Take a pill

Here's a health care horror story:

Mountain-bike enthusiast Suzanne Aucoin had to fight more than her Stage IV colon cancer. Her doctor suggested Erbitux—a proven cancer drug that targets cancer cells exclusively, unlike conventional chemotherapies that more crudely kill all fast-growing cells in the body—and Aucoin went to a clinic to begin treatment. But if Erbitux offered hope, Aucoin’s insurance didn’t: she received one inscrutable form letter after another, rejecting her claim for reimbursement.

Ms. Aucoin's story wasn't included by Michael Moore in Sicko. It hasn't been told by Sen. Kathleen Vinehout or other state Democrats pushing their new health plan. You'll never hear about it from Nancy Pelosi or Ted Kennedy.

Why not?

Because Ms. Aucoin lives in Ontario, Canada. Her clinic was in Buffalo, New York. There's an inconvenient truth for you.

Dr. David Gratzer in the City Journal discusses this and other difficulties with the Canadian health care system. He might have added that the Canadian Supreme Court found that wait times for surgery in Quebec combined with a ban on private care were a human rights violation.

The large truth here is that there is no such thing as unlimited care. Canada needs to hold down its health care expenditures just as everyone else and, as a consequence, the government becomes one large HMO.

Gratzer's piece did not answer all of my questions but made four points that are worth keeping in mind.

1. There is a free rider problem here. We go into high dudgeon over the fact that American-made drugs are sold less expensively in Canada (where there are price controls) than they are here. Bad greedy drug companies.

But we don't stop to acknowledge that these things are invented in New Jersey and not New Brunswick. This may have something to do with the financial incentives for development that exist here and do not exist in Canada. The cost that must be recouped for drugs is not the cost of stamping them out (much like software, that's minimal), it's in inventing them.

The fact is that an outsized share of medical innovation happens in the US with its "uniquely horrible" health care system. Maybe that's just God's practical joke. Or maybe not.

(Yeah, I know drug companies spend a lot on advertising but that's a function of choice, no?)

2. Health care is better in the US. The argument that it is not is generally based on what Gratzer calls crude indicia of health (as opposed, say, to the outcomes of medical treatment). He writes:

But such outcomes reflect a mosaic of factors, such as diet, lifestyle, drug use, and cultural values. It pains me as a doctor to say this, but health care is just one factor in health. Americans live 75.3 years on average, fewer than Canadians (77.3) or the French (76.6) or the citizens of any Western European nation save Portugal. Health care influences life expectancy, of course. But a life can end because of a murder, a fall, or a car accident. Such factors aren’t academic—homicide rates in the United States are much higher than in other countries (eight times higher than in France, for instance). In The Business of Health, Robert Ohsfeldt and John Schneider factor out intentional and unintentional injuries from life-expectancy statistics and find that Americans who don’t die in car crashes or homicides outlive people in any other Western country. (emphasis supplied.)

This may be why Americans report a high degree of satisfaction with their care, if not their insurers.

3. Other countries are moving away from state directed health care, gradually privatizing what was once state provided care and slowly asking their citizens to assume more responsibility for their own care.

4. The notion that the US pays too much for health care is not evidently correct. The US is a very wealthy country. As national wealth increases, what people spend money on is likely to change. I can only eat so much or wear so many clothes. I might decide, as I grow wealthier, to buy more health care and, as I do, this health care is probably going to be concentrated on the treatment of formerly fatal conditions that are both infrequent and, probably, concentrated among older populations. Thus the US, for its extra money, becomes very good at treating very sick people.

All of this underscores something that we should not lose sight of. Michael Moore is flat out wrong. We have an extremely good health care system here. We have, it is true, a need to reform the way in which it is paid for - a need on which conservatives and liberals agree, even if their proposed reforms are very different.

But in discussing reform, we should not treat the system as a given, unaffected by the way in which we pay for it. We should not throw out the baby with the bath water.

The smell of censure

Sen. Russ Feingold wants to censure the President again. It won't happen and it's not all bad that the good Senator is wasting his time on it. The more energy he devotes to this the less time he will have to propose legislation.

Feingold explains his position in a piece in yesterday's Milwaukee Journal Sentinel. The last time he called for censure and the local paper gave him column space to promote the idea, the editorial board asked me to write something advancing the opposing view. They gave Russ an open field this time.

There is, put politely, a dearth of hard information in the collection of adjectives and ipse dixits that someone on the Senator's staff wrote for him. But I was struck by the assertion that the Bush administration misled the country into war followed by this:

I believe that the president and the vice president may well have committed impeachable offenses. That does not mean, however, that putting the country through two impeachment trials and distracting Congress from its other work, including trying to undo this administration's misconduct, is required or the right thing for the country.

No, actually, if the President and Vice President lied their way into a war, an impeachment trial is precisely what is required. Heck, I'd support it. Feingold wants to accuse Bush and Cheney of treason without having to do anything about it. He wants to brand the President of the United States a criminal without being bothered to prove it. By divorcing accusations from consequence, his call for censure is nothing but a political trick. He'd support this slander if only the country could take it.

I don't want to hear about the overhyped Downing Street memo or listen to the mythical Ballad of Valerie & Joe. Don't bother me with the Talking Richard Clarke Blues. If you believe that the Iraq War is the product of deliberate lies, you ought to be for impeachment. You ought to think that Bush should go to jail. Censure is just a symbolic bill of attainder.

All of this reminds me of John Randolph's comment about Henry Clay. Like a rotten mackerel in the moonlight, it both shines and stinks.

"I was friends with everybody down there,"

This weekend I went down to Kentucky in search of a preacher. 500 miles down on Saturday and the same back up on Sunday. Long way to go for church.

So I get back and a dog is biting the postman again. Milwaukee County employees and elected officials were caught ripping off taxpayers in yet new creative and apparently illegal ways. If the folks working for Milwaukee County had ever shown half the ingenuity in actually doing their jobs as they did in feathering their own nests, Milwaukee would be the New Eden.

The quote I chose to caption this post was from Bob Ott, the former Corporation Counsel for Milwaukee County who took his and ran. It pretty much sums up the whole mess.

The latest line on the Milwaukee County pension scandals has been to forget it. "The benefits have been paid," people say. "let's move on." Let's start raising taxes and spending again.

But the problem was never just the one-time payouts. It was never even just this type of officially sanctioned theft. Milwaukee County - and governments across the nation - have huge unfunded pension liabilities. You can either tackle social problems or you can arrange for clerks to retire as the functional equivalent of millionaires. It's pretty hard to do both.

Redefining judicial restraint

The left's latest move in judicial politics is to redefine the concept of judicial restraint. This is necessary because no one thinks that judicial activism is a good thing. The reason has nothing to do with talk radio and conservative demagoguery. It's rooted in the implications of judicial review. If we give judges the power to frustrate the decisions of elected officials, then they need to base that power in something other than their own policy preferences; something that has itself been legitimized by popular assent.

Jeffrey Rosen is probably the principal popularizer of a supposedly "neutral" definition of judicial restraint that reduces it to a question of striking down statutes (or, I suppose, invalidating executive actions.) There are three problems with this approach.

First, it is rooted in an assumption that there can be no substantive definition of restraint that is rooted in an understanding of constitutional or statutory text because the texts are too elastic to bear any definite meaning. This is a point of view that has the most attraction for certain law professors and law students who, I think, are overly impressed with their verbal dexterity. More fundamentally, it is a premise that restraintists don't share. Interpreting law is not a mechanical process and reasonable people can differ, but texts are not just convenient starting points.

Second, it elides the debate over restraint and activism (which is really a debate between competing schools of interpretive theory) into a debate over judicial review itself. That's a worthy debate, but restraintists don't oppose judicial review.

