Monday, June 30, 2008

I put papaya there

I know this isn't new and was just on Althouse, but I am posting it here in case some readers of Shark and Shepherd haven't seen it because that would be a shame.

This is apparently from a 2000 movie called "Pennin Manathai Thattu" and the song is called "Kalluri Vaanil." The words translated as "benny lava" are actually "-dha nilaavo." I have no idea what any of it means.

Illusory criticism

Following up on my post regarding WMC, Tom Foley says that I have called Epic's statement that it does not want to do business with WMC a "threat" and suggested that J.P. Cullen submitted to it without evidence and, in fact, in the face of evidence to the contrary.

The evidence to the contrary is Paul Soglin's statement that J.P. Cullen withdrew because of dissatisfaction with WMC. But, of course, Paul Soglin isn't J.P. Cullen and "evidence" from him. as I am sure Tom knows, is either incompetent or hearsay.

Here's what we actually know. Cullen does lots of business with Epic and, contra Paul Soglin, their withdrawal from WMC was not accompanied by any criticism of the group. Instead, Dave Cullen said he wanted to manage his business "to the benefit of our valued clients" and said, again contra Soglin, that "I continue to support the ideals of the organization to promote a healthy business climate for Wisconsin, and it is my intent to continue to advocate for sensible public policies that will benefit both the businesses and people in our great state."

Tom says that I "imagined" the fact of threat and submission, quoting me as if this is what I wrote. This is strange. When I used the phrase, "I can imagine" it was followed by the words "under which Epic's threat - and J.P. Cullen's submission to that threat - may provide support for a constitutional challenge." What I was imagining was legislation that would attempt to put additional disclosure requirements on groups like WMC for which a constitutional challenge would be aided by the Epic/Cullen affair. My point was that the desire of Soglin and others for additional regulation may ultimately be impeded by their encouragement of this kind of boycott.

The only other thing I imagined was a boycott of businesses that supported Planned Parenthood - an organization who some people are every bit as upset with as Soglin and Faulkner are with WMC. My point was that, although one has the right to do this, it is susceptible to fairly substantial escalation.

And that's why it tends to stress the social fabric.

Epic takes on the right of association

Epic Systems, a software company in Madison, has announced that it will "try" not to do business with vendors who "support WMC with their current management." In response, a construction firm with a huge contract with Epic withdrew from WMC. (In an odd post, Paul Soglin argues that its "important" not to make the obvious connection.)

Tom Foley argues that this makes Epic CEO Judith Faulkner, a "corporate heroine." Maybe so, although it remains to be seen how hard Epic will "try" to avoid doing business with the politically distasteful. It would, in any event, be far more "heroic" to refuse to accept the tainted money of any current or potential customer who supports WMC.

Epic has the right to do this, although I believe that the threat to the judiciary is more multi-faceted than she does. Still, I think that political boycotts tend to stress the social fabric and are best avoided. To offer one example, assume that I think Planned Parenthood engages in a morally reprehensible business. I further believe that it ran an ad attacking certain legislators (including my representative, Jim Ott)as blatantly dishonest as anything I have seen. Maybe I wish no one would have anything to do with them. But should I find out who donates to the organization and avoid doing business with them ? Do we really want that to become a common practice?

And, if we don't, perhaps we need to call for a boycott of Epic Systems and any other organization that attempts to punish others for exercising their rights of free speech and association. Call that strategy Esenberg's Paradox.

But I wanted to blog about is the impact of the boycott on Soglin's other WMC-related crusade - the idea that advocacy organizations ought to be compelled to disclose their members or donors.

Here's the thing. There is a line of cases, beginning with NAACP v. Patterson, a case in which an Alabama court had, at the request of the court, ordered the NAACP to produce its membership list. The Court held that, under the circumstances, production of the list would subject members to reprisals and, therefore, violate their right of association. Later cases made clear that a claim of infringement of associational rights must be based upon a particularized showing of reprisal and one extended the principle to prohibit application of a campaign disclosure law to a minor political party which had historically been the subject of reprisals.

Most cases applying this concept involve some type of feared or actual harassment, but I am aware of at least one - involving a tort reform organization - that applied the Patterson line in the context of economic reprisals. What is clear is that an organization that wants to claim that it will be subject to reprisals has to point to some real threat and fear that will deter its members from further association. Recently, for example, the Wisconsin Supreme Court held that an advocacy organization had failed to make the requisite showing.

The constitutionality of any legislation requiring greater disclosure of who contributes to independent advocacy or belongs to advocacy organizations is not something that I can address here and would depend on just what is proposed. But I can imagine circumstances under which Epic's threat - and J.P. Cullen's submission to that threat - may provide support for a constitutional challenge.

