Intellectual Carpet Bombing

The Disproportionate Response

2008-12-29T14:47:00.002-05:00

Virtually every time Israel takes action in Gaza or the West Bank, it is heavily criticized for "over reacting." Every time, in response, I think of the same dialogue from the West Wing, season 1:

President Bartlet: What is the value of a proportional response?

Admiral Fitzwallace: I'm sorry?

B: What is the virtue of a proportional response? Why is it good? They hit an airplane, so we hit a transmitter, right? That's a proportional response.

F: Sir, in the case of Pericles...

B: They hit our barracks, so we hit two transmitters?

F: That's roughly it, sir.

B: It's what we do. I mean this is what we do.

Chief of Staff McGerry: Yes sir, it's what we do. It's what we've always done.

B: Well if it's what we do, if it's what we've always done, don't they know we're going to do it?

M: Sir, if you would turn your attention to Pericle One.

B: I have turned my attention to Pericles one. Its two ammo dumps, an abandoned railroad bridge and a Syrian intelligence agency.

F: Those are four high rated military targets, sir.

B: But they know we are going to do that, they know we are going to do that. Those areas have been abandoned for days. We know that from the satellites. We have the intelligence. They did that, so we do this. It's the cost of doing business, it's been factored in, right? Am I right or am I missing somethhing here?

F: No sir, you're right sir.

B: Then I ask again, what is the virtue of a proportional response?

F: It isn't virtuous Mr. President, it's all there is sir.

B: It is not all there is.

F: Pardon me, Mr. President, just what else is there?

B: A disproportionate response. Let the word ring forth from this time and this place, you kill an American, any American, we don't come back with a proportional response, we come back with total disaster!

Unnamed General: Are you suggesting we carpet bomb Damascus?

B: General, I am suggesting that you and Admiral Fitzwallace and Secretary Hutchinson and the rest of the national security team take the next sixty minutes and put together a U.S. response scenario that doesn't make me think we are just docking somebody's damn allowance.

Reformers Only Mornin' Glories

2008-06-17T18:48:00.003-04:00

In today's Washington Post, Richard Cohen has a great op-ed in which he expresses his dismay over the Obama campaign throwing Jim Johnson, its former VP vetter, overboard:

It is abundantly clear that Johnson got home loans from Countrywide Financial, the company that Obama and others have blamed for contributing to the subprime mortgage debacle. It is not abundantly clear, however, that Johnson did anything wrong. The Wall Street Journal, which has done the major reporting on this story, said that some of Johnson's loans were "at lower-than-average interest rates" and that he got other kinds of considerations.
If Johnson were being contemplated for banking commissioner or something similar, this might be a problem. But he has instead been asked to vet Obama's vice presidential candidates. Only if one of them is connected with Countrywide Financial can I see a difficulty. That is not about to happen.

No matter. Others pounced on the story, finding Johnson very guilty association – inferentially indebted to the reviled Countrywide. Soon the GOP took up the cry that Johnson must go, and, after a moment's hesitation, he did. The Obama campaign thus showed a talent for retreat and, in the process, lost the services of someone who broke no law, greased no palm and has a reputation in Washington for integrity and sound judgment. That's why Obama had turned to him.

…

The Bush administration has done much to debase the coinage of experience. George Bush's inner circle – Dick Cheney and Don Rumsfeld above all – was rich in experience and poor in judgment. But it was not experience that led the Bushies astray. It was ideology, and that, of course, can addle the judgment of the experienced and the inexperienced alike. If the lesson we take from the debacle of Iraq is that experience does not matter, than we have lost the war twice over.

The departure of Jim Johnson is a bad omen. Already, the McCain campaign has purged itself of lobbyists, as if just being one is proof of corruption – or as if all lobbyists are the same and, on account of what they do, irredeemably slimy. The Obama campaign has pledged to be just as clean. But what matters are the judgment and integrity of the candidate, not whether an adviser once got a bargain mortgage from a notorious lending institution or was once a lobbyist. This search for virgins will not result in a clean government, but one, instead, that lacks the past to plan the future.

I couldn't agree more with the point Cohen makes. Being an insider isn't inherently a bad thing. Obama clearly agrees with this, as his top advisers are David Plouffe and David Axelrod, whose firm, AKP&D Media, boasts a client list including the DNC, DCCC, and numerous presidential campaigns, senators, congressman, governors and other assorted elected officials.

Similarly, lobbyists aren't inherently evil either. While she was pilloried last summer for refusing to follow Barack Obama and John Edwards in barring lobbyists from contributing to her campaign, Hillary Clinton was exactly right when she argued that "You know, a lot of those lobbyists, whether you like it or not, represent real Americans. They actually do. They represent nurses. They represent, you know, social workers. They represent, yes, they represent corporations. They employ a lot of people."

When I was in college, I was represented by lobbyists employed by my alma mater; as a union member, I'm currently represented by lobbyists working for my union; and as a New Yorker, I'm represented by New York City's lobbyists in Albany and Washington, D.C. There are, of course, many lobbies with which I disagree, but to demonize all lobbyists, or all "political insiders," is misguided. They should be judged based on what they are actually advocating for, not merely for the fact that they are advocating for something.

U.S. News's Michael Barone points out something important that most people tend to overlook - the right to lobby is a fundamental Constitutional right:

Behind this stigmatization of lobbyists is the notion that the failure to produce legislation in the public interest stems from the existence of lobbyists. Which is obviously nonsense. We couldn't abolish lobbying without repealing the First Amendment, which gives all of us, even those who are paid to do it, the right to "petition the government for a redress of grievances." And the government could not sensibly do business without lobbyists.

…

It is a simple fact of life that when Congress writes laws and the executive branch writes regulations that channel vast flows of money –and laws and regulations that have vast moral implications –citizens affected by those words are going to try to make sure they're written the way they want. They're going to hire the best people they can find to do so. They want lobbyists with connections –and with expertise. They can help lawmakers understand how the words they write will affect "real Americans."

That's why I was pleased to see Clinton defend lobbying not only for those whom her Democratic audience considers good interests (nurses, social workers) but for those they don't (corporations). Implicitly, she's rejected the distinction made by the head of the Humane Society of the United States, who recently contrasted "special interest lobbyists" (presumably those working for profit-making interests) with "socially responsible lobbyists" (those working for nonprofits). But even lobbyists for nonprofits have a monetary motive: to keep their (often six-figure) salaries flowing in.

Yes, K Street is not perfect. Old, entrenched interests tend to be well represented. New and growing industries and morally motivated companies that are unorganized tend to be underrepresented. The high-tech industry figured it could get along without much representation in Washington until Microsoft got slapped with an antitrust suit a decade ago. Now it hires lobbyists in droves.

Not much of this will change in a McCain or Obama administrations… Both candidates are proposing healthcare, carbon emission, and tax changes, legislation that will – and should – face heavy lobbying. Which is fine. Such laws will have enormous ramifications, and everyone who wants to should chime in. Even – if I can uses that dreaded word again – lobbyists.

All of which explains why I'm repeatedly infuriated by both McCain and Obama's disingenuous demagoguery on these issues. Both of them would rather avoid the appearance of impropriety than have an honest discussion with the American people about the role insiders and lobbyists play in politics. Rather than admit that, yes, they are politicians, with all that entails, they would rather jettison allies and aides as needed in order to pretend that they are "purer" than their peers and don't subscribe to politics-as-usual,

I find it particularly ironic that both Barone's and Cohen's columns were inspired by Obama's treatment of Jim Johnson, because there was a far better reason not to use him as a VP vetter: a track record of failure.

Just as experience and connections don't guarantee bad results, nor do they guarantee success either. Those who argue that Johnson was qualified rest their case on his two claims to fame: he managed Mondale's 1984 presidential campaign, and he was in charge of vetting potential VP's for John Kerry in 2004, yet both of which ended poorly for Democrats. Johnson led Mondale into his 49-state routing by Ronald Reagan (Reagan amassed 525 electoral college votes, to Mondale's 13); and he led John Kerry to choose John Edwards as his running mate, which he would later regret, as detailed by both Time and the New York Times.

For all of the talk of Obama's vaunted judgment, choosing Jim Johnson was a poor choice, just not for the reasons repeated incessantly by the press.

Lastly, the discussion of "insiders" reminds me of an essay by the inimitable George Washington Plunkitt. While he characteristically overstated his case, Plunkitt was on to something about the necessary role of those who make a career in politics when he wrote the following (from Plunkitt of Tammany Hall):

The fact is that a reformer can't last in politics. He can make a show for a while, but he always comes down like a rocket. Politics is as much a regular business as the grocery or the dry-goods or the drug business. You've got to be trained up to it or you're sure to fail. Suppose a man who knew nothing about the grocery trade suddenly went into the business and tried to conduct it according to his own ideas. Wouldn't he make a mess of it? He might make a splurge for a while, as long as his money lasted, but his store would soon be empty. It's just the same with a reformer. He hasn't been brought up in the difficult business of politics and he makes a mess of it every time.

I've been studyin' the political game for forty-five years, and I don't know it all yet. I'm learnin' somethin' all the time. How, then, can you expect what they call "business men" to turn into politics all at once and make a success of it? It is just as if I went up to Columbia University and started to teach Greek. They usually last about as long in politics as I would last at Columbia.

You can't begin too early in politics if you want to succeed at the game. I began several years before I could vote, and so did every successful leader in Tammany Hall. When I was twelve years old I made myself useful around the district headquarters and did work at all the polls on election day. Later on, I hustled about gettin' out voters who had jags on or who were too lazy to come to the polls. There's a hundred ways that boys can help, and they get an experience that's the first real step in statesmanship. Show me a boy that hustles for the organization on election day, and I'll show you a comin' statesman.

That's the a, b, c of politics. It ain't easy to work to get up to q and z. you have to give nearly all your time and attention to it. Of course, you may have some business or occupation on the side, but the great business of your life must be politics if you want to succeed in it…

Do you understand now, why it is that a reformer goes down and out in the first or second round, while a politician answers to the gong every time? It is because the one has gone into the fight without trainin', while the other trains all the time and knows every fine point of the game.

Team of Rivals '08?

2008-06-03T12:06:00.002-04:00

As I previously argued, Secretary of Health and Human Services seems like a logical consolation prize for Barack Obama to offer Hillary Clinton:

There is, however, one cabinet position for which Clinton seems both well-qualified and well-suited: Secretary of Health and Human Services. As a member of the Senate's Committee on Health, Education, Labor and Pensions since 2001, she is familiar with many of the issues dealt with by the Department of Health and Human Services. Given her intense and long-standing advocacy on behalf of health care reform and children's issues in particular, this seems an ideal appointment for her. Whether she would prefer it to being a senator, however, is anyone's guess.

It now looks like Obama and his advisers may have come to the same conclusion. According to The Daily Telegraph,

Senior figures in the Obama camp have told Democrat colleagues that the offer to Mrs Clinton of a cabinet post as health secretary or to steer new legislation through the Senate will be a central element of their peace overtures to the New York senator...
Another Democrat who has discussed strategy with friends in the Obama inner circle said that Mr Obama was openly considering asking Mrs Clinton to join his cabinet, alongside two other former presidential rivals: John Edwards, who is seen as a likely attorney general; and Joe Biden, who is a leading contender to become Secretary of State.

To my knowledge, this is the first time anyone associated with the Obama campaign has floated the idea of Secretary Clinton.

Two weeks ago, Obama explained why he might make such an offer. At a town hall in Florida, he was asked if he would consider an unspecified person as a running mate, "even if his or her spouse is an occasional pain in the butt." After laughing and pointing out that the primary campaign wasn't over yet, Obama answered in more detai l:

I'm a practical guy. One of my heroes is Abraham Lincoln. A while back, there was a wonderful book written by Doris Kearns Goodwin called "Team of Rivals," in which she talked about how Lincoln basically pulled all the people he'd been running against into his Cabinet. Because whatever personal feelings there were, the issue was, "How can we get the country through this time of crisis?" I think that has to be the approach one takes to the vice president and the Cabinet.

Two weeks before the Florida town hall, Andrew Sullivan, a rabid Clinton-hater, begrudgingly raised the possibility of a "Hate-Filled Dream Ticket" by referencing Goodwin's book and noting that giving Clinton a prominent role in the Obama administration would bolster, not detract, from his message of unity:

His model should be Abraham Lincoln. What Lincoln did, as Doris Kearns Goodwin explained in her brilliant book, "Team of Rivals," was to bring his most bitter opponents into his cabinet in order to maintain national and party unity at a time of crisis. Obama - who is a green legislator from Illinois, just as Lincoln was - could signal to his own supporters in picking Clinton that he isn't capitulating to old politics, he is demonstrating his capacity to reach out and engage and co-opt his rivals and opponents. Done deftly, picking Clinton could even resonate with Obama's supporters as a statesmanlike gesture, a sign of the kind of reconciliation he wants for his own party for the fall. It is consonant with his core message: that he can unfiy the country in a way few other politicians can. It would even help heal the gulf that has opened up between the Clintons and black voters in this campaign. It's win-win all round.

Notably, Lincoln's Team of Rivals was not an effort to bring the entire country together, but rather to mend the rifts within his own party at a time when it was greatly divided - his Cabinet did not include any of his opponents in the general election: John Bell, John Breckenridge, and Stephen Douglas. (Fortunately for him, Lincoln never had to deal with the religion of "High Broderism" and its zealous, misguided calls for bipartisanship.)

Every one of Lincoln's rivals for the Republican presidential nomination, however, was drafted into his Cabinet. Pennsylvania Senator Simon Cameron became Lincoln's Secretary of War, New York Senator William Seward became Lincoln's Secretary of State, Ohio Governor Salmon Chase became Lincoln's Treasury Secretary (and was later nominated by Lincoln to be Chief Justice of the Supreme Court), and Edward Bates became Lincoln's Attorney General.

A century later, Lyndon Johnson eloquently explained why co-opting your adversaries in this manner made eminent political sense. When asked why he kept J. Edgar Hoover in charge of the FBI, Johnson told the NY Times that "It's probably better to have him inside the tent pissing out, than outside the tent pissing in."

What is Hillary's End-Game?

2008-05-22T01:16:00.003-04:00

With just three primaries left, it is abundantly clear at this point that Barack Obama will be the Democratic nominee for president, yet Hillary has shown no signs that she plans to leave the race any time soon. On the assumptions that she is aware that the race is effectively over, and that she does, in fact, have some reason for remaining in the race other than spite and/or denial, the question becomes, what is she looking to gain? In the extended entry, I discuss what the competing theories are, and how realistic they seem to be.

Running again in 2012: Not gonna happen. Running again in 2012 is a bigger risk for her than running in 2008 was: she's up for reelection in 2012. Running again means giving up her senate seat, whereas in 2008, she's not out of a job after the Democratic Convention. That said, if she chooses to run again, it may mean running a primary against President Obama, wherein she has no argument against him assuming he's done a decent job. Her best arguments, "He is unelectable" or "I've got more experience" are no longer viable claims. If Obama loses in 2008, she has, at minimum, four major hurdles to overcome:

1) Obama proved that she can be beaten in the Democratic primary. If she runs again, whoever challengers her has a ready-made blueprint for how to win;

2) There would presumably be another front-runner, as whoever Obama chooses as his VP nominee becomes his heir apparent in 2012;

3) With Bill out of office for 12 years, and her defeat in 2008, the "Clinton Machine" is dead. She won't be able to rely on a dream team of top consultants, operatives, and fundraisers (for all the good that did her this time around anyway); and

4) Most importantly, half the party will hold her accountable for Obama's loss. Not only will she need to convince Democrats that she's the best candidate (again), but also to forgive her for bloodying up Obama and clearing the way for President McCain.

Obama "assumes" Clinton's campaign debt: As far as I can tell, this theory started when Tim Russert pulled it out of his ass the night of the Indiana & North Carolina primaries. The next day, Huffington Post reported on "the near certainty that the Obama campaign would agree to pay back the $11.4 million she has loaned her own bid, along with an estimated $10 million to $15 million in unpaid campaign expenses."

There are two factors that make this implausible. First, politically, it's a non-starter. The optics of Obama giving the Clintons tens of millions of dollars to drop out of the race would be disastrous for him. Given that a large part of the Clinton's debt is to themselves, this would amount to a multi-million dollar bribe, and would significantly impact his ability to campaign as a new kind of politician who is above making such deals.

Furthermore, the Obama campaign has prided itself on fundraising from its vaunted small-donor base. These donors, presumably, give in small amounts precisely because they cannot give more, and would be incensed at the notion that the money that they believed was going to help Obama would instead go to someone they have actively opposed for the last several months. As Josh Marshall succinctly argued, "That's not what people gave their money for."

Second, however, is the fact that it is literally not an option. According to federal election law, the Obama campaign would be limited to donating $2,000 to the Clinton campaign. What Obama could offer to do would be to ask his supporters to donate money to the Clintons, in order to retire their campaign debt. Given the oft-noted animosity that many of Obama's ardent supporters feel towards the Clintons, that the Clinton's debt is largely to themselves, and that they aren't exactly hurting for money, I doubt Obama supporters feel compelled to help Hillary out.

Clinton for Governor: This theory took off when Newsweek's Jonathan Alter suggested that Hillary accept the Governor's Mansion in place of the White House. No compelling reason is given, however, for why she would either want to be governor or make a good governor. Nor has Clinton herself shown any interest in leaving Washington for Albany. Even if she chose to do so, she would likely have to run against the sitting governor, David Paterson, who has said that he plans to run for reelection in 2010. Besides, does she really want her next career move to be a challenge to an incumbent governor, who, like Obama, happens to be a popular, black, Ivy-league educated lawyer and former professor?

Clinton for Majority Leader: Three problems: Harry Reid, Dick Durbin, and Chuck Schumer. As with running for governor, Clinton's first problem is that someone else already has the job, and they probably want to keep it. While it might make a tempting consolation prize if it were vacant, Harry Reid's been in the Senate for over 20 years, and has been one of its top-ranking Democrats since 1999. He's paid his dues and is unlikely to give up the position he's worked toward for so long.

If Reid were to step aside for some reason, Clinton would still have to out-maneuver Durbin and Schumer, who, in addition to sharing a house in DC, are the second- and third-ranking Democrats in the Senate. As the senior senator from Illinois, Durbin also happens to be one of Obama's earliest and most influential supporters, something a President Obama would take into account in deciding how to weigh in on choosing a new Majority Leader.

Schumer, New York's senior senator, is in his second term as chairman of the Democratic Senate Campaign Committee. In 2006, he helped unseat 6 Republican incumbents, giving Democrats control of the senate, and he is likely to help seat several more Democratic senators in this election cycle. Presumably, all of these new Democratic senators would maintain some level of gratitude for Schumer's DSCC leadership, and would be hesitant to cross him by supporting Clinton in a contested race for majority leader.

Clinton for Cabinet Position in Obama Administration: Of the Big 4 (Defense, Justice, State and Treasury), I have trouble seeing her as being particularly interested in either Secretary of the Treasury, or Attorney General, based on the issues she focused on as both First Lady and as a sitting senator, so I'll assume that she isn't.

She might be interested in Secretary of State or Defense, given her campaign's focus on her foreign policy credentials, and her service on the Senate's Armed Services Committee, yet I don't see these appointments as particularly plausible. Simply put, there is no subject on which she and Obama are more divided than foreign affairs. Most prominently, they've fought over Iraq, Iran, and basic philosophies of negotiation with foreign leaders. Such disagreements would seem to rule her out for either position.

There is, however, one cabinet position for which Clinton seems both well-qualified and well-suited: Secretary of Health and Human Services. As a member of the Senate's Committee on Health, Education, Labor and Pensions since 2001, she is familiar with many of the issues dealt with by the Department of Health and Human Services. Given her intense and long-standing advocacy on behalf of health care reform and children's issues in particular, this seems an ideal appointment for her. Whether she would prefer it to being a senator, however, is anyone's guess.

This leaves me with what I think are the most likely, and most interesting, possibilities for Hillary might be hoping for: Vice President, and Supreme Court Justice.

When it comes to choosing a running mate, there is a strong argument to be made against choosing Clinton, that it is incongruous with his message of moving past partisanship and old political wars. But the negatives, in my view, pale in comparison to the benefits. Though I hate to quote him, Andrew Sullivan makes a compelling case for what he terms the "Hate-Filled Dream Ticket."

The conservative white voters that Clinton has amazingly managed to attract could be combined with the massive infusion of new young votes, internet money, and African-American enthusiasm to create a potential tsunami in the election. Instead of having to pick between the first black president and the first woman president, the Democrats could offer voters both: the first black president and first female vice-president. Worries about Obama's relative youth and lack of Washington experience would be allayed by the presence of the Clintons. The toxicity of the Clinton baggage could be balanced by the hope Obama has inspired.

