly owned subsidiary of the teachers' unions because the teachers' union has a disproportionate influence in the election of the Superintendent.
This is not to cast aspersions on Tony Evers or any other state Superintendent. It is just to note that, in an election dominated by WEAC, candidates whose views (presumably sincerely held) are more favorable to WEAC are likely to win. In fact, I am unaware that a candidate not favored by the teachers' union has ever been elected State Superintendent - at least not in my increasingly lengthy adulthood.
When seen in this way, any inconsistency seems explainable.
So, I think that this is a
Saturday, April 03, 2010
The Story Remains the Same
Update: Since writing this post, I have had an opportunity to do a bit more research, heard Father Brundage's comments on Charlie Sykes show and have exchanged e-mails with Father Brundage. I should add the following: Abatement is not equivalent to dismissal and it was unclear in the few days before draft of the letter and Father Murphy's death that, if the matter had been abated, it would not have become active again. (An abated action remains pending.) As a practical matter, nothing was going to happen soon since the situation in August of 1998 was that Father Murphy was too ill for the matter to move forward. Second, whether Father Brundage would or would not have been a hero in this case, he literally has been a hero in other matters of child abuse - to the point of risking his life.
In the first bit of new reporting by the Journal Sentinel,Anyssa Johnson now writes that Father Thomas Brundage actually provided Archbishop Rembert Weakland with a draft of the letter sent several days before Father Murphy's death announcing that the case against him had been abated.
If this is accurate, then it reflects poorly on Father Brundage who said that he would never have agreed to abate the proceedings unless Pope John Paul II ordered him to do so. Not because he did it. As Dad29 points out, he worked for Weakland and had undertaken a vow of obedience.
I am sure that he simply did not recall that he drafted the letter that he now claims not to have seen. But his claim that "he would have" objected to the abatement is simply not true. That may, in one sense, be understandable. Priests don't normally go over the head of their Bishops. It is also true that the matter had not been abated at the time of Father Murphy's death but it apparently was going to be. Perhaps Father Brundage would have objected. It is certainly possible that he would have written a draft of a potential response at the direction of his boss, but objected if he learned that this was actually what the Archbishop decided to do. But, just as it was inappropriate for Archbishop Weakland to attempt to blame his own failures on the Vatican, it was inappropriate for Father Brundage to suggest that he would have been the hero that he was apparently not.
But that does not add a single bit of support to the story line, i.e., idea that the final failure - after many earlier failures - to deal adequately with Father Murphy can somehow be blamed on the Pope. We already knew that Archbishop Weakland, after allowing the case to continue for several months following the meeting in Rome, had decided to end it.
We still have the same story that the documents tell. The Milwaukee archdiocese failed spectacularly in the Murphy case and informed the Vatican only years later - perhaps to avoid bad publicity. The Vatican did suggest alternatives to a criminal trial but that is not the scandal it seems to be because of the difficulty of trying decades old allegations against a someone at death's door. (Indeed, Father Brundage had been unable to depose Murphy due to his poor health.) In any event, the the decision was with the local Bishop - Bishop Fliss had already declined to further consider pastoral alternatives after an inquiry from Archbishop Bertone and Archbishop Weakland himself let the proceeding continue for months after the meeting in Rome. Even the alternative suggested by Archbishop Bertone (declaring Murphy to be unfit for ministry) was based upon Murphy displaying true remorse - something that Brundage says - and the documents indicate - never happened.
Now, in fairness to Weakland, continuing the trial was probably largely symbolic at that point. Murphy's death was imminent. His health did not seem to permit his participation in the case. The real scandal here is the failure of Archbishops Meyer, Cousins and Weakland to act sooner. By the time that the trial was commenced, there was little chance that it ever could have been completed so that Father Murphy would be defrocked before his death.
But symbols matter and Archbishop Weakland made the wrong call - in this and so many other cases.
Father Brundage's failure of memory does, perhaps, contribute to another story line. It will cause more people to believe, as one commenter on this blog says, that "you can't believe anything they say." That is tragic. The story broke on Good Friday. Tomorrow is Easter.
In the first bit of new reporting by the Journal Sentinel,Anyssa Johnson now writes that Father Thomas Brundage actually provided Archbishop Rembert Weakland with a draft of the letter sent several days before Father Murphy's death announcing that the case against him had been abated.
If this is accurate, then it reflects poorly on Father Brundage who said that he would never have agreed to abate the proceedings unless Pope John Paul II ordered him to do so. Not because he did it. As Dad29 points out, he worked for Weakland and had undertaken a vow of obedience.
I am sure that he simply did not recall that he drafted the letter that he now claims not to have seen. But his claim that "he would have" objected to the abatement is simply not true. That may, in one sense, be understandable. Priests don't normally go over the head of their Bishops. It is also true that the matter had not been abated at the time of Father Murphy's death but it apparently was going to be. Perhaps Father Brundage would have objected. It is certainly possible that he would have written a draft of a potential response at the direction of his boss, but objected if he learned that this was actually what the Archbishop decided to do. But, just as it was inappropriate for Archbishop Weakland to attempt to blame his own failures on the Vatican, it was inappropriate for Father Brundage to suggest that he would have been the hero that he was apparently not.
But that does not add a single bit of support to the story line, i.e., idea that the final failure - after many earlier failures - to deal adequately with Father Murphy can somehow be blamed on the Pope. We already knew that Archbishop Weakland, after allowing the case to continue for several months following the meeting in Rome, had decided to end it.
We still have the same story that the documents tell. The Milwaukee archdiocese failed spectacularly in the Murphy case and informed the Vatican only years later - perhaps to avoid bad publicity. The Vatican did suggest alternatives to a criminal trial but that is not the scandal it seems to be because of the difficulty of trying decades old allegations against a someone at death's door. (Indeed, Father Brundage had been unable to depose Murphy due to his poor health.) In any event, the the decision was with the local Bishop - Bishop Fliss had already declined to further consider pastoral alternatives after an inquiry from Archbishop Bertone and Archbishop Weakland himself let the proceeding continue for months after the meeting in Rome. Even the alternative suggested by Archbishop Bertone (declaring Murphy to be unfit for ministry) was based upon Murphy displaying true remorse - something that Brundage says - and the documents indicate - never happened.