Third, it runs contrary to a central precept of judicial restraint, i.e., that judges may not ignore clear constitutional commands. If a legislative or executive action falls runs afoul of such a command, the refusal to strike it down is "activist" in the sense of exercising authority from some illegitimate source.

Another part of this move is to conflate judicial restraint with stare decisis. These concepts may be related but they are not the same and restraint does not mean adhering to erroneous precedent.

Thus, Arlen Spector is upset that the Roberts court has abandoned or weakened precedent and wants to investigate the Roberts and Alito confirmation hearings. But Roberts and Alito never said that they would always follow precedent or that it must always be expanded and never narrowed.

The Shark jumps

Some readers of this blog may know that, while I have been an adjunct professor at both UWM and Marquette, my day job has been the practice of law - first as a litigation partner at Foley & Lardner and, more recently, as General Counsel for Rite Hite Holding Corporation, an international manufacturer of material handling equipment headquartered in Milwaukee.

That will change next month as I join the faculty at Marquette University Law School on a full time basis. I will, of course, continue to blog, write and be involved on matters of law and public policy. At least for a while, I will continue to counsel Rite Hite on a reduced time basis. Rite Hite is a wonderful company with fantastic ownership. (You should go there for all your dock equipment - especially between now and the end of the year.) The company has been more than understanding with respect to my public activities. I am grateful for the opportunities that they gave me and for the wonderful people I have come to know during my stay there.

Needless to say, I am thrilled to have the chance to spend the day teaching, thinking and writing about the law and issues about which I am passionate. Certainly more work, definitely less pay but tremendous fun. Who needs more?

Vinehout redux

I do not believe that I am a citizen journalist. I do not do much primary reporting on this blog and I believe that journalism is a profession which involves skills and disciplines that I do not have.



But I did report that Sen, Kathleen Vinehout had made a rather significant contribution to her campaign during a period of time when she claimed to be unable to pay for her health insurance or her son's appendectomy. I did that ten days ago - shortly after the Milwaukee Journal Sentinel splashed Vinehout's indignation over her mistreatment across the front of its Metro section.

Although Patrick McIlheran noted the story in his blog shortly thereafter, it took the Journal Sentinel until today to write a news story about it. Any love for the Shark? Not hardly.

More importantly, we still don't really know why Vinehout and her husband didn't pay for their insurance other than that the cost of premiums went up. We still don't know why Vinehout didn't think that perhaps she ought to go out and get a job with benefits so her family would have coverage instead of working as a lobbyist and, later, running for office.

Of course, I know that some people - even if it was not Sen. Vinehout and her family - could not have paid the premiums or found such a job. I think its wrong - and politically foolish - for conservatives to stand pat in the debate over health care reform.

But, as I wrote when I broke this story (I needed to say that now because I probably will never be able to say it again), the Vinehout anecdote illustrates more than she intended. The right had its blindness over health care, but so does the left. There is this notion that unlimited health care ought to be your "right" without the requirement of any significant contribution or commitment from you. It's not possible and, in the real world, would probably not be desirable.

Snap reaction to the Jude verdicts

I always get a little uncomfortable about civil rights charges based on essentially the same conduct that has underlied state charges upon which a defendant has been acquitted. The circumstances under which it can be done are sufficiently limited that I don't regard it as a major threat to civil liberties, but there is something about the authorities having two kicks at a defendant that makes me hinky.

Having said that, the verdicts this afternoon in the Jude case seem amply supported by the evidence. Coming back to my office from a meeting, I heard some callers on WMCS suggest that, while this is a good thing, you still "can't get justice at home" by which, I take it, they meant the Milwaukee County DA's office and a Milwaukee County jury.

I don't think that's right. The better explanation is that the DA's office made strategic choices in the first case that backfired. In this case, the prosecution had the benefit of some cops who flipped. I think that, and not the prosecuting agent or jury pool, made the difference.

Hillary's Reagan Moment?

Political lore has it that Ronald Reagan all but sealed the GOP nomination in 1980 when, about to have his microphone turned off by the moderator of a debate in Nashua, New Hampshire, he insisted on being heard. "I'm paying for this microphone, Mr. Breen." (The issue, incidentally, was the refusal of George H.W. Bush to participate in the debate if other candidates who had been invited by Reagan - Dole, Baker, Anderson and Crane - were allowed to participate.) The whole thing communicated decency, forcefulness and, at least subliminally, a message about property rights.

Hillary may have had her own such moment in this week's You Tube debate when she responded with incredulity and not a little disdain to Barak Obama's eager endorsement of the idea that, if elected, he should meet with the leaders of Iran, Cuba, Venezuela, North Korea, Syria, etc. "without preconditions." We just can't have "our president" meet with such people, she said, without knowing the way forward. The moment communicates patriotism, toughness, and maturity.

Probably won't help her in the Democratic primaries.

I doubt that Obama really meant that he would rush off and meet with these tyrants without preconditions. In his rush to seem open and diplomatic, he left himself open to a devastating rejoinder.

Negotiated resolutions are not in and of themselves a good thing. Neville Chamberlain's appeasement of Hitler at Munich and the Missouri Compromise were negotiated solutions. There are interests that cannot be given up and, paradoxically, pretending that they might be actually impairs, rather than enhances, the prospects for compromise.

If, in fact, there is no possible agreement with Iran that does not include the verifiable dismantling of its nuclear program, then there is no point in eliminating that as a "precondition." It creates expectations on the other side that cannot possibly be fulfilled and there is no better way to ruin a negotiation.

The political Marquis(es) of Queensbury?

"Things get sold in this country every day without people having to die behind it"
- Jimmy McNulty, The Wire


My first reaction to the two Concordia professors who want to run together was to push the smug alarm. It smacks of this notion - which tends to be associated with moderate Republicans who won't admit they have become Democrats - that politics is a science, i.e., that there is some neutral way of identifying the public good that we might all agree upon if we just got out of the partisan muck. While these guys say that they disagree each other, I wonder. I am generally suspicious of those who say we can rise above partisanship. There is a reason that we cling to our partisan divides. They reflect real differences of opinion about important stuff.

But maybe I am being unfair. There is a sense in which I think that there is a higher way to which pols can aspire. It has nothing to do with agreeing or coming together on issues. I has to do with how our differences are expressed.

I have spent years in a profession in which highly aggressive people fight with each other everyday over things that matter greatly. It can get pointed and there are lawyers who stretch the truth, make silly arguments and are routinely uncivil. I call them bad lawyers. Without exception.

Believe it or not, good lawyers fight hard for their clients and generally manage to do it without misrepresentation or making the intellectually silly arguments that just about every campaign spokesperson makes every day. They manage to treat each other with respect.

That does not seem to happen very often in politics and, of course, it cannot be mandated or made to happen by law. But is there a Moneyball opportunity here?

I'm still waiting

Although my attention has been distracted for the past few days, I did hear Sen. Russ Feingold interviewed on WTMJ regarding his opposition to the John Doe amendment. His comments were - and there is really no room for debate on this - flat out wrong. The amendment does not change the "criminal law" (it makes minor changes in the civil law), it does not grant "complete immunity" to those who report suspicious activity and certainly wouldn't grant it to people who merely report someone "they don't like" or who is simply "praying." The thing wasn't done at the last minute, etc.

I suppose I could say that Sen. Feingold is unable to understand the amendment's language, but that can't be true. It's fairly simple and, even if it were not, Sen. Feingold is a well trained lawyer (he was a year or two ahead of me at Harvard and, for the year or so that he practiced, was at the same tony law firm that I worked at for 16 years.) It could be that he hasn't read it, but that proposition is scary and, happily, implausible. Legislators often don't (really can't) read everything that they vote on, but this doesn't seem like a case where that would happen.

