Saturday, May 30, 2009

The Illinois Rules

Pundits have had fun playing with Sean Connery's "Chicago rules" line from "The Untouchables." Critics of the President have used it when questioning some of his choices. But it turns out that the rules are applicable not only to corruption in Chicago, but to the rest of the state. We've had the governor resign after he was caught on tape soliciting bribes for naming the President's successor. Now we have that successor being caught on tape winking and nodding about giving a bribe in order to gain that seat.

Now comes the Chicago Tribune with a blockbuster investigation about how influential politicians have gotten friends and relatives admitted to the University of Illinois despite those applicants low skills simply by pressing the admissions office to stretch their rules to let in the politically connected.
At a time when it's more competitive than ever to get into the University of Illinois, some students with subpar academic records are being admitted after interference from state lawmakers and university trustees, a Tribune investigation has revealed.

Hundreds of applicants received special consideration in the last five years, according to documents obtained by the Tribune under the state's Freedom of Information Act. The records chronicle a shadow admissions system in which some students won spots at the state's most prestigious public university over the protests of admissions officers, while others had their rejections reversed during an unadvertised appeal process.

In one case, a relative of Antoin "Tony" Rezko, the now-convicted influence peddler for former Gov. Rod Blagojevich, got admitted after U. of I. President B. Joseph White wrote an e-mail stating that the governor "has expressed his support, and would like to see admitted" Rezko's relative and another applicant.

White's message to the university chancellor was passed on to admissions officials on the same day they entered a rejection decision for the Rezko relative. "He's actually pretty low," replied an admissions officer, referring to the applicant's ACT score and other credentials. "Let me know when the denial letter can go out."

Instead, the relative was admitted.
We always suspected that this sort of thing went on. Now the Tribune has gotten the inculpatory emails to demonstrate how the system worked. As you read through those emails, picture the hard-working kid who didn't get in and whose position maybe went to one of these highly connected kids. For example,
Keith Marshall, associate provost for enrollment management, instructs the admissions office to accept a student after trustee Robert Sperling checks on the applicant's status.

"... He has a (redacted) ACT and is (redacted) percentile at Stevenson. He would be another good candidate for June. ... Hope we don't take too big of a hit for putting him in ahead of other more qualified students."
Or
Paul Pless, assistant dean of law school admissions, rails against admitting an unqualified student. He suggests the student will drag down the school's GPA and LSAT goals, meaning the university will have to admit two additional students to offset any negative impact to the program's reputation.

"...This is now the third candidate that we have been forced to admit. ... (Redacted) will not be a successful student here and I have very real concerns about his ability to pass the Bar. ... we are setting this young man up to fail."
This is a public university and, as such, particularly susceptible to the pressure of politicians. But it is also responsible to the taxpayers of the state that they are not admitting students just because they have backers with political clout. Maybe that goes on all the time at the prestige private colleges, but a public university has a different responsibility.
But the Tribune review of about 1,800 pages of documents shows politically appointed trustees and lawmakers routinely behave as armchair admissions officers advocating on behalf of relatives and neighbors -- even housekeepers' kids and families with whom they share Hawaiian vacations. They declare their candidates "no brainers" for admission and suggest that if they are not accepted, the admissions system may need revamping.

The investigation found:

--University officials recognized that certain students were underqualified -- but admitted them anyway.

--Admissions officers complained in vain as their recommendations were overruled.

--Trustees pushed for preferred students, some of whom were friends, neighbors and relatives.

--Lawmakers delivered admission requests to U. of I. lobbyists, whose jobs depend on pleasing the lawmakers.

--University officials delayed admissions notifications to weak candidates until the end of the school year to minimize the fallout at top feeder high schools.
It's the same sort of thing that went on to get Chris Dodd and Kent Contrad a "Friends of Angelo" mortgage at Countrywide. We all know that these sorts of shenanigans go on, but at least when they are revealed in the light of day we can stamp out one little effort at rewarding the politically connected over the average guy.

This was a great investigative story and kudos to the Tribune for pursuing it. I wonder if they got a tip by one of those admissions officers in the emails who expressed dismay at what was happening. Maybe journalists in other states will start their own investigation to see if their public universities are also playing by Illinois rules.

When humor is pretty close to reality

The Onion put up this little blurb yesterday and it really strikes close to home.
Obama Revises Campaign Promise Of 'Change' To 'Relatively Minor Readjustments In Certain Favorable Policy Areas'

WASHINGTON—In a slight shift from his campaign trail promise, President Obama announced Monday that his administration's message of "Change" has been modified to the somewhat more restrained slogan "Relatively Minor Readjustments in Certain Favorable Policy Areas." "Today, Americans face a great many challenges, and I hear your desperate calls for barely measurable and largely symbolic improvements in the status quo," said Obama, who vowed never to waver in his fight for every last infinitesimal nudge forward on the controversial issues of torture and the military ban on homosexuals. "Remember: Yes we can, if by that you mean tiptoeing around potentially unpopular decisions that could alienate a large segment of the populace."
The best humor always has an element of truth in it. The only element that isn't true in this is that the Obama administration would ever admit straightforwardly that this is exactly what they are doing.

Meanwhile, Andy Borowitz has captured our approach to North Korea.
U.S. to Respond to North Korea with ‘Strongest Possible Adjectives'
Obama: We are Prepared to Consult Thesaurus

One day after North Korea launched a successful test of a nuclear weapon, President Obama said that the United States was prepared to respond to the threat with "the strongest possible adjectives."

In remarks to reporters at the White House, Mr. Obama said that North Korea should fear the "full force and might of the United States' arsenal of adjectives" and called the missile test "reckless, reprehensible, objectionable, senseless, egregious and condemnable."

Standing at the President's side, Vice President Joseph Biden weighed in with some tough adjectives of his own, branding North Korean President Kim Jong-Il "totally wack and illin'."

Later in the day, Defense Secretary Robert Gates called the North Korean nuclear test "supercilious and jejune," leading some in diplomatic circles to worry that the U.S. might be running out of appropriate adjectives with which to craft its response.

But President Obama attempted to calm those fears, saying that the United States was prepared to "scour the thesaurus" to come up with additional adjectives and was "prepared to use adverbs" if necessary.

"Let's be clear: we are not taking adverbs off the table," Mr. Obama said. "If the need arises, we will use them forcefully, aggressively, swiftly, overwhelmingly and commandingly."
And those late night hosts still can't seem to find a way to make fun of President Obama. Here are two examples of how to do it.

Friday, May 29, 2009

Good luck to my school's soccer team

The girl's soccer team of my school is playing tomorrow in the state 1-A championship. There was a nice article in the Raleigh News and Observer about how the athletes at our school balance school and academics with other extracurricular activities. Having taught a couple of the girls quoted in the article, I can testify that these are fully rounded athletes who are a joy to have in the classroom. Best wishes to them tomorrow in the championship.

Judging between the seen and the unseen

Law professor John Hasnas has an important essay in the WSJ today based on the 19th century economist Frederic Bastiat's argument about how we need to look to the unseen consequences of an action as well as the seen. He applies Bastiat's insight to the idea that we need empathy in our judges. The question is: who deserves our empathy? Is it the victim in court before us or those unseen victims who will suffer the consequences of a bad judgment?
Compassion is defined as a feeling of deep sympathy for those stricken by misfortune, accompanied by a strong desire to alleviate the suffering; empathy is the ability to share in another's emotions, thoughts and feelings. Hence, a compassionate judge would tend to base his or her decisions on sympathy for the unfortunate; an empathetic judge on how the people directly affected by the decision would think and feel. What could be wrong with that?

Frederic Bastiat answered that question in his famous 1850 essay, "What is Seen and What is Not Seen." There the economist and member of the French parliament pointed out that law "produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them." Bastiat further noted that "[t]here is only one difference between a bad economist and a good one: The bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen."

This observation is just as true for judges as it is for economists. As important as compassion and empathy are, one can have these feelings only for people that exist and that one knows about -- that is, for those who are "seen."

One can have compassion for workers who lose their jobs when a plant closes. They can be seen. One cannot have compassion for unknown persons in other industries who do not receive job offers when a compassionate government subsidizes an unprofitable plant. The potential employees not hired are unseen.

One can empathize with innocent children born with birth defects. Such children and the adversity they face can be seen. One cannot empathize with as-yet-unborn children in rural communities who may not have access to pediatricians if a judicial decision based on compassion raises the cost of medical malpractice insurance. These children are unseen.
This is such an important insight. But it is a difficult one to get across to people. Most people aren't attuned to looking towards the unintended consequences of government actions or judicial decisions. This is a particular emphasis in economics, but we know that the majority of reporters and the population aren't all that well trained in such economic thinking.