Now, in fairness to Weakland, continuing the trial was probably largely symbolic at that point. Murphy's death was imminent. His health did not seem to permit his participation in the case. The real scandal here is the failure of Archbishops Meyer, Cousins and Weakland to act sooner. By the time that the trial was commenced, there was little chance that it ever could have been completed so that Father Murphy would be defrocked before his death.
But symbols matter and Archbishop Weakland made the wrong call - in this and so many other cases.
Father Brundage's failure of memory does, perhaps, contribute to another story line. It will cause more people to believe, as one commenter on this blog says, that "you can't believe anything they say." That is tragic. The story broke on Good Friday. Tomorrow is Easter.
Friday, April 02, 2010
The Story Trumps the Facts
Blogging has been nonexistent as I finished up a law review article. I did have a column in the Milwaukee Journal Sentinel on the clergy abuse scandal in the Catholic Church and whether it justifies elimination of the statute of limitation in civil cases. I don't think and am generally skeptical about the value of large liability awards against the Church for conduct that took place long ago.
The controversy over the handling of the canonical trial against Father Lawrence Murphy by the Congregation for the Doctrine of the Faith, then led by Joseph Cardinal Ratzinger, now Pope Benedict XVI, is an effort to respond to the notion that the Church has reformed and the problem is in the past (albeit with ongoing consequences for many who have been victimized.)
Anyssa Johnson of the Journal Sentinel, for example, begins with this lede:
That sentence is true, but as other have pointed out, highly misleading. The implication is that American bishops behaved responsibly and were frustrated by the recalcitrance of the Vatican, including the future Pope. Precisely the opposite is closer to the truth.
The original story in the New York Times was worse Its headline stated "Vatican Declined to Defrock U.S. Priest Who Abused Boys" and included a claim that the Vatican's "Cardinal Bertone halted the process. Those statements are literally false.
There is no evidence that then-Cardinal Ratzinger was involved, no evidence that it was the Vatican who "did not defrock" Father Murphy and no evidence, in fact, that the proceeding against him ever stopped. He wasn't defrocked because three Milwaukee archbishops failed to act over a period of over 35 years and, when one belatedly began proceedings because he feared a scandal, Father Murphy, now old and infirm, died before they could be completed.
What appears to have happened is that, in July of 1996, Archbishop Weakland - very belatedly - wrote to then Cardinal Ratzinger and asked for advice on how to proceed with allegations of solicitation in the confessional. He did not receive for a response, but that didn't really hold the things up. He began proceedings against Father Murphy in December of 1996. In February of 1997, a problem arose because the Vicar General and judge in the matter, Thomas Brundage, concluded that the solicitation allegations were barred by the statute of limitations. They needed a waiver and couldn't proceed until they got one.
On March 10, 1997, Archbishop Weakland wrote to Gilbeto Cardinal Augustino asking for a waiver. Cardinal Augustino's office did not have the authority to grant that waiver but the CFD did and, on March 24, it did so.
The matter went forward, not in spite of Cardinal Ratzinger's office, but because of it. It became necessary to employ some procedural maneuvering. Canon law apparently required that the case be brought in the Diocese of Superior because that is where Father Murphy was living. A decision was made to dismiss the case in Milwaukee and then reinstate it in Superior under the auspices of the Bishop there, Raphael Fliss.
In early 1998,Father Murphy then wrote to the then Cardinal Ratzinger asking him to stop the proceeding and allowing him to die as a priest. Cardinal Ratzinger did not respond. We have no evidence that he even read the letter. Most importantly, the Vatican never stopped the proceeding.
What did happen is that another official in the CDF wrote to Archbishop Fliss and suggested that he consider a pastoral response. Fliss ultimately responded, saying that pastoral responses had been exhausted.
This apparently led to a meeting in Rome, not with Cardinal Ratzinger, but with Archbishop Bertone. Based upon a summary of the meeting and what seems to be an extremely rough machine translation of the minutes from English into Italian, the Wisconsin clerics were, again, urged to consider alternatives due to the complexities of a canon trial and the age of the allegations, including precluding or restricting his celebration of the Eucharist and having him declared unfit for ministry (although it is unclear that he was any longer engaged in any such activities). This was apparently contingent on Father Murphy's sincere repentance. One Vatican official said that "the priest must give clear signs of repentance [something that everyone who actually spoke to Murphy say that he never did], otherwise he must be applied to trial."
Ms. Johnson, in an article today, writes that "[t]hough none of the records includes a direct order from the Vatican to halt the trial, they suggest Weakland felt he had no choice." I don't see why she thinks so. In fact, it does not appear that the Wisconsin officials had any obligation to follow the suggestions of the CFD officials and that, in fact, those suggestions conditioned abatement of the trial on Father Murphy's repentance - something that never happened.
So, not surprisingly perhaps, the trial was no abated. In fact - after the meeting - the judge in the trial scheduled Father Murphy's deposition, although it was postponed due to Father Murphy's poor health.
Later, in August, Archbishop Weakland wrote to Archbishop Bertone saying that he had instructed his Vicar General to abate the proceedings. This is curious for at least two reasons. First, it is not clear that Weakland had any authority to abate the proceeding because it was taking place under the auspices of Bishop Fless. Second, there is no evidence that the proceeding was abated. The judge in the case has said that he was never told to stop and believed the matter was still pending two days later when Father Murphy died.
There is a scandal here, but it's a local one, involving three Archbishops of Milwaukee - two of whom are dead and one of whom has retired in disgrace. Archbishop Meyer apparently told Father Murphy to repent and sin no more, leaving him in place. Archbishop Cousins removed Father Murphy and did not reassign him but allowed him to remain a priest and go to live with his mother in Boulder Junction on the condition that he have no contact with deaf persons. Archbishop Weakland was informed, in 1980, that Father Murphy was, in fact, having contact with deaf persons and was engaged in ministry in the Diocese of Superior. He did not act on Father Murphy's disobedience nor does it seem that he informed Superior's Bishop Fless of the reason that Father Murphy had been banished from Milwaukee.
