Monday, June 26, 2017

Cruising the Web

Matthew Continetti has a scorching column arguing that the "political class doesn't know what it's talking about."
Events are turning me into a radical skeptic. I no longer believe what I read, unless what I am reading is an empirically verifiable account of the past. I no longer have confidence in polls, because it has become impossible to separate the signal from the noise. What I have heard from the media and political class over the last several years has been so spectacularly proven wrong by events, again and again, that I sometimes wonder why I continue to read two newspapers a day before spending time following journalists on Twitter. Habit, I guess. A sense of professional obligation, I suppose. Maybe boredom.

The fact is that almost the entirety of what one reads in the paper or on the web is speculation. The writer isn't telling you what happened, he is offering an interpretation of what happened, or offering a projection of the future. The best scenario is that these theories are novel, compelling, informed, and based on reporting and research. But that is rarely the case. More often the interpretations of current events, and prophesies of future ones, are merely the products of groupthink or dogma or emotions or wish-casting, memos to friends written by 27-year-olds who, in the words of Ben Rhodes, "literally know nothing." There was a time when newspapers printed astrology columns. They no longer need to. The pseudoscience is on the front page.
He gives quite a few examples from the past year in politics both here and in Britain of just how off-base the conventional political wisdom has been. I'm sure that all of us could add in more examples. After all, how many of these pundits predicted the outcome of our election or of the British elections or the Brexit vote? Yet they will all appear on TV and pontificate about their guess as if it's wisdom handed down from the Mount.

Now some people on TV have expertise within a policy field and I respect their commentary on whatever policy question is being discussed much more than others. But those who are purely political commentators with no expertise outside of politics are really just paid to make their best guess. And a lot of their analysis is colored by their partisan or ideological affinities. Or they just want to say stuff that will win them buzz on social media. So the hotter their takes, the better for their mentions.

Peggy Noonan, not the most cynical of people, has a very cynical thought.
They live on ratings, which determine advertising rates. Hillary Clinton got 2.9 million more votes than Mr. Trump, so the anti-Trump audience is larger. Moreover, people who oppose Mr. Trump tend to be more affluent, more educated, more urban. They’re more liberal, of course, and they’re younger. They’re a desirable demographic. The pro-Trump audience is more rural, more working- and middle-class, older. A particularly heartless media professional might sum them up this way: “Their next big lifestyle choice will be death.”

So, if you are a person who programs or sets the tone of network fare and you want to take a side—you shouldn’t, but you want to!—you throw your lot with the anti-Trump demo, serving them the kind of journalistic approaches and showbiz attitudes they’re likely to enjoy.

Mr. Trump, you are certain, won’t last: He’ll bring himself down or be brought down. You want to be with the winning side. So play to those who hate him, exclude others, call it integrity and reap the profits.

That is my theory: media bias now is in part a financial decision, instead of what it used to be, a good old-fashioned human and institutional flaw.

This contributes to public division—to the great estrangement we see in America. I talk to media folk a lot, being one, and haven’t found anyone who’s said, “Why yes, that’s exactly what we’re doing, deepening our national divisions for profit!” Although I shared my theory this week with a senior manager of a news organization who quickly mentioned another major news organization and said: “I think that’s what they’re doing.”

But I do think it’s part of what is going on. I add only that it’s not only cynical and destructive, as a business strategy it’s stupid. Bias is boring. It’s predictable, rote, is an audience-limiter. What has value at a time like this is playing it straight and presenting the facts. That’s what they ought to do instead of taking a side.
Yeah, as if that is going to happen.

In that way, they're a lot like some of the worst people talking sports on TV and radio. I really noticed that after the NBA draft. The sports reporters who really knew something could talk about each draftees actual strengths and weaknesses and how they fit into that team's line-up. I could learn something from listening to them. The other ones just spent their time talking about LaVar Ball and what the Joel Embiid and Ben Simmons tweeted about Lonzo. Really? I could go on TV and talk about that - why would I need to tune in and listen to that? And the media who criticize him and the same sources that have made him so well-known. They're playing for ratings and, alas, LaVar Ball increases ratings. So they give him all the free time just as the media helped Trump during the primaries. They make these people prominent and then spend their time tsk-tsking over what they've created.

Continentti is right. They're wrong about everything.

Of course, that won't stop me from reading political pundits' commentary (and probably linking to them) and listening to sports TV and radio because I still enjoy the fray. But occasionally, it is worthwhile to pause and consider what it really going on.

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I can't really tell about the Senate GOP's health plan since I've seen a lot of people whom I respect either criticizing it or praising it. Or at least pointing out that it's better than the alternative - keeping Obamacare. It's clear that there will have to be changes to get to 50 votes in the Senate. This proposed reform from Ted Cruz seems like quite a reasonable compromise.
Cruz is one of four Republican senators who say they can't support the draft bill released by GOP leaders, and said the reason for his opposition is that the bill doesn't do enough to lower premiums. Giving insurers more flexibility not to meet Obamacare mandates would be one way to help create lower prices.