The Clintons could be deployed to shore up support in some of the Reagan Democrat states, while Obama wins over enough independents to carry the Mountain West and the upper Midwest. California, Ohio, New York, Florida and Pennsylvania could be secured…

And yet I can also see that the new politics Obama represents has provoked a ferocious backlash from the established political class; and his weakness (as well as his appeal) as a candidate is his reluctance to engage in the kind of street-fighting that politics can sometimes — and must sometimes — become. By picking Clinton as a vice-president, he would be pulling a classic American manoeuvre — getting a surrogate to do the dirty pugilism of the campaign, while using his own extraordinary skills to provide a unifying and uplifting overall theme. Picking Clinton would also defuse genuine concerns among older voters that he is just too green to be entrusted with presidential power just yet…

There's also a way for Obama to explain this choice in a way that does not violate — and in fact strengthens — his core message. His model in this should be Abraham Lincoln. What Lincoln did, as Doris Kearns Goodwin explained in her brilliant book, "Team Of Rivals," was to bring his most bitter opponents into his cabinet in order to maintain national and party unity at a time of crisis. Obama — who is a green legislator from Illinois, just as Lincoln was — could signal to his own supporters in picking Clinton that he isn't capitulating to old politics, he is demonstrating his capacity to reach out and engage and co-opt his rivals and opponents. Done deftly, picking Clinton could even resonate with Obama's supporters as a statesmanlike gesture, a sign of the kind of reconciliation he wants to achieve at home and abroad and energize his own party for the fall. It is consonant with his core message: that he can unify the country in a way few other politicians can. It would even help heal the gulf that has opened up between the Clintons and black voters in this campaign. It's win-win all round.

It is the ability of this ticket to reunite the party after the divisive primary that demonstrates how smart a move an Obama/Clinton would be. Given the huge numbers of Clinton supporters who say that they would vote for McCain or stay home rather than support Obama, a number that only went up as the campaign progressed, there are few better ways to ensure that they don’t follow through with their threat of throwing the election to the Republicans. 75% of Clinton supporters, and 60% of Democrats overall want a unity ticket – with numbers like that, it’s hard to deny its appeal. In particular, Clinton’s appeal is to the key demographics that Obama has been unable to attract: working-class whites and Hispanics (and no, Edwards can’t get those same demographics).

Lastly, Supreme Court Justice Clinton: Perhaps the most interesting possibility is for Barack Obama to agree to nominate Hillary to the Supreme Court.

Before stepping on to the national stage in 1992, Hillary had a very successful legal career. After attending Yale Law School, she practiced with The Rose Law Firm for nearly 20 years, becoming its first female partner. Additionally, she has worked as a lawyer for the Children’s Defense Fund, and for the House Committee on the Judiciary during the Watergate Hearings. In both 1988 and 1991, The National Law Journal listed her as one of America’s 100 most influential lawyers.

As Jason Miller argued in yesterday’s Washington Post,

Obama and Clinton have wound up agreeing on nearly every major issue during the campaign; at the end of the day, they share many orthodoxies. Unless the Supreme Court were to get mired in minuscule details of what constitutes universal health care, Obama could assume that he'd be pleased with most Clinton votes, certainly on major issues such as abortion.

Obama could also appreciate Clinton's undeniably keen mind. Even Clinton detractors have noted her remarkable mental skills; she would be equal to any legal or intellectual challenge she would face as a justice. The fact that she hasn't served on a bench before would be inconsequential, considering her experience in law and in government.

If Obama were to promise Clinton the first court vacancy, her supporters would actually have a stronger incentive to support him for president than they would if she were going to be vice president. Given the Supreme Court's delicate liberal-conservative balance, she would play a major role in charting the country's future; there is no guarantee that a Clinton vice presidency would achieve such importance…

Obama could also trust that Clinton would maintain her image as a fighter after
arriving at the court. Her tenacity has never been more apparent. President Obama would engender praise (at least from Democrats) at the prospect of Hillary going toe to toe with Clarence Thomas, Antonin Scalia and Samuel Alito. Clinton's gumption and determination might make her one of the most powerful forces ever on the court, particularly when it comes to swaying other justices when the court is closely divided.

For some context, there have been many Supreme Court Justices who did not previously serve as judges. There is also a long list of influential Justices who were nominated for the Court after careers in the legislature, including, most notably, Hugo Black (a former senator representing Alabama); William Henry Moody (a former member of Congress from Massachusetts, who, in only 2 years on the Court, authored 67 opinions); and Chief Justice Fred Vinson (formerly a member of Congress from Kentucky).

There is even precedent for Supreme Court nominations playing a role in presidential politics. In 1860, Lincoln defeated Ohio Governor, and former Senator, Salmon Chase for the Republican nomination. Fearing that Chase would run against him again in 1864, Lincoln preempted his challenge by nominating Chase to be Chief Justice of the Supreme Court.

Similarly, Earl Warren became Chief Justice only after involvement in two presidential campaigns. As Governor of California, Warren was the 1948 Republican nominee for Vice President, and a candidate for the Republican nomination in 1952. In 1953, Eisenhower appointed his former rival; the Warren Court would go on to be one of the most progressive periods in the Supreme Court’s history.

"Greed - for lack of a better word - is good. Greed is right. Greed works."

2008-05-20T10:55:00.004-04:00

According to Robert Mundell, Columbia economist and Nobel laureate, the movie Taxi Driver is responsible for "creating more wealth" than any other movie in history. Why?

The 1976 classic, directed by Martin Scorsese with Robert De Niro as the bitterly alienated protagonist, gave the world De Niro's catchphrase, "You talking to me?", and introduced a young Jodie Foster. But what does it have to do with the world economy?

John Hinckley, the deranged would-be assassin who attempted to kill US president Ronald Reagan in 1981, claimed that he was inspired by it. He said that his action was an attempt to impress Foster. (The movie features a scene in which a mohawked De Niro attempts to assassinate a politician.)

According to Mundell, the wave of sympathy for Reagan that was engendered by the assassination attempt deterred Democrats in Congress from voting against his proposed tax cuts. Because of this accident of history, the US administered a big fiscal stimulas at the same time that Paul Volcker at the Federal Reserve was administering tight money. This, for Mundell, was vital in creating the era of prosperity that followed.

"Taxi Driver is the most important movie ever made from the standpoint of creating GDP," Mundell told delegates. "It's the movie that made the Reagan revolution possible. That movie was indirectly responsible for adding between $5trn and $15trn of output to the US economy."

Personally, I'm skeptical that
a) Taxi Driver is really THE cause that of the Reagan assassination attempt (as opposed to the fact that Hinckley was crazy);

b) that the assassination attempt is THE cause for the tax cuts passing (as opposed to the fact that tax cuts tend to be popular in general, and Reagan had just routed Jimmy Carter in 1980 51%-41% while carrying 44 states); and

c) that the tax cuts are THE cause for that much economic growth (given that Reagan then raised taxes twice starting in 1982, and that the economy grew faster under Clinton than it did under Reagan in any event).

I'd probably choose Wall Street as the biggest wealth-creating movie of all time. God only knows how many future I-bankers were created by watching the Michael Milken/Carl Icahn/Ivan Boesky-inspired Gordon Gekko. True, he was supposed to be a villain, but lots of people didn't (and don't) necessarily see him that way. Plus, this has got to be the greatest monologue in defense of capitalism of all time:

Well, ladies and gentlemen, we're not here to indulge in fantasy, but in political and economic reality. America. America has become a second-rate power. Its trade deficit and its fiscal deficit are at nightmare proportions. Now, in the days of the free market when our country was a top industrial power, there was accountability to the stockholder. The Carnegies, the Mellons, the men that built this great industrial empire made sure of it because it was their money at stake. Today, management has no stake in the company!

All together, these men sitting up here own less than 3% of the company. And where does Mr. Cromwell put his million-dollar salary? Not in Teldar stock: he owns less than 1%.

You own the company. That's right. You, the shareholder. And you are all being royally screwed over by these, these, bureaucrats with their steak lunches, their hunting and fishing trips, their corporate jets and golden parachutes.

Teldar Paper, Mr. Cromwell, Teldar Paper has 33 different vice presidents, each earning over $200,000 a year. Now, I have spent the last two months analyzing what all these guys do and I still can't figure it out. One thing I do know is that our paper company lost $110,000,000 last year, and I'll bet that half of that was spent in all the paperwork going back and forth between all these vice presidents.

The new law of evolution in corporate America seems to be survival of the unfittest. Well, in my book, you either do it right or you get eliminated.

In the last seven deals that I've been involved with, there were 2.5 million stockholders who have made a pretax profit of $12 billion. I am not a destroyer of companies, I am a liberator of them!

The point is, ladies and gentleman, that greed - for lack of a better word - is good. Greed is right. Greed works. Greed clarifies, cuts through, and captures the essence of the evolutionary spirit.

Greed, in all its forms - greed for life, for money, for love, knowledge - has marked the upward surge of mankind. And greed - you mark my words - will not only save Teldar Paper but that other malfunctioning corporation called the USA.

Why Ban Polygamy?

2008-05-19T15:29:00.004-04:00

Todd Zwyicki at Volokh Conspiracy has an interesting post:

Here's my thought--the definition of marriage as one man and one woman seems somewhat arbitrary, which is why it is difficult to justify. The primary justification I can see is a Hayekian one of prudential deference to tradition unless there is an extremely strong case for rejecting it. I would distinguish this from what I would understand as a Burkean objection, which I would read as tradition being prescriptive, rather than prudential. But whether this is an accurate distinction is probably a debate for a different day.
So the question is, if you get rid of the "man-woman" prong as largely arbitrary, why does this not lead to getting rid of the "one-one" prong as well? It seems like the new line is just as arbitrary as the old one.

Now my sense is that the courts simply say that they are distinguishable, but don't say why. They seem to simply say that they are different. And as Eugene's post implies, merely saying they are different without saying why doesn't hold up to scrutiny later.

The difference, as is often the case, is that legislatures often draw arbitrary lines, especially under their police power. But courts should be able to articulated a principled basis for their decisions rather than an arbitrary legislative-style line-drawing.

As I said, I don't have strong feelings on this, so my question is purely intellectual--I'd just like to understand better whether a principled line can be drawn here or whether this is largely arbitrary line-drawing.

Note that this is being framed as an intellectual, rather an political question. I don't imagine that we'll see a push for the country, or individual states therein, to legalize polygamy any time soon, if for no other reason than the fact that there is no sizeable coalition trying to advance that policy. Rather, the question should be seen as, if one supports same-sex marriage but opposes polygamy, what differentiates the two?

One of Zwyicki's commenters takes this notion further, claiming that to the extent that there is a non-arbitrary difference between same-sex marriages and polygamy, it's contrary to what we might expect:

I don't buy into the argument that same sex marriage has any legitimacy over plural marriages. Even today, there are far more people living in countries that allow plural marriages than allow same sex marriage. And, indeed, one of the largest religions in the world (Islam) condones polygamy, and there is some evidence that some, if not all, of the other "great" religions did so in the past. This doesn't even get to the FLDS and their religious doctrines. So, polygamy has a reasonably strong claim under the 1st Amdt. that same sex marriage does not.

As far as I'm aware, while Christianity never explicitly allowed polygamy, both Judaism and Islam have.

An obvious argument against polygamy is that it can be exploitive, particularly in cases where child marriage is involved, but I don't find this particularly compelling. In general, "X can lead to Y; Y is bad; therefore ban X" is pretty weak logic when Y can be prohibited directly. There is no parallel ban on "traditional" (read: monogamous, heterosexual) marriage, despite the fact that many involve various forms of spousal abuse, such as domestic violence and rape (unless you subscribe to Phyllis Schlafly's theory that "[W]hen you get married you have consented to sex. That's what marriage is all about.") Similarly, we could have laws against exploitive acts within polygamy, without banning the practice entirely.

To me, the most compelling difference between the two isn't really an inherent difference, but more a byproduct of history: the United States, and the West in general, have developed an understanding of, and common law rules governing, how "traditional" marriages function. We have accepted policies regarding property rights within a marriage, divorces, the death of a spouse, child custory, taxation and others, all of which are predicated on an understanding of a marriage being between two people.

For most legal questions regarding marriage, there is no functional difference between a marriage between one man and one woman, two women, or two men. It is easy to place same-sex marriages under the system that currently exists for heterosexual marriages, but allowing polygamous marriages would require thinking large swaths of established family law. For example:

*Adding another person to the marriage: Would the three of you have to have a ceremony at the same time? If two people wed, and the wife wants another hubby, does her first husband have to consent? Who is married anyway - a man to each woman, or all individuals to each other?

* When you marry, would there be any way to ensure that your spouse does not bring another person into the union later on? Mr. Zwyicki can surely imagine his discomfort if his wife were to wed another husband.

*What happens when you divorce? What if the second wife only came into the marriage because of her belief that the first wife did a good job of managing the children and keeping the husband's drinking under control, and the husband desires to divorce the first wife? Can the second wife object - after all, it's her marriage at stake, too?

*Have fun trying to divide property at divorce, especially if only one spouse divorces and the others remain married.

*Whose paycheck would count for child support and alimony? If the purpose of alimony is to have the divorced spouse live in the manner to which she was accustomed during the marriage, why would she not be able to get alimony from her sister-wives, if they worked and earned a paycheck?

*Upon whose death does the marriage terminate? If there is one husband and three wives, would the union terminate when the husband dies, when any one person dies, or when there is only one person left?

None of this is to say that such questions couldn't be answered, but just that we don't have widely accepted answers to them now. The fact that same sex marriage, unlike polygamy, can fit into the current legal regime governing marriage isn't a a normative argument against legalizing polygamy, but it does point to a significant difference between the two types of marriage.

UPDATE: Dale Carpenter provides several reasons why polygamy is different than same sex marriage:

*There is nothing in principle that necessarily leads from the recognition of a new type of monogamous union (same-sex unions) to the recognition of polygamous unions. Consider the recognition of inter-racial marriage (a type of monogamous union), which reversed long-standing legal bans on miscegenation and departed from deep cultural disapproval of it dating to colonial times and before. Many warned that reversing miscegenation bans would lead to polygamy, but it did not. To the objection that dyadic inter-racial unions would lead to polygamy, the proper response then was, "Why would it?" One response to the fear that dyadic same-sex unions will lead to a polygamy slippery now is, "Why would it?" Opening marriage to one change because the change seems justified does not mean that opening marriage to every change is justified. Every proposal for reform rises or falls on its own merits. Gay marriage advocates have made extensive (and contested) arguments about why it would benefit individuals and society. It is up to polygamy advocates to do the same.

*From a Burkean/Hayekian perspective, it's relevant that polygamy has been historically tried and rejected in many human societies. We do not write on a blank slate when it comes to polygamy. Lessons have been learned from this experience and those lessons have led us away from polygamy in the West, in part because polygamy as practiced has been seen as inconsistent with liberal values, individualism, and sex equality. SSM has not been tried and rejected and is not inconsistent with, indeed arises from, Western values of liberalism, individualism, and sex equality. While the burden is on gay marriage advocates to show why we should try it, I think actual historical experience with polygamy suggests that the burden on polygamy advocates is much heavier.

*Plural unions have historically most often taken the form of one man having many wives. It seems likely in practice it would take that form in the future. This raises many concerns different from those raised by same-sex marriage, including the greater potential for abuse of women and children. These same concerns do not arise with SSM, which should improve the lot of women and children in gay families (if SSM advocates are right about the benefits, a contestable but separate point).

*Polygamy will likely mean that marital opportunities will diminish for some men, since a few men who are very wealthy or otherwise attractive as mates will have many wives. This constricts the marriage market for less desirable men, which leaves some with no mates at all or delays their marriages as compared to their opportunities in a non-polygamous society. And unmarried men present all kinds of difficulties for societies. By contrast, SSM will mean that meaningful marital opportunities will be available for gay persons. More people will be married. Thus, SSM expands marriage opportunities while polygamy contracts it.

*With polygamy, many basic rules of marriage will have to be changed. For example: if the husband dies intestate, who inherits? How are death benefits split? How are child custody disputes decided if a partner wants to divorce the group? If the husband exits, do the wives remain married to each other? On and on. We could craft answers to these questions, but it will involve a dramatic retooling of marriage as a two-person institution. None of these issues arise with SSM; aside from a few technical matters, the marriage rules remain the same. As a legal matter, SSM involves changes in the wording of statutes that specify “husbands” and “wives” and little more. The basic legal design of marriage as a dyadic institution, embedded in literally hundreds of ways in state and federal law, remains untouched.

Perhaps none of this is conclusive against polygamy nor do I offer it as such. I am sure polygamy advocates have responses to these and other concerns about it. But I do think it suggests that SSM and polygamy present quite different questions of history, experience, logic, and public policy such that we are entitled to treat them as separate issues. We may, despite the concerns and the historical trend against polygamy, one day accept it. But the debate about accepting it will not, I think, turn on whether we have first accepted gay marriage.

Interesting Post-Mortem by Clinton Staffers

2008-05-16T11:17:00.003-04:00

The New Republic has a new story up on the Clinton campaign: What Went Wrong, as told through the words of fund raisers, organizers, staffers and advisers.

Before I cherry pick the quotes that best summarize my own explanation, I find it somewhat interesting that there is no mention of the May 2007 memo by Deputy Campaign Director Mike Henry, in which he said that the campaign shouldn't compete in Iowa, instead focusing on New Hampshire and the following states. Henry presciently wrote that

In past presidential campaigns smaller states, like Iowa and New Hampshire, played a more prominent role in securing the nomination. That process was based on the momentum that was created from winning Iowa or New Hampshire. Thirteen of the last 14 major-party nominees have won Iowa, New Hampshire, or both. Senator Clinton's husband is the only exception. But I think this old system is about to collapse and it will happen this year because of the impact of primary elections that are being held on February 5th.
...
After assessing this proposal against core elements of our plan, my recommendation is to pull completely out of Iowa and spend the money and Senator Clinton's time on other states. I believe that the changes to and the volatile nature of setting the Democratic nomination calendar has changed the way the nomination will be won in 2008. I believe the "small state first" approach that we are familiar with, that bases winning nomination on momentum is about to be turned on its' head this year. It used to be protected by party rules and the lack of a national primary day. We no longer have either. The party has no leverage to maintain scheduling discipline and we now have a national primary on February 5th with 20 states choosing their nominee on the same day.

He lists six reasons for his suggestion, three of which proved to be particularly accurate:

2. Dedicating significant funding to Iowa will draw money away from other important states. Spending Senator Clinton's time and money in other states will be more efficient and increase our chances of winning the nomination. And it will improve our fundraising. After the first four states (not including Florida) our campaign will only have $5 - 10M to compete in the 25 February 5th states.
3. Iowans will not be the first to vote. Over 15 states have no excuse early vote or vote by mail programs that allow voters to cast their ballots well before caucus day in Iowa. These states are: Florida, Arkansas, Arizona, California, New Jersey, New Mexico, Oklahoma, Tennessee, Utah, Colorado, Georgia, North Carolina, and Texas.
...
5. Proportional representation is a ticking time bomb that the campaign needs to deal with by campaigning hard in February 5th states now. The campaign should focus on winning a majority of congressional districts in each state. This will limit our exposure to a movement candidate beating us after the early states.

As a result, he nailed the state of the campaign heading into Super Tuesday on February 5th:

Remember all of the states have a rule that you eat what you kill. So if we have a split decision in Iowa. Senator Clinton wins New Hampshire, and Obama or Edwards wins South Carolina. We now enter into the February 5th mega states with no money, little time to raise it, and have to rely on earned media to get our message out. Coverage will be about equal among all the candidates who have survived (for argument sake let's say Obama and Edwards). If we invest the money and time we save by leaving Iowa on a strategy to win majorities in each of the February 5th states we limit our exposure.

The Clinton campaign rejected Henry's advice, however. One week after having his advice vindicated on Super Tuesday, Mike Henry resigned as Deputy Campaign Manager. Clinton, low on funds, went on to be routed in state after state throughout February, too low on funds to compete and not having put sufficient effort and troops in place to organize those states after essentially fighting to a draw on Super Tuesday. Obama ran up large margins of victory in small states and caucuses where the Clinton's didn't compete, banking on coming back in Texas and Ohio. By ceding several contests entirely, however, Clinton let Obama build up a pledged-delegate lead that she was unable to overcome.

To be clear, Henry's strategy was not the same as Giuliani's disastrous gamble of skipping the early states and betting it all on Super Tuesday, largely for two reasons:

1) Giuliani's position in the Republican field was not as dominant as Clinton's in the Democratic field. Despite the media's infatuation with his campaign, Giuliani never managed to put any real distance between himself and the other candidates in terms of either support or fundraising. Clinton started off with much larger initial advantages here, yet Obama was able to catch up. Giuliani was never out in front of the pack to the same degree, and he could not, therefore, afford to let someone else (or multiple candidates, as it turned out) build momentum.

2) Henry's strategy wasn't to skip all of the early states, as Giuliani did, but rather to skip Iowa and move straight to New Hampshire, where Clinton went on to win. He advocated campaigning in all of the early states except Iowa, whereas Giuliani skipped head to Florida and Super Tuesday. Prior to Super Tuesday, Henry still had Clinton competing in Nevada, South Carolina, and New Hampshire, two of which she managed to win despite spending inordinate amounts of time and money in Iowa. Had she used those resources elsewhere, the results may well have been better for her than they were, and Obama's Iowa victory wouldn't have seemed as astounding. No more so than her victory over him in West Virginia, where he didn't compete at all.

As for the Clinton people themselves, here are some of their more persuasive explanations, courtesy of TNR:

"Clearly [Obama] was a phenomenon. He was tapping something really different than anyone had ever seen before. ... Months and months before Iowa, he was getting record crowds. I just think they should have really gone after him back in the summer and in the fall. I know it would have been a difficult decision to make back then. She's the leader of the party, the standard bearer, the big dog. Everyone thinks she's gonna win and walk away with it. Why go picking on Barack Obama? But that's just something the campaign should have done sooner."
"We didn't lay a serious glove on him until the fall. We tried to a little bit, but we weren't successful. We did silly stuff, like talk about David Geffen. It wasn't the substantive contrast we needed to make."