So I'm still at a loss to figure it out. Is there a political dynamic that says he needs to take the most extreme "civil liberties" positions possible even if they make little sense? Does he need to be seen as opposing anything that the GOP proposes on the war on terror or that makes terrorism seem like a serious threat? Is CAIR an important Democratic constituency?

I still don't know.

Loose lips sink suicide bombers

I am at a loss to explain why the Senate Democrats (including our own Senators Kohl and Feingold) thought it necessary to kill the "John Doe amendment" granting limited immunity to persons reporting a suspicious activity.

It would be one thing if it granted absolute immunity for such reports or even if it granted such immunity to anyone who, for whatever reason, believes that he or she has seen something untoward, however foolish that belief might be, i.e., to those with pure hearts but empty heads.

But it doesn't do that. In the pertinent text, immunity is granted to:

Any person who, in good faith and based on objectively reasonable suspicion, makes, or causes to be made, a voluntary report of covered activity to an authorized official shall be immune from civil liability under Federal, State, and local law for such report. (Emphasis supplied)

Covered activity is defined as "any suspicious [activity,] indicating that an individual may be engaging, or preparing to engage, in" certain criminal acts.

In other words, you don't get immunity unless you both believe that the person you report may be engaging in covered activity and that belief is reasonable. A pure heart is not enough. Do the Senate Democrats really want people to be held liable for reporting their reasonable suspicions of terrorist activity?

If the concern is racial profiling, the amendment would require that a person claiming immunity articulate an objectively reasonable basis for his or her report. I can't imagine that too many courts are going to think that "flying while muslim" cuts it. (If you are worried that juries will excuse racial profiling, then no such lawsuits are going to be successful anyway.)

I have looked in vein for some reasoned critique of the amendment so I've got to imagine what the Dems might say. One argument might be that it is not necessary because most existing theories of liability that might be asserted against people reporting suspicious activity would require some demonstration of negligence or malicious intent.

The problem is that it would be wrong. One of the theories advanced in the flying imams lawsuit is defamation. Common law defamation (and, to throw out another example, common law invasion of privacy) have no such requirements. While I think it is highly unlikely to ever succeed, I can also imagine a claim for conspiracy to violate Title VI (the law that prohibits discrimination in public accommodations) that might not require intent or negligence. (In fairness, I haven't fully thought through the latter.)

The point is that it is far from clear that immunity is unnecessary.

Another objection might be federalism. Why should federal law preempt state lawsuits? Apart from the fact that I am almost certain that this is not why the Dems oppose the law, it does not seem preposterous to think that there is a national security or interstate commerce hook here that is broad enough to support congressional action.

So what's going on here? No, I don't think that Democrats are courting the jihadist vote, but this does seem like a sop to some constituency.

Black and white behind bars

I really like the Journal Sentinel's new Proof and Hearsay blog written by Derek Nunnally, so I hate my first reference to it to include the picking of a nit. But precision with numbers is important and the error that Nunnally made is repeated in the document that he refers to.

Nunnally refers to the recent report of the Sentencing Project. which finds that blacks are incarcerated at 5.6 times the rate of whites nationally and at over ten times the rate in Wisconsin. Nunnally writes "for every 100,000 people living in Wisconsin, 4,416 black people and 415 white ones are in prison." Although I suspect that he means to say the right thing, this is wrong. Indeed, I don't blame him because the text of the report sloppily refers to "rate per 100.000 population" but that's not quite what these numbers are.


What the report actually found is that there are 4416 blacks incarcerated for every 100000 black people and 415 whites incarcerated for every 100000 white people. If Nunnally were literally correct, that would mean there are over 260000 black and white people incarcerated in Wisconsin (the real number for inmates of all ethnicities is less that 10% of that) and there would be ten black inmates for every one white inmate. (It's closer to 1:1) If there were 4416 blacks incarcerated in Wisconsin for every 100000 residents, 80% of the black population would be behind bars. The black incarceration rate would be much greater than 10x the white rate. It would, in fact, be over 175 times the white rate.

Of course there is still a big discrepancy between the white and black incarceration rate, but the Sentencing Project report, although it contains policy recommendations (largely of the "turn 'em loose" variety), does not attempt to figure out why this is.

Even if you concede that there must be a reason rooted somewhere in America's racial history, that doesn't tell you much about what's going on today since we know that there can be substantial differences in, for example, the incidence of arrests among racial groups. Let's take one that is easy to find and simple because I really need to get back to work

We know that roughly the same number of whites and blacks were arrested for murder and nonnegligent manslaughter in 2005. Yet there are approximately six times as many white people as black people in the United States so blacks are apparently six times as likely as whites to be arrested for these crimes. This is unlikely to be explained by bias in the criminal justice system.

As I said, I am perfectly prepared - even eager - to believe that the reason for this is rooted, to a significant degree, in our sad racial past and that poverty plays a role. This seems indisputable.

But that doesn't really tell us what to do about it today. It doesn't mean, for example, that crime has not become a major factor in the perpetuation of poverty and that we'll never do much about poverty until we do something about crime.

The numbers in the Sentencing Project report are important but they don't explain themselves and their cause is not self-evident. They can begin a conversation but they don't carry it very far.

There is, by the way, an interesting example of the fallacy of correlation that can be illustrated by the report. Eleven of the 15 states with the highest discrepancy between black and white incarceration rates were carried by John Kerry. Fourteen of 15 with the lowest discrepancy were carried by George W. Bush. There is, it seems, a statistically significant correlation between Republican voting and greater racial parity.

Nb: It's probably God's sweet justice that I had an omission on the first draft of this post.

Sexual politics

Dad29 notes that Susan Estrich thinks that Boomer women will be upset about Fred Thompson's young-enough-to-be- his-daughter wife. She notes that some women voters will be turned off by the fact that Fred shares no generational experiences with his wife. She can't recall where she was when JFK was shot (unless you believe in reincarnation, that would be nowhere, actually) or remember the same music, etc.

Patrick McIlheran comments on the insular grandiosity of Baby Boomers about their "shared experiences" and I think that the phenomenom that he refers to certainly exists. Look at all those obnoxious television commercials for retirement planners.

But I think there is a simpler explanation for Estrich's point which is, I think, true. Jeri Thompson will be a negative. Older women - with some justification - resent the fact that men their age are attracted to younger women. They resent the societal emphasis on youthful (as opposed to mature) feminine beauty. Jeri and Fred will remind them of that.

I must confess that I have two reactions to this. The first is rooted in my formative high school years as a nerd who was overlooked for older cooler (and generally "badder") guys. Part of me wants to say that payback is a bitch.

But that's all Shark and no Shepherd.

Susan is right. Putting aside baby boomer parochialism and the politics of the sixties, marital companionship may well be diminished by the absence of shared experiences.

So, being a creative nerd, I crafted a solution. I married someone who is roughly my age but looks twenty years younger.

(K: How many points do I get for that?)

Political prisoners aren't what they used to be

Fred Gordon says that the case against Michael McGee, Jr is "made up of snitches, wire taps and McGee's own mistakes."

I think this is a defense lawyer for "Mike is screwed." This means that he has got eyeball witnesses to his crimes, was recorded committing them and, in the strange parlance of our time, is guilty as sin, i.e., made "mistakes." McGee apparently accidentally brokered a deal to have a guy beat up. He slipped and wound up with a bribe in his hand. He meant to call his wife and ask for a new toothbrush but somehow wound up talking to somebody else about bribing a witness. Who even knows how that happened?

Yet Gordon thinks McGee is a "political prisoner." Yeah, he's a real Solzhenitsyn. He's a regular Martin Luther King in the Birmingham jail. Some moral paragons write missives on natural law and civil disobedience when they are on the inside. Others tamper with witnesses. Whatever.