This clearly seems to be a case where the reporting has been cast to fit a particular narrative. But that narrative is, at best, extremely incomplete and misleading. There are a number of potential reasons for this. The preferred narrative is a bigger story. The Church's response to allegations of abuse has often been feckless and sometimes dishonest. The scandal is used to fight battles within the Church. It is also used by our increasingly vocal evangelical atheists to ridicule ideas that they do not share. Finally, America has a long tradition of anti-Catholic bias that has been absorbed and continued, in somewhat different form, by certain elements of the secular left.
Cardinal Bertone certainly showed more concern over the difficulty of a trial and, perhaps, more sympathy for Father Murphy's circumstances than he ought to have shown. But even that, in this whole sorry state of affairs, is not the heart of the scandal.
The controversy over the handling of the canonical trial against Father Lawrence Murphy by the Congregation for the Doctrine of the Faith, then led by Joseph Cardinal Ratzinger, now Pope Benedict XVI, is an effort to respond to the notion that the Church has reformed and the problem is in the past (albeit with ongoing consequences for many who have been victimized.)
Anyssa Johnson of the Journal Sentinel, for example, begins with this lede:
Top Vatican officials - including the future Pope Benedict XVI - did not defrock a priest who molested as many as 200 deaf boys, even though several American bishops repeatedly warned them that failure to act on the matter could embarrass the church, according to church files newly unearthed as part of a lawsuit.
That sentence is true, but as other have pointed out, highly misleading. The implication is that American bishops behaved responsibly and were frustrated by the recalcitrance of the Vatican, including the future Pope. Precisely the opposite is closer to the truth.
The original story in the New York Times was worse Its headline stated "Vatican Declined to Defrock U.S. Priest Who Abused Boys" and included a claim that the Vatican's "Cardinal Bertone halted the process. Those statements are literally false.
There is no evidence that then-Cardinal Ratzinger was involved, no evidence that it was the Vatican who "did not defrock" Father Murphy and no evidence, in fact, that the proceeding against him ever stopped. He wasn't defrocked because three Milwaukee archbishops failed to act over a period of over 35 years and, when one belatedly began proceedings because he feared a scandal, Father Murphy, now old and infirm, died before they could be completed.
What appears to have happened is that, in July of 1996, Archbishop Weakland - very belatedly - wrote to then Cardinal Ratzinger and asked for advice on how to proceed with allegations of solicitation in the confessional. He did not receive for a response, but that didn't really hold the things up. He began proceedings against Father Murphy in December of 1996. In February of 1997, a problem arose because the Vicar General and judge in the matter, Thomas Brundage, concluded that the solicitation allegations were barred by the statute of limitations. They needed a waiver and couldn't proceed until they got one.
On March 10, 1997, Archbishop Weakland wrote to Gilbeto Cardinal Augustino asking for a waiver. Cardinal Augustino's office did not have the authority to grant that waiver but the CFD did and, on March 24, it did so.
The matter went forward, not in spite of Cardinal Ratzinger's office, but because of it. It became necessary to employ some procedural maneuvering. Canon law apparently required that the case be brought in the Diocese of Superior because that is where Father Murphy was living. A decision was made to dismiss the case in Milwaukee and then reinstate it in Superior under the auspices of the Bishop there, Raphael Fliss.
In early 1998,Father Murphy then wrote to the then Cardinal Ratzinger asking him to stop the proceeding and allowing him to die as a priest. Cardinal Ratzinger did not respond. We have no evidence that he even read the letter. Most importantly, the Vatican never stopped the proceeding.
What did happen is that another official in the CDF wrote to Archbishop Fliss and suggested that he consider a pastoral response. Fliss ultimately responded, saying that pastoral responses had been exhausted.
This apparently led to a meeting in Rome, not with Cardinal Ratzinger, but with Archbishop Bertone. Based upon a summary of the meeting and what seems to be an extremely rough machine translation of the minutes from English into Italian, the Wisconsin clerics were, again, urged to consider alternatives due to the complexities of a canon trial and the age of the allegations, including precluding or restricting his celebration of the Eucharist and having him declared unfit for ministry (although it is unclear that he was any longer engaged in any such activities). This was apparently contingent on Father Murphy's sincere repentance. One Vatican official said that "the priest must give clear signs of repentance [something that everyone who actually spoke to Murphy say that he never did], otherwise he must be applied to trial."
Ms. Johnson, in an article today, writes that "[t]hough none of the records includes a direct order from the Vatican to halt the trial, they suggest Weakland felt he had no choice." I don't see why she thinks so. In fact, it does not appear that the Wisconsin officials had any obligation to follow the suggestions of the CFD officials and that, in fact, those suggestions conditioned abatement of the trial on Father Murphy's repentance - something that never happened.
So, not surprisingly perhaps, the trial was no abated. In fact - after the meeting - the judge in the trial scheduled Father Murphy's deposition, although it was postponed due to Father Murphy's poor health.
Later, in August, Archbishop Weakland wrote to Archbishop Bertone saying that he had instructed his Vicar General to abate the proceedings. This is curious for at least two reasons. First, it is not clear that Weakland had any authority to abate the proceeding because it was taking place under the auspices of Bishop Fless. Second, there is no evidence that the proceeding was abated. The judge in the case has said that he was never told to stop and believed the matter was still pending two days later when Father Murphy died.
There is a scandal here, but it's a local one, involving three Archbishops of Milwaukee - two of whom are dead and one of whom has retired in disgrace. Archbishop Meyer apparently told Father Murphy to repent and sin no more, leaving him in place. Archbishop Cousins removed Father Murphy and did not reassign him but allowed him to remain a priest and go to live with his mother in Boulder Junction on the condition that he have no contact with deaf persons. Archbishop Weakland was informed, in 1980, that Father Murphy was, in fact, having contact with deaf persons and was engaged in ministry in the Diocese of Superior. He did not act on Father Murphy's disobedience nor does it seem that he informed Superior's Bishop Fless of the reason that Father Murphy had been banished from Milwaukee.