So politicians cater to the short term and the obvious rather than trying to make a coherent argument about the long-term consequences of policy choices. And as Hasnas points out, this can apply in judicial decisions also. When we discuss empathy in judging, the implication is that some litigants are more deserving of empathy than others. And who will care about those unseen victims of a bad decision?
The law consists of abstract rules because we know that, as human beings, judges are unable to foresee all of the long-term consequences of their decisions and may be unduly influenced by the immediate, visible effects of these decisions. The rules of law are designed in part to strike the proper balance between the interests of those who are seen and those who are not seen. The purpose of the rules is to enable judges to resist the emotionally engaging temptation to relieve the plight of those they can see and empathize with, even when doing so would be unfair to those they cannot see.

Calling on judges to be compassionate or empathetic is in effect to ask them to undo this balance and favor the seen over the unseen. Paraphrasing Bastiat, if the difference between the bad judge and the good judge is that the bad judge focuses on the visible effects of his or her decisions while the good judge takes into account both the effects that can be seen and those that are unseen, then the compassionate, empathetic judge is very likely to be a bad judge. For this reason, let us hope that Judge Sotomayor proves to be a disappointment to her sponsor.
With both the seen and unseen being affected by judicial decisions, it's hard to balance out who is more deserving of empathy. That is why we want justice to be blind and to apply the law. Leave the politicians to decide the policy and make the laws. Let the judges apply that law and decide if the law violates the Constitution. That is how the division of labor is decided in our system.

Political appointees overrule career lawyers in the Justice Department

Remember how accusations of the politicization of the Justice Department was a major accusation hurled at the Bush administration? There is still an investigation going on over the firing of the U.S. federal prosecutors. Eric Holder swore his deference to the career attorneys in his confirmation hearings. Well, the Washington Times has an interesting story about how the political appointees have overruled the career lawyers and dismissed a case that seemed sure to bring guilty verdicts against members of the New Black Panther Party who had stationed themselves in full Black Panther regalia including nightsticks outside a polling place in Philadelphia during this past election.
Justice Department political appointees overruled career lawyers and ended a civil complaint accusing three members of the New Black Panther Party for Self-Defense of wielding a nightstick and intimidating voters at a Philadelphia polling place last Election Day, according to documents and interviews.

The incident - which gained national attention when it was captured on videotape and distributed on YouTube - had prompted the government to sue the men, saying they violated the 1965 Voting Rights Act by scaring would-be voters with the weapon, racial slurs and military-style uniforms.

Career lawyers pursued the case for months, including obtaining an affidavit from a prominent 1960s civil rights activist who witnessed the confrontation and described it as "the most blatant form of voter intimidation" that he had seen, even during the voting rights crisis in Mississippi a half-century ago.

The lawyers also had ascertained that one of the three men had gained access to the polling place by securing a credential as a Democratic poll watcher, according to interviews and documents reviewed by The Washington Times.

The career Justice lawyers were on the verge of securing sanctions against the men earlier this month when their superiors ordered them to reverse course, according to interviews and documents. The court had already entered a default judgment against the men on April 20.

....The complaint said the three men engaged in "coercion, threats and intimidation, ... racial threats and insults, ... menacing and intimidating gestures, ... and movements directed at individuals who were present to vote." It said that unless prohibited by court sanctions, they would "continued to violate ... the Voting Rights Act by continuing to direct intimidation, threats and coercion at voters and potential voters, by again deploying uniformed and armed members at the entrance to polling locations in future elections, both in Philadelphia and throughout the country."

To support its evidence, the government had secured an affidavit from Bartle Bull, a longtime civil rights activist and former aide to Sen. Robert F. Kennedy's 1968 presidential campaign. Mr. Bull said in a sworn statement dated April 7 that he was serving in November as a credentialed poll watcher in Philadelphia when he saw the three uniformed Panthers confront and intimidate voters with a nightstick.

....He also said he overheard one of the men tell a white poll watcher: "You are about to be ruled by the black man, cracker."
The Justice Department was just days away from getting a default judgment and penalties against the three men, particularly since the men were not showing up for their hearings, when the political appointees overruled the career lawyers and dismissed the case that had been built up. If you read the Times story, it is clear that someone in the Justice Department who was unhappy with this outcome spilled the whole story to the paper.

As always, it is helpful to turn the story around and imagine the outrage. Picture what the result would have been if white men dressed in pseudo-military outfits and armed with nightsticks had stood outside a polling place and made racist comments about the upcoming election results to black voters. You know that they'd be slapped with Voting Rights Act violations so fast that their heads would still be spinning. And if the story came out that the Bush political appointees had overruled the career lawyers to dismiss a sure verdict against the transgressors, there would be howls of outrage and calls for all sorts of political investigations on the Hill.

With this story, expect to hear only the chirp of crickets.

The science news cycle

The media does a poor job of reporting on many issues with which they're unfamiliar. I've heard the Supreme Court justices use this as a reason for not allowing cameras in the Court because they were afraid that the media would show clips out of context. Seeing past reporting on Constitutional issues has not given them confidence. I've also heard scientists complain about the same thing. How many times have we heard some new study touted as meaning that a cure for cancer or Alzheimer's is around the corner? Remember this Time Magazine cover from 1980 looking at the promise of interferon?

So I laughed out loud at this cartoon from Reason Magazine.
(Link via Chad Wilcox)

Thursday, May 28, 2009

More unintended consequences from government interference in the auto industry

David Indiviglio writes about how the fact that government came down on the side of the unions in trying to wind up Chrysler and GM's bankruptcies might actually harm the unions that Obama's administration is trying to help. If the lesson is that bondholders will get the short end of the stick in such actions, then people won't want to invest in heavily unionized companies.
Bond investors literally can't afford to lend to unionized companies because it's clear that current power in Washington will take the unions' side, despite past bankruptcy law precedents that favor senior creditors. That means Washington's actions in pushing for these bankruptcy verdicts to come out in favor of the unions will probably hurt unionized companies in the long run. As a result, it might be wise for Washington to reconsider the precedents it's setting for unionized companies undergoing bankruptcy.
Of course, the administration's policies are all about the short run, whether it be massively increasing the deficit, playing to Nevadans who don't want nuclear waste at Yucca Mountain, or appealing to moral vanity by announcing that Obama will close Guantanamo. Who cares about the long run - that will probably occur on some other president's watch.

Let's have some empathy for the lower class white guys

David Paul Kuhn, author of The Neglected Voter: White Men and the Democratic Dilemma, has a column today about how the Sotomayor nomination gives new emphasis to the case Ricci v. De Stefano highlights the issue of reverse discrimination. Frank Ricci, the dyslexic fireman who spent his own money to pay someone to read the books he needed to prepare for the promotion exam and then didn't get the promotion because New Haven was worried that no blacks had passed the exam is an example of a plaintiff who didn't earn the empathy of Sotomayor and her fellow judges. As Kuhn writes, while affirmative action might have made sense 40 years ago, it now has become an ossified notion that immediately assumes that all white males have a privilege and advantage that minorities and women can never hope to attain. Thus the logic of discriminating against them.
Ricci personalizes a policy that has been easily digested because it often involves statistics and not people. Now Obama and Democrats, as much as the high court, face the people harmed by that policy.

It was Obama who said in November 2007 that the Supreme Court should, "protect people who may be vulnerable in the political process" and "those who don't have a lot of clout."

Ricci personifies the vast majority of middle and working class white men who lack clout. This is at the heart of the brooding angst over affirmative action. The sense of dissatisfaction among these men is less that they were being blamed for past white men's ills, as Obama noted in his race speech, than the practical impact of opportunity lost.

Affirmative action skewed two generations of white men's sense of fairness. They came to believe that their gender and race worked against them. To many of these men affirmative action meant a domino effect of events hindering their ability to get into the right school, get the right job, earn more money and even, in their view, win a spouse. This is precisely how minorities often feel.

But liberals, and to an extent society at large, have long failed to sympathize with the white men who share this sense of struggle with the Sotomayors of the country.
Today, the divide of thought on affirmative action follows the divide on who benefits from the policy.

If you want to get a peek of how affirmative action has distorted our society, read Matt Labash's humorous, yet dismaying report on his visit to the Ninth Annual National Multicultural Business Conferenceas groups are trained to seek government contracts by hiring certain approved minorities in order to get those government set asides.
I take a cheese plate to a stand-up table and get down to networking with a guy in a loud Hawaiian shirt, who served in the Special Forces in Vietnam. He's Raymond Jardine of the subtly named Native Hawaiian Veterans LLC, which does not, as it might sound, run Pearl Harbor bus tours, but provides services such as setting up security systems for the State Department. "I'm Hawaiian, and I'm Cherokee," he tells me. "Actually, there's four total designations: 8(a), Small Disadvantaged Business Status, Service-Disabled Veteran Status, and uhhhh, what's the other one? Native status!"

In the "diversity-owned" small-business world, this is the equivalent of a mating call to companies of all sorts, looking to check off their subcontracting diversity blocks for everything from women to disabled-service veterans to every other imaginable minority. It's desirable in the private sector and even more so in the Beltway Bandit government-contracting sector, where lots of business comes in the form of set-asides, specifically designated quotas for these disadvantaged subgroups.

