1. Some ill advised stimulus and public works package will be enacted. It will have little impact on the economy although we will see the end of the housing slump this summer.
Nailed the first part and there are some signs that the housing slump has leveled off.
2. The Wisconsin legislature will pass little this year. It will enact a series of tax increases as part of the budget package, largely consisting of things that they can argue will not fall on the "average" taxpayer.
Right on the budget but they passed more than a little.
3. Healthy Wisconsin will not be enacted.
Yes.
4. The smoking ban will not be enacted.
No.
5. Obama will fight - and win - a rearguard action over whether to investigate the Bush administration.
Pretty much so.
6. Justice Stevens will resign at the end of the 2008-09 term and will be replaced by Harvard Law Prof Cass Sunnstein.
Wrong.
7. There won't be much of a race for the state supreme court and Chief Justice Abrahamson will be easily reelected.
Right.
8. Dissenting views on global warming will get more attention, with some major study or claim critical of the current "consensus" making a major splash.
Booo-yah.
9. Little will change in Iraq.
Neither policy nor the fact of victory have changed.
9. Israel will invade Gaza. Obama, wisely, will do nothing. Iran will pitch a fit and the clock will keep ticking on its nuclear program.Not at all.
10. We won't do anything about Iran but Israel will strike a target there. Obama, wisely, will no nothing.
We haven't done anything but Israel did not strike. Not yet.
11. Despite losing C.C. Sabbathia and Ben Sheets, the Brewers will win the Central Division. Gallardo and Parra will have breakthrough seasons and Seth McClung will contribute in the bullpen. They will lose to the Phillies in the NLCS.
Not close.
12. Brett Favre will retire and the Packers will bounce back in '09, winning the NFC North with a 10-6 record.
Well, he did retire. Then he unretired. The Packers didn't win the North but they did bounce back.
13. The Badger football team will bounce back as well with a 9-3 mark and a New Year's Day bowl.
Not a New Year's Bowl, but they did bounce back to a 9-3 record. And the Bowl matchup was a good one - against a team ranked in the top fifteen that had spent some time in the top ten. And they won.
14. In college basketball, both Marquette and Wisconsin will make the NCAA tournament and the Warriors will make the Sweet Sixteen. UWM will surprise everyone with a 12-6 conference record. The Panthers will lose to Butler in the Horizon league title game and finish at 20-12.
UW and MU did make the tournament and MU came within a bad call of making the Sixteen. UWM fell a bit short with an 11-7 conference mark and more significantly short with a 16-13 overall mark and a loss in the second round of the tournament.
15. The Steelers will win the Super Bowl. Florida will beat Oklahoma next week. Georgetown will win the NCAA tournament. The Yankees will finally buy the World Series again. I don't care who wins the NBA.
Three out of four ain't bad, although Georgetown was a whopper. They collapsed and didn't even make the tournamant.
Wednesday, December 30, 2009
Tuesday, December 29, 2009
Packer Playoff Picture
So here are your playoff possibilities for the Packers.
But first, I should note that Tom Foley tried to post a prediction of the Bears win and argues (repeated here) that the Cards will be playing for a first round bye on Sunday. They might be as I suggested in an earlier post on the topic. Since I like this stuff, here is the way it can go.*
If the Packers score more points than Arizona in this coming Sunday's Empty Bowl at the University of Phoeniz Stadium, they will return to Glendale to play the Cards in the first round. No other scenario seems possible.
But if the Cards win, there are four potential scenarios - two of which also lead to a Green Bay-Arizona matchup. In one, the game would not be meaningless for Arizona. Assume that the Vikings lose to the Giants at Minneapolis. (I think this is unlikely, but the Giants are a well coached team that really embarassed themselves in the final game at Giants Stadium.) Assume that the Cowboys then beat the Eagles at home on Sunday to win the NFC East. There would be a three way tie for the second seed in the playoffs and a first round bye. The Vikings would be the first eliminated based on what would be their inferior (8-4) record within the conference. The Cowboys and Cardinals would each have 9-3 conference records, but would win the common opponents tie breaker. Because, under this scenario, the Packers would drop to the number six seed (Philadelphia at 11-5 would be at 5), the Packers would go to Dallas.
That is a tough scenario in that it requires two more contingencies to fall the right way before the Packers and Cardinals kick off. Far more likely is that, by beating the Packers, Arizona would move into a two way tie for the no. 3 seed. No first round bye.
That tie could be either with Minnesota (if they lose to New York) or with Dallas (if they beat the Eagles and win the East). If it is Minnesota, the Cards would win a tie breaker with the Vikings based on head to head competiton and move up to number 3. Because the Packers would tie with the Cowboys and win the tie breaker based on their win over Dallas in November, the Packers would head to Minnesota for another matchup with the Vikings.
If, however, an Arizona win moves them into a tie with Dallas (because Minnesota has won at least one of its last two), they still play Green Bay in the first round. This is beacause they win the tie breaker with Dallas (common opponents) to move up to the 3 seed, but Green Bay will drop to number 6.
Finally, if Philadelphia wins and Minnesota beats New York, Arizona has the four seed and the Packers must have the number five. Once again, the Packers can just take another week at the Renaissance Glendale.
What will happen? Much as I would like to see it another way, I don't think that Minnesota loses their first home game on Sunday. Losing to the Bears was bad and they have some serious defensive issues. If you can't get Jay Cutler to throw more than one pick in a cold weather game, you don't want to be playing Aaron Rodgers or Drew Brees anytime soon. If they don't get pressure on the quarterback, their secondary can be had all day. But Favre played a great game in December. Maybe he isn't what we thought he was.The Vikings beat the Giants to the bleat of that obnoxious long horn.
But they don't get a first round bye because the Eagles will beat the Cowboys.
At that point, Aaron Rodgers and Kurt Warner may as well take a knee.
*I temporarily enabled comment moderation which I have now turned off. I have no idea where Tom's comment went.
But first, I should note that Tom Foley tried to post a prediction of the Bears win and argues (repeated here) that the Cards will be playing for a first round bye on Sunday. They might be as I suggested in an earlier post on the topic. Since I like this stuff, here is the way it can go.*
If the Packers score more points than Arizona in this coming Sunday's Empty Bowl at the University of Phoeniz Stadium, they will return to Glendale to play the Cards in the first round. No other scenario seems possible.
But if the Cards win, there are four potential scenarios - two of which also lead to a Green Bay-Arizona matchup. In one, the game would not be meaningless for Arizona. Assume that the Vikings lose to the Giants at Minneapolis. (I think this is unlikely, but the Giants are a well coached team that really embarassed themselves in the final game at Giants Stadium.) Assume that the Cowboys then beat the Eagles at home on Sunday to win the NFC East. There would be a three way tie for the second seed in the playoffs and a first round bye. The Vikings would be the first eliminated based on what would be their inferior (8-4) record within the conference. The Cowboys and Cardinals would each have 9-3 conference records, but would win the common opponents tie breaker. Because, under this scenario, the Packers would drop to the number six seed (Philadelphia at 11-5 would be at 5), the Packers would go to Dallas.
That is a tough scenario in that it requires two more contingencies to fall the right way before the Packers and Cardinals kick off. Far more likely is that, by beating the Packers, Arizona would move into a two way tie for the no. 3 seed. No first round bye.
That tie could be either with Minnesota (if they lose to New York) or with Dallas (if they beat the Eagles and win the East). If it is Minnesota, the Cards would win a tie breaker with the Vikings based on head to head competiton and move up to number 3. Because the Packers would tie with the Cowboys and win the tie breaker based on their win over Dallas in November, the Packers would head to Minnesota for another matchup with the Vikings.
If, however, an Arizona win moves them into a tie with Dallas (because Minnesota has won at least one of its last two), they still play Green Bay in the first round. This is beacause they win the tie breaker with Dallas (common opponents) to move up to the 3 seed, but Green Bay will drop to number 6.
Finally, if Philadelphia wins and Minnesota beats New York, Arizona has the four seed and the Packers must have the number five. Once again, the Packers can just take another week at the Renaissance Glendale.
What will happen? Much as I would like to see it another way, I don't think that Minnesota loses their first home game on Sunday. Losing to the Bears was bad and they have some serious defensive issues. If you can't get Jay Cutler to throw more than one pick in a cold weather game, you don't want to be playing Aaron Rodgers or Drew Brees anytime soon. If they don't get pressure on the quarterback, their secondary can be had all day. But Favre played a great game in December. Maybe he isn't what we thought he was.The Vikings beat the Giants to the bleat of that obnoxious long horn.
But they don't get a first round bye because the Eagles will beat the Cowboys.
At that point, Aaron Rodgers and Kurt Warner may as well take a knee.
*I temporarily enabled comment moderation which I have now turned off. I have no idea where Tom's comment went.
Monday, December 28, 2009
Packers and Cardinals Announce Joint Game Plan
In an unusual move, Green Bay Packer coach Mike McCarthy and Arizona Cardinal coach Ken Whisenhunt held a joint press conference later today to announce their game plans for the almost certainly meaningless game between the two teams this coming Sunday - a game that is very likely to be followed by a matchup between the same two teams in the first round of the playoffs.
"We'll be taking a knee," said McCarthy. Whisenhunt agreed. "I'm with Mike. We, as a football team, need to fine tune our victory formation going into the playoffs."
"We'll be taking a knee," said McCarthy. Whisenhunt agreed. "I'm with Mike. We, as a football team, need to fine tune our victory formation going into the playoffs."
Sunday, December 27, 2009
Pure Holiday Magic
... or what I got for Christmas.
The Esenberg Family (perhaps joining the ranks of the Carter Family) has released some seasonal music. You can hear it here. Listen to my daughter-in-law turn a little clay toy into an object of an ominous obsession. "And when my dreidel's tired/It drops and then I win" sounds as if she killed it. Hear my son's rather dark version of God Rest Ye Merry Gentleman. (Actually the original meaning - God keep you strong - is a bit less frothy than our current understanding.)
Little Aidan's reading of Rudolph is, however, more traditional.
Songs for New Year's Week
It's New Year's Week. Can you believe it? You run, you run to catch up with the sun, but it's sinking.
You're not the cat you used to be.
You have no resolutions for self assigned penance for problems with easy solutions.
Offer you solutions, offer you alternatives ... and you decline.
But you've killed your pride.
You're not the cat you used to be.
You have no resolutions for self assigned penance for problems with easy solutions.
Offer you solutions, offer you alternatives ... and you decline.
But you've killed your pride.
Saturday, December 26, 2009
We Elect Judges, Don't We?
It is hardly a revelation, but the Laurel Walker of the Journal Sentinel has done a study demonstrating that a bit more than half of the circuit judges in the five county area assume the bench by appointment, rather than election. This is an important aspect of judicial selection in our state and the paper does a service by informing the public (and, I suspect, much of the bar) of the fact that many of our judges are selected, in the first instance, by the Governor and not the electorate.
My colleague, Peter Rofes, is certainly correct to note that, in some sense, this demonstrates that a "harsh dichotomy between so-called elector systems and appointment doesn't really exist."
But, while I agree that the dichotomy may not be harsh, it remains significant. While the Journal Sentinel is correct to note that challenges to sitting judges are rare, they are more frequent (although still probably not very frequent) when the incumbent is a sitting judge who has not yet faced the electorate. I supervised a study of that a number of years ago in defending a challenge to Wisconsin's system of electing judges under the Voting Rights Act. My sense is that things haven't changed much.
This is where the dichotomy reasserts itself and does so in at least three ways. First, governors know that their appointees are subject to electoral challenge and the electability of prospective judges is a consideration in choosing appointees. Second, although incumbency in and of itself confers certain advantages, it is not as strong for new appointees. Every new judge knows that securing an uncontested election is not a matter of happenstance and, in many (if not most) cases, must be made to happen. The first order of business is to line up support and fundraising to dissuade potential challengers. Every judge knows that the absence of a challenger often requires hard work. Third, while challenges are not frequent, they are not unknown and they do happen. Appointed judges get beat. Everyone knows this and that has - for better or worse - an "accountability" impact on newly appointed incumbents.
So, if the study were to be used to argue that we don't "really" elect judges anyway and so we should accept Sandra Day O'Connor's invitation to drop our electoral system, I think that the situation of the ground is far more nuanced. In any event, there is, rightly or wrongly, a strong public commitment to electing judges. I do not see our system changing any time soon.
Although it is beyond the scope of the Journal Sentinel's study, I think it would be interesting to consider why so many circuit court vacancies occur. We don't see half of other public offices becoming open during the incumbent's term of office.
Cross posted at Marquette University Law School Faculty Blog
Part of the answer, I think, would be that new branches have been created during this period so the number of vacancies is less than half. Still, the vacancy rate would remain well above what we see for other elected offices.
Is their just more career dissatisfaction among circuit court judges leading to more resignations? Is it the length of a judge's term? Does the fact of gubernatorial appointment create incentives for sitting judges to time their retirement in order to create an opportunity for lawyers of the same party?
My colleague, Peter Rofes, is certainly correct to note that, in some sense, this demonstrates that a "harsh dichotomy between so-called elector systems and appointment doesn't really exist."
But, while I agree that the dichotomy may not be harsh, it remains significant. While the Journal Sentinel is correct to note that challenges to sitting judges are rare, they are more frequent (although still probably not very frequent) when the incumbent is a sitting judge who has not yet faced the electorate. I supervised a study of that a number of years ago in defending a challenge to Wisconsin's system of electing judges under the Voting Rights Act. My sense is that things haven't changed much.
This is where the dichotomy reasserts itself and does so in at least three ways. First, governors know that their appointees are subject to electoral challenge and the electability of prospective judges is a consideration in choosing appointees. Second, although incumbency in and of itself confers certain advantages, it is not as strong for new appointees. Every new judge knows that securing an uncontested election is not a matter of happenstance and, in many (if not most) cases, must be made to happen. The first order of business is to line up support and fundraising to dissuade potential challengers. Every judge knows that the absence of a challenger often requires hard work. Third, while challenges are not frequent, they are not unknown and they do happen. Appointed judges get beat. Everyone knows this and that has - for better or worse - an "accountability" impact on newly appointed incumbents.
So, if the study were to be used to argue that we don't "really" elect judges anyway and so we should accept Sandra Day O'Connor's invitation to drop our electoral system, I think that the situation of the ground is far more nuanced. In any event, there is, rightly or wrongly, a strong public commitment to electing judges. I do not see our system changing any time soon.
Although it is beyond the scope of the Journal Sentinel's study, I think it would be interesting to consider why so many circuit court vacancies occur. We don't see half of other public offices becoming open during the incumbent's term of office.
Cross posted at Marquette University Law School Faculty Blog
Part of the answer, I think, would be that new branches have been created during this period so the number of vacancies is less than half. Still, the vacancy rate would remain well above what we see for other elected offices.