This clearly seems to be a case where the reporting has been cast to fit a particular narrative. But that narrative is, at best, extremely incomplete and misleading. There are a number of potential reasons for this. The preferred narrative is a bigger story. The Church's response to allegations of abuse has often been feckless and sometimes dishonest. The scandal is used to fight battles within the Church. It is also used by our increasingly vocal evangelical atheists to ridicule ideas that they do not share. Finally, America has a long tradition of anti-Catholic bias that has been absorbed and continued, in somewhat different form, by certain elements of the secular left.
Cardinal Bertone certainly showed more concern over the difficulty of a trial and, perhaps, more sympathy for Father Murphy's circumstances than he ought to have shown. But even that, in this whole sorry state of affairs, is not the heart of the scandal.
Thursday, March 25, 2010
More Developments at the Wisconsin Supreme Court
I have to say that I was surprised by Justice Gableman's decision to file a motion asking Justice Pat Crooks to recuse himself from his pending disciplinary case. I understand the rationale. Justice Crooks did make remarks pertaining to some of the issues in the disciplinary proceeding in the course of his writings in Allen v. State. Because he had not had the benefit of full briefing and oral argument, these comments might raise concern that he had prejudged the issue. His reference to the comments of Justice Gableman's attorney and Justice Gableman's failure to repudiate them might be seen as importing an extraneous matter into the disciplinary proceeding. What Jim Bopp said in the course of that proceeding and whether or not Justice Gableman denounces his comments has nothing to do with the issues in that proceeding which are limited to whether the Reuben Mitchell ad violated SCR 60.06(3)(c).
It would, I think, have been more judicious for Justice Crooks to refrain from - or temper - these comments. Justice Crooks declined to reach the merits of the recusal motion, so one might reasonably ask why it was necessary to comment at all on the merits - particularly given the pending disciplinary matter.
But do they reflect actual bias - or create an appearance of bias - such that he must recuse himself? The comments were not extensive and to identify a matter as "troubling" is not necessarily to prejudge it. Attorney Bopp's comments are irrelevant to the disciplinary proceeding, but one could argue that they were relevant on the matter of recusal. Although I do not feel that the recusal motions were particularly strong, the appearance of bias could stem from any number of sources. .
Some may perceive a bit of an atmospheric problem here. Justice Gableman is fighting off recusal motions in criminal cases and may be now be seen to be arguing for an aggressive recusal standard in asking Justice Crooks to step down. Of course, there is an answer to that. In Allen, the writings of Justices Roggensack, Prosser and Ziegler emphasized that recusal - at least constitutionally mandated recusal - must be based on bias for or against a particular party (save for bias based on an immutable category such as race). Justice Gableman is alleging that type of bias here. The Allen motion did not. As I argue in an upcoming paper, there is good reason to limit Caperton recusal to that more narrow form of bias.
Of course, given the outcome in Allen, this is likely to be Justice Crooks' decision without review by the full Court. Apart from the merits, it would seem to create real institutional problems if the three Justices who felt there was not power to recuse a peer Justice in Allen were to conclude that there is here and then order Justice Crooks' recusal. I don't see anyway that happens.
We can speculate about the strategic considerations behind the motion as well. Conventional wisdom is that you seek recusal only when you are pretty sure that the judge will step down or when you feel that you have little chance of getting him or her to vote with you. This is reflected in the advice of Ralph Waldo Emerson (“When you strike at a king, you must kill him”)or, if you prefer (and I do), The Wire's Omar White. ("Ayo. Bey. You come at the king, you best miss.")
Is this a gambit to avoid a deadlocked court? Deadlocked over what? The three judge panel recommended dismissal of the complaint against Justice Gableman but on different grounds. Two judges wanted to construe the canon narrowly to impose a mandatory prohibition only on literally false statements and would not extend it to meanings that are (however strongly) implied. Judge Fine did not read the rule in that way, concluding that the message communicated by the ad was false but expressed the view that a prohibition of false statements in political campaigns is unconstitutional. In his view, the only judges of campaign discourse are the voters. (It should be noted that the two judges who would construe the statute narrowly did so to avoid constitutional concerns.)
Resolution of these issues have ramifications beyond the question of discipline. Not only does 60.06(3)(c) prohibit false statements in judicial campaigns, but sec. 12.o5 of the statutes prohibits false statements "affecting an election" in general.
To make this even more interesting, any decision that construes the canon to apply to the Mitchell ad and finds that application to be constitutional raises a federal question. Could this matter ultimately wind up in the United States Supreme Court?
Only Justice Crooks knows what he will do. My strong suspicion is that he stays on the case although I am not sure that I would want to blame any of the justices who seized an opportunity to remove themselves from this.
Bonus: Commenting on the motion, former Justice William Bablitch says that the recusal motion is "not a good way to win friends and influence people," and that "[i]t exacerbates an already tenuous group of relationships."
I can't disagree, but there is a certain irony here. Justice Bablitch's support of a candidate challenging one of his colleagues, Chief Justice Shirley Abramhamson (support that was joined by three other members of the Court), probably made for a few frosty decision conferences as well. The fact of "tenuous relationships" on the Court is not new.
Cross posted at the Marquette University Law School Faculty Blog
It would, I think, have been more judicious for Justice Crooks to refrain from - or temper - these comments. Justice Crooks declined to reach the merits of the recusal motion, so one might reasonably ask why it was necessary to comment at all on the merits - particularly given the pending disciplinary matter.
But do they reflect actual bias - or create an appearance of bias - such that he must recuse himself? The comments were not extensive and to identify a matter as "troubling" is not necessarily to prejudge it. Attorney Bopp's comments are irrelevant to the disciplinary proceeding, but one could argue that they were relevant on the matter of recusal. Although I do not feel that the recusal motions were particularly strong, the appearance of bias could stem from any number of sources. .