I have a question ...

Why is the street car loop that Tom Barrett wants to build even remotely a good idea? If you know, please tell me. I hope, however, that I'll hear something other than that we have 91 million dollars burning a hole in our pocket or that it will build "momentum" toward some other form of rail. If some other form of rail is a good idea, make the case for that and not for something that seems entirely superfluous.

I can see the value in rail transit if it takes people off the streets and freeways, thereby reducing congestion. The difficulty has always been that 1) Milwaukee does not have a highly concentrated population and 2) the cost estimates always appear to be in the stratosphere.

But put that aside. This runs on the street. Why not use busses. Even electrical busses. What is the purpose of this? Can even Jim Rowen explain?

Unhealthy (and bankrupt) Wisconsin

Christian Schneider makes a great point at the WPRI Blog about the danger of the senate Democrats' health plan (I will not refer to it by its brand name) becoming a magnet for the sick and uninsured . Insurance companies call this adverse selection and, when it happens, you go broke.

The problem is that the plan will cover even newcomers to the state as long as they are, essentially, "gainfully employed" (including self-employment like, for example, blogging for money), pregnant or a child living with his or her parent. Christian thinks that it is easy enough to get a joe job (in the Canadian sense) or say that you are self-employed, but the problem is worse than that.

There is this thread of constitutional analysis, most notoriously expressed by the U.S. Supreme Court in a case called Shapiro v. Thompson and more recently in Saenz v. Roe, that suggests that a state may not deny benefits (at least not benefits pertaining to the "necessities of life") to newcomers.

Thus even the few roadblocks that the current version of the plan puts in the way of Wisconsin becoming America's ER may not stand and fixing the bill to keep folks from coming here for the health care will be tough.

Even if you think that this would not happen (and I don't know why it would not), the argument that this is a fee (as opposed to a tax) or that it just replaces costs that businesses already incur is false. Even for employers who offer insurance, the plan will hurt companies with relatively well paid employees (think of a professional firm) even if it helps those whose employees are less well compensated. (And it may not do even that as cash compensation is bid up - something the plan's proponents have to hope will happen.) As for employers for whom the market does not currently warrant the provision of health insurance, forget it. For Wisconsin to adopt a plan like this will have a significant impact on the state's economy and it won't all be good.

The problem is, that by continuing the historic accident of tying the payment of health care to payroll, it distorts the market and market distortions generally dampen production. Particularly, as Christian points out, when you try to go it alone in a big country with porous state borders, you are going to get killed.

This all suggests a topic for a future post. Democrats try to chide Republicans by ignoring scientific consensus on global warming. I don't buy into that, but don't Democrats (at least the leftier versions) routinely disregard the consensus among economists on things like minimum wage laws, price controls, protectionism, high marginal tax rates, etc.?

C'mon, guys. The science is in.

What Vinehout's story really illustrates

Over the weekend, I noticed a piece on Sen. Kathleen Vinehout's health insurance woes, offered as an illustration of what is wrong with our health care system. Perhaps it is, but my first reaction to the piece was to wonder why no one asked the Senator the simplest of questions.

Why were you unable to pay for health insurance when you were able to contribute almost $9000.00 to your own Senate campaign?

Here's the story.

Apparently, Vinehout and her husband are a pair of professionals who, at some point in their late youth or early middle age, decided that farm living was the life for them. It seems that some unspecified event in 2005 caused them to lose their health insurance or to decide to stop paying for the insurance they had. Just what that was - perhaps a decision by Mrs. Vinehout to go into politics fulltime - is left unstated.

We are also not really told why they decided not to pay for insurance. It was to "pay farm expenses" but what does that mean? Was it a choice between health insurance or groceries? Insurance or losing the farm? Based on the article, we don't know.

What we do know is that, although they saved something in the neighborhood of $23,000 in premiums over the 23 months that they went uninsured, they didn't quite make it unscathed. Shortly before Sen. Vinehout won election to the senate and its Cadillac health care, their son required an emergency appendectomy which wound up costing them $10,000. They say they had to borrow to pay the bill.

On his show this morning, Charlie Sykes apparently spent some time emphasizing the fact that Sen. Vinehout and her husband made a choice and so they did. But what kind of choice?

These are not unimportant questions if Vinehout's "tragedy" is supposed to be instructive on our health care woes. This is because we don't have an "accessibility problem," although do have some accessibility problems. If you don't take the time to understand them and how they are distinct, preferring instead to detour off into babble about how health care is a right and should be '"free," you aren't going to get the diagnosis right. And you'll cobb up the cure.

While we hear about the uninsured, there are many reasons why people are uninsured. Some are effectively uninsurable due to pre-existing health problems. That presents one problem set. Apparently, this wasn't the case with Sen. Vinehout's family. It certainly wasn't for her son.

Other people can't afford insurance. While we are supposed to conclude this was the case here, that is not clear. In fact it seems like it almost certainly wasn't. Apparently the family had the capacity to borrow to cover the uninsured costs of their son's surgery. Couldn't they have borrowed to cover farm expenses until the crops came in?

Even more to the point, it appears that Kathleen Vinehout contributed almost $ 8000.00 to her own campaign. Her husband, Douglas Kane, threw in another $1000.00. That money would have covered much of the premiums that they chose not to pay (remember that, as self-employed farmers, they could pay them with pre-tax dollars, while political contributions are after tax) and it would have covered about all of young Nathan's surgery.

This brings us to where Senator Vinehout's family seems to belong. Another group of people have no insurance because they choose to gamble on their health. Most frequently, this is young people (for whom it may be an arguably rational choice) but it can also be older people who don't want to make a difficult choice to provide for their health as opposed to spending the premium money on some other (often worthy) thing or doing something else that will cause them to forfeit their insurance. I may think it is crazy for a 49 year old with a kid to decide to go naked, but it does happen.

It looks like that is, at least in part, what happened here. I am all for middle-aged people following the dream - be it politics or keeping the farm- before it's too late. Heck, I'm in the process of doing it myself in a less dramatic and more conservative way. But the idea that the rest of us should pay for it carries a bit less sympathy and may suggest different policies than the story of someone who just can't buy or afford insurance.

This is not to say that the Kane/Vinehouts' choice, even if it was a bad one (although it looks like they came out dollars ahead), is uninteresting from a policy perspective. There is a "free rider" problem here in that we aren't going to let people (or their children) die because they made imprudent decisions. (Little Nathan was going to get that appendectomy no matter what.)

Sure, I'm speculating on some of this, but the article leaves me with no choice. In that sense, the reporter becomes emblematic of our health care debate. If there is a heartrending story to tell (and this is not much of one - nothing bad happened and no one was ever in danger), we ignore all the tough questions.

We do it on policy too. Universal health care is not free. Universal is not unlimited. People and businesses will react to the incentives and costs that reform creates and this, too, will have an impact on real people and their health. Compassion is an necessary part of the health care debate, but it is not sufficient to end the debate. It resolves little of interest.

You dance, you smile, the guys go wild

An attorney named Roy Den Hollander is trying to bring a class action on behalf of men everywhere to end Ladies Night promotions at night clubs. He claims the policy deprives men of their rights under color of state law. This is probably a loser for the reasons offered by Ilya Somin here.

I don't know if he is pursuing it, but Hollander may have a better chance under state laws banning discrimination in public accommodations. That approach has been successful in California and New Jersey.

Apart from the merits, Professor Somin points out a potential problem with Hollander as a class representative. He reminds us that one of the four requisites of class action is that the class representative must adequately represent the class. He might also have added that the class representative's claims must be typical of those of the class.

