Following my posts about the Virtual Army Experience at Summerfest and "being serious about Iraq, Jay Bullock posts this. He wonders if he is being unfair to me. That's not for me to say, but he is certainly mischaracterizing my position. Perhaps I did not make myself clear. If so (but I don't think so), I will now.
I did not say that people who opposed the Iraq war are not serious or unthinking. As Jay acknowledges, I wrote that the war was a very difficult question. By definition then, I think reasonable and serious and thinking people could have opposed it. (I wasn't in the pundit game back then so I did not publicly say anything and, honestly, I am not sure what I would have said. I think I was very slightly in favor of going ahead but was mostly glad that it wasn't my call.)
My second post ("Being serious ...) was prompted by commenters who repeated the slander that "Bush lied and people died." If you believe that, I do think that you are either misinformed or hopelessly partisan; even not serious.
Jay suggests that I regard people who "oppose war" (by which, I take it, he means pacifists) as "unthinking, uncaring, unfeeling."
Actually, I don't. I have a great deal of respect for clear-eyed pacifists. I'm not saying that only Christians can be pacifists, but there is a quite honorable tradition of pacifism among Christians with a reasonable amount of support in the teachings of Jesus. What bothers me is those who don't want to acknowledge that this pacifism is very likely to lead to earthly slaughter. If you truly want to be a pacifist, you have to accept that and argue that there is a greater good to be served. There are some rather noble historical examples of leaders (Ghandi, King) who understood this. Although, having said that, this type of self effacement may not turn out so well if you aren't up against power that has bought into - call them what you want - Judeo-Christian or western liberal or enlightenment values. Had Ghandi faced Stalin or Hitler rather than the U.K and USA, both would be probably be tragic historical footnotes. It's tought to heighten the contradictions if the society doesn't think that there are any.
Jay goes on to suggest that, if you thought it was a close call, you should be opposed now. But that doesn't follow. What we should do in Iraq today is not controlled by a posthoc reasssessment of whether we should have gone in the first place. I was uncertain about the war ex ante. I am pretty sure that withdrawal now would be a disaster.
Thursday, July 10, 2008
Courting political war of Epic proportions
This will probably be my last post on Epic and WMC. But there are two more things I want to say. One is ironic and the other is, I hope, instructive.
Let's see what we can learn first. Bloggers and columnists have fought over whether Epic's announcement that it would try not to use vendors who support WMC is a secondary boycott. I tried to explain why I think that's a useful description and anticipated that those who, for some reason, hate the term might want to redefine the dispute as one between Epic and WMC supporters. To his credit, Paul Soglin takes up the point here.
The problem is that this deprives the term secondary boycott of any meaning. You can define any dispute that way. You can say, for example, that your dispute is with those who enable a stingy employer or a despised country like Israel by doing business with it or with those foster the bad policies of the Republicans or Democrats by being a member and participating in their governance.
But to think that solves the problem is formalistic and glosses over what may be problematic about a "secondary boycott" in the sense that I and other Epic critics have used it.
The point here is that Epic is saying that it won't do business with people for a reason that is extraneous to what normally would govern the relationship between them. It doesn't have a problem with J.P. Cullen as a builder. It has a problem with the politics that J.P. Cullen execs support.
Soglin argues that WMC "is" its board members, i.e., they make policy. The problem is that the same can be said of any organization with a board or large contributors. Under Soglin's view, folks who are upset with Summerfest for shutting down the Army's VAE should boycott Rite Hite and other companies with execs on the Summerfest board.
There is, as I explore below, a distinction between a corporation or partnership and its managers or partners.* But, more fundamentally,even if you want to view WMC as indistinct from it members, Epic proposes to punish Cullen and others for their political stance. People may have the right to do so, but do we really want to encourage a world in which many of our relationships are politicized?
Maybe Mayor Soglin thinks so. His contemporaries used to say that the personal is the political. Perhaps the commercial is as well. In response to an earlier post here, one thoughtful commentator (Amy, Esq.)made just that argument.
But I am not persuaded for a variety of reasons, one being that it will tend to drive people out of public life. Why be upfront about your beliefs or participate in public debate or try to promote what are, by your lights, good policies if it's going to hurt business? The other is it will tend to magnify our political differences and result in a political war of all against all.
Soglin think that for Epic to fail to act in this way would be unilateral disarmament:
Halliburton owns the vice presidency. A manufacturer threatens to leave the state if it does not get tax breaks. And WMC lobbies like hell at your and my expense.
That coercive power can be used for good or evil. Listening to Schweber, it sounds like unilateral disarmamanent is the solution. Businesses that are good should not use what power they have.
Putting aside the reference to businesses that "are good" (which I think gives away the game that this is about anything but politics), I am unaware that WMC has called on a politically based boycott of anybody. If they have, they should not have. Paul's "businesses that are good" can participate in the political process. They can set up PACs, give to the Greater Wisconsin Committee and, as he puts it, "lobby like hell." They can argue that, without light rail or higher taxes and all the good things that they supposedly bring, they may need to relocate to Vermont.
And, if they do get involved in this way, I don't propose that they ought to be shunned. Heck, I'd buy lots of Ben and Jerry's if my doc and the Reddess would let me.
And now for the irony.
Let's say that I don't want to politicize all my relationships but I think that the tone of the Supreme Court race was just beyond the pale. I don't want another race where organizations with an axe to grind bundle money from unknown sources and run ads which unfairly portray the role and actions of a judge.
Maybe - if I really believe this - I'll take the extraordinary step of boycotting those who have, in Epic's words, "supported with current management" those who ran these ads.
But one of the companies that I have to boycott may well turn out to be Epic Systems Corporation. As Lance Burri and the Cap Times point out, Epic CEO Judith Faulkner gave a large amount of money to One Wisconsin Now Action. We know that One Wisconsin Now was involved in the Supreme Court race - pushing a variety of fairly dubious attacks on Gableman that were echoed in ads run by the Greater Wisconsin Committee. GWC's ads were just as bad - if not worse - than those run by WMC. Did Faulkner give to such groups?
Of course we don't know. No one does.
So as Mayor Soglin says - let's pierce the veil. Given that Epic claims that its decision was about ethics and not politics, shouldn't it confirm that none of its current management supports - or has supported - the Greater Wisconsin Committe, One Wisconsin Now or any of the other "shadowy" groups that ran anti-Gableman ads? Will it "try" not to do business with those who have? I mean, after all, it's all about ethics and not politics.
*And now for some bonus irony. Paul Soglin says that WMC is its board members. He says, for example, that "Quarles & Brady is WMC" because one of its partners serve on the board.
But, at least at one point in its existence, on Soglin's view, Quarles & Brady was also the Greater Wisconsin Committee because my old friend David Cross was on its board and even served on its President. Dave has been with Quarles for 27 years. I don't know if he still serves on the GWC board, but you get the point. Quarles & Brady is not the political actions of its partners. If it is, then it apparently has multiple personality disorder.
Let's see what we can learn first. Bloggers and columnists have fought over whether Epic's announcement that it would try not to use vendors who support WMC is a secondary boycott. I tried to explain why I think that's a useful description and anticipated that those who, for some reason, hate the term might want to redefine the dispute as one between Epic and WMC supporters. To his credit, Paul Soglin takes up the point here.
The problem is that this deprives the term secondary boycott of any meaning. You can define any dispute that way. You can say, for example, that your dispute is with those who enable a stingy employer or a despised country like Israel by doing business with it or with those foster the bad policies of the Republicans or Democrats by being a member and participating in their governance.
But to think that solves the problem is formalistic and glosses over what may be problematic about a "secondary boycott" in the sense that I and other Epic critics have used it.
The point here is that Epic is saying that it won't do business with people for a reason that is extraneous to what normally would govern the relationship between them. It doesn't have a problem with J.P. Cullen as a builder. It has a problem with the politics that J.P. Cullen execs support.
Soglin argues that WMC "is" its board members, i.e., they make policy. The problem is that the same can be said of any organization with a board or large contributors. Under Soglin's view, folks who are upset with Summerfest for shutting down the Army's VAE should boycott Rite Hite and other companies with execs on the Summerfest board.
There is, as I explore below, a distinction between a corporation or partnership and its managers or partners.* But, more fundamentally,even if you want to view WMC as indistinct from it members, Epic proposes to punish Cullen and others for their political stance. People may have the right to do so, but do we really want to encourage a world in which many of our relationships are politicized?
Maybe Mayor Soglin thinks so. His contemporaries used to say that the personal is the political. Perhaps the commercial is as well. In response to an earlier post here, one thoughtful commentator (Amy, Esq.)made just that argument.
But I am not persuaded for a variety of reasons, one being that it will tend to drive people out of public life. Why be upfront about your beliefs or participate in public debate or try to promote what are, by your lights, good policies if it's going to hurt business? The other is it will tend to magnify our political differences and result in a political war of all against all.
Soglin think that for Epic to fail to act in this way would be unilateral disarmament:
Halliburton owns the vice presidency. A manufacturer threatens to leave the state if it does not get tax breaks. And WMC lobbies like hell at your and my expense.
That coercive power can be used for good or evil. Listening to Schweber, it sounds like unilateral disarmamanent is the solution. Businesses that are good should not use what power they have.
Putting aside the reference to businesses that "are good" (which I think gives away the game that this is about anything but politics), I am unaware that WMC has called on a politically based boycott of anybody. If they have, they should not have. Paul's "businesses that are good" can participate in the political process. They can set up PACs, give to the Greater Wisconsin Committee and, as he puts it, "lobby like hell." They can argue that, without light rail or higher taxes and all the good things that they supposedly bring, they may need to relocate to Vermont.
And, if they do get involved in this way, I don't propose that they ought to be shunned. Heck, I'd buy lots of Ben and Jerry's if my doc and the Reddess would let me.
And now for the irony.
Let's say that I don't want to politicize all my relationships but I think that the tone of the Supreme Court race was just beyond the pale. I don't want another race where organizations with an axe to grind bundle money from unknown sources and run ads which unfairly portray the role and actions of a judge.
Maybe - if I really believe this - I'll take the extraordinary step of boycotting those who have, in Epic's words, "supported with current management" those who ran these ads.
But one of the companies that I have to boycott may well turn out to be Epic Systems Corporation. As Lance Burri and the Cap Times point out, Epic CEO Judith Faulkner gave a large amount of money to One Wisconsin Now Action. We know that One Wisconsin Now was involved in the Supreme Court race - pushing a variety of fairly dubious attacks on Gableman that were echoed in ads run by the Greater Wisconsin Committee. GWC's ads were just as bad - if not worse - than those run by WMC. Did Faulkner give to such groups?
Of course we don't know. No one does.
So as Mayor Soglin says - let's pierce the veil. Given that Epic claims that its decision was about ethics and not politics, shouldn't it confirm that none of its current management supports - or has supported - the Greater Wisconsin Committe, One Wisconsin Now or any of the other "shadowy" groups that ran anti-Gableman ads? Will it "try" not to do business with those who have? I mean, after all, it's all about ethics and not politics.
*And now for some bonus irony. Paul Soglin says that WMC is its board members. He says, for example, that "Quarles & Brady is WMC" because one of its partners serve on the board.
But, at least at one point in its existence, on Soglin's view, Quarles & Brady was also the Greater Wisconsin Committee because my old friend David Cross was on its board and even served on its President. Dave has been with Quarles for 27 years. I don't know if he still serves on the GWC board, but you get the point. Quarles & Brady is not the political actions of its partners. If it is, then it apparently has multiple personality disorder.
Wednesday, July 09, 2008
Shining star for you to see what your life can truly be
Responding to my post on his finding political validation at an Earth, Wind & Fire concert, Mike Plaisted wants to know what I find "so funny about peace, love and understanding."
Nothing. I am strongly in favor of all three. But so is every conservative I know - even the dread Charlie Sykes who I have yet to hear, as Mike claims, give a lecture about "racism being understandable and black people getting what they deserve." To the contrary, what underlies his concern - and mine - about street violence is a strong conviction that black people - who are overwhelmingly its victims - don't "deserve it."
In the comments to his initial post on this, Mike had the following to say to me:
Actually, it would have done you all good, just as observers, to see a positive interracial event. It puts the lie to so much that you all hold dear about the "dysfunctional" black community and the impossibility of racial progress and harmony. And yet, these sentiments are scoffed at by the right as naive and worse.
Well, there goes Mike down Rodeo with a shot gun. But I hardly need him to show me "positive interracial events." I've been to quite a few. I attend one most every Sunday at St. Paul's downtown. Heck, if we want to speak strictly, my family gatherings are "positive interracial events" (well, at least most are positive) given that I have a black brother-in-law and nephew and an hispanic sister-in-law. (I used to have an asian sister-in-law too, but they got divorced. Not so positive.)Believe it or not, I've even got African American kids in my classes and I can't help but notice that are decidedly not dysfunctional. They all work hard. They all pass. Some of them even get "A"s.
Why he thinks that I in particular and conservatives in general think racial harmony and progress is impossible is beyond me. While it is certainly true that many conservatives oppose "strong" forms of affirmative action and the expansion of traditional social welfare programs, that is a disagreement about means rather than ends. While many believe that the failure to address cultural dysfunction in certain
parts of the black community is, however well intentioned, a cruel form of tolerance, so do lots of black leaders.
There is nothing funny about peace, love and understanding. But I think it includes recognizing that people who disagree with you are not morally retrograde wing-nuts "without souls."
Nothing. I am strongly in favor of all three. But so is every conservative I know - even the dread Charlie Sykes who I have yet to hear, as Mike claims, give a lecture about "racism being understandable and black people getting what they deserve." To the contrary, what underlies his concern - and mine - about street violence is a strong conviction that black people - who are overwhelmingly its victims - don't "deserve it."
In the comments to his initial post on this, Mike had the following to say to me:
Actually, it would have done you all good, just as observers, to see a positive interracial event. It puts the lie to so much that you all hold dear about the "dysfunctional" black community and the impossibility of racial progress and harmony. And yet, these sentiments are scoffed at by the right as naive and worse.
Well, there goes Mike down Rodeo with a shot gun. But I hardly need him to show me "positive interracial events." I've been to quite a few. I attend one most every Sunday at St. Paul's downtown. Heck, if we want to speak strictly, my family gatherings are "positive interracial events" (well, at least most are positive) given that I have a black brother-in-law and nephew and an hispanic sister-in-law. (I used to have an asian sister-in-law too, but they got divorced. Not so positive.)Believe it or not, I've even got African American kids in my classes and I can't help but notice that are decidedly not dysfunctional. They all work hard. They all pass. Some of them even get "A"s.
Why he thinks that I in particular and conservatives in general think racial harmony and progress is impossible is beyond me. While it is certainly true that many conservatives oppose "strong" forms of affirmative action and the expansion of traditional social welfare programs, that is a disagreement about means rather than ends. While many believe that the failure to address cultural dysfunction in certain
parts of the black community is, however well intentioned, a cruel form of tolerance, so do lots of black leaders.
There is nothing funny about peace, love and understanding. But I think it includes recognizing that people who disagree with you are not morally retrograde wing-nuts "without souls."
No, actually, secondary boycott is a pretty good name for it
Paul Soglin thinks that he has embarrassed UW political science prof Howard Schweber by demonstrating that the term "secondary boycott" is "an important legal term that has a very specific meaning." Professor Schweber, who is also a lawyer and does public law at Madison, should never ever ever have used it to refer to Epic's stated intent to refuse to do business with vendors that support WMC.