By "disadvantaged," I mean no disrespect. For that is the actual language of the Small Business Administration's 8(a) Business Development program, which equates minority status with having a handicap. To qualify for 8(a) status--what one federal procurement consultant calls the "golden ticket"--companies must prove themselves either socially or economically disadvantaged. And who are "socially disadvantaged individuals?" Well, pretty much every nonwhite person in America, according to the SBA.

It's not just the province of blacks, whom the program, born in the 1960s, was originally intended to help, nor just that of Hispanic or Native Americans. The roll call of SBA-designated sufferers has become rather long and grows ever longer, lately including persons with origins from Samoa, Brunei, Republic of the Marshall Islands, Federated States of Micronesia, Macao, Tonga, Kiribati, Tuvalu, Bhutan, and the Maldives. "In the absence of evidence to the contrary," says the SBA, "individuals who are members" of these "designated groups are presumed to be socially disadvantaged."

But no worries, angry white male. Those who haven't had the advantage of being disadvantaged can also "claim social disadvantage." They just "must establish social disadvantage on the basis of a 'preponderence of evidence.' " This can come in the form of everything from job-application rejection letters to "contemporaneous records memorializing meetings." It explains why a white male former neighbor of mine, who does big construction contracts for the federal government in D.C., would brag to me that he made his female black secretary a business partner: Companies of all hues now seek to collect Rummy hands of disadvantage.

Especially as I had thought Jardine was repeating himself when he said he was both 8(a) and a Small Disadvantaged Business, which seemed a bit like calling yourself both fat and tubby. But the Small Business Administration assures me there are distinctions, they just neglected to clearly articulate what they are. According to the definitions on my DiversityBusiness.com glossary, a certified 8(a) firm is "owned and operated by socially and economically disadvantaged individuals and eligible to receive federal contracts" under the SBA's 8(a) Business Development Program. Whereas a Small Disadvantaged Business concern "is at least 51 percent unconditionally owned by one or more individuals who are both socially and economically disadvantaged." See the difference? Me neither. But as long as it represents more money for everyone from small businesses, to lawyers, to the consultants paid to figure this stuff out, nobody seems to mind.
Lewis Carroll couldn't have described a more topsy-turvy world. Read the whole thing. You will be slack-jawed at how distorted our world has become where everyone now seeks to claim victim status and the business opportunities that ensue if you can prove such a status. Remember, these groups gain advantages merely by belinging to one of these designated groups, not necessarily because they themselves have suffered a disadvantage.

In fact, with all these categories of being disadvantaged, perhaps Frank Ricci should have claimed victim status to get his promotion.

Silly reasons to reject a college

The New York Times blog on college admissions links to this discussion thread at College Confidential with parents posting comments on the “stupidest reason a child won’t look at a college.” Some entries included rejecting a college because the student leading the tour wore sandals or a student who rejected Duke because there were too many southern accents. There are the students who won't apply because they grew up opposing that school's sports teams. I had a student once who wouldn't apply to Duke because he'd grown up rooting for UNC.

One boy wouldn't apply to Washington University because there were just too many schools with Washington in their names while another student rejected Stanford because he thought the architecture was too "Taco Bell." And then there is the student who rejected the University of Michigan because of the size of the squirrels. There are those who reject Princeton because it's in New Jersey and those who applied to Yale because of Rory Gilmore going there on "The Gilmore Girls."

Many of the parents comment on how their child rejected a school because they didn't like the tour guide or the people in the admissions office. I can relate. When we toured Georgetown, I was very irritated by the girl giving the tour who wore see-through pink pants and a black thong that was completely visible through the pants. My daughter agreed that this was a distasteful sartorial decision but wouldn't have rejected the school for that reason - it might have been her choice if she hadn't gotten a scholarship offer elsewhere.

I always wonder at kids who come back from their college visits enthralled or put off by the school. When I ask them what they liked, it's often that the people seemed nice or off-putting. It's so serendipitous that the few people they happened to meet on an afternoon's tour will have such an impact on why they choose a school. But at least it wasn't the squirrels playing the determinative role in their decision!

Wednesday, May 27, 2009

Sonia Sotomayor didn't save baseball

George Will isn't impressed with Judge Sotomayor's role in ending the baseball strike and takes issue with President Obama's characterization of her having saved baseball.
"The president is a gentleman and a scholar and a great ornament to our society, but he's not a great baseball historian," Will told us.

"He says that when she ended the baseball impasse that was interrupting play in 1994 and 1995, she saved baseball," Will says. "Far from it. What she did was overturn in a sense, the essence, the underlies, the essential theory of American labor relations, which is the parties should slug it out because they know best and whoever wins, wins."

Will says that "in fact, what she did was take sides, took union's side against the management, and in so-doing, wasted 262 days of negotiations. That, far from saving baseball, consigned baseball to seven more years of an unreformed economic system, which happened to be the seven worst years in terms of competitive balance."

Sotomayor, Will says, "delayed the restructuring of baseball. So I would say that far from her saving baseball, as the president says, that in fact, baseball thrives now because we got over the damage that her judicial activism did in that strike."
Clearly, a president who supports the proposed card check law which would require mandatory government arbitration for labor disputes would like it when a judge shut down a strike and took labor's side.

So what exactly is a Hispanic?

In today's bean-counting world, when your ethnic heritage matters more than your own actions, we have now come to the point where the New York Times has to take up the weighty question of how you can define the "first Hispanic on the Supreme Court." Is Sonia Sotomayor the first to be nominated or should we consider Benjamin Cardozo, who was put on the Court by Herbert Hoover, to have been the first Hispanic. Cardoza was descended, reportedly, from Portuguese Jews who came to America in the 18th century. So are the Portuguese considered Hispanic? Does someone with European descent count or must that person have descent from a Latin America country?
Most Hispanic organizations and the United States Census Bureau do not regard Portuguese as Hispanic.

But Tony Coelho, a Portuguese-American congressman from California, was a member of the Congressional Hispanic Caucus when he was in the House, and Representative Dennis Cardoza, Democrat of California, whose ancestors came from the Azores, a Portuguese archipelago, is still a member.

The executive director of the National Association of Latino Elected and Appointed Officials, Arturo Vargas, said the contemporary political definition of Hispanic in the United States would definitely not include Cardozo. The practical definition he uses, Mr. Vargas said, includes people who are “descended from countries in the Americas” with a Spanish-language heritage. It does not even include those from Spain itself, he said.
So you Brazilians just don't count.

And does being of Puerto Rican descent count as much as being from Central America? Already American Hispanics are regretting that their particular group didn't get the nod.
“Of course, it would have been great to have someone of Central American origin,” Mr. Cerna said. “But she got picked, and I think it’s very good.”

Other Hispanics also lamented that the first Supreme Court justice of Hispanic ancestry did not have roots in their own community. Here in Miami, Ana de Pozo, 24, finished her rice and beans at El Palacio de Los Jugos, and said, “We are waiting now for a Cuban.”

In Los Angeles, Mario Trujillo, president of the Mexican American Bar Association, said he had sent a letter to the Obama administration on behalf of Justice Carlos R. Moreno, a Mexican-American on the California Supreme Court who had been among those considered for the United States Supreme Court.
But this whole debate is so silly. I see that she prefers the term "Latina" rather than Hispanic indicating that her background comes through Latin America rather than directly from Spain. Historically, the word Hispanic includes the Iberian peninsula, but who cares about history any more? We've got beans to count!

The politics of the Sotomayor nomination

It is very likely that Sonia Sotomayor will be easily confirmed to the Court. The Democrats have the votes and, even without Al Franken, there aren't going to be enough Republicans to filibuster the nomination. And, given all the Republican protests against Democratic filibusters, it would not be right to turn around and try tit for tat. Especially when it would be futile. This isn't Animal House and the time for a "really futile and stupid gesture."

However, the Republicans still have an important role to use these confirmation hearings to air the judge's views particularly on subjects where her and Obama's views are really not in accord with the majority view of Americans. The conservative position on issues like affirmative action such as in the firefighters case before the Court now or eminent domain. So it is perfectly fair, and even the responsibility of the Judiciary Committee to question her on these views.

Richard Epstein
of the University of Chicago has a dismaying post about a position that Sotomayor took in a takings case.
Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the "public use language." Of course, the takings clause of the Fifth Amendment is as complex as it is short: "Nor shall private property be taken for public use, without just compensation." But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion--one that makes Justice Stevens look like a paradigmatic defender of strong property rights.

I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court. Justice Stevens wrote that the public deliberations over a comprehensive land use plan is what saved the condemnation of Ms. Kelo's home from constitutional attack. Just that element was missing in the Village of Port Chester fiasco. Indeed, the threats that Wasser made look all too much like the "or else" diplomacy of the Obama administration in business matters.
As James Taranto reminds us, liberals who care so much about empathy in judicial decisions seemed to forget all about empathy when it came to taking away Suzette Kelo's home and handing it over to Pfizer.