"There was not any plan in place from beginning to end on how to win the nomination. It was, 'Win Iowa.' There was not the experience level, and, frankly, the management ability, to create a whole plan to get to the magical delegate number. That to me is the number one thing. It's starting from that point that every subsequent decision resulted. The decision to spend x amount in Iowa versus be prepared for February 5 and beyond. Or how much money to spend in South Carolina--where it was highly unlikely we were going to win--versus the decision not to fund certain other states. ... It was not as simple as, 'Oh, that's a caucus state, we're not going to play there.' That suggests a more serious thought process. It suggests a meeting where we went through all that."
"Harold Ickes's encyclopedic understanding of the proportional delegate system was never operationalized into a field plan. The campaign inexplicably wrote off many states entirely, allowing Obama to create the lead of 100+ delegates that he has today. Most notably, we claimed the race would be over by February 5, but didn't devote any resources to the smaller states that day and in the weeks that followed, allowing Obama to easily run up margins and delegate counts on the cheap--the delegate margin he will win by."
"Probably our second biggest mistake was much more operational: Making our chief strategist our one and only pollster. It is impossible to disagree and have a counter view on message when the person creating the message is also the person testing the message."
"We would just cringe. Ugh. Such an out-of-touch corporate run kind of campaign--exactly what you'd expect from Mark Penn. He did fine during his time in the Clinton White House. But running a campaign to capture the nomination in a change environment is something he had never done. Just look at what he did for Joe Lieberman!"
"Keeping the same team in place [after New Hampshire] meant that pre-Iowa planning and strategic errors continued nearly unabated, were not corrected. ... Too much damage had been done by the time Maggie Williams took the helm."
"There was financial mismanagement bordering on fraud. A candidate who raised more than a quarter of a billion dollars over the years had to pump in millions more of her own money to stave off bankruptcy."
"We placed a huge financial bet on Iowa and raised its importance by sending senior staff there. And because we didn't plan for a national campaign, we couldn't point to an operation that could withstand an Iowa blow the way Obama could after New Hampshire."
"Penn was preoccupied with the national polls. We were up in the national polls, but Iowa was always a challenging thing for us. Early, early on, our internals showed us a significant number of points behind. ... In Iowa, Penn consistently would show polls that were of the eight-way. That was basically meaningless because it wasn't going to be an eight-way race. The candidates that were the second-tier candidates were not going to reach the threshold [of 15%]. The real race was the three-way. But he always focused on the eight-way when we'd start going over the numbers in Iowa. It was frustrating to the state staff and other people as well. It just showed a lack of understanding and a disconnect."

"Liberal Internationalism"

2008-05-15T11:40:00.004-04:00

There's an interesting discussion here over a short piece by Matt Yglesias, author of the recently released Heads in the Sand: How the Republicans Screw Up Foreign Policy and Foreign Policy Screws Up the Democrats, in which Yglesias argues for Democrats should embrace a "liberal internationalist" foreign policy. He argues that despite the Bush administration's international failings,

[Democrats] have not articulated a compelling account of why Bush is failing, or outlined a coherent alternative vision. Instead, Democrats' seem stuck in a futile effort to reduce national-security policy-making to personal characteristics like Barack Obama's vaunted "judgment" or Clinton's oft-mentioned "experience." These are supposed to contrast with Bush's original foreign-policy sin: incompetence. Years of disastrous governance have succeeded in convincing people of at least the last of these assertions, Bush is now the least-popular president ever, and Democrats have seized control of Congress. Yet, with Bush off the ballot, this kind of personalized critique will have little continuing salience and will not convince the public that liberals have the answers the country needs.

Responses to Yglesias are provided by David Rieff, senior fellow at the World Policy Institute and author of At the Point of a Gun: Democratic Dreams and Armed Intervention; Justin Logal, senior fellow at the American Enterprise Institute and National Review columnist; Derek Chollet, senior fellow at the Center for a New American Security and co-author of America Between Wars: from 11/9 to 9/11; and Anne Marie Slaughter, Dean of Princeton's Woodrow Wilson School of Public and International Affairs.

Read This Book Now

2008-05-14T15:40:00.002-04:00

I got tipped off to a new book, True Enough: Learning to Live in a Post-Fact Society by Farhad Manjoo by a Nick Kristoff column last month. As Kristoff summarizes it,

Consider the Dartmouth-Princeton football game in 1951. That bitterly fought contest was the subject of a landmark study about how our biases shape our understanding of reality.
Psychologists showed a film clip of the football game to groups of students at each college and asked them to act as unbiased referees and note every instance of cheating. The results were striking. Each group, watching the same clip, was convinced that the other side had cheated worse — and this was not deliberate bias or just for show.
“Their eyes were taking in the same game, but their brains seemed to be processing the events in two distinct ways,” Farhad Manjoo writes in his terrific new book, “True Enough: Learning to Live in a Post-Fact Society.” It’s the best political book so far this year.
Mr. Manjoo cites a more recent study by Stanford University psychologists of students who either favored or opposed capital punishment. The students were shown the same two studies: one suggested that executions have a deterrent effect that reduces subsequent murders, and the other doubted that.
Whatever their stance, the students found the study that supported their position to be well-conducted and persuasive and the other one to be profoundly flawed.
“That led to a funny result,” Mr. Manjoo writes. “People in the study became polarized.”
A fair reading of the two studies might have led the students to question whether any strong conclusions could be drawn about deterrence, and thus to tone down their views on the death penalty. But the opposite happened. Students on each side accepted the evidence that conformed to their original views while rejecting the contrary evidence — and so afterward students on both sides were more passionate and confident than ever of their views.
That’s what we seem to be seeing in the Democratic primaries. Even though the policy differences between the two candidates are minimal, each camp is becoming increasingly aggravated at the other. A Washington Post poll published Wednesday found that more than one-third of Democrats say that they may not support their party’s nominee if it is not their own choice.
Another challenge is the biased way in which we gather information. We seek out information that reinforces our prejudices. One study presented listeners with static-filled recordings of speeches that they believed they were judging on persuasive power. Listeners could push a button to tweak the signal, reducing the static to make it easier to understand. When smokers heard a speech connecting tobacco with cancer, they didn’t try to improve the clarity to hear it more easily. But they pushed the button to get a clearer version of a speech saying that there was no link between smoking and cancer. Nonsmokers were the exact opposite.

If you're interested, check out the following interview with Manjoo and Portfolio writer Jeff Bercovici:

Meta-Messaging: "I Play Nice With Others"

2008-05-13T12:09:00.001-04:00

Jerome Armstrong's post this morning hinted at the biggest danger facing Democrats in the likely McCain-Obama general election match up: both candidates will be using the same overarching themes and narratives throughout the campaign. As he notes,

I haven't seen much of a dent being put into McCain's core brand (war hero, reformer, maverick) to date...If McCain is able to leverage that into becoming a "change Republican" he'll have done what Matzzie says, which is pointed out in the above examples: "Sometimes being the first person to adopt a message isn't the winner--your opponent can hijack the dialog in the media and turn it to his advantage."

This misses, however, the other massive overlap between their messages: both lay claim to the mantle of bi-partisanship, of being able to bring people together despite their differences to work out functioning compromises. For Obama, this is encapsulated by his theme of "Unity," whereas for McCain, its in his branding as a "Maverick," as distinct from the ideological, far-right Republicans. As one Republican consultant told the NY Times, "I think that by rook or by crook or by providence or just dumb luck, we nominated the one guy who continually outpolls the Republican brand."

John Heilemann of New York Magazine noted this exact problem in February, quoting Wellesley political scientist Marion Just's summarry of both Democrats' meta-narratives:

"Clinton's meta-narrative," she says, "is that she'll do anything to win; she can't be trusted, she's ethically challenged; she's manipulative, calculating, and programmed." Obama's meta-narrative is decidedly otherwise. "It's the same, in a way, as John McCain's," says Just. "He's authentic, honest, free of taint. Then you add in new, charismatic, and an agent of change."

Heilemann concluded, however, by noting that many of the tactics used by Obama in the primary election wouldn't work against Republicans in the general. He was able to avoid discussing his past drug use, for example, by having surrogates from his campaign attack the Clinton's for any mention of the topic, while decrying "negative politics." This worked in the primary election because it fed into the public's established image of Clinton, yet this won't be the case in a general election match up against McCain.

Rather, what happened in North Carolina, where two Democrats were attacked in commercials that linked them to Obama, and through Obama to Reverend Wright, is likely to foreshadow the next few months. Candidates and political organizations that McCain has no direct control over will viciously attack Obama, McCain will officially denounce them with a knowing wink, and the ads will keep airing, both as paid advertisements and as topics du jour on the cable news channels. McCain will thus get two for the price of one: he'll benefit from the attacks being out there, but he'll simultaneously be able to take credit for taking the high road, which the press will happily cede to him because it plays into his established image. Just look at Slate's coverage of the NC ads:

Today, the North Carolina Republican Party unveiled a new ad criticizing two gubernatorial candidates for endorsing Barack Obama, who, thanks to his association with Rev. Jeremiah Wright, is "just too extreme for North Carolina." But before they even announced it, John McCain had sent a letter to the state GOP chair asking the party not to air it: "The television advertisement you are planning to air degrades our civics and distracts us from the very real differences we have with the Democrats. In the strongest terms, I implore you to not run this advertisement."

It didn't work. Despite pleas from both McCain and the RNC, the state party will still run the ad.

But the fact that McCain tried matters. One of the strongest of Hillary Clinton's dwindling set of arguments is that Obama will be vulnerable to GOP attacks in the general election. Between Wright and "bitter" and the flag pin, he has already given them enough fodder for three elections' worth of attack ads. So if McCain has decided not to make an issue of Wright, that's a big deal. Presumably that means other, equally tenuous lines of attack would also be off limits, too.

Now keep in mind that McCain is no innocent when it comes to exploiting gaffes. He's on the record calling Obama's "bitter" comment "elitist." (Although many would argue those comments are fair game.) And it's possible McCain realizes he doesn't have to exploit something like Wright--that the damage is done.

But if you're willing to give him the benefit of the doubt, this could bode well for future campaign civility.

This will all be exacerbated by McCain's ability to tout his bipartisan bona fides. While McCain supporters will be able to point to McCain-Feingold, McCain-Kennedy, and McCain's leadership in the Gang of Fourteen's Supreme Court compromise, Obama will have a harder time pointing to concrete examples of his ability to actually exercise cross-party leadership (and how can we forget the Hardball interview of flustered Obama-supporter Kirk Watson, who couldn't provide Chris Matthews with a single legislative accomplishment by Obama) . Notably, Obama backed out of working with McCain himself on an ethics bill, as detailed here by The New Republic.

If (when?) McCain and Obama face off in the general election, the central issue will be who, in the publics mind, can plausibly claim the mantle of reform and change. In this battle, McCain will be a much tougher opponent for Obama than many expect him to be.

Several Points In Response to EBL

2008-05-08T14:53:00.002-04:00

1) Regarding the judiciary's effectiveness as a campaign issue, I agree that is not necessarily the issue most likely to galvanize liberals because its not as easily understood as any number of us-vs-them, black-and-white issues, though when you look at any issue, you can find gray areas, abortion included. The question is, can Democrats effectively boil it down to "elect McCain and he will appointed bigots and religious nuts to the Supreme Court. Do we really want [insert name here] voting to overturn Roe v. Wade?"

Democrats historically haven't used this as a campaign issue, but they need to. Republicans since Reagan have aggressively done so, and it has paid off, but there's no reason it should resonate more on one side of the aisle than the other, aside from the fact that Republicans are used to hearing about it and Democrats aren't, to which I'd say that you've got to start somewhere. Fight them on it, rather than cede the issue. Yes, they've got a head start, but thats all the more reason to fight back.

2) Your argument that most people think that either the court is too liberal or that it is well balanced is true as far as it goes, but the opposite would also be true: if you add up those who think it is too conservative with those who think it is well balanced, that number drastically outnumbers those who think it is too liberal. McCain is arguing for moving the court to the right, so the more relevant metric, in fact, would be the total number opposed to it moving in that direction, which would be those who want it to stay in addition to those who want it to move to the left.

Furthermore, you write as if making the court more conservative and keeping it static were the same option, but they aren't. If one assumes that the court will change, the relevant question is in what direction do more people want it to move? Even if you assume that somehow we can keep the court as it currently is, McCain's desire to appoint more judges like Rehnquist, Alito and Roberts wouldn't accomplish this, it would move it to the right. Depending on who was leaving the court, replacing five of the seven current justices (excluding Alito and Roberts themselves) with another Alito or Roberts would move the court to the right. More people oppose this than support it, based just on the liberal/conservative metric, leaving aside those who wish the court to stay where it is.

3) When you discuss Kelo, it seems that you're willing to set that section of McCain's speech aside, but it is one of only three cases that he mentions at all. It is one-third of his actual discussion of court cases. If it were one of 20 or 30 or 40, saying "ok, what he says there doesn't make sense, but let's look at everything else" would be more justifiable, but it isn't. He highlighted that case in particular. He could have avoided it altogether, as there was nothing forcing him to bring that case up, but he chose not to. I focused on Kelo because I know that case well and his complaint against it is prima facie based on its result, not its internal logic, which you seem to agree with. While I can't definitively say the Court was correct in the other cases he criticizes, what's relevant is that his criticism has nothing to do with the legal basis for the decisions and has everything to do with their outcomes. You ignore the larger critique here.

4) Regarding Gewirtz/Golder, you mischarachterize what they say when you write "First, as Gewirtz and Golder admit, just because the Justices strike down (or vote against) a piece of legislation does not mean it is judicial activism -- the legislation itself could be unconstitutional." This is incorrect. They define activism as the judiciary overruling the legislature. They say that, in any given case, judicial activism may not be bad and that if a law is unconstitutional, activism by the judiciary is merited.

5) In responding to both Gewirtz/Golder and Miles/Sunstein, you say that their definition of activism is incorrect, but you never an alternative definition. Why is their definition, which is essentially "judicial activism is the judge's propensity to overrule other branches of government, be they the executive (Miles/Sunstein), or the legislative (Gewirtz/Golder), a poor definition? I think it to be a fairly good one, but more relevantly, it is also the definition used by McCain in his speech.

6) Re the lack of a control, that we don't know if Congress was passing particularly egregious legislation, is interesting, but has a couple of problems:
a) Given their definition of "judicial activism," whether or not the laws were constitutional is irrelevant. They are not offering a normative argument that judicial activism is, always and everywhere, wrong. McCain is the proponent of the normative argument here, more or less espousing the same logic in his speech that Gewirtz/Golder uses, namely that, as democratically elected branches of government, the decisions of Congress and the executive have a presumption of legitimacy. If you argue that Congress and the executive branch have made unconstitutional decisions, and that the judiciary is right to overrule them, isn't this really an argument against McCain as well? It seems that it is in favor of judicial activism, and thus undercuts the entire point of his speech.
b) How, from a methodological perspective, can you fix this? What metric could you use to determine whether or not the laws passed are constitutional, other than the judiciary's ruling on this question?

7) As for your "do they vote conservative because they are biased or because their interpretation of the Constitution leads to more conservative rulings," it seems that it is a distinction without a difference. Unless you believe that justices regularly make decisions in bad faith, thinking that their own arguments are weak but that the result they want compels a certain decision, what is the difference between a conservative bias, and an interpretation that regularly leads to conservative rulings? I'd also point you towards (IMO) a provocative post and response at Balkanization along these lines here and here.

8)You're conclusion overstates your case. You write that "the conservative jurist movement is neither out of touch with Americans nor necessarily illogical and that McCain, even beyond the obvious political reasons, is not wrong to advocate his position," yet you never put forward an affirmative argument that substantiates this claim. Even if you believe that you've successfully refused my original post (a point with which I obviously disagree), that still leaves you with a lot of ground to cover because you can claim to have proven McCain correct.

Response to Judicial Activism

2008-05-08T11:27:00.006-04:00

I don’t dispute the claim that conservative judges bring together Democrats in a way that will end internecine fighting, but I do question to what extent. McCain’s speech was relatively tame in comparison to what Bush and other prominent Republicans have been saying on the topic, likely due to his desire to at once court the right – the comments about the 9^th circuit come to mind – while at the same time keeping moderates on board. On this latter point, notice how he does not rely on value arguments, such as abortion or gun rights, but rather couches his logic on the checks and balance system almost exclusively. This approach likely won’t galvanize liberals in the same way that saying that abortion is wrong and judges should be against it, if for no other reason than the ideas of judicial activism, strict interpretation, and the appropriate balance of powers set out by the Constitution are not always easy to understand and so individuals might not recognize the implications of what McCain (or Democrats for that matter) are saying.

I do dispute Lang’s overall argument, however (that McCain’s speech indicates that the judges he suggests he’s looking for would be activist, not traditionally conservative) because the surveys upon which it relies appear deeply flawed in their methodology and so cannot be trusted to give the conclusion he asserts.

First, and admittedly somewhat of a tangential point, take his initial use of data: the Gallup poll suggesting Americans believe the Court is too conservative. On its face, this looks to be true: more people believe the Court to be too conservative than too liberal. The problem with this poll is that, because overall the Court is now more conservative than not, it gives the impression that folks are dissatisfied with the Court when indeed it actually reveals the opposite. To explain, consider this spectrum:

SCOTUS

Liberal Neutral Conservative

The Court is currently between the Neutral and Conservative markers (more Conservative than not): 5 conservative Justices (Kennedy being the swing) and 4 liberal ones. 43% of the population believes that this conservative tilt is about right. 21% believe that this conservative tilt is still too liberal. Thus, 64% of the sample (well outside any reasonable statistical margin of error) believes that the Court is either good or not conservative enough. That clearly trumps the 32% who argue that the Court is too conservative. Thus, Lang’s claim that more Americans think the court is too conservative versus too liberal might technically be correct, but the more accurate and telling statement is that more Americans think the Court is either in a good place (as a conservative Court) or too liberal than think it’s too conservative. In this way, McCain’s claim that he’ll continue to pick conservative justices to serve on the Court lines directly up with a majority of Americans (by a significant margin).

Now, I happen to agree with Lang’s comments concerning Kelo and it is here where McCain’s independent (and sometimes Libertarian streak) comes into conflict. It is true that he (and most Americans) disagreed with the outcome. However, at the same time, if he was advocating strict interpretation (or non-activist judges) he would have to abide by the Kelo ruling. I see this more as an episode of political pandering that one of promoting a particular judicial philosophy: the Paleo-Republicans (small government, many Libertarians etc.) were appalled at the decision, regardless of the concomitant judicial philosophy involved. To garner their support, it would be near suicide to argue that Kelo was an appropriately argued decision and should not be overturned by the courts (as opposed to amending legislation to deal with it).

However, extrapolating McCain’s philosophy on Kelo out to a larger sample (in this case that he would actually support judicial activism because conservative judges have proven more activist, not less than liberal ones) is a non-sequitur. The reason for this jump in logic is that, looking at the studies that assert the link, each one has clear flaws that preclude one from determining that conservative judges are more ‘active’ than liberal judges.

The first two studies cited, Gewirtz/Golder and Miles/Sunstein, suffer from the same methodological flaw: they code judicial activism in such a way that ignores much of what the debate is about. Both surveys define activism in a similar fashion: “as how often they have voted to strike down a law passed by Congress and signed by the president,” (quoted from Lang’s post). The problem here is twofold. First, as Gewirtz and Golder admit, just because the Justices strike down (or vote against) a piece of legislation does not mean it is judicial activism – the legislation itself could be unconstitutional. Their description of what constitutes a pattern of such strikes in a way that suggests activism is also problematic. They literally say that a marked pattern of invalidating laws suggests that they are more active. However, there is no control in the experiment; we do not know whether the Congress at the time was particularly adamant in passing legislation that was confrontational with strict interpretive positions of the Constitution. If that’s the case, it’s easily possible that the reason there are such patterns is that one of the other branches was creating a situation favorable for those patterns to emerge, not judicial activism.

The second, and greater problem, with both surveys’ definition is that is misses the other half of the coin. Judicial activism is not merely about striking down legislation that Justices disagree with, though that element does exist. It is also about upholding legislation that Congress (or state legislatures) passes that is of dubious constitutionality. These actually seem to make up the most well-known cases of ‘judicial activism’. For example, Griswold v. CT, Grutter v. Bollinger, and many of the Establishment Clause cases, judicial activism was charged against liberal Justices because they did not strike something down, not because they did. Yet, both of these surveys miss that entire aspect of judicial activism and so, even beyond the potential collinearity between constitutionality and patterns of strikes, it does not follow that conservative Justices are more ‘activist’ in the way the term is actually meant and used.

Finally, the Posner survey tells us almost nothing about whether the Justices are activist or not. Indeed, it seems to suggest that they are motivated by political dispositions (rational according to Posner). However, the survey’s findings do not really tell us that much; if justices are voting on cases in a conservative manner is that because they are politically biased and so vote on the outcome they want? Or is it because their particular judicial interpretation (e.g. Strict Constitutionalists) lends itself to decisions that are usually more conservative than not? If it is the latter case, then I do not see where the problem arises. If it is the former, then I do think Lang has a point that we should be at least somewhat concerned about the dispositions all Justices are bringing to the bench.