Is their just more career dissatisfaction among circuit court judges leading to more resignations? Is it the length of a judge's term? Does the fact of gubernatorial appointment create incentives for sitting judges to time their retirement in order to create an opportunity for lawyers of the same party?
Wednesday, December 23, 2009
Green Bay Agonistes Revisited
Back when the Packers were 4-4, I thought that it would take a miracle to save Mike McCarthy's job. He just about has it, having won six straight including wins over Dallas, San Francisco, Baltimore and at Chicago which is always meaningful for the Packers. They almost beat a desperate Pittsburgh team at Heinz Field. They would have, had Dom Capers remembered that prevent defenses generally prevent victory and had Ben Rothlisberger not thrown a perfect pass to a guy who was almost perfectly covered and who managed to make a perfect play.
But McCarthy's not out of the woods yet. The Packers really have to make the playoffs, particularily having come this close. There is a significant chance that they won't.
Prior to this weekend, it looked like a win over Seattle next week at Lambeau would clinch it. No more. With the wins by Dallas and the Giants, the Packers need to win their last two or, if they can only win one, will need a loss by either the Cowboys or the Giants.
If they were to lose one and Dallas and New York win out, they would tie for the last playoff spot with New York and lose on the basis of the third tie-breaker - record against common opponents. If, in a 10-6 Packer scenario, a Cowboy loss comnines with two Giant victories, there will be a three way tie for the two wild card spots. In that circumstance, the Packers benefit from the NFL tie breaking procedures in that a tie of three or more teams for the wild card requires that ties within divisions be broken first using divisional tie breaking procedures to eliminate all but one of the same division teams. The Giants swept Dallas and so Dallas would be eliminated. Green Bay would get the second spot and be seeded behind the Giants' based upon a poorer record among common opponents.
Note that this is true even if Dallas' one loss is at Washington and the Cowboys beat Philadelphia with Philadelphia losing this weekend at Denver and New York winning out. That would create a three way tie at the top of the NFC East but Dallas would be eliminated from the divisional race by the second tie breaker - its divisional record. We then turn to the tie breakers for a two way tie and the Eagles would win the division based on their sweep of New York.
We would then be back to the three way tie for the wild card which produces playoff berths for New York and Green Bay.
If the Packers lose both of their last two, they will need either New York or Dallas to lose their last two as well. One loss by each won't do it. The Cowboys would take on of the spots with a 10-6 record while the 9-7 Packers would lose the tie breaker to the 9-7 Giants. While Atlanta could match the Packers and Giants record in this scenario, it can win no tie breakers. They were completely eliminated when Dallas beat New Orleans.
The conventional wisdom is that the Packers should win both of the last two games. They certainly ought to beat Seattle at home and the season ending game at Arizona will be meaningless for the Cardinals. But we should be careful about placing too much emphasis on that. Teams who shut down for meaningless games at the end of the season often have a tough time turning it back on and the Cardinals coaching staff may do everything it can to prevent that.
Nor is it certain that the game will be meaningless for them. Although Arizona has wrapped up the division, it may still have a shot at a first round bye. Assume Arizona wins this week at home against the Rams (rather likely) and the Bears beat the Vikings this coming Monday night in the cold at Soldier's Field (less likely, but not implausible). The Cardinals will then have a chance to climb into a tie for the second best record in the league. The idea would be that they beat the Packers to finish 11-5 and the Vikings lose to the Giants and finish at 11-5.
They will have that shot as long as Philadelphia does not win the NFC East with a record of 11-5 or better. If they go 12-4, they will win the second spot out right. But - there appears to be no way that Dallas can win the tie breaker with an 11-5 Arizona team. Arizona will have a better record among common opponents. At 11-5, Arizona wins all potential tie breakers with an 11-5 Minnesota team.
But putting aside the outcome of the Arizona game, if the Packers have beaten Seattle and, next week, Dallas beats Washington and New York defeats Carolina, a Minnesota win over New York gives the Packers the wild card. A Philly win over Dallas will serve as well, but the games are being player at the same time. We may be spending the first Sunday of the "teens" waiting for the Packers and Cardinals to kick off and rooting for the Purple Gorgons.
Assuming the Packers make the playoffs, I wouldn't be so sure that they will be one and done. Their performance at Pittsburgh certainly suggests that they can win at Arizona, Philadelphia or Dallas. I'm not sure that Minnesota can get them again either. Favre is starting to show his age at the end of a long season and I can't believe that Capers won't find a way to bother him just a bit more. The offensive line seems to have improved enough so that Jared Allen will at least have to slow down a bit on his way to the quarterback. Jared Bush is turning out to be quite the problem, but he's a nickel (perhaps soon to be a dime)back and they seem to be able to use their defensive looks and pressures to push the play in another direction much of the time. I don't know that they will face a quarterback who is both as mobile and good as Rothlisberger. My guess is that Drew Brees would pile up big numbers but, then again, Rodgers would shred the Saints. One win is certainly possible and two is not out of the realm of possibility. Three - on the road - is extremely unlikely.
But could you imagine a Green Bay-Minnesota NFC Championship game? I don't think it will happen, but fourteen weeks into the season, it is a very real possibility. If it does happen, we are so there.
But McCarthy's not out of the woods yet. The Packers really have to make the playoffs, particularily having come this close. There is a significant chance that they won't.
Prior to this weekend, it looked like a win over Seattle next week at Lambeau would clinch it. No more. With the wins by Dallas and the Giants, the Packers need to win their last two or, if they can only win one, will need a loss by either the Cowboys or the Giants.
If they were to lose one and Dallas and New York win out, they would tie for the last playoff spot with New York and lose on the basis of the third tie-breaker - record against common opponents. If, in a 10-6 Packer scenario, a Cowboy loss comnines with two Giant victories, there will be a three way tie for the two wild card spots. In that circumstance, the Packers benefit from the NFL tie breaking procedures in that a tie of three or more teams for the wild card requires that ties within divisions be broken first using divisional tie breaking procedures to eliminate all but one of the same division teams. The Giants swept Dallas and so Dallas would be eliminated. Green Bay would get the second spot and be seeded behind the Giants' based upon a poorer record among common opponents.
Note that this is true even if Dallas' one loss is at Washington and the Cowboys beat Philadelphia with Philadelphia losing this weekend at Denver and New York winning out. That would create a three way tie at the top of the NFC East but Dallas would be eliminated from the divisional race by the second tie breaker - its divisional record. We then turn to the tie breakers for a two way tie and the Eagles would win the division based on their sweep of New York.
We would then be back to the three way tie for the wild card which produces playoff berths for New York and Green Bay.
If the Packers lose both of their last two, they will need either New York or Dallas to lose their last two as well. One loss by each won't do it. The Cowboys would take on of the spots with a 10-6 record while the 9-7 Packers would lose the tie breaker to the 9-7 Giants. While Atlanta could match the Packers and Giants record in this scenario, it can win no tie breakers. They were completely eliminated when Dallas beat New Orleans.
The conventional wisdom is that the Packers should win both of the last two games. They certainly ought to beat Seattle at home and the season ending game at Arizona will be meaningless for the Cardinals. But we should be careful about placing too much emphasis on that. Teams who shut down for meaningless games at the end of the season often have a tough time turning it back on and the Cardinals coaching staff may do everything it can to prevent that.
Nor is it certain that the game will be meaningless for them. Although Arizona has wrapped up the division, it may still have a shot at a first round bye. Assume Arizona wins this week at home against the Rams (rather likely) and the Bears beat the Vikings this coming Monday night in the cold at Soldier's Field (less likely, but not implausible). The Cardinals will then have a chance to climb into a tie for the second best record in the league. The idea would be that they beat the Packers to finish 11-5 and the Vikings lose to the Giants and finish at 11-5.
They will have that shot as long as Philadelphia does not win the NFC East with a record of 11-5 or better. If they go 12-4, they will win the second spot out right. But - there appears to be no way that Dallas can win the tie breaker with an 11-5 Arizona team. Arizona will have a better record among common opponents. At 11-5, Arizona wins all potential tie breakers with an 11-5 Minnesota team.
But putting aside the outcome of the Arizona game, if the Packers have beaten Seattle and, next week, Dallas beats Washington and New York defeats Carolina, a Minnesota win over New York gives the Packers the wild card. A Philly win over Dallas will serve as well, but the games are being player at the same time. We may be spending the first Sunday of the "teens" waiting for the Packers and Cardinals to kick off and rooting for the Purple Gorgons.
Assuming the Packers make the playoffs, I wouldn't be so sure that they will be one and done. Their performance at Pittsburgh certainly suggests that they can win at Arizona, Philadelphia or Dallas. I'm not sure that Minnesota can get them again either. Favre is starting to show his age at the end of a long season and I can't believe that Capers won't find a way to bother him just a bit more. The offensive line seems to have improved enough so that Jared Allen will at least have to slow down a bit on his way to the quarterback. Jared Bush is turning out to be quite the problem, but he's a nickel (perhaps soon to be a dime)back and they seem to be able to use their defensive looks and pressures to push the play in another direction much of the time. I don't know that they will face a quarterback who is both as mobile and good as Rothlisberger. My guess is that Drew Brees would pile up big numbers but, then again, Rodgers would shred the Saints. One win is certainly possible and two is not out of the realm of possibility. Three - on the road - is extremely unlikely.
But could you imagine a Green Bay-Minnesota NFC Championship game? I don't think it will happen, but fourteen weeks into the season, it is a very real possibility. If it does happen, we are so there.
Sunday, December 20, 2009
Music for Christmas Week
I haven't done this for awhile, so here are some songs for Christmas week.
The best new "seasonal" album this year is Tori Amos' Midwinter Graces. It includes some completely original material as well as a reworking of traditional Christmas carols. The latter is respectful of the Christian nature of the material but does try to emphasize the season as being about rebirth and the emerging of light from darkness. While I generally dislike efforts to interpret Christian revelation as metaphor, Tori Amos does not claim to be a Christian and the music strikes me as a recognition of these themes in the Christian story rather than an attempt to reduce it to them. In any event, I like her and the music is good. This is "A Silent Night With You."
The enormously talented Beth Hart, who is a Christian, wishes us a very Ozzy Christmas.
Of course, it is not yet Christmas. It's still Advent - a time for hope and waiting. I generally post live performances, but here is Enya's version of Veni, Veni Emmanuel.
You've got to have some Gospel and here are the incomparable Blind Boys asking the musical question "When Was Jesus Born?"
Sonny Boy Williamson (actually Sonny Boy II - Rice Miller), who actually lived in Milwaukee during a good part of his recording career (he followed his wife, Mattie Gordon, up here), explains a Christmas gift mishap.
The best new "seasonal" album this year is Tori Amos' Midwinter Graces. It includes some completely original material as well as a reworking of traditional Christmas carols. The latter is respectful of the Christian nature of the material but does try to emphasize the season as being about rebirth and the emerging of light from darkness. While I generally dislike efforts to interpret Christian revelation as metaphor, Tori Amos does not claim to be a Christian and the music strikes me as a recognition of these themes in the Christian story rather than an attempt to reduce it to them. In any event, I like her and the music is good. This is "A Silent Night With You."
The enormously talented Beth Hart, who is a Christian, wishes us a very Ozzy Christmas.
Of course, it is not yet Christmas. It's still Advent - a time for hope and waiting. I generally post live performances, but here is Enya's version of Veni, Veni Emmanuel.
You've got to have some Gospel and here are the incomparable Blind Boys asking the musical question "When Was Jesus Born?"
Sonny Boy Williamson (actually Sonny Boy II - Rice Miller), who actually lived in Milwaukee during a good part of his recording career (he followed his wife, Mattie Gordon, up here), explains a Christmas gift mishap.
Saturday, December 19, 2009
Why I'd die on this hill, part 4
Before I plunge into grading more papers discussing the potential recognition of sharia law in the United States and exploring what the concept of conscience in Judaism might tell us about conscience exemptions to otherwise applicable law, I need to warm up.
So let's review the bidding. My point on Climategate has been two fold. The first is that certain aspects of climate science are what Jim Manzi calls "grey area" science. Paleoclimatalogy is one of these. You can't run controlled experiments to test hypotheses. When it comes to temperature (which is what we are trying to reconstruct and model), we have direct data for only a fraction of the period in which we are interested.
We do have proxy data which are more or less closely correlated with temperature - thinks like tree rings, air bubbles trapped in ice cores, sediment deposits - but these things are also correlated with a variety of other confounding variables including, possibly, temperature itself (i.e., the relationship between these things and temperature may change as temperature changes and because we have little direct temperature data, this further confounds things.)
In short, reconstructing temperature over the past 2000 years is a bit like the tale of the blind monks examining an elephant. They must describe a very big thing with very little information.
Now, certainly climate scientists working in this area - or at least, I assume, most of them - do their best. But the process is inherently speculative and fraught with uncertainty. There is ample opportunity for research and confirmation bias.
What the Climategate e-mails document is the presence of that bias and attempts to put on a public face claiming more certainty and fewer complications than paleoclimatology can, in fact, deliver. The attempt to hide the decline in the Biffra tree reconstruction is on example of that.
And there is no doubt that they tried to hide it in documents that would be used by policy makers. Nothing that my local interlocutors Tom Foley and Seth Zlotocha have said contradicts that.
But they have gone a step further and said that it really doesn't matter. The "decline" was explained away in the scientific literature and so it is irrelevant. There are other reconstructions that either do not use or are less dependent on the tree ring data.
To say that the decline has been explained away because some studies "point to" anthropogenic causes is a bit too facile. It is possible that the "decline" is a result of anthropogenic causes which may or may not be related to carbon emissions or related phenomena. But,as this recent review of the literature concludes, it is still uncertain.
But, beyond that, any divergence shows that the relationship is not robust from external influences and since we don't have detailed data about the climate and atmosphere (and, in fact, fewer sources of data) from 1000 years ago, it is is hard to know that the relationship we observe for 100+ years (because that it the period for which we must calibrate the data)also characterized the preceding 1900.
This is where Seth and Tom would say that the other proxies come in. If they all move the same way in relationship to each other, then perhaps we can infer that they all move the same way in relationship to temperature. In other words, if the six blind monks all say the same thing about the elephant, we have a different fable.
But can we say that? Again, this is where the Climategate emails are instructive. In this case, our scientist monks (and it really is a very small group of interconnected people who do this work) were not "blind" in the sense that they seem to have been very concerned with homogenizing their work and actively hostile to outsiders who asked questions. Folks like Keith Biffra who seems to have wanted to acknowledge the limited nature of claims that could be made with confidence (he seems to have believed that it is quite possible that temperatures were as warm 1000 years ago as they are today, although this recent paper takes a more somewhat more aggressive view) got tremendous pushback from people like Michael Mann who were strongly committed to the idea of a hockey stick and the claim that 1998 was the warmest in 1300 years.