Sunday, June 29, 2008

Old Anglophile Rock

I am a big fan of the British Invasion bands of the sixties. Status Quo was a late entrant, but I've always thought that Quo's "Pictures of Matchstick Men" is somehow evocative of the time and the genre.

The Troggs are best known for "Wild Thing" and are sometimes cited as a precursor of punk rock. You don't get that from "Love Is All Around" - apparently written in the afterglow of a roast dinner. The video seems to be getting at something else.

There was a certain innocence in these bands. Gerry and the Pacemakers sing "Ferry Across the Mersey" in this video - taken, I think, from the movie of the same name. I like the part with the dog.

And, for something a little harder, Small Faces' "Tin Soldier."

The politics of fear on health care

State Sen. Kathleen Vinehout just doesn't understand health insurance. She first entered the fray by complaining about the fact that, after she left a job with insurance to go into politics, her son required expensive medical care that was uncovered. In what may be the only story that Shark and Shepherd will ever break, I disclosed that, during the period that she went uninsured and her son came to require care, Vinehout had contributed sizable sums to her own campaign. Her tragedy amounted to a complaint that someone else would not provide her with something that she would not pay for herself.

In this piece in the Tomah Journal, she still doesn't quite get it. She is upset with insurance companies who refuse to cover preexisting conditions. They ought to be required to do so. She laments the fact that "[n]ot only can an insurance company deny coverage to a person suffering from illness, but there are no limits on how long someone can be denied coverage of the very problems for which they most need health insurance."

Here's the obvious problem. Insurance is a form of polling risk. We pay premiums when we don't need it so it will be there when we do. We choose to pay a smaller amount now to protect against the possibility of a larger cost later. The result is that those who don't incur the insured against risk subsidize those who do. Because no one knows ex ante which class they will fall into, it makes sense for all to participate.

This does not work until you wait to buy insurance. At that point, you are not pooling your risk, you are simply trying to shift your loss to someone else. A person who has cancer or, like the Reddess has a raft of athletic injuries requiring frequent orthopedic care, can't really buy anything that can be called insurance. If there is a high probability that a potential insured will incur, say, $ 30,000 in annual costs, any premium that is less than $ 30,000 is not enough. The individual will simply be buying the right to present her bills to someone else and not paying enough to cover the cost.

If any one insurance company decided to cover persons with preexisting conditions, then it would quickly assemble a book of business comprised largely of sick people. It must either dramatically increase premiums or go out of business. If the state requires insurers to take on persons with preexisting conditions, people have an incentive to wait to buy insurance and the same things happens.

If you don't quite follow, imagine what would happen if I was able to wait until I had an accident to buy auto insurance.

But, Sen. Vinehout says, insurers deny coverage to persons with "old" preexisting conditions. They are "too" conservative. Maybe they are. But it is hard to believe that insurers, who have every reason to accept profitable business and who are in competition with others who will penalize them for making the wrong decision, need to be told by the government when they are being too restrictive.

She complains about the following "hideous" practice of insurance companies:

You paid all your premiums and are up-to-date on all requirements of the policy. The insurance company receives your claims for the new health problem and begins digging back into your medical history -- looking back months or even years. The company then alleges you failed to disclose or should have known about some pre-existing condition for which you are now receiving care. The company denies the payment of your claim based on these allegations.

Well, if you lied about a preexisting condition then you haven't complied with the "requirements of your policy." If you didn't lie, if it turns out that you did not have the preexisting condition or were unaware, say, that treatment for x implies condition y, the insurance company isn't going to win this one. Although the matter is complicated with employer-provided group health plans (with respect to which most preexisting conditions can't be excluded), a company that denies a claim in bad faith runs the risk of liability exceeding what it would otherwise be required to pay under the policy.

As I have blogged before, there are complications with application of the insurance model to health care. First, most employer-provided plans are not really insurance against the risk of expensive that will be incurred by some and not others. They cover routine costs which we know everyone will incur and health care costs, unlike auto accidents, are far more certain. They tend to come as one gets older. Health insurance is not only a subsidy of the sick by the healthy but a subsidy of the old by the young. This gives it the element of a forced savings plan in which you pay into a fund that you will probably have to draw on one day. But like other forms of insurance, if the healthy and young can opt out, it won't work.

Second, while we are willing to let someone be stuck with the cost of a wrecked car if they failed to insure it, we are not willing to let them die if they failed - or could not afford - to insure their health. That is why, in the United States, persons who are uninsured are not uncared for (albeit, in some cases, not as well as those who are insured.)