I think Professor Schweber can hold his head up. The term secondary boycott is used in labor law to refer to a union that attempts to persuade others not to do business with an employer that it is, for example, striking. It is illegal (although the UFW was able to urge the boycott grapes and lettuce at grocery stores because agricultural workers aren't covered by the National Labor Relations Act.)
But that's not the only sense in which the term is used, either in the law or popular discourse. For example, this statute refers to the Arab secondary boycott of Israel, generally understood to be the refusal to do deal with companies that do business with Israel.
The point is that someone (say Epic) involved in a dispute with someone else (call them WMC) refuses - or calls on others to refuse - to patronize a third party (how about J.P.Cullen?) who does business with or has some other relationship with the target.
Professor Schweber did not claim that Epic was engaged in a secondary boycott that is prohibited by law. Although Soglin links to me and suggests I picked up the term from Schweber (I didn't), I took care to point out that Epic is, as far as I know, within its rights.
But it seems perfectly reasonable to call what Epic proposes to do a secondary boycott in the common - as opposed to technical - parlance. The direction of the boycott against a party once removed from the dispute is what distinguishes it from the Boston Tea Party (a bit of a complicated example - was the dispute with the East India Company or the Parliament that granted it special privilege?) or the Montgomery bus boycott.
I also tried to explain why I think the secondary nature of Epic's proposed blacklist is important. Refusing to do business with those who support others who do political things that we don't like threatens to politicize lots of our daily relationships. That is why I said that it stresses the social fabric. It escalates our political divisions. If widely adopted, it would imply that, before I do business with you, I need to know what you do in a variety of areas of your life that have nothing to do with the proposed transaction between us. Then I can decide if you are worthy of my patronage. This is why I said that, while people can do this type of thing, they mostly shouldn't.
Now, if Mayor Soglin really wanted to debate this as opposed to reiterating talking points (he does stay on message),he might argue that the boycott is not secondary because Epic had a dispute directly with Cullen, i.e, it did not like the fact that it supported WMC. But that strips the term of meaning. You can always recharacterize the primary dispute as being about supporting or doing business with the target entity. That leaves us right back in a world where the commercial is the political. J.P. Cullen does not become indistinguishable from WMC simply because it supports it or because a Cullen exec sits on the WMC board.
There is, in any event, no evidence that Cullen contributed to the ads that are supposed to be the basis for Epic's dissatisfaction with WMC.
Update:Professor Schweber does a pretty good job of elaborating on this here.
I think Professor Schweber can hold his head up. The term secondary boycott is used in labor law to refer to a union that attempts to persuade others not to do business with an employer that it is, for example, striking. It is illegal (although the UFW was able to urge the boycott grapes and lettuce at grocery stores because agricultural workers aren't covered by the National Labor Relations Act.)
But that's not the only sense in which the term is used, either in the law or popular discourse. For example, this statute refers to the Arab secondary boycott of Israel, generally understood to be the refusal to do deal with companies that do business with Israel.
The point is that someone (say Epic) involved in a dispute with someone else (call them WMC) refuses - or calls on others to refuse - to patronize a third party (how about J.P.Cullen?) who does business with or has some other relationship with the target.
Professor Schweber did not claim that Epic was engaged in a secondary boycott that is prohibited by law. Although Soglin links to me and suggests I picked up the term from Schweber (I didn't), I took care to point out that Epic is, as far as I know, within its rights.
But it seems perfectly reasonable to call what Epic proposes to do a secondary boycott in the common - as opposed to technical - parlance. The direction of the boycott against a party once removed from the dispute is what distinguishes it from the Boston Tea Party (a bit of a complicated example - was the dispute with the East India Company or the Parliament that granted it special privilege?) or the Montgomery bus boycott.
I also tried to explain why I think the secondary nature of Epic's proposed blacklist is important. Refusing to do business with those who support others who do political things that we don't like threatens to politicize lots of our daily relationships. That is why I said that it stresses the social fabric. It escalates our political divisions. If widely adopted, it would imply that, before I do business with you, I need to know what you do in a variety of areas of your life that have nothing to do with the proposed transaction between us. Then I can decide if you are worthy of my patronage. This is why I said that, while people can do this type of thing, they mostly shouldn't.
Now, if Mayor Soglin really wanted to debate this as opposed to reiterating talking points (he does stay on message),he might argue that the boycott is not secondary because Epic had a dispute directly with Cullen, i.e, it did not like the fact that it supported WMC. But that strips the term of meaning. You can always recharacterize the primary dispute as being about supporting or doing business with the target entity. That leaves us right back in a world where the commercial is the political. J.P. Cullen does not become indistinguishable from WMC simply because it supports it or because a Cullen exec sits on the WMC board.
There is, in any event, no evidence that Cullen contributed to the ads that are supposed to be the basis for Epic's dissatisfaction with WMC.
Update:Professor Schweber does a pretty good job of elaborating on this here.
Tuesday, July 08, 2008
Some folks want to be like an ostrich ...
And because I love you
I'll give it one more try
To show my rainbow race
It's too soon to die- Peter Seeger
I blogged yesterday on the smuggery that can blind self-styled progressives. (Conservatives are subject to the same - rather human - malady.) But this struck me breathtakingly vainglorious.
Mike Plaisted went to the Earth Wind & Fire concert, you see, and danced with black people who didn't mug him. He seems rather proud of this and conservatives are supposed to be upset:
The gloom-and-doom radio and blog wing-nuts who celebrate every inner city tragedy and interracial dust-up with sanctimonious hand-wringing and calls for change are going to have a hard time dealing with what happened at Summerfest last night.
It was a gathering of the tribes - a "night of unity and love put the lie to so much of the manipulative right-wing world-that-isn’t." I guess that not one of the "brothers and sisters" would settle for anything less than a 39.6 marginal tax rate or single payer health care. Who would have known that funk makes you support unrestricted abortion and racial quotas?
If there were not (and he is sure there could not have been) any nasty conservatives in the crowd, it's OK because the Beautiful People (did you know they are friends of Mike?) don't need those wing-nuts and Rethuglicans:
Let ‘em. They missed it and who needs them anyway. Those of us who believe in the vibrancy of diversity will keep moving forward, leaving the professional haters in the dust of their own pathetic divisive agenda.
Dude, it was a concert.
But maybe it's a teachable moment. One of the reasons that people wring their hands at violent crime is that real people - perhaps some of those brothers and sisters who enjoyed "Shining Star" with you last night - are held hostage by it. Nor are we surprised that blacks and whites can experience a public event together (it happens at my church every Sunday) because we don't believe that there is a virulent racism underlying - well - everything. That's your schtick.
I am glad that Brother Plaisted had a good time and, yes, events like this can be uplifting and instructive. But I am not sure that the takeaway from an Earth Wind & Fire concert ought to be a sanctimony that makes George Clooney seem self-effacing.
Mike complains of a world "where we get so isolated from each other and some of us imagine we are against each other, when we really aren’t."
Exactly so, but, Mike, maybe you want to sit down and reread that line - again and again - until you get it.
I'll give it one more try
To show my rainbow race
It's too soon to die- Peter Seeger
I blogged yesterday on the smuggery that can blind self-styled progressives. (Conservatives are subject to the same - rather human - malady.) But this struck me breathtakingly vainglorious.
Mike Plaisted went to the Earth Wind & Fire concert, you see, and danced with black people who didn't mug him. He seems rather proud of this and conservatives are supposed to be upset:
The gloom-and-doom radio and blog wing-nuts who celebrate every inner city tragedy and interracial dust-up with sanctimonious hand-wringing and calls for change are going to have a hard time dealing with what happened at Summerfest last night.
It was a gathering of the tribes - a "night of unity and love put the lie to so much of the manipulative right-wing world-that-isn’t." I guess that not one of the "brothers and sisters" would settle for anything less than a 39.6 marginal tax rate or single payer health care. Who would have known that funk makes you support unrestricted abortion and racial quotas?
If there were not (and he is sure there could not have been) any nasty conservatives in the crowd, it's OK because the Beautiful People (did you know they are friends of Mike?) don't need those wing-nuts and Rethuglicans:
Let ‘em. They missed it and who needs them anyway. Those of us who believe in the vibrancy of diversity will keep moving forward, leaving the professional haters in the dust of their own pathetic divisive agenda.
Dude, it was a concert.
But maybe it's a teachable moment. One of the reasons that people wring their hands at violent crime is that real people - perhaps some of those brothers and sisters who enjoyed "Shining Star" with you last night - are held hostage by it. Nor are we surprised that blacks and whites can experience a public event together (it happens at my church every Sunday) because we don't believe that there is a virulent racism underlying - well - everything. That's your schtick.
I am glad that Brother Plaisted had a good time and, yes, events like this can be uplifting and instructive. But I am not sure that the takeaway from an Earth Wind & Fire concert ought to be a sanctimony that makes George Clooney seem self-effacing.
Mike complains of a world "where we get so isolated from each other and some of us imagine we are against each other, when we really aren’t."
Exactly so, but, Mike, maybe you want to sit down and reread that line - again and again - until you get it.
Goose and gander: WMC and Soglin
Last week, I wondered if Paul Soglin, who wants to know who funds WMC and its election ads, was being paid for his campaign against WMC and by whom. I had a feeling that he had said he was being paid and it turns out that he is. Good for him.
But we still don't know who is paying him and apparently he isn't going to tell us.
But, he says, he is not trying to influence an election. Well, no, not directly, although the controversy around WMC is all about what will happen in future elections. Actual and potential candidates have a great interest in how it comes out. Might, just to throw out a few examples, interests associated with the Democratic Party or persons interested in the reelection of Chief Justice Shirley Abrahamson, choose to fund anti-WMC activities as part of a strategy for the next election cycle? Might Paul Soglin's clients be the same people who funded ads in last spring's Supreme Court race?
Beyond that, if we have some expectation or interest in knowing who is trying to influence us, it's not evident that this should only apply to support for or against a particular candidate. Although there is arguably not as great a possibility for quid pro quo type corruption, i.e., a candidate deciding that she owes a funder favors (but see the preceding paragraph), there is quite a difference of opinion on whether the anti-corruption rationale is a sufficient justification for burdening independent expenditures that don't directly call for the election or defeat of a candidate. (Compare, for example, this case with this one.)Folks arguing for disclosure also say that it helps the public evaluate claims and, if you are Judith Faulkner, it aids in knowing who not to buy things from.
But, you say, why is mere disclosure of who is funding something burdensome? This is where Mayor Soglin's current recalcitrance is instructive. I imagine the reason that he won't identify his clients is that they don't want him to. I can imagine all sorts of reasons for that - some understandable and some less so. Perhaps they fear backlash from the Judy Faulkners of the right. Maybe they don't want their identity to taint Soglin's credibility. Perhaps they are just the private sort. The point is that, when it comes to his own activities, Soglin thinks that the desire for confidentiality ought to be respected.
I don't bring this up to suggest that Paul is engaged in anything untoward. He's not. He is doing political work on behalf of partisans. I don't even think he should be legally obligated to disclose his clients. But, then again, I don't make those claims about WMC either.
When you decide to make a point about someone else taking money in the shadows, shouldn't you take yours in the sun?
But we still don't know who is paying him and apparently he isn't going to tell us.
But, he says, he is not trying to influence an election. Well, no, not directly, although the controversy around WMC is all about what will happen in future elections. Actual and potential candidates have a great interest in how it comes out. Might, just to throw out a few examples, interests associated with the Democratic Party or persons interested in the reelection of Chief Justice Shirley Abrahamson, choose to fund anti-WMC activities as part of a strategy for the next election cycle? Might Paul Soglin's clients be the same people who funded ads in last spring's Supreme Court race?
Beyond that, if we have some expectation or interest in knowing who is trying to influence us, it's not evident that this should only apply to support for or against a particular candidate. Although there is arguably not as great a possibility for quid pro quo type corruption, i.e., a candidate deciding that she owes a funder favors (but see the preceding paragraph), there is quite a difference of opinion on whether the anti-corruption rationale is a sufficient justification for burdening independent expenditures that don't directly call for the election or defeat of a candidate. (Compare, for example, this case with this one.)Folks arguing for disclosure also say that it helps the public evaluate claims and, if you are Judith Faulkner, it aids in knowing who not to buy things from.
But, you say, why is mere disclosure of who is funding something burdensome? This is where Mayor Soglin's current recalcitrance is instructive. I imagine the reason that he won't identify his clients is that they don't want him to. I can imagine all sorts of reasons for that - some understandable and some less so. Perhaps they fear backlash from the Judy Faulkners of the right. Maybe they don't want their identity to taint Soglin's credibility. Perhaps they are just the private sort. The point is that, when it comes to his own activities, Soglin thinks that the desire for confidentiality ought to be respected.
I don't bring this up to suggest that Paul is engaged in anything untoward. He's not. He is doing political work on behalf of partisans. I don't even think he should be legally obligated to disclose his clients. But, then again, I don't make those claims about WMC either.
When you decide to make a point about someone else taking money in the shadows, shouldn't you take yours in the sun?
Monday, July 07, 2008
Being serious about Iraq
Over at Pundit Nation, Michael Mathias argues that the "peace activists" were right about Iraq. Before nodding in agreement, I recommend this article by Arthur Herman in Commentary. I read this on my deck the other night over a nice Oregon Pinot Noir and was struck by it's evisceration of the conventional wisdom of the "peace activists." Herman reminds us - but Mathias forgets - that the Iraq Liberation Act making regime change in Iraq the official policy of the United States was passed and signed into law in 1998 by President Bill Clinton. In December of 1998, Clinton said the following about Saddam:
Saddam Hussein must not be allowed to threaten his neighbors or the world with nuclear arms, poison gas, or biological weapons. . . . Other countries possess weapons of mass destruction and ballistic missiles. With Saddam, there is one big difference: he has used them. Not once, but repeatedly. . . . I have no doubt today that, left unchecked, Saddam Hussein will use these terrible weapons again.
The Act did not call for the use of force - it said that it was not speaking to that - but Clinton used force anyway. Shortly after its passage, he asked all UN inspectors to leave Iraq and then launched Operation Desert Fox - a four day campaign of bombing Iraq.
Mathias argues that Saddam didn't support terrorists - save a little money for the families of Palestinen suicide bombers. Of course, the Clinton administration - not just George W. Bush - identified Saddam as a major state sponsor or terrorism. That's not surprising, because he was:
We now know, thanks to captured Iraqi documents, that American intelligence seriously underestimated the extent of Saddam’s ties with terrorist groups of all sorts. Throughout the 1990’s, it emerged, the Iraqi intelligence service had worked with Hamas, the Palestine Liberation Front, and Yasir Arafat’s private army (Force 17), and had given training to members of Islamic Jihad, the terrorist group that assassinated Egyptian president Anwar Sadat. Saddam also collaborated with jihadists fighting the American presence in Somalia, including some who were members of al Qaeda. It may be that al Qaeda had no formal presence in Iraq itself, but the captured documents show that it did not need such a presence. Saddam was willing to work with any terrorists who targeted the United States and its allies, and he reached out to al-Qaeda-affiliated groups (and vice-versa) whenever the occasion warranted.
Mathias implies that UN inspectors thought Saddam had no WMDs, but that's not quite right. All they knew is that he was not complying with the inspection regime so they were unable to draw any conclusions.