In the past three years, it has been my privilege to participate in academic discourse. I work in rather contentious areas of public law. In my experience, one does not threaten to beat up persons that one disagrees with. One does not boycott journals who publish work that one does not like. One does not discuss hiding or destroying data. One does not fight, tooth and nail, like Mann did, to withhold data from critics. One does not talk about presenting a "tidy picture" when the picture is, in fact, not that tidy.
But Tom and Seth would ask who cares if Michael Mann is a jerk as long as he is right? But it is not clear that, on the most important point, he is. Mann, of course, is the author of the hockey stick which he has repeatedly undertaken to illustrate using multiple proxies (not just the tree rings). In 2003, two AGW skeptics published a paper - in a peer reviewed journal - that essentially argued that the "hockey stick" was the result of improper statistical techniques. Mann took great umbrage, arguing that the critics, McIntyre and McKittrick, were the ones who had got it wrong.
Two investigations followed. A congressional report requested by AGW skeptic Congressmen Joe Burton was largely a statistical review of the hockey stick reconstruction lead by a professor of statistic named Edward Wegman. That report concluded:
It is important to note the isolation of the paleoclimate community; even though they rely heavily on statistical methods they do not seem to be interacting with the statistical community. Additionally, we judge that the sharing of research materials, data and results was haphazardly and grudgingly done. In this case we judge that there was too much reliance on peer review, which was not necessarily independent. Moreover, the work has been sufficiently politicized that this community can hardly reassess their public positions without losing credibility.
Overall, our committee believes that Dr. Mann’s assessments that the decade of the 1990s was the hottest decade of the millennium and that 1998 was the hottest year of the millennium cannot be supported by his analysis.'
Our committee believes that the assessments that the decade of the 1990s was the hottest decade in a millennium and that 1998 was the hottest year in a millennium cannot be supported by the MBH98/99 analysis. As mentioned earlier in our background section, tree ring proxies are typically calibrated to remove low frequency variations. The cycle of Medieval Warm Period and Little Ice Age that was widely recognized in 1990 has disappeared from the MBH98/99 analyses, thus making possible the hottest decade/hottest year claim. However, the methodology of MBH98/99 suppresses this low frequency information. The paucity of data in the more remote past makes the hottest-in-a-millennium claims essentially unverifiable. (Emphasis added.)
Another review was conducted by the National Academy of Sciences. It's report is often claimed to have validated Mann and the hockey stick but that seems to be an overstatement. This is what the NAS report concluded as summarized in a press release accompanying the report:
There is sufficient evidence from tree rings, boreholes, retreating glaciers, and other "proxies" of past surface temperatures to say with a high level of confidence that the last few decades of the 20th century were warmer than any comparable period in the last 400 years, according to a new report from the National Research Council. Less confidence can be placed in proxy-based reconstructions of surface temperatures for A.D. 900 to 1600, said the committee that wrote the report, although the available proxy evidence does indicate that many locations were warmer during the past 25 years than during any other 25-year period since 900. Very little confidence can be placed in statements about average global surface temperatures prior to A.D. 900 because the proxy data for that time frame are sparse, the committee added.
In the report itself, the NAS committee claimed that it was "plausible" that temperatures are the highest in the last 1000 years. But that's not saying much. Everyone seems to agree (well, not Mann, but many others) that there was a Medieval Warm Period (MWP), a Little Ice Age (LIA) and warming over the past 400 years coming out of the LIA. If it was as warm during the MWP as it is today, it calls into question the idea that we have unique anthropogenic warming. It doesn't mean that AGW does not exist, but throws a wrench into the idea that we have unique warming that can only be explained by anthropogenic causes.
To be sure, I can't see that it disproves the hypothesis of AGW. We could have a nonanthropogenic cause of the MWP (must have - unless there were a lot of smokestacks or urban heat islands in the lost civilization of Atlantis)and an anthropogenic cause of current warming out of the LIA. The latter may be less likely to reach equilibrium.
But recognizing the limited nature of these climate reconstructions ought to give us some perspective. It should remind us that the climate can change rather significantly for natural reasons. On a highly complex question, it would seem to lower our confidence in - at least - the more alarmist views of AGW.
Now, of course, all of this is accompanied by more complexity and inside baseball than I can relate here or that I can - to be honest - fully understand no matter how many "primary resources" I read. There are, apparently, issues surrounding the extent of local variations. Some folks want to say that the reconstructions are supported by observable phenomena (like the artic ice shelf) while others want to say that there is anectodal evidence that supports a strong MWP. There have been additional reconstructions. But we have to try to understand the scientific debate as best we can. My point, up to now, is that what paleoclimatology can tell us seems to be limited and uncertain. That uncertainty is exacerbated by the evident biases of some of the key researchers.
So I think we have to move on. Now I can read about the ethics of embryonic stem cell records and justifications for same sex marriage. More to come after I get tired of that.
Wednesday, December 16, 2009
MPS "Denializing"
It's not really news, but Don Bezruki has done an excellent report on MPS' unfunded liability for retiree health care for the Wisconsin Policy Research Institute.* Over at One Wisconsin Now (where they've apparently moved on from threatening the livelihood of lawyers based on the pro bono clients they represent), Scot Ross is in a state of denial. He characterizes the report as saying simply that "[h]ealth care costs for retirees in Milwaukee Public Schools are going to increase." We should get the health insurance companies to charge less, maybe by increasing competition.
I do feel for Scot. There is really no good way for the public employee unions - who I suspect fund OWN and with whom I suspect Scot's sympathies genuinely lie - to respond to this. MPS's unfunded liability for retiree health care benefits currently stands at $2.6 billion and growing. Paying the health care benefits of people who no longer work for the district (and my sister is likely to be one of them) will grow to 20% of payroll costs in 2016. MPS' current burden rate (the amount spent for the inaptly named fringe benefits) is 68.7%. A generous private employer will typically have a burden rate of less than half that.
So there was no good thing for a guy like Scot to say. But what he did say is replete with irony. Here's the first. Scot thinks that WPRI's report should have called for increased competition among insurers. But competition among insurers is precisely what OWN's comrades-in-arms at WEAC have fought tooth and nail, preferring that school districts contract with its captive insurer. While I do not believe that MPS' benefits are provided by the WEA trust, competition in health care looks a bit like a new commitment and I hope that OWN will continue to push for in school districts across the state.
Of course, it won't help MPS all that much because even if increased competition can decrease costs, it is unlikely to solve much of the problem. Health care costs in Milwaukee are 9% above the Midwest average. Let's assume that some unspecified way of increasing competition (which I presume, for Scot, would not include increased deductibles that might encourage some price competition)would bring us back to the average. That unfunded liability would shrink right down to ... $ 2.3 billion. Why were we even worried?
Here's the second irony. Scot inexpiclably says that WPRI wants money to go to insurance companies rather than kids. Actually the report seems to want money to go to educating kids rather than to retirees. It would seem to be the MTEA (of which the lovely young Karra Esenberg is a member) that wants the money to go to insurance companies. But that's a nit. there is a real threat here to the provision of education in Milwaukee. That 20% that will go to paying for my sister's Cadillac health insurance while she pursues her wine business could have bought $ 130 million in education.
There is even a third irony. Scot goes after the mild-mannered and quite moderate George Lightbourn for engineering what he calls the largest state budget deficit in state history. That isn't true, but the mess in Milwaukee may wind up contributing to that state's fiscal woes. There is, I think, no way that Milwaukee can tax itself out of the problem. There just isn't room for that type of increase and current revenue limits would, in fact, prohibit it. The state is responsible for providing a uniform education throughout the state (see Art. X, sec. 3 of the state constitution)and a majority of the state Supreme Court (although not of its current members) have held that this creates a judicially enforceable right to an adequate education.
Although I don't imagine that outstate legislators will rush in to save MPS, the courts might. And here's a fourth irony. Might a court invalidate the outsized benefits to retirees because they have rendered the provision of a uniform and adequate education impossible? My sense is that it is unlikely but there are a number of possible end games here. But, at the risk of disappointing Scot, business as usual or the villification of insurance companies are not among them.
* I write - for compensation - for WPRI's journal WI Interest and have discussed several other projects with them and, yes, Mr. Foust, George Lightbourn bought me lunch - more than once I think.
I do feel for Scot. There is really no good way for the public employee unions - who I suspect fund OWN and with whom I suspect Scot's sympathies genuinely lie - to respond to this. MPS's unfunded liability for retiree health care benefits currently stands at $2.6 billion and growing. Paying the health care benefits of people who no longer work for the district (and my sister is likely to be one of them) will grow to 20% of payroll costs in 2016. MPS' current burden rate (the amount spent for the inaptly named fringe benefits) is 68.7%. A generous private employer will typically have a burden rate of less than half that.
So there was no good thing for a guy like Scot to say. But what he did say is replete with irony. Here's the first. Scot thinks that WPRI's report should have called for increased competition among insurers. But competition among insurers is precisely what OWN's comrades-in-arms at WEAC have fought tooth and nail, preferring that school districts contract with its captive insurer. While I do not believe that MPS' benefits are provided by the WEA trust, competition in health care looks a bit like a new commitment and I hope that OWN will continue to push for in school districts across the state.
Of course, it won't help MPS all that much because even if increased competition can decrease costs, it is unlikely to solve much of the problem. Health care costs in Milwaukee are 9% above the Midwest average. Let's assume that some unspecified way of increasing competition (which I presume, for Scot, would not include increased deductibles that might encourage some price competition)would bring us back to the average. That unfunded liability would shrink right down to ... $ 2.3 billion. Why were we even worried?
Here's the second irony. Scot inexpiclably says that WPRI wants money to go to insurance companies rather than kids. Actually the report seems to want money to go to educating kids rather than to retirees. It would seem to be the MTEA (of which the lovely young Karra Esenberg is a member) that wants the money to go to insurance companies. But that's a nit. there is a real threat here to the provision of education in Milwaukee. That 20% that will go to paying for my sister's Cadillac health insurance while she pursues her wine business could have bought $ 130 million in education.
There is even a third irony. Scot goes after the mild-mannered and quite moderate George Lightbourn for engineering what he calls the largest state budget deficit in state history. That isn't true, but the mess in Milwaukee may wind up contributing to that state's fiscal woes. There is, I think, no way that Milwaukee can tax itself out of the problem. There just isn't room for that type of increase and current revenue limits would, in fact, prohibit it. The state is responsible for providing a uniform education throughout the state (see Art. X, sec. 3 of the state constitution)and a majority of the state Supreme Court (although not of its current members) have held that this creates a judicially enforceable right to an adequate education.
Although I don't imagine that outstate legislators will rush in to save MPS, the courts might. And here's a fourth irony. Might a court invalidate the outsized benefits to retirees because they have rendered the provision of a uniform and adequate education impossible? My sense is that it is unlikely but there are a number of possible end games here. But, at the risk of disappointing Scot, business as usual or the villification of insurance companies are not among them.
* I write - for compensation - for WPRI's journal WI Interest and have discussed several other projects with them and, yes, Mr. Foust, George Lightbourn bought me lunch - more than once I think.
Monday, December 14, 2009
Why I'd Die on this Hill, part 3
In a widely read post at his blog, Climate Audit, Steve McIntyre provides additional context for the "tricks" discussed in my last post. It is ugly reading. It shows climate scientists discussing the need to homogenize results and omit certain data in order to present a "tidy picture" and to avoid providing "fodder for skeptics." Mr. Foley, who is nice enough to call me and Patrick McIlheran Milwaukee's "leading denializers"* (although it looks like I've now gone back to being a denialist) wants to know when I will express "righteous offense" at Steve McIntyre's "obvious" "intellectual dishonesty" in supposedly editing some of the Climategate e-mails. Here how Tom characterizes the issue:
Here's an interesting little exercise in forensics showing how far climate denializers — in this case, one of the fearless leaders, Steve McIntyre — will go to confirm their biases: selectively edit out correspondence to make it look as though the correspondents are talking about one thing, when replacing the excised portions make it clear they're talking about something completely different.
McIntyre does deserve some criticism but not the criticism that Tom wants to make. Here's some background. In describing some of the offending e-mails (which apparently followed a meeting in Tanzania), McIntyre initially seemed to assume that what the climate scientists wanted to avoid showing was the late "decline" in the Biffra tree ring reconstruction.
That claim was criticized by, among others, an anonymous Canadian blogger at the site Deep Climate. Now, there were certainly e-mails in which hiding the late twentieth century decline was discussed (the Deep Climate blogger admits that) but, as McIntye now agrees, that isn't the case with all of them and was not with a number that he quoted in his post. Rather the problem being discussed was that the Biffra tree ring construction showed that earlier periods were warmer than did certain other reconstructions. In fact, in one e-mail, Biffra says he believes that temperatures were probably as warm 1000 years ago as they are today.
That's inconvenient. It presents a less tidy picture. It raises questions. It provides fodder for skeptics. Biffra initially wanted to include this inconvenient data, but that's not what happened.
Instead, he changed his reconstruction. The new reconstruction looks more like the others for earlier periods but has this problematic late twentieth century decline.
The one that was hidden.
McIntyre did intially edit the e-mails (although he showed deletions with ellipses) and the charge has been made that he was trying to hide the fact that they weren't trying to hide the decline. They were, in fact, contemplating hiding the entire Biffra reconstruction. That's not evident. The deleted portions are somewhat cryptic and it is possible that someone could mistake concern about the reconstruction generally with concern over the late twentieth century decline.
But, more fundamentally, were McIntyre trying to make the climate scientists look bad, he did not need to edit a thing and his case is just as strong - if not stronger - given that the e-mails first discussed whether to use the reconstruction at all and then, once it was made to be more consistent, attention shifted to hiding the decline.
What they seem to have done is contemplate excluding an entire reconstruction because it raised inconvenient questions. They decided to include it after it was hastily redone to eliminate the problem. (This is not to suggest that the reconstruction is fraudulent or a lie; simply that there was concern with presenting data that suggests the reconstructions are not as reliable as they are claimed to be.) Once it was restated, it showed this hard to explain decline, so they simply omitted the problematic years. The e-mails (which McIntyre now presents in full) read like advocacy and not science. A commenter on
the Deep Climate site summed it up:
But there is still more.
Here's an interesting little exercise in forensics showing how far climate denializers — in this case, one of the fearless leaders, Steve McIntyre — will go to confirm their biases: selectively edit out correspondence to make it look as though the correspondents are talking about one thing, when replacing the excised portions make it clear they're talking about something completely different.
McIntyre does deserve some criticism but not the criticism that Tom wants to make. Here's some background. In describing some of the offending e-mails (which apparently followed a meeting in Tanzania), McIntyre initially seemed to assume that what the climate scientists wanted to avoid showing was the late "decline" in the Biffra tree ring reconstruction.