This creates difficult policy questions. You want to find a way to create insurable pools while still maintaining a market for health care because that is the best way to control costs and spur innovation and attention to consumer demands. Everybody agrees that we aren't quite there, but the cause is not evil, mean and greedy insurance companies.

This suggests one final point. Isn't what Vinehout in engaged in here the "politics of fear?" Isn't it demonization of the "other?" Isn't she evading difficult problems by seeking a scapegoat?

Thursday, June 26, 2008

Davis v. FEC: The day's most important decision

Heller is a huge case, but, in terms of affecting policies that might actually be enacted, it may not be as important as today's decision in Davis v. Federal Election Commission.
Simply put, Davis involved a challenge to the "Millionaire's Amendment" to the McCain-Feingold Act (officially known as the Bipartisan Campaign Finance Reform Act of 2003 or "BCRA"). The amendment is complicated but, for our purposes, it suffices to say that it raises the campaign contribution limits applicable to a candidate whose opponent has self-financed in excess of a particular amount. For such candidates, it removes the limit on coordinated party expenditures. The idea is to "level the playing field" when someone faces a wealthy opponent. It is important to note that, when the Millionaire's Amendment becomes operative, the "self-financing" candidate (i.e., the one who has spent more than the specified amount of his own money) is still subject to the normal limits on contributions and coordinated party expenditures.

The Court found that this places an unconstitutional burden on the self-financing candidate's exercise of her First Amendment right to spend her own money to coomunicate on behalf of her campaign. For a variety of reasons that I won't get into here, I think this was the right decision.

But what I find intriguing is the implication of the decision for public financing schemes when considered in conjunction with last term's decision in Wisconsin Right to Life v. FEC. That case struck down limitations on the use of corporate and union treasury funds to communicate on matters of public interest during a period immediately prior to an election if the communication mentions a candidate running for federal office in that election and was directed toward persons who would vote in the election in which that person was running.

This means that it may well nigh be impossible to restrict independent expenditures during an election. Again, for reasons that I have given before, I think that is the right outcome.

To combat this, public financing schemes will often provide for additional public funding to be directed to the candidate against whom these expenditures are made. For example, the bill currently pending in the Wisconsin state legislature for the public funding of judicial campaigns would do exactly that.

But if asymmetrical campaign contribution limits (i.e., one side gets to raise more money than the other) burden a candidate's constitutional right to spend his own money, then asymmetrical public financing (i.e., one side gets more public money than the other) burden the constitutional right of persons to communicate on issues of public importance during an election? Wisconsin Right to Life, for example, couldn't urge Russ Feingold to vote on judicial nominees without causing Feingold to be able to raise more money.

The answer isn't foreordained. I suppose one could argue that it doesn't really burden WRTL's speech rights for Feingold to get more money since it is ostensibly not advocating Feingold's election or defeat. You may regard this as a "phony" distinction (as campaign finance reform advocates do), but maybe maintaining the fiction would preserve these schemes. You might also argue that there are corruption concerns present here that aren't present when a candidate spends her own money, but, if those concerns don't support limiting the expenditures, its not clear why they should support burdening it in this way.

But consider a world in which this distinction carried the day. Congress would not be permitted to level the playing field when someone faces a wealthy opponent, but would be able to do so when interest groups seek to speak to issues of interest during an election in a way that implicates a particular candidate, i.e., in a way that is likely to accomplish something.

Davis may signal the death of public financing. But even if it doesn't, it certainly suggests that the First Amendment and campaign finance restrictions are at war with each other in a way that suggests that advocates of the latter ought to surrender or radically rethink their approach.

Blogging Heller

Over at SCOTUS Blog, we learn that Heller will be the last decision announced this morning. I suppose that means that Scalia or Kennedy wrote the majority opinion. I can't imagine that it could be Stevens.

Update: It's Scalia suggesting a broad ruling.

Update: And it is. I am skimming through it but am immediately struck be a few things. As has been reported elsewhere, the Court held that the operative clause of the Second Amendment ("the right of the people to keep and bear Arms, shall not be infringed") creates an individual right to bear arms that is not limited by the preceding prefatory clause ("A well regulated Militia, being necessary to the security of a free State ..."). This has too implications. First, the right exists unconnected to service in the militia. The right exists to keep firearms for traditional use, such as self defense in the home.

This also means, Scalia appears to say, that the right is not limited to those firearms that would be useful to service in a militia, i.e., the right applies to handguns. This is so, the majority seems to say, because, although the prefatory clause does not limit the operative clause, it informs its interpretation and "[t]he traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense."