Again, from Herman's article:
On November 25, 2002, under the terms of 1441, UN inspectors re-entered Iraq. They came back empty-handed. On December 7, Iraq dumped thousands of pages of documents on UNMOVIC. Even Hans Blix recognized that this mountain of materials, some of them over a decade old, contained nothing to clear up the question of what had happened to Saddam’s stockpiles. All the same, Blix asked for time to sift through the document dump, knowing the task would consume months.
As Bob Woodward notes in Plan of Attack, his account of the run-up to the war, Bush so far had been “a study in patience.” (It is also true that General Franks was not yet ready for offensive operations, and needed time for the buildup of American forces in Kuwait that was the leverage behind the implicit threat of force.) The President held back until Blix’s interim report on January 27, 2003, which even the New York Times labeled “grim.” There was nothing in it to suggest that Iraq had accepted the principle of complying with UN resolutions or intended to take any of the steps that, in Blix’s words, “it needs to carry out to win the confidence of the world and to live in peace.”
Every intelligence service thought he still had - or was reconsituting his WMD program. While it is possible, in hind sight, to argue that this bit of evidence should have been discounted or that information should have been given more significance, the fact remains that two administrations - one Democrat and one Republican - and a host of international intelligence agencies thought that he was back in the game.
But, in a sense, whether he had WMDs in 2003 may not even be the right question. They were certainly something that he wanted to have and was willing to use. If he had been dissuaded, it was because of a sanctions regime that was on its last legs.
Mathias argues that the "peace activists" opposition to sanctions was based on the fact that they had failed and they had. Saddam was perfectly willing to let Iraqis starve and the UN was perfectly willing to allow him to do so. He could not, as John Kerry argues, be kept in that box. The "peace activists" would have let him out and we can only speculate on what would have happened. His track record doesn't suggest that it would have been good. What Michael doesn't recognize is that part of the justification for the Iraq war was the failure - abetted by the UN and certain of our allies - of sanctions. Even if Saddam was in check in 2003, it seemed unlikely that he could be kept there.
I don't cite Herman's piece as necessarily establishing that the Iraq war was the right decision. I remember, at the time, being very uncertain about whether it was. But it - along with so many other post war reviews - reminds us that the demonization of Bush reflects, at best, a refusal to face difficult facts and, at worst, a cynical manipulation of a complicated issue.
And, of course, the question of whether the Iraq war was the right decision is not the same question as what to do about Iraq now. Obama seems committed to abandoning Iraq because he would not have gone their in the first place and damn the consequences. That doesn't strike me as change we ought to believe in.
Saddam Hussein must not be allowed to threaten his neighbors or the world with nuclear arms, poison gas, or biological weapons. . . . Other countries possess weapons of mass destruction and ballistic missiles. With Saddam, there is one big difference: he has used them. Not once, but repeatedly. . . . I have no doubt today that, left unchecked, Saddam Hussein will use these terrible weapons again.
The Act did not call for the use of force - it said that it was not speaking to that - but Clinton used force anyway. Shortly after its passage, he asked all UN inspectors to leave Iraq and then launched Operation Desert Fox - a four day campaign of bombing Iraq.
Mathias argues that Saddam didn't support terrorists - save a little money for the families of Palestinen suicide bombers. Of course, the Clinton administration - not just George W. Bush - identified Saddam as a major state sponsor or terrorism. That's not surprising, because he was:
We now know, thanks to captured Iraqi documents, that American intelligence seriously underestimated the extent of Saddam’s ties with terrorist groups of all sorts. Throughout the 1990’s, it emerged, the Iraqi intelligence service had worked with Hamas, the Palestine Liberation Front, and Yasir Arafat’s private army (Force 17), and had given training to members of Islamic Jihad, the terrorist group that assassinated Egyptian president Anwar Sadat. Saddam also collaborated with jihadists fighting the American presence in Somalia, including some who were members of al Qaeda. It may be that al Qaeda had no formal presence in Iraq itself, but the captured documents show that it did not need such a presence. Saddam was willing to work with any terrorists who targeted the United States and its allies, and he reached out to al-Qaeda-affiliated groups (and vice-versa) whenever the occasion warranted.
Mathias implies that UN inspectors thought Saddam had no WMDs, but that's not quite right. All they knew is that he was not complying with the inspection regime so they were unable to draw any conclusions.
Again, from Herman's article:
On November 25, 2002, under the terms of 1441, UN inspectors re-entered Iraq. They came back empty-handed. On December 7, Iraq dumped thousands of pages of documents on UNMOVIC. Even Hans Blix recognized that this mountain of materials, some of them over a decade old, contained nothing to clear up the question of what had happened to Saddam’s stockpiles. All the same, Blix asked for time to sift through the document dump, knowing the task would consume months.
As Bob Woodward notes in Plan of Attack, his account of the run-up to the war, Bush so far had been “a study in patience.” (It is also true that General Franks was not yet ready for offensive operations, and needed time for the buildup of American forces in Kuwait that was the leverage behind the implicit threat of force.) The President held back until Blix’s interim report on January 27, 2003, which even the New York Times labeled “grim.” There was nothing in it to suggest that Iraq had accepted the principle of complying with UN resolutions or intended to take any of the steps that, in Blix’s words, “it needs to carry out to win the confidence of the world and to live in peace.”
Every intelligence service thought he still had - or was reconsituting his WMD program. While it is possible, in hind sight, to argue that this bit of evidence should have been discounted or that information should have been given more significance, the fact remains that two administrations - one Democrat and one Republican - and a host of international intelligence agencies thought that he was back in the game.
But, in a sense, whether he had WMDs in 2003 may not even be the right question. They were certainly something that he wanted to have and was willing to use. If he had been dissuaded, it was because of a sanctions regime that was on its last legs.
Mathias argues that the "peace activists" opposition to sanctions was based on the fact that they had failed and they had. Saddam was perfectly willing to let Iraqis starve and the UN was perfectly willing to allow him to do so. He could not, as John Kerry argues, be kept in that box. The "peace activists" would have let him out and we can only speculate on what would have happened. His track record doesn't suggest that it would have been good. What Michael doesn't recognize is that part of the justification for the Iraq war was the failure - abetted by the UN and certain of our allies - of sanctions. Even if Saddam was in check in 2003, it seemed unlikely that he could be kept there.
I don't cite Herman's piece as necessarily establishing that the Iraq war was the right decision. I remember, at the time, being very uncertain about whether it was. But it - along with so many other post war reviews - reminds us that the demonization of Bush reflects, at best, a refusal to face difficult facts and, at worst, a cynical manipulation of a complicated issue.
And, of course, the question of whether the Iraq war was the right decision is not the same question as what to do about Iraq now. Obama seems committed to abandoning Iraq because he would not have gone their in the first place and damn the consequences. That doesn't strike me as change we ought to believe in.
It. Is. So. Over.
All sorts of bloggers emphasize what they regard to be a particularily devastating and debate ending point by placing a period after each word or some combination of words in the money line. The idea is to convey a slow and emphatic recitation of the point. There is an example at the end of this post.
This is has now become wildly overused. It should be dropped. Now.
This is has now become wildly overused. It should be dropped. Now.
Self flattery on the left
Folks on the American left really like George Lakoff, a linguist at Berkely who has created a franchise for himself in arguing that liberals don't have to change to win national elections. They just need to talk differently. This has been a theme among self-styled progressives since Reagan beat Carter. To put it as Lakoff might if he didn't believe it to be true, this view minimizes cognitive dissonance and validates those who hold it.
Not surprisingly, Lakoff joins the growing crowd on the left who are unhappy with Obama's move to the right. He has a theory that "progressive" and "conservative" modes of thinking and discourse "inhibit" or crowd each other out. Thus, moving to the center is bad because it makes people less likely to accept solutions from the left. The point, he thinks, is not to change what you say about policy, but to say it in a way that comports with values people like.
The problem with all of this is that he sees it in a way that is distorted by his own policy preferences. Here is how he describes conservatives who he think can be lured to the left:
Interestingly, many people who call themselves "conservatives" actually think like progressives on a range of issue areas. For example, many "conservatives" love the land as much as any environmentalist; want to live in communities where people care about each other, that is, have social not just individual responsibility; live progressive business principles of honesty, care for their employees, and care for the public; and have progressive religious values: helping the poor, caring for the sick, being good stewards of the God's creation, turning the other cheek.
I have some news for Lakoff. I can tell him precisely how many conservatives think this way.
Every one. All of them.
It is precisely because they think this way that they reject "progressive" policies. They don't think that they accomplish these things.
Of course, conservatives and liberals place different weight on certain values and may define them a bit differently, but the idea that we can dismiss the views of those we disagree with as stupid or immoral is lazy and wrong.
Not surprisingly, Lakoff joins the growing crowd on the left who are unhappy with Obama's move to the right. He has a theory that "progressive" and "conservative" modes of thinking and discourse "inhibit" or crowd each other out. Thus, moving to the center is bad because it makes people less likely to accept solutions from the left. The point, he thinks, is not to change what you say about policy, but to say it in a way that comports with values people like.
The problem with all of this is that he sees it in a way that is distorted by his own policy preferences. Here is how he describes conservatives who he think can be lured to the left:
Interestingly, many people who call themselves "conservatives" actually think like progressives on a range of issue areas. For example, many "conservatives" love the land as much as any environmentalist; want to live in communities where people care about each other, that is, have social not just individual responsibility; live progressive business principles of honesty, care for their employees, and care for the public; and have progressive religious values: helping the poor, caring for the sick, being good stewards of the God's creation, turning the other cheek.
I have some news for Lakoff. I can tell him precisely how many conservatives think this way.
Every one. All of them.
It is precisely because they think this way that they reject "progressive" policies. They don't think that they accomplish these things.
Of course, conservatives and liberals place different weight on certain values and may define them a bit differently, but the idea that we can dismiss the views of those we disagree with as stupid or immoral is lazy and wrong.
Sunday, July 06, 2008
Sunday is SharkTV
As I have noted here before, I have, as my son says, a weakness for "quirky chick singers" and, as the Reddess knows, for redheaded women. So it makes sense that I would like Tori Amos who I have been listening to a lot lately.
Here's a live version of "Me and a Gun."
And "Spark."
Here's a live version of "Me and a Gun."
And "Spark."
Honeymoon in Waupun?
There is a minor contretemps over a Wisconsin law that prohibits people who live in and intend to continue to live in Wisconsin and who are, for some reason legally unable to marry, from going to another state and marrying. The law says that the out of state marriage is void in Wisconsin and actually imposes criminal penalties on the parties.
Although the article reporting the issue calls the law obscure, I am not sure that it is. I have known about it for a long time and, in fact, recall telling someone that she could not avoid Wisconsin's four month waiting period for remarriage after divorce by getting married in another state.
Would the law apply to same sex couples who travel to California to get married? Would such people be prosecuted? Tom Foley accuses Julaine Appling of wanting to send "gay people" to prison because she is quoted as saying that the law should be enforced. While enforcement of the penalty provisions would not be tantamount to throwing "gay people" in prison, it's unclear to me whether she is merely saying that the law should be enforced to declare such out of state weddings void or whether she is really advocating criminal penalties against those who engage in such ceremonies. In any event,
The latter position seems to be clearly correct. You can't go to California, marry a person of the same sex and have that marriage recognized here. Even if sec. 765.01(4) didn't exist, the constitutional amendment declaring the invalidity of same sex marriages would compel that result. And that may be the key to understanding while there will should be no prosecutions. (Apart from the fact, that it would be politically tone deaf.)
Representatives Fitzgerald and Pocan, speaking from opposite sides of the same sex marriage debate, say that there can be no prosecution because same sex marriages are void anyway. I think that, as a practical matter, they are right. They may also be right conceptually although not for reasons that Rep. Pocan would find edifying.
First, the practical. Assume that John and Mary go out of state to get married the day after Mary's divorce and return to Wisconsin claiming to be married. If their act is treated as criminal, it seems to be because they have tried to sneak around the law. Because detection of an invalid marriage between a man and a woman is difficult (one reason, I suspect, that the law is seldom enforced), those who get caught face criminal penalties in order to deter others,
If John and Michael go to California to get married they are not, as a practical matter, going to be able to claim to be married here. It is obvious that they are not and cannot be. If they simply make the symbolic claim that they regard themselves as "married," the law is not violated. It doesn't forbid people from thinking they are married, it just says that those relationships won't be recognized legally.
If they claim legal status for that marriage, I suppose you can argue that say that the statute literally applies. But there is an ontological problem. John and Mary have tried to enter into a relationship that would be a marriage (because between a man and woman) if regulation concerning marriage did not prohibit it. John and Michael are trying to enter into a relationship which cannot ever be marriage - at least in Wisconsin - because it is not between a man and woman. It is not prohibited by a regulation of marriage. It is not within the category of relationships that could be marriage. They are not excluded by an exception. They are not within the definition.
Some folks would argue that this distinction is meaningless because marriage is only what the law says it is and we can't really distinguish between marriage as a thing in itself and the rules regulating it. For reasons that are way beyond the scope of this post, I think that's wrong. But whether for conceptual, practical or political reasons, I don't expect to see John and Michael prosecuted.
Although the article reporting the issue calls the law obscure, I am not sure that it is. I have known about it for a long time and, in fact, recall telling someone that she could not avoid Wisconsin's four month waiting period for remarriage after divorce by getting married in another state.
Would the law apply to same sex couples who travel to California to get married? Would such people be prosecuted? Tom Foley accuses Julaine Appling of wanting to send "gay people" to prison because she is quoted as saying that the law should be enforced. While enforcement of the penalty provisions would not be tantamount to throwing "gay people" in prison, it's unclear to me whether she is merely saying that the law should be enforced to declare such out of state weddings void or whether she is really advocating criminal penalties against those who engage in such ceremonies. In any event,
The latter position seems to be clearly correct. You can't go to California, marry a person of the same sex and have that marriage recognized here. Even if sec. 765.01(4) didn't exist, the constitutional amendment declaring the invalidity of same sex marriages would compel that result. And that may be the key to understanding while there will should be no prosecutions. (Apart from the fact, that it would be politically tone deaf.)
Representatives Fitzgerald and Pocan, speaking from opposite sides of the same sex marriage debate, say that there can be no prosecution because same sex marriages are void anyway. I think that, as a practical matter, they are right. They may also be right conceptually although not for reasons that Rep. Pocan would find edifying.
First, the practical. Assume that John and Mary go out of state to get married the day after Mary's divorce and return to Wisconsin claiming to be married. If their act is treated as criminal, it seems to be because they have tried to sneak around the law. Because detection of an invalid marriage between a man and a woman is difficult (one reason, I suspect, that the law is seldom enforced), those who get caught face criminal penalties in order to deter others,
If John and Michael go to California to get married they are not, as a practical matter, going to be able to claim to be married here. It is obvious that they are not and cannot be. If they simply make the symbolic claim that they regard themselves as "married," the law is not violated. It doesn't forbid people from thinking they are married, it just says that those relationships won't be recognized legally.
If they claim legal status for that marriage, I suppose you can argue that say that the statute literally applies. But there is an ontological problem. John and Mary have tried to enter into a relationship that would be a marriage (because between a man and woman) if regulation concerning marriage did not prohibit it. John and Michael are trying to enter into a relationship which cannot ever be marriage - at least in Wisconsin - because it is not between a man and woman. It is not prohibited by a regulation of marriage. It is not within the category of relationships that could be marriage. They are not excluded by an exception. They are not within the definition.