Unless Hollander somehow certifies a class excluding heterosexual men, I think he has a problem here. In fact, if this goes anywhere, Hollander may want to avoid dark alleys in Brooklyn lest he run into a group of his clients seeking a private conference.

As for me, I haven't been to a bar holding Ladies' Night for years. I would either scare the ladies or, if I did not, wind up in a shallow grave. Less than fully intact.

Six Degrees ...

... of the Shark's reaction to Frank Lasee's proposal to end public funding for the UW Law School

1. Great! Stick it to the competition. But that is really ungracious and hardly a neutral principle.

2. But I am surprised that UW Law School gets only $ 2.5 million in public money. This means that it is mostly self supporting (although certainly some of the tuition money that its students pay has a public source.)

3. If we have a problem with too many law suits, the likely cause is not lawyers filing frivolous lawsuits but courts finding that the lawsuits that they file are not frivolous. The more direct answer for that problem is tort reform.

4. In any event, Lasee, as a good Republican conservative, ought to know that it is for the market, and not the legislature, to decide whether we have too many lawyers. While one could argue that subsidizing the cost of a legal education at UW artificially lowers its cost and inflates the supply of new lawyers, the facts don't lend much support. The subsidy is shallow and graduates of our state law schools are overwhelmingly employed following graduation. It appears that the market does demand them. Wisconsin, in any event, apparently has significantly fewer lawyers per capita than the national average.

5. It's an odd way to address a surplus of lawyers. Certainly Lasee doesn't think that we need not train new lawyers because we have too many older ones. In any event, with only Marquette and Wisconsin, the state has comparatively few seats for law students per capita. Given that they are almost all employed, the more likely outcome would be an increase in tuition and the same number of new graduates. Lasee says that he can live with that, but, if the problem is a surplus, the problem would continue.

6. Lasee may have had a better point if he had asked why taxpayers should subsidize an education that is often quite lucrative for those who complete it. The question is not unanswerable. Market imperfections may require some subsidy for students who are not wealthy. All of the valuable jobs that lawyers perform are not lucrative. All of the value in a law school is not captured in the training of lawyers.

But private law schools do handle these problems quite well and the first two issues, in any event, would seem to suggest that financial assistance go to the student and not the institution. I am not outraged that the UW Law School gets public money, but it would not exactly shock the conscience if it were required to be self supporting.

Lessons from the past on racial segregation

My Backstory colleague Jim Rowen (who also wasn't on Backstory yesterday) has written an interesting post on racial residential segregation in Milwaukee. He cites statistics that show our area has a large degree of racial concentration and wonders why SEWRPC hasn't "done something" about it.

I have an amateur's interest in the topic. In the mid to late 8os, as a young lawyer at Foley & Lardner, I was part of a team of ten lawyers from five firms who represented 24 suburban school districts in a metropolitan desegregation case brought by MPS which, even then, was rapidly running out of white students with which to integrate. The case settled after three months of trial on terms that represented pretty much of a rout for the suburbs. The suburbs essentially agreed to expand the number of seats allocated to the 220 program as long as they had them and the state would pay them to do it.

But revisiting the case is not the point here. The Eastern District of Wisconsin Bar Association did a retrospective on the case last year that made me feel ancient. (At least I was a child when I did this.) Our topic here is residential segregation.

I was assigned by my senior colleague Tom Shriner to work on that aspect of the case in which MPS alleged that residential racial segregation was caused by
government action. (Tom worked on big thoughts at which he was - and still is - incomparable.) My partner in that task was now- Magistrate Judge Bill Callahan who was then at Davis & Kuelthau. We worked with a team of experts at UCLA and the Rand Corporation. While I haven't kept up with all of the social science, some of what we learned then is pertinent to the issue that Jim raises.

Preference is a huge element in racial residential segregation. Two things are at work. First, people tend not to want to make dramatic moves away from their friends and families. Thus, when a group of people who have originally moved to the central city ( fairly typical for lots of ethnic groups) move out, they tend to fan out in the same direction. For the black population in Milwaukee, this has resulted in a movement to the north and west. If you look at census tract maps of racial concentration over time, this looks like an expanding slice of pie starting near the downtown and extending toward the northwest.

This would not, in and of itself, result in the racial concentration that we see today. It hasn't for other ethnic groups that have engaged in similar patterns of movement. But there are things about race that are different. Not only is their less intermarriage (which would expand a couple's web of connections), but there is what demographers called the 80:20/50:50 dilemma. Both whites and blacks report that they are willing to live in an integrated neighborhood, but blacks do not want to live in a white neighborhood and whites don't want to live in a black one.

The problem is that blacks and whites define these terms differently. For whites, a neighborhood that is more than 20% black is black. For blacks, a neighborhood that is less than 50% black is white. It's a tad more complicated than this (and perhaps now made more so by the multi-polar racial environment that we increasingly live in), but the point was that the preferences for integration are not compatible.

Milwaukee is not as unique as it is claimed to be. One of the things that you heard then and hear now is that the Milwaukee metropolitan area has fewer blacks living in the suburbs than other metro areas. That was largely true then and I suspect it still is.

But if you ignored municipal boundaries and just plotted racial concentration on metro area maps, Milwaukee looked a lot like other rust belt cities (Chicago, Cleveland, Detroit) with similar racial histories and economic profiles.

The reason that Milwaukee had fewer blacks in suburbs was the city's huge geographical size, largely a result of former Mayor Ziedler's annexation program in the late 50s bringing a lot of open space to the north and west of the city within its borders. (In fact, city officials marketed that part of town as "a suburb in the city.")

The most significant government contribution to segregation had nothing to do with race. One of the things that we did was a computer simulation that "reassigned" black households to the suburbs based on their ability to afford suburban housing. The simulation showed that economics was a huge factor in explaining the dearth of blacks in the suburbs but it could not explain all of it. Lots of black families could afford to move to the suburbs but did not.

Then we did the simulation again "holding back" municipal employees who were not free to move to the suburbs because of the residency rules of the city government and MPS. It turned out that an extremely large proportion of the black middle class in Milwaukee worked for these entities and that the residency rule was probably the most significant government policy contributing to residential segregation.

There was a lot more to the case than that. We talked about zoning, the placement of public housing, racially restrictive covenants, etc. (I remember conducting a particularly delicious cross examination of the plaintiff's expert on public housing.) The point was - and I think still is - that residential racial segregation is largely the result of factors that government did - and can do - little about.

More on McGee

I am at home nursing the Reddess after her latest orthopedic surgery (tennis elbow advancing to torn tendon this time) so I will not be on Backstory this afternoon. But you Milwaukee folks should listen all the same. In fact, this may be a great time to listen. WMCS 1290 AM - 4:30.

One of the topics that will be discussed is Alderman Michael McGee, Jr and his elusive bail. McGee has been charged in state court with conspiracy to commit substantial battery along with criminal contempt and a series of election law violations. He has been charged in federal court with multiple episodes of extortion. He has been denied bail on the federal charges largely because he has been trying to intimidate or tamper with witnesses from his cell. On the phone. On tape.

Earlier this week, I suggested that the denial of bail may serve what may be his only hope - jury nullification (likely a hung jury) by jurors who are angered by Milwaukee's racial politics and past. I thought that such a sentiment would likely be seeded and watered by certain local opinion leaders.

It didn't take long.

Everytime I criticize Journal Sentinel columnist Eugene Kane, I try to say that he does do some good work. After today's effort, I am losing my religion on the guy.

Although he jumps on board toward the end, much of today's column focuses on how "McGee supporters" are perplexed by the fact that he remains in jail. This is a lazy columnist trick. You want to advance a position without having to do the hard work of defending it or being associated too closely with it. You muse about what "some would say" so that you can say it without having to own it.