But its not an unlimited right. Indeed, interpretation of the amendment to firearms in common use would justify prohibition of those that are not (the Court mentions short barreled shotguns. Thus, in a latter passage, the Court makes clear that the amendment does not bar the prohibition of "dangerous and unusual weapons.

Other limitations may be permitted as well. Here's a passage that will be seized upon by gun control advocates:

Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose. See, e.g., Sheldon, in 5 Blume
346; Rawle 123; Pomeroy 152–153; Abbott 333. For example,
the majority of the 19th-century courts to consider the
question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or
state analogues. See, e.g., State v. Chandler, 5 La. Ann.,
at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2
Kent *340, n. 2; The American Students’ Blackstone 84, n.
11 (G. Chase ed. 1884). Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of

My initial reaction is that the opinion may not restrict most regulation that is politically possible in most places. There will be no handgun bans. There may be gun regulation.

But this is really preliminary. More later.

Update: David Schenck writing at SCOTUSblog, notes that more Second Amendment litigation is likely. Is the Second incorporated against the states? What standard governs firearm regulations and what regulations are permissible. Strictly speaking, Heller only establishes that a federal ban of the possession of a handgun in the home is unconstitutional. As he points out, four justices would not have even found that. Whether Heller has legs, i.e., whether it establishes a robust right to bear arms, will turn on the future composition of the Court. While Obama says that he agrees with the Court's decision, it seems unlikely that he would appoint Justices who would decide it the same way.

Tuesday, June 24, 2008

An object lesson in activism

I have been down in Chicago, attending a conference on empirical legal research at Northwestern University Law School. For me, it's a review of statistical concepts that I have understood conceptually, but, on which, have been really weak on the math. I'm learning how to use software that does the math for me, although I'll still need to work with a statistician. More to come.

While I was gone the Supreme Court decided Louisiana v. Kennedy, holding that the death penalty is unconstitutional for the rape of a child. As I have blogged before, I categorically oppose the death penalty on what are, essentially, religious grounds. So, were I a legislator, I would not vote for a law providing for the death penalty for child rapists.

But finding such a law to be unconstitutional is another matter. Death for the rape of a child would almost certainly not have been regarded as cruel and unusual at the time of its adoption, but Justice Kennedy argues, we must discern evolving standards of decency in applying it today.

Fair enough, but what does that mean? One possibility would be to limit application of the 8th amendment to punishments that are clearly contrary to some observable national consensus. Imagine a renegade red state that imposes death for sodomy or a blue state that imposes it for exceeding your allocated carbon usage. On this view, the Eighth Amendment wouldn't prohibit much, but maybe that's implicit in its nature - it prohibits only things that are cruel and unusual. By definition, those punishments ought to be rare.

Another view - and this seems to be the one adopted by the majority - is to say that the Eighth permits the Court to prohibit punishments that strike it as overly punitive.

The majority does argue that death for child rapists violates a national consensus, relying upon the facts that only five states have enacted such a penalty and that the defendant here is the first such offender that anyone has tried to execute. But, it seems to me, there is a difference between noting that a particular policy choice is made by few states and, as would seem to be the proper question here, concluding that this choice would shock the conscience of those who have not adopted it. As Jim Lindgren points out, there may well be majority public support for death for child rapists. That both Obama and McCain found it necessary to denounce the decision further suggests this to be the case.

Ultimately, the majority's position is that it doesn't matter anyway. The Court must, Justice Kennedy makes clear, bring its own judgment to bear.

And this brings us back to the whole business of "activist v. restraint" and the proper role of the the judiciary. How does the Court go about exercising this judgment? Where does it find the authority for whatever principle that judgment will rely upon? We know its not the original understanding of what the eighth amendment prohibits. It apparently need not be an actual national consensus that a particular penalty is cruel and unusual. On this view, the Eighth Amendment is a warrant for the Court to substitute its own relatively unfettered judgement for that of the legislature.

People like me regard this as problematic. While I support the idea of judicial review (not everybody does) and the Constitution certainly enacts restrictions on legislative majorities, there should be some discernable standard - found outside a judge's own sense of how the world should be - that governs the application of these restrictions. To say that a cruel and unusual punishment can be anything that a majority of the Court thinks goes too far is not really rooted in any external standard.

Saturday, June 21, 2008

The heck it's nap time! I've got rights!

I raised one child and have a fair amount of contact with another great little guy who is four years old. It has generally been my experience that one doesn't have to instill a sense of entitlement in the little buggers. They come with it. Apparently UNICEF feels differently.