Some folks would argue that this distinction is meaningless because marriage is only what the law says it is and we can't really distinguish between marriage as a thing in itself and the rules regulating it. For reasons that are way beyond the scope of this post, I think that's wrong. But whether for conceptual, practical or political reasons, I don't expect to see John and Michael prosecuted.
Friday, July 04, 2008
A different kind of peace action
It's English, but here's a video that strikes the balance that I was talking about. It took a different kind of bird to return the metaphorical blue birds to the white cliffs of Dover.
What the Virtual Army Experience critics are missing
Independence Day seems like a good day to comment on the recent controversy over the US Army's Virtual Army Experience at Summerfest. Critics of the exhibit object to what they see as the glorification of war. I have never served in the military (I'm a boomer, but turned 18 after the Vietnam war was over), but I readily accept the fact that war is a tragedy and combat is hell on earth.
But it is also the case that we live in a world where it is sometimes necessary. In that world, we have to avoid the glorification of war, while we honor military service. The critics forget that.
If we are going to avoid conscription and send to war only those who volunteer, we need to persuade people that, while war is hell, those who serve are doing something that is not only necessary, but that can be done with integrity and in a way that fulfills the human need for accomplishment.
The critics don't believe that. War, to them, is just undifferentiated killing. There is nothing about what we fight for and how we fight that is distinctive. But, in a world where evil exists - where there are Nazi Germanys, Soviet Russias and Al Qaeda - that leads to the charnel house just as certainly as a mindless celebration of conquest.
So we've got a difficult balance to strike. The irony here is that, from what I can tell, the Virtual Army Experience did a pretty good job of striking that balance. It wasn't about splattering people (like the Grand Theft Auto game that the Peace Action Network and other "non-violence" activists did not object to), it was about accomplishing a simulated mission that involved respecting - actually saving - noncombatants and operating within rules of engagement. That it was graphic means that it did not sugarcoat what is involved.
The Army exhibit was trying to say something about its mission in a difficult world. The "peace activists" are trying to deny that world exists.
Summerfest is a wonderful community asset, but its behavior here (including its dissembling about the objections to its actions)has been shameful.
But it is also the case that we live in a world where it is sometimes necessary. In that world, we have to avoid the glorification of war, while we honor military service. The critics forget that.
If we are going to avoid conscription and send to war only those who volunteer, we need to persuade people that, while war is hell, those who serve are doing something that is not only necessary, but that can be done with integrity and in a way that fulfills the human need for accomplishment.
The critics don't believe that. War, to them, is just undifferentiated killing. There is nothing about what we fight for and how we fight that is distinctive. But, in a world where evil exists - where there are Nazi Germanys, Soviet Russias and Al Qaeda - that leads to the charnel house just as certainly as a mindless celebration of conquest.
So we've got a difficult balance to strike. The irony here is that, from what I can tell, the Virtual Army Experience did a pretty good job of striking that balance. It wasn't about splattering people (like the Grand Theft Auto game that the Peace Action Network and other "non-violence" activists did not object to), it was about accomplishing a simulated mission that involved respecting - actually saving - noncombatants and operating within rules of engagement. That it was graphic means that it did not sugarcoat what is involved.
The Army exhibit was trying to say something about its mission in a difficult world. The "peace activists" are trying to deny that world exists.
Summerfest is a wonderful community asset, but its behavior here (including its dissembling about the objections to its actions)has been shameful.
Thursday, July 03, 2008
I hate you guys so much
Paul Soglin hates WMC, so very, very deeply.
(Graphic language in the video.)
You've got unsourced "facts" about the group's inner workings and a rather incredulous denial that a secondary boycott caused a WMC board member to resign. You've got calls for diclosure of the identity of those who contribute to WMC's issues campaigns. WMC is a player in state politics and is certainly a proper subject of discussion, but, as far as Paul is concerned, it is on.
Maybe I missed it, but inquiring minds want to know. Is Mayor Soglin receiving any support or renumeration from anyone for this? If he is, that's fine. There's nothing wrong with that and his arguments should still be met on their merits. If says that he isn't, that's fine too. His criticisms of WMC are certainly consistent with his ideology and money and other forms of support in politics often go to those that the donors already know agree with them. But since disclosure is a such a good thing ....
Update: In the comments, James Wigderson points out that Soglin has said he is being paid to go after WMC. As I said, I see nothing wrong with that. But who is paying him? And, if its One Wisconsin, where does that money come from anyway? Aren't I entitled to know so I can not do business with them?
(Graphic language in the video.)
You've got unsourced "facts" about the group's inner workings and a rather incredulous denial that a secondary boycott caused a WMC board member to resign. You've got calls for diclosure of the identity of those who contribute to WMC's issues campaigns. WMC is a player in state politics and is certainly a proper subject of discussion, but, as far as Paul is concerned, it is on.
Maybe I missed it, but inquiring minds want to know. Is Mayor Soglin receiving any support or renumeration from anyone for this? If he is, that's fine. There's nothing wrong with that and his arguments should still be met on their merits. If says that he isn't, that's fine too. His criticisms of WMC are certainly consistent with his ideology and money and other forms of support in politics often go to those that the donors already know agree with them. But since disclosure is a such a good thing ....
Update: In the comments, James Wigderson points out that Soglin has said he is being paid to go after WMC. As I said, I see nothing wrong with that. But who is paying him? And, if its One Wisconsin, where does that money come from anyway? Aren't I entitled to know so I can not do business with them?
McGee and the Big Picture: We're looking at the wrong one
James T. Harris is wondering the same thing that I am. Why has the conviction of Michael McGee resulted in thumbsucking over the city's licensing system? He suggests that this may be about Mayor Barrett's rivalry with Common Council President Hines. That could be, but I wonder, too, if this isn't an attempt to obscure the Theresa Estness Effect.
McGee held up more than aspiring licensees. He (and his father before him) intimidated a fair chunk of the area's officialdom and commentariat by portraying themselves as spokeman for a righteous racial anger that, however much we might disagree with his methods, must be respected. This worked for him in two ways. He attracted enough support in the black community that he cowed responsible black leaders into silence or restraint. What you heard in private was rarely repeated in public and, at least in part, for understandable reasons. Picking a fight with McGee would be politically dangerous.
For white leaders, the effect worked in a different way. Embracing (in Estness' case, literally) or at least gesturing in the direction of the legitimate grievance that the McGees were thought to represent was a way to establish one's racial good faith or at least help to avoid allegations of racism. However much we wring our hands over it and pretend to be engaged, we still have had little serious discussion, as opposed to a series of lectures, about race and poverty in this town.
So the McGees had along run. Junior ended it through his criminal victimization of license aspirants and other, but the real victims were McGee's consituents who, however much they may have enjoyed the frisson of an alderman poking the Man in the eye, were denied leadership that might have changed something for them.
If we want to look at the larger lesson of the McGee affair, I'd suggest we look at this and not liquor licenses.
McGee held up more than aspiring licensees. He (and his father before him) intimidated a fair chunk of the area's officialdom and commentariat by portraying themselves as spokeman for a righteous racial anger that, however much we might disagree with his methods, must be respected. This worked for him in two ways. He attracted enough support in the black community that he cowed responsible black leaders into silence or restraint. What you heard in private was rarely repeated in public and, at least in part, for understandable reasons. Picking a fight with McGee would be politically dangerous.
For white leaders, the effect worked in a different way. Embracing (in Estness' case, literally) or at least gesturing in the direction of the legitimate grievance that the McGees were thought to represent was a way to establish one's racial good faith or at least help to avoid allegations of racism. However much we wring our hands over it and pretend to be engaged, we still have had little serious discussion, as opposed to a series of lectures, about race and poverty in this town.
So the McGees had along run. Junior ended it through his criminal victimization of license aspirants and other, but the real victims were McGee's consituents who, however much they may have enjoyed the frisson of an alderman poking the Man in the eye, were denied leadership that might have changed something for them.
If we want to look at the larger lesson of the McGee affair, I'd suggest we look at this and not liquor licenses.
Tuesday, July 01, 2008
The limits - and reality - of judicial activism and restraint
There has been another round of commentary on the topic of judicial activism at the close of the Supreme Court's term. I have said that I don't like the term and would prefer another, but the conventions of the dialogue seem to stick us with it.
Nationally, public commentators like E.J. Dionne and Dahlia Lithwick repeat now overworked trope that because conservatives applaud some cases that overrule legislative choices, there is no substance to the concept. We should move on to the policy debate. (And there are policy differences that can't be reduced to "activism" vs. "restraint.")Locally, the idea is repeated here and here. The latter two pain me. Some people just won't accept instruction.
As I and many people smarter than me have tried to explain, the idea that the controversy around activism and restraint can be reduced to deferral to the legislature or executive or to adherence to precedent is an oversimplification. Gerald Bradley, a lawprof at Notre Dame, recently made the point again at Bench Memos:
My tentative (and humble) submission is that "judicial activism" is indeed a useful term, and that its central meaning has to do strictly with the sources of judicial reasoning — whether the grounds (criteria, reasons) for the judicial decision are fairly inferable from the constitutional text, structure, or history of its authoritative interpretation. If not, you have an "activist" at work.
Let's use Heller as an example. The Second Amendment says that " [a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Judges who differ as to whether the prefatory clause "a well regulated militia ..." restricts or, as Scalia argued, merely informs the scope of the operative clause (the right of the people ...) cannot necessarily be characterized as "activist" or "restraintists." If the Constitution creates an individual right to bear arms that the legislature must respect, then it would be "activist", i.e., it would be ignoring what the law requires, to refuse to enforce it.
Thus, one could argue that neither the Scalia majority opinion nor the Stevens dissent are activist. While there are problems with the way that Stevens goes about it, both were after the meaning of the text. Scalia did not ignore the prefatory clause or rewrite the text of the amendment. The question was whether the prefatory clause stated the reason that the right to bear arms was recognized (which, as Scalia carefully explains, helps to define the scope of the right) or does it restrict the right to the context of a militia? Scalia undertook a very careful exegesis of the text and its history in order to find its original public meaning.
On the other hand, Breyer's dissent (in which, to be fair, Stevens joined) adopts a balancing approach to the right to bear arms that essentially allows a judge to do whatever he or she wants. Randy Barnett put it well:
Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.
Nationally, public commentators like E.J. Dionne and Dahlia Lithwick repeat now overworked trope that because conservatives applaud some cases that overrule legislative choices, there is no substance to the concept. We should move on to the policy debate. (And there are policy differences that can't be reduced to "activism" vs. "restraint.")Locally, the idea is repeated here and here. The latter two pain me. Some people just won't accept instruction.
As I and many people smarter than me have tried to explain, the idea that the controversy around activism and restraint can be reduced to deferral to the legislature or executive or to adherence to precedent is an oversimplification. Gerald Bradley, a lawprof at Notre Dame, recently made the point again at Bench Memos:
My tentative (and humble) submission is that "judicial activism" is indeed a useful term, and that its central meaning has to do strictly with the sources of judicial reasoning — whether the grounds (criteria, reasons) for the judicial decision are fairly inferable from the constitutional text, structure, or history of its authoritative interpretation. If not, you have an "activist" at work.
Let's use Heller as an example. The Second Amendment says that " [a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Judges who differ as to whether the prefatory clause "a well regulated militia ..." restricts or, as Scalia argued, merely informs the scope of the operative clause (the right of the people ...) cannot necessarily be characterized as "activist" or "restraintists." If the Constitution creates an individual right to bear arms that the legislature must respect, then it would be "activist", i.e., it would be ignoring what the law requires, to refuse to enforce it.
Thus, one could argue that neither the Scalia majority opinion nor the Stevens dissent are activist. While there are problems with the way that Stevens goes about it, both were after the meaning of the text. Scalia did not ignore the prefatory clause or rewrite the text of the amendment. The question was whether the prefatory clause stated the reason that the right to bear arms was recognized (which, as Scalia carefully explains, helps to define the scope of the right) or does it restrict the right to the context of a militia? Scalia undertook a very careful exegesis of the text and its history in order to find its original public meaning.
On the other hand, Breyer's dissent (in which, to be fair, Stevens joined) adopts a balancing approach to the right to bear arms that essentially allows a judge to do whatever he or she wants. Randy Barnett put it well:
Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.
Monday, June 30, 2008
I put papaya there
I know this isn't new and was just on Althouse, but I am posting it here in case some readers of Shark and Shepherd haven't seen it because that would be a shame.
This is apparently from a 2000 movie called "Pennin Manathai Thattu" and the song is called "Kalluri Vaanil." The words translated as "benny lava" are actually "-dha nilaavo." I have no idea what any of it means.
This is apparently from a 2000 movie called "Pennin Manathai Thattu" and the song is called "Kalluri Vaanil." The words translated as "benny lava" are actually "-dha nilaavo." I have no idea what any of it means.
Illusory criticism
Following up on my post regarding WMC, Tom Foley says that I have called Epic's statement that it does not want to do business with WMC a "threat" and suggested that J.P. Cullen submitted to it without evidence and, in fact, in the face of evidence to the contrary.
The evidence to the contrary is Paul Soglin's statement that J.P. Cullen withdrew because of dissatisfaction with WMC. But, of course, Paul Soglin isn't J.P. Cullen and "evidence" from him. as I am sure Tom knows, is either incompetent or hearsay.
Here's what we actually know. Cullen does lots of business with Epic and, contra Paul Soglin, their withdrawal from WMC was not accompanied by any criticism of the group. Instead, Dave Cullen said he wanted to manage his business "to the benefit of our valued clients" and said, again contra Soglin, that "I continue to support the ideals of the organization to promote a healthy business climate for Wisconsin, and it is my intent to continue to advocate for sensible public policies that will benefit both the businesses and people in our great state."
Tom says that I "imagined" the fact of threat and submission, quoting me as if this is what I wrote. This is strange. When I used the phrase, "I can imagine" it was followed by the words "under which Epic's threat - and J.P. Cullen's submission to that threat - may provide support for a constitutional challenge." What I was imagining was legislation that would attempt to put additional disclosure requirements on groups like WMC for which a constitutional challenge would be aided by the Epic/Cullen affair. My point was that the desire of Soglin and others for additional regulation may ultimately be impeded by their encouragement of this kind of boycott.
The only other thing I imagined was a boycott of businesses that supported Planned Parenthood - an organization who some people are every bit as upset with as Soglin and Faulkner are with WMC. My point was that, although one has the right to do this, it is susceptible to fairly substantial escalation.
And that's why it tends to stress the social fabric.
The evidence to the contrary is Paul Soglin's statement that J.P. Cullen withdrew because of dissatisfaction with WMC. But, of course, Paul Soglin isn't J.P. Cullen and "evidence" from him. as I am sure Tom knows, is either incompetent or hearsay.
Here's what we actually know. Cullen does lots of business with Epic and, contra Paul Soglin, their withdrawal from WMC was not accompanied by any criticism of the group. Instead, Dave Cullen said he wanted to manage his business "to the benefit of our valued clients" and said, again contra Soglin, that "I continue to support the ideals of the organization to promote a healthy business climate for Wisconsin, and it is my intent to continue to advocate for sensible public policies that will benefit both the businesses and people in our great state."
Tom says that I "imagined" the fact of threat and submission, quoting me as if this is what I wrote. This is strange. When I used the phrase, "I can imagine" it was followed by the words "under which Epic's threat - and J.P. Cullen's submission to that threat - may provide support for a constitutional challenge." What I was imagining was legislation that would attempt to put additional disclosure requirements on groups like WMC for which a constitutional challenge would be aided by the Epic/Cullen affair. My point was that the desire of Soglin and others for additional regulation may ultimately be impeded by their encouragement of this kind of boycott.