And Judge Sotomayor's conduct in the Ricci v. DeStefano case will be fair game, particularly in light of the upcoming Supreme Court decision that may very well overrule her original summary ruling. Although that won't be enough to keep her off the bench, particularly if several of the liberal justices rule against Ricci and the other firefighters who were denied a promotion, despite passing the qualifying test presumably because New Haven didn't want to promote only whites and one Hispanic. Sotomayor will be able to argue that her opinion was in accord with justices like the usual suspects who will probably rule in favor of New Haven's action. What do you bet that Souter, the justice she will replace, will rule that way?

However, when Americans hear about her ruling in that decision and the details of the case, most will not agree with her ruling. Reverse discrimination is not a popular position with most Americans - notice how Michigan voted overwhelmingly in favor of the Michigan Civil Rights Initiative after the 2003 Michigan law school decision upholding the use of diversity as a fundamental interest of schools in deciding admissions. Put together her decision against Ricci with her statement that "a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life" and you have someone whose approach to the law is not where the majority of Americans are.

Of course, the majority of Americans won't pay attention or care about the particulars of these issues. But it is still worthwhile for Republicans to add to the debate. This can be done in a sober and respectful manner without demonizing Judge Sotomayor. Republicans aren't going to block her nomination or convince liberals that she isn't a good choice. But they can make their case on such issues as affirmative action, eminent domain, and judicial activism to independent voters. And I, for one, would be happy to see a debate over a judicial nomination that didn't revolve mostly around aborition. There are plenty of other issues out there where a liberal justice's rulings would raise doubts among many voters. It will be to the Republicans' benefit to make their case. I bet that more Americans would agree with Ilya Somin's formulation about judges and bias.
Of course it is inevitable that personal background will influence judicial decisionmaking to some degree. Sotomayor is right to imply that it often had a negative effect on the decisions of white male judges in the past. But there is a difference between recognizing an inevitable source of bias while striving to constrain it and actually embracing it. I much prefer a jurist who strives to get beyond his or her ethnicity in making decisions than one who rejects the view that "judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law" and instead believes that we should embrace the fact that "our gender and national origins may and will make a difference in our judging."
And they don't need to fear opposing a woman of Puerto Rican descent. The Democrats can spare us their sanctimony about how wonderful it is to have a Hispanic nominee. They weren't so concerned about a prominent Hispanic nominee when they blocked Miguel Estrada's nomination. The Anchoress links us to this reminder of how liberal interest groups wrote memos to Senators Kennedy and Durbin saying that they wanted to block Estrada since he would be a strong potential Supreme Court nominee for President Bush.

And I don't want to hear all this fluff about what a wonderful background and inspiring story she has. That's all very nice, but having an inspiring story didn't seem to mean anything when Clarence Thomas was the one with the story. Somehow these identity politics and personal biography points only are a big deal when we're talking about liberals. As the Anchoress writes.
Moreover I find the posy-bearing "compelling life story" idea to be gag-inducing. Aside from making news reporters sound like they're narrating programming for the LifeStyle network ("...in a moment, a very special story...") it seems manipulative and dishonest, to me. Good heavens, if anyone on the Supreme Court has a "compelling life story" it is Clarence Thomas, but the press didn't feel the need to gush over his rise from dirt-poverty. And if a "compelling life story" is all it takes to be a Justice, then let's just haul Susan Boyle over here and be done with it!

With Sotomayor's nomination we'll see both race and gender card be played. If you don't like her, you're a racist misogynist.

If seated, Sonya Sotomayor will be the 6th Catholic on the Supreme Court, but it is very doubtful that you will see the press or Democrats wring their hands about "imbalance" or "too many Catholics" should she be seated. In the upside-down world of misnamed liberalism, "bad" Catholics like Scalia, Alito, Roberts and Thomas are harmful to the world and little children, while Catholics in the mold of John Kerry and Nancy Pelosi are "the good ones." And if that reminds you of Archie Bunker suggesting that the black guy at work was "you know, one of the good ones," well, there you go. The liberalism of my youth has morphed into all that it hated.
There was one reason why I had rather doubted that Obama would pick Sotomayor. Sure there were all the political pluses of naming the first female Hispanic (or Latina, which now seems to be the favored term) to the Court. However, she is, reportedly, a rather abrasive personality who may be "frighteningly smart" or "not quite as smart as she thinks she is" according to anonymous lawyers' comments in the Almanac of the Federal Judiciary. Take all that with a large grain of salt. However, I would think that what the liberals want is someone with great intellectual heft who can not only express their viewpoint but has the potential to sway other justices to hers. Reportedly, Justice Roberts has that skill. And on a narrowly divided court, where Justice Kennedy sways back and forth like he's listening to calypso music, if I were a liberal, I would want someone who could have the intellectual firepower to play judicial Red Rover with Anthony Kennedy to pull him over to their side. If we can believe the anonymous clerks talking to Jeffrey Rosen, she doesn't sound like she fits that description while some of the other nominees being discussed sounded more able to do that. In fact, in that one sense, conservatives might be better off with her than someone else. Or perhaps not and we should stop making judgments on her personality based on anonymous quotes given to the Almanac and Jeffrey Rosen. Of course, when even Jonathan Turley is criticizing her written opinions for their lack of intellectual depth, there may be more support for the opinions that Rosen and Turley put forth that, while she may be great as symbolic choice, she won't be the liberal counterpoint to Roberts, much less Scalia.

So my advice to the Republicans: play it straight. Don't demagogue her. Question her on her controversial opinions and make sure that they get a full airing. Then vote your consciences. Some Republicans will vote for her because they sincerely believe that senators shouldn't reject a competent nominee whether President Bush or President Obama makes the nomination. Others will find her opinions on such issues to be enough to vote her down. Ignore all the interest groups who have a vested interest in making this as heated as possible. After all, who would donate to them if they didn't raise a major fuss. But I didn't like it when they did that for Bush's nominees and I don't like it now. We can at least be consistent in how we behave. And look to this as an opportunity to have a full debate about judicial philosophy. When expressed well, the conservatives have a winning hand to play. I've seen it time and time again in my own classes. When kids are presented with the descriptions of originalism and the living Constitution arguments, they are evenly divided. Then I show them a telecast of a discussion between Justices Scalia and Breyer on judicial philosophy and quite a few kids change their mind after they hear the arguments put forth by the two justices. This is a debate worth having and a nomination hearing is a good place to have it.

Tuesday, May 26, 2009

The value of having nothing to lose

In a profile of Senator Tom Coburn the Washington Times posits that the Senator has an advantage because he doesn't care about getting reelected. Not giving a damn about his political future frees him up to argue what he truly believes whether it's politically popular or not.
Despite being in the minority in a Senate that is more tilted to Democrats than at any time in the past three decades, Sen. Tom Coburn, Oklahoma Republican, has gone head to head with Majority Leader Harry Reid - and won.

His secret: He doesn't care.

Mr. Coburn's nonchalance about his own political future has given him the freedom to be Capitol Hill's most outspoken fiscal hawk and guardian of the Constitution. Most recently, his persistence paid off as he was able to attach an amendment allowing licensed firearms in some federal parks to a consumer credit card bill last week.

"I don't go away. He's learned that," Mr. Coburn says of his frequent floor battles with Mr. Reid. "Since I don't care whether I get beat up or not, I'm really dangerous for him."

In a chamber dominated by career politicians, Mr. Coburn has not shied away from ruffling feathers in his obsessive pursuit of shrinking the government. He rails against government waste with equal vigor be the culprits Democrats, Republicans or both.
The same is true of Dick Cheney. Since he is not running for anything and he is already a joke on every late night show and despised by the majority of Americans, he's strangely free to say what he truly thinks and ignore his critics.

If only more of our politicians were as liberated.

The lesson of the gnomes

Bret Stephens has found the perfect metaphor for Obama's approach to all the tough questions he's facing.
Sometimes it takes "South Park" to explain life's deeper mysteries. Like the logic of the Obama administration's policy proposals.

Consider the 1998 "Gnomes" episode -- possibly surpassing Milton Friedman's "Free to Choose" as the classic defense of capitalism -- in which the children of South Park, Colo., get a lesson in how not to run an enterprise from mysterious little men who go about stealing undergarments from the unsuspecting and collecting them in a huge underground storehouse.

What's the big idea? The gnomes explain:

"Phase One: Collect underpants.

"Phase Two: ?

"Phase Three: Profit."

Lest you think there's a step missing here, that's the whole point. ("What about Phase Two?" asks one of the kids. "Well," answers a gnome, "Phase Three is profits!") This more or less sums up Mr. Obama's speech last week on Guantanamo, in which the president explained how he intended to dispose of the remaining detainees after both houses of Congress voted overwhelmingly against bringing them to the U.S.