Overall then, Lang fails to make the case that McCain’s conception of the appropriate judicial approach is out of touch with ordinary Americans (seems just the opposite). Further, his claim that conservative Justices are indeed more activist than liberal ones does not necessarily follow because the surveys he cites are flawed. As a social scientist, I want to put in the line here about how I would go about redoing those surveys, but for the sake of everyone involved, I’ll ignore my initial instincts. What we can conclude then is that the conservative jurist movement is neither out of touch with Americans nor necessarily illogical and that McCain, even beyond the obvious political reasons, is not wrong to advocate his position.

Judicial Activism: "What the other side does while we play by the rules!"

2008-05-07T16:01:00.004-04:00

Before I discuss my critiques of McCain's speech yesterday on judicial activism, as a partisan Democrat, I'd like to request that he continue to give more speeches along these lines.

Given all the internecine fighting among Democrats over the course of the presidential campaign, I can think of few better ways to unite the Democratic party than hearing McCain loudly proclaim his desire to move the Supreme Court rightward. As much as Clinton supporters may loathe Obama and Obama supporters may loathe Clinton (and those numbers will go down drastically over the course of the general election), many will be scared shitless by the prospect of President McCain replacing the aging "liberal" justices (more on that later), Stevens (age 88), Ginsburg (age 75), Breyer (age 69) and Souter (age 68) with "people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist." (As an aside, I'm curious why McCain repeatedly leaves out Scalia in naming his model justices...)

For Democrats wanting to show a stark difference between the candidates and the long-term legacy their administrations would leave, it doesn't get much better than this. More Americans already think the Court is tilting too conservative than too liberal, yet McCain has just announced his intention to accelerate this trend.

In general, do you think the current Supreme Court is too liberal, too conservative or just about right? (9/14-16/07)

Too Liberal: 21%
Too Conservative: 32%
About Right: 43%
Unsure: 5%

In his speech, McCain repeats the typical Republican rant against judicial activism:

For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate and confirm better judges.

...

The moral authority of the judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it. A court is hardly competent to cehck the abuses of other branches of government when it cannot even control itself.

Oddly enough, I agree with everything McCain says here. The judiciary is the only unelected branch of government. Unlike the executive and legislative, its legitimacy doesn't come from its representation of the will of the people, of having been voted into office. Rather, its power derives from its integrity. It must maintain its image of being apolitical, of deciding cases based on their merits and according to the laws passed and executed by the elected branches of government, rather than by creating rationales that support preferred outcomes. As McCain argues,

In the shorthand of constitutional discourse, these abuses by the courts fall under the heading of "judicial activism." But real activism in our country is democratic. Real activists seek to make their case democratically -- to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that. They don't seek to win debates on the merits of their arguments; they seek to shut down debates by order of the court.

This very notion was explicitly stated by Justice John Paul Stevens, both in, and in response to, the Court's decision in the controversial eminent domain case of Kelo v. New London. In the majority opinion, Stevens wrote that "]n]othing in our opinion precludes any State from placing further restrictions on its exercise of the takings power... The necessity and and wisdom of using eminent domain... are certainly matters of legitimate public debate." Speaking before the Nevada Bar Association weeks later, Stevens declared that his own ruling was "unwise," but he "was convinced that the law compelled a result that [he] could have opposed if [he] were a legislator."

McCain, however, chose Kelo of all cases as one of three examples of judicial activism to mention in his speech. In all three cases, however, he attacked the Court's ruling without providing any rational for why they were wrong. They were wrong, it aseems, simply because they produced a result with which McCain disagreed. In each case, he criticizes their conclusions, yet he never engages with their logic, precisely what he accuses activist judges of doing.

In the case of Kelo, Connecticut law specifically allows eminent domain to be used to further economic development. Rather than lobby for Connecticut to change its law, McCain castigates the Supreme Court for upholding it, railing that "in the hands of a narrow majority of the Court, even the basic right of property doesn't mean what we all thought it meant since the founding of America. As the New York Times pithily points out, that definition has, by all accounts, changed considerably: "He did not mention that in 1789 many women could not own property, and African Americans were property, but he did criticize the idea that values evolve over time." Nor did he mention Connecticut's General State §8-186, upon which the Kelo decision revolved: "The economic welfare of the state depends on the continued growth of industry and business," and "that permitting and assisting municipalities to acquire and improve unified land... for industrial and business purposes... are public uses."

Moreover, study after study has shwon that it is the judges McCain declares to be models of restaint and judicial passivity (I guess that would have to be the opposite of activism) that are, by empirical measures, the worst offenders against his own standards.

In a 2005 New York Times op-ed entitled "So Who Are the Activists?" Yale Law's Paul Gewirtz and Chad Golder define a judge's activism as how often they have voted to strike down a law passed by Congress and signed by the president. As they explain,

Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act of "great delicacy, and only to be performed when the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.

Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like a reasonable definition of judicial activism.

Since the Supreme Court assumed its current composition in 1994 [NB: this was before Alito and Roberts replaced Rehnquist and O'Connor] by our count it has upheld or struck down 64 Congressional provisions.

The results of their study were stark. The percentage following each justice's name is the percentage of those 64 Congressional provisions they voted to strike down:

Thomas: 65.63
Kennedy: 64.06
Scalia: 56.25
Rehnquist: 46.88
O'Connor: 46.77
Souter: 42.19
Stevens: 39.34
Ginsburg: 39.06
Breyer: 28.13

They conclude that "Those justices often considered more 'liberal' - Breyer, Ginsburg, Souter and Stevens - vote least frequently to overturn Congressional statues, while those often labeled 'conservative' vote more frequently to do so. At least by this measure, the latter group is more activist."

In a similar study ("Who are the bench's judicial activists?") Chicago Law's Thomas Miles and Cass Sunstein examined the court's record from 1989 through 2005, looking at which justices were the most "political:"

We examined all cases in which members of the court, using settled principles, evaluated the legality of important decisions by federal agencies, such as the EPA, NLRB, OSHA and FDA.

We used clear and simple tests to code the decisions of these agencies as either liberal or conservative. For example, we counted an environmental regulation as liberal if it was challenged by industry as too aggressive, or as conservative if it was challenged by an environmental group as too lax.

We used equally simple tests to code the decisions of the justices. If a member of the court voted to uphold conservative and liberal agency decisions at the same rate, we deemed him neutral, in the sense that his voting patterns showed no political tilt. If a justice showed such a tilt, we deemed him partisan. If a justice regularly voted in favor of agencies, we deemed him restrained, because he proved willing to accept the decisions of another branch of government. If a justice was unusually willing to vote against agencies, we deemed him activist, in the literal sense that he frequently used judicial power to strike down decisions of another branch.

Their results?

The Judicial Neutrality Award, for blind justice, goes to Justice Anthony Kennedy. From Kennedy's voting patterns, we are unable to detect even the slightest political tilt. He upholds liberal and conservative decisions at an identical rate -- slightly more than two-thirds of the time. Justice David H. Souter, a fellow GOP appointee, is the runner up.

Justice Clarence Thomas is the winner of the Partisan Voting Award for the most politically skewed voting pattern. When the agency decision is conservative, Thomas votes in its favor 84% of the time. But when the agency decision is liberal, Thomas votes in its favor merely 38% of the time -- a remarkable 46% swing.
Partisan voting can be found among some of the court's most liberal members as well. Justice John Paul Stevens is the runner up -- with a 40% swing.

...

The Judicial Restraint Award for the most humble exercise of judicial power goes to Justice Stephen G. Breyer. Overall, he votes to uphold agency decisions more than four-fifths of the time. Notably, Breyer votes to uphold conservative decisions 64% of the time.

The Judicial Activism Award, for aggressive use of judicial power, goes to a most surprising winner: Justice Antonin Scalia. He upholds agency decisions only about half the time. this is an impressively low number. Under established principles, to which all members of the court subscribe, agencies are supposed to get the benefit of the doubt.

Lastly, Chicago Law's Judge Richard Posner and William Landes, in a new paper entitled "Rational Judicial Behavior" examine the votes of all justices from 1937 through 2006. On the basis of their decisions in non-unanimous civil liberties cases and economic cases, they calculated the percentage of cases in which a justice took the conservative or liberal position, and rated them according to their ideology. For the current Supreme Court justices, the following are the fraction of cases in which they took the conservative position, along with their conservative rank out of all 43 justices from this time period.

RANK NAME % OF CONSERVATIVE DECISIONS
1 Thomas 82.2
3 Scalia 75.7
4 Roberts 75.3
5 Alito 74.0
10 Kennedy 64.7
29 Souter 37.4
31 Breyer 37.2
32 Stevens 34.1
35 Ginsburg 31.2

The results are striking: four of the five most conservative members of the Supreme Court over the last 70 years currently sit on the bench (the missing justice, ranking in at #2, was Rehnquist), while the "swing" vote, Justice Kennedy, the 10th most conservative justice. Of the liberals, only Ginsburg cracks the top 10.

As St. John's Brian Tamaha summarizes,

Through a statistical comparison, Posner shows that conservative Justices on the current court more consistently vote in accordance with their political values than do liberal justices; and that the current generation of Republican appointed federal court of appeals judges shows a significantly higher proportion of conservative votes than Republican judges over the past eighty years, (Republican appointed federal appellate judges from 1925-2002 vote conservative 55.8% of the time; Republicans appointed currently sitting judges vote conservative 66.9%); whereas there is no significant change in the conservative voting pattern (49.6%; 49.7%) of Democratic appointed jduges between these two periods, and a reduction in their liberal votes (43.5%; 39.5%)

Put more simply: the Supreme Court Justices and Appellate Judges appointed by Presidents Reagan, Bush and Bush vote consistent with their political views at a higher rate than previous Republican appointees, and at a higher rate than Democratic appointees. That's what the numbers show.

Once put in context, McCain's speech seems absurdly myopic. Given all of his rhetoric, McCain's ideal justices seem to be exactly the opposite of what he should look for in a potential nomination for the Supreme Court. Today's Chicago Tribune aptly sums up the gap between McCain's "judicial activism problem" and his solution for it:

McCain, seeking the Republican nomination for president, is apparently blissfully unaware that the vast majority of current federal judges were appointed by Republican presidents and that seven of the nine sitting U.S. Supreme Court justices and 12 of the last 14 Supreme Court justices were appointed by Republicans. As Pogo once said, "We have met the enemy, and he is us."

A Change of Pace: Nuclear Prolif.

2008-05-07T11:03:00.001-04:00

Here is the video briefing that US Senior Intel Officials gave to Congress a few weeks ago concerning the Syrian reactor that the Israelis struck last September. I have it corroborated from other sources that this was indeed the actual video.

McCain on his Judicial Philosophy

2008-05-06T11:55:00.002-04:00

The text of McCain's speech on the judiciary can be found here. I'll have comments on it later.

If You Consent To Sex Under False Pretenses, Is It Rape?

2008-05-05T15:21:00.002-04:00

An interesting question courtesy of Volokh Conspiracy: what constitutes rape?

First, some background: a controversial case last year in Massachusetts involved a woman who charged her boyfriend's brother with raping her.

She was living with her boyfriend, Duane Suliveres, in the basement of his father's home, reports the Boston Globe. Duane's brother, Alvin, also lived in the house. One morning, when Duane was working a graveyard shift, the woman says she awoke at 3 a.m. to a man walking into her room. It was dark, she couldn't make out who the person was, but naturally assumed it was her boyfriend. She then asked, "Duane, why are you home so early?" No response. The man then climbed into bed with her, took off her clothes and had sex with her. Afterward, the man got up to leave and, once he opened the door, she realized it was Alvin, not Duane.

So, was this rape? The original trial ended in a hung jury in 2006 and then went to the state Supreme Judicial Court, which ruled Thursday that the rape charges should have been dismissed because Massachusetts law clearly defines rape as an act of force. The court may have closely followed the letter of the law, but rape victim advocates are outraged. "The message that the court sends today is ... that a man's ability to obtain sex through fraud with regard to who he is is more important than a woman's fundamental right to control her own body," said Wendy J. Murphy, a professor at the New England School of Law. "It is impossible -- as a matter of fact and law -- to consent to sex with the wrong person."

In response, a state legislature has proposed the following statute be implemented in Massachusetts (emphasis mine):

Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person's consent by the use of fraud, concealment, or artifice, and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years.

Volokh argues, however, that this law goes too far in trying to correct the problem of how rape is defined:

Any time someone has consensual sex (1) having gotten the consent through (a) lying or (b) concealment, and (2) a jury (or perhaps a judge) concludes that "a reasonable person would not have consented but for the deception," that's a felony, labeled as a form of rape. Promises ("I'll marry you") are excluded, but other statements — or silences — are not.
So let's see how it plays out in the cheating situation. Alan and Beth are lovers. Beth has sex with Carl. She doesn't tell Alan (or, if Alan confronts her about his suspicions, denies it — that doesn't matter for purposes of the law), but then has sex with Alan again. That, under the law, is rape, so long as the jury or judge concludes that a reasonable person wouldn't have consented to have sex again with his lover had he known that she had cheated on him. Naturally, the same would apply with married couples, but this isn't even just a revival of criminal punishment for adultery — there's no requirement of marriage. (Note of course this would apply regardless of the sex, or sexual orientation, of the partners.)

The same could of course arise in lots of other contexts. A woman conceals from a prospective lover the fact that she'd been a prostitute, or even had had a lot of sexual partners. When they have sex, under the proposed law the man will have been raped as a result — depending, of course, on whether the jury or judge decides that a reasonable person would care about a lover's past prostitution, or even a lover's past promiscuity. (Let's assume that she doesn't have any sexually transmitted disease; there are some narrow laws that mandate revealing STD's to prospective lovers, but those are indeed limited to revealing STD's and preventing the spread of disease. They certainly don't cover all things that a reasonable lover might consider in deciding whether to have sex.)

Likewise if a man (or a woman) gets sex by falsely saying "I love you" (as opposed to "I will always love you" or "I will marry you," which is excluded), again if a jury finds that a reasonable person would have considered this. Same if someone gets sex by lying about his or her wealth or his or her age.

And of course all this would require the case-by-case, jury-by-jury development of the Law of Reasonable Sexual Criteria, as Massachusetts courts have to decide whether a reasonable person would treat a sexual partner's poverty, age, promiscuity, infidelity, and other attributes as sexual deal-killers. (Would it matter, by the way, how appealing the other person otherwise is? Would the jury have to decide whether the "victim" would have had sex with the "rapist" in any event, because the victim was so infatuated, or because the rapist was so hot? "True, Angelina Jolie didn't tell the victim that she was still in a sexual relationship with Billy Bob Thornton, but a reasonable man would have had sex with Angelina Jolie no matter what he knew about her"?)

Just awful. I do think some kinds of sexual frauds could properly be criminalized, for instance if the defendant impersonated some other specific person whom the victim knew, or if the defendant lied about having a serious sexually transmitted disease (or even concealed such a disease), or if the defendant lied about whether certain sexual contact was necessary for medical purposes. But these would be narrow and precisely drafted laws, which would cover a small range of clearly highly reprehensible and unusual conduct, and would not cover behavior that is either proper protection of privacy (e.g., not revealing one's sexual history) or that is an extremely common human failing (e.g., cheating).

In a separate post, he also explains why, conceptually, engaging in fraud to obtain sex should be governed differently than fraud to obtain property by quoting Askew v. Askew, 22 Cal. App. 4th 942 (1994), in which the decision states:

Words of love, passion and sexual desire are simply unsuited to the cumbersome strictures of common law fraud and deceit. The idea that a judge, or jury of 12 solid citizens, can arbitrate whether an individual's romantic declarations at a certain time are true or false, or made with intent to deceive, seems almost ridiculously wooden, particularly where the statements were made prior to marriage and the marriage lasted more than 13 years. “The judiciary should not attempt to regulate all aspects of the human condition. Relationships may take varied forms and beget complications and entanglements which defy reason.” Love has been known to last a lifetime, but it has also been known to be notoriously evanescent. These are matters better left to advice columnists than to judges and juries....

Why Cities Really Are Better Than Suburbs

2008-05-01T13:42:00.005-04:00

A few weeks ago, Freakonomics authors Stephen Dubner and Steven Levitt argued in the NY Times Magazine that, from an economic perspective, Americans drive too much:

[T]here are all sorts of costs associated with driving that the actual driver doesn't pay. Such a condition is known to economists as a negative externality: the behavior of Person A (we'll call him Arthur) damages the welfare of Person Z (Zelda), but Zelda has no control over Arthur's actions. If Arthur feels like driving an extra 50 miles today, he doesn't need to ask Zelda; he just hops in the car and goes. And because Arthur doesn't pay the true costs of his driving, he drives too much.

What are the negative externalities of driving? To name just three: congestion, carbon emissions and traffic accidents. Every time Arthur gets in a car, it becomes more likely that Zelda - and millions of others - will suffer in each of those areas.

They go on to discuss three policies that could help fix this by forcing drivers to internalize the costs they force on to others: higher tolls, and, in particular, congestion pricing (which I supported in NYC); increasing the gas tax (as much as I hope that Clinton beats Obama, he's 100% right to oppose cutting the gas tax); and, their choice, structuring car insurance so that its cost is dependent on how much you actually drive (the more you drive, the more externalities you produce, the more you pay).

This represents, I hope, the beginning of a discussion about transportation that our country is sorely in need of. "White Flight" from cities and the rise of suburbia didn't just happen on its own, it was driven by policy choices. Whether on purpose or by accident, we've designed a system in which we insufficiently invested in building and maintaining public transportation systems, even in most large cities (see: LA), while providing incentives for car ownership. This is epitomized by The Atlantic's Matt Yglesias, who writes:

You often hear that there are huge swathes of the country in which it's just not feasible to make changes that will lead to people driving less -- there's no other way to get around! This is often quite true in the literal sense. But oftentimes it would be possible to make non-drastic changes that would still make a difference at the margins. Here's a satellite phot of a swathe of Virginia near Tyson's Corner. You'll note that the housing north of the highway is actually very close to all this non-housing stuff south of the highway. but if you live north of the highway you can't walk to the south of the highway stuff just because the streets aren't designed to make that possible.

The necessary changes would, however, be relatively simple to make and would even provide money and jobs for people in the road-building sector -- it's just a case of making sure that roads actually link up with one another (rather than being cul-de-sacs strung together to reach a handful of arterials) and feature sidewalks or bike paths. People are still going to drive for some -- maybe even many -- trips, but at least some of suburban American's trips could be replaced by walking or biking without radically overhauling neighborhoods of constructing massive new transit systems. Among other things, that would take pressure off the roads and fuel supply, leaving those resources available for trips where there genuinely is no reasonable alternative.

Since World War II, this kind of poor planning, and the rise of urban sprawl and exurbs, has fundamentally shifted where Americans chose to live. With record-shattering oil prices that, thanks to increasing energy demands primarily from India and China, are unlikely to go down anytime soon, however, we may be in the midst of a new era of re-urbanization. As University of Oregon economist Mark Thoma noted in February,

I didn't realize how much population flow there is within the US from rural to urban areas and how many rural areas are actually losing population. the first graph shows the breakdown of urban-rural counties, and the second shows counties where population has increased or decreased... "There is a remarkable degree of overlap in the rural counties in Map 1 and the counties with population loss in Map 2".

MSNBC reported on this trend a couple of years ago (I did a double take when reading the article's juxtaposition of "rising fuel costs" and a quote that"Most analysts believe that crude oil prices in the $50s and $60s will be with us for some time,"), which I think will only increase in intensity:

Economist Jack Lessinger points out that suburbia not only depends on autos for commuting to and from jobs, but that everything in the suburbs -- from stores to schools to restaurants -- requires increasingly expensive trips in cars
...
With the cost of gas hovering around $3 per gallon on average in the US, it's worth considering whether a shorter commute would pay for the incremental cost of a more expensive in-city home.

Assuming a full-time job, $3 gas, 26 mpg and 50 cents a mile for maintenance and no parking fees, a 50-mile roundtrip commute costs $646.15 a month, or $6,753.80 a year
...
Moving closer to work boosts your house-buying power. Everything else being equal, a 10-mile roundtrip commute costs just $1550.76 yearly -- saving about $6,200 per year, or $517 monthly. That can add about $80,000 for the total amount of a mortgage loan, says one Chicago lender. The rule of thumb: each $250 a month you can free up for mortgage payment equals roughly $40,000 more you can borrow at current rates.

Assuming that most people balance the cost of a commute (both in time, convenience and financially) against the added space that they can afford by living farther from cities' central business districts, rising gas prices will inevitably lead to a desire for shorter distances to drive for work, shopping, and social trips. My guess is that this will lead to increasing population density in cities, as people flock back to them from the suburbs.

Then again, maybe I'm just biased. I've always subscribed to the John Updike quote, "The true New Yorker secretly believes that people living anywhere else have to be, in some sense, kidding."

First Thoughts on Crawford v Marion

2008-04-29T16:57:00.005-04:00

I've only read the controlling opinion (Stevens, Roberts and Kennedy) so far, so I'll probably have more to say later, but there seem to me to be three flaws with it on a first read:

1) Pages 17 and 18 list a small number of Indiana citizens who claim that the law imposes a burden on them that will prevent them from voting. While Stevens argues that the burden on most of these voters isn't excessive, it does in fact seem to be for the homeless. He notes that

The record does contain the affidavit of one homeless woman who has a copy of her birth certificate but was denied a photo identification card because she ddi not have an address. But that single affidavit gives no indication of how common the problem is.