The only other thing I imagined was a boycott of businesses that supported Planned Parenthood - an organization who some people are every bit as upset with as Soglin and Faulkner are with WMC. My point was that, although one has the right to do this, it is susceptible to fairly substantial escalation.
And that's why it tends to stress the social fabric.
Epic takes on the right of association
Epic Systems, a software company in Madison, has announced that it will "try" not to do business with vendors who "support WMC with their current management." In response, a construction firm with a huge contract with Epic withdrew from WMC. (In an odd post, Paul Soglin argues that its "important" not to make the obvious connection.)
Tom Foley argues that this makes Epic CEO Judith Faulkner, a "corporate heroine." Maybe so, although it remains to be seen how hard Epic will "try" to avoid doing business with the politically distasteful. It would, in any event, be far more "heroic" to refuse to accept the tainted money of any current or potential customer who supports WMC.
Epic has the right to do this, although I believe that the threat to the judiciary is more multi-faceted than she does. Still, I think that political boycotts tend to stress the social fabric and are best avoided. To offer one example, assume that I think Planned Parenthood engages in a morally reprehensible business. I further believe that it ran an ad attacking certain legislators (including my representative, Jim Ott)as blatantly dishonest as anything I have seen. Maybe I wish no one would have anything to do with them. But should I find out who donates to the organization and avoid doing business with them ? Do we really want that to become a common practice?
And, if we don't, perhaps we need to call for a boycott of Epic Systems and any other organization that attempts to punish others for exercising their rights of free speech and association. Call that strategy Esenberg's Paradox.
But I wanted to blog about is the impact of the boycott on Soglin's other WMC-related crusade - the idea that advocacy organizations ought to be compelled to disclose their members or donors.
Here's the thing. There is a line of cases, beginning with NAACP v. Patterson, a case in which an Alabama court had, at the request of the court, ordered the NAACP to produce its membership list. The Court held that, under the circumstances, production of the list would subject members to reprisals and, therefore, violate their right of association. Later cases made clear that a claim of infringement of associational rights must be based upon a particularized showing of reprisal and one extended the principle to prohibit application of a campaign disclosure law to a minor political party which had historically been the subject of reprisals.
Most cases applying this concept involve some type of feared or actual harassment, but I am aware of at least one - involving a tort reform organization - that applied the Patterson line in the context of economic reprisals. What is clear is that an organization that wants to claim that it will be subject to reprisals has to point to some real threat and fear that will deter its members from further association. Recently, for example, the Wisconsin Supreme Court held that an advocacy organization had failed to make the requisite showing.
The constitutionality of any legislation requiring greater disclosure of who contributes to independent advocacy or belongs to advocacy organizations is not something that I can address here and would depend on just what is proposed. But I can imagine circumstances under which Epic's threat - and J.P. Cullen's submission to that threat - may provide support for a constitutional challenge.
Tom Foley argues that this makes Epic CEO Judith Faulkner, a "corporate heroine." Maybe so, although it remains to be seen how hard Epic will "try" to avoid doing business with the politically distasteful. It would, in any event, be far more "heroic" to refuse to accept the tainted money of any current or potential customer who supports WMC.
Epic has the right to do this, although I believe that the threat to the judiciary is more multi-faceted than she does. Still, I think that political boycotts tend to stress the social fabric and are best avoided. To offer one example, assume that I think Planned Parenthood engages in a morally reprehensible business. I further believe that it ran an ad attacking certain legislators (including my representative, Jim Ott)as blatantly dishonest as anything I have seen. Maybe I wish no one would have anything to do with them. But should I find out who donates to the organization and avoid doing business with them ? Do we really want that to become a common practice?
And, if we don't, perhaps we need to call for a boycott of Epic Systems and any other organization that attempts to punish others for exercising their rights of free speech and association. Call that strategy Esenberg's Paradox.
But I wanted to blog about is the impact of the boycott on Soglin's other WMC-related crusade - the idea that advocacy organizations ought to be compelled to disclose their members or donors.
Here's the thing. There is a line of cases, beginning with NAACP v. Patterson, a case in which an Alabama court had, at the request of the court, ordered the NAACP to produce its membership list. The Court held that, under the circumstances, production of the list would subject members to reprisals and, therefore, violate their right of association. Later cases made clear that a claim of infringement of associational rights must be based upon a particularized showing of reprisal and one extended the principle to prohibit application of a campaign disclosure law to a minor political party which had historically been the subject of reprisals.
Most cases applying this concept involve some type of feared or actual harassment, but I am aware of at least one - involving a tort reform organization - that applied the Patterson line in the context of economic reprisals. What is clear is that an organization that wants to claim that it will be subject to reprisals has to point to some real threat and fear that will deter its members from further association. Recently, for example, the Wisconsin Supreme Court held that an advocacy organization had failed to make the requisite showing.
The constitutionality of any legislation requiring greater disclosure of who contributes to independent advocacy or belongs to advocacy organizations is not something that I can address here and would depend on just what is proposed. But I can imagine circumstances under which Epic's threat - and J.P. Cullen's submission to that threat - may provide support for a constitutional challenge.
Sunday, June 29, 2008
Old Anglophile Rock
I am a big fan of the British Invasion bands of the sixties. Status Quo was a late entrant, but I've always thought that Quo's "Pictures of Matchstick Men" is somehow evocative of the time and the genre.
The Troggs are best known for "Wild Thing" and are sometimes cited as a precursor of punk rock. You don't get that from "Love Is All Around" - apparently written in the afterglow of a roast dinner. The video seems to be getting at something else.
There was a certain innocence in these bands. Gerry and the Pacemakers sing "Ferry Across the Mersey" in this video - taken, I think, from the movie of the same name. I like the part with the dog.
And, for something a little harder, Small Faces' "Tin Soldier."
The Troggs are best known for "Wild Thing" and are sometimes cited as a precursor of punk rock. You don't get that from "Love Is All Around" - apparently written in the afterglow of a roast dinner. The video seems to be getting at something else.
There was a certain innocence in these bands. Gerry and the Pacemakers sing "Ferry Across the Mersey" in this video - taken, I think, from the movie of the same name. I like the part with the dog.
And, for something a little harder, Small Faces' "Tin Soldier."
The politics of fear on health care
State Sen. Kathleen Vinehout just doesn't understand health insurance. She first entered the fray by complaining about the fact that, after she left a job with insurance to go into politics, her son required expensive medical care that was uncovered. In what may be the only story that Shark and Shepherd will ever break, I disclosed that, during the period that she went uninsured and her son came to require care, Vinehout had contributed sizable sums to her own campaign. Her tragedy amounted to a complaint that someone else would not provide her with something that she would not pay for herself.
In this piece in the Tomah Journal, she still doesn't quite get it. She is upset with insurance companies who refuse to cover preexisting conditions. They ought to be required to do so. She laments the fact that "[n]ot only can an insurance company deny coverage to a person suffering from illness, but there are no limits on how long someone can be denied coverage of the very problems for which they most need health insurance."
Here's the obvious problem. Insurance is a form of polling risk. We pay premiums when we don't need it so it will be there when we do. We choose to pay a smaller amount now to protect against the possibility of a larger cost later. The result is that those who don't incur the insured against risk subsidize those who do. Because no one knows ex ante which class they will fall into, it makes sense for all to participate.
This does not work until you wait to buy insurance. At that point, you are not pooling your risk, you are simply trying to shift your loss to someone else. A person who has cancer or, like the Reddess has a raft of athletic injuries requiring frequent orthopedic care, can't really buy anything that can be called insurance. If there is a high probability that a potential insured will incur, say, $ 30,000 in annual costs, any premium that is less than $ 30,000 is not enough. The individual will simply be buying the right to present her bills to someone else and not paying enough to cover the cost.
If any one insurance company decided to cover persons with preexisting conditions, then it would quickly assemble a book of business comprised largely of sick people. It must either dramatically increase premiums or go out of business. If the state requires insurers to take on persons with preexisting conditions, people have an incentive to wait to buy insurance and the same things happens.
If you don't quite follow, imagine what would happen if I was able to wait until I had an accident to buy auto insurance.
But, Sen. Vinehout says, insurers deny coverage to persons with "old" preexisting conditions. They are "too" conservative. Maybe they are. But it is hard to believe that insurers, who have every reason to accept profitable business and who are in competition with others who will penalize them for making the wrong decision, need to be told by the government when they are being too restrictive.
She complains about the following "hideous" practice of insurance companies:
You paid all your premiums and are up-to-date on all requirements of the policy. The insurance company receives your claims for the new health problem and begins digging back into your medical history -- looking back months or even years. The company then alleges you failed to disclose or should have known about some pre-existing condition for which you are now receiving care. The company denies the payment of your claim based on these allegations.
Well, if you lied about a preexisting condition then you haven't complied with the "requirements of your policy." If you didn't lie, if it turns out that you did not have the preexisting condition or were unaware, say, that treatment for x implies condition y, the insurance company isn't going to win this one. Although the matter is complicated with employer-provided group health plans (with respect to which most preexisting conditions can't be excluded), a company that denies a claim in bad faith runs the risk of liability exceeding what it would otherwise be required to pay under the policy.
As I have blogged before, there are complications with application of the insurance model to health care. First, most employer-provided plans are not really insurance against the risk of expensive that will be incurred by some and not others. They cover routine costs which we know everyone will incur and health care costs, unlike auto accidents, are far more certain. They tend to come as one gets older. Health insurance is not only a subsidy of the sick by the healthy but a subsidy of the old by the young. This gives it the element of a forced savings plan in which you pay into a fund that you will probably have to draw on one day. But like other forms of insurance, if the healthy and young can opt out, it won't work.
Second, while we are willing to let someone be stuck with the cost of a wrecked car if they failed to insure it, we are not willing to let them die if they failed - or could not afford - to insure their health. That is why, in the United States, persons who are uninsured are not uncared for (albeit, in some cases, not as well as those who are insured.)
This creates difficult policy questions. You want to find a way to create insurable pools while still maintaining a market for health care because that is the best way to control costs and spur innovation and attention to consumer demands. Everybody agrees that we aren't quite there, but the cause is not evil, mean and greedy insurance companies.
This suggests one final point. Isn't what Vinehout in engaged in here the "politics of fear?" Isn't it demonization of the "other?" Isn't she evading difficult problems by seeking a scapegoat?
In this piece in the Tomah Journal, she still doesn't quite get it. She is upset with insurance companies who refuse to cover preexisting conditions. They ought to be required to do so. She laments the fact that "[n]ot only can an insurance company deny coverage to a person suffering from illness, but there are no limits on how long someone can be denied coverage of the very problems for which they most need health insurance."
Here's the obvious problem. Insurance is a form of polling risk. We pay premiums when we don't need it so it will be there when we do. We choose to pay a smaller amount now to protect against the possibility of a larger cost later. The result is that those who don't incur the insured against risk subsidize those who do. Because no one knows ex ante which class they will fall into, it makes sense for all to participate.
This does not work until you wait to buy insurance. At that point, you are not pooling your risk, you are simply trying to shift your loss to someone else. A person who has cancer or, like the Reddess has a raft of athletic injuries requiring frequent orthopedic care, can't really buy anything that can be called insurance. If there is a high probability that a potential insured will incur, say, $ 30,000 in annual costs, any premium that is less than $ 30,000 is not enough. The individual will simply be buying the right to present her bills to someone else and not paying enough to cover the cost.
If any one insurance company decided to cover persons with preexisting conditions, then it would quickly assemble a book of business comprised largely of sick people. It must either dramatically increase premiums or go out of business. If the state requires insurers to take on persons with preexisting conditions, people have an incentive to wait to buy insurance and the same things happens.
If you don't quite follow, imagine what would happen if I was able to wait until I had an accident to buy auto insurance.
But, Sen. Vinehout says, insurers deny coverage to persons with "old" preexisting conditions. They are "too" conservative. Maybe they are. But it is hard to believe that insurers, who have every reason to accept profitable business and who are in competition with others who will penalize them for making the wrong decision, need to be told by the government when they are being too restrictive.
She complains about the following "hideous" practice of insurance companies:
You paid all your premiums and are up-to-date on all requirements of the policy. The insurance company receives your claims for the new health problem and begins digging back into your medical history -- looking back months or even years. The company then alleges you failed to disclose or should have known about some pre-existing condition for which you are now receiving care. The company denies the payment of your claim based on these allegations.
Well, if you lied about a preexisting condition then you haven't complied with the "requirements of your policy." If you didn't lie, if it turns out that you did not have the preexisting condition or were unaware, say, that treatment for x implies condition y, the insurance company isn't going to win this one. Although the matter is complicated with employer-provided group health plans (with respect to which most preexisting conditions can't be excluded), a company that denies a claim in bad faith runs the risk of liability exceeding what it would otherwise be required to pay under the policy.
As I have blogged before, there are complications with application of the insurance model to health care. First, most employer-provided plans are not really insurance against the risk of expensive that will be incurred by some and not others. They cover routine costs which we know everyone will incur and health care costs, unlike auto accidents, are far more certain. They tend to come as one gets older. Health insurance is not only a subsidy of the sick by the healthy but a subsidy of the old by the young. This gives it the element of a forced savings plan in which you pay into a fund that you will probably have to draw on one day. But like other forms of insurance, if the healthy and young can opt out, it won't work.
Second, while we are willing to let someone be stuck with the cost of a wrecked car if they failed to insure it, we are not willing to let them die if they failed - or could not afford - to insure their health. That is why, in the United States, persons who are uninsured are not uncared for (albeit, in some cases, not as well as those who are insured.)
This creates difficult policy questions. You want to find a way to create insurable pools while still maintaining a market for health care because that is the best way to control costs and spur innovation and attention to consumer demands. Everybody agrees that we aren't quite there, but the cause is not evil, mean and greedy insurance companies.
This suggests one final point. Isn't what Vinehout in engaged in here the "politics of fear?" Isn't it demonization of the "other?" Isn't she evading difficult problems by seeking a scapegoat?
Thursday, June 26, 2008
Davis v. FEC: The day's most important decision
Heller is a huge case, but, in terms of affecting policies that might actually be enacted, it may not be as important as today's decision in Davis v. Federal Election Commission.
Simply put, Davis involved a challenge to the "Millionaire's Amendment" to the McCain-Feingold Act (officially known as the Bipartisan Campaign Finance Reform Act of 2003 or "BCRA"). The amendment is complicated but, for our purposes, it suffices to say that it raises the campaign contribution limits applicable to a candidate whose opponent has self-financed in excess of a particular amount. For such candidates, it removes the limit on coordinated party expenditures. The idea is to "level the playing field" when someone faces a wealthy opponent. It is important to note that, when the Millionaire's Amendment becomes operative, the "self-financing" candidate (i.e., the one who has spent more than the specified amount of his own money) is still subject to the normal limits on contributions and coordinated party expenditures.
The Court found that this places an unconstitutional burden on the self-financing candidate's exercise of her First Amendment right to spend her own money to coomunicate on behalf of her campaign. For a variety of reasons that I won't get into here, I think this was the right decision.
But what I find intriguing is the implication of the decision for public financing schemes when considered in conjunction with last term's decision in Wisconsin Right to Life v. FEC. That case struck down limitations on the use of corporate and union treasury funds to communicate on matters of public interest during a period immediately prior to an election if the communication mentions a candidate running for federal office in that election and was directed toward persons who would vote in the election in which that person was running.