The president's plan can briefly be described as follows. Phase One: Order Guantanamo closed. Phase Two: ? Phase Three: Close Gitmo!
Granted, President Bush did the same thing in his approach to North Korea and Iran. And look where that got us. Read more of Stephens' column to see how that is Obama's approach to the auto industries, health care, and more.

Fatigue with the straw men arguments

Even the New York Times is getting rather exasperated with the plenitude of President Obama's setting up straw men arguments to knock them down. While throwing in that Bush did the same thing, they note how Obama has been doing it over and over again.
“Here’s the trick: Take your opponent’s argument to a ridiculous extreme, and then attack the extremists,” said William Safire, the former presidential speechwriter who writes the “On Language” column for The New York Times Magazine. “That leaves the opponent to sputter defensively, ‘But I never said that.’ ”

The telltale indicators that a straw man trick is on the way are the introductory words “there are those who say” or “some say.”

“In strawmanese, you never specify who ‘those who’ are,” Mr. Safire said. “They are the hollow scarecrows you set up to knock down.”
Many politicians, including Republicans do this. It's an effective technique in your goal is to bamboozle people. It succeeded in making him see more moderate and reasonable than he is. And most people aren't paying enough attention to realize that he is setting up a false dichotomy where only his chosen policy is the apparently rational choice.

The strawman argument isn't one that I would allow my students to use in their papers. Whenever I read a student's strawman argument, I force them to identify and quote specific historians who have made that argument. Perhaps more in the media will follow up by pointing out that no one has been making the argument that Obama is knocking down. And reporters will start demanding that he tell them who specifically is arguing that we do nothing in face of the nation's problems.

Monday, May 25, 2009

Results from Quiz Bowl

Thanks for all the good wishes for my quiz bowl team. Our results weren't as good as we'd hoped. We finished 33 out of 64 teams. We faced a lot of tough teams and lost some close matches. That is always frustrating, but we're very proud of out team's performance. Considering that we have only one senior on our team, we're optimistic that we'll improve next year. Now I just hope that the returning juniors will spend the summer bulking up on their quiz bowl studying.

Friday, May 22, 2009

Quiz Bowl this weekend

I'm traveling with my team today to the national championships of Quiz Bowl which will be held in Virginia at George Mason University. So I probably won't have much time for blogging this weekend. I think I forgot to mention that we went last weekend to High Point for the North Carolina state championships. Our team won handily. This is the seventh year in a row that our school has won the state championships. The competition has been in existence only for seven years. North Carolina is not really the hotbed of Quiz Bowl that the Washington area is so we're expecting some very tough competition this weekend. Our team is three juniors and a senior so we're still building for next year.

Why Waxman and Markey's cap and trade bill is even worse than expected

The Economist, no conservative bastion, looks at the cap and trade bill now up for a vote in the House committee chaired by Henry Waxman. Like the stimulus package, President Obama outsourced the crafting of the bill to the leaders in the House and they came up with a doozy of a bill that gives away benefits to favored industries and defeats the whole theory behind the cap and trade principle.
President Barack Obama has long argued that America should join Europe in regulating planet-cooking carbon. But he has left the details to Congress. And the negotiations to craft a bill that might actually pass have not been pretty. The most straightforward and efficient approach to reducing carbon emissions—a carbon tax—was never seriously considered. Voters do not like to hear the word “tax” unless it is followed by the word “cut”.

So Mr Obama proposed something very similar to a carbon tax, albeit slightly more cumbersome. Industries that emit carbon dioxide would have to buy permits to do so. A fixed number of permits would be auctioned each year. The permits would be tradable, so firms that found ways to emit less than they were entitled to could sell some of their permits to others. The system would motivate everyone to reduce emissions in the most cost-effective way. It would raise energy prices, which is the point, but it would also raise hundreds of billions of dollars, most of which Mr Obama planned to give back to voters. Alas, that plan looks doomed.

On May 15th Henry Waxman and Edward Markey, the Democratic point-men on climate change in the House of Representatives, unveiled a bill that would give away 85% of carbon permits for nothing, with only 15% being auctioned. The bill’s supporters say this colossal compromise was necessary to win the support of firms that generate dirty energy or use a lot of it, and to satisfy congressmen from states that mine coal or roll steel.

Giving away permits creates several problems. First, it generates no money, thereby royally messing up Mr Obama’s budget. Second, it means that the permits go not to those who value them most (as in an auction) but to those whom the government favours. Under Waxman-Markey, electricity-distributors would get the largest share, with the rest divided between energy-intensive manufacturers, carmakers, natural-gas distributors, states with renewable-energy programmes and so on. Oil firms, with only 2% of the permits, feel hard done by. But most polluters, having just been promised hundreds of billions of dollars’ worth of permits for nothing, are elated. So it is not just the owners of ski resorts and businesses with negligible carbon footprints that are queuing up to praise the bill. Duke Energy, a power generator with lots of coal-fired plants, is also enthusiastic.
Instead of having this complicated procedure rife for political giveaways, the simplest way to get people to use less energy is to tax it. With such a tax, people would decrease their usage and industries would find ways to provide more fuel efficient ways for our energy needs. The money gained from the tax could then be given to cushion the blow that it would be for taxpayers and businesses. But such a policy would be tough to pass in Congress and would leave politicians up to the accusation that they raised taxes. So better to have this convoluted cap and trade policy that will distort the market and leave politicians plenty of room to meddle away to get special benefits for their political supporters. And the President will dictate to the car companies which cars they should produce. Why not go for the simplest and clear-cut way to get people to alter their energy use?
Mr Obama admitted that more fuel-efficient cars might cost more. But he promised that motorists would save thousands of dollars by cutting their fuel bills. In fact, they can already cut their fuel bills by buying smaller cars, but most choose not to. Mr Obama could discourage petrol use more directly and efficiently by taxing the stuff, but that would be unpopular. Ideally, politicians who want to save the planet would be honest with voters about how much this will cost. But America’s leaders do not seem to think Americans are ready for straight talk about energy.
I usually oppose tax increases, but, if our goal is to decrease our dependence on foreign oil, I would support such a straightforward policy instead of a procedure like cap and trade that has been shown in Europe to be open for plenty of abuse.

Vindicating Bush

Charles Krauthammer argues today that President Obama, by his actions is vindicating the Bush approach to fighting the war on terror.

Sure his rhetoric is different as Obama can say 6000 words patting himself about how he is going to differentiate himself from the previous administration and how he has so much more respect for the Constitution than the Bush people did. He makes minor changes in the military tribunals that he once criticized and claims that now they're perfectly fine. He tells us that he isn't there to criticize those who disagree with him on these tough issues and then tells us over and over how terrible the Bush approach was and how he has too much respect for the Constitution to continue them, but then he can't give us any specifics about what he is going to do differently to close down Gitmo and still deal with those terrorists that no other country wants and who are too dangerous to release, yet for whom we don't have the evidence to try in courts. No shock, Shylock. Those are tough cases. If you're not going to hold them at Guantanamo and no one wants them here in our prisons, especially if you can't have a trial for them, what are you going to do.

Instead of paying attention to his rhetoric, look at his actions. And, as Krauthammer writes, Obama's actions, with a few cosmetic changes and different rhetorical flourishes, are following the Bush template that Obama professes to so disdain.
Observers of all political stripes are stunned by how much of the Bush national security agenda is being adopted by this new Democratic government. Victor Davis Hanson (National Review) offers a partial list: "The Patriot Act, wiretaps, e-mail intercepts, military tribunals, Predator drone attacks, Iraq (i.e., slowing the withdrawal), Afghanistan (i.e., the surge) -- and now Guantanamo."

Jack Goldsmith (The New Republic) adds: rendition -- turning over terrorists seized abroad to foreign countries; state secrets -- claiming them in court to quash legal proceedings on rendition and other erstwhile barbarisms; and the denial of habeas corpus -- to detainees in Afghanistan's Bagram prison, indistinguishable logically and morally from Guantanamo.
Liberals who supported Obama because they thought he would be such a break from the Bush policies they so hated must be suffering massive cognitive dissonance. However, it is not so surprising that the President, now that he has the responsibility for the safety of Americans, would come to see the sense in such policies.
What does it all mean? Democratic hypocrisy and demagoguery? Sure, but in Washington, opportunism and cynicism are hardly news.

There is something much larger at play -- an undeniable, irresistible national interest that, in the end, beyond the cheap politics, asserts itself. The urgencies and necessities of the actual post-9/11 world, as opposed to the fanciful world of the opposition politician, present a rather narrow range of acceptable alternatives.

Among them: reviving the tradition of military tribunals, used historically by George Washington, Andrew Jackson, Winfield Scott, Abraham Lincoln, Arthur MacArthur and Franklin Roosevelt. And inventing Guantanamo -- accessible, secure, offshore and nicely symbolic (the tradition of island exile for those outside the pale of civilization is a venerable one) -- a quite brilliant choice for the placement of terrorists, some of whom, the Bush administration immediately understood, would have to be detained without trial in a war that could be endless.