That claim was criticized by, among others, an anonymous Canadian blogger at the site Deep Climate. Now, there were certainly e-mails in which hiding the late twentieth century decline was discussed (the Deep Climate blogger admits that) but, as McIntye now agrees, that isn't the case with all of them and was not with a number that he quoted in his post. Rather the problem being discussed was that the Biffra tree ring construction showed that earlier periods were warmer than did certain other reconstructions. In fact, in one e-mail, Biffra says he believes that temperatures were probably as warm 1000 years ago as they are today.
That's inconvenient. It presents a less tidy picture. It raises questions. It provides fodder for skeptics. Biffra initially wanted to include this inconvenient data, but that's not what happened.
Instead, he changed his reconstruction. The new reconstruction looks more like the others for earlier periods but has this problematic late twentieth century decline.
The one that was hidden.
McIntyre did intially edit the e-mails (although he showed deletions with ellipses) and the charge has been made that he was trying to hide the fact that they weren't trying to hide the decline. They were, in fact, contemplating hiding the entire Biffra reconstruction. That's not evident. The deleted portions are somewhat cryptic and it is possible that someone could mistake concern about the reconstruction generally with concern over the late twentieth century decline.
But, more fundamentally, were McIntyre trying to make the climate scientists look bad, he did not need to edit a thing and his case is just as strong - if not stronger - given that the e-mails first discussed whether to use the reconstruction at all and then, once it was made to be more consistent, attention shifted to hiding the decline.
What they seem to have done is contemplate excluding an entire reconstruction because it raised inconvenient questions. They decided to include it after it was hastily redone to eliminate the problem. (This is not to suggest that the reconstruction is fraudulent or a lie; simply that there was concern with presenting data that suggests the reconstructions are not as reliable as they are claimed to be.) Once it was restated, it showed this hard to explain decline, so they simply omitted the problematic years. The e-mails (which McIntyre now presents in full) read like advocacy and not science. A commenter on
the Deep Climate site summed it up:
You can spin this any way you want, but there is simply no innocent interpretation of what these guys did.
The failure of many tree ring series to respond to the warming of the second half of the 20th century — the fact that the rings widths go DOWN instead of up — calls into question the whole issue of whether or not tree rings make reliable thermometers.
This obviously casts down on the meaningfulness of the long, relatively flat handle of the “hockey stick” graphs — after all, if the trees failed to respond to the warming of the 20th century, how can we know they didn’t similarly fail to respond to something like the medieval warm period?
One cannot possibly make a reasonable case that the “science is settled” in the face of contradictory and inconsistent results like these. Hence, the need to hide the divergence, so as to make the tree ring record look reliable and beyond question.
Gavin Schmidt at RealClimate is trying to dismiss this on the grounds that the “divergence” was “well known”. Well, yes, it was well known among the climate scientists — but it is preposterous to assert that it is well known to the general public, at whom the hockey stick graph is aimed.
Indeed, if the divergence had been “well known” to the public, there’d have been no need to truncate the data and replace it with the instrument record — no need to “hide the decline”. Hence, the decision to replace some data and not divulge that fact to those who viewed the graph.
Gavin, of course, knows full well the public is not educated on this issue. He is simply engaging in his own deception in an attempt to whitewash Mann, Jones and Briffa’s deception.
“Settled science”? Hardly
But there is still more.
Why I'd Die on this Hill, part 2
In several recent posts, I pointed out that the now infamous "trick" of Warmergate involved grafting two very different measures together in a single graph to create the illusion that they were the same thing. Prominent English scientist, Phillip Stott, summed it up in an excellent summary of the issue in yesterday's Daily Mail. Here's what he said in reference to the "trick." "Any scientist ought to know that you just can’t mix and match proxy and actual data ...."
Our friend Illusory Tenant says "that is not at all what was done."
It is precisely what was done.. Directly mixing apples and oranges was the recently cashiered Phil Jones' "trick." He grafted measured temperature date onto a graph of "reconstructions" of temperature based on "proxy" data (i.e., data other than measured temperature)for the period in which the proxy data doesn't correlate with the measured temperature. This graph, combining two different things and presenting them as the same, was then published in a World Meterological Organization report designed to influence policymakers. The graph was placed on the cover of the report and shows a version of the 1000 year "hockey stick" used to demonstrate that the measured warming trend (which covers only the past 150 years or so) is historically unique.
Tom apparently thinks that the report disclosed what was done by a vague reference to using both "historical and long instrumental" records as well as a reference to another publication that may have provided a better explanation.
Hardly. The report showed several different reconstructions. While the caption may have disclosed the both proxy and instrumental records were used, it did not say that they were combined together.
What one would have needed to do was to admit that the proxy data used in one of the reconstructions only seems to reflect actual temperature for the first portion of the measured period and either stop there or clearly indicate where the reconstruction ends or the actual temperatures have been inserted.I know Tom, who is a member of the bar, doesn't practice law, but, believe me, I would salivate at the opportunity to cross examine an expert who tried something like this. (But Tom says he does practice law and, believe it or not, I am glad for it. We like our grads to be successful and he seems happy with his practice.)
Keep in mind, that this is a critical issue. As noted in my earlier post, these reconstructions are the evidence for historically unique global warming since we do not have a long enough history of temperature data to know whether measured temperature increases are unprecedented or unusual.
Well, Tom says, all this was the cover of one report. But there is more. As Steve McIntyre relates, the IPCC also attempted to "hide the decline" in the tree ring reconstruction and seems to have done so intentionally, fearing that showing policymakers contradictory date would dilute the message if historically unprecedented AGW.
The IPCC "trick" was a little different. It did not involve grafting temperature data onto a line charting proxy data. It simply omitted the inconvenient data like this, The tree ring construction is the green line and was plotted on a chart showing graphs of other reconstructions and actual temperature data:
The tree ring reconstruction had recently been altered (more on that later)and now showed that tree ring data would indicate a very substantial decline in temperatures in years following 1960. That didn't happen, calling into question the accuracy of the reconstruction. So they just omitted the inconvenient data like this:
This contradicts the view that the controvesry was hidden in plain sight. The questions raised by the discrepancies between reconstructive models are precisely the things that the scientists did not want to address because, in their own words, it would be distracting and interfere with a tidy picture. Hiding complications was precisely what they wanted to do.
In fact, the IPCC report in which this was originally done offered no explanation that the reconstruction had been truncated. Steve McIntyre explains:
This after a series of e-mails expressing the desire to present a "tidy picture" and to avoid providing "fodder" to skeptics. This sounds like advocacy, not science.
To be sure, one can argue that the claims of historically unique warming are right anyway, relying on other forms of reconstruction or by arguing that the "divergence" is caused by some factor other than a flaw in the reconstruction model. Maybe you can use ice core data (or maybe you can't).
But the thing gets worse and that's where I'll go next.
Our friend Illusory Tenant says "that is not at all what was done."
It is precisely what was done.. Directly mixing apples and oranges was the recently cashiered Phil Jones' "trick." He grafted measured temperature date onto a graph of "reconstructions" of temperature based on "proxy" data (i.e., data other than measured temperature)for the period in which the proxy data doesn't correlate with the measured temperature. This graph, combining two different things and presenting them as the same, was then published in a World Meterological Organization report designed to influence policymakers. The graph was placed on the cover of the report and shows a version of the 1000 year "hockey stick" used to demonstrate that the measured warming trend (which covers only the past 150 years or so) is historically unique.
Tom apparently thinks that the report disclosed what was done by a vague reference to using both "historical and long instrumental" records as well as a reference to another publication that may have provided a better explanation.
Hardly. The report showed several different reconstructions. While the caption may have disclosed the both proxy and instrumental records were used, it did not say that they were combined together.
What one would have needed to do was to admit that the proxy data used in one of the reconstructions only seems to reflect actual temperature for the first portion of the measured period and either stop there or clearly indicate where the reconstruction ends or the actual temperatures have been inserted.
Keep in mind, that this is a critical issue. As noted in my earlier post, these reconstructions are the evidence for historically unique global warming since we do not have a long enough history of temperature data to know whether measured temperature increases are unprecedented or unusual.
Well, Tom says, all this was the cover of one report. But there is more. As Steve McIntyre relates, the IPCC also attempted to "hide the decline" in the tree ring reconstruction and seems to have done so intentionally, fearing that showing policymakers contradictory date would dilute the message if historically unprecedented AGW.
The IPCC "trick" was a little different. It did not involve grafting temperature data onto a line charting proxy data. It simply omitted the inconvenient data like this, The tree ring construction is the green line and was plotted on a chart showing graphs of other reconstructions and actual temperature data:
The tree ring reconstruction had recently been altered (more on that later)and now showed that tree ring data would indicate a very substantial decline in temperatures in years following 1960. That didn't happen, calling into question the accuracy of the reconstruction. So they just omitted the inconvenient data like this:
This contradicts the view that the controvesry was hidden in plain sight. The questions raised by the discrepancies between reconstructive models are precisely the things that the scientists did not want to address because, in their own words, it would be distracting and interfere with a tidy picture. Hiding complications was precisely what they wanted to do.
In fact, the IPCC report in which this was originally done offered no explanation that the reconstruction had been truncated. Steve McIntyre explains:
Contrary to claims by various climate scientists, the IPCC Third Assessment Report did not disclose the deletion of the post-1960 values. Nor did it discuss the “divergence problem”. Yes, there had been previous discussion of the problem in the peer-reviewed literature (Briffa et al 1998) – a point made over and over by Gavin Schmidt and others. But not in the IPCC Third Assessment Report. Nor was the deletion of the declining values reported or disclosed in the IPCC Third Assessment Report. [Dec 11.- IPCC TAR does contain a sly allusion to the problem; it mentions "evidence" that tree ring density variations had "changed in their response in recent decades". Contrary to claims of realclimate commenters, this does not constitute disclosure of the deletion of the post-1960 values in the controversial figure or even of the decline itself.] The hiding of the decline was made particularly artful because the potentially dangling 1960 endpoint of the Briffa reconstruction was hidden under other lines in the spaghetti graph as shown in the following blow-up:
Figure. Blow-up of IPCC Third Assessment Report Fig 2-21.
To my knowledge, no one noticed or reported this truncation until my Climate Audit post in 2005 here. The deletion of the decline was repeated in the 2007 Assessment Report First Order and Second Order Drafts, once again without any disclosure. No dendrochronologist recorded any objection in the Review Comments to either draft. As a reviewer of the Second Order Draft, I asked the IPCC in the strongest possible terms to show the decline reported at CA here:
"Show the Briffa et al reconstruction through to its end; don’t stop in 1960. Then comment and deal with the “divergence problem” if you need to. Don’t cover up the divergence by truncating this graphic. This was done in IPCC TAR; this was misleading. (Reviewer’s comment ID #: 309-18)]"
They refused, stating that this would be “inappropriate”, though a short discussion on the divergence was added – a discussion that was itself never presented to external peer reviewers.
This after a series of e-mails expressing the desire to present a "tidy picture" and to avoid providing "fodder" to skeptics. This sounds like advocacy, not science.
To be sure, one can argue that the claims of historically unique warming are right anyway, relying on other forms of reconstruction or by arguing that the "divergence" is caused by some factor other than a flaw in the reconstruction model. Maybe you can use ice core data (or maybe you can't).
But the thing gets worse and that's where I'll go next.
Friday, December 11, 2009
Why I'd Die on this Hill. part 1
So asks local blogger Tom Foley with respect to the recent Climategate scandal. I don't think he really cares what I say, but let me try to explain.
But, first, what's with the terminology over there? Following some obscure and changing protocol about the epithet of choice for those who question what I would call the "existential threat" view of AGW, Tom has moved from calling me a denialist to being in denial to, finally, being something that goes by the term "denializer."
I guess I'm lucky. Tom promiscuously scorns various academics, sucessful business people, best-selling authors, award winning columnists, and public officials with terms like "teabagger", "wingnut", "not very smart", "moron", "calumnist" "ignorant," "fraud," "dishonest," "lying," etc. You'd think that arrogance, if it must be expressed, should be earned, but I guess that "denializer" is not so bad.
But what does it mean? Are "denializer," "denialist" and "denier" equivalent terms? I suppose there might be some highly stylized meaning of "denializer," sort of along the lines of "fellow traveler." That would be instructive in and of itself, suggesting that the extreme view of anthroprogenic global warming is somehow akin to faith or patriotism. That brings us back to the question that he wants answered.
The label - as applied to me - is wrong. (I might even call it a lie. But I prefer to say it is an unwarranted presumption.)
I don't recall ever saying or writing that AGW does not exist. To the contrary, I don't deny the probability of AGW. In fact, I have said that, among popular commentators, people like Jim Manzi and, most recently, Steven Hayward have made the most sense on the subject. You can look here and here and here. The theory behind the idea that carbon emissions can increase temperature is sound and we have had some increase in temperatures during the brief period in which we have been measurements. It would be silly to dismiss that.
But there are all sorts of countervailing factors. There are other potential causes of warming and mechanisms by which carbon induced warming might be naturally ameliorated. Because we don't have temperature data for more than a small fraction of the planet's history (and we know there have been significant climate changes in the past), it is hard to know whether measured increases are historically unusual. One has to try to "reconstruct" temperatures that were not measured over a period of thousands of years using things that are thought to be proxies for temperature. Predictions are hard to make and the forecast of AGW as an existential threat requires us to believe that coming increases will be quite dramatic.
Because of this, climate science is particularily susceptible to research bias. This is because the factors influencing the climate are so complex that no model is likely to be a very accurate predictor. Models always have to be adjusted. Data always has to be "regularized."
Here is where the Climategate e-mails come in. The e-mails confirm (we already knew it) that climate science has become highly politicized. There is no way that one can read the e-mails and conclude that the leading lights of the "existential threat" movement are open to hearing anything that contradicts their settled view.
So what I do deny - or, I'm sorry, denialize - is the Gorean claim that the sky is on fire and we had better put the brakes on industrialized economies and freeze developing nations in their current poverty. While there may be a scientific consensus on the probability of some measure of AGW, there is no consensus on AGW as a threat to the existence of man. In fact, it is not even clear that the cost of the most likely AGW scenarios would exceed the cost of abating it. I, for one, am not ready to call for the certain human misery that the Kyoto process will bring about. There is certainly cause to take reasonable measures but the commitments (which can hardly be taken seriously) to reduce emissions to levels consistent with nineteenth century levels of economic activity, to cede substantial measures of control over economic activity to the state and extranational bodies and to make massive wealth transfers are not reasonable measures.
So that's why I think that this is a hill that one ought to be willing to die on. I'll consider some of the particulars of Climatequiddick in the next post.
But, first, what's with the terminology over there? Following some obscure and changing protocol about the epithet of choice for those who question what I would call the "existential threat" view of AGW, Tom has moved from calling me a denialist to being in denial to, finally, being something that goes by the term "denializer."