H/T: K-Lo

Thursday, June 19, 2008

Obama's experience

In today's Journal Sentinel, Craig Mastantuono, echoing (perhaps reprising) a comment posted here, takes me to task for suggesting that Obama might be the least experienced person ever nominated for President by a major political party. The opbservation wasn't the point of the piece, but offered as one the reasons that people naturally look to Obama's associates for information about his philosophy and judgment.

Mastantuono cites Wendell Wilkie (who never held public office) and George W. Bush. I can't agree. Bush ran businesses and, weak or not, was governor of one of the largest states in the country for six (not, as Mastantuono asserts, four)years. Wilkie was President of the largest electrical utility in the nation. (Eisenhower had never held public office either but had commanded Allied forces in Europe during WWII.) Obama has never ran anything (except, I suppose,the Harvard Law Review when he was a 3L).

He also cites William Jennings Bryan who, when he was first nominated, had served in Congress for exactly as long as Obama. I'll give him that. Bryan's lack of experience is comparable to Obama. His association with free silver may have made him more of a lnown commodity but I have not carefully studied the presidential election of 1896. In fact, there may be further parallels in that Bryan was an eloquent populist who tended to see things as he wanted them to be rather than as they are. Of course, he never won and its a good thing that he didn't.

One might also mention Lincoln who served four terms in the Illinois legislature and one in Congress. But Lincoln was instrumental in forming the Republican Party and had become well known nationally as an anti-slavery figure.

So I'll stand by what I wrote, although Bryan may have been as inexperienced and little known as Obama.

Wednesday, June 18, 2008

More on SSM and religious liberty

Writing at the Volokh Conspiracy, Dale Carpenter, a thoughtful and fair minded proponent of same sex marriage, comments on the "religious liberty" objection to SSM. That objection, most prominently pushed by Maggie Gallagher, was restated in a column on NRO earlier this week.

Carpenter, a lawprof at Minnesota, argues that many of the recent examples cited by SSM opponents as examples of SSM impinging upon religious liberty, involved the application of general antidiscrimination laws and some occurred in states where SSM marriage is not recognized. In Carpenter's view, the pressure on religious liberty (to which he is sympathetic) stems from the general movement toward nondiscrimination on the basis of sexual orientation. There is a great deal of merit in his argument.

Dan Markel, writing at Prawfsblawg (where yours truly will take a guest turn in December)picks up on Professor Carpenter's post and argues for a fairly broad (but not unlimited)principle of nondiscrimination anchored in Professor Markel's view that "in almost all cases, sexual orientation is about as morally irrelevant as the race of a person."

I think that Professor Markel's principle illustrates the weakness in Professor Carpenter's suggestion that SSM does not extend the principle of nondiscrimination in significant ways. Let's use the the case of Catholic Charities in Boston as an example. It was essentially run out of the adoption business because it would not place children with same sex couples. Professor Markel thinks that this was the right result while Professor Carpenter would have granted them an exemption.

But SSM marriage does affect the way in which we think about the application of the nondiscrimination principle to Catholic Charities. I may believe (in fact I do) that gay and lesbian persons ought not to be discriminated against in a variety of contexts.

But I may still view marriage as an institution that requires man and a woman because it is a cultural and legal response to the particulars of male-female sexual attraction, the fact that it makes children and the belief that, all things equal, it is preferable for children to be raised by their biological parents living together. In this view, what is relevant is not so much sexual orientation but gender. I may reasonably conclude that my opposition to SSM marriage is not so much discrimination on the basis of sexual orientation but a judgment that marriage requires the union of a man and a woman. That belief may well be rooted in religious belief (see, e.g., Roman Catholic teaching on the complementarity of the sexes)- although, in my case, I am powerfully committed to secular arguments.

SSM, if widely accepted, undercuts that argument because it denies the relevance of gender to marriage. It extends the principle of nondiscrimination and leads us to Professor Markel's view that sexual orientation is almost always irrelevant.

Tuesday, June 17, 2008

What Andrew Greeley Just Must Know

The Wall Street Journal wonders whether the election of Barack Obama should mean the end of affirmative action. Andrew Greeley says that racism is so pervasive that his victory is unlikely. He suggests that all of the many reasons that someone might not support Obama may just mask racism. I was struck by this passage:

How many of the male readers of this column who are habitues of bars, locker rooms, commuter train bull sessions, pool rooms and men's clubs have not heard the indigenous racial slurs of such environments applied to Obama?

I can't say that I have been in a lot of pool rooms and, while I have been a member of private clubs, they were not "men's clubs." (Do these even exist anymore?.)But I do regularly hang out with some fairly conservative folks in environments where one eats red meat (but not too often, Karen) and drinks scotch. I have certainly been in bars and locker rooms and have had bull sessions. If racial slurs are "indigenous" to these environments, I have failed to hear them.