"We need common sense reforms to reduce the cost of premiums," he told reporters Thursday.

One of the compromises he is floating would let insurers offer plans that don't meet Obamacare's insurer mandates such as essential health benefits like maternity care or hospitalization.

The idea, which began with a 2015 opinion piece from former Sen. Phil Gramm, would force insurers to sell one plan on Obamacare's exchanges that met the law's mandates. That same insurer could then sell plans in the same state that don't meet the mandates.

"It leaves existing plans on the market but it gives new options so that people can purchase far more affordable health insurance," Cruz said.
I like that. I just don't know if it could be done through the reconciliation process. But there seems no reason why the GOP should continue the idea that insurance companies must offer all the mandates that the Obama administration imposed. And, as long as the insurance companies offered one policy like that, they could offer more of a menu to let people choose what best fits their needs. I've always thought that a lot of people simply want a catastrophic plan. Another one of the GOP senators opposing the proposed plan is Mike Lee. It sounds like he would go along with a proposal to give people more choice.
"For all my frustrations about the process and my disagreements with the substance of [the bill], I would still be willing to vote for it if it allowed states and/or individuals to opt out of the Obamacare system free-and-clear to experiment with different forms of insurance, benefits packages, and care provision options," Lee said. "Liberal states might try single-payer systems, while conservatives might emphasize health savings accounts. Some people embrace association health plans or so-called 'medishare' ministry models. My guess is different approaches will work for different people in different places – like everything else in life."
I'm all for laboratories of democracy. Let's see what works best.

He's only written a handful of opinions, but I'm already thrilled with Justice Gorsuch. Jonathan Adler looks at the textualist arguments that Gorsuch has made in those opinions...and it's a beautiful thing. In a unanimous ruling about what constitutes a debt collector under the Fair Debt Collection Practices Act, Gorsuch set forth this statement that would warm the cockles of any textualist's heart.
Gorsuch stressed that it is not for the courts to override or extend statutory text to conform with legislative purpose.
while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. . . . Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage, and no statute yet known “pursues its [stated] purpose[ ] at all costs.” . . . For these reasons and more besides we will not presume with petitioners that any result consistent with their account of the statute’s overarching goal must be the law but will presume more modestly instead “that [the] legislature says . . . what it means and means . . . what it says.”
And all the other justices signed on to that! If only they all believed it. And his dissent in another case demonstrates that not all the justices are as willing to leave statute-writing to legislators.
Today, the court decided Perry v. Merit Systems Protection Board. The case concerned a technical issue only lawyers could love: Whether the proper forum of MSPB dismissals of mixed cases on jurisdictional grounds is a federal district court or the U.S. Court of Appeals for the Federal Circuit. Justice Ruth Bader Ginsburg wrote for a seven-justice majority. Gorsuch dissented, joined by Thomas. Here again, Gorsuch focused on the text.

Gorsuch’s dissenting opinion in Perry is very conversational. It begins:
Anthony Perry asks us to tweak a congressional statute—just a little—so that it might (he says) work a bit more efficiently. No doubt his invitation is well meaning. But it’s one we should decline all the same. Not only is the business of enacting statutory fixes one that belongs to Congress and not this Court, but taking up Mr. Perry’s invitation also seems sure to spell trouble. Look no further than the lower court decisions that have already ventured where Mr. Perry says we should follow. For every statutory “fix” they have offered, more problems have emerged, problems that have only led to more “fixes” still. New challenges come up just as fast as the old ones can be gaveled down. Respectfully, I would decline Mr. Perry’s invitation and would instead just follow the words of the statute as written.
Later on, Gorsuch explains why courts should confine themselves to the text, even if this may produce a potentially problematic result.
Mr. Perry’s is an invitation I would run from fast. If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty. Besides, the law of unintended consequences being what it is, judicial tinkering with legislation is sure only to invite trouble.
That last paragraph is beautiful! Somewhere, I bet that Antonin Scalia is resting comfortable on a cloud and applauding.

It's all conjecture because, again, no one really knows anything, but it's rather fun to picture the collective aneurism aneurysm on the left this would cause.
The Supreme Court enters its final week of work before a long summer hiatus with action expected on the Trump administration's travel ban and a decision due in a separation of church and state case that arises from a Missouri church playground.

The biggest news of all, though, would be if Justice Anthony Kennedy were to use the court's last public session on Monday to announce his retirement.