The genius of democracy is that the rotation of power forces the opposition to come to its senses when it takes over. When the new guys, brought to power by popular will, then adopt the policies of the old guys, a national consensus is forged and a new legitimacy established.

That's happening before our eyes. The Bush policies in the war on terror won't have to await vindication by historians. Obama is doing it day by day. His denials mean nothing. Look at his deeds.
As the WSJ writes today on the same theme,
Mr. Obama's most remarkable Gitmo sleight-of-hand was on the matter of how to handle the hard cases, those who Mr. Obama said "cannot be prosecuted yet who pose a clear danger to the American people." After acknowledging this was "the toughest issue we will face" and pledging that he would not "release individuals who endanger the American people," the President proposed . . . well, he didn't really say what he'd do, except that whatever it is must be "defensible and lawful." No wonder the ACLU is in a tizzy.

Which brings us back to Guantanamo. The President went out of his way to insist that its existence "likely created more terrorists around the world than it ever detained," albeit without offering any evidence, and that it "has weakened American security," again based only on assertion. What is a plain fact is that in the seven-plus years that Gitmo has been in operation the American homeland has not been attacked.

It is also a plain fact -- and one the President acknowledged -- that many of the detainees previously released, often under intense pressure from Mr. Obama's anti-antiterror allies, have returned to careers as Taliban commanders and al Qaeda "emirs." The New York Times reported yesterday on an undisclosed Pentagon report that no fewer than one in seven detainees released from Gitmo have returned to jihad.

Mr. Obama called all of this a "mess" that he had inherited, but in truth the mess is of his own haphazard design. He's the one who announced the end of Guantanamo without any plan for what to do with, or where to put, KSM and other killers. Now he's found that his erstwhile allies in Congress and Europe want nothing to do with them. Tell us again why Gitmo should be closed?
We can't send these guys to other countries. No American politician wants them in his state. Do you really want to take the risk that, at some point, these detainees will interact with other prisoners and further radicalize them so that we get more crackpots like the group arrested yesterday plotting to blow up New York synagogues? So what is so wrong now with Guantanamo? It's secure and it's already been constructed. Even Attorney General Eric Holder acknowledges that, contrary to accusations, the treatment of detainees is in accord with the Geneva Convention. For more on how the story of Guantanamo has been distorted, read Arthur Herman's excellent essay in Commentary about the "The Gitmo Myth and the Torture Canard." Sure, opponents here and abroad have criticized it, but criticism is easy. Presenting us with an alternative plan is the tough part and that is the part Obama has not done.

The RNC makes a bad ad

I'm all for the GOP taking on the President on policies with which we disagree. And I appreciate a clever or even controversial web ab to do it with. But I am quite unimpressed with this first effort. The RNC is resurrecting the infamous 1964 Daily ad that the Johnson campaign ran one time against Barry Goldwater. They intercut the cute little girl picking petals off a daiy with quotes from Obama about closing Guantanamo and then quotes from Democrats who don't want the detainees brought to the U.S.

This same concept could have been presented in many ways, but the choice of the Daisy ad is simply to shock and get free play on cable news over and over while partisans yell at each other about the context for the ad. I'm sure it will achieve that purpose.

But this is achieving a small goal with despicable means. If it was atrocious for the Johnson campaign to imply that Goldwater's policies would lead to nuclear war, it is wrong to pull that card for criticizing Obama. There are plenty of arguments that can be used against Obama. Don't go this route.

Thursday, May 21, 2009

Hypocrisy alert at the Chicago Tribune

UPDATE: The Washington Times has issued a correction to their story.
Correction: A story in May 14 editions of the Washington Times stated incorrectly that a Chicago Tribune editorial had berated the American International Group for paying huge bonuses to employees. In fact, the editorial said that the public has an economic stake in the survival of AIG, and that if bonuses were paid to employees who are key to the company's future, they can be justified. The Times story also quoted an unnamed blogger as saying: "Using the employees' pension money to pay stockholders and executive bonuses - priceless." In fact, the Tribune is a private company and does not have stockholders. No pension money was used to pay bonuses.
I apologize for going with this.

The Washington Times has a bit of fun with the Chicago Tribune which was strongly contemptuous of the AIG bonuses, but then gave out bonuses to its own managers just as the firm entered bankruptcy.
"Money for nothing?" blared a Chicago Tribune editorial in mid-March, responding to news that American International Group Inc. planned to give $450 million in bonuses to its top executives during a very public federal bailout.

But this week, the Tribune Co. - which owns the Chicago Tribune, the Los Angeles Times, the Baltimore Sun, the Hartford Courant and other dailies, along with 23 TV stations - received permission from a Delaware bankruptcy judge to pay out $13.3 million in bonuses to some 700 local and corporate managers.

The payouts come as $2.7 million in severance pay to 68 employees who lost their jobs last year remains frozen.

Tribune Chief Financial Officer Chandler Bigelow III explained the rationale for the bonuses during an appearance in U.S. Bankruptcy Court on Tuesday, using an argument reminiscent of that used by AIG.

"We need to motivate and incentivize the key people who will implement change. These are really good people we're talking about. They're the best and the brightest in the company," Mr. Bigelow told Judge Kevin Carey.

What to do about California?

Megan McArdle ponders whether or not California is just too darn big to be allowed to fail. As she writes, a California bankruptcy will affect all of us economically, not just those in the state.
I am not under the illusion that this will be fun. For starters, the rest of you sitting smugly out there in your snug homes, preparing to enjoy the spectacle, should prepare to enjoy the higher taxes you're going to pay as a result. Your states and municipalities will pay higher interest on their bonds if California is allowed to default. Also, the default is going to result in a great deal of personal misery, more than a little of which is going to end up on the books of Federal unemployment insurance and other such programs.

Then there are the actual people involved. Whatever you think of, say, children who decided to be born poor, right now they are dependent on government programs, and will be put in danger if those programs are interrupted.
However, we don't have the money to put off California's day of reckoning. We won't suddenly find the money in the federal budget. We're too busy bailing out the car and banking industries and trying to pull out of the recession. But even if we had the money, that will just be the start of a torrent of state and local leaders running to Washington demanding a similar deal. I'm sure that New York and Michigan are taking notes so that they will get their own handouts. And, as she writes, we will see the principle of moral hazard played out across the land.
But once the treasury has bailed out a single state, there will be a strongly implied guarantee on all such debt. So you don't give them the keys to the vaults, but you do leave a window open, point out where the money's kept, and casually mention that you've given the armed guards the week off.

I don't see how the government can make a credible committment not to bail out various localities who overspend, if it's already done so. And if that's the case, there's no way to avoid the moral hazard, so we might as well go ahead and offer the explicit guarantee in exchange for some sort of say in how the money is procured and spent.
So, it's going to be a terrible mess, but California needs to finally face up to the problems it has gotten into.
On the other hand, I don't really see another way out of it. If Uncle Sugar bails out California, California will not fix its problems. Perhaps you want Obama to make it fix the problems, using the same competence, power, and can-do spirit with which he has repaired all the holes in the banking and auto manufacturing sectors. But Obma is not in a good position to do this. California Democrats are a huge part of his governing coalition. All Obama can do is shovel money into the bottomless pit of California's political system.

Moreover, even if the administration could fix any of the core problems of California--and New York--and the banks--and the automakers--and the energy industry--they can't fix them all. Especially given how thinly staffed Treasury is. The president and his cabinet only have so much attention, more than all of which seems to be occupied by the problems already on their plate. They don't really have the time, knowledge, energy, or staff to take on running a whole 'nother government.

California will go bankrupt, muni and state debt will spike, the federal government will backstop humanitarian programs and very possibly all state and local debt, and eventually, California will figure out whether it wants higher taxes or lower spending. But we will not actually make the world a better place by enabling the lunatics in Sacramento to pretend they can have both.

Could intelligence be politicized in the Obama era?

Remember all the accusations that the Bush administration was politicizing intelligence? Well, how about this? The Defense Department is postponing releasing a report that will purportedly say that 1 in 7 released Guantanamo detainee is returning to terrorism.
The Pentagon promised in January that the latest report would be released soon, but Bryan Whitman, a Pentagon spokesman, said this week that the findings were still “under review.”

Two administration officials who spoke on condition of anonymity said the report was being held up by Defense Department employees fearful of upsetting the White House, at a time when even Congressional Democrats have begun to show misgivings over Mr. Obama’s plan to close Guantánamo.
Yeah, it could be a mite bit inconvenient to his whole plan to close the place down. He can't find a place to put them in America. Congress refuses him money to close it up until he comes up with a plan for what he's going to do with the more than 200 guys who are still there. No wonder the Defense Department doesn't want to pour some more oil on the fire.