I guess I'm lucky. Tom promiscuously scorns various academics, sucessful business people, best-selling authors, award winning columnists, and public officials with terms like "teabagger", "wingnut", "not very smart", "moron", "calumnist" "ignorant," "fraud," "dishonest," "lying," etc. You'd think that arrogance, if it must be expressed, should be earned, but I guess that "denializer" is not so bad.
But what does it mean? Are "denializer," "denialist" and "denier" equivalent terms? I suppose there might be some highly stylized meaning of "denializer," sort of along the lines of "fellow traveler." That would be instructive in and of itself, suggesting that the extreme view of anthroprogenic global warming is somehow akin to faith or patriotism. That brings us back to the question that he wants answered.
The label - as applied to me - is wrong. (I might even call it a lie. But I prefer to say it is an unwarranted presumption.)
I don't recall ever saying or writing that AGW does not exist. To the contrary, I don't deny the probability of AGW. In fact, I have said that, among popular commentators, people like Jim Manzi and, most recently, Steven Hayward have made the most sense on the subject. You can look here and here and here. The theory behind the idea that carbon emissions can increase temperature is sound and we have had some increase in temperatures during the brief period in which we have been measurements. It would be silly to dismiss that.
But there are all sorts of countervailing factors. There are other potential causes of warming and mechanisms by which carbon induced warming might be naturally ameliorated. Because we don't have temperature data for more than a small fraction of the planet's history (and we know there have been significant climate changes in the past), it is hard to know whether measured increases are historically unusual. One has to try to "reconstruct" temperatures that were not measured over a period of thousands of years using things that are thought to be proxies for temperature. Predictions are hard to make and the forecast of AGW as an existential threat requires us to believe that coming increases will be quite dramatic.
Because of this, climate science is particularily susceptible to research bias. This is because the factors influencing the climate are so complex that no model is likely to be a very accurate predictor. Models always have to be adjusted. Data always has to be "regularized."
Here is where the Climategate e-mails come in. The e-mails confirm (we already knew it) that climate science has become highly politicized. There is no way that one can read the e-mails and conclude that the leading lights of the "existential threat" movement are open to hearing anything that contradicts their settled view.
So what I do deny - or, I'm sorry, denialize - is the Gorean claim that the sky is on fire and we had better put the brakes on industrialized economies and freeze developing nations in their current poverty. While there may be a scientific consensus on the probability of some measure of AGW, there is no consensus on AGW as a threat to the existence of man. In fact, it is not even clear that the cost of the most likely AGW scenarios would exceed the cost of abating it. I, for one, am not ready to call for the certain human misery that the Kyoto process will bring about. There is certainly cause to take reasonable measures but the commitments (which can hardly be taken seriously) to reduce emissions to levels consistent with nineteenth century levels of economic activity, to cede substantial measures of control over economic activity to the state and extranational bodies and to make massive wealth transfers are not reasonable measures.
So that's why I think that this is a hill that one ought to be willing to die on. I'll consider some of the particulars of Climatequiddick in the next post.
Obama Surprises
Because I am routinely accused of Obama Derangement Syndrome, I'll say that the President's Nobel acceptance speech was pretty good. Karl Rove is right: George W. Bush (and, I would add, virtually every American President with the possible exception of Carter)could have given the speech. But that doesn't detract from the fact that Obama gave it. While there were a few false notes, the speech was well crafted and precisely what should have been said in that forum.
Now, whether Obama will govern in the way that he has spoken is another matter. So far, the record is, at best, mixed. But the speech was a good development. Let's hope he meant it.
Now, whether Obama will govern in the way that he has spoken is another matter. So far, the record is, at best, mixed. But the speech was a good development. Let's hope he meant it.
Thursday, December 10, 2009
Obama seeks votes in Florida
One would have thought that the way to address the looming bankruptcy of Medicare would not be to double down on its unfunded liabilities, but that appears to be precisely what the Obama administration proposes to do by allowing persons over the age of 55 to buy into Medicare.
If this goes through, it will be a bonanza for those who wish to retire early (perhaps exacerbating the financial woes of social security and impairing economic recovery). I know quite a few people who want to retire and have the money to support themselves, but can't hang it up because they literally could not purchase insurance. They may have preexisting conditions or can't afford to buy insurance that is actuarily priced for persons over 55.
Now the Democrats have solved their problem.
More fun with data
Combining two different measurements and pretending they are the same thing and mischaracterizing what data show has not been limited to tree ring data. Here it is done not by scientists, but by Nobel laureate and global warming profiteer Al Gore.
You need to cut corners when you want to do good and do well.
Hu McCullough goes on to look at the actual data and concludes that, once again, it can't tell us what we want to know.
And, once again, we haven't disproved AGW or demonstrated that its impact will not be severe. The problem is that we know that serious limitations on carbon emissions will cause economic harm and exacerbate poverty. Doesn't this suggest that we proceed carefully?
Today, Obama, who did have the audacity to accept his undeserved Peace Prize, said that we ought to work for freedom from want. He has a funny way of going about it.
You need to cut corners when you want to do good and do well.
Hu McCullough goes on to look at the actual data and concludes that, once again, it can't tell us what we want to know.
And, once again, we haven't disproved AGW or demonstrated that its impact will not be severe. The problem is that we know that serious limitations on carbon emissions will cause economic harm and exacerbate poverty. Doesn't this suggest that we proceed carefully?
Today, Obama, who did have the audacity to accept his undeserved Peace Prize, said that we ought to work for freedom from want. He has a funny way of going about it.
Saturday, December 05, 2009
There are two sides along De-Nial
Local reaction to ClimateGate reflects exactly what the scandal itself illustrates, i.e., that the question of climate change has become almost hopelessly politicized. Some of my friends on the right are making claims that are a step or three too far. ClimateGate is indeed a scandal, but it doesn't disprove claims of AGW or demonstrate that they are fraudulent. Rather it reflects something that skeptics have been saying for a long time. The science is not "in." The business of determining the impact of human activity on the climate and predicting what will happen in the future is frightfully difficult and climate scientists have made relatively little progress. There is, at best, awfully thin support for the notion that AGW is an existential threat that requires hobbling the world economy in the ways avocated by President Obama and former Vice President Gore (who has become the world's first global warming profiteer.)
On the left, bloggers like Illusory Tenant are redefining the term "denialist." There is, they say, nothing to see here and "
wing nuts" who say other things are so stupid - not at all like us smart people.
No, actually using a "trick" to "hide the decline" is a big deal. The problem is not that no one could figure out what they were doing (although it apparently took Michael Mann a while to figure it out). Steven McIntyre was certainly aware of it and unsuccessfully tried to persuade the IPCC not to do it.
The problem is that it reflects a willingness to assume away inconvenient facts and then to construct graphs for broader public consumption that "hide" those facts and that are, taken by themselves, fundamentally dishonest. Combining proxy data with actual measurements is a "trick" in the bad sense of the word. It acts as if apples and oranges are the same thing.
More fundamentally, it reflects a bias toward a particular conclusion. Apparently tree ring density was a good proxy for recorded temperatures for the first 60 to 80 years for which actual temperature measurements are available. After at least 1960, it is not. When attempting to make a claim about temperature trends over centuries, this is a problem. How can we know whether the period before 1880 is like the period from 1880 to 1960 or like that since 1960? How can we know that the relationship between tree rings and temperature is constant over those hundreds of years?
If we don't know that, then how can we know that the observed rise in temperatures over the past one hundred years or so is not simply part of normal climate fluctuations? Good science does not respond to the problem by calling it a "travesty" and acting as if it does not exist. Good science, as McIntryre points out, requires that you acknowledge the problem - including in documents that you want policymakers to rely on like the IPCC reports - and deal with it. That insiders knew about the issue does not justify deceptive representations of the data to the larger community.
The discarded data is a problem. It's not that there aren't other data sets and the raw data used by CRU might be reconstructed, but it was an important, widely used and much adjusted data sets. Now the adjustments can not be readily examined. Given what the e-mails tell us about problems with the data set and the raging partisanship revealed by the e-mails, this is a rather large problem.
One of the best summaries of this has been written by Steven Hayward in the Weekly Standard. Here's his conclusion:
On the left, bloggers like Illusory Tenant are redefining the term "denialist." There is, they say, nothing to see here and "
wing nuts" who say other things are so stupid - not at all like us smart people.
No, actually using a "trick" to "hide the decline" is a big deal. The problem is not that no one could figure out what they were doing (although it apparently took Michael Mann a while to figure it out). Steven McIntyre was certainly aware of it and unsuccessfully tried to persuade the IPCC not to do it.
The problem is that it reflects a willingness to assume away inconvenient facts and then to construct graphs for broader public consumption that "hide" those facts and that are, taken by themselves, fundamentally dishonest. Combining proxy data with actual measurements is a "trick" in the bad sense of the word. It acts as if apples and oranges are the same thing.
More fundamentally, it reflects a bias toward a particular conclusion. Apparently tree ring density was a good proxy for recorded temperatures for the first 60 to 80 years for which actual temperature measurements are available. After at least 1960, it is not. When attempting to make a claim about temperature trends over centuries, this is a problem. How can we know whether the period before 1880 is like the period from 1880 to 1960 or like that since 1960? How can we know that the relationship between tree rings and temperature is constant over those hundreds of years?
If we don't know that, then how can we know that the observed rise in temperatures over the past one hundred years or so is not simply part of normal climate fluctuations? Good science does not respond to the problem by calling it a "travesty" and acting as if it does not exist. Good science, as McIntryre points out, requires that you acknowledge the problem - including in documents that you want policymakers to rely on like the IPCC reports - and deal with it. That insiders knew about the issue does not justify deceptive representations of the data to the larger community.
The discarded data is a problem. It's not that there aren't other data sets and the raw data used by CRU might be reconstructed, but it was an important, widely used and much adjusted data sets. Now the adjustments can not be readily examined. Given what the e-mails tell us about problems with the data set and the raging partisanship revealed by the e-mails, this is a rather large problem.
One of the best summaries of this has been written by Steven Hayward in the Weekly Standard. Here's his conclusion:
Climate change is a genuine phenomenon, and there is a nontrivial risk of major consequences in the future. Yet the hysteria of the global warming campaigners and their monomaniacal advocacy of absurdly expensive curbs on fossil fuel use have led to a political dead end that will become more apparent with the imminent collapse of the Kyoto-Copenhagen process. I have long expected that 20 or so years from now we will look back on the turn-of-the-millennium climate hysteria in the same way we look back now on the population bomb hysteria of the late 1960s and early 1970s--as a phenomenon whose magnitude and effects were vastly overestimated, and whose proposed solutions were wrongheaded and often genuinely evil (such as the forced sterilizations of thousands of Indian men in the 1970s, much of it funded by the Ford Foundation). Today the climate campaigners want to forcibly sterilize the world's energy supply, and until recently they looked to be within an ace of doing so. But even before Climategate, the campaign was beginning to resemble a Broadway musical that had run too long, with sagging box office and declining enthusiasm from a dwindling audience. Someone needs to break the bad news to the players that it's closing time for the climate horror show.
Wednesday, December 02, 2009
What Can't Congress Make You Do?
The Milwaukee Chapter of the Federalist Society sponsored an interesting talk this past Monday by David Rivkin, a parter with the firm of Baker & Hostetler in DC.
Rivkin's argues that a Congressionally enacted mandate that individuals purchase health insurance would be unconstitutional, i.e., it would be outside the scope of Congress' authority to regulate commerce among the states. As a prescriptive matter, he is certainly right. Descriptively (i.e., would the Court so rule), its not as clear as Rivkin himself concedes.
Nancy Pelosi claims that Congress has an "essentially unlimited" power to regulate health care. This is an extraordinary claim and based on a view of the Commerce authority that says Congress may regulate any local activity if an effect on interstate commerce can be hypothesized.
That is not, however, quite what current doctrine holds. There are certainly cases in which the the Court has upheld Congressional regulation based on a fairly tenuous connection with interstate commerce. In Gonzales v. Raich, for example, the Court held that Congress could prohibit persons from growing marijuana at home for personal use because it is an "economic activity" that, by altering demand, affects the national marijuana market.
But, in two other reason cases, United States v. Lopez and United States v. Morrison, the Court held that Congress could not regulate certain local activities (carrying guns on or near school property and violent acts against women) that are not themselves economic even thought they certainly have an impact on the national economy.
I am not sure that this is a very useful distinction, but let's assume that it - or something like it - is the principle to be applied. Is purchasing insurance economic because it affects demand for a product or is it noneconomic in that it is not an occupation or business or a private activity that - in some sense - substitues for the services or goods provided by an occupation or business? (Or does it by being a form of self insurance?)
The ramifications of permitting Congress to mandate the individual purchase of insurance are matters of concern. As Rivkin puts it, to permit such a mandate, is tantamount to - or uncomfortably close to - the notion that Congress can regulate you because you are "there" and "being there" will necessarily cause an economic footprint that will affect - in some way - interstate markets.
If that is enough to permit Congressional regulation, then why couldn't Congress mandate that everyone join a health club or purchase vegetables or not purchase junk food?
The problem, it seems to me, stems from the Court's use of the Commerce Clause to permit Congress to do things that it is not constitutionally empowered to do. Enacting national health care is an effort to regulate the provision of health care and not commerce among the states (although it will have an impact on that commerce). Once we admit that impact on commerce justifies Congressional regulation, the idea of Congress as a body with limited and enumerated powers begins to fall apart.
Rivkin's argues that a Congressionally enacted mandate that individuals purchase health insurance would be unconstitutional, i.e., it would be outside the scope of Congress' authority to regulate commerce among the states. As a prescriptive matter, he is certainly right. Descriptively (i.e., would the Court so rule), its not as clear as Rivkin himself concedes.
Nancy Pelosi claims that Congress has an "essentially unlimited" power to regulate health care. This is an extraordinary claim and based on a view of the Commerce authority that says Congress may regulate any local activity if an effect on interstate commerce can be hypothesized.
That is not, however, quite what current doctrine holds. There are certainly cases in which the the Court has upheld Congressional regulation based on a fairly tenuous connection with interstate commerce. In Gonzales v. Raich, for example, the Court held that Congress could prohibit persons from growing marijuana at home for personal use because it is an "economic activity" that, by altering demand, affects the national marijuana market.
But, in two other reason cases, United States v. Lopez and United States v. Morrison, the Court held that Congress could not regulate certain local activities (carrying guns on or near school property and violent acts against women) that are not themselves economic even thought they certainly have an impact on the national economy.
I am not sure that this is a very useful distinction, but let's assume that it - or something like it - is the principle to be applied. Is purchasing insurance economic because it affects demand for a product or is it noneconomic in that it is not an occupation or business or a private activity that - in some sense - substitues for the services or goods provided by an occupation or business? (Or does it by being a form of self insurance?)
The ramifications of permitting Congress to mandate the individual purchase of insurance are matters of concern. As Rivkin puts it, to permit such a mandate, is tantamount to - or uncomfortably close to - the notion that Congress can regulate you because you are "there" and "being there" will necessarily cause an economic footprint that will affect - in some way - interstate markets.