In sum, on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes "exessively burdensome requirements" on any class of voters.

Let's see: homeless people have no home. If they have no home, they have no address. Apparently, if they have no address, they can be denied photo ID by the DMV. If they have no photo ID, they now cannot vote. This seems a to be a class of voters who now have an excessive burden placed on them.

2) Stevens references a lower court's decision, which found a study claiming that 989,000 Indiana voters did not have the required photo identification to be "utterly incredible and unreliable," yet we are never told why this is, or presented with any evidence to the contrary. Rather, we are given the district judge's estimate that only 43,000 people don't have the required ID. What the judges estimate is based on is unclear, as is why it should be accepted by the Court while the original study should not be.

3) Precedent requires the State to put forward interests to justify the burden being imposed by its restrictions on voting. The interest put forward by the State is the need to curb vote fraud, yet the State was unable to present any evidence of vote fraud taking place which this law would actually prevent. The Court admits as much, noting that "The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history."This seems a rather large problem with the State's argument. Rather, the State is left to argue that voter fraud has happened elsewhere, yet the evidence is still incredibly weak. As disclosed in footnotes 11 and 12, it boils down to the actions of Tammany Hall's Boss Tweed in the 1860s, and that, in Seattle, after an investigation into fraud in a gubernatorial race in 2005, "One voter was confirmed to have committed in-person voting fraud."

While footnote 12 argues that there have been other examples of vote fraud elsewhere, it admits that "the brief indicates that the record of evidence of in-person fraud was overstated because much of the fraud was actually absentee ballot fraud or voter registration fraud," both of which would not be curbed at all by this new law.

This seems an example of a solution in search of a problem. The State's compelling interest is to prevent Tammany-style fraud, despite no proof of such fraud ever occuring in Indiana. And for that, it is disenfranchises thousands of voters.

UPDATE:

Courtesy of the Associated Press, reporting on today's Indiana Democratic Primary .

About 12 Indiana nuns were turned away from a polling place by a fellow bride of Christ because they didn't have state or federal identification bearing a photograph.
Sister Julie McGuire said she was forced to turn away her follow sisters at Saint Mary's Convent in South Bend, across the street from the University of Notre Dame, because they had been told earlier that they would need such an ID to vote.
The nuns, all in their 80s or 90s, didn't get one but came to the precinct anyway.
"One came down this morning, and she was 98, and she said 'I don't want to go do that,'" Sister McGuire said. Some showed up with outdated passports. None of them drives.
They weren't given provisional ballots because it would be impossible to get them to a motor vehicle branch and back in the 10-day time frame allotted by the law, Sister McGuire said. "You have to remember that some of these ladies don't walk well. They're in wheelchairs or on walkers or electric carts."

<br/>

2008-04-28T13:31:00.002-04:00

Today's SCOTUS ruling is crazy interesting - I find it difficult to believe that no substantive evidence, or certainly not much, has been found that indicates the identification law does not impose a burden on the poor/disabled/old. Of course, there's an inherent methodological problem in trying to prove that - you have to prove the counterfactual that there had not been the ID law, then would have voted. I want to take a look at the briefs and Amicus submitted in this case.

Also, interestingly, though most of the major newspapers suggest that the court's ruling is a sign. win for those who are proponents of ID requirements and that therefore other states are going to have a very difficult time overturning the ruling, I don't think this is the case. The court ruling applies specifically to Indiana in that the the party arguing for overturning the law did not show that in Indiana there had been a significant burden. However, if one could show that there had been a burden in other states, it's very feasible that the court could rule differently there and then the entire thing could just proceed on a state by state basis. That would also present problems, of course.

http://www.nytimes.com/2008/04/29/washington/28cnd-scotus.html?hp

John Ashcroft Schooled By College Students

2008-04-24T12:20:00.002-04:00

This is amazing. Some highlights from a recent Q&A with John Ashcroft at Knox College:

TOM: This story was made public by ABC a few weeks ago. It claims that you, Rice, Tenet and others met in the White House to discuss different methods of "enhanced interrogation," is that correct?

ASHCROFT: (angrily) Correct? Is what correct? Is it correct that this story ran on ABC? I don't know that. I don't know anything about it! Is it a real story? When was this story, huh? Huh?

TOM: Um, early April, April 9th, I think...

ASHCROFT: (interrupting) You think? You think? You don't even know! Next question!

TOM: The article says that you discussed "whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning"...

ASHCROFT: I said, next question!
...
ASHCROFT: No. No it doesn't violate the Geneva Conventions. As for other laws, well, the U.S. is a party to the United Nations Convention against Torture. And that convention, well, when we join a treaty like that we send it to the Senate to be ratified, and when the Senate ratifies they often add qualifiers, reservations, to the treaty which affect what exactly we follow. Now, I don't have a copy of the convention in front of me...

ME: (holding up my copy) I do! (boisterous applause and whistling from the audience) Would you like to borrow it?

ASHCROFT: (after a pause) Uh, you keep a hold of it. Now, as I was saying, I don't have it with me but I'm pretty sure it defines torture as something that leaves lasting scars or physical damage...

A STUDENT FROM THE AUDIENCE: Liar! You liar! (the student is shushed by the audience)

ASHCROFT: So no, waterboarding does not violate international law.
...
ME: First off, Mr. Ashcroft, I'd like to apologize for the rudeness of some of my fellow students. It was uncalled for--we can disagree civilly, we don't need that. (round of applause from the audience, and Ashcroft smiles) I have here in my hand two documents. One of them, you know, is the text of the United Nations Convention against Torture, which, point of interest, says nothing about "lasting physical damage"...

ASHCROFT: (interrupting) Do you have the Senate reservations to it?

ME: No, I don't. Do you happen to know what they are?

ASHCROFT: (angrily) I don't have them memorized, no. I don't have time to go around memorizing random legal facts. I just don't want these people in the audience to go away saying, "He was wrong, she had the proof right in her hand!" Because that's not true. It's a lie. If you don't have the reservations, you don't have anything. Now, if you want to bring them another time, we can talk, but...

ME: Actually, Mr. Ashcroft, my question was about this other document. (laughter and applause) This other document is a section from the judgment of the Tokyo War Tribunal. After WWII, the Tokyo Tribunal was basically the Nuremberg Trials for Japan. Many Japanese leaders were put on trial for war crimes and crimes against humanity, including torture. And among the tortures listed was the "water treatment," which we nowadays call waterboarding...

ASHCROFT: (interrupting) This is a speech, not a question. I don't mind, but it's not a question.

ME: It will be, sir, just give me a moment. The judgment describes this water treatment, and I quote, "the victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach." One man, Yukio Asano, was sentenced to fifteen years hard labor by the allies for waterboarding American troops to obtain information. Since Yukio Asano was trying to get information to help defend his country--exactly what you, Mr. Ashcroft, say is acceptible for Americans to do--do you believe that his sentence was unjust? (boisterous applause and shouts of "Good question!")

ASHCROFT: (angrily) Now, listen here. You're comparing apples and oranges, apples and oranges. We don't do anything like what you described.

ME: I'm sorry, I was under the impression that we still use the method of putting a cloth over someone's face and pouring water down their throat...

ASHCROFT: (interrupting, red-faced, shouting) Pouring! Pouring! Did you hear what she said? "Putting a cloth over someone's face and pouring water on them." That's not what you said before! Read that again, what you said before!

ME: Sir, other reports of the time say...

ASHCROFT: (shouting) Read what you said before! (cries of "Answer her fucking question!" from the audience) Read it!

ME: (firmly) Mr. Ashcroft, please answer the question.

ASHCROFT: (shouting) Read it back!

ME: "The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach."

ASHCROFT: (shouting) You hear that? You hear it? "Forced!" If you can't tell the difference between forcing and pouring...does this college have an anatomy class? If you can't tell the difference between forcing and pouring...

ME: (firmly and loudly) Mr. Ashcroft, do you believe that Yukio Asano's sentence was unjust? Answer the question. (pause)

ASHCROFT: (more restrained) It's not a fair question; there's no comparison. Next question! (loud chorus of boos from the audience)

I don't get it...

2008-04-24T11:08:00.002-04:00

There's been some, but not much, coverage of massive food shortages and food-riots recently, such as in Haiti and elsewhere, but could the same thing happen here?

The US is obviously nowhere near that stage yet, but we are beginning to see some ominous signs. According to Reuters yesterday, we're beginning to run low on basic ingredients, such as flour and wheat.

Already feeling the pinch from soaring wheat and flour prices, U.S. bakers are now beginning to experience some supply shortages.
Rye flour stocks have been depleted in the United States, and by June or July there will be no more U.S. rye flour to purchase, said Lee Sanders, senior vice president for government relations and public affairs at the American Bakers Association.
...
For bakers, rye grain is not the only supply stock that is declining. In the past the market has typically had a three-month surplus of wheat stocks to serve as a cushion against supply interruptions, but now the surplus is down to less than 27 days worth of wheat, Sanders said.

Meanwhile, courtesy of the Wall Street Journal, apparently the US is now beginning to have runs on food suppliers:

[I]n the US, now major discounters are seeing runs on products, particularly rice, as both Sam's club, the Wal-Mart Stores Inc. operated discounter, and Costco Wholesale Corp. have seen shelves cleaned out of rice as consumers worry about higher prices.
...
Sam's Club has decided to put limits (or rations, if you will) on the amount of 20-pound bags customers can purchase every week, and Costco earlier this week said it was considering such limits as well.

As the cost of basics like rice, wheat, corn and soybeans are reaching record highs, will the "developed" countries begin to really be hurt by this? When was the last time that major food wholesalers had enacted rationing policies? And how is more attention not being paid to this?

This isn't just happening "over there" anymore...

Interesting Take on International Relations

2008-04-14T19:59:00.001-04:00

The End of the End of History: Why the 21st Century Will Look Like the 19th by Robert Kagan

Amazing

2008-04-11T10:40:00.001-04:00

http://stuffhillpeoplelike.blogspot.com/ - EBL and Garbo, I think you guys will appreciate this...

Also, if you haven't already, check out the original: http://stuffwhitepeoplelike.wordpress.com/

Time to Bring Our Troops Home! (From the South???)

2008-04-09T15:28:00.002-04:00

This is too good to pass up:

Earlier this week, I mentioned that the conservative blog RedState is trying to pressure the traditional media to treat critiques of John McCain's embrace of a 100-year occupation of Iraq as lies and distortion.

Today, RedState sent an email alert to readers to further push the point ... making a, shall we say, novel argument (emphasis added):

Clearly McCain was talking about a peace time standing presence ... Someone should ask the Democrats if they think we're still at war with the confederacy, the Germans, and the Japanese given all the standing American armies in the South, Germany, and Japan.

As I said in my previous post, "Claiming a 100-year occupation in Iraq would be like Germany or Korea reveals an immense lack of foreign policy knowledge, judgment and vision. The situations and political dynamics have absolutely no similarity." (For more on that point, check out Agence France Presse, Coalition for a Realistic Foreign Policy, Talking Points Memo, Booman Tribune, The Newshoggers and Juan Cole.)

But hey, at least Germany and Japan are like Iraq in that they are other countries.

I can't believe I am wasting 15 seconds of my life to type this, but having military bases in Alabama, Georgia and South Carolina does not constitute a permanent occupation. Does RedState really believe that 140 years after the Civil War, American troops have a "peace time standing presence" in the American south?

Let's Stay Safe Guys

2008-04-08T15:19:00.001-04:00

Don't overdo the blogging. I'm looking at you Lang.

The World's Most Expensive Pep Rally

2008-04-07T22:54:00.005-04:00

The fictional brokered convention scenario got me thinking about something that's been bothering me for a while: what, exactly, is the point of the Democratic and Republican National Conventions?

Nominally, the conventions have three goals:

To nominate a party's candidate for president;
To nominate a party's candidate for vice-president; and
To adopt the party's platform

In reality, the party's platform is worked out months in advance by members of the respective parties' Platform Committees, and are ratified by the conventions as more or less a formality. For the most part, all people care about when paying attention to the conventions (to the extent that anyone actually does pay attention...) is the nomination of the parties' tickets, which brings me to my second question: What is the problem with having the primary campaign actually last up until the convention?

Clearly, this year, this question applies to Democrats rather than Republicans, but it hasn't actually been an issue in decades for either party. The last GOP nomination to be decided at the Convention was in 1976 (Gerald Ford over Ronald Reagan), while for the Democrats, it was in 1980 (Jimmy Carter over Ted Kennedy). Even these nominations, however bitterly contested, were still settled on the first ballot of the convention. To find a truly contested convention in which there wasn't a clear front-runner, we have to go back roughly twice as far, to 1952 for Democrats (Gov. Adlai Stevenson defeated Senators Estes Kefauver and Richard Russell, and former Commerce Secretary and Ambassador Averell Harriman on the third ballot), and 1948 for Republicans (Gov. Thomas Dewey defeated Governors Harold Stassen and Earl Warren, Senators Robert Taft and Arthur Vandenberg, Rep. Joseph Martin, and General Douglas MacArthur on the third ballot).

The possibility of the Democratic nominee remaining unclear until late August, however, has left many Democrats apoplectic, and Republicans giddy, over the potential for four more months of internecine Democratic fighting.

This crisis has been deemed so important that both Howard Dean and Harry Reid have called for the process to somehow resolve itself by July 1st, to keep it from harming the Democrats chances in November. Yet short of either candidate voluntarily dropping out by then, its unclear how, if at all, party leaders could actually enforce this deadline. Rather, there are no signs of, or suggestions for, Obama leaving the race, and Hillary has explicitly said that she is willing to stay in until Denver, declaring

"I know that there are some people who want to shut this down and I think they are wrong. I have no intention of stopping until we finish what we started and until we see what happens in the next 10 contests and until we resolve Florida and Michigan. And if we don't resolve it, we'll resolve it at the convention."

The only concrete idea for forcing an earlier end to the primary is Tennessee Gov. Philip Bredesen's call for a “superdelegates’ primary” in June or July, pushed most prominently in this NY Times Op-Ed. Bredesen writes:

“In early june, after the final primaries, the Democratic National Committee should call together our superdelegates in a public caucus.

…

“There will have been more than 20 debates, and more than 28 million Americans will have made their choices and voted. Any remaining uncertainty in our nominee will then lie with the superdelegates, and it will be time for us to make our choices and get on with the business of electing a president.

“This is not a proposal for a mini-convention with all the attendant hoopla and sideshows. It is a call for a tight, two-day business-like gathering, whose rules would be devised by the national committee, of the leaders of our party from all over America to resolve a serious problem. There would be a final opportunity for the candidates to make their arguments to those delegates, and then one transparent vote… This is a business meeting of a few hundred people almost three months from now, not an extended cast-of-thousands convention.”

My problem with all of this is simple – aren’t these calls for an earlier decision by superdelegates really just an argument for moving the convention up? What is the point of having a convention at the end of August, if the party’s leaders seem united in consensus that we need a nominee by July?

Gov. Bredesen’s description of his plan really highlights the absurdity of this. While he declares that this isn’t a proposal for a mini-convention, there seems to be little difference. Breaking it down, he suggests:

“A tight two-day business-like gathering,” – as opposed to the four-day Democratic National Convention;
“whose rules would be devised by the national committee” – as the Democratic National Convention’s are;
“of the leaders of our party from all over America” – such as the delegates who will be attending the Democratic National Convention;
“to resolve a serious problem” – choosing the party’s presidential and vice-presidential tickets, which is the purpose of the Democratic National Convention;
“There would be a final opportunity for the candidates to make their arguments to those delegates” – because clearly during the four-day Democratic National Convention, there’s no time for the candidates to speak;
“and then one transparent vote” – which is exactly what happens on the final day of the Democratic National Convention.

So if we are now saying that this absolutely must be done in June or July, what is the point of the convention itself? The party’s platform will be written in advance, and it is apparently no longer necessary to hold a convention to choose the nominee. We’ve just removed all rational for holding a convention in the first place. If we insist that the nominee be chosen months earlier, the convention is just an elaborate coronation ceremony, costing the government and party tens of millions of dollars. All we are left with is what Bredesen refers to as “all the attendant hoopla and sideshows” that accompany the “extended cast-of-thousands convention.”

I'm fully in favor of holding the convention earlier in the summer if the party thinks that an extended general election is beneficial, but divorcing the end of the nominating process from the convention is a mistake. At that point, the convention is just an opportunity for special interest groups, party leaders and politicians to waste millions of dollars wining and dining themselves. Somehow that just doesn't seem necessary.Thus has the Democratic Party rendered its national conventions the world’s most expensive and pointless pep rally.

A West Wing Writer's Take on a Brokered Convention

2008-04-07T15:37:00.003-04:00

"A PSYCHO-POLITICAL THRILLER starring HILLARY CLINTON and BARACK OBAMA

Co-starring BILL CLINTON as THE MACHAVELLIAN SPOUSE, MICHELLE OBAMA as THE CLOSER, AL GORE as THE SELF-APPOINTED BACKUP PLAN, NANCY PELOSI and HOWARD DEAN as THE POWERLESS BROKERS, HAROLD ICKES and HOWARD WOLFSON as RUTHLESS OPERATIVES, and WESLEY CLARK as THE LUCKIEST MAN ALIVE"

My favorite excerpt from it:

CUT TO:
Brian Williams sets the table with his solemn intro to NBC's coverage: The pledged delegate score is Obama 1,688, Clinton 1,539; Obama holds a slim popular-vote lead of 1.5% with 30 million votes cast; 263 superdelegates remain uncommitted. Anything can happen.

Howard Dean opens the convention and gets booed off stage. The delegates hold him responsible for the mess they're in. Dean grabs Harry Reid and Nancy Pelosi as he rushes out of the convention hall. Dean tells them they've gotta figure out a way to stop the bleeding tonight. Dean, Reid and Pelosi get heckled by passing delegates as Obama Girl happily signs autographs in the background.

Big Pharma with Big Protection

2008-04-06T22:20:00.002-04:00

Mind boggling. That is the only way to describe it. The courts are debating giving them a shield against lawsuits. The premise is that no agency nor court has enough expertise to disagree with the FDA, and therefore no lawsuits should be able to be brought against the pharmaceutical companies because the FDA already made their ruling on whether the drug was safe. So far, that sounds extremely reasonable. It keeps the courts from being clogged with ludicrous cases and saves these companies money which could, in theory, lead to lower drug prices.

But wait! There seems to be no protection against a company misleading the FDA. The company still cannot be sued. The Vioxx debacle and the Ortho Evra issues are going to be reoccurring situations from now on if this shield law takes effect. In essence, we have incentivized lying to the FDA. Without the "stick" of lawsuits to keep these companies honest, what is there? Drugs will be released to market, turn a profit for the company, and then some outside researchers will show that the drugs raise the risk of some ailment. The pharmaceutical company knew this as well but they suppressed the data. Too bad, there is no recourse for the injured consumer. I pray for the sake of America's health that the courts rule against these shields.

For something a little lighter..

2008-04-04T09:06:00.000-04:00

YEEEEAAAAHHHH!

The Next Stage of the Campaign?

2008-04-02T17:22:00.002-04:00

In discussing Clinton's new ad (which can be seen at this link), Todd Beaton writes:

Turning her focus on John McCain is really smart for a couple of reasons. Obviously it's best for all involved for her to turn her fire away from Barack Obama, perhaps most importantly for her so she doesn't scare off wavering superdelegates who fear she'll ruin Obama and the party's chances in November if he's the nominee. But also, it actually behooves both Clinton and Obama to focus on criticizing McCain because if this nomination is going to hinge on electability, as it seems it just might since ultimately the nomination will be left up to the subjective judgment of the superdelegates, letting the supers see just how they intend to go head to head against McCain, seeing sort of a preview of coming attractions -- whether through ads or just rhetorically on the stump -- is actually a really important part of this stage of the campaign, which, as sad as it is, is largely about wooing the superdelegates.

This reminded me of a theory I'd had, so I went digging through old emails and found the one from February 6th, the day after Super Tuesday. The text is below, and clearly it hasn't played out this way so far, but I wonder if it isn't still possible, at least to some degree. The aforementioned post made me think it is, but we'll see how this all plays out in the coming weeks and months. Anyway, here's what I originally wrote:

From what I've read, it seems as if to win the nomination flat-out through the rest of the primaries and caucuses, either candidate would need to win something like 80% of the remaining delegates, which doesn't seem likely. I haven't put much thought into this, but it occurs to me that having a Republican nominee and an extended Democratic primary, to be decided by superdelegates or some sort of back room deal between Clinton and Obama, could actually be a blessing in disguise. Since nothing like this has ever occurred in modern American politics, there has been discussion of this possibility as a nightmare scenario for Democrats, but I think it could also offer an unexplored and unmentioned upside.

This (increasingly likely and entirely unprecedented) scenario could offer two advantages. First, for better or worse, the nomination would be in the hands of party insiders, be they powerbrokers who try to arrange some sort of deal, or superdelegates who are all either elected or party officials. While this might seem undemocratic, it also offers an opportunity to have a more substantive campaign. Unlike the voting public, these insiders are all in some sense professional political operatives. Many of these individuals know and personally work with both Senators Clinton and Obama. They have first-hand experience with these people and would be less likely to be swayed by media coverage. Rather, they would have a much greater interest and ability to demand a specific policy agenda from the candidates. Picture a group of populists in the Senate led by Sherrod Brown offering their vote in exchange for a more populist economic platform, or Senator Feingold negotiating for a group whos primary interest in civil liberties, in exchange for their support. They are much more familiar with the issues being discussed in the campaign than the average voter, and less likely to be swayed by demagoguery and pandering. This could lead to a much more substantive discussion, which would in turn be less divisive since, as is often noted, Obama and Clinton aren't all that far apart on policy.