In this case, Gene rehearses the concern of "some" that McGee is being held when all he has done is demonstrate "a tendency" to "flout court rules." These folks worry, according to Kane, that "apparently ... long-held beliefs" don't apply because the government has been concerned that other defendants might intimidate witnesses while awaiting trial and yet they were released.

If Kane can establish that there is a pattern and practice of releasing white defendants who were trying to tamper with witnesses from jail, "they" might have a point. If he can find white defendants who did this repeatedly with the almost certain knowledge that they were being taped, but yet were released with an admonition not to do it again and "severe limitations" on their activities (few limitations are more severe than jail), there may be more to talk about.

Reasonable people might disagree on McGee's bail application. (In fact, they have. Pat Gorence, the magistrate judge who initially granted release, and Rudy Randa, the district judge who denied it, are both reasonable people and intelligent jurists.) Denying bail is a big deal.

But so is what McGee has been up to while seeking his release. Nodding sagely while you report that "some" believe that McGee is being treated unfairly for racial reasons is, at best, more of Kane's wearisome schtick and, at worse, irresponsible.

Misunderstanding judicial restraint

Adam Cohen writes an op-ed in the New York Times criticizing the Roberts Court as activist. He says this is so because the court held some actions of state and federal officials to be unconstitutional. Ilya Somin, at the Volokh Conspiracy, writes (accurately, I think) that Cohen's piece is "riddled with flaws and misrepresentations." That's pretty much what you get from Cohen on this stuff.

Somin's point, which even I have made elsewhere, is that, as most people use the term today, "judicial restraint" is not synonymous with upholding the decisions of other branches of government or following precedent. What the restraintist judge declines to do, according to most proponents of "restraint," is to read the law in ways that maximize his or her opportunity to impose his or her own notions of what is good or those that might flow from some extra-textual philosophy of governance.

While this will generally result in a greater amount of deference to democratic decisionmakers and fewer radical departures from settled law, that is not always the case.

Ann Althouse doesn't really take sides but enjoys the fight. She does make the point that judicial restraint is a term that lawyers, judges and scholars embrace, while no one wants to be thought of as activist. But she seems to think that too much has come to be included under the banner of restraint:

Restraint has to do with deferring to the choices of democratic decisionmakers. This can favor either liberal or conservatives causes, and the price is paid by those who have preferences that lost in the political process -- often, but not always, the preferences of the majority. This is a respectable type of jurisprudence, and some judges and scholars do embrace it.This restraint is not the same thing as avoiding activism.

Judges who say they will do what the law requires and only what the law requires are not promising to use restraint.

In one sense, of course, her last sentence is right. A textualist like Scalia who believes that the First Amendment clearly prohibits laws restricting the freedom of speech and that the Fourteenth Amendment clearly prohibits government decisions based on race will not "restrain" himself from striking down laws that violate these commands. If activism is defined as overturning laws and restraint as not doing so, he is not a restraintist.

But although these terms could be used in that way, they mostly are not. Somin puts it well:

Cohen's argument equates conservative criticism of "judicial activism" with criticism of striking down laws enacted by elected officials. That may be Cohen's view, but it is not shared by the vast majority of conservative jurists and legal scholars. For decades, legal conservatives have criticized the Court for failing to strike down what they see as unconstitutional laws, particularly in the areas of federalism, property rights and (more recently) free speech. Most conservative (and even more so libertarian) jurists would agree that failure to strike down unconstitutional laws is no less a departure from the proper judicial role than judicial overruling of laws that the Constitution permits.

What a restraintist judge promises to refrain from is the imposition of her own values in the absence of any authoritative command to do so. Such a judge might, for example, believe that deference to a plan that assigns students to schools based on the color of their skin in the face of a command for racial equality in the 14th is "activist." It constitutionalizes extratextual theories about what does and does not promote racial harmony or what does or does not enhance student performance in the face of a unqualified command to be colorblind.

You can argue that this is an erroneous reading of the 14th, but restraintist judges will want to say that the argument is about what the text means and that the text is not so imprecise to completely evade comprehension. Thus, as Somin points out, the Supreme Court did not hold in the Seattle and Louisville cases that, as Cohen implies, there is a right for white students "not to be made to go to school with black children."

McGee May Be Doing Better Than We Think

There is a joke about an Irish lawyer defending a guy charged with having what those of us on the Christian Right (and pretty much all of us who aren't) would call unnatural relations with a sheep. I can't repeat it here, but the upshot is that the lawyer - who is inarticulate and does not know the law -has this knack for picking a jury.

I think Michael McGee, Jr. needs that guy.

McGee has been denied bail in large part because he has allegedly been trying to tamper with witnesses while he was in custody. Although your first reaction to this is that he must be one of the dumbest pols in the long history of municipal corruption, I'm not sure.

He apparently knew that he wasn't supposed to be doing this and he also seems to have known that his phone calls (except to his lawyer) were hardly private.

I wonder if he hasn't decided that his only hope is jury nullification. Given what is likely to be his plain and widespread guilt, that may be quite rational. He needs to pick the right jury and race bait.

If that's the strategy, his continued incarceration is a plus. He needn't be out to help his lawyers plan his defense if he really doesn't have one. It's far more useful to be seen as a racial martyr - a perception that he can count on some commentators to facilitate.

Of course, I don't think that he tried to get bail denied. Sitting in jail is nobody's idea of a good time. It just may be that he isn't going to care as much about the normal concerns of defendants because he is, after all, a McGee and, in any event, this is a defense that is going to be waged on a different set of issues than we are used to. At least until the end, OJ played the race card subtly. I don't know that finesse is something that Team McGee will be able to afford.

My early prediction is that it won't work - at least not completely. Juries are only human and it is possible for lawyers to use their prejudices and to play upon concerns that may not really be relevant to the issues at bar.

But few jurors are willing to completely ignore the judge's instructions. You have to give them a hook upon which to hang whatever sentiments you are playing to. In this case, your first thought is entrapment but it seems like they may have him so many ways that the story line will just get too complicated. The challenge for the prosecutors is avoid turning that into a plus for the defense and to resist the temptation to overtry the case.

More on Gore and the Crusade

A few days ago I posted on the monumental silliness of Al Gore. The world is ending, he tells us. We must adopt policies that are certain to leave lots of people in poverty and that will impose significant costs on average people around the globe. It's tough medicine, he acknowledges, but we are talking about Armageddon here. It's an inconvenient truth.

But not inconvenient for him. He's rich and can buy carbon offsets. So, happily, he can keep the multiple mansions and private jets. He can continue to live a lifestyle of which his policies will deny the rest of us even a shadow.

Actually its even better than that because his company sells the offsets - so he's got vig on everyone's else's indulgences. Lucky thing for Al that he didn't become president.

Last night on the cable news, a series of environmental activists - a lawyer for the NRDC, a jamoke who runs some thing called the Global Warming Alliance and the insufferable Robert Kennedy, Jr. (a strong wind sure blew that acorn into the next forest) - tried to respond to this. They said that all of this business about how silly we are misses the point. So what if we are all hypocrites who don't have the courage of our convictions? We could still be right.

And that is true. But, for me, the global warming movement is sort of a gigantic bait and switch. Lt. Governor Barbara Lawton, in what must be a catch phrase mandated by Message Central, tells us that the "science is in." It is apparently so in that there is no need even to discuss what it says. Before he hopped on this Lear Jet, little RFK managed to suggest that disagreement with his version of that science is no less than treason.

Isn't announcing that the science is "in" a tad anti-scientific? We no longer debate the temperature at which water freezes, but this global warming stuff is a bit more complex. The science is not "in" as long as scientists continue to raise valid questions about it. But let's put that aside because, while scientific truth develops in the long run, we live in the short run and must make some judgments now.