Some may perceive a bit of an atmospheric problem here. Justice Gableman is fighting off recusal motions in criminal cases and may be now be seen to be arguing for an aggressive recusal standard in asking Justice Crooks to step down. Of course, there is an answer to that. In Allen, the writings of Justices Roggensack, Prosser and Ziegler emphasized that recusal - at least constitutionally mandated recusal - must be based on bias for or against a particular party (save for bias based on an immutable category such as race). Justice Gableman is alleging that type of bias here. The Allen motion did not. As I argue in an upcoming paper, there is good reason to limit Caperton recusal to that more narrow form of bias.
Of course, given the outcome in Allen, this is likely to be Justice Crooks' decision without review by the full Court. Apart from the merits, it would seem to create real institutional problems if the three Justices who felt there was not power to recuse a peer Justice in Allen were to conclude that there is here and then order Justice Crooks' recusal. I don't see anyway that happens.
We can speculate about the strategic considerations behind the motion as well. Conventional wisdom is that you seek recusal only when you are pretty sure that the judge will step down or when you feel that you have little chance of getting him or her to vote with you. This is reflected in the advice of Ralph Waldo Emerson (“When you strike at a king, you must kill him”)or, if you prefer (and I do), The Wire's Omar White. ("Ayo. Bey. You come at the king, you best miss.")
Is this a gambit to avoid a deadlocked court? Deadlocked over what? The three judge panel recommended dismissal of the complaint against Justice Gableman but on different grounds. Two judges wanted to construe the canon narrowly to impose a mandatory prohibition only on literally false statements and would not extend it to meanings that are (however strongly) implied. Judge Fine did not read the rule in that way, concluding that the message communicated by the ad was false but expressed the view that a prohibition of false statements in political campaigns is unconstitutional. In his view, the only judges of campaign discourse are the voters. (It should be noted that the two judges who would construe the statute narrowly did so to avoid constitutional concerns.)
Resolution of these issues have ramifications beyond the question of discipline. Not only does 60.06(3)(c) prohibit false statements in judicial campaigns, but sec. 12.o5 of the statutes prohibits false statements "affecting an election" in general.
To make this even more interesting, any decision that construes the canon to apply to the Mitchell ad and finds that application to be constitutional raises a federal question. Could this matter ultimately wind up in the United States Supreme Court?
Only Justice Crooks knows what he will do. My strong suspicion is that he stays on the case although I am not sure that I would want to blame any of the justices who seized an opportunity to remove themselves from this.
Bonus: Commenting on the motion, former Justice William Bablitch says that the recusal motion is "not a good way to win friends and influence people," and that "[i]t exacerbates an already tenuous group of relationships."
I can't disagree, but there is a certain irony here. Justice Bablitch's support of a candidate challenging one of his colleagues, Chief Justice Shirley Abramhamson (support that was joined by three other members of the Court), probably made for a few frosty decision conferences as well. The fact of "tenuous relationships" on the Court is not new.
Cross posted at the Marquette University Law School Faculty Blog
Tuesday, March 23, 2010
L'Affaire ASA: Not What It Seemed To Be
During the 2009 Milwaukee school board elections, there was a dust-up over the activities of a group called Advocates for Student Achievement.The group encouraged people to run for the school board and formed a PAC that supported certain candidates. ASA was perceived to be a threat to the teachers' union and a public employee union front called Citizens Action filed a complaint claiming that it had violated campaign finance laws. This week, ASA agreed to pay $5000 to resolve a civil complaint filed by the District Attorney's office.
I paid little attention at the time but a few weeks ago, I was asked to consult with the ASA board on the matter. Essentially, I took an independent look at the case, advised on the impact of Citizens United on the case and attended one meeting with John Chisolm and Bruce Landgraf, along with ASA's counsel of record, Mike Maistelman. I did not negotiate the settlement or advise the group whether or not to accept it. (I express no opinion on that.) I acted on a pro bono basis and received absolutely nothing for whatever service I provided.
I don't intend to criticize the DA's office. It seems to be hearing different things from different people and some of it may not have withstood the scrutiny of trial. District Attorney Chisolm and Assistant District Attorney Landgraf should be commended for realizing that this was not a criminal matter and that the folks associated with ASA were well meaning. There were powerful political incentives for them to go another way. But, notwithstanding my somewhat different view of the case, I do believe that they played it straight.
Some of its case was impacted by Citizens United and the people involved with ASA - who were not political pros - did not handle this type of thing (the combination of a 501(c)(4) with a PAC) in the way that pros do. They had some bookkeeping snafus and may have slightly exceeded the contribution limits.
My remarks here are not intended to be "on behalf" of ASA. While I would not, given the fact that we did have an attorney-client relationship, disclose confidential communications or say anything that they objected to, these views are my own.
Whatever mistakes the ASA people made, the more serious threat to public participation has been presented by its critics. In particular, the horror over ASA exhibited by local bloggers and that august organ to the 1-900 community, the Shepherd Express, is misplaced. A close look at ASA shows that the matter was much ado about very little and the full court press against ASA by Citizens Action and the Crazy Shepherd was nothing but an assault on unwanted public participation in school board elections. The folks at ASA should have been more sophisticated. Lou Fortis, Lisa Kaiser and all of the usual suspects should be ashamed of themselves.
ASA was formed to encourage people to run for school board. In what it referred to as "phase one" of its activities, it offered information to anyone who wanted to run. It turned down no one. It commissioned some issue papers written by lefty blogger Mike Mathias and made them available to anyone who wanted them, posting them on the group's website. There is nothing even arguably wrong with that.
Three of the people who went through the ASA process decided to run. ASA ultimately decided to support them (even though certain of its principals had major substantive differences with at least one of the candidates) and contributed the maximum amount to each through its PAC. There is nothing wrong with that.
However, ASA continued to run what appears to have been a "support group" session for the three on Saturday mornings lead by a person who had previously run for the school board. (They also invited a non-ASA endorsed candidate - Mike Mathias - but he did not participate.) This, in and of itself, would not have been a problem. The group leader was a volunteer and received no money - but ASA's PAC did pay something between $100 and $200 for coffee and donuts at these meetings. If this is regarded as a "contribution" to the campaign of the three (not a self evident proposition), then the ASA PAC would have exceeded the contribution limit for each by something less than $ 100.00 each.