If that is enough to permit Congressional regulation, then why couldn't Congress mandate that everyone join a health club or purchase vegetables or not purchase junk food?
The problem, it seems to me, stems from the Court's use of the Commerce Clause to permit Congress to do things that it is not constitutionally empowered to do. Enacting national health care is an effort to regulate the provision of health care and not commerce among the states (although it will have an impact on that commerce). Once we admit that impact on commerce justifies Congressional regulation, the idea of Congress as a body with limited and enumerated powers begins to fall apart.
Friday, November 27, 2009
Finding confirmation in Climatequiddick
The reaction of bloggers and pundits to Climatequiddick - the hacking and disclosure of e-mails sent and received by climate scientists at East Anglia University - follows two unfortunate patterns.
On the right, we hear folks proclaiming the end of the debate about anthropogenic global warming. They say, as I heard local talk show host Mark Belling claim, that claims of AGW have been shown to be based on "fraud." The e-mails are significant, but surely they don't do that.
On the left, we have denial expressed in the form of accusing "denialists" of "lies" and "ignorance" resulting in a failure and refusal to understand the supposedly innocuous content of the e-mails, which - despite references to tricks and suppression of opposing views - actually reflect scientific integrity. The hack is a nefarious plot to subvert the Copenhagen summit.
For the most part, neither group has the expertise - or is willing to take the time - to understand what they are talking about. I, for example, can't really say whether ignoring recent measurements of tree ring density in northern latitudes because they don't fit into certain models concerning the relation between such density and temperature is right or wrong.
But, being a reasonably informed observer of the global warming debate, it does seem to me that the e-mails reflect an ongoing problem with the matter of AGW. In my view, the most intelligent "popular" writer on the subject has been Jim Manzi.
Manzi, in short, makes the following points. First, is that the process claimed to result in AGW is based on sound physics. Increased atmospheric carbon could result in increased temperature. Second, it is by no means clear that it will do so because of many confounding and countervailing elements. Third, it is, therefore, virtually impossible to "predict" the fact or extent of warming. It makes far more sense to speak in terms of probabilities. Efforts to develop predictive models based on the historical record are particularly problematic because they are essentially unfalsifiable and, by certain defintions, cannot be "science." If we find data that contradicts the model, we can simply tweak the model ("hide the decline") until the data fit. What we can't do is run an experiment in which history is reconstructed under different conditions and see how often the model fits the data. Fourth, concern over AGW is prudent but it is unlikely to be the existential crisis that it is claimed to be and it is not clear that the best policy is abatement rather than accomodation. (Manzi does recognize that a small chance of a bigger problem requires a policy response but not the economic retrenchment that has been the typical proposed response.)
In that context, the e-mails become highly problematic - not because they "disprove" AGW - but because they reflect a rigid and unscientific commitment to orthodoxy. As Manzi points out, paleoclimatology is more like economics and political science than physics and chemistry. It is unlikely ever to achieve the certainty that we associate with certain questions in hard sciences and, therefore, the dogmatic commitment reflected in the e-mails is hard to see as frustration with those who won't accept the obvious and seems to reflect a set of closed minds.
This seems particularly so in the case of the website RealClimateChange (from which the Climatequiddick "deniers" seem to get their talking points). It doesn't read like most academic blogs. It is full of hyberbole, name-calling and smack talk.
The problem can't be assumed away by structuring the question as "selfless" defenders of the climate against self-interested industrially funded hacks. There is money to be made on both sides of the climate debate. That scientists might get lost in commitment to claims about the power of their discipline (here that science can predict the climate) and to their previous positions is a very well known - and very human - phenomenom.
On the right, we hear folks proclaiming the end of the debate about anthropogenic global warming. They say, as I heard local talk show host Mark Belling claim, that claims of AGW have been shown to be based on "fraud." The e-mails are significant, but surely they don't do that.
On the left, we have denial expressed in the form of accusing "denialists" of "lies" and "ignorance" resulting in a failure and refusal to understand the supposedly innocuous content of the e-mails, which - despite references to tricks and suppression of opposing views - actually reflect scientific integrity. The hack is a nefarious plot to subvert the Copenhagen summit.
For the most part, neither group has the expertise - or is willing to take the time - to understand what they are talking about. I, for example, can't really say whether ignoring recent measurements of tree ring density in northern latitudes because they don't fit into certain models concerning the relation between such density and temperature is right or wrong.
But, being a reasonably informed observer of the global warming debate, it does seem to me that the e-mails reflect an ongoing problem with the matter of AGW. In my view, the most intelligent "popular" writer on the subject has been Jim Manzi.
Manzi, in short, makes the following points. First, is that the process claimed to result in AGW is based on sound physics. Increased atmospheric carbon could result in increased temperature. Second, it is by no means clear that it will do so because of many confounding and countervailing elements. Third, it is, therefore, virtually impossible to "predict" the fact or extent of warming. It makes far more sense to speak in terms of probabilities. Efforts to develop predictive models based on the historical record are particularly problematic because they are essentially unfalsifiable and, by certain defintions, cannot be "science." If we find data that contradicts the model, we can simply tweak the model ("hide the decline") until the data fit. What we can't do is run an experiment in which history is reconstructed under different conditions and see how often the model fits the data. Fourth, concern over AGW is prudent but it is unlikely to be the existential crisis that it is claimed to be and it is not clear that the best policy is abatement rather than accomodation. (Manzi does recognize that a small chance of a bigger problem requires a policy response but not the economic retrenchment that has been the typical proposed response.)
In that context, the e-mails become highly problematic - not because they "disprove" AGW - but because they reflect a rigid and unscientific commitment to orthodoxy. As Manzi points out, paleoclimatology is more like economics and political science than physics and chemistry. It is unlikely ever to achieve the certainty that we associate with certain questions in hard sciences and, therefore, the dogmatic commitment reflected in the e-mails is hard to see as frustration with those who won't accept the obvious and seems to reflect a set of closed minds.
This seems particularly so in the case of the website RealClimateChange (from which the Climatequiddick "deniers" seem to get their talking points). It doesn't read like most academic blogs. It is full of hyberbole, name-calling and smack talk.
The problem can't be assumed away by structuring the question as "selfless" defenders of the climate against self-interested industrially funded hacks. There is money to be made on both sides of the climate debate. That scientists might get lost in commitment to claims about the power of their discipline (here that science can predict the climate) and to their previous positions is a very well known - and very human - phenomenom.
Tuesday, November 24, 2009
Talk Among Yourselves
Ilya Somin has an interesting post over at the Volokh Conspiracy on right wing populism. It's not so bad, he says, or at least it could be worse. Somin is a libertarian and is cheered by the idea that conservative populism has tended to emphasize limited government over what he would view as a dangerous aggrandizement of government power. He writes:
Of course, he notes that right wing populist "rhetoric is oversimplified, doesn’t take account of counterarguments, and is unfair to opponents. But the same can be said for nearly all political rhetoric directed at a popular audience made up of rationally ignorant voters who pay only very limited attention to politics and don’t understand the details of policy debates." In other words, the stuff you hear at Fighting Bob Fest isn't any better.
I don't buy Somin's argument about the disconnect between social conservatism and limited government, but I think he has a point. Could we say, however, that there has been a similar moderation in left wing populism? It is also "oversimplified, doesn’t take account of counterarguments, and is unfair to opponents" but aren't the hard left fantasies of the sixties a thing of the past?
On balance, however, the positions taken by the right-wing populists on these issues are basically simplified versions of those taken by the most sophisticated libertarian and limited-government conservative economists and policy scholars. There has been relatively little advocacy of strange, crackpot ideas or weird conspiracy theories. Indeed, efforts to paint the Tea Partiers and others as merely closet racists usually have to rely on unsupported claims about “unspoken” assumptions and subtexts.
Of course, he notes that right wing populist "rhetoric is oversimplified, doesn’t take account of counterarguments, and is unfair to opponents. But the same can be said for nearly all political rhetoric directed at a popular audience made up of rationally ignorant voters who pay only very limited attention to politics and don’t understand the details of policy debates." In other words, the stuff you hear at Fighting Bob Fest isn't any better.
I don't buy Somin's argument about the disconnect between social conservatism and limited government, but I think he has a point. Could we say, however, that there has been a similar moderation in left wing populism? It is also "oversimplified, doesn’t take account of counterarguments, and is unfair to opponents" but aren't the hard left fantasies of the sixties a thing of the past?
Sunday, November 22, 2009
Shark in the Cities
Over the weekend, the the Murphy Institute for Catholic Thought, Law and Public Policy at the University of St. Thomas Law School in Minneapolis hosted a conference entitled "Realism in Christian Public Theology: Catholic and Protestant Perspectives." It was an interdisciplinary conference bringing together law professors, theologians, ethicists and political scientists. I spoke on Friday, presenting a paper entitled "Christian Realism, Subsidiarity and the Economic Crisis."
The point of the paper is that the economic crisis - or really any crisis - presents a danger for the makers of law and policy. They may overreact both in terms of "fighting the last war," i.e., overemphasizing whatever is thought to be the present danger, or in seeing the crisis as an opportunity to remake society, i.e., to usher in a Kingdom on earth.
My argument is that there are two important theological concepts that can at least help us avoid this. The first is the Catholic notion of subsidiarity. i.e., the idea that a higer order should not do what a lower one can do for itself. I qualify that idea by arguing that subsidiarity is not simply a principle of jurisdiction but a recognition of the moral importance of human agency. Law and policy should help people and the associations that they form exercise freedom and creativity. It is, I argue, intertwined with the notion of solidarity, i.e., the imperative of concern for all persons.
This can have implications for both "liberal" and "conservative" positions. If we are to have George W. Bush's Ownership Society, ownership must be more than a theoretical possibility. Social assistance that is conservative must also be compassionate.
Health care reformers ought to remain mindful of the need for innovation and the moral value of individual choice and of human life. Efforts to fight global warming should not forget that much of what has improved the quality of our environment was not developed by centralized command and direction.
The second helpful theological concept is Christian Realism, a broad and sometimes amorphous body of thought associated with the Lutheran theologian Reinhold Niebuhr. I take two things from Niebuhr. The first is the call for Christians (but this could apply to persons of other faiths as well) to engage the world but to do so as they find it and not as they wish to be. The second is to recognize that human beings are sinful and broken and that efforts to, in the words of Bill Buckley, "immanentize the eschaton" are almost certain to fail and likely to bring unforseen danger.
Again, there are lessons for both conservatives and liberals. We ought to have known that efforts to create democracy in countries that had never been democratic would be harder than we expected. This is not to say that the wars in Iraq and Afghanistan were necessarily wrong, but we should have expected the unexpected.
On the other side of the aisle, President Obama claims that Niebuhr is his favorite philospher and he seems to understand the tension in Christian Realism between the call for engagement and the admonition to humility. But, as William Schambra explains in the inaugural issue of the journal National Affairs, Obama also seems to be what Daniel Patrick Moynihan called a "Policy President." He is in the tradition of early twentieth century Progressives who believed that "everything is related to everything" and that, as a consequence,"there are no social interests about which the national government does not have some policy or other."
Just as importantly, the policy approach eschews the notions of divided government and limited powers - as well as the rough and tumble of politics - because it will tend to prevent finely tuned comprehensive reform driven by technical experise. As Schambra puts it:
Of course, the "top down" nature of this approach raises subsidiarity concerns. But Realism also suggests that we view it with a critical attitude. During the campaign, President Obama suggests that we could create a Kingdom right here on earth. Realism suggests otherwise.
This doesn't mandate any particular policy approach. As the Popes have frequently said, the Church has no models to propose and God is neither a Democrat nor a Republican. Perhaps Obamacare - or something like it - can be justified in these terms. My modest suggestion is that subsidiarity and Christian Realism are useful heuristics.
Cross posted at Marquette University Law School Faculty Blog.
The point of the paper is that the economic crisis - or really any crisis - presents a danger for the makers of law and policy. They may overreact both in terms of "fighting the last war," i.e., overemphasizing whatever is thought to be the present danger, or in seeing the crisis as an opportunity to remake society, i.e., to usher in a Kingdom on earth.
My argument is that there are two important theological concepts that can at least help us avoid this. The first is the Catholic notion of subsidiarity. i.e., the idea that a higer order should not do what a lower one can do for itself. I qualify that idea by arguing that subsidiarity is not simply a principle of jurisdiction but a recognition of the moral importance of human agency. Law and policy should help people and the associations that they form exercise freedom and creativity. It is, I argue, intertwined with the notion of solidarity, i.e., the imperative of concern for all persons.
This can have implications for both "liberal" and "conservative" positions. If we are to have George W. Bush's Ownership Society, ownership must be more than a theoretical possibility. Social assistance that is conservative must also be compassionate.
Health care reformers ought to remain mindful of the need for innovation and the moral value of individual choice and of human life. Efforts to fight global warming should not forget that much of what has improved the quality of our environment was not developed by centralized command and direction.
The second helpful theological concept is Christian Realism, a broad and sometimes amorphous body of thought associated with the Lutheran theologian Reinhold Niebuhr. I take two things from Niebuhr. The first is the call for Christians (but this could apply to persons of other faiths as well) to engage the world but to do so as they find it and not as they wish to be. The second is to recognize that human beings are sinful and broken and that efforts to, in the words of Bill Buckley, "immanentize the eschaton" are almost certain to fail and likely to bring unforseen danger.
Again, there are lessons for both conservatives and liberals. We ought to have known that efforts to create democracy in countries that had never been democratic would be harder than we expected. This is not to say that the wars in Iraq and Afghanistan were necessarily wrong, but we should have expected the unexpected.
On the other side of the aisle, President Obama claims that Niebuhr is his favorite philospher and he seems to understand the tension in Christian Realism between the call for engagement and the admonition to humility. But, as William Schambra explains in the inaugural issue of the journal National Affairs, Obama also seems to be what Daniel Patrick Moynihan called a "Policy President." He is in the tradition of early twentieth century Progressives who believed that "everything is related to everything" and that, as a consequence,"there are no social interests about which the national government does not have some policy or other."
Just as importantly, the policy approach eschews the notions of divided government and limited powers - as well as the rough and tumble of politics - because it will tend to prevent finely tuned comprehensive reform driven by technical experise. As Schambra puts it:
Echoing Moynihan's understanding of the implications of the policy approach, Obama suggests that tackling only isolated pieces of the problem, or trying to solve only one problem at a time, will merely introduce further distortions into what should be treated as a unified and coordinated system. A comprehensive policy approach will enable us to take maximum advantage of natural- and social-science expertise, displacing expensive or ineffective local practices by spreading system-wide those programs that have proven to be more effective and less expensive, as documented by thorough research and experimentation.