This means that it may well nigh be impossible to restrict independent expenditures during an election. Again, for reasons that I have given before, I think that is the right outcome.
To combat this, public financing schemes will often provide for additional public funding to be directed to the candidate against whom these expenditures are made. For example, the bill currently pending in the Wisconsin state legislature for the public funding of judicial campaigns would do exactly that.
But if asymmetrical campaign contribution limits (i.e., one side gets to raise more money than the other) burden a candidate's constitutional right to spend his own money, then asymmetrical public financing (i.e., one side gets more public money than the other) burden the constitutional right of persons to communicate on issues of public importance during an election? Wisconsin Right to Life, for example, couldn't urge Russ Feingold to vote on judicial nominees without causing Feingold to be able to raise more money.
The answer isn't foreordained. I suppose one could argue that it doesn't really burden WRTL's speech rights for Feingold to get more money since it is ostensibly not advocating Feingold's election or defeat. You may regard this as a "phony" distinction (as campaign finance reform advocates do), but maybe maintaining the fiction would preserve these schemes. You might also argue that there are corruption concerns present here that aren't present when a candidate spends her own money, but, if those concerns don't support limiting the expenditures, its not clear why they should support burdening it in this way.
But consider a world in which this distinction carried the day. Congress would not be permitted to level the playing field when someone faces a wealthy opponent, but would be able to do so when interest groups seek to speak to issues of interest during an election in a way that implicates a particular candidate, i.e., in a way that is likely to accomplish something.
Davis may signal the death of public financing. But even if it doesn't, it certainly suggests that the First Amendment and campaign finance restrictions are at war with each other in a way that suggests that advocates of the latter ought to surrender or radically rethink their approach.
Simply put, Davis involved a challenge to the "Millionaire's Amendment" to the McCain-Feingold Act (officially known as the Bipartisan Campaign Finance Reform Act of 2003 or "BCRA"). The amendment is complicated but, for our purposes, it suffices to say that it raises the campaign contribution limits applicable to a candidate whose opponent has self-financed in excess of a particular amount. For such candidates, it removes the limit on coordinated party expenditures. The idea is to "level the playing field" when someone faces a wealthy opponent. It is important to note that, when the Millionaire's Amendment becomes operative, the "self-financing" candidate (i.e., the one who has spent more than the specified amount of his own money) is still subject to the normal limits on contributions and coordinated party expenditures.
The Court found that this places an unconstitutional burden on the self-financing candidate's exercise of her First Amendment right to spend her own money to coomunicate on behalf of her campaign. For a variety of reasons that I won't get into here, I think this was the right decision.
But what I find intriguing is the implication of the decision for public financing schemes when considered in conjunction with last term's decision in Wisconsin Right to Life v. FEC. That case struck down limitations on the use of corporate and union treasury funds to communicate on matters of public interest during a period immediately prior to an election if the communication mentions a candidate running for federal office in that election and was directed toward persons who would vote in the election in which that person was running.
This means that it may well nigh be impossible to restrict independent expenditures during an election. Again, for reasons that I have given before, I think that is the right outcome.
To combat this, public financing schemes will often provide for additional public funding to be directed to the candidate against whom these expenditures are made. For example, the bill currently pending in the Wisconsin state legislature for the public funding of judicial campaigns would do exactly that.
But if asymmetrical campaign contribution limits (i.e., one side gets to raise more money than the other) burden a candidate's constitutional right to spend his own money, then asymmetrical public financing (i.e., one side gets more public money than the other) burden the constitutional right of persons to communicate on issues of public importance during an election? Wisconsin Right to Life, for example, couldn't urge Russ Feingold to vote on judicial nominees without causing Feingold to be able to raise more money.
The answer isn't foreordained. I suppose one could argue that it doesn't really burden WRTL's speech rights for Feingold to get more money since it is ostensibly not advocating Feingold's election or defeat. You may regard this as a "phony" distinction (as campaign finance reform advocates do), but maybe maintaining the fiction would preserve these schemes. You might also argue that there are corruption concerns present here that aren't present when a candidate spends her own money, but, if those concerns don't support limiting the expenditures, its not clear why they should support burdening it in this way.
But consider a world in which this distinction carried the day. Congress would not be permitted to level the playing field when someone faces a wealthy opponent, but would be able to do so when interest groups seek to speak to issues of interest during an election in a way that implicates a particular candidate, i.e., in a way that is likely to accomplish something.
Davis may signal the death of public financing. But even if it doesn't, it certainly suggests that the First Amendment and campaign finance restrictions are at war with each other in a way that suggests that advocates of the latter ought to surrender or radically rethink their approach.
Blogging Heller
Over at SCOTUS Blog, we learn that Heller will be the last decision announced this morning. I suppose that means that Scalia or Kennedy wrote the majority opinion. I can't imagine that it could be Stevens.
Update: It's Scalia suggesting a broad ruling.
Update: And it is. I am skimming through it but am immediately struck be a few things. As has been reported elsewhere, the Court held that the operative clause of the Second Amendment ("the right of the people to keep and bear Arms, shall not be infringed") creates an individual right to bear arms that is not limited by the preceding prefatory clause ("A well regulated Militia, being necessary to the security of a free State ..."). This has too implications. First, the right exists unconnected to service in the militia. The right exists to keep firearms for traditional use, such as self defense in the home.
This also means, Scalia appears to say, that the right is not limited to those firearms that would be useful to service in a militia, i.e., the right applies to handguns. This is so, the majority seems to say, because, although the prefatory clause does not limit the operative clause, it informs its interpretation and "[t]he traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense."
But its not an unlimited right. Indeed, interpretation of the amendment to firearms in common use would justify prohibition of those that are not (the Court mentions short barreled shotguns. Thus, in a latter passage, the Court makes clear that the amendment does not bar the prohibition of "dangerous and unusual weapons.
Other limitations may be permitted as well. Here's a passage that will be seized upon by gun control advocates:
Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose. See, e.g., Sheldon, in 5 Blume
346; Rawle 123; Pomeroy 152–153; Abbott 333. For example,
the majority of the 19th-century courts to consider the
question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or
state analogues. See, e.g., State v. Chandler, 5 La. Ann.,
at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2
Kent *340, n. 2; The American Students’ Blackstone 84, n.
11 (G. Chase ed. 1884). Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of
arms.26
My initial reaction is that the opinion may not restrict most regulation that is politically possible in most places. There will be no handgun bans. There may be gun regulation.
But this is really preliminary. More later.
Update: David Schenck writing at SCOTUSblog, notes that more Second Amendment litigation is likely. Is the Second incorporated against the states? What standard governs firearm regulations and what regulations are permissible. Strictly speaking, Heller only establishes that a federal ban of the possession of a handgun in the home is unconstitutional. As he points out, four justices would not have even found that. Whether Heller has legs, i.e., whether it establishes a robust right to bear arms, will turn on the future composition of the Court. While Obama says that he agrees with the Court's decision, it seems unlikely that he would appoint Justices who would decide it the same way.
Update: It's Scalia suggesting a broad ruling.
Update: And it is. I am skimming through it but am immediately struck be a few things. As has been reported elsewhere, the Court held that the operative clause of the Second Amendment ("the right of the people to keep and bear Arms, shall not be infringed") creates an individual right to bear arms that is not limited by the preceding prefatory clause ("A well regulated Militia, being necessary to the security of a free State ..."). This has too implications. First, the right exists unconnected to service in the militia. The right exists to keep firearms for traditional use, such as self defense in the home.
This also means, Scalia appears to say, that the right is not limited to those firearms that would be useful to service in a militia, i.e., the right applies to handguns. This is so, the majority seems to say, because, although the prefatory clause does not limit the operative clause, it informs its interpretation and "[t]he traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense."
But its not an unlimited right. Indeed, interpretation of the amendment to firearms in common use would justify prohibition of those that are not (the Court mentions short barreled shotguns. Thus, in a latter passage, the Court makes clear that the amendment does not bar the prohibition of "dangerous and unusual weapons.
Other limitations may be permitted as well. Here's a passage that will be seized upon by gun control advocates:
Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose. See, e.g., Sheldon, in 5 Blume
346; Rawle 123; Pomeroy 152–153; Abbott 333. For example,
the majority of the 19th-century courts to consider the
question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or
state analogues. See, e.g., State v. Chandler, 5 La. Ann.,
at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2
Kent *340, n. 2; The American Students’ Blackstone 84, n.
11 (G. Chase ed. 1884). Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of
arms.26
My initial reaction is that the opinion may not restrict most regulation that is politically possible in most places. There will be no handgun bans. There may be gun regulation.
But this is really preliminary. More later.
Update: David Schenck writing at SCOTUSblog, notes that more Second Amendment litigation is likely. Is the Second incorporated against the states? What standard governs firearm regulations and what regulations are permissible. Strictly speaking, Heller only establishes that a federal ban of the possession of a handgun in the home is unconstitutional. As he points out, four justices would not have even found that. Whether Heller has legs, i.e., whether it establishes a robust right to bear arms, will turn on the future composition of the Court. While Obama says that he agrees with the Court's decision, it seems unlikely that he would appoint Justices who would decide it the same way.
Tuesday, June 24, 2008
An object lesson in activism
I have been down in Chicago, attending a conference on empirical legal research at Northwestern University Law School. For me, it's a review of statistical concepts that I have understood conceptually, but, on which, have been really weak on the math. I'm learning how to use software that does the math for me, although I'll still need to work with a statistician. More to come.
While I was gone the Supreme Court decided Louisiana v. Kennedy, holding that the death penalty is unconstitutional for the rape of a child. As I have blogged before, I categorically oppose the death penalty on what are, essentially, religious grounds. So, were I a legislator, I would not vote for a law providing for the death penalty for child rapists.
But finding such a law to be unconstitutional is another matter. Death for the rape of a child would almost certainly not have been regarded as cruel and unusual at the time of its adoption, but Justice Kennedy argues, we must discern evolving standards of decency in applying it today.
Fair enough, but what does that mean? One possibility would be to limit application of the 8th amendment to punishments that are clearly contrary to some observable national consensus. Imagine a renegade red state that imposes death for sodomy or a blue state that imposes it for exceeding your allocated carbon usage. On this view, the Eighth Amendment wouldn't prohibit much, but maybe that's implicit in its nature - it prohibits only things that are cruel and unusual. By definition, those punishments ought to be rare.
Another view - and this seems to be the one adopted by the majority - is to say that the Eighth permits the Court to prohibit punishments that strike it as overly punitive.
The majority does argue that death for child rapists violates a national consensus, relying upon the facts that only five states have enacted such a penalty and that the defendant here is the first such offender that anyone has tried to execute. But, it seems to me, there is a difference between noting that a particular policy choice is made by few states and, as would seem to be the proper question here, concluding that this choice would shock the conscience of those who have not adopted it. As Jim Lindgren points out, there may well be majority public support for death for child rapists. That both Obama and McCain found it necessary to denounce the decision further suggests this to be the case.
Ultimately, the majority's position is that it doesn't matter anyway. The Court must, Justice Kennedy makes clear, bring its own judgment to bear.
And this brings us back to the whole business of "activist v. restraint" and the proper role of the the judiciary. How does the Court go about exercising this judgment? Where does it find the authority for whatever principle that judgment will rely upon? We know its not the original understanding of what the eighth amendment prohibits. It apparently need not be an actual national consensus that a particular penalty is cruel and unusual. On this view, the Eighth Amendment is a warrant for the Court to substitute its own relatively unfettered judgement for that of the legislature.
People like me regard this as problematic. While I support the idea of judicial review (not everybody does) and the Constitution certainly enacts restrictions on legislative majorities, there should be some discernable standard - found outside a judge's own sense of how the world should be - that governs the application of these restrictions. To say that a cruel and unusual punishment can be anything that a majority of the Court thinks goes too far is not really rooted in any external standard.
While I was gone the Supreme Court decided Louisiana v. Kennedy, holding that the death penalty is unconstitutional for the rape of a child. As I have blogged before, I categorically oppose the death penalty on what are, essentially, religious grounds. So, were I a legislator, I would not vote for a law providing for the death penalty for child rapists.
But finding such a law to be unconstitutional is another matter. Death for the rape of a child would almost certainly not have been regarded as cruel and unusual at the time of its adoption, but Justice Kennedy argues, we must discern evolving standards of decency in applying it today.
Fair enough, but what does that mean? One possibility would be to limit application of the 8th amendment to punishments that are clearly contrary to some observable national consensus. Imagine a renegade red state that imposes death for sodomy or a blue state that imposes it for exceeding your allocated carbon usage. On this view, the Eighth Amendment wouldn't prohibit much, but maybe that's implicit in its nature - it prohibits only things that are cruel and unusual. By definition, those punishments ought to be rare.
Another view - and this seems to be the one adopted by the majority - is to say that the Eighth permits the Court to prohibit punishments that strike it as overly punitive.
The majority does argue that death for child rapists violates a national consensus, relying upon the facts that only five states have enacted such a penalty and that the defendant here is the first such offender that anyone has tried to execute. But, it seems to me, there is a difference between noting that a particular policy choice is made by few states and, as would seem to be the proper question here, concluding that this choice would shock the conscience of those who have not adopted it. As Jim Lindgren points out, there may well be majority public support for death for child rapists. That both Obama and McCain found it necessary to denounce the decision further suggests this to be the case.
Ultimately, the majority's position is that it doesn't matter anyway. The Court must, Justice Kennedy makes clear, bring its own judgment to bear.
And this brings us back to the whole business of "activist v. restraint" and the proper role of the the judiciary. How does the Court go about exercising this judgment? Where does it find the authority for whatever principle that judgment will rely upon? We know its not the original understanding of what the eighth amendment prohibits. It apparently need not be an actual national consensus that a particular penalty is cruel and unusual. On this view, the Eighth Amendment is a warrant for the Court to substitute its own relatively unfettered judgement for that of the legislature.
People like me regard this as problematic. While I support the idea of judicial review (not everybody does) and the Constitution certainly enacts restrictions on legislative majorities, there should be some discernable standard - found outside a judge's own sense of how the world should be - that governs the application of these restrictions. To say that a cruel and unusual punishment can be anything that a majority of the Court thinks goes too far is not really rooted in any external standard.
Saturday, June 21, 2008
The heck it's nap time! I've got rights!
I raised one child and have a fair amount of contact with another great little guy who is four years old. It has generally been my experience that one doesn't have to instill a sense of entitlement in the little buggers. They come with it. Apparently UNICEF feels differently.
H/T: K-Lo
H/T: K-Lo
Thursday, June 19, 2008
Obama's experience
In today's Journal Sentinel, Craig Mastantuono, echoing (perhaps reprising) a comment posted here, takes me to task for suggesting that Obama might be the least experienced person ever nominated for President by a major political party. The opbservation wasn't the point of the piece, but offered as one the reasons that people naturally look to Obama's associates for information about his philosophy and judgment.
Mastantuono cites Wendell Wilkie (who never held public office) and George W. Bush. I can't agree. Bush ran businesses and, weak or not, was governor of one of the largest states in the country for six (not, as Mastantuono asserts, four)years. Wilkie was President of the largest electrical utility in the nation. (Eisenhower had never held public office either but had commanded Allied forces in Europe during WWII.) Obama has never ran anything (except, I suppose,the Harvard Law Review when he was a 3L).