The Shepherd Express is still saying that ASA "commissioned a $12,000 poll to discredit opposing candidates." It repeats Citizen Action's allegation that the poll results were supplied to the favored candidates and couldn't be accessed by the opponents of those candidates.
Here is the truth. ASA did commission a poll but did it independently without the input of any of the candidates. While there have been accusations that this was a push poll that was being used to discredit opposing candidates, I have read the survey instrument. It think I know what a push poll is. It wasn't a push poll.
But even if it was, after Citizens United, independent push polls are constitutionally protected. They constitute express advocacy.
The other allegation is that the poll - because the results were provided to the candidates - constituted an in-kind contribution. Wisconsin law, GAB 1.65(2) does provide that "transfer to a candidate or committee of the results of a poll or survey, other than by a sale, is an in-kind contribution." But there are a few problems.
The topline results were provided to the three candidates. But 48 hours later, they were released to the world. Now, you could argue that the rule makes any poll made available to any candidate an in-kind contribution, but that is an absurd construction. By that reasoning, ASA would also have made a contribution to the opponents of the three because they had access to the topline results as well. It would also seem completely incompatible with the Supreme Court's doctrine on independent advocacy. Commissioning and publishing poll results is constitutionally protected speech.
It might be different if there had been results that were shared with the three candidates but not with the world. It might be different had the three candidates participated in the formulation of the poll. But it appears that neither is the case. Unless one thinks it's legally significant that the poll was "leaked" to the three two days before it was shared with the world (one of those legal propositions too silly to waste time on), the poll would support no violations.
Finally, there were a number of things done "by ASA" that constituted express advocacy (although not much), advice or fundraising. But, as Citizens United has told us, ASA was free to engage in express advocacy. Second, although these volunteers may have given advice to candidates, that isn't an in-kind contribution either. I have given (solicited and unsolicited) to candidates. Was that a campaign contribution ? Third, the fundraising consisted of communications by volunteers who identified themselves as associated with ASA. It appears that no corporate funds were used so there could be no in-kind contribution. What was important is that the funds - if they were to be contributed to a candidate - be properly channeled through a PAC. They were. If volunteer activities by persons associated with a corporation or union are going to be considered in-kind contributions, then WEAC is going to need its own wing at Taycheedah and Waupun.
Now, to be sure, professionals would have been more careful to distinguish between who was doing what. Although ASA has been characterized as a dark conservative conspiracy, it appears that all but one of the board members voted for President Obama (this was a great disappointment to me - such nice and intelligent people - but let a thousand flowers bloom). These were people who received nothing for themselves and who were trying to do what they thought was good for the community. That they have had their reputations dragged through the mud by a partisan group and a notoriously irresponsible tabloid is a shame.
I paid little attention at the time but a few weeks ago, I was asked to consult with the ASA board on the matter. Essentially, I took an independent look at the case, advised on the impact of Citizens United on the case and attended one meeting with John Chisolm and Bruce Landgraf, along with ASA's counsel of record, Mike Maistelman. I did not negotiate the settlement or advise the group whether or not to accept it. (I express no opinion on that.) I acted on a pro bono basis and received absolutely nothing for whatever service I provided.
I don't intend to criticize the DA's office. It seems to be hearing different things from different people and some of it may not have withstood the scrutiny of trial. District Attorney Chisolm and Assistant District Attorney Landgraf should be commended for realizing that this was not a criminal matter and that the folks associated with ASA were well meaning. There were powerful political incentives for them to go another way. But, notwithstanding my somewhat different view of the case, I do believe that they played it straight.
Some of its case was impacted by Citizens United and the people involved with ASA - who were not political pros - did not handle this type of thing (the combination of a 501(c)(4) with a PAC) in the way that pros do. They had some bookkeeping snafus and may have slightly exceeded the contribution limits.
My remarks here are not intended to be "on behalf" of ASA. While I would not, given the fact that we did have an attorney-client relationship, disclose confidential communications or say anything that they objected to, these views are my own.
Whatever mistakes the ASA people made, the more serious threat to public participation has been presented by its critics. In particular, the horror over ASA exhibited by local bloggers and that august organ to the 1-900 community, the Shepherd Express, is misplaced. A close look at ASA shows that the matter was much ado about very little and the full court press against ASA by Citizens Action and the Crazy Shepherd was nothing but an assault on unwanted public participation in school board elections. The folks at ASA should have been more sophisticated. Lou Fortis, Lisa Kaiser and all of the usual suspects should be ashamed of themselves.
ASA was formed to encourage people to run for school board. In what it referred to as "phase one" of its activities, it offered information to anyone who wanted to run. It turned down no one. It commissioned some issue papers written by lefty blogger Mike Mathias and made them available to anyone who wanted them, posting them on the group's website. There is nothing even arguably wrong with that.
Three of the people who went through the ASA process decided to run. ASA ultimately decided to support them (even though certain of its principals had major substantive differences with at least one of the candidates) and contributed the maximum amount to each through its PAC. There is nothing wrong with that.
However, ASA continued to run what appears to have been a "support group" session for the three on Saturday mornings lead by a person who had previously run for the school board. (They also invited a non-ASA endorsed candidate - Mike Mathias - but he did not participate.) This, in and of itself, would not have been a problem. The group leader was a volunteer and received no money - but ASA's PAC did pay something between $100 and $200 for coffee and donuts at these meetings. If this is regarded as a "contribution" to the campaign of the three (not a self evident proposition), then the ASA PAC would have exceeded the contribution limit for each by something less than $ 100.00 each.
The Shepherd Express is still saying that ASA "commissioned a $12,000 poll to discredit opposing candidates." It repeats Citizen Action's allegation that the poll results were supplied to the favored candidates and couldn't be accessed by the opponents of those candidates.
Here is the truth. ASA did commission a poll but did it independently without the input of any of the candidates. While there have been accusations that this was a push poll that was being used to discredit opposing candidates, I have read the survey instrument. It think I know what a push poll is. It wasn't a push poll.
But even if it was, after Citizens United, independent push polls are constitutionally protected. They constitute express advocacy.