But Father Greeley is an old man. Let him indulge his smug little bigotries.

H/T; K-Lo.

Monday, June 16, 2008

Merit selection agnostic

The Wisconsin State Journal has endorsed merit selection for the judiciary in Wisconsin. I am a merit selection skeptic, particularly when it comes to a court of last resort which will be called upon to resolve cases of first impression, make common law and decide matters of constitutional interpretation.

There's a huge irony in the move toward merit selection and appointment in Wisconsin. While there are certainly people who tend to a more conservative view of the judiciary who favor some form of appointment, the energy behind the movement - both in Wisconsin and nationally - is from those who tend to have a more liberal view of the judicial function. By this I mean those who tend to reject many of the traditional restraints on the judicial function, be they attention to the original intent of the drafters of law, or a strict adherence to its text. These folks are more likely to see the judiciary as a branch that empowers those who they believe to be unfairly disadvantaged in the political process. This does not require adherence to the letter and intent of the law as much as it requires the willingness and judgment to interpret it in a way that is thought to correct the imbalances that infect the political process. Thus, Senator Obama's most important qualification for the judicial appoinments is that someone "knows what its like to be" certain people that he believes are disadvantaged.

This view is, of course, counter-majoritarian so it as at odds with the very idea of elections. The irony is that it seeks to appropriate the judicial philosophy of those with a more conservative view of the courts, i.e., those who are more willing to accept traditional constraints on the judicial role. Judging, in this more conservative view, might also be countermajoritarian in that it insists on enforcement of the law as the legislature and executive - or framers of the constitution - have enacted it without regard to public sentiment about its enforcement in the case before it. But it is, at the end of the day, a rather modest counter-majoritarianism. It also rests in tension with the idea of elections but is not anchored in a belief that courts ought to react against and shape what political majorities have done. To the contrary, it is concerned with discerning what they have done and holding them to it. We wouldn't have to have a free speech guarantee in the Constitution but we do, so it must be interpreted and enforced. We could have a right to privacy encompassing the right to abortion in our Constitution, but we don't so we ought not to act as if we do.

This is what Chief Justice Roberts meant when he called judges "referees." Those who take a more expansive role of the judiciary are very critical of that analogy. In their view, judges cannot and should not be referees. They say it's an oversimpflication. (In part, it is, but mostly it's not.)

But when it comes time to oppose judicial elections, the analogy comes in handy so the very folks who tend to reject it jurisprudentially, embrace it politically. We need good referees and we certainly wouldn't let the players and fans vote on who they should be. What matters is that they are fair and that they are good.

But the problem is that, if there are folks and existing and potential jurists who don't believe that judges are referees, then competence is no longer the only thing we need to consider. Fairness becomes less important because these folks reject, in significant ways, the very concept of neutrality. In this world - where there are significant differences on what judges ought to be doing - saying that one candidate is more qualified than another - if by qualification we mean legal acumen -is only one relevant consideration. Nino Scalia and Ruth Bader Ginsburg are both very talented lawyers. If I gave them a Civ Pro exam, they'd ace it and critique my stupid questions. But we certainly should not be indifferent to the choice between them or pretend that it can be resolved by resort to "qualifications."

A sophisticated defense of merit selection is to say that it will result only in consideration of the Scalias and Ginsburgs. I wish that were so. Experience suggests otherwise. In further irony, the State Journal offers as a virtue of a potential merit selection plan that the commission that will screen for merit might be made up of a majority of nonlawyers. But if merit consists of legal acumen, only lawyers are able to evaluate that.

How awful is that Bobby Jindal anyway?

National left of center websites and our locally Illusory one seem to think that its funny and perhaps even politically significant that Lousiana Governor Bobby Jindal participated in an impromptu exorcism as a college student. (NB: This is something the Roman Catholic Church says that you should not do.)

I have never been anywhere near an exorcism and doubt that I ever will be. But I have encountered - and those close to me have encountered - events and perceptions that are not readily explained. So I don't discount or laugh at the others' experience of evil or the notion that it can be overcome by faith or prayer.

But let's just concede that this dormitory exorcism was an excess of youth. We have a young man who turned to prayer in an attempt to help a friend. This is supposed to be disqualifying while a young law student immersing himself in radical chic and a young college graduate losing himself in cocaine are entitled to dismiss these youthful indiscretions.