Of course, the "top down" nature of this approach raises subsidiarity concerns. But Realism also suggests that we view it with a critical attitude. During the campaign, President Obama suggests that we could create a Kingdom right here on earth. Realism suggests otherwise.
This doesn't mandate any particular policy approach. As the Popes have frequently said, the Church has no models to propose and God is neither a Democrat nor a Republican. Perhaps Obamacare - or something like it - can be justified in these terms. My modest suggestion is that subsidiarity and Christian Realism are useful heuristics.
Cross posted at Marquette University Law School Faculty Blog.
Saturday, November 21, 2009
How Not to Handle Divorce
While there is obviously a widely reported matter that prompts this post, it's really not about them other than whatever concern we may have for the people involved. No politics here. Please.
I have only ever represented one divorce client, but I get a lot of requests for initial advice on divorce and referrals to a divorce attorney. I don't claim to know a lot about it, but I am absolutely certain that I know one thing - from talking to other lawyers and from the experience that I and my friends and relatives have had on the matter. There should be a strong presumption against fighting over matters to do with the children. No matter how much your ex or what he or she has done to you rankles, the thing that you will forever regret is exacerbating the harm that the fact of divorce (which can't always be avoided) does to your children. Try not to fight over custody or placement. There is, for most of us, no amount of money that will make that OK.
And don't - really don't - make your divorce a public soap opera. This will not help you maintain the ongoing relationship with your your ex-husband or wife that will be necessary to shepherd your children to adulthood. The infidelity of a spouse hurts, but, even if it must end a marriage, the pain of a child whose home is disrupted is more important and demands that Mom and Dad conduct themselves in a way that will minimize it, i.e, that will allow the two of them to act together as parents and will allow their children to honor both mother and father.
I have only ever represented one divorce client, but I get a lot of requests for initial advice on divorce and referrals to a divorce attorney. I don't claim to know a lot about it, but I am absolutely certain that I know one thing - from talking to other lawyers and from the experience that I and my friends and relatives have had on the matter. There should be a strong presumption against fighting over matters to do with the children. No matter how much your ex or what he or she has done to you rankles, the thing that you will forever regret is exacerbating the harm that the fact of divorce (which can't always be avoided) does to your children. Try not to fight over custody or placement. There is, for most of us, no amount of money that will make that OK.
And don't - really don't - make your divorce a public soap opera. This will not help you maintain the ongoing relationship with your your ex-husband or wife that will be necessary to shepherd your children to adulthood. The infidelity of a spouse hurts, but, even if it must end a marriage, the pain of a child whose home is disrupted is more important and demands that Mom and Dad conduct themselves in a way that will minimize it, i.e, that will allow the two of them to act together as parents and will allow their children to honor both mother and father.
Thursday, November 19, 2009
Yet Another Post on Civility
I don't often pull comments to a previous post into a new one, but I feel compelled to do so by a comment posted by my WI-Interest editor, Marc Eisen, a lefty who, while he does many other things, has also been hired by a conservative publication (edited by the dread Charlie Sykes!) and for whom I have come to have a great deal of respect (in part because, in addition to doing the normal writerly scrutiny, he challenges my reasoning). Marc and I are headed for a showdown fueled by a few adult beverages in the near future. I think it will be great fun.
Marc thinks the ad on Reuben Mitchell was brutal and awful and illustrative of a degradation in our political discourse. While I don't think (as some do) that it defines Mike Gableman (about whom I have other sources of information), I don't disagree. But there are some additional things to be said.
The first is the problems presented by this type of ad is not unique or new. Our friends on the left don't want to see the demagoguery in their own messages. Spots accusing George W. Bush of indifference to the racially motivated murder of a man in Texas or suggesting that John McCain was advocating a huge middle class tax increase were despicable. Ads and robocalls sponsored by opponents of the Wisconsin marriage amendment were, by any measure, explicitly designed to mislead. Mike Gableman should not have run that ad, but he is hardly the first candidate to allow his consultants to get the better of him.
Campaigns are a bit like fist fights. Remember that, in the Gableman-Butler race, pro-Butler ads were run by independent organizations suggesting that Gableman was soft on sex predators and portraying him as a clueless, ethically challenged bobblehead.
So if Marc's point is that our political discourse has become degraded, I agree - although I am not sure that this is new. Political slander has a long history.
In the local blogosphere, there is very little engagement. Folks think that the value in a blog is the extent to which it validates and is validated by the like minded. So they take opposing arguments out of context or restate them inaccurately and in bad faith. "Shorter" Esenberg is a way to avoid confronting what Esenberg has to say. Bloggers crow about how silly and stupid and corrupt the "wing-nuts," "teabaggers" or "moonbats" are.
I don't mean to dismiss anyone who has ever had a little fun at the other side's expense. A little political smack is fine and there are certainly folks on both sides of the political spectrum that are deserving of ridicule, but there is a world out there with a full spectrum of colors. To ignore that is to miss something.
There are literally no ethical standards among political consultants who can, with some credibility and justification, claim that they aren't going to play by the Marquis of Queensbury rules while their opponents do not.
Marc wonders if "this corrodes the democratic spirit, makes voters cynical, and serves as a warning shot to citizens to not offer themselves up as candidates for fear their reputations will be destroyed in a lying 30-second commercial?" I think it does. When I was approached to run for public office, I worried about that alot although it is not the reason I decided not to run.
But that brings us to the second problem. I don't trust the state - i.e., the very politicians who offend - to fix it. While I am not prepared to say the the First Amendment leaves no room to sanction false political speech, I tend to think that room ought to be fairly small. It seems likely that the cure will turn out to be worse than the disease.
Marc thinks the ad on Reuben Mitchell was brutal and awful and illustrative of a degradation in our political discourse. While I don't think (as some do) that it defines Mike Gableman (about whom I have other sources of information), I don't disagree. But there are some additional things to be said.
The first is the problems presented by this type of ad is not unique or new. Our friends on the left don't want to see the demagoguery in their own messages. Spots accusing George W. Bush of indifference to the racially motivated murder of a man in Texas or suggesting that John McCain was advocating a huge middle class tax increase were despicable. Ads and robocalls sponsored by opponents of the Wisconsin marriage amendment were, by any measure, explicitly designed to mislead. Mike Gableman should not have run that ad, but he is hardly the first candidate to allow his consultants to get the better of him.
Campaigns are a bit like fist fights. Remember that, in the Gableman-Butler race, pro-Butler ads were run by independent organizations suggesting that Gableman was soft on sex predators and portraying him as a clueless, ethically challenged bobblehead.
So if Marc's point is that our political discourse has become degraded, I agree - although I am not sure that this is new. Political slander has a long history.
In the local blogosphere, there is very little engagement. Folks think that the value in a blog is the extent to which it validates and is validated by the like minded. So they take opposing arguments out of context or restate them inaccurately and in bad faith. "Shorter" Esenberg is a way to avoid confronting what Esenberg has to say. Bloggers crow about how silly and stupid and corrupt the "wing-nuts," "teabaggers" or "moonbats" are.
I don't mean to dismiss anyone who has ever had a little fun at the other side's expense. A little political smack is fine and there are certainly folks on both sides of the political spectrum that are deserving of ridicule, but there is a world out there with a full spectrum of colors. To ignore that is to miss something.
There are literally no ethical standards among political consultants who can, with some credibility and justification, claim that they aren't going to play by the Marquis of Queensbury rules while their opponents do not.
Marc wonders if "this corrodes the democratic spirit, makes voters cynical, and serves as a warning shot to citizens to not offer themselves up as candidates for fear their reputations will be destroyed in a lying 30-second commercial?" I think it does. When I was approached to run for public office, I worried about that alot although it is not the reason I decided not to run.
But that brings us to the second problem. I don't trust the state - i.e., the very politicians who offend - to fix it. While I am not prepared to say the the First Amendment leaves no room to sanction false political speech, I tend to think that room ought to be fairly small. It seems likely that the cure will turn out to be worse than the disease.
Tuesday, November 17, 2009
The State House Comes to Milwaukee
1. Barring some unseen development, it seems highly likely that two Milwaukeeans will square off in the race for Governor. Very few Governors have been from Milwaukee. The last, I believe, was Julius Heil, elected in 1938. And there were few before then.
2. This seems to me like an unusual matchup of two relatively personable and "cool" (in the McLuhan sense of being less obvious and more detached from the fray) candidates. Folks like Doyle, Loftus, Chvala, Garvey and even the garrulous Thompson were much more combative and tempermentally partisan. Going negative will be a challenge for both these guys.
3. It may be that the winner will have to be perceived as "from Milwaukee" but not "of Milwaukee," i.e., not associated with the more general view of Milwaukee as being a ungovernable and unsafe morass. Both candidates will have something to say on this, but, given what I expect will be the salience of fiscal issues, I suspect that Walker has the early advantage.
2. This seems to me like an unusual matchup of two relatively personable and "cool" (in the McLuhan sense of being less obvious and more detached from the fray) candidates. Folks like Doyle, Loftus, Chvala, Garvey and even the garrulous Thompson were much more combative and tempermentally partisan. Going negative will be a challenge for both these guys.
3. It may be that the winner will have to be perceived as "from Milwaukee" but not "of Milwaukee," i.e., not associated with the more general view of Milwaukee as being a ungovernable and unsafe morass. Both candidates will have something to say on this, but, given what I expect will be the salience of fiscal issues, I suspect that Walker has the early advantage.
Lies and the Lying Candidates Who Tell Them*
* It turns out to be Al Franken.
For those of you interested in the legal intricacies, I have a post on the Gableman recommendation up at the Marquette University Faculty Blog. But here at the old political blog, I'm wondering if those who are upset by the recommendation would really be happy with the implications of judicial review of political speech.
Chapter 60 of the Supreme Court Rules applies only to judicial candidates, but it is not inconceivable that legislatures would pass similar laws sanctioning false statements in other types of campaigns. In fact, Wisconsin has a law that makes it unlawful to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election.” That law was used for mischief last fall, although, at least under present interpretation, it does not provide a civil remedy.
At first blush, this may seem admirable. Why should there be a constitutional right to lie? The problem, of course, is that a lie is in the eye of the beholder. Local blogger Jay Bullock, it seems to me, regards many things as "lies" that are either contested questions of fact, matters of opinion or assertions that the speaker believes to be true. Determining whether a statement is false can be difficult. The three judge panel in the Gableman case could not agree on whether the statements at issue in that case were false. Figuring out whether the speaker knew it to be false is even tougher. That Justice Gableman agonized over running the ad before deciding to run it certainly could support an inference that he did not believe it was false.
In the past, I have used the example of Obama's allegation that John McCain's health care plan would result in the biggest middle class tax increase in history. I think that was objectively false. McCain would have eliminated the tax deduction for employer provided health care, but provided a tax credit that would have eliminated the additional tax for all but a handful of people. Was this a knowing lie?
Here's another example. Al Franken and the Democrats are pushing what they call an "anti-rape" provision in a defense bill and accusing Republicans who oppose it of wanting to sweep allegations of rape under the rug. What it actually does is prohibit certain government vendors from entering into contracts with their employees providing for arbitration of certain types of cases including, but not limited to, allegations of sexual assault. But those allegations - because they involve criminal conduct - are probably not subject to an arbitration provision and are certainly subject to prosecution notwithstanding the validity of any arbitration provision. The whole thing is a very cynical attempt to mislead. Should it subject Franken to prosecution?
Perhaps we could develop a taxonomy of lies in which certain statements could be identified that are so clearly and objectively intentionally false that sanctioning them would not be problematic. But the narrower the definition, the easier it will be to avoid. More to the point, litigation then becomes - if it hasn't already - another front in a political campaign; one that continues (and that can be used to hobble a successful candidate) long after the voters have spoken.
For those of you interested in the legal intricacies, I have a post on the Gableman recommendation up at the Marquette University Faculty Blog. But here at the old political blog, I'm wondering if those who are upset by the recommendation would really be happy with the implications of judicial review of political speech.
Chapter 60 of the Supreme Court Rules applies only to judicial candidates, but it is not inconceivable that legislatures would pass similar laws sanctioning false statements in other types of campaigns. In fact, Wisconsin has a law that makes it unlawful to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election.” That law was used for mischief last fall, although, at least under present interpretation, it does not provide a civil remedy.
At first blush, this may seem admirable. Why should there be a constitutional right to lie? The problem, of course, is that a lie is in the eye of the beholder. Local blogger Jay Bullock, it seems to me, regards many things as "lies" that are either contested questions of fact, matters of opinion or assertions that the speaker believes to be true. Determining whether a statement is false can be difficult. The three judge panel in the Gableman case could not agree on whether the statements at issue in that case were false. Figuring out whether the speaker knew it to be false is even tougher. That Justice Gableman agonized over running the ad before deciding to run it certainly could support an inference that he did not believe it was false.
In the past, I have used the example of Obama's allegation that John McCain's health care plan would result in the biggest middle class tax increase in history. I think that was objectively false. McCain would have eliminated the tax deduction for employer provided health care, but provided a tax credit that would have eliminated the additional tax for all but a handful of people. Was this a knowing lie?
Here's another example. Al Franken and the Democrats are pushing what they call an "anti-rape" provision in a defense bill and accusing Republicans who oppose it of wanting to sweep allegations of rape under the rug. What it actually does is prohibit certain government vendors from entering into contracts with their employees providing for arbitration of certain types of cases including, but not limited to, allegations of sexual assault. But those allegations - because they involve criminal conduct - are probably not subject to an arbitration provision and are certainly subject to prosecution notwithstanding the validity of any arbitration provision. The whole thing is a very cynical attempt to mislead. Should it subject Franken to prosecution?
Perhaps we could develop a taxonomy of lies in which certain statements could be identified that are so clearly and objectively intentionally false that sanctioning them would not be problematic. But the narrower the definition, the easier it will be to avoid. More to the point, litigation then becomes - if it hasn't already - another front in a political campaign; one that continues (and that can be used to hobble a successful candidate) long after the voters have spoken.
Monday, November 16, 2009
Shark Returns
I was in DC at the end of last week to attend the National Lawyers Convention of the Federalist Society for Law & Policy Studies. It's always a great meeting with great panels presenting a diversity of views. That's something that folks who view the Federalist Society as the Opus Dei of the legal profession don't understand. (They don't understand Opus Dei either, but that's another matter.)
For example, on a panel discussing the relationship between capital and labor, we heard from two conservatives, Amity Schlaes and Todd Zywicki, But we also heard from Harold Meyerson of the American Prospect and Damon Silvers of the AFL-CIO. This is standard practice at FedSoc events. One of the more interesting discussions was a presentation by Burt Neuborne, a prominent liberal law prof at NYU, of his recent paper advocating a structural reading of the Bill of Rights (to, in effect, read the document in the manner of a poem)and Randy Barnett's thoughtful response.