Second, imagine the following: a single Republican nominee running a general election against two popular Democrats (three if you count Bill...) simaltenously. Clinton and Obama have shown that they're capable of having substantive policy discussions without attacking each other. Imagine if they were able to keep that up, while simultaneously going after the Republican nominee?

The Republican nominee's attention and attacks would have to be divided to parry and attack multiple targets, while the Democrats would essentially get to tag-team the Republican. Since McCain, Clinton and Obama are all guaranteed to get lots of press coverage, it would be virtually impossible for the Republicans to go after either Democratic candidate while ignoring the other. On the other hand, knowing who the eventual Democratic nominee will be up against could allow both Clinton and Obama to focus on their eventual adversary. If (and its obviously a big "if") the campaign were to play out this way, it would also offer Democrats a unique insight into who the better nominee would be between Clinton and Obama. Every political junkie has their own theory about who would fare better in a general election, but this would actually allow an opportunity to SEE how they would run against a Republican in the general election, not just speculate about it.

This is obviously entirely hypothetical, but I think its possible.

Predictably Irrational

2008-04-02T13:16:00.004-04:00

One of the central tenets of economics is that people are rational actors. A slight problem with this assumption, however, is that it is blatantly untrue (as detailed entertainingly by MIT Professor Dan Ariely's new book, Predictably Irrational). A result of this assumption is that, when we see large numbers of people acting in the same way, we believe that there has to be some explanation, leading to rationalizations of phenomena that may be entirely random.

As a prominent example, Freakanomics co-author Stephen Dubner points out the comically useless explanations offered daily by newspapers for the stock markets swings. He notes an article from Yahoo News yesterday declared:

“Stocks Surge to Start Q2″
Wall Street began the second quarter with a big rally Tuesday as investors rushed back into stocks amid optimism that the worst of the credit crisis has passed and that the economy is faring better than expected.

The problem being that the headlines appearing alongside this newsbrief seem to contradict the thoughts assigned to investors:

"Celent: 200,000 US Banking Jobs at Risk"
"Manufacturing, Construction Weaken"
"Ford, Toyota U.S. Sales Down in March"
"Congress Has Big Questions for Big Oil"
"U.B.S. Will Write Down $19 Billion"

All of this leaves me wondering why, exactly, the author thought that this signaled investors' belief that the worst was over and the financial crisis had passed.

Instead, Dubner suggests two headlines for the stock markets movements that are probably much more accurate:

"Stocks Surge, Reasons Unknown; May Be Nothing More Than the Random Fluctuation of a Complex System"
or
"Stocks Dive: Three First-Movers Sold Hard and Then Everyone Else Inexplicably Followed."

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"

2008-04-02T11:05:00.012-04:00

John Yoo's memos authorizing torture on behalf of the DOJ's Office of Legal Counsel were released yesterday. As described by Marty Lederman, "It is, in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces." If only this were an April Fool's joke...

The full memo can be found in two parts:

Part 1
Part 2

I'll keep adding on notable responses to it as I see them, feel free to send me any you guys see. Wild guess, but somehow I think this will inspire alot of discussion...

The March 2003 Yoo Memo Emerges!: The Torture Memo to Top All Torture Memos by Marty Lederman

Full Employment Memo for Bloggers (and Prosecutors?) by Marty Lederman

Yoo's Utter Glib Certainty by Emily Bazelon

John Yoo's Living Constitutionalism by Orin Kerr

Another Stinkin' Memo by Phillip Carter

John Yoo's War Crimes by Glenn Greenwald

The Legality of Evil: The Torture Memos and the Living Constitution by Jack Balkin (which contains my favorite response so far: "Yoo's torture memo sounds very lawyerly in its arguments. This observation points to an important fact about legal discourse: Lawyers can make really bad legal arguments that argue for very unjust things in perfectly legal sounding language.")

The Payoffs of Defending the Yoo Memorandum by Stuart Benjamin

The Green Light by Scott Horton

The "John Yoo, Let's Pretend We're Lawyers" Game

Open both parts of that opinion in your PDF reader (Part One, Part Two)
Using the search function on your PDF reader, search for the word "Youngstown"
Guess how many citations to Youngstown you find--go on, guess!
Take an 81-page opinion dealing with the degree to which the President's power is bound (or not) by existing laws during war time
...

And in case you were worried that Yoo simply doesn't know about Youngstown, see this link, that demonstrates that Professor Yoo believes it is the first text to consider in any discussion of separation of powers.

What To Do About You by Christopher Hayes

Memo linked to warrantless surveilance surfaces by Pamela Hess and Lara Jakes Jordan

This article needs to be quoted in part, because it is fucking terrifying:

For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on U.S. soil didn't apply to its efforts to protect against terrorism.
That view was expressed in a secret Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.
The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration asked the department for an opinion on the legality of potential responses to terrorist activity.
The 37-page memo is classified and has not been released. Its existence was disclosed Tuesday in a footnote of a seperate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

The Yoo/Chertoff/Ashcroft Memo? How Did the OLC Opinion Come to Be Issued from DOJ, Anyway? by Marty Lederman

Outrage at the Latest OLC Torture Memo by Dawn Johnson

There's a War Crimes Tribunal in Your Future by Jack Balkin

Yoo Talkin' to Me? Plausible Deniability, and Other Reasons Why Warfare by Midlevel Legal Memoranda is a Really Bad Idea by Dahlia Lithwick

Stuck on Yoo by Deborah Pearlstein

Actually, the Answer is Rather Easy by Marty Lederman

Simply Mistaken? by Benjamin Wittes

Jonathan Hafetz

"I'm Glad I Got Out When I Did"

2008-04-01T10:31:00.002-04:00

Great interview with former Bush Treasury Secretary Paul O'Neil. Some highlights:

It’s so hard to understand how the subprime mortgage crisis has triggered a financial crisis of global proportions. If you have 10 bottles of water, and one bottle had poison in it, and you didn’t know which one, you probably wouldn’t drink out of any of the 10 bottles; that’s basically what we’ve got there.
...
McCain recently confessed in public that his grasp of economics is limited. Yeah. That’s a great place to start from, isn’t it?
...
Have you seen Dick Cheney since he fired you? I have been to a few events where the vice president was there, but we both did our best to ignore each other. You know, I was a pallbearer, and he was a pallbearer, too.
You mean at President Ford’s funeral? Yes.
And you didn’t say hello? Nope. It was a good time to be alone together.
Are you ever confused with former Yankee outfielder Paul O’Neill? I once gave a speech in New York when I said that whenever I called up a four-star restaurant for a table, they’d fall all over themselves. Then they’d say, “Will Mr. Jeter be coming with you?”
...

Do you feel bitter about your service for the Bush administration? No. I’m thankful I got fired when I did, so that I didn’t have to be associated with what they subsequently did.

If Only Hillary Had More Experience...

2008-03-31T23:25:00.003-04:00

Jonathan Alter makes the interesting case that Hillary's best move may be right into the governor's mansion. I agree that it would be nicer than returning to the Senate to face all of her colleagues that she thinks deserted her, but I am not sure how helpful it will actual be to her political career though. In general, I think executive experience is a wonderful thing and is nearly essential for any would be presidential candidate, but Hillary has already run an entire campaign on the experience card and we have all seen how that is working out. It turns out that experience loses out to hope every day of the week. America doesn't care about a candidate's resume or past. They care about what the candidate promises to do in the future. All that the move to Albany will do is add governor to the things that America can ignore. In other words, political experience is the last thing that Hillary needs.

Who Knew MAD Magazine Did Serious Commentary?

2008-03-31T23:04:00.002-04:00

Twenty-three fold-ins from almost fifty years of MAD magazine.

Relive a bit of your childhood and realize how prescient Al Jaffee is. The more things change the more things seems to have stayed the same. A lot of the issues that America was facing back then it still seems to be facing. I'm not sure if it that is a good thing or bad thing.

Entertaining Article on High School Social Life

2008-03-31T11:30:00.000-04:00

Why Nerds are Unpopular

Great Response to Hot Zone's Last Post

2008-03-31T10:50:00.001-04:00

Courtesy of Scott Adams, writer of Dilbert:

One of the reasons I like my job is that the worst mistake I can make is to offend someone, and I enjoy that too. I would never want to be a NASA engineer, for example, knowing that one wrong calculation lands the Space Shuttle on the Sun. And I really, really, really, wouldn’t want to be one of the engineers working on the Large Hadron Collider, no matter how sure I was that it was safe. There’s always that little chance of annihilating the universe, and it’s exactly the sort of mistake I would make.

On the plus side, no one would say, “I told you so.” I guess that would take some of the sting out of it.

I don’t know how you ever get comfortable with any level of risk of destroying the universe. If you were to do an expected value calculation, multiplying the tiny risk times the potential cost, it would still come out infinitely expensive.

And who exactly ran the numbers to decide it wasn’t that risky? After all, the whole point of the Large Hadron Collider is to create conditions that are not predictable. If someone already predicted what would happen using nothing but his laptop and Excel, and determined it was safe, I don’t think we’re getting our $8 billion worth.

I can’t see the management of this project spending $8 billion, realizing it was a huge boner, and then holding a press conference suggesting it be turned into a parking garage. I’ll bet a lot of people in that position would take at least a 5% risk of incinerating the galaxy versus incinerating their own careers. I know I would.

If the lawsuit succeeds, imagine trying to get another job with that project failure on your resume.

Interviewer: “So, you spent $8 billion dollars trying to build a machine that would either discover something cool or destroy the universe. Is it fair to say you are not a people person?”

Oh Pew, You Incarcerate Me!

2008-03-31T06:42:00.002-04:00

In an op-ed in the LA Times today, James Q. Wilson argues that the recent pew report regarding incarceration rates in the United States actually misinterprets the benefits of imprisoning criminals (he says that higher rates are indicative of a more criminal society AND that imprisonment actually decreases those rates). I'm hosting grad student prospectives for the next two days so I'll be slow on posting a more in-depth response, but start your engines.

Some initial thoughts I have are skepticism about the comparative case work between the U.S. and Britain (it seems somewhat simplistic to draw a single causal variable relationship to the rise/fall of crime in the two countries, namely prison time).

I also think that his public policy approaches are wiser than just making the less-dangerous spectrum of drugs legal - it would give users the ability to rehab without going into jail (preventing them from becoming more dangerous during the prison socialization process) without condoning behavior that is often associated as a slippery slope (associated with greater drug use, more serious drugs, and an increase in the propensity to commit more crime).

Hillary "John Rambo" Clinton

2008-03-29T22:02:00.001-04:00

This one was sent to me by Stootz Gottlieb. Enjoy:

http://www.youtube.com/watch?v=uHVEDq6RVXc

If Chicken Little had a Little Bit of Physics Knowledge

2008-03-29T14:45:00.004-04:00

The Chicken Little of the Twenty-First Century. How is this on the front page of the New York Times' webpage? Is there nothing else happening in the nation? The article is unfortunately very respectful to both sides giving the public the sense that Mr. Wagner and Mr. Sancho have a legitimate claim when it really should have berated the two of them.

Mr. Wagner and Mr. Sancho acknowledge that the suit has no authority since they filed in Hawaii and, CERN is, you know, international. Mr. Wagner tried to stop the use of the Brookhaven National Laboratory in 1999 and 2000. Clearly, Mr. Wagner was right because the world came to end due to scientists using Brookhaven. Wait, that didn't happen.

On one hand we have quite literally hundreds of scientists with PhDs in physics saying it is safe versus Mr. Wagner who has an undergraduate degree in physics and Mr. Sancho who is an author and researcher on "time theory." Who do you think has a better grasp of the science behind the Large Hadron Collider. Trust me, the scientists don't want the world to end either under any circumstance.

Furthermore, the LHC is going to have collisions in the 10^12 electron-volt range. There are natural collisions that happen up to the 10^20 electron-volt range. That is a 100,000,000 electron-volt range difference of magnitude. These are natural processes that we are recreating but at a much lower power. We can't even get close to the numbers that nature throws at us normally.

Black holes seem very scary. There are two facts that are rarely mentioned that make them much less scary. Hawking radiation and Schwarzschild radius. Black holes naturally release thermal radiation over time. If the black hole absorbs more than it radiate it grows the opposite if vice versa. In fact, smaller black holes produce more Hawking radiaton than larger ones accelerating their demise. In the unlikely situation that the LHC does make a black hole it will only be a micro black hole that will evaporate in nanoseconds.

The Schwarzschild radius is the radius where anything that enters that radius will be unable to escape the gravitational field of the black hole. If a black hole had the mass equivalent to mount everest its radius would be less than a nanometer. The black holes formed from the LHC would have a radius smaller than a proton or an electron. It would not even be able to pick up one of these sub-atomic particles making it impossible to grow any larger.

So remind again now. Why was this even published?

Garbo - I'm Looking At You Here

2008-03-28T15:43:00.003-04:00

On ABC's The View this morning, Obama had the following exchange with Barbara Walters:

BW: Had the Reverend not retired, were he still there, would you then have left the church, or said 'I just can't have anything to do with him?'

BO: Had the Reverend not retired, and had he not acknowledged that what he had said had deeply offended people and were inappropriate and mischaracterized what I beleive is the greatness of this country, for all its flaws, then I wouldn't have felt comfortable staying there at the church.

Two weeks ago, in his highly praised speech on race, Obama said

I have already condemned, in unequivocal terms, the statements of Reverend Wright that have caused such controversy. For some, nagging questions remain. Did I know him to be an occasionally fierce critic of American domestic and foreign policy? Of course. Did I ever hear him make remarks that could be considered controversial while I sat in church? Yes. Did I strongly disagree with many of his political views? Absolutely – just as I’m sure many of you have heard remarks from your pastors, priests, or rabbis with which you strongly disagreed.

Maybe its just me, but if Obama has heard him say controversial remarks, and knew of his criticisms of US policy, then doesn't his statement this morning imply that he should, in fact, have left the church?

I'm not sure how to reconcile these statements. If Wright's publicly expressed views were so out of bounds that they would have caused Obama to leave the church if Wright were not retiring, then why didn't Obama leave the church? The retirement answer explains why he is not now leaving the church, but Wright's retirement is recent. This leaves wide open the question of, if Obama was aware of Wright's views, why was he there for the past 20 years?

To me, the two possible answers that would have made sense are a) his views aren't too extreme, there's some justification to them, and I don't find them so deplorable that they merit my leaving the church; or b) I didn't know how nutty Reverend Wright was, but had I known about all of this, I would have left the church. I think it seems he's trying to play it both ways, but they seem mutually exclusive, no?

Pentagon Papers Redux?

2008-03-28T10:55:00.009-04:00

Read this story, and then check out the reactions I've linked to at the bottom of this post.

An excerpt from NY Times reporter Eric Lichtblau's upcoming book, in which he discusses why the NY Times first sat on the NSA wiretapping story for a year, and why it eventually published the story.

For 13 long months, we'd held off on publicizing one of the Bush administration's biggest secrets. Finally, one afternoon in December 2005, as my editors and I waited anxiously in an elegantly appointed sitting room at the White House, we were again about to let President Bush's top aides plead their case: why our newspaper shouldn't let the public know that the president had authorized the National Security Agency, in apparent contravention of federal wiretapping law, to eavesdrop on Americans without court warrants. As New York Times Editor Bill Keller, Washington Bureau Chief Phil Taubman, and I awaited our meeting, we still weren't sure who would make the pitch for the president. Dick Cheney had thought about coming to the meeting but figured his own tense relations with the newspaper might actually hinder the White House's efforts to stop publication. (He was probably right.) As the door to the conference room opened, however, a slew of other White House VIPs strolled out to greet us, with Secretary of State Condoleezza Rice near the head of the receiving line and White House Counsel Harriet Miers at the back.
For more than an hour, we told Bush's aides what we knew about the wiretapping program, and they in turn told us why it would do grave harm to national security to let anyone else in on the secret. Consider the financial damage to the phone carriers that took part in the program, one official implored. If the terrorists knew about the wiretapping program, it would be rendered useless and would have to be shut down immediately, another official urged: "It's all the marbles." The risk to national security was incalculable, the White House VIPs said, their voices stern, their faces drawn. "The enemy," one official warned, "is inside the gates." The clichés did their work; the message was unmistakable: If the New York Times went ahead and published this story, we would share the blame for the next terrorist attack.
More than two years later, the Times' decision to publish the story—a decision that was once so controversial—has been largely overshadowed by all the other political and legal clamor surrounding President Bush's warrantless wiretapping program: the dozens of civil lawsuits; the ongoing government investigations; the raging congressional debate; and the still-unresolved question, which Congress will take up again next week, of whether phone companies should be given legal immunity for their cooperation in the program. Amid the din, it's easy to forget the hits that the newspaper took in the first place: criticism from the political left over the decision to hold the story for more than a year and from the right over the decision to publish it at all. But the episode was critical in reflecting the media's shifting attitudes toward matters of national security—from believing the government to believing it less.
After all, the fear and trauma that gripped the country in the months and years after 9/11 gripped the media, too; the country's outrage was our outrage. Coverage of 9/11 and its aftermath consumed all else for reporters in Washington. As federal officials scrambled to avert the much-feared "second wave" of attacks, reporters likewise scrambled to follow any hint of the next possible attack and to put it on the front page—from scuba divers off the coast of Southern California to hazmat trucks in the Midwest and tourist helicopters in New York City. One example of the shift: On Sept. 12, 2001, another major newspaper was set to run a story on the extraordinary diplomatic maneuverings the U.S. Secret Service had arranged with their Mexican counterparts to allow Jenna Bush, then 19, to make a barhopping trip south of the border. (She had just been charged with underage drinking in Texas.) A few days earlier, a scoop about a presidential daughter's barhopping trip getting special dispensation from the Secret Service and a foreign government might have gotten heavy treatment. But the story never ran, and the Secret Service's maneuverings remained a secret until now. In the weeks and months after 9/11, there was no longer an appetite for such stories.
At the same time, in the first few years after 9/11, stories that have now become frequent front-page fodder—about water-boarding of terrorism detainees and other aggressive interrogations tactics, about CIA "black site" prisons overseas, or about covert eavesdropping or other surveillance programs that stretched the limits of the law—simply didn't get written by most of the mainstream media. If we had known about them, which in most cases we didn't, there would have been a reluctance to publicize them in those early days of the war on terror.
I wasn't immune to the shifting in attitudes after 9/11. In early 2003, then-Attorney General John Ashcroft appeared at a congressional hearing I was covering and announced, with dramatic aplomb, the unsealing of indictments against two Yemeni men, including a radical cleric accused of personally delivering $20 million to Osama Bin Laden. There was more: The cleric, Ashcroft revealed, said he had received money for jihad from collection at the notorious al-Farooq mosque in Brooklyn. I didn't wait for a break to rush out the door of the hearing room and call our assignment editor, who would soon be preparing the story list for the next day's front page. "This is big," I told the editor. "Ashcroft says Bin Laden was getting money from a mosque in Brooklyn."
Sure enough, the story ran at the top of the front page of the next day's paper. But among my colleagues in the paper's New York metro section, there was much less enthusiasm: The story, our Brooklyn reporter thought, was overblown, the evidence of an actual link between the Brooklyn mosque and al-Qaida thin. His skepticism was borne out: While the Yemeni cleric was ultimately sentenced to 75 years in prison on terrorism charges related to his support of Hamas, the sensational charge that the Brooklyn mosque was used to raise money for al-Qaida and Bin Laden had melted away to all but nothing by the time the case concluded.
For me, the story about the Brooklyn mosque, along with others, like the justice department's wobbly case against "dirty bomber" Jose Padilla, were eye-openers. By 2004, I had gained a reputation, deservedly or not, as one of the administration's toughest critics in the Justice Department press corps; the department even confiscated my press pass briefly after I wrote an unpopular story about the FBI's interest in collecting intelligence on anti-Iraq war demonstrations in the United States. To John Ashcroft and his aides, my coverage reflected a bias. To me, it reflected a healthy, essential skepticism—the kind that was missing from much of the media's early reporting after 9/11, both at home in the administration's war on terror and abroad in the run-up to the war in Iraq.
That shared skepticism would prove essential in the Times' decision to run the story about Bush's NSA wiretapping program. On that December afternoon in the White House, the gathered officials attacked on several fronts. There was never any serious legal debate within the administration about the legality of the program, Bush's advisers insisted. The Justice Department had always signed off on its legality, as required by the president. The few lawmakers who were briefed on the program never voiced any concerns. From the beginning, there were tight controls in place to guard against abuse. The program would be rendered so ineffective if disclosed that it would have to be shut down immediately.
All these assertions, as my partner Jim Risen and I would learn in our reporting, turned out to be largely untrue. Jim and I had already learned about much of the internal angst within the administration over the legality of the NSA program at the outset of our reporting, more than a year earlier in the fall of 2004. Still, the editors were not persuaded we had enough for a story—not enough, at least, to outweigh the White House's strenuous arguments that running the piece would cripple a vital and perfectly legal national-security program. It was a difficult decision for everyone. I went back to writing about more mundane terrorism and law-enforcement matters, poking around discreetly to find out what had happened to the NSA's eavesdropping program. Risen went on sabbatical to write a book about intelligence matters. Then, one night in the spring of 2005, he called me out to his home in suburban Maryland and sat me down at his computer. There on the computer screen was a draft of a chapter called simply "The Program." It was about the NSA's wiretapping operation. "I'm thinking of putting this in the book," he said. I sat and stared at the screen in silence. "You sure you know what you're doing?" I asked finally. He shrugged.
Risen spoke with our editors about what he was contemplating, and so began weeks of discussions between him and the editors that ultimately helped to set the story back on track. Risen's book was a trigger, but we realized we weren't in the paper yet. We still had to persuade the editors that the reasons to run the story clearly outweighed the reasons to keep it secret. We went back to old sources and tried new ones. Our reporting brought into sharper focus what had already started to become clear a year earlier: The concerns about the program—in both its legal underpinnings and its operations—reached the highest levels of the Bush administration. There were deep concerns within the administration that the president had authorized what amounted to an illegal usurpation of power. The image of a united front we'd been presented a year earlier in meetings with the administration—with unflinching support for the program and its legality—was largely a façade. The administration, it seemed clear to me, had lied to us. And we were coming closer to understanding the cracks. By the time we met with White House officials in December 2005, Keller had all but made up his mind: The legal concerns about the program were too great to justify keeping it out of public view. The only real question now was not whether the story would run, but when.
That decision was helped along by a chance conversation I had soon after our White House meeting. The administration, I was told, had considered seeking a Pentagon Papers-type injunction to block publication of the story. The tidbit was a bombshell. Few episodes in the history of the Times—or, for that matter, in all of journalism—had left as indelible a mark as the courtroom battle over the Pentagon Papers, and now we were learning that the Bush White House had dusted off a Nixon-era relic to consider coming after us again. The editors in New York had already decided they would probably print the story in the newspaper for that Friday, Dec. 16, 2005, but when word of the Pentagon Papers tip reached them, they decided they would also post it on the Internet the night before. That wasn't routinely done at that time on "exclusive" stories because we would risk losing the scoop to our competitors, but the editors felt it was worth the risk. The administration might be able to stop the presses with an injunction, but they couldn't stop the Internet.
Phil Taubman called us into his office to hear the official word: We were publishing the story, Keller told us. Smiles washed over the room. Rebecca Corbett, who edited the story and had been a strong champion of it, inquired about the play it would get. There'd been talk of a modest one-column headline on the front page. She wanted to know whether we might be able to get two columns, maybe even three. This seemed like a story that would have legs. Keller demurred. He wanted the story to speak for itself; we would be discreet without looking as if we were poking the White House in the eye with a big, screaming headline about NSA spying. This wasn't the moment to quibble over the size of the headline. After all this time, after all the White House's efforts to derail it, we were happy to see the story in the paper at all; in the back of the A section, among the bra ads, would have been fine.