Kathryn Jean Lopez reports the conclusion that Jindal drew from his experience, expressed in a descriptive piece in the New Oxford Review:

“I learned a lasting lesson in humility and the limits of human understanding. Was the purpose of that night served when so many individuals were inducted into the Church? Did I witness spiritual warfare? I do not have the answers, but I do believe in the reality of spirits, angels, and other related phenomena that I can neither touch nor see.”

Well that certainly should disqualify him for higher office.

Sunday, June 15, 2008

For Father's Day

Not as old as I usually do, but here's Creed

The last thing it takes is a family

In what certainly has to be in the running for most embarassing op-ed of the year, Judy Warner says that the difference between a father-daughter ball promoting abstinence and a man who kept his daughter locked in the basment and raped her is "only a matter of degree." For Warner, the idea that fathers may have an interest in helping their daughters avoid the perils of the hook-up culture is a "horror" and an "emotional violence" not unlike incest.

Yeah, right.

It's ironic that those on the left who see the family as a model for the state often have great antipathy for actual families. If I had a daughter, I doubt I'd ever attend an event like that and I am uncomfortable with some of the language that is used. I don't think that someone who has sex before marriage is "unpure" although I also realize that social conventions often require a powerful narrative to be inculcated and its more compelling to call for young women to be "pure" than it is to ask them to be "prudent" which in my view is the value underlying abstinence or, at at least, for young girls, the avoidance of casual sex.

But it takes a powerful bigotry to equate it with rape.

Shark on Dead Tree

Read my column on Obama in today's Milwaukee Journal Sentinel.

Wednesday, June 11, 2008

Canadian liberty

Some of us remain under the false impression that Canada is a free country. Free speech, however, is not apparently not a Canadian value. The Alberta Human Rights and Citizen Commission recently ordered that a preacher "shall cease publishing in newspapers, by email, on the radio, in public speeches, or on the internet, in future, disparaging remarks about gays and homosexuals ...." The minister had published a letter in the Red Deer Advocate that harshly criticized what it called the "militant homosexual agenda" which he regards as "evil" and "wicked." Harsh and provocative stuff but clearly protected speech in the US.

Last week, a complaint against Mark Steyn was considered by the British Columbia Human Rights Tribunal. Steyn has written a book suggesting that demographic changes in Europe dramatically increasing the proportion of the population that is Muslim will dramatically change the nature of those societies. This is, of course, almost certainly true. (It is already happening in the UK and the Netherlands.)

But it's unlawful in Canada to say so.

Eugene Volokh points out that the Canadian Supreme Court originally upheld the Canadian "hate speech" ban because it thought that it would be limited to extremely offensive statements. That was incredibly naive. The purpose of hate speech laws is to remake society. It is, quite literally, to abolish heresy and that can't be done by abolishing only the most vulgar and inflammatory statements.

Sunday, June 08, 2008

Anachronistic Rock

In honor of the One that will save us - work us hard and not let us return to our miserable present selves - make us, for the first time, proud of our country - fix the holes in our souls - and turn the rock into living waters, I offer Barry McGuire:

Thinking About the O

I am working on a column for next Sunday's Journal Sentinel on the relevance of the Rev. Wright and related phenomena to the Obama campaign. Today, the paper ran a piece on Obama's performance among blue collar workers in Wisconsin which was significantly better than it was elsewhere. The story skirts around what I believe to be the most plausible explanation. It comes closest at the end when it suggests that part of the reason may have been that Wisconsin voted before the Wright controversy (although, as author Craig Gilbert points out, Obama did poorly among blue collar voters in other states before the Wright controversy began as well).

Where I begin to differ is with Gilbert's summary of the Wright controversy as a matter of race. I don't doubt that it has racial aspects, although they are not so easily characterized. Part of the reaction to Wright might be a sort of racist revulsion at an overly assertive black preacher associated with Obama. Or it could be, as Linda Chavez points out in the recent issue of Commentary, a perception on the part of whites of a breach in the conditions for racial reconciliation. Her argument, as I understand it, is that whites who see Wright (and the reaction of his parishioners) are stunned by black hostility toward the white world and become wary about voting for a black candidate who has associated with that hostility. In fact, I suppose it is hard to know where the latter ends and the former begins. I imagine that some people would see no distinction between the two.

My own sense is that Obama has - and continues - to go through a process of definition. He has tried to run a post-ideological campaign. But he is, of course, anything but post-ideological. He is, in fact, probably one of the most ideological candidates to run for President and probably well to the left of any Democratic nominee since George McGovern.

He may also be one of the most arrogant.