It's also a great opportunity to draw energy from and connect with national figures and folks with similar interests around the country. I had, for example, the privilege of sitting at dinner with Abigail and Stephen Thernstrom and was able to discuss the possibility of the two of them doing an event at Marquette.
But, because I was there, I wasn't here to blog on the Gableman decision or the decision to try certain Guantanomo detainees in New York or Tom Barrett's decision to run for Governor. Watch this space for more.
For example, on a panel discussing the relationship between capital and labor, we heard from two conservatives, Amity Schlaes and Todd Zywicki, But we also heard from Harold Meyerson of the American Prospect and Damon Silvers of the AFL-CIO. This is standard practice at FedSoc events. One of the more interesting discussions was a presentation by Burt Neuborne, a prominent liberal law prof at NYU, of his recent paper advocating a structural reading of the Bill of Rights (to, in effect, read the document in the manner of a poem)and Randy Barnett's thoughtful response.
It's also a great opportunity to draw energy from and connect with national figures and folks with similar interests around the country. I had, for example, the privilege of sitting at dinner with Abigail and Stephen Thernstrom and was able to discuss the possibility of the two of them doing an event at Marquette.
But, because I was there, I wasn't here to blog on the Gableman decision or the decision to try certain Guantanomo detainees in New York or Tom Barrett's decision to run for Governor. Watch this space for more.
Tuesday, November 10, 2009
Hatred in the Name of "Compassion"
I am sure - or at least I suppose - the Chris Liebenthal is a decent enough guy in real life. Loves his family. Is kind to his friends. Doesn't kick puppies.
What is it, then, in politics that prompts this kind of inhumane nastiness. If the point is that Sarah Palin, in asking a normal human question, "why us" is supposed to have demonstrated that she is unaware that her child's birth was "caused" by her age, his comment is both a stretch and, in and of itself, reflects ignorance. Although the likelihood of a Down's child increases dramatically with age, it is still the case that less than 3% of live births at the maternal age of 44 are of babies with Downs.* She might, in a moment of anxiety about what will follow, wonder why it had to be her and her husband who drew the short straw.
And, of course, he misses the point of the story which is her husband's response. There is, he said, no reason that it could not be us and, in the end, we need to accept that. And that's what they did. The point is not that they cannot accept the consequences of what Liebenthal calls their "irresponsible actions (which, as far as I can tell, was marital intimacy), but that they should - and did - do precisely that.
But, beyond that, what is it about political disagreement that causes people to assume they have license to treat others with disrespect and hatred? Would Chris Liebenthal say that to a woman - any woman - that he knows? Tell her she is stupid because has a normal reaction to a difficult cirtcumstance? I doubt it and, if I am wrong, he ought to get out of the social work business.
I can anticipate the excuses. Sarah Palin supports policies that Chris Lieberthal thinks are bad so he can say whatever he wants about her. Certainly reasonable people can not disagree about whatever Chris Liebenthal happens to think is right.
"There are conservatives who do it too." I'm sure there are, but I don't (at least I try hard not to) and I don't see much of it among the writers and bloggers that I read. But the fact that some conservatives treat liberals in the same way that Chris Liebenthal thinks he can treat Sarah Palin only underscores my question. It takes an enormous amount of intellectual arrogance to think that those you disagree with are idiots or immoral. It poisons the public debate and ... more than that ...
... it's boring.
*His suggestion that a Down's child could be the result of the youthful marijauna use that Sarah Palin is meritless. Yeah, marijuana - particularly if used during pregancy (but I doubt that even the Governor of Alaska was getting baked in the state house) - is associated with some birth defects, but that doesn't "explain" what happened or even make it likely. If it did, my whole generation would be raising Downs kids.
What is it, then, in politics that prompts this kind of inhumane nastiness. If the point is that Sarah Palin, in asking a normal human question, "why us" is supposed to have demonstrated that she is unaware that her child's birth was "caused" by her age, his comment is both a stretch and, in and of itself, reflects ignorance. Although the likelihood of a Down's child increases dramatically with age, it is still the case that less than 3% of live births at the maternal age of 44 are of babies with Downs.* She might, in a moment of anxiety about what will follow, wonder why it had to be her and her husband who drew the short straw.
And, of course, he misses the point of the story which is her husband's response. There is, he said, no reason that it could not be us and, in the end, we need to accept that. And that's what they did. The point is not that they cannot accept the consequences of what Liebenthal calls their "irresponsible actions (which, as far as I can tell, was marital intimacy), but that they should - and did - do precisely that.
But, beyond that, what is it about political disagreement that causes people to assume they have license to treat others with disrespect and hatred? Would Chris Liebenthal say that to a woman - any woman - that he knows? Tell her she is stupid because has a normal reaction to a difficult cirtcumstance? I doubt it and, if I am wrong, he ought to get out of the social work business.
I can anticipate the excuses. Sarah Palin supports policies that Chris Lieberthal thinks are bad so he can say whatever he wants about her. Certainly reasonable people can not disagree about whatever Chris Liebenthal happens to think is right.
"There are conservatives who do it too." I'm sure there are, but I don't (at least I try hard not to) and I don't see much of it among the writers and bloggers that I read. But the fact that some conservatives treat liberals in the same way that Chris Liebenthal thinks he can treat Sarah Palin only underscores my question. It takes an enormous amount of intellectual arrogance to think that those you disagree with are idiots or immoral. It poisons the public debate and ... more than that ...
... it's boring.
*His suggestion that a Down's child could be the result of the youthful marijauna use that Sarah Palin is meritless. Yeah, marijuana - particularly if used during pregancy (but I doubt that even the Governor of Alaska was getting baked in the state house) - is associated with some birth defects, but that doesn't "explain" what happened or even make it likely. If it did, my whole generation would be raising Downs kids.
Monday, November 09, 2009
Public Financing of Supreme Court Races: The Legislature Whacks A Mole
In a forthcoming article in the Harvard Journal of Law & Public Policy, I argue ( the metaphor is not original with me) that campaign finance reform is like a game of Whac-A-Mole™ in which the moles always win.
The state legislature has passed public financing for state Supreme Court elections. I have no problem with public financing in general but this bill is likely to enhance what most people disliked about our recent hotly contested Supreme Court races. Most of the money in the two hotly contested races was spent by independent groups. For a variety of reasons, those ads tend to be negative which, in a judicial race, means calling your opponent "pro-criminal" or displaying photos of he sex predators that he did not send away for a long enough time.
The bill doesn't restrict independent expenditures (that would be constitutionally difficult) although it does try to counter their impact by providing increased public financing to candidates who face independent expenditures calling for the defeat of that candidate or the election of her opponent when, in the aggregate, those expenditures exceed 120% of the public financing benefit, i.e., $ 300,000 for the general election. These "matching" public funds are capped at three times the public financing benefit, e.g, $900,000 for the general.
I argue in the Harvard piece that additional public funding provided in response to independent issue advocacy is probably unconstitutional. The problem is that it penalizes the exercise of a constitutional right by providing additional public funding in response to speech in a way that can be expected to deter that speech. The Supreme Court has used similar reasoning to strike down a federal law that raised the contribution limits of candidates facing self financing candidates who have spent more than a specified amount. The increased limits were seen as an unconstitutional burden on the self financing candidate's speech rights.
This bill tries to get around that problem by providing additional funding only when the independent expenditures fund express advocacy of the election or defeat of a clearly identified candidate. That shows that someone was thinking.
But I don't think it works. The problem is this: The Supreme Court has upheld regulation of express advocacy (i.e., calling for the election or defeat of a candidate) because of the state's interest in preventing actual or apparent corruption. Thus Wisconsin could pass a law that required express advocacy - at least during election season - to be funded with regulated contributions.
But Wisconsin hasn't done that, suggesting that it does not see express advocacy funded with "soft money" as presenting a threat of corruption. If that's so, then it's interest in providing additional public funding in response to independent express advocacy is - presumably - to level the playing field.
The current Supreme Court has not been hospitable to restrictions on speech justified by a desire to level the playing field. Thus, the matching funds provision may well be unconstitutional. (The matter is further complicated by the fact that there is a case currently pending before the Court that may substantially modify doctrine on these questions - perhaps eliminating the distinction between express and issue advocacy by independent parties.)
Even if the provision providing for enhanced public financing in response to independent expenditures is upheld, it is easily avoided. The independents will simply run issue ads criticizing the candidate they don't like. That's what most of them do already.
So this is what we will have accomplished. By making it harder for the candidates to raise their own money (the bill reduces the maximum contribution from $10,000 to $1000), the voice of the independents will be enhanced. By deterring express advocacy by the independents (assuming the enhanced funding provisions are upheld), we will encourage "issue advocacy" which, in practice, means attack ads.
Virtually all efforts at campaign finance "reform" are swamped by their unintended consequences. Money, like water, seeks its own level.
But, in fairness, although the bill will do nothing about independent expenditures, it's not entirely meaningless. The current public financing amounts is so low that no viable candidate would choose to accept it. Although $300,000 doesn't buy much in a state wide race, there will be candidates for judicial office who can't raise that amount of money. For example, Randy Koschnick raised only a bit over $100,000 in his challenge to Chief Justice Shirley Abrahamson. She spent around $ 1.2 million. Even if the bills provision for increased public funding for candidates facing a nonpublicly financed candidate who spends in excess of the public financing level (something I also believe is likely), the basic public financing benefit of $300,000would have made him a much more credible candidate.
But it probably would not have been enough. The last two incumbents to run for reelection raised well in excess of $300,000. Louis Butler raised almost $800,000 and, as noted above, the Chief Justice raised about $ 1.2 million. Moreover, had Koschnick had even $300,000 to spend, I suspect that independents supporting the Chief Justice would have spent more heavily. (As it was they did not need to.) Koschnick had very little independent support, although perhaps he would have had more had he been seen as a more viable candidate.
So, even while the public financing scheme may have helped a weak candidate like Koschnick, the limitations on what a candidate can raise probably enhances the advantage of incumbents who are going to be able to raise money from more people because they are incumbents (and some lawyers are reluctant to tell a judge's campaign committee "no.") But favoring incumbents has long been a consequence, if not the intent, of campaign finance reform.
Of course, it will be harder for candidates to raise amounts in excess of the amount provided by public financing because of the reduction in the maximum campaign contribution in supreme court races from $10,000 to $1000. To the extent that this results in public financed campaigns capped at $300,000, the effect of the bill will be to enhance the role and impact of the independents.
The moles win again.
Cross posted at Marquette University Law School Faculty Blog.
The state legislature has passed public financing for state Supreme Court elections. I have no problem with public financing in general but this bill is likely to enhance what most people disliked about our recent hotly contested Supreme Court races. Most of the money in the two hotly contested races was spent by independent groups. For a variety of reasons, those ads tend to be negative which, in a judicial race, means calling your opponent "pro-criminal" or displaying photos of he sex predators that he did not send away for a long enough time.
The bill doesn't restrict independent expenditures (that would be constitutionally difficult) although it does try to counter their impact by providing increased public financing to candidates who face independent expenditures calling for the defeat of that candidate or the election of her opponent when, in the aggregate, those expenditures exceed 120% of the public financing benefit, i.e., $ 300,000 for the general election. These "matching" public funds are capped at three times the public financing benefit, e.g, $900,000 for the general.
I argue in the Harvard piece that additional public funding provided in response to independent issue advocacy is probably unconstitutional. The problem is that it penalizes the exercise of a constitutional right by providing additional public funding in response to speech in a way that can be expected to deter that speech. The Supreme Court has used similar reasoning to strike down a federal law that raised the contribution limits of candidates facing self financing candidates who have spent more than a specified amount. The increased limits were seen as an unconstitutional burden on the self financing candidate's speech rights.
This bill tries to get around that problem by providing additional funding only when the independent expenditures fund express advocacy of the election or defeat of a clearly identified candidate. That shows that someone was thinking.
But I don't think it works. The problem is this: The Supreme Court has upheld regulation of express advocacy (i.e., calling for the election or defeat of a candidate) because of the state's interest in preventing actual or apparent corruption. Thus Wisconsin could pass a law that required express advocacy - at least during election season - to be funded with regulated contributions.
But Wisconsin hasn't done that, suggesting that it does not see express advocacy funded with "soft money" as presenting a threat of corruption. If that's so, then it's interest in providing additional public funding in response to independent express advocacy is - presumably - to level the playing field.
The current Supreme Court has not been hospitable to restrictions on speech justified by a desire to level the playing field. Thus, the matching funds provision may well be unconstitutional. (The matter is further complicated by the fact that there is a case currently pending before the Court that may substantially modify doctrine on these questions - perhaps eliminating the distinction between express and issue advocacy by independent parties.)
Even if the provision providing for enhanced public financing in response to independent expenditures is upheld, it is easily avoided. The independents will simply run issue ads criticizing the candidate they don't like. That's what most of them do already.
So this is what we will have accomplished. By making it harder for the candidates to raise their own money (the bill reduces the maximum contribution from $10,000 to $1000), the voice of the independents will be enhanced. By deterring express advocacy by the independents (assuming the enhanced funding provisions are upheld), we will encourage "issue advocacy" which, in practice, means attack ads.
Virtually all efforts at campaign finance "reform" are swamped by their unintended consequences. Money, like water, seeks its own level.
But, in fairness, although the bill will do nothing about independent expenditures, it's not entirely meaningless. The current public financing amounts is so low that no viable candidate would choose to accept it. Although $300,000 doesn't buy much in a state wide race, there will be candidates for judicial office who can't raise that amount of money. For example, Randy Koschnick raised only a bit over $100,000 in his challenge to Chief Justice Shirley Abrahamson. She spent around $ 1.2 million. Even if the bills provision for increased public funding for candidates facing a nonpublicly financed candidate who spends in excess of the public financing level (something I also believe is likely), the basic public financing benefit of $300,000would have made him a much more credible candidate.
But it probably would not have been enough. The last two incumbents to run for reelection raised well in excess of $300,000. Louis Butler raised almost $800,000 and, as noted above, the Chief Justice raised about $ 1.2 million. Moreover, had Koschnick had even $300,000 to spend, I suspect that independents supporting the Chief Justice would have spent more heavily. (As it was they did not need to.) Koschnick had very little independent support, although perhaps he would have had more had he been seen as a more viable candidate.
So, even while the public financing scheme may have helped a weak candidate like Koschnick, the limitations on what a candidate can raise probably enhances the advantage of incumbents who are going to be able to raise money from more people because they are incumbents (and some lawyers are reluctant to tell a judge's campaign committee "no.") But favoring incumbents has long been a consequence, if not the intent, of campaign finance reform.
Of course, it will be harder for candidates to raise amounts in excess of the amount provided by public financing because of the reduction in the maximum campaign contribution in supreme court races from $10,000 to $1000. To the extent that this results in public financed campaigns capped at $300,000, the effect of the bill will be to enhance the role and impact of the independents.
The moles win again.
Cross posted at Marquette University Law School Faculty Blog.
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