The other allegation is that the poll - because the results were provided to the candidates - constituted an in-kind contribution. Wisconsin law, GAB 1.65(2) does provide that "transfer to a candidate or committee of the results of a poll or survey, other than by a sale, is an in-kind contribution." But there are a few problems.
The topline results were provided to the three candidates. But 48 hours later, they were released to the world. Now, you could argue that the rule makes any poll made available to any candidate an in-kind contribution, but that is an absurd construction. By that reasoning, ASA would also have made a contribution to the opponents of the three because they had access to the topline results as well. It would also seem completely incompatible with the Supreme Court's doctrine on independent advocacy. Commissioning and publishing poll results is constitutionally protected speech.
It might be different if there had been results that were shared with the three candidates but not with the world. It might be different had the three candidates participated in the formulation of the poll. But it appears that neither is the case. Unless one thinks it's legally significant that the poll was "leaked" to the three two days before it was shared with the world (one of those legal propositions too silly to waste time on), the poll would support no violations.
Finally, there were a number of things done "by ASA" that constituted express advocacy (although not much), advice or fundraising. But, as Citizens United has told us, ASA was free to engage in express advocacy. Second, although these volunteers may have given advice to candidates, that isn't an in-kind contribution either. I have given (solicited and unsolicited) to candidates. Was that a campaign contribution ? Third, the fundraising consisted of communications by volunteers who identified themselves as associated with ASA. It appears that no corporate funds were used so there could be no in-kind contribution. What was important is that the funds - if they were to be contributed to a candidate - be properly channeled through a PAC. They were. If volunteer activities by persons associated with a corporation or union are going to be considered in-kind contributions, then WEAC is going to need its own wing at Taycheedah and Waupun.
Now, to be sure, professionals would have been more careful to distinguish between who was doing what. Although ASA has been characterized as a dark conservative conspiracy, it appears that all but one of the board members voted for President Obama (this was a great disappointment to me - such nice and intelligent people - but let a thousand flowers bloom). These were people who received nothing for themselves and who were trying to do what they thought was good for the community. That they have had their reputations dragged through the mud by a partisan group and a notoriously irresponsible tabloid is a shame.
Shark in WI Interest
My latest Culture Con column is out in the WI Interest. I should also point out that there is a nice article on my boss. Read that after you've read mine.
Sunday, March 21, 2010
Ten Questions On Health Care
Nancy Pelosi says that we are on the doorstep of history. Perhaps. History is a an uncertain host. As Mark Steyn said, last week we are on the front porch of history. But, back in December, we were at the garden gate of history. Then Scott Brown was elected, and we backed down the front drive of history, reversing over the neighbor's dog of history.
But as we wait for the passage of ObamaCare, here are a few thoughts. We all know the old saw about legislation and sausage making, but if this reform package is indeed the historic act of compassion and cost control that it is said to be, how do we answer these questions?
1. Why is it necessary to dissemble about its costs? The CBO score is a pastiche of odd inclusions (savings on student loans?), omissions and unlikely assumptions. As the public opinion polls reflect, it is fooling no one but the Democrats, certain elements of the mainstream media and Paul Krugman. (In fairness, the dissembling largely consists of treating the CBO score as something more valuable than it is, see, e.g,. Nancy Pelosi. ("I love the numbers. They're so precise.")
2. Why not pay for it? This question is a subpart of the first. The bill is going to cost quite a bit of money and it is not close to being paid for. If this is such a wonderful thing, then its proponents should not fear an honest assessment of what it will take to fund.
3. Why support it with a series of red herrings and dubious assertions? The post-partisan - no post-political - President Obama has decided to double down on blaming problems with the health care system on the insurance companies. This is silly. Insurance company profit is a tiny sliver of the cost of health care. The inability to get someone else to pay for the cost of treating your pre-existing condition is a problem that requires a solution, but it is not the fault of insurance companies. Covering a pre-existing condition is not insurance.
Most people get insurance through their employers and, by law, most who do have coverage for pre-existing conditions. (Most of those folks, moreover, aren't covered by an "insurance company" at all.)
We could go on. It is highly unlikely that extending coverage to uninsured persons will reduce the cost of their care. It is probable that additional preventive care will increase, rather than decrease, spending on health care, etc.
The bill might still be a good idea. But, if it is, why support it with bad arguments?
4. Why hide the ball on cost controls? It is still unclear to me why the bill is supposed to reduce costs. It certainly does provide a mechanism to aggressively ration care under Medicare and Medicaid by turning them into the Mother of HMOs. But there seems to be a step two that will be required. The President has advocated price controls - an economically illiterate idea - but its apparently out because it couldn't be enacted through reconciliation. Perhaps the idea will be to impose "best practices" (i.e., rationing) on private plans through the manipulation of subsidies and the definition of qualified plans. Whatever the case may be, why not put everything on the table now - as we enact "comprehensive reform." How we are to control costs is not unrelated to - and might rationally affect decisionmaking on - how we provide care.
5. Why enact a bill that is almost certainly unworkable? And not only because it's going to cost a lot more than is claimed and is not paid for. The only way that requirements that preexisting conditions be covered and that not result in higher premiums can possibly work is a coverage mandate. The bill has that, but it seems that the penalty that is to be charged for failing to obtain coverage is substantially less than this coverage would cost. If that's so, then why wouldn't it be rational to wait until you have a significant health issue and buy coverage then? The bill does things - like gutting Medicare Advantage (the Q-Tip vote is going to go ballistic on this, just wait)) and ignoring the doc fix - that no one believes can last. Nancy Pelosi says that after "we kick in this door" there will be more legislation. They'll have to be. If we know that now and we are enacting "comprehensive reform," why not address these matters? The solution might be relevant to how the current bill should be structured.
6. Why deny the bill is what it is? It may not be a "government takeover" of health care in the sense of a single payer system, but it is a massive increase both in government spending on health care and federal management of the health care system. Forever more, the key decisions on health care are going to be made in Washington DC because he who pays the piper calls the tune. The public sees this and that is why it strongly opposes the bill. But if the public is wrong and centralized management of the health care system by politicians and bureaucrats is a good idea, then why not make the case?