You can see both characteristics in his gaseous victory speech last week in which he noted, with self described "humility," that perhaps his ascendancy is the moment that our 233 year old country- the most prosperous and free nation in human history - "began to provide care for the sick and good jobs to the jobless; this was the moment when the rise of the oceans began to slow and our planet began to heal… This was the moment — this was the time — when we came together to remake this great nation… ."

Dude, get over yourself.

As Mark Steyn puts it, Obama has to order the receding of the waters. He doesn't want to have to use a stepladder whenever he wants to walk on them.

But this may work this year. Bush has made too many mistakes. The stars are aligned with the Democrats. Although Obama, near as I can tell, wants to return to the policies that brought us the economic stagnation and global impotence of the 70s, our communal memory is short. They may be a mistake that we need to make again.

It also be that the desire to elect a black president as a statement of racial redemption - a desire that I regard as admirable - may prove decisive.

Wednesday, June 04, 2008

The truth about Janesville

The closing of the Janesville GM plant is certainly a blow for that community. GM and the other American auto manufacturers are certainly subject to criticism for failure to anticipate market changes that would reduce demand for SUVs and trucks. The rush on the left to find out who else is to blame for not preventing this reflects - once again - a misunderstanding of basic economics.

Jay Bullock, for example, can't resist blaming George Bush (although he lacks even a plausible reason) and (literally) everyone else for not saving GM from itself. His argument is, essentially, that GM shouldn't have built SUVs, it shouldn't have been allowed to build SUVs and consumers should not have wanted them. The underlying assumption is that someone should have done something to make sure that whatever was built in Janesville should never become unwanted.

That type of "industrial policy" is, of course, a recipe for economic stagnation. It would result in far fewer plants to risk one day being closed because it would necessarily require policies that restrict market changes and would require the government to interfere in the market, artificially manipulating supply and demand in a way that would stifle innovation and responsiveness to consumer needs and desires.

In Jay's world, the government would have acted to prevent GM from building SUVs so that now it would not have to stop making them and, as a consequence, throw people out of work. Putting aside the obvious, i.e., that in such a world, GM may have produced nothing in Janesville, the government has no particular expertise in determining what people should or not should not build and want. Rather, the market - through prices - best matches demand with supply.

Sometimes this results in companies going out of business and people losing jobs. Plants that manufacture film, paper checks, and audio or videocassettes are probably not doing well. But the government should not have decreed that they stop producing these things or prevented others from producing digital cameras, developing on-line payment systems or DVDs. As market conditions change or new products are developed, some companies and individuals will lose.

If there is a role for public policy here, it is in internalizing market externalities and helping persons in transition. While some may argue that SUVs or gas should have been more heavily taxed to reflect their contribution to air pollution, certainly no one in Janesville would have supported that. That would have reduced demand - which is precisely what higher gas prices have done.

But what happened here - as tough as it is for Janesville - is what ought to have happened. GM was slow to see changes in the marketplace and is now responding to those changes. It's not the fault of George Bush, the GOP, NAFTA, taxes in Wisconsin or the failure to manage the economy from Capitol Hill.

Of course, the closing (and the circumstances that compel it) are tragic for Janesville and GM. But the claim that we can live in a world where these things never happen is a false - and ultimately cruel - promise.

Monday, June 02, 2008

Obama cannot be permitted to lose

South Dakota and Montana can't get him there but Barack Obama is just about over the line in his pursuit of the Democratic nomination. But is Hillary Clinton unveiling a new end game? Most of the talk about how close Obama is and how Hillary can't win is premised on the understandable assumption that superdelegates who have announced the support for him are somehow irrevocably "his."

It's a good working assumption but, of course, it's not true. "Obama" superdelegates are perfectly free to change their minds. The public debate over what they ought to do (reflect Obama's lead among the committed delegates or follow a mythical national "popular vote" which can itself be measured in multiple ways) doesn't much reflect what they should and will do.

The whole point of having uncommitted superdelegates is to allow supposedly seasoned professionals to make a judgment about what is in the best interests of the party independent of what the voters have done in the state primaries. At this point (and contrary to my own earlier assumption), it appears that Hillary is a somewhat stronger general election candidate than Obama. It's not clear that her advantage is clear enough to warrant a reversal of the party's movement toward Obama as its voters are increasingly moving toward Clinton.

But even if it was, the Democrats are in a box. Dumping Obama would threaten to break the modern connection between African-American voters and Democrats. These voters have come to believe (with some justification) that Obama has earned the nomination and that taking it from him would be an act of disrespect toward an important constituency. Without African-Americans, the Democrats can't win. Ever. Even if, given the likely identification of Obama with far left politics, Clinton is the stronger candidate, there is no choice to be made here.

That's why its over and has been since Super Tuesday.