This is a total unforced error. Although Barack Obama enjoyed the moral position of saying that Gitmo was a violation of American principles, he has now had to support many of the Bush-era approaches to terrorism such as indeterminate detentions and keeping military tribunals. He walked into the Oval Office and ordered that Guantanamo be closed but didn't have any plan of what to do with the guys there. Perhaps he's finding that some of these questions aren't the open-and-shut cases that he thought they were as a candidate.

As Politico details today, there really is no good solution about where to put a large number of the rather mid-level detainees, not the big name terrorists, but the smaller guys. A particular problem are the 100 or so Yemenis.
Almost 100 of the roughly 240 prisoners left at Guantanamo hail from Yemen – the site of the USS Cole bombing in 2000. But the country’s checkered record when it comes to restraining and “rehabilitating” other Islamic militants has made U.S. officials leery about returning anywhere near 100 prisoners there.

Some militants that Yemen tried to retrain “went to Iraq and carried out suicide attacks on U.S. forces,” while other prisoners broke out of jail, said Greg Johnsen, a foreign policy scholar at Princeton. The Yemeni government is barely in control of its own territory.

One possible option for the U.S. is to send the Yemenis to Saudi Arabia. However, it’s unclear if Saudis could handle or are willing to take such a large group of Yemenis. “In the long run, it might cause the same problems,” Johnsen said.
And holding trials are problematic, especially with the courts discounting any information that might have been gained from controversial interrogation techniques. So what should we do with these guys?
Courts have held that evidence obtained under harsh interrogations – torture, to the critics – isn’t admissible in court. The Bush administration tried to get around this by sending in “clean teams” to re-interview detainees without the use of sleep deprivation, water-boarding and other methods.

But it’s far from clear that courts will consider evidence gathered by these “clean teams” to be truly clean.
That could mean there is a significant number of prisoners who judges might rule simply cannot be given a fair trial, even under the new rules being set up by Obama. What then?

In another twist, the so-called clean teams, apparently at the instruction of the Bush administration, did not give Miranda rights warnings to Guantanamo prisoners, according to lawyers tracking the situation. That fact alone could complicate efforts to bring cases to federal courts in the United States.
Clearly, it's not as easy a problem to solve as political speeches on the campaign trail made it seem.

The Bush administration tried to release as many of the detainees as possible and what did we get for that move? The recidivism of these militants. Perhaps, this is one Bush policy, Obama would be right to reverse.

Joe Klein apologizes....sorta

After Politico published Joe Klein's remarkably insulting comment about Charles Krauthammer, Klein was slammed throughout the conservative blogosphere for saying that being confined to a wheelchair had caused Krauthammer to lack nuance. So Klein has issued a rather back-handed retraction saying that Krauthammer is still a bellicose, arrogant neocon, but, hey, Joe Klein didn't mean to offend anyone who is disabled. Classy.

Wednesday, May 20, 2009

Punishing those who play by the rules

Those people who pay their mortgages on time have become angry as they see the government bending over backwards to help those who bought houses they couldn't afford and then got behind in their payments. Now those people who regularly pay their credit card bills will be penalized in order to support those who charge more than they can afford on their cards and have troubles making their payments. That is what will happen with the new legislation on credit cards.
Credit cards have long been a very good deal for people who pay their bills on time and in full. Even as card companies imposed punitive fees and penalties on those late with their payments, the best customers racked up cash-back rewards, frequent-flier miles and other perks in recent years.

Now Congress is moving to limit the penalties on riskier borrowers, who have become a prime source of billions of dollars in fee revenue for the industry. And to make up for lost income, the card companies are going after those people with sterling credit.

Banks are expected to look at reviving annual fees, curtailing cash-back and other rewards programs and charging interest immediately on a purchase instead of allowing a grace period of weeks, according to bank officials and trade groups.

“It will be a different business,” said Edward L. Yingling, the chief executive of the American Bankers Association, which has been lobbying Congress for more lenient legislation on behalf of the nation’s biggest banks. “Those that manage their credit well will in some degree subsidize those that have credit problems.”

Why government shouldn't run businesses

Economic historian, John Steel Gordon lays out why it is a bad idea to have the government run businesses. Polticians make decisions based on politics - which group will benefit, not which decision will be best for a firm. Government is, as Gordon quotes, an "unregulated monopoly." When the government is making plans, it's doing it with other people's money - the taxpayers, not their own. And the results are clear. Our government was purposely designed to be inefficient and slow so as to prevent it from being too despotic. But inefficient decision making is not exactly what we're looking for in a well-run business.
6) Successful corporations are run by benevolent despots. The CEO of a corporation has the power to manage effectively. He decides company policy, organizes the corporate structure, and allocates resources pretty much as he thinks best. The board of directors ordinarily does nothing more than ratify his moves (or, of course, fire him). This allows a company to act quickly when needed.

But American government was designed by the Founding Fathers to be inefficient, and inefficient it most certainly is. The president is the government's CEO, but except for trivial matters he can't do anything without the permission of two separate, very large committees (the House and Senate) whose members have their own political agendas. Government always has many cooks, which is why the government's broth is so often spoiled.
Read the rest. This is an excellent essay and one whose ideas I wish that our politicians in Washington understood better. But few politicians likes to admit that there is something that they can't do.

Joe Klein slams Charles Krauthammer

Politico profiles Charles Krauthammer today as President Obama's biggest and best critic. Krauthammer's incisive and well-reasoned writing provides fodder for those who oppose Obama's policies. I like the idea of Krauthammer as the leader of the opposition better than others whom the media and Obama want to crown.

What struck me was this comment from Joe Klein.
"He became Ground Zero among the neo-cons, but he's vastly smarter than most of them," said Time's Joe Klein, an admirer and critic who praised Krauthammer's "writing skills and polemical skills" as "so far above almost anybody writing columns today."

"There's something tragic about him too," Klein said, referring to Krauthammer's confinement to a wheelchair, the result of a diving accident during his first year of medical school. "His work would have a lot more nuance if he were able to see the situations he's writing about."

"My writing speaks for itself," Krauthammer responded in a curt email.
How particularly nasty to say that he would be a better thinker of he weren't paralyzed. Can you imagine if a conservative said that about a disabled liberal? Is he saying that all people confined to wheelchairs have narrow, unenlightened views? Usually liberals want to say that the obstacles that someone has personally overcome broadens their views. How many times have we read that FDR's polio made him a more sensitive and caring leader? I guess he was also lacking the nuance that Joe Klein admires.

When the government runs the auto companies

We are now seeing what happens when the government runs the auto companies. The government just sets goals and imposes them on the auto companies which are forced to go along. Now Obama is telling the companies exactly which cars to make. As the WSJ writes,
Unless we outlaw the bigger cars that recent sales figures have shown Americans prefer any time gas prices fall below $4 per gallon, Detroit will need help marketing these small vehicles. As GM's Bob Lutz put it not long ago, "Very few people will want to change what has been their 'nationality given' right to drive big and bigger if the price of gas is $1.50 or $2 or even $2.50. Those prices will put the CAFE-mandated manufacturers at war with their customers."

All solutions to this problem flow from Washington. One would be to give substantial tax subsidies to buyers. Another would be to impose a federal gas tax to jack up the price of gasoline to $4 per gallon and keep it there. This is the solution that keeps Europeans driving small cars with tiny engines. High gasoline prices have become a political third rail in U.S. politics, and the Obama Administration insists it isn't interested in subsidies or taxes.

That puts the burden back on the beleaguered auto makers. The Detroit Three already sell small cars at a loss to meet the current 27.5 mpg fleet average. The car companies may hope that if the whole industry is forced to move up the fuel-economy ladder, consumers will have no choice other than to buy these cars. But experience suggests companies that have specialized in making smaller cars, such as the Japanese-owned auto makers, are more likely to be able to sell them at a profit.

....We wish these folks luck "working together" with the Obama auto-design team. One thing seems certain by 2016: Taxpayers will be paying Detroit to make the cars Americans don't want, and then they will pay again either through (trust us) a gas tax or with a purchase subsidy. Even the French must think we're nuts.

RIP David Herbert Donald

I was very sorry to hear of the passing of David Herbert Donald. He was one of the very best Civil War historians. I saw him a few years ago on one of those three-hour In Depth portrayals of historians and he struck me as such an old-fashioned gentlemanly figure, one I would have loved to have had as a teacher. His biography of Lincoln is one of the very best and well deserved the Lincoln Prize. Just today, my class on the Civil War is debating why the North won the war based on the essays in a book he edited. He will be missed.

Tuesday, May 19, 2009

Why Nancy said nothing

The real reason why the Pelosi-CIA story is so important is because it reveals how Pelosi is willing to apply what she considers her political advantages is what really determines her approach national security. Rich Lowry points out that it doesn't matter whether Pelosi learned about waterboarding and other enhanced interrogation techniques in September of 2002 as the CIA says she did or in February of 2003 when even Pelosi acknowledges that her aide was briefed on the procedures.
Pelosi's inaction years ago speaks more eloquently than her denunciations of the Bush administration since. Even if she was uncomfortable with the use of waterboarding, she clearly didn't consider it torture. If she had been told that the CIA was burning detainees with cigarettes, would she also have implicitly approved? Let's hope not. But given the choice between forswearing the simplistic and morally self-gratifying attack on Bush as a torturer, and hurling herself on a pyre in front of the national press corps, Pelosi chose self-immolation.