He also cites William Jennings Bryan who, when he was first nominated, had served in Congress for exactly as long as Obama. I'll give him that. Bryan's lack of experience is comparable to Obama. His association with free silver may have made him more of a lnown commodity but I have not carefully studied the presidential election of 1896. In fact, there may be further parallels in that Bryan was an eloquent populist who tended to see things as he wanted them to be rather than as they are. Of course, he never won and its a good thing that he didn't.
One might also mention Lincoln who served four terms in the Illinois legislature and one in Congress. But Lincoln was instrumental in forming the Republican Party and had become well known nationally as an anti-slavery figure.
So I'll stand by what I wrote, although Bryan may have been as inexperienced and little known as Obama.
Mastantuono cites Wendell Wilkie (who never held public office) and George W. Bush. I can't agree. Bush ran businesses and, weak or not, was governor of one of the largest states in the country for six (not, as Mastantuono asserts, four)years. Wilkie was President of the largest electrical utility in the nation. (Eisenhower had never held public office either but had commanded Allied forces in Europe during WWII.) Obama has never ran anything (except, I suppose,the Harvard Law Review when he was a 3L).
He also cites William Jennings Bryan who, when he was first nominated, had served in Congress for exactly as long as Obama. I'll give him that. Bryan's lack of experience is comparable to Obama. His association with free silver may have made him more of a lnown commodity but I have not carefully studied the presidential election of 1896. In fact, there may be further parallels in that Bryan was an eloquent populist who tended to see things as he wanted them to be rather than as they are. Of course, he never won and its a good thing that he didn't.
One might also mention Lincoln who served four terms in the Illinois legislature and one in Congress. But Lincoln was instrumental in forming the Republican Party and had become well known nationally as an anti-slavery figure.
So I'll stand by what I wrote, although Bryan may have been as inexperienced and little known as Obama.
Wednesday, June 18, 2008
More on SSM and religious liberty
Writing at the Volokh Conspiracy, Dale Carpenter, a thoughtful and fair minded proponent of same sex marriage, comments on the "religious liberty" objection to SSM. That objection, most prominently pushed by Maggie Gallagher, was restated in a column on NRO earlier this week.
Carpenter, a lawprof at Minnesota, argues that many of the recent examples cited by SSM opponents as examples of SSM impinging upon religious liberty, involved the application of general antidiscrimination laws and some occurred in states where SSM marriage is not recognized. In Carpenter's view, the pressure on religious liberty (to which he is sympathetic) stems from the general movement toward nondiscrimination on the basis of sexual orientation. There is a great deal of merit in his argument.
Dan Markel, writing at Prawfsblawg (where yours truly will take a guest turn in December)picks up on Professor Carpenter's post and argues for a fairly broad (but not unlimited)principle of nondiscrimination anchored in Professor Markel's view that "in almost all cases, sexual orientation is about as morally irrelevant as the race of a person."
I think that Professor Markel's principle illustrates the weakness in Professor Carpenter's suggestion that SSM does not extend the principle of nondiscrimination in significant ways. Let's use the the case of Catholic Charities in Boston as an example. It was essentially run out of the adoption business because it would not place children with same sex couples. Professor Markel thinks that this was the right result while Professor Carpenter would have granted them an exemption.
But SSM marriage does affect the way in which we think about the application of the nondiscrimination principle to Catholic Charities. I may believe (in fact I do) that gay and lesbian persons ought not to be discriminated against in a variety of contexts.
But I may still view marriage as an institution that requires man and a woman because it is a cultural and legal response to the particulars of male-female sexual attraction, the fact that it makes children and the belief that, all things equal, it is preferable for children to be raised by their biological parents living together. In this view, what is relevant is not so much sexual orientation but gender. I may reasonably conclude that my opposition to SSM marriage is not so much discrimination on the basis of sexual orientation but a judgment that marriage requires the union of a man and a woman. That belief may well be rooted in religious belief (see, e.g., Roman Catholic teaching on the complementarity of the sexes)- although, in my case, I am powerfully committed to secular arguments.
SSM, if widely accepted, undercuts that argument because it denies the relevance of gender to marriage. It extends the principle of nondiscrimination and leads us to Professor Markel's view that sexual orientation is almost always irrelevant.
Carpenter, a lawprof at Minnesota, argues that many of the recent examples cited by SSM opponents as examples of SSM impinging upon religious liberty, involved the application of general antidiscrimination laws and some occurred in states where SSM marriage is not recognized. In Carpenter's view, the pressure on religious liberty (to which he is sympathetic) stems from the general movement toward nondiscrimination on the basis of sexual orientation. There is a great deal of merit in his argument.
Dan Markel, writing at Prawfsblawg (where yours truly will take a guest turn in December)picks up on Professor Carpenter's post and argues for a fairly broad (but not unlimited)principle of nondiscrimination anchored in Professor Markel's view that "in almost all cases, sexual orientation is about as morally irrelevant as the race of a person."
I think that Professor Markel's principle illustrates the weakness in Professor Carpenter's suggestion that SSM does not extend the principle of nondiscrimination in significant ways. Let's use the the case of Catholic Charities in Boston as an example. It was essentially run out of the adoption business because it would not place children with same sex couples. Professor Markel thinks that this was the right result while Professor Carpenter would have granted them an exemption.
But SSM marriage does affect the way in which we think about the application of the nondiscrimination principle to Catholic Charities. I may believe (in fact I do) that gay and lesbian persons ought not to be discriminated against in a variety of contexts.
But I may still view marriage as an institution that requires man and a woman because it is a cultural and legal response to the particulars of male-female sexual attraction, the fact that it makes children and the belief that, all things equal, it is preferable for children to be raised by their biological parents living together. In this view, what is relevant is not so much sexual orientation but gender. I may reasonably conclude that my opposition to SSM marriage is not so much discrimination on the basis of sexual orientation but a judgment that marriage requires the union of a man and a woman. That belief may well be rooted in religious belief (see, e.g., Roman Catholic teaching on the complementarity of the sexes)- although, in my case, I am powerfully committed to secular arguments.
SSM, if widely accepted, undercuts that argument because it denies the relevance of gender to marriage. It extends the principle of nondiscrimination and leads us to Professor Markel's view that sexual orientation is almost always irrelevant.
Tuesday, June 17, 2008
What Andrew Greeley Just Must Know
The Wall Street Journal wonders whether the election of Barack Obama should mean the end of affirmative action. Andrew Greeley says that racism is so pervasive that his victory is unlikely. He suggests that all of the many reasons that someone might not support Obama may just mask racism. I was struck by this passage:
How many of the male readers of this column who are habitues of bars, locker rooms, commuter train bull sessions, pool rooms and men's clubs have not heard the indigenous racial slurs of such environments applied to Obama?
I can't say that I have been in a lot of pool rooms and, while I have been a member of private clubs, they were not "men's clubs." (Do these even exist anymore?.)But I do regularly hang out with some fairly conservative folks in environments where one eats red meat (but not too often, Karen) and drinks scotch. I have certainly been in bars and locker rooms and have had bull sessions. If racial slurs are "indigenous" to these environments, I have failed to hear them.
But Father Greeley is an old man. Let him indulge his smug little bigotries.
H/T; K-Lo.
How many of the male readers of this column who are habitues of bars, locker rooms, commuter train bull sessions, pool rooms and men's clubs have not heard the indigenous racial slurs of such environments applied to Obama?
I can't say that I have been in a lot of pool rooms and, while I have been a member of private clubs, they were not "men's clubs." (Do these even exist anymore?.)But I do regularly hang out with some fairly conservative folks in environments where one eats red meat (but not too often, Karen) and drinks scotch. I have certainly been in bars and locker rooms and have had bull sessions. If racial slurs are "indigenous" to these environments, I have failed to hear them.
But Father Greeley is an old man. Let him indulge his smug little bigotries.
H/T; K-Lo.
Monday, June 16, 2008
Merit selection agnostic
The Wisconsin State Journal has endorsed merit selection for the judiciary in Wisconsin. I am a merit selection skeptic, particularly when it comes to a court of last resort which will be called upon to resolve cases of first impression, make common law and decide matters of constitutional interpretation.
There's a huge irony in the move toward merit selection and appointment in Wisconsin. While there are certainly people who tend to a more conservative view of the judiciary who favor some form of appointment, the energy behind the movement - both in Wisconsin and nationally - is from those who tend to have a more liberal view of the judicial function. By this I mean those who tend to reject many of the traditional restraints on the judicial function, be they attention to the original intent of the drafters of law, or a strict adherence to its text. These folks are more likely to see the judiciary as a branch that empowers those who they believe to be unfairly disadvantaged in the political process. This does not require adherence to the letter and intent of the law as much as it requires the willingness and judgment to interpret it in a way that is thought to correct the imbalances that infect the political process. Thus, Senator Obama's most important qualification for the judicial appoinments is that someone "knows what its like to be" certain people that he believes are disadvantaged.
This view is, of course, counter-majoritarian so it as at odds with the very idea of elections. The irony is that it seeks to appropriate the judicial philosophy of those with a more conservative view of the courts, i.e., those who are more willing to accept traditional constraints on the judicial role. Judging, in this more conservative view, might also be countermajoritarian in that it insists on enforcement of the law as the legislature and executive - or framers of the constitution - have enacted it without regard to public sentiment about its enforcement in the case before it. But it is, at the end of the day, a rather modest counter-majoritarianism. It also rests in tension with the idea of elections but is not anchored in a belief that courts ought to react against and shape what political majorities have done. To the contrary, it is concerned with discerning what they have done and holding them to it. We wouldn't have to have a free speech guarantee in the Constitution but we do, so it must be interpreted and enforced. We could have a right to privacy encompassing the right to abortion in our Constitution, but we don't so we ought not to act as if we do.
This is what Chief Justice Roberts meant when he called judges "referees." Those who take a more expansive role of the judiciary are very critical of that analogy. In their view, judges cannot and should not be referees. They say it's an oversimpflication. (In part, it is, but mostly it's not.)
But when it comes time to oppose judicial elections, the analogy comes in handy so the very folks who tend to reject it jurisprudentially, embrace it politically. We need good referees and we certainly wouldn't let the players and fans vote on who they should be. What matters is that they are fair and that they are good.
But the problem is that, if there are folks and existing and potential jurists who don't believe that judges are referees, then competence is no longer the only thing we need to consider. Fairness becomes less important because these folks reject, in significant ways, the very concept of neutrality. In this world - where there are significant differences on what judges ought to be doing - saying that one candidate is more qualified than another - if by qualification we mean legal acumen -is only one relevant consideration. Nino Scalia and Ruth Bader Ginsburg are both very talented lawyers. If I gave them a Civ Pro exam, they'd ace it and critique my stupid questions. But we certainly should not be indifferent to the choice between them or pretend that it can be resolved by resort to "qualifications."
A sophisticated defense of merit selection is to say that it will result only in consideration of the Scalias and Ginsburgs. I wish that were so. Experience suggests otherwise. In further irony, the State Journal offers as a virtue of a potential merit selection plan that the commission that will screen for merit might be made up of a majority of nonlawyers. But if merit consists of legal acumen, only lawyers are able to evaluate that.
There's a huge irony in the move toward merit selection and appointment in Wisconsin. While there are certainly people who tend to a more conservative view of the judiciary who favor some form of appointment, the energy behind the movement - both in Wisconsin and nationally - is from those who tend to have a more liberal view of the judicial function. By this I mean those who tend to reject many of the traditional restraints on the judicial function, be they attention to the original intent of the drafters of law, or a strict adherence to its text. These folks are more likely to see the judiciary as a branch that empowers those who they believe to be unfairly disadvantaged in the political process. This does not require adherence to the letter and intent of the law as much as it requires the willingness and judgment to interpret it in a way that is thought to correct the imbalances that infect the political process. Thus, Senator Obama's most important qualification for the judicial appoinments is that someone "knows what its like to be" certain people that he believes are disadvantaged.
This view is, of course, counter-majoritarian so it as at odds with the very idea of elections. The irony is that it seeks to appropriate the judicial philosophy of those with a more conservative view of the courts, i.e., those who are more willing to accept traditional constraints on the judicial role. Judging, in this more conservative view, might also be countermajoritarian in that it insists on enforcement of the law as the legislature and executive - or framers of the constitution - have enacted it without regard to public sentiment about its enforcement in the case before it. But it is, at the end of the day, a rather modest counter-majoritarianism. It also rests in tension with the idea of elections but is not anchored in a belief that courts ought to react against and shape what political majorities have done. To the contrary, it is concerned with discerning what they have done and holding them to it. We wouldn't have to have a free speech guarantee in the Constitution but we do, so it must be interpreted and enforced. We could have a right to privacy encompassing the right to abortion in our Constitution, but we don't so we ought not to act as if we do.
This is what Chief Justice Roberts meant when he called judges "referees." Those who take a more expansive role of the judiciary are very critical of that analogy. In their view, judges cannot and should not be referees. They say it's an oversimpflication. (In part, it is, but mostly it's not.)
But when it comes time to oppose judicial elections, the analogy comes in handy so the very folks who tend to reject it jurisprudentially, embrace it politically. We need good referees and we certainly wouldn't let the players and fans vote on who they should be. What matters is that they are fair and that they are good.
But the problem is that, if there are folks and existing and potential jurists who don't believe that judges are referees, then competence is no longer the only thing we need to consider. Fairness becomes less important because these folks reject, in significant ways, the very concept of neutrality. In this world - where there are significant differences on what judges ought to be doing - saying that one candidate is more qualified than another - if by qualification we mean legal acumen -is only one relevant consideration. Nino Scalia and Ruth Bader Ginsburg are both very talented lawyers. If I gave them a Civ Pro exam, they'd ace it and critique my stupid questions. But we certainly should not be indifferent to the choice between them or pretend that it can be resolved by resort to "qualifications."
A sophisticated defense of merit selection is to say that it will result only in consideration of the Scalias and Ginsburgs. I wish that were so. Experience suggests otherwise. In further irony, the State Journal offers as a virtue of a potential merit selection plan that the commission that will screen for merit might be made up of a majority of nonlawyers. But if merit consists of legal acumen, only lawyers are able to evaluate that.
How awful is that Bobby Jindal anyway?
National left of center websites and our locally Illusory one seem to think that its funny and perhaps even politically significant that Lousiana Governor Bobby Jindal participated in an impromptu exorcism as a college student. (NB: This is something the Roman Catholic Church says that you should not do.)
I have never been anywhere near an exorcism and doubt that I ever will be. But I have encountered - and those close to me have encountered - events and perceptions that are not readily explained. So I don't discount or laugh at the others' experience of evil or the notion that it can be overcome by faith or prayer.
But let's just concede that this dormitory exorcism was an excess of youth. We have a young man who turned to prayer in an attempt to help a friend. This is supposed to be disqualifying while a young law student immersing himself in radical chic and a young college graduate losing himself in cocaine are entitled to dismiss these youthful indiscretions.
Kathryn Jean Lopez reports the conclusion that Jindal drew from his experience, expressed in a descriptive piece in the New Oxford Review:
“I learned a lasting lesson in humility and the limits of human understanding. Was the purpose of that night served when so many individuals were inducted into the Church? Did I witness spiritual warfare? I do not have the answers, but I do believe in the reality of spirits, angels, and other related phenomena that I can neither touch nor see.”
Well that certainly should disqualify him for higher office.