The Reporter as Dramatic Hero: Some Skepticism

There May Be Hard Cases But... The FISA Story Isn't One of Them by David Barron, Harvard Law School

The Times: Not Heroic. Simply Doing Its Job by Marty Lederman, Georgetown Law School

Reply to David Regarding The Times and the NSA Program by Eric Posner, Univ. of Chicago Law School.

NYT? What's Bush's Excuse for Keeping Law violations Secret? by Dawn Johnson, Indiana University School of Law - Bloomington

Good Disclosures and Bad Ones by Orin Kerr, George Washington University School of Law

Reply to Marty on NSA Program and The Times by Eric Posner

Defending by "Devotion to the Forms of Legality." "Verging on Fanaticism" by Marty Lederman

The Times, They Are aChangin by Deborah Pearlstein, Woodrow Wilson School for Public and International Affairs at Princeton

More on Marty, the NSA and The Times by Eric Posner

Eric's Surprising Argument for Why Bush Acted Irresponsibly in the FISA Case by David Barron

Should the Bush Administration Have Sought to Enjoin Publication of the NSA Wiretapping Story? by Eric Posner

A Few Thoughts

2008-03-28T01:19:00.005-04:00

I will hopefully write more about this tomorrow or this weekend, but I want to quickly address a few points:

Individuals should be held responsible for their decisions, but many homebuyers and homeowners did not have a decision beyond bad mortgage or no home. That is not a decision, but a reflection of the inability of the market to address the needs and concerns of all segments of society. The one who did have a choice, those who invested in real estate in order to profit, should be differentiated from those who did not. Self-help fails when individuals are unable to help themselves.
Lang gets at a fundamental issue when he discusses the power differential between borrowers and lenders. The Lochner era of the Supreme Court, named for the 1904 decision Lochner v. New York, was characterized by the adherence to the idea of right to contract. Individual workers were assumed to have the same leverage and power as their employers, thus any legislation to regulate the hours, wages, conditions, etc. of labor was seen to interfere with a worker's right to dictate the contents and terms of his (but not her) contract. The result of this mistaken application of the Due Process Clause of the Fourteenth Amendment was damaging not only to individual workers, but to unions and the long-term health of the economy. When this changed in 1937 under West Coast Hotel v. Parrish, the government gained the ability to bridge the gap between workers and employers. This ensured that the 1935 Wagner Act (among other legislation) would remain constitutional and it paved the way for the Fair Labor Standards Act in 1938. What was true of workers and employers is also true of borrowers and lenders. To paraphrase Lang, borrowers lack the knowledge, expertise, and experience to gauge the market with anywhere near the accuracy with which lenders should be able. Even borrowers who may possess such specialized knowledge simply do not have anywhere near the same resources as the average bank, to say nothing of a Citigroup or a Goldman Sachs. As such, government should step in to help bridge that gap. It is not a double standard to hold those capable of a certain behavior accountable while not doing so for those incapable of such otherwise regulated behavior.
Government non-intervention works both ways. In the 1890's, unions were among the most critical of government intervention in the economy because government would invariably intervene on behalf of management in any labor dispute. Today's situation parallels this grievance. Bear Stearns was bailed out (for all intents and purposes), but individual homeowners are not. This reinforces the structural inequality between massive institutions and individuals as well as the need for government to actively stand for those individuals.

“It is an easy thing for men to be deceived by the specious name of Liberty.”

2008-03-28T00:49:00.005-04:00

Well, if we’re going all CC on each other…

“During the time men live without a common power to keep them all in awe, they are in that condition called war; and such a war as if every man, against every man… To this war of every man against every man, this is also in consequent; that nothing can be unjust. The notions of right and wrong, justice and injustice have there no place. Where there is no common power, there is no law, where no law, no injustice. Force and fraud are in war the cardinal virtues.”
Thomas Hobbes, Leviathan

EBL, I think you miss the point of Garbo’s original post. It seems to me that it was an argument for the need to reregulate the financial industry, while your response focused largely on the merits of a federal government bail out (of both lenders and borrowers). I think the following line from Garbo’s follow-up clearly states the original point, which you don’t address: "the ultimate goal was not retribution or even the reimbursement of funds lost through speculation, but the formation and structuring of a sound banking system." Yes, Garbo’s post did assign blame for the current crisis, but by focusing on that, you miss the crux of his argument. It was meant to be a forward-looking discussion, regarding how we can avoid the same mistakes that were made.

To address your argument regarding a bail out, however, I disagree with much of what you said. You wrote that

“The problem with Garbo’s argument is that, at best, it only singles out half of the reason for the predicament and as such doesn’t necessarly address the greater issue of Americans procuring more than they can afford”

but this imposes a false equivalency between lenders and borrowers. As financial professionals, lenders were in a position to better know the market, to understand what houses should be worth, and what borrowers would actually be able to pay. Clearly, buying a house is the largest investment most people will ever make, but regardless, most people don’t spend years researching housing markets. They haven’t received training, either through advanced schooling or through their employers, designed with the explicit goal of providing them with an understanding of housing and financial markets. While they are parties to these deals, they aren’t as well prepared to bear the burden of investigating and understanding the deals intricacies. Lenders are, and are often (rightly or wrongly) thought of by borrowers as acting in the borrowers best interests. They are clearly in the more powerful position in this relationship; their standing aren’t equivalent and should not be thought of as such.

You go on to state that

“One could argue that the crisis itself right now is its own best future medicine and overly zealous homeowners who purchased a home with no equity have suffered pain and won’t engage in the same behavior again. But that doesn’t mean it won’t happen in the future when they either forget or are offered an enticing bill of goods”

While Garbo retorts that “When you assert that this crisis may perhaps be its own medicine, you imply that the market somehow could be self correcting, but it is not.”

There are a couple of problems with this line of reasoning.

First, the crisis has already been stopped from playing itself out. For better or worse, the Fed and Bush Administration (read: Treasury Secretary Paulson) have already intervened, with Wall Street rabidly cheering them on. By opening its discount window to non-commercial banks and pushing the JP Morgan-Bear Stearns buyout, the government has effectively announced that a bailout of the financial players is necessary. The question is no longer whether or not the government should interfere with the private market at all (which EBL seems opposed to), but whether it should do so on both sides. As Martin Wolf wrote,

“Systemically important institutions must pay for any official protection they receive. Their ability to enjoy the upside on the risks they run, while shifting parts of the downside on to society at large must be restricted… An unregulated, but subsidized, casino will not allocate resources well. Moreover, that subsidization does not now apply only to shareholders, but to all creditors. Its effect is to make the costs of funds unreasonably cheap. These grossly misaligned incentives must be tackled.”

This highlights the real problem with the “Bank X is too big and important to fail” argument: the bank’s profits are accrued privately by the banks, its employees and shareholders, while the costs of investments gone awry are being nationalized.

Second, pain now won’t serve as an effective deterrent to repeating the same mistake.

1) People who aren’t currently in the housing market aren’t effected by the pain. If they aren’t paying attention now, the current problems give them no incentive not to do the same things in 10 years time.

2) Even people who are being hurt now may misremember or misinterpret what led to their predicament when looking back on it later.

3) As noted in my original post, “experts” always manage to rationalize why this time, its different and it isn’t a bubble. Again, look at what people were saying during the housing boom, the dot-com boom, and pretty much any bubble since the advent of academic economics. Every time, you’ll find people explaining why this case is different because something has fundamentally changed the market. Sometimes its true, most of the time its not. Either way, each bubble is different from the last, and has provided little guidance to those in the midst of it to allow them to realize whats actually happening around them.

Letting the system work itself out will also hurt many innocent people, while failing to adequately punish many of those responsible. For the extreme examples, think of Merrill Lynch’s E. Stanley O’neal. Yes, he eventually lost his job as a result of Merrill Lynch’s losses, but before the bubble burst, he also made hundreds of millions of dollars, which he now gets to keep. In the long-term, the interests of financial institutions and borrowers converge – nobody benefits from a borrower defaulting on a mortgage. In the short term, however, finance executives can reap massive rewards while setting their institutions up for an eventual fall. There is a large misalignment between finance executives, and the financial companies that they run.

The solution to all of this is regulation. Prevent the bubbles from being created and getting out of hand in the first place. By definition, bubbles burst; better not to let them inflate in the first place.

UPDATE: Emphasizing my point regarding Merrill Lynch's E. Stanley O'Neal, this morning's NY Times contains the article Down $900 Million or More, The Chairman of Bear Sells:

Only a year ago James E. Cayne’s stake in Bear Stearns was worth more than $1 billion. But on Thursday, Mr. Cayne, the chairman of Bear, disclosed that he had sold all of his shares in the troubled investment bank this week for just $61 million.
...
While he has not yet moved into his new apartment at the Plaza, which he bought for about $26 million this month, people who have spoken with him say he still has plans to do so, as soon as he sells his current residence on Park Avenue.
...
Mr. Cayne, unlike many lower-level Bear executives who had large portions of their net worth tied up in stock, also had the benefit of receiving large portions of his yearly compensation in cash. So, he has certainly accumulated enough to live out his retirement years in comfort.

While he lost an absurdly large amount of money in the past few weeks as Bears' stock plummeted, he also walked away having made millions over the past few years, while leading Bear to its eventual fall. I'm curious what his actual net worth is at this point, but given that Plaza apartment, it seems hes not suffering too badly.

UPDATE II: Charlie Munger, co-founder of the law firm Munger, Tolles & Olson and Warren Buffett's Vice-Chairman in Berkshire Hathaway, once wrote that

We [should] heed the general lesson implicit in the injunction of Ben Franklin in Poor Richard's Almanack: "If you would persuade, appeal to interest and not to reason." This maxim is a wise guide to a great and simple precaution in life: Never, ever, think about something else when you should be thinking about the power of incentives...

One of the most important consequences of incentive superpower is what I call "incentive caused bias." A man has an acculturated nature making him a pretty decent fellow, and yet, driven both consciously and subconsciously by incentives, he drifts into immoral behavior in order to get what he wants, a result he facilitates by rationalizing his bad behavior [like a salesman who harms her customers by selling them the wrong product because she gets paid more for selling it, versus the right product -- see, e.g., the mutual fund industry].

...Another generalized consequence of incentive caused bias is that man tends to "game" all human systems, often displaying great ingenuity in wrongly serving himself at the expense of others. Antigaming features, therefore, constitute a huge and necessary part of almost all system design.

...Military and naval organizations have very often been extreme in using punishment [the inverse of reward] to change behavior, probably because they needed to cause extreme behavior. Around the time of Caesar, there was a European tribe that, when the assembly horn blew, always killed the last warrior to reach his assigned place, and no one enjoyed fighting this tribe.

To which can be derived the following lesson, the last section of which is directly relevant to what I discussed above:

The design of tactical incentives -- e.g. bonuses -- is a whole topic in and of itself, and is critically important as your company grows. The most significant thing to keep in mind is that how the goals are designed really matters -- as Mr. Munger says, people tend to game any system you put in place, and then they tend to rationalize that gaming until they believe they really are doing the right thing.
I think it was Andy Grove who said that for every goal you put in front of someone, you should also put in place a counter-goal to restrict gaming of the first goal.

So, for example, if you are incenting your recruiters on the number of new employees recruited and hired, you need to also give them a counter-goal (and tie it to their compensation) that measures the quality of the new hires three months in. Otherwise the recruiters are guaranteed to give you what you don't want: a lot of mediocre new hires.

One of the great unwritten Silicon Valley skewed incentive stories was a major datacenter vendor in the late 90's that incented its salespeople based on bookings of long-term datacenter leases, without sufficient counter-goals tied to revenue collection or the customer's ability to pay. Sure enough, soon the company's reported bookings were heading straight up, revenue was flat, and cash headed straight down, resulting in a truly spectacular bankruptcy. The salespeople got paid, though, so they were happy.

More recently, skewed incentives in the mortgage industry -- mortage issuers getting paid based on quantity of mortgages issued, versus ability to pay -- caused many of the current catastrophic Wall Street financial meltdowns you get to read about every day.

RE: Garbo's new posting about a responsible plan to end the war:

2008-03-27T21:34:00.004-04:00

Sign me up!

As a fun historical parallel - remember in Sept. 2007 when Democratic PACs (I think it was 527s but I could be mistaken) nicknamed General Petraeus 'General Betray Us?' in the Times?

Well, they did the same thing with Eisenhower during World War II when he was supreme Allied commander.

Instead of General Eisenhower, it was 'General Lies and Power'. I'm a particularly big fan of text below the picture

Diplomacy

2008-03-27T21:34:00.003-04:00

Senator Obama makes an excellent point about diplomacy:

“If FDR can meet with Stalin and Nixon can meet with Mao and Kennedy can meet with Khrushchev and Reagan can meet with Gorbachev, then the notion that we can’t meet with some half-baked dictator is ridiculous.”

When asked specifically about Ahmadinejad, he declared:

“I’m not worried about losing a propaganda war with Ahmadinejad. That guy opens his mouth and I think people see there are problems there.”

More Fuzzy Math

2008-03-27T21:13:00.003-04:00

In case you weren't tired of all the shenanigans happening on Wall Street there is plenty of bad math happening with health care too. The theory goes that by adding more patients to an underfunded and understaffed system everything will be fixed. Oh yea, also by having medicare reimbursements so low as to be practically covert doctor taxes more primary care doctors will be trained. Someone needs a desperate lesson in economics and incentives.

A Responsible Plan

2008-03-27T17:19:00.001-04:00

It is time to end the Iraq War.

Elaboration

2008-03-27T15:59:00.002-04:00

Though I have yet to read his speech in its entirety, Senator Obama's statement, "we need to regulate institutions for what they do, not what they are," distills, I believe, a sentiment underlying my previous post. I take issue with banks or corporations not because they are banks or corporations, but instead for their abuses of a system that is woefully unregulated. Even where regulation does exist, it is un- or under-enforced.

What Glass-Steagall did was not single out banks for punishment or admonishment, but lay out rules for the proper functioning of the financial sector. Commercial banks taking deposits could not serve as investment banks or underwrite insurance. Why? Speculation by unscrupulous bankers and banks had led to widespread lack of confidence in the financial sector. Despite the heated rhetoric of the congressional debate, bankers were not distrusted because of their identity per se, but because of their behavior. Thus, the law set out not to punish them for their past acts, but prevent them from occurring in the future. It set up safeguards to limit what bankers could and could not do for their clients and investors. It provided insurance for investors through the Federal Deposit Insurance Corporation. The ultimate goal was not retribution or even the reimbursement of the funds lost through speculation, but the formation and structuring of a sound banking system.

The government has a similar responsibility to homeowners caught in the mortgage crisis. Not every one of them should be offered a lifeline, but some, if not most, should. The speculators and the gamblers, who sought to get rich quick through "flipping houses," must be separated from the middle-, lower middle-, and working-class individuals and families who wanted to become, or wanted to continue to be, homeowners. The latter should have access to subsidized home loans and greater housing security, such as that proposed by Senators Obama and Dodd.

For Now...

2008-03-27T15:18:00.003-04:00

I'll post more in response to EBL in a bit, but I thought that these two articles I came across yesterday might also provide some insight into the current economic crisis, and its relation to the regulatory state.

First, Martin Wolf in the Financial Times: The Rescue of Bear Stearns Marks Liberalisation's Limit

Remember Friday March 14 2008: it was the day the dream of global free- market capitalism died. For three decades we have moved towards market-driven financial systems. By its decision to rescue Bear Stearns, the Federal Reserve, the institution responsible for monetary policy in the US, chief protagonist of free-market capitalism, declared this era over. It showed in deeds its agreement with the remark by Josef Ackermann, chief executive of Deutsche Bank, that “I no longer believe in the market’s self-healing power”. Deregulation has reached its limits.

Mine is not a judgment on whether the Fed was right to rescue Bear Stearns from bankruptcy. I do not know whether the risks justified the decisions not only to act as lender of last resort to an investment bank but to take credit risk on the Fed’s books. But the officials involved are serious people. They must have had reasons for their decisions. They can surely point to the dangers of the times – a crisis that Alan Greenspan, former chairman of the Federal Reserve, calls “the most wrenching since the end of the second world war” – and the role of Bear Stearns in these fragile markets.

Mine is more a judgment on the implications of the Fed’s decision. Put simply, Bear Stearns was deemed too systemically important to fail. This view was, it is true, reached in haste, at a time of crisis. But times of crisis are when new functions emerge, notably the practices associated with the lender-of-last-resort function of central banks, in the 19th century.

The implications of this decision are evident: there will have to be far greater regulation of such institutions. The Fed has provided a valuable form of insurance to the investment banks. Indeed, that is already evident from what has happened in the stock market since the rescue: the other big investment banks have enjoyed sizeable jumps in their share prices (see chart below). This is moral hazard made visible. The Fed decided that a money market “strike” against investment banks is the equivalent of a run on deposits in a commercial bank. It concluded that it must, for this reason, open the monetary spigots in favour of such institutions. Greater regulation must be on the way.

The lobbies of Wall Street will, it is true, resist onerous regulation of capital requirements or liquidity, after this crisis is over. They may succeed. But, intellectually, their position is now untenable. Systemically important institutions must pay for any official protection they receive. Their ability to enjoy the upside on the risks they run, while shifting parts of the downside on to society at large, must be restricted. This is not just a matter of simple justice (although it is that, too). It is also a matter of efficiency. An unregulated, but subsidised, casino will not allocate resources well. Moreover, that subsidisation does not now apply only to shareholders, but to all creditors. Its effect is to make the costs of funds unreasonably cheap. These grossly misaligned incentives must be tackled.

I greatly regret the fact that the Fed thought it necessary to take this step. Once upon a time, I had hoped that securitisation would shift a substantial part of the risk-bearing outside the regulated banking system, where governments would no longer need to intervene. That has proved a delusion. A vast amount of risky, if not downright fraudulent, lending, promoted by equally risky finance, has made securitised markets highly risky. This has damaged institutions, notably Bear Stearns, that operated intensively in these markets.

Yet the extension of the Fed’s safety net to investment banks is not the only reason this crisis must mark a turning-point in attitudes to financial liberalisation. So, too, is the mess in the US (and perhaps quite soon several other developed countries’) housing markets. Ben Bernanke, Fed chairman, famously understated, described much of the subprime mortgage lending of recent years as “neither responsible nor prudent” in a speech whose details make one’s hair stand on end.* This is Fed-speak for “criminal and crazy”. Again, this must not happen again, particularly since the losses imposed on the financial system by such lending could yet prove enormous. The collapse in house prices, rising defaults and foreclosures will affect millions of voters. Politicians will not ignore their plight, even if the result is a costly bail-out of the imprudent. But the aftermath will surely be much more regulation than today’s.