Just as instructive is President Obama's condemnation of waterboarding as torture, even as he opposes creating a truth commission and prosecuting the torturers. Understandably, the left considers this a travesty. If waterboarding as we practiced it is torture, the men who did it are war criminals whose sadistic acts can't be allowed to go unpunished. That Obama is taking a pass either makes him, on his own terms, a dastardly accomplice to war crimes after the fact, or shows that, despite his words, he doesn't truly believe it rises to the level of torture.

Obama can paper over this logical inconsistency with smooth and well-chosen words. Nancy Pelosi is impaling herself on it.
And now, with her claims that the CIA lied to her, she has further harmed the agency by damaging the public faith in the agency. We may have our doubts about the effectiveness of the agency's intelligence, particularly after 9/11 and the Iraqi WMD fiascos. Those mistakes join a long list of CIA mistakes from the Iranian revolution to the Soviet invasion of Afghanistan. But it is entirely another charge to accuse them of deliberately lying to Congress. However, her self-serving accusations are having an effect on the American public according to the latest Rasmussen survey that shows that about as many people believe that the CIA might have misled Pelosi as that she herself is lying.

She is a despicable woman playing politics with national security and not caring how she damages the nation's intelligence service if she can achieve some sort of partisan advantage.

Affluent greens and geen bubbles

Ted Nordhaus and Michael Shellenberger are the authors of Break Through: Why We Can't Leave Saving the Planet to Environmentalists have an interesting article in The New Republic about what they call "Green Bubbles." They trace other moments when the nation got all excited about environmentalism, in the early 1970s when Earth Day began and new environmental laws were passed. That faded with the economic downturns of the rest of the 1970s. Another bubble they identify was in the late 1980s that culminated when Time goofily chose Earth as "Planet of the Year." That bubble of green enthusiasm faded with the recession in the earlier 1990s. We have been experiencing another bubble with Al Gore's "An Inconvenient Truth," but with our present economic worries, concerns over global warming are fading. As NOrdaus and Shellenberger point out, much of the elitist concern is manifested in feel-good actions because they are more interested in moral preening than in the actual changes that might have a real impact.
Of course, for many greens, healing required more than a new kind of consumption, however virtuous. In The New York Times Magazine's 2008 Earth Day issue, Michael Pollan argued that climate change was at bottom a crisis of lifestyle and personal character--"the sum of countless little everyday choices"--and suggested that individual actions, such as planting backyard gardens, might ultimately be more important than government action to repair the environment. Pollan half-acknowledged that growing produce in your backyard was ecologically irrelevant, but "there are sweeter reasons to plant that garden," he wrote. "[Y]ou will have begun to heal the split between what you think and what you do, to commingle your identities as consumer and producer and citizen."

It's easy enough to point out the insignificance of planting a garden, buying fewer clothes, or using fluorescent bulbs. After all, we can't escape the fact that we depend on an infrastructure--roads, buildings, sewage systems, power plants, electrical grids, etc.--that requires huge quantities of fossil fuels. But the ecological irrelevance of these practices was beside the point. What downscalers offered was not a better way to reduce emissions, but rather, a way to reduce guilt. In 2007, we asked environmentalists in focus groups about green consumption. None thought that consuming green would do much of anything to address a huge challenge like global warming. They did it anyway, they said, because it made them feel better.
They note that such environmentalists have a rose-colored vision of how changing our approach to modernity would affect the poor of the world.
Green anti-modernism brings with it other contradictions. Despite the rhetoric about "one planet," not all humans have the same interests when it comes to addressing global warming. Greens often note that the changing global climate will have the greatest impact on the world's poor; they neglect to mention that the poor also have the most to gain from development fueled by cheap fossil fuels like coal. For the poor, the climate is already dangerous. They are already subject to the droughts, floods, hurricanes, and diseases that future warming will intensify. It is their poverty, not rising carbon-dioxide levels, that make them more vulnerable than the rest of us. By contrast, it is the richest humans--those of us who have achieved comfort, prosperity, and economic security for ourselves and for our children--who have the most to lose from the kind of apocalyptic global-warming scenarios that have so often been invoked in recent years. The existential threat so many of us fear is that we might all end up in a kind of global Somalia characterized by failed states, resource scarcity, and chaos. It is more than a little ironic that at the heart of the anti-modern green discourse resides the fear of losing our modernity.

Nonetheless, it has become an article of faith among many greens that the global poor are happier with less and must be shielded from the horrors of overconsumption and economic development--never mind the realities of infant mortality, treatable disease, short life expectancies, and grinding agrarian poverty. The convenient and ancient view among elites that the poor are actually spiritually rich, and the exaggeration of insignificant gestures like recycling and buying new lightbulbs, are both motivated by the cognitive dissonance created by simultaneously believing that not all seven billion humans on earth can "live like we live" and, consciously or unconsciously, knowing that we are unwilling to give up our high standard of living. This is the split "between what you think and what you do" to which Pollan refers, and it should, perhaps, come as no surprise that so many educated liberals, living at the upper end of a social hierarchy that was becoming ever more stratified, should find the remedies that Pollan and Beavan offer so compelling. But, while planting a backyard garden may help heal the eco-anxieties of affluent greens, it will do little to heal the planet or resolve the larger social contradictions that it purports to address.
The authors advise environmentalists to pull back from the demonizing of modern life if they want to raise a consensus on how to approach environmental choices. But that is much of the entire point of how these affluent greens want to preen about their own actions and denigrate the behavior or everyone else.

When government manages your health care

The Wall Street Journal notes this response of the Democrats to our approaching crisis in Medicare.
Try to follow this logic: Last week the Medicare trustees reported that the program has an "unfunded liability" of nearly $38 trillion -- which is the amount of benefits promised but not covered by taxes over the next 75 years. So Democrats have decided that the way to close this gap is to create a new "universal" health insurance entitlement for the middle class.
The WSJ then goes on to note how government rationing of health care is playing out right now in Medicare as the managers of Medicare have decided to deny coverage of virtual colonoscopies. Anyone who has ever had a colonoscopy and endured the yucky preparation for the procedure has, I'm sure, been waiting hopefully for the development of an alternative and now, with abdominal CT scans, that time is here. And the American Cancer Society endorses the procedure for detection of colon cancer, which can be cured at a 93% rate with early detection. Some insurance agencies are already paying for it. The problem is that, if cancers are found in the CT scan, there has to be a follow-up with a real colonoscopy to remove the lesions. Medicare has decided that they don't want to pay twice. Better everyone have the invasive procedure than use the less invasive one that doesn't necessitate anesthesia. You can imagine that, especially for feeble patients, doctors would prefer to use the virtual CT. Here is a matter that should be decided between a patient and his or her doctor, but the government, through its financial weight, is interfering with that choice.

The Medicare decision on virtual colonoscopies makes financial sense perhaps. But not medical sense. Now multiply that by the thousands of choices that the government would be making once we are all insured through a government-funded single payer plan. And ponder the possibility that medical companies will continue to fund research into new procedures and medicines if they're facing the possibility of government refusal to include the new developments in their pay plan for our health care.
Medicare is already the country's largest purchaser of health care. Private carriers generally adopt its rates and policies, and the virtual colonoscopy decision may run this technology out of the marketplace. Now multiply that by the new "public option" that Democrats favor, which would transfer millions of patients to a new insurance program managed by the federal government. Washington's utilitarian judgments about costs would reshape the practice of medicine.

Initially, the open-ended style of American care will barely be touched, if only for political self-preservation. Health planners will adjust at the margins, as with virtual colonoscopy. But scarcity forces choices. As the Medicare trustees note in their report, the tax increases necessary to fund merely the current benefit schedule for the elderly would cripple the economy. The far more expensive public option will not turn into a pumpkin when cost savings do not materialize. At that point, government will clamp down with price controls in the form of lines and rock-bottom reimbursement rates.

Mr. Orszag says that a federal health board will make these Solomonic decisions, which is only true until the lobbies get to Congress and the White House. With virtual colonoscopy, radiologists and gastroenterologists are feuding over which group should get paid for colon cancer screening. Companies like General Electric and Seimens that make CT technology are pressuring Medicare administrators too. More than 50 Congressmen are demanding that the decision be overturned.

All this is merely a preview of the life-and-death decisions that will be determined by politics once government finances substantially more health care than the 46% it already does. Anyone who buys Democratic claims about "choice" and "affordability" will be in for a very rude awakening.
Think about this the next time you have to prep for a colonoscopy. It will, er, clarify your thinking.