I have never been anywhere near an exorcism and doubt that I ever will be. But I have encountered - and those close to me have encountered - events and perceptions that are not readily explained. So I don't discount or laugh at the others' experience of evil or the notion that it can be overcome by faith or prayer.
But let's just concede that this dormitory exorcism was an excess of youth. We have a young man who turned to prayer in an attempt to help a friend. This is supposed to be disqualifying while a young law student immersing himself in radical chic and a young college graduate losing himself in cocaine are entitled to dismiss these youthful indiscretions.
Kathryn Jean Lopez reports the conclusion that Jindal drew from his experience, expressed in a descriptive piece in the New Oxford Review:
“I learned a lasting lesson in humility and the limits of human understanding. Was the purpose of that night served when so many individuals were inducted into the Church? Did I witness spiritual warfare? I do not have the answers, but I do believe in the reality of spirits, angels, and other related phenomena that I can neither touch nor see.”
Well that certainly should disqualify him for higher office.
Sunday, June 15, 2008
The last thing it takes is a family
In what certainly has to be in the running for most embarassing op-ed of the year, Judy Warner says that the difference between a father-daughter ball promoting abstinence and a man who kept his daughter locked in the basment and raped her is "only a matter of degree." For Warner, the idea that fathers may have an interest in helping their daughters avoid the perils of the hook-up culture is a "horror" and an "emotional violence" not unlike incest.
Yeah, right.
It's ironic that those on the left who see the family as a model for the state often have great antipathy for actual families. If I had a daughter, I doubt I'd ever attend an event like that and I am uncomfortable with some of the language that is used. I don't think that someone who has sex before marriage is "unpure" although I also realize that social conventions often require a powerful narrative to be inculcated and its more compelling to call for young women to be "pure" than it is to ask them to be "prudent" which in my view is the value underlying abstinence or, at at least, for young girls, the avoidance of casual sex.
But it takes a powerful bigotry to equate it with rape.
.
Yeah, right.
It's ironic that those on the left who see the family as a model for the state often have great antipathy for actual families. If I had a daughter, I doubt I'd ever attend an event like that and I am uncomfortable with some of the language that is used. I don't think that someone who has sex before marriage is "unpure" although I also realize that social conventions often require a powerful narrative to be inculcated and its more compelling to call for young women to be "pure" than it is to ask them to be "prudent" which in my view is the value underlying abstinence or, at at least, for young girls, the avoidance of casual sex.
But it takes a powerful bigotry to equate it with rape.
.
Wednesday, June 11, 2008
Canadian liberty
Some of us remain under the false impression that Canada is a free country. Free speech, however, is not apparently not a Canadian value. The Alberta Human Rights and Citizen Commission recently ordered that a preacher "shall cease publishing in newspapers, by email, on the radio, in public speeches, or on the internet, in future, disparaging remarks about gays and homosexuals ...." The minister had published a letter in the Red Deer Advocate that harshly criticized what it called the "militant homosexual agenda" which he regards as "evil" and "wicked." Harsh and provocative stuff but clearly protected speech in the US.
Last week, a complaint against Mark Steyn was considered by the British Columbia Human Rights Tribunal. Steyn has written a book suggesting that demographic changes in Europe dramatically increasing the proportion of the population that is Muslim will dramatically change the nature of those societies. This is, of course, almost certainly true. (It is already happening in the UK and the Netherlands.)
But it's unlawful in Canada to say so.
Eugene Volokh points out that the Canadian Supreme Court originally upheld the Canadian "hate speech" ban because it thought that it would be limited to extremely offensive statements. That was incredibly naive. The purpose of hate speech laws is to remake society. It is, quite literally, to abolish heresy and that can't be done by abolishing only the most vulgar and inflammatory statements.
Last week, a complaint against Mark Steyn was considered by the British Columbia Human Rights Tribunal. Steyn has written a book suggesting that demographic changes in Europe dramatically increasing the proportion of the population that is Muslim will dramatically change the nature of those societies. This is, of course, almost certainly true. (It is already happening in the UK and the Netherlands.)
But it's unlawful in Canada to say so.
Eugene Volokh points out that the Canadian Supreme Court originally upheld the Canadian "hate speech" ban because it thought that it would be limited to extremely offensive statements. That was incredibly naive. The purpose of hate speech laws is to remake society. It is, quite literally, to abolish heresy and that can't be done by abolishing only the most vulgar and inflammatory statements.
Sunday, June 08, 2008
Anachronistic Rock
In honor of the One that will save us - work us hard and not let us return to our miserable present selves - make us, for the first time, proud of our country - fix the holes in our souls - and turn the rock into living waters, I offer Barry McGuire:
Thinking About the O
I am working on a column for next Sunday's Journal Sentinel on the relevance of the Rev. Wright and related phenomena to the Obama campaign. Today, the paper ran a piece on Obama's performance among blue collar workers in Wisconsin which was significantly better than it was elsewhere. The story skirts around what I believe to be the most plausible explanation. It comes closest at the end when it suggests that part of the reason may have been that Wisconsin voted before the Wright controversy (although, as author Craig Gilbert points out, Obama did poorly among blue collar voters in other states before the Wright controversy began as well).
Where I begin to differ is with Gilbert's summary of the Wright controversy as a matter of race. I don't doubt that it has racial aspects, although they are not so easily characterized. Part of the reaction to Wright might be a sort of racist revulsion at an overly assertive black preacher associated with Obama. Or it could be, as Linda Chavez points out in the recent issue of Commentary, a perception on the part of whites of a breach in the conditions for racial reconciliation. Her argument, as I understand it, is that whites who see Wright (and the reaction of his parishioners) are stunned by black hostility toward the white world and become wary about voting for a black candidate who has associated with that hostility. In fact, I suppose it is hard to know where the latter ends and the former begins. I imagine that some people would see no distinction between the two.
My own sense is that Obama has - and continues - to go through a process of definition. He has tried to run a post-ideological campaign. But he is, of course, anything but post-ideological. He is, in fact, probably one of the most ideological candidates to run for President and probably well to the left of any Democratic nominee since George McGovern.
He may also be one of the most arrogant.
You can see both characteristics in his gaseous victory speech last week in which he noted, with self described "humility," that perhaps his ascendancy is the moment that our 233 year old country- the most prosperous and free nation in human history - "began to provide care for the sick and good jobs to the jobless; this was the moment when the rise of the oceans began to slow and our planet began to heal… This was the moment — this was the time — when we came together to remake this great nation… ."
Dude, get over yourself.
As Mark Steyn puts it, Obama has to order the receding of the waters. He doesn't want to have to use a stepladder whenever he wants to walk on them.
But this may work this year. Bush has made too many mistakes. The stars are aligned with the Democrats. Although Obama, near as I can tell, wants to return to the policies that brought us the economic stagnation and global impotence of the 70s, our communal memory is short. They may be a mistake that we need to make again.
It also be that the desire to elect a black president as a statement of racial redemption - a desire that I regard as admirable - may prove decisive.
Where I begin to differ is with Gilbert's summary of the Wright controversy as a matter of race. I don't doubt that it has racial aspects, although they are not so easily characterized. Part of the reaction to Wright might be a sort of racist revulsion at an overly assertive black preacher associated with Obama. Or it could be, as Linda Chavez points out in the recent issue of Commentary, a perception on the part of whites of a breach in the conditions for racial reconciliation. Her argument, as I understand it, is that whites who see Wright (and the reaction of his parishioners) are stunned by black hostility toward the white world and become wary about voting for a black candidate who has associated with that hostility. In fact, I suppose it is hard to know where the latter ends and the former begins. I imagine that some people would see no distinction between the two.
My own sense is that Obama has - and continues - to go through a process of definition. He has tried to run a post-ideological campaign. But he is, of course, anything but post-ideological. He is, in fact, probably one of the most ideological candidates to run for President and probably well to the left of any Democratic nominee since George McGovern.
He may also be one of the most arrogant.
You can see both characteristics in his gaseous victory speech last week in which he noted, with self described "humility," that perhaps his ascendancy is the moment that our 233 year old country- the most prosperous and free nation in human history - "began to provide care for the sick and good jobs to the jobless; this was the moment when the rise of the oceans began to slow and our planet began to heal… This was the moment — this was the time — when we came together to remake this great nation… ."
Dude, get over yourself.
As Mark Steyn puts it, Obama has to order the receding of the waters. He doesn't want to have to use a stepladder whenever he wants to walk on them.
But this may work this year. Bush has made too many mistakes. The stars are aligned with the Democrats. Although Obama, near as I can tell, wants to return to the policies that brought us the economic stagnation and global impotence of the 70s, our communal memory is short. They may be a mistake that we need to make again.
It also be that the desire to elect a black president as a statement of racial redemption - a desire that I regard as admirable - may prove decisive.
Wednesday, June 04, 2008
The truth about Janesville
The closing of the Janesville GM plant is certainly a blow for that community. GM and the other American auto manufacturers are certainly subject to criticism for failure to anticipate market changes that would reduce demand for SUVs and trucks. The rush on the left to find out who else is to blame for not preventing this reflects - once again - a misunderstanding of basic economics.
Jay Bullock, for example, can't resist blaming George Bush (although he lacks even a plausible reason) and (literally) everyone else for not saving GM from itself. His argument is, essentially, that GM shouldn't have built SUVs, it shouldn't have been allowed to build SUVs and consumers should not have wanted them. The underlying assumption is that someone should have done something to make sure that whatever was built in Janesville should never become unwanted.
That type of "industrial policy" is, of course, a recipe for economic stagnation. It would result in far fewer plants to risk one day being closed because it would necessarily require policies that restrict market changes and would require the government to interfere in the market, artificially manipulating supply and demand in a way that would stifle innovation and responsiveness to consumer needs and desires.
In Jay's world, the government would have acted to prevent GM from building SUVs so that now it would not have to stop making them and, as a consequence, throw people out of work. Putting aside the obvious, i.e., that in such a world, GM may have produced nothing in Janesville, the government has no particular expertise in determining what people should or not should not build and want. Rather, the market - through prices - best matches demand with supply.
Sometimes this results in companies going out of business and people losing jobs. Plants that manufacture film, paper checks, and audio or videocassettes are probably not doing well. But the government should not have decreed that they stop producing these things or prevented others from producing digital cameras, developing on-line payment systems or DVDs. As market conditions change or new products are developed, some companies and individuals will lose.
If there is a role for public policy here, it is in internalizing market externalities and helping persons in transition. While some may argue that SUVs or gas should have been more heavily taxed to reflect their contribution to air pollution, certainly no one in Janesville would have supported that. That would have reduced demand - which is precisely what higher gas prices have done.
But what happened here - as tough as it is for Janesville - is what ought to have happened. GM was slow to see changes in the marketplace and is now responding to those changes. It's not the fault of George Bush, the GOP, NAFTA, taxes in Wisconsin or the failure to manage the economy from Capitol Hill.
Of course, the closing (and the circumstances that compel it) are tragic for Janesville and GM. But the claim that we can live in a world where these things never happen is a false - and ultimately cruel - promise.
Jay Bullock, for example, can't resist blaming George Bush (although he lacks even a plausible reason) and (literally) everyone else for not saving GM from itself. His argument is, essentially, that GM shouldn't have built SUVs, it shouldn't have been allowed to build SUVs and consumers should not have wanted them. The underlying assumption is that someone should have done something to make sure that whatever was built in Janesville should never become unwanted.
That type of "industrial policy" is, of course, a recipe for economic stagnation. It would result in far fewer plants to risk one day being closed because it would necessarily require policies that restrict market changes and would require the government to interfere in the market, artificially manipulating supply and demand in a way that would stifle innovation and responsiveness to consumer needs and desires.
In Jay's world, the government would have acted to prevent GM from building SUVs so that now it would not have to stop making them and, as a consequence, throw people out of work. Putting aside the obvious, i.e., that in such a world, GM may have produced nothing in Janesville, the government has no particular expertise in determining what people should or not should not build and want. Rather, the market - through prices - best matches demand with supply.
Sometimes this results in companies going out of business and people losing jobs. Plants that manufacture film, paper checks, and audio or videocassettes are probably not doing well. But the government should not have decreed that they stop producing these things or prevented others from producing digital cameras, developing on-line payment systems or DVDs. As market conditions change or new products are developed, some companies and individuals will lose.
If there is a role for public policy here, it is in internalizing market externalities and helping persons in transition. While some may argue that SUVs or gas should have been more heavily taxed to reflect their contribution to air pollution, certainly no one in Janesville would have supported that. That would have reduced demand - which is precisely what higher gas prices have done.
But what happened here - as tough as it is for Janesville - is what ought to have happened. GM was slow to see changes in the marketplace and is now responding to those changes. It's not the fault of George Bush, the GOP, NAFTA, taxes in Wisconsin or the failure to manage the economy from Capitol Hill.
Of course, the closing (and the circumstances that compel it) are tragic for Janesville and GM. But the claim that we can live in a world where these things never happen is a false - and ultimately cruel - promise.
Monday, June 02, 2008
Obama cannot be permitted to lose
South Dakota and Montana can't get him there but Barack Obama is just about over the line in his pursuit of the Democratic nomination. But is Hillary Clinton unveiling a new end game? Most of the talk about how close Obama is and how Hillary can't win is premised on the understandable assumption that superdelegates who have announced the support for him are somehow irrevocably "his."
It's a good working assumption but, of course, it's not true. "Obama" superdelegates are perfectly free to change their minds. The public debate over what they ought to do (reflect Obama's lead among the committed delegates or follow a mythical national "popular vote" which can itself be measured in multiple ways) doesn't much reflect what they should and will do.
The whole point of having uncommitted superdelegates is to allow supposedly seasoned professionals to make a judgment about what is in the best interests of the party independent of what the voters have done in the state primaries. At this point (and contrary to my own earlier assumption), it appears that Hillary is a somewhat stronger general election candidate than Obama. It's not clear that her advantage is clear enough to warrant a reversal of the party's movement toward Obama as its voters are increasingly moving toward Clinton.
But even if it was, the Democrats are in a box. Dumping Obama would threaten to break the modern connection between African-American voters and Democrats. These voters have come to believe (with some justification) that Obama has earned the nomination and that taking it from him would be an act of disrespect toward an important constituency. Without African-Americans, the Democrats can't win. Ever. Even if, given the likely identification of Obama with far left politics, Clinton is the stronger candidate, there is no choice to be made here.
That's why its over and has been since Super Tuesday.
It's a good working assumption but, of course, it's not true. "Obama" superdelegates are perfectly free to change their minds. The public debate over what they ought to do (reflect Obama's lead among the committed delegates or follow a mythical national "popular vote" which can itself be measured in multiple ways) doesn't much reflect what they should and will do.
The whole point of having uncommitted superdelegates is to allow supposedly seasoned professionals to make a judgment about what is in the best interests of the party independent of what the voters have done in the state primaries. At this point (and contrary to my own earlier assumption), it appears that Hillary is a somewhat stronger general election candidate than Obama. It's not clear that her advantage is clear enough to warrant a reversal of the party's movement toward Obama as its voters are increasingly moving toward Clinton.
But even if it was, the Democrats are in a box. Dumping Obama would threaten to break the modern connection between African-American voters and Democrats. These voters have come to believe (with some justification) that Obama has earned the nomination and that taking it from him would be an act of disrespect toward an important constituency. Without African-Americans, the Democrats can't win. Ever. Even if, given the likely identification of Obama with far left politics, Clinton is the stronger candidate, there is no choice to be made here.
That's why its over and has been since Super Tuesday.
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