7. Why mislead the public about its impact? Many, many people are going to lose the coverage that they have. The distinction between being directly forced to drop it and losing it because of the effects of "reform" is specious and yet the President continues to make this point. The bill is may create a two tiered system of people with relatively robust employer-provided coverage and people on something like Medicaid. You can say that we have that now but it seems likely that one of the prices for expanding coverage may be to weaken coverage for some who already have it. Will 85% of the public still be happy with their health care? By increasing the marginal cost of labor, it may increase unemployment. Is that worth it? We can't decide if we don't acknowledge the trade-offs.
8. Why freeze out the Republicans? There was nothing bipartisan about putting this together. We started with the Obama plan and then tweaked it to get enough Democrat votes to pass it. No Republican amendments or alternatives need apply.
9. Why ignore public sentiment? Here is what the Democrats are telling the public: You don't know what you're talking about it. We know better than you what is good for you. Rather than take his case to the public, the President is taking it to a handful of obscure Congressman and offering Obama knows what. That's fine when your proposal isn't down by double digits in most polls.
10. Why pass a bill with real constitutional problems? It is far from clear that challenges to the mandate or, depending on what they do today, the method of the bill's enactment will succeed, but there are very substantial issues. Both could readily be avoided. If we are going to do more than have a quick look around history's foyer, shouldn't they have been?
But as we wait for the passage of ObamaCare, here are a few thoughts. We all know the old saw about legislation and sausage making, but if this reform package is indeed the historic act of compassion and cost control that it is said to be, how do we answer these questions?
1. Why is it necessary to dissemble about its costs? The CBO score is a pastiche of odd inclusions (savings on student loans?), omissions and unlikely assumptions. As the public opinion polls reflect, it is fooling no one but the Democrats, certain elements of the mainstream media and Paul Krugman. (In fairness, the dissembling largely consists of treating the CBO score as something more valuable than it is, see, e.g,. Nancy Pelosi. ("I love the numbers. They're so precise.")
2. Why not pay for it? This question is a subpart of the first. The bill is going to cost quite a bit of money and it is not close to being paid for. If this is such a wonderful thing, then its proponents should not fear an honest assessment of what it will take to fund.
3. Why support it with a series of red herrings and dubious assertions? The post-partisan - no post-political - President Obama has decided to double down on blaming problems with the health care system on the insurance companies. This is silly. Insurance company profit is a tiny sliver of the cost of health care. The inability to get someone else to pay for the cost of treating your pre-existing condition is a problem that requires a solution, but it is not the fault of insurance companies. Covering a pre-existing condition is not insurance.
Most people get insurance through their employers and, by law, most who do have coverage for pre-existing conditions. (Most of those folks, moreover, aren't covered by an "insurance company" at all.)
We could go on. It is highly unlikely that extending coverage to uninsured persons will reduce the cost of their care. It is probable that additional preventive care will increase, rather than decrease, spending on health care, etc.
The bill might still be a good idea. But, if it is, why support it with bad arguments?
4. Why hide the ball on cost controls? It is still unclear to me why the bill is supposed to reduce costs. It certainly does provide a mechanism to aggressively ration care under Medicare and Medicaid by turning them into the Mother of HMOs. But there seems to be a step two that will be required. The President has advocated price controls - an economically illiterate idea - but its apparently out because it couldn't be enacted through reconciliation. Perhaps the idea will be to impose "best practices" (i.e., rationing) on private plans through the manipulation of subsidies and the definition of qualified plans. Whatever the case may be, why not put everything on the table now - as we enact "comprehensive reform." How we are to control costs is not unrelated to - and might rationally affect decisionmaking on - how we provide care.
5. Why enact a bill that is almost certainly unworkable? And not only because it's going to cost a lot more than is claimed and is not paid for. The only way that requirements that preexisting conditions be covered and that not result in higher premiums can possibly work is a coverage mandate. The bill has that, but it seems that the penalty that is to be charged for failing to obtain coverage is substantially less than this coverage would cost. If that's so, then why wouldn't it be rational to wait until you have a significant health issue and buy coverage then? The bill does things - like gutting Medicare Advantage (the Q-Tip vote is going to go ballistic on this, just wait)) and ignoring the doc fix - that no one believes can last. Nancy Pelosi says that after "we kick in this door" there will be more legislation. They'll have to be. If we know that now and we are enacting "comprehensive reform," why not address these matters? The solution might be relevant to how the current bill should be structured.
6. Why deny the bill is what it is? It may not be a "government takeover" of health care in the sense of a single payer system, but it is a massive increase both in government spending on health care and federal management of the health care system. Forever more, the key decisions on health care are going to be made in Washington DC because he who pays the piper calls the tune. The public sees this and that is why it strongly opposes the bill. But if the public is wrong and centralized management of the health care system by politicians and bureaucrats is a good idea, then why not make the case?
7. Why mislead the public about its impact? Many, many people are going to lose the coverage that they have. The distinction between being directly forced to drop it and losing it because of the effects of "reform" is specious and yet the President continues to make this point. The bill is may create a two tiered system of people with relatively robust employer-provided coverage and people on something like Medicaid. You can say that we have that now but it seems likely that one of the prices for expanding coverage may be to weaken coverage for some who already have it. Will 85% of the public still be happy with their health care? By increasing the marginal cost of labor, it may increase unemployment. Is that worth it? We can't decide if we don't acknowledge the trade-offs.
8. Why freeze out the Republicans? There was nothing bipartisan about putting this together. We started with the Obama plan and then tweaked it to get enough Democrat votes to pass it. No Republican amendments or alternatives need apply.
9. Why ignore public sentiment? Here is what the Democrats are telling the public: You don't know what you're talking about it. We know better than you what is good for you. Rather than take his case to the public, the President is taking it to a handful of obscure Congressman and offering Obama knows what. That's fine when your proposal isn't down by double digits in most polls.
10. Why pass a bill with real constitutional problems? It is far from clear that challenges to the mandate or, depending on what they do today, the method of the bill's enactment will succeed, but there are very substantial issues. Both could readily be avoided. If we are going to do more than have a quick look around history's foyer, shouldn't they have been?
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