The thing is that what the science "says" is far more ambiguous and contingent than Live Earth scholars such as Rosario Dawson, Madonna and even Roger Waters seem able to face. This is why I think one of the best things that I have read on global warming recently is a piece by Jim Manzi in the June 25, 2007 issue of National Review.

Everytime I sit down and read something that actually contains facts as opposed to assertions that the debate is over, there seems some to be some substantial room for doubt about human agency in global warming. But Manzi does not think so. He believes that it is very likely that human activities have warmed the planet. On that, he agrees, that the science is "in."

But, it turns out, the arriving science leaves the important questions unanswered:

The most important scientific debate is really about these feedback effects. Feedbacks are not merely details to be cleaned up in a picture that is fairly clear. The base impact of a doubling of CO2 in the atmosphere with no feedback effects is on the order of 1°C, while the United Nations Intergovernmental Panel on Climate Change (IPCC) consensus estimate of the impact of doubling CO2 is about 3°C. The feedback effects dominate the prediction. As we’ve seen, however, feedback effects run in both directions. Feedback could easily dampen the net impact so it ends up being less than 1°C. In fact, the raw relationship between temperature increases and CO2 over the past century supports that idea.

The science that Barbara Lawton and RFK, Jr. assure us is uncontroverted and dire doesn't tell us much. "Climate models generate useful projections for us to consider," Manzi writes,"but the reality is that nobody knows with meaningful precision how much warming we will experience under any emissions scenario. Global warming is a real risk, but its impact over the next century could plausibly range from negligible to severe."

What scientists can agree on bears little resemblance to the world according to Al. Manzi again:

Fortunately, no mainstream science makes any such prediction of impending disaster; worry about them amounts to no more than informed speculation. The current IPCC report is explicit about this when it says: “Abrupt climate changes, such as the collapse of the West Antarctic Ice Sheet, rapid loss of the Greenland Ice Sheet, or large-scale changes in ocean circulation systems, are not considered likely to occur in the 21st century, based on currently available model results.” That said, the same humility that leads us to a sensible skepticism about the ability of climate models to predict the temperature centuries into the future must also logically lead us to accept that some of these more extreme negative scenarios are not impossible. It is not a “scientific fact” that any of these things will occur; it is not even a quantifiable probability; but there is some currently unquantifiable but (crudely speaking) very low chance that one of these will happen.

The current IPCC consensus of a temperature increase of 2.8 degrees Celsius by 2100 would, according to scholars at Yale, have a "zero to very mild" economic impact. The IPCC itself says that even a 4 degree increase would result in only a 1 to 5 percent reduction in global GDP. Not good, but not Doomsday either.

Manzi concedes that, just as we can't be sure that there will be no significant impact (perhaps even no further temperature increase), we can't be sure that the more dire predictions won't come true either. There has long been a school in the environmental movement that claims this is all the support we need for drastic changes in the way we live. This view is often called the Precautionary Principle.

Ironically, when this idea is applied to, say, the war on terror, good liberals who are faithful environmentalists see its flaws. Lots of them ran out to buy Ron Suskind's book criticizing what he saw as the Bush administration's tendency to take extreme actions in response to security risks of low probability. Perhaps not wanting to offend his green readership, Suskind called this, not the Precautionary Principle, but the One Percent Solution.

Manzi reminds us that this is no way to run things:

In the face of massive uncertainty on multiple fronts, the best strategy is almost always to hedge your bets and keep your options open. Wealth and technology are raw materials for options. The loss of economic and technological development that would be required to eliminate literally all theorized climate-change risk would cripple our ability to deal with virtually every other foreseeable and unforeseeable risk, not to mention our ability to lead productive and interesting lives in the meantime. The Precautionary Principle is a bottomless well of anxieties, but our resources are finite. It’s possible to buy so much flood insurance that you can’t afford fire insurance.

In responding to global warming then, there are reasons to reject the type of top-down command solutions (guess who gets to be in command?) that tell us (or, as appears more accurate, you) to take the medicine. We need to retain some perspective, to consider things like adaption (the world's climate has seen greater swings than this)and to be wary of solutions that would impoverish. There is a reason that rich countries are cleaner than developing ones. The latter can afford clean technology and infrastructure and, quite frankly, the luxury of worrying about the next century as opposed to the next meal.

This might actually leave some room for many of the things that the global warmiorers advocate. But it almost certainly would not include the moral equivalence of war approach favored by Gore.

It's WDC's delusion and they're sticking with it

In protesting the Supreme Court's continued commitment to the First Amendment, Mike McCabe, executive director of the Wisconsin Democracy Campaign, trotted out a "quote" by Abraham Lincoln on the dangers of corporations. The attribution of the quote to Lincoln has been widely discredited.

It was odd that WDC fell for this because only weeks before Al Gore had taken some heat for including it in his autobiography Assault on Reason. (Ok, I made up the autobiography part but you've got to love it when the title of a book so accurately captures its contents.)

(And, yes, I know that Gore's book has endnotes citing to the discredited sources of the quote.)

Charlie Sykes called WDC on its error and McCabe is now hot and bothered. In a post called "Catering to Delusion" he defends himself by citing the various (old) sources (Gore used the same ones) that have been called into question. But we know that the phony quote made it into print. That's how it came to circulate. These sources have been discredited not, as McCabe seems to think, by the Snopes website but by Lincoln scholars such as Thomas Schwartz (look for the column captioned "Lincoln Never Said That!")and Merrill Petersen. (Schwartz, incidentally, has also gone after bogus Lincoln quotes favored by conservatives.)

Rather than defend its legitimacy (or concede his mistake), McCabe trots out another Lincoln quote that he thinks means the same thing.

Not quite. The discredited quote has to do with a supposed concern that "corporations" would concentrate wealth and destroy the Republic. (If Lincoln had said that, it would not have been one of his more prescient moments - democracy having survived so far.)

The second quote has to do with the folly of bailing out "greedy capitalists" who "generally" do bad things. I can't say whether the second quote is accurate. The use of the term capitalist in the Illinois legislature in 1837 sounds a tad anachronistic, but I suppose its possible.

Even if the quote is accurate, the idea that corporations or capitalists can can be "bad" is not useful here. We generally do not, for obvious reasons, limit free speech to the universally virtuous.

In any event, what difference does this battle for the soul of Abraham make anyway? I understand that "corporation" and "capitalist" are epithets to some people so that finding that Lincoln or some other hallowed historical figure said something critical of them implies a whole series of views on issues that the figure in question could not possibly have contemplated.

But none of that has much to do with FEC v. Wisconsin Right to Life. Although the majority reaffirmed the idea that even business corporations have first amendment rights, the case involved government suppression of speech by a grassroots advocacy organization that did not wish to identify its (likely noncorporate) donors or raise its money in the teaspoonfuls mandated by McCain-Feingold.

Maybe Lincoln would have done just that. If so, he'd have been just as wrong as when he suspended habeas (a point on which I do not expect McCabe will invoke his moral authority) or arrested the "Peace Democrats" or ""Copperheads" who opposed his war and accused him of lying about its purpose.

But let's get back to the quote. How could WDC have made this mistake? One possibility is that McCabe and company don't get out much. Here's his jeremiad against talk radio listeners:

Sykes has something in common with much of his audience. Those who hang on his every word want to be lied to. They don't want to believe in evolution. They want to believe the earth is really 6,000 years old, despite the preponderance of scientific evidence showing they are a few billion years off.

I am gobsmacked by the fact that a presumably sophisticated and intelligent public figure actually thinks that talk radio's audience is made up of bible thumping young earth creationists. If you really think that folks you don't agree with must be a bunch of mouth-breathing morons, I suppose you never will encounter any ideas but your own and will continue to commit howler after howler in your isolation. If you think that you and your friends are oh-so-much-smarter, why take anyone else seriously? Why take the time to make sure that you know what you're talking about?