To be sure, Kennedy has given no public sign that he will retire this year and give President Donald Trump his second high court pick in the first months of his administration. Kennedy's departure would allow conservatives to take firm control of the court.
But Kennedy turns 81 next month and has been on the court for nearly 30 years. Several of his former law clerks have said they think he is contemplating stepping down in the next year or so. Kennedy and his clerks were gathering over the weekend for a reunion that was pushed up a year and helped spark talk he might be leaving the court.
Ruth Marcus is already freaking out.
But his departure would be terrible for the court and terrible for the country. It could not come at a worse time. Any court vacancy these days, under a president of either party, triggers a battle between liberal and conservative forces. Kennedy’s retirement would unleash nomination Armageddon, given the feral political environment and the pivotal role he plays on the closely divided court.
Except, because of Harry Reid's use of the nuclear option to get a few appellate nominees approved without the filibuster paved the way for Mitch McConnell to extend Reid's option to the Supreme Court. Once again, liberals will have cause to wonder whether it's wise to create precedents to help Democrats when there is no guarantee that Republicans won't one day be in control.

Although there are plenty of rumors about what Kennedy might do, David Lat who blogs at Above the Law gives his own arguments to shoot down those rumors.

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What is the over/under of the percentage of media attention that Bernie Sanders will receive on the news that he and his wife are being investigated by the FBI compared to the leak that Trump is under investigation for either collusion with the Russians (since disavowed by Comey) or for obstruction of justice (still not clear)? If you had somewhere close to zero attention, you'd be on the right track given that Sanders was on Meet the Press yesterday and didn't get one question about this story.
Sen. Bernie Sanders, I-Vt., and his wife, Jane Sanders have hired prominent defense attorneys amid an FBI investigation into a loan Jane Sanders obtained to expand Burlington College while she was its president, CBS News confirms.

Politico Magazine first reported the Sanders had hired lawyers to defend them in the probe. Sanders' top adviser Jeff Weaver told CBS News the couple has sought legal protection over federal agents' allegations from a January 2016 complaint accusing then-President of Burlington College, Ms. Sanders, of distorting donor levels in a 2010 loan application for $10 million from People's United Bank to purchase 33 acres of land for the institution.

According to Politico, prosecutors might also be looking into allegations that Sen. Sanders' office inappropriately urged the bank to approve the loan.
Maybe it's all garbage and politically motivated since the guy who filed the complaint was the chairman of the Trump campaign in Vermont. But I can't imagine a Republican going on a news show while it is being reported that he and his wife are under an FBI investigation for a year and a half (thus beginning under Obama) and not getting a single question about it.

At this point, three of the four finalists for the presidential nomination are under FBI investigation. Amazing.

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For some reason, Oliver Stone has taken upon himself to interview Vladimir Putin. And in those interviews, there is one episode that appears to show Putin showing Stone a video of military action and claiming it is Russian operations in Syria. Oops.
Russian social media is reacting strongly to something President Vladimir Putin showed filmmaker Oliver Stone for the director’s much-hyped, four-part series of free-flowing chats with the long-time Russian leader.

In episode three of “The Putin Interviews,” the Russian president shows Stone footage on a cellphone of what he claims are Russian operations in Syria. You see heavy bombardment, huge clouds and men running.

The problem? It may not be Russian operations at all.

The Conflict Intelligence Team, a group of Russian researchers who track Russian involvement in military conflicts, says the footage is U.S. Department of Defense video, from either 2009 or 2013, showing anti-Taliban operations in Afghanistan. It appears to have been originally posted on According to CIT researcher Kirill Mikhailov, someone got hold of it, dubbed recordings of conversations between Ukrainian air force pilots over it, and published it last year, on the internet, as Russian military video from Syria, to see what viewers would do with it. Mikhailov calls it"a bit of amateur fake news bait."

....The Pentagon tells Fox News the video showed to Stone is not Russian military footage, and it does look like the original footage featuring Apaches.
The Kremlin has said that the video was part of a Ministry of Defense briefing to President Putin. It also said the phone he held up to Stone was not his, but an aide’s. The Kremlin says it will be able to authenticate the video, but won’t say how.

According to Russian network RT, Oliver Stone, at a festival in Norway, told the media “not to trivialize his documentary” over this.

"He brought out a phone and he showed it to us, we filmed it, and he said this was that,” Stone said about the incident. “Why would he fake it? I mean, the Russians did very well in terms of damages to ISIS in Syria.”

But Russian journalist and propaganda expert Alexey Kovalev said the video is a fake.

“It’s obviously not what Putin says it is,” he said. “That much is abundantly clear. And it tells you a lot about what kind of intel Putin is fed by his army of ‘Yes Men’.”

Meanwhile, Russian social media has turned the whole story into one big meme-a-thon, superimposing the Brooklyn Bridge onto Putin’s phone—look, it’s the new bridge to Crimea!

But Mikhailov of CIT told Fox News that jokes and memes aside: “If the man who has the nuclear codes gets fed un-fact-checked information and he’s the only one who makes big policy decisions in Russia, it is very concerning.”
The Russians indulging in #FakeNews - who would have dreamt of that happening?