The Greenhouse effect, part 1.

In yesterday's New York Times, Linda Greenhouse, that paper's legal op-ed columnist, was actually in the op-ed pages with a story about liberal lawprofs' dream to take back the Supreme Court.

It is close but yet so far. What is often overlooked in current commentary on the Court is that, while it is one vote away from being consistently and deeply conservative, it may also be one vote away from becoming perhaps the most liberal Court in our nation's history. The "left wing" of the Court - Breyer, Souter, Ginsburg and Stevens - has become an extremely cohesive - and relatively extreme - liberal voting bloc. This group is rigidly separationist in matters of church and state, believes that the abortion license invented in Roe v. Wade must be absolutely unrestricted, would not apply strict scrutiny (or anything worthy of the term) to supposedly "benign" racial classifications, etc. Were they to become the dominant wing of the Court, the shift in direction would be every bit as extraordinary - I would argue more so - than the supposed "conservative victory" of the Roberts court.

One vote away and the Democrats with a great chance to take the White House. Why so glum?

Part of the problem is demographic. The liberal bloc is older than the conservative bloc. It seems inconceivable that Stevens and Ginsburg will still be on the court following the next presidential term. Since you'd be hard pressed to find a qualified candidate for the Court more liberal than these two - much less get him or her confirmed - much of what the a Democratic president would do would amount to maintenance.


But if Anthony Kennedy retires? Given his self perceived and much enjoyed role as America's Conscience, that will likely happen only by the hand of God. But if he does hang it up with the Dems in power, there could be an opportunity to create a positively Scandanavian majority.

The problem will, of course, be confirmation. Just as E.J. Dionne says that the Dems should do everything they can to prevent another John Roberts or Sam Alito, there is no chance that the GOP will roll over for a doctrinaire lefty like they did when Clinton appointed Ginsburg. She was eminently qualified for the court but every centimeter as far to the left as Robert Bork was to the right. In response to Bork's nomination, the Dems radically changed the Senate's role in confirmation, adding a verb to the English language (to "bork"). The GOP reverted to the more traditional stance when Ginsburg was nominated. That will never happen again.

So the liberal lawprofs recognize that they must build a public taste for their particular form of justice. How do they do that? This is where the Greenhouse piece gets interesting.

More later.

Not like they used to be ...

I do not comment much on the Milwaukee Journal Sentinel's community columnists, if only out of a sense of solidarity. I was in the first group of writers. Patrick McIlheran seems to think it has brought me fame and fortune (maybe he's approved a check request I don't know about) and it was a great deal of fun.

But it's not easy (at least for most people) to be opinionated on demand and too much grief may be beyond the job's pay grade. I also think (but Ricardo Pimentel disagrees) that recycling writers off the street brings dwindling returns. There are going to be fewer and fewer regular Johannas who can do this type of thing.

One memorable column from the most recent batch was written by an MPS teacher named Steve Paske (who, in fairness, is not bad). While he apparently thinks that piece touched a nerve by exposing the dead weight (or at least it should be) of the Un-Fit, what he actually did was to display a remarkable level of smug.

He runs, you know. He did it in college. He is healthier than the rest of us. From running. Fat people get sick, but his purported absence of health care costs is presumably his special gift to us all.

Because he runs. Did you know that? Fast. And far.

Oh, except it turns out that this form of self abuse (and that's what running 30 miles per week after it starts to hurt you is)has resulted in physical breakdown after all. He needs custom orthotics so that he can keep it up and is pleased that the taxpayers are going to pick it up for him.

Good for you, Steve. Knock yourself out. Literally.

But the burden of today's column is to argue that this form of self abuse ought to be subsidized for every one. Because it is physically virtuous. He notes that insurers will pay for orthotics for people who suffer from Type-2 diabetes and need them because they are fat. (Steve is fit, have you heard?)

Maybe, Steve seems to think, we ought to let them hobble about. After all, they don't run. Like Steve.

Let's send someone he calls Joe Fat Guy (one's cholesterol efficient blood runs cold at the name) a message. If Jabba in the Recliner would have only known that we'd leave him crippled, maybe he would have laid off the nachos and guac. And run. Like ... well, you know who.

I certainly don't begrudge Steve the chance to continue to do something that he enjoys and which is obviously a huge part of his self identity. (He's fast.) But I find it easier to smile at someone else's enthusiasms if they don't elevate them to the level of sacrament and manage to show just a tad less disdain for those who don't share them.

Here's the problem, Steve. You're getting old. You can't do what you used to and, unfortunately, it will only get worse. You may find it easier to take with a dose of humility.

I've got to go. The treadmill is waiting and I don't have MPS insurance.

Is this the world's silliest man?

I managed to almost completely avoid the utterly ridiculous event called Live Earth last night. I did catch a glimpse of it while channel surfing and it looks like it had a carbon footprint about the size of Mexico City.

Were I someone who believed that global warming constituted a epochal crisis, events like this and spokesman like Al Gore would drive me to paroxysm.

According to Gore, global warming is an existential crisis. Our very existence is threatened - and soon.

Let's put aside the fact that Gore's dire view of global warming has little scientific support. The odd thing is that, as sure as he is that the sky is falling, he can't be bothered to change his own sybaritic life style, relying on this carbon offset scam. If these truly made one's life carbon neutral, then why should anyone have to reduce carbon emissions? Let's just make sure that we have enough private and public investments in clean technology or plant enough trees to let everyone continue to rock and roll. (Wait, that's too much like the conservative approach to the problem.)

We are staring at the end of the world as we know it, but Al and Tipper must continue to live like the Saudi royal family.

More later.

So you thought you might like to go to the show ...

I got a number of reactions to my post on the Roger Waters concert. Some wondered what I expected. My point was not that I did not know Waters is an unreflective lefty or that I did not expect some politics. I'm not sure that I was even surprised that the politics on display was as infantile as it was. Rock stars tend to make their best music when they and their audience are wrapped up in sentiments and wrestling with issues that they will soon grow out of or, more fairly, come to view in very different ways. Some people in the genre manage to explore the same and different themes from a more mature perspective, but, if you haven't done that, reprising the old hits can be something of an exercise in regression. If you haven't (or don't want to admit that you have) grown up since then, you run the risk of seeming a bit silly.

My point was that regression doesn't edify and that Pink Floyd has a lot of great old music than can be enjoyed on some level other than that of a 17 year old boy smoking and drinking in his room and wondering why adults are so dumb anyway. (If you were there, you know what I'm talking about; that was very clever)

(Before we get all indignant, I am not suggesting that opposing the war in Iraq or being critical of George Bush is immature. Thoughtful and mature people obviously can do both.)

More interesting was the idea - hinted at by one commenter - that music is necessarily a rough way of expressing ideas. It evokes emotions and perspectives, not talking points. But that was sort of my point. You can sing about the absurdity of war (it is absurd, if sometimes tragically unavoidable) or of feelings of alienation. The latter may be most salient at 17, but they can occur at least until some age that I haven't reached yet. But when you get too didactic about interpreting these feelings, it is not unlike an overly literal reading of the bible. You stretch the medium beyond what it was made for.

Most interesting was this. I appreciate poking some fun(and don't mind doing it myself), but let's take it at face value for a moment. Since when did the ideas that - no George Bush is not Joe Stalin and religion is not a force for evil - come to constitute right wing ideology? If some country & western singer that I would never go see tried to equate Nancy Pelosi with Osama bin Laden, I don't think you'd need to be a left winger to see that's crazy.

On the other hand, I still have this stuff on my iPod so, you know, have a cigar, Roger. You're still riding the gravy train.