If the US itself has passed the high water mark of financial deregulation, this will have wide global implications. Until recently, it was possible to tell the Chinese, the Indians or those who suffered significant financial crises in the past two decades that there existed a financial system both free and robust. That is the case no longer. It will be hard, indeed, to persuade such countries that the market failures revealed in the US and other high-income countries are not a dire warning. If the US, with its vast experience and resources, was unable to avoid these traps, why, they will ask, should we expect to do better?

These longer-term implications for attitudes to deregulated financial markets are far from the only reason the present turmoil is so significant. We still have to get through the immediate crisis. A collapse in financial profits (so significant in the US economy), a house-price crash and a big rise in commodity prices are a combination likely to generate a long and deep recession. To tackle this danger the Fed has already slashed short-term rates to 2.25 per cent. Meanwhile, the Fed also clearly risks a global flight from dollar- denominated liabilities and a resurgence in inflation. It is hard to see a reason for yields on long-term Treasuries being so low, other than a desire to hold the liabilities of the US Treasury, safest issuer of dollar- denominated securities.

“Some say the world will end in fire, Some say in ice.” Harvard’s Kenneth Rogoff recently quoted Robert Frost’s words in describing the dangers of financial ruin (fire) and inflation (ice) confronting us.** These are perilous times. They are also historic times. The US is showing the limits of deregulation. Managing this unavoidable shift, without throwing away what has been gained in the past three decades, is a huge challenge. So is getting through the deleveraging ahead in anything like one piece. But we must start in the right place, by recognising that even the recent past is a foreign country.

Second, from The Fed Bank of Minneapolis's Region magazine, an excerpt from a fictional interview with Senator Carter Glass (of Glass-Steagal) fame from December 1997 (emphasis mine):

REGION: It's too bad you needed a banking crisis to get that legislation.

GLASS: It is nearly impossible to get banking reformation in this country without a crippling national emergency, and even then, bankers tell us to wait for better times because their situation is precarious and reform will break them. But when better times arrive, they tell us to wait yet awhile, because reform will upset their fragile prosperity. Bankers and their myrmidons and hired pigwidgins always threaten a torrent of disasters. They think the time is always right to reform others and the time is always wrong to reform them. Furthermore, if Congress waits as bankers instruct and gives some new villainy time to take hold and become familiar, bankers then defend the practice as if it were a birthright of finance handed down to them from Justinian by way of the Medicis and Alexander Hamilton himself, with which it would be impious and disruptive for the government to interfere.
In this fog of selfish rhetoric, all a poor member of Congress can do is keep a list of needed improvements and bide his time until a financial catastrophe gives him his chance, and then he must legislate at once or wait for the next debacle. This is a wasteful, unscientific process. It delays useful remedies until the banking system is racked with infection, and it brings in desperate cure-alls, quack nostrums and overdoses that may be worse than the disease and, though meant to be temporary, often continue for decades after the fever breaks...

Second Thoughts - A Libertarian Response

2008-03-27T13:04:00.004-04:00

"Populate the territory uniformly, extend the same rights everywhere, spread abundance and life all over. In this way the state will become simultaneously as strong and as well governed as possible," - Rousseau, The Social Contract, Bk.III, Chpt.XIII

Rousseau's classic statement of communitarianism might seem an overly strong way to begin a response to Garbo's posting, which, on its face, seems moderate in its advocacy that Americans should not prostrate themselves before the pin maker. Like Lang, I agree that the repeal of Glass-Steagal during the Clinton administration, leading to the fall of the barrier between commercial and investment divisions in financial firms, was problematic. The reason, however, is not only because these firms could now engage in high-risk bets with commercial mortgage backed securities, but also because individual home owners were unresponsive and ignorant to their own financial situations. As a result, individuals were financing property they could not afford and the financial firms were packaging and swapping these bad properties while making them look like attractive investments. These two factors - irresponsible investment by firms and individuals over-extending themselves, have primarily led to the current crisis.

The problem with Garbo's post is that he quickly moves the assignment of responsibility to both parties only to the investors. Though claiming he is attacking the idea that money should come before society, his target is not that notion generally, but rather the leaders of financial firms who share only half the responsibility. For example, he asserts that advocating greater personal responsibility will not do; rather the key is a significant amount of new regulatory legislation. However, regulatory legislation is usually not imposed on individual consumers, such as home owners, but rather on the financial firms that lend to them. Lang is asserting that the way to rectify the problem is to deal with the financial firms party to the current crisis, not by imposing or increasing prudence on the part of the individual home/property owners. A closer look at his language illustrates this focus:

“The leaders in the banking world in the United States have not only been forgetful and neglectful of their responsibility to the public but they have forgotten their own best interests, and many of them are reaping now in the distress that confronts them the legitimate results of their own folly and short-sightedness.”

Though this statement by Representative Henry Steagall (D-AL) is nearly 75 years old, it applies no less today than it did during the Great Depression. The Glass-Steagall Act which bears his name along with that of Senator Carter Glass (D-VA) should never have been repealed. It was a short-sighted plan motivated by unmitigated greed and the desire for “greater efficiency.” Call me crazy, but I don't think he is referring to individual home owners when he condemns unmitigated greed and the desire for 'greater efficiency'. This is why I bring in the quote from the Social Contract - Garbo isn't arguing against money dictating terms to society, he's arguing against the rich dictating terms against the poor (and hence for a shift towards communitarianism). Once we reach this point - the argument becomes something more akin to classic liberalism (e.g. libertarianism) versus modern liberalism, an debate that has been hashed and rehashed in far greater detail and with far more eloquence than I can do here.

The problem with Garbo's argument is that, at best, it only singles out half of the reason for the predicament and as such doesn't necessarily address the greater issue (certainly in terms of population) of Americans procuring more than they can afford. If Garbo really wants to deal with the issue, then this other half requires addressing (though I will grant a little bit of ground in terms of the interaction effects between CEO's of financial firms and the idolization effect they have on everyday Americans, e.g. because middle-class Americans idolize the wealth of top CEO's, going after those top CEO's and eliminating their prostration might have second-order effects on reducing the prostration of the majority of the population).

Where then does that leave us? How should we go about facilitating a more prudent individual? One could argue that crisis itself right now is its own best future medicine - that overly zealous homeowners who purchased a home with no equity have suffered pain and won't engage in the same behavior again. But that doesn't mean it won't happen in the future when they either forget or are offered an enticing bill of goods. I'm interested to see what ideas you guys have on that question.

Religion Claims Another Victim

2008-03-27T13:02:00.002-04:00

This is just fucked up:

The aunt of a sick Wisconsin girl whose parents trusted in faith rather than medicine pleaded for authorities' help in a 911 call obtained by the Wausau Daily Herald.
The girl, 11-year-old Madeline Neumann, died Sunday from a treatable form of diabetes.

Emergency personnel responded to Neumann's home Sunday after receiving a 911 call from Neumann's aunt, Ariel Gomez. In the call, Gomez pleaded for help because Neumann's mother "believes in faith instead of doctors," the Wausau Daily Herald reports.

"My sister in law is, her daughter's severely, severely sick and she believes her daughter is in a coma. And, she's very religious so she's refusing to take (Neumann) to the hospital, so I was hoping maybe somebody could go over there," Gomez said.

Though I think that this reaction seems slightly off:

With apologies to similar believers everywhere, my first reaction to this is, Wow, these people are some kind of crazy. My second reaction: time to consider a little court-negotiated sterilization.

Seriously. This is America, so people should be allowed to be as religiously crazy as they wanna be--until their beliefs begin endangering other folks, most definitely including their young children. At that point, since you can't practically compel people to give up their beliefs, you need to start thinking about limiting the number of other people they can harm. In this case, that means limiting the number of children these faith-healers can control.

At this point, criminal charges have yet to be filed. But assuming they do, and that jail time becomes a possibility, my argument would be to put sterilization on the table as an alternative. These people clearly didn't go into this with the intent to harm their child. But it's also clear that neither member of this couple is to be trusted with offspring. Ever. And unless they wind up locked up forever--which seems unlikely--you can't trust them not to do something irrational--and lethal--again.

Yeah, I know sterilization carries ugly baggage. But my argument for semi-voluntary snip snip snipping is similar to the one I made (lost somewhere in the archives) back during the saga of Andrea Yates, the post-partum-psychotic mom who brutally drowned her five kids in the bathtub. Since Yates was clearly insane, I could see not sending her to prison forever. But authorities also needed to make damn sure she could never have another kid. Thus the choice: incarceration or sterilization. (As things turned out, of course, Yates' murder conviction was overturned and she wound up in a low-security mental health facility. We can only hope no one is stupid enough to set her free until her child-bearing years are behind her.)

In no way am I suggesting this Wisconsin couple is psychotic. Nonetheless, if early reports are even close to accurate, Mom and Dad just let their child waste away for a month and die--from an easily treatable ailemnt--in the name of faith. (Shouldn't the coma have been a tip off that the prayer-only course of treatment needed some sort of supplement?) So we can argue about religious rights and parental rights and reproductive rights from now until Jesus returns. But, I'm sorry, these people should not be allowed to procreate again.

First Thoughts on Garbo's First Post

2008-03-27T11:11:00.006-04:00

Garbo writes "During times of plenty, perhaps we do not need such regulation, but without it how can we prevent the slide into recession or depression?"

During 'times of plenty' is precisely when we need regulation the most. Those are the times when bubbles form, when people begin to believe "No, this time its really different. Technology/ new management techniques/ globalization/ insert-new-buzz-word- here has changed whats possible." Those are the times that lead people to write books with titles like Dow 36,000: The New strategy for Profiting from the Coming Rise in the Stock Market, written right before the dot-com bubble burst (FYI, the Dow Industrial Average peaked at around 14,000 last October,and, as of now, is back to about 12,000); or Are You Missing the Real Estate Boom? Why Home Values and Other Real Estate Investments Will Climb Through the End of the Decade - and How to Profit From Them, published in 2005 (and updated in 2006, with the new, perhaps even less prescient title, Why The Real Estate Boom Will Not Bust - And How You Can Profit From It.)

It was precisely this type of "irrational exuberance," to borrow Alan Greenspan's description of the dot-com boom, that oversight and regulation of financial markets is meant to curb. Remember the words of William McChesney Martin, Chairman of the Federal Reserve under Truman through Nixon: The job of the Fed is to "take away the punch bowl just as the party gets going."

Lastly, as of yesterday, it seems Treasury Secretary Henry Paulson has come around to the same view, saying that "This latest episode has highlighted that the world has changed as has the role of other nonbank financial institutions and the interconnectedness among all financial institutions. These changes require us all to think more broadly about the regulatory and supervisory framework that is consistent with the promotion and maintenance of financial stability." He also said, of giving companies such as Lehman Brothers and Bear access to the Fed's funds, that "Certainly, any regular access to the discount window should involve the same type of regulation and supervision [as the fed has over commercial banks]."

UPDATE: Apparently I may have misread those statements by Paulson. The NY Times puts them in a different context than the above articles.

"Restoration Calls...Not For Changes in Ethics Alone"

2008-03-26T19:06:00.003-04:00

The economy should be society’s servant. Society should not prostrate itself before “the rulers of exchange of mankind’s goods.” The precipice of economic disaster upon which the United States now rests challenges our nation to again “apply social values more noble than mere monetary profit.” It requires us to re-examine our roles as citizens and the role government may have in the economy. But far from a call to moderate speculative behavior through voluntarily acts of greater responsibility, the economic straits in which we find ourselves require a more demanding set of changes to rectify that which unfettered and unregulated, unmanaged and unfeeling markets have wrought.

The continued deregulation of our economy, particularly the financial sector, has caused enormous harm to the well-being of the United States and its citizens. In this environment:

“The leaders in the banking world in the United States have not only been forgetful and neglectful of their responsibility to the public but they have forgotten their own best interests, and many of them are reaping now in the distress that confronts them the legitimate results of their own folly and short-sightedness.”

What it gave us, less than 10 years later, was speculation, recession, and now, in the wake of the Bear Stearns debacle, actual failure. This was legislation designed to protect the interests of the people of the United States—the savers, the depositors, and the investors—and in doing so it made many well-off, if not rich. It regulated the activities of the banks, restricting them from gambling with their investors’ money, be it in dotcom stocks, developing economies, or subprime mortgages. Most of all, this act helped inspire confidence not as a piece of legislation, but because it worked, perhaps not perfectly, but enough to prevent financial disasters caused by public lack of confidence. The repeal of Glass-Steagall and the resulting financial crisis may be separated by a decade, but they point toward a larger issue. During times of plenty, perhaps we do not need such regulation, but without it how can we prevent the slide into recession or depression?

Government ownership is not the answer. Robert Reich contends that even if it were, the fact remains that it is “not even OUR government that's holding the strings.” Continued deregulation obviously offers us no way out. We need a return to responsible and effective regulation, much as we had during the post-war years. Even if behavior were to change, the structures which reward irresponsibility and exacerbate inequality remain because the markets will not regulate themselves. Far from perfect and far from efficient, unregulated markets reinforce inequality and do nothing to correct exploitative, reckless, or otherwise negligent behavior without doing harm to the master of the economy: society. An unregulated economy serves only itself, but a regulated economy can serve us all.

Way To Stay On Message

2008-03-26T11:56:00.004-04:00

From an interview with Harry Reid:

Question: Do you still think the Democratic race can be resolved before the convention?

Reid: Easy.

Q: How is that?

Reid: It will be done.

Q: It just will?

Reid: Yep.

Q: Magically?

Reid: No. It will be done. I had a conversation with Governor Dean (Democratic National Committee Chairman Howard Dean) today. Things are being done.

Remember all those complaints of party leaders ignoring what the voting public actually wanted through a brokered convention? It turns out we don't even need to wait for the convention for the fix to be in.

Well thank god we've gotten past the days of smoke-filled back room deals...

Medellin - As Entertaining and Certainly More Perverse than Entourage

2008-03-25T21:06:00.003-04:00

I'll post the link to Convictions because the debate is too long. However, my first reaction to this ruling is that, while I support States rights, even my Jeffersonian side wouldn't take it this far....

http://www.slate.com/blogs/blogs/convictions/default.aspx

Why Touting Conventional Wisdom Pays Off, Even When You're Wrong

2008-03-25T15:43:00.005-04:00

Krugman writes:

Reading some of today’s news, it suddenly struck me: we’re living in the age of the anti-Cassandra.

Cassandra had the gift of prophecy — she saw, correctly, what was coming — but was under a curse: nobody would believe her.

Today, our public discourse is dominated by people who have been wrong about everything — but are still, mysteriously, treated as men of wisdom, whose judgments should be believed. Those who were actually right about the major issues of the day can’t get a word in edgewise.

What set me off was the matter of Alan Greenspan; as Dean Baker like to remind us, news analyses of the housing and financial crisis almost always draw exclusively on “experts” who first insisted that there wasn’t a housing bubble, then insisted that the financial consequences of the bubble’s bursting would remain “contained.”

It’s even worse, of course, on the matter of Iraq: just about every one of the panels convened to discuss the lessons of five disastrous years consisted solely of men and women who cheered the idiocy on.

Now, none of this is entirely new. Consider what Keynes said in 1931:

A sound banker, alas, is not one who foresees danger and avoids it, but one who, when he is ruined, is ruined in a conventional way along with his fellows, so that no one can really blame him.

Still, it seems especially extreme now. And think of the incentive effects. What’s the point of taking the risk of challenging conventional wisdom if, even after you’re proved right, only the guys who were wrong get invited to opine on Charlie Rose?

To which Alex Tabarok responds:

I think the fact is correct so what is going on?
The answer is media incentives. It wasn't just the experts who were wrong, the majority of the American people got Iraq and housing wrong. The war was popular in the beginning and people continued to buy houses even as prices rose ever higher. So what does the American public want to hear now?

The public wants to hear why they weren't idiots. And who better to explain to the public why they weren't idiots than experts who also got it wrong?

Henry Farrell, in response to Tabarok, also chimes in:

It’s an interesting argument, but one that I’m highly skeptical about. One of the golden rules of survey research is that questions that ask about the political views that respondents held in the past are likely to get highly inaccurate replies. The reason is that people’s memories are quite malleable, so that they often reshape their recollections of what views they held in the past so that they accord better with the views that they hold today. I’d be prepared to bet a significant amount of money that the number of people who believe that they supported the war back in 2003 is far lower than the number of people who actually did support the war back in 2003. Indeed, I suspect that the number of people who believe that they supported the war back in 2003 is a minority of the US public. Since the Cassandra-backlash effect that Tabarrok is talking about is contemporaneous, and presumably depends on people’s current beliefs about what they thought in the past, this makes me think that something else is going here (and that this something else has to do with the desire of elite actors in the commentariat to hold onto their privileged position in the public discourse).

The Subprime Primer

2008-03-24T10:03:00.001-04:00

A brilliant synopsis of why our economy is screwed. Enjoy.

The wisdom of a split presidency

2008-03-24T09:05:00.002-04:00

From Slate, Akhil Reed Amar has an interesting plan for how the Democratic presidential candidates can stop their internecine conflict - by using the 25th amendment to switch the President and Vice President in the middle of the administration. It's an interesting idea but the question I think needs to be asked (and the which Amar mostly avoids) is how important the role of contiguity intra administrations is to achieving political/policy objectives. I'll post my thoughts more extensively in a bit, but here's the link:

http://www.slate.com/id/2187034

WE'RE NUMBER 1! WE'RE NUMBER 1!

2008-03-22T19:49:00.002-04:00

Three weeks ago, the Pew Center on the States released a report highlighting an appalling achievement recently reached by the United States: with 2.3 million people behind bars out of a total adult population of roughly 230 million, the US has become the first and only modern country to imprison more than 1% of its adult population. To put these numbers in context, not only does the US lead every other country in the world in percentage of adults in jail, but we lead in absolute terms as well. China, with a population of 1.3 billion citizens, had the second largest number of imprisoned adults, with 1.5 million.

Our absurdly high incarceration rate (so much for "land of the free"…) is due in large part to the disastrous War on Drugs. As of December 2007, roughly one in every five inmates in jail is there for a drug offense. In addition to the cost of jailing drug offenders, untold hours are wasted by law enforcement officers, as epitomized by the time spent on making 740,000 arrests for marijuana possession in 2006 alone.

Despite its financial costs and its myriad failures (a subject deserving of its own post), thethe ongoing presidential campaign. The lone exception seems to have been the Democratic debate at Drexel University on October 30^th, in which the candidates were asked their views on decriminalizing marijuana. While Sen. Chris Dodd criticized the War on Drugs for "filling our jails with people who don't belong there," both Senators Clinton and Obama expressed opposition to decriminalizing marijuana. Of all ofthe Democrats to oppose decriminalization, Obama and Clinton are a particularly ironic duo: if the United States had been more successful in pursuing drug offenders, odds are that neither Senator would be where they are today. War on Drugs has largely been absent from

Neither Bill Clinton nor Barack Obama have made any secret of what their supporters now write off as youthful indiscretions. In his 1992 campaign, Clinton admitted that in the late 1960s, he "experimented with marijuana once or twice," though he infamously denied inhaling. In Barack Obama's first book, he discussed his own history of substance abuse, admitting that while in high school, he indulged in underage drinking, marijuana, and "a little blow when [he] could afford it." (To be sure, experimenting with drugs is not a phenomenon found solely among young Democrats: on the other side of the aisle, George W. Bush has denied using illegal drugs since 1974, and it is rumored that he was arrested for cocaine possession in 1972.)

Rather, Senators Obama and Clinton represent one of the War on Drugs' few redeeming qualities: the fact that its execution has been half-assed since its inception. Despite theof thousands of Americans now serving time in prison for drug offenses, and thethe years, only a tiny fraction of those who have actually used, bought, sold, or transported illegal drugs have actually been caught. No drug enforcement official could claim with a straight face that those behind bars are a majority ofthe unfortunate ones that were caught. hundreds millions more who have been arrested over drug offenders; they are just

While many have attacked the War on Drugs for the financial burden it imposes on the law enforcement and corrections agencies, a less noted though equally important problem is its opportunity cost. Had either Bill Clinton or Barack Obama been caught, it is impossible to say where they, or Hillary Clinton, would be today. (While I vehemently disagree with the theory that Hillary's success is attributable solely to her marriage, it is indisputable that if Bill Clinton has been jailed in his early 20s, Hillary Clinton's life would have been different than it is today.) The country is then faced with an unanswerable question: how many Barack Obamas and Bill Clintons were caught in the War on Drugs? How many now sit in prison due to a drug conviction? How many potential presidents, senators, governors, CEOs, star athletes, captivating entertainers or brilliant academics never were, because at some point their lives were derailed? Remember the numbers: 740,000 arrests in 2006 alone, just for marijuana possession.

On December 5^th, 1933, Franklin Delano Roosevelt signed into law the 21^st Amendment, officially ending our nation's experiment with the prohibition of alcohol (which President Roosevelt promptly followed by declaring "I think this would be a good time for a beer"). We should honor its 75^th anniversary by having an open, honest and frank discussion about what the economic and personal costs of the War on Drugs have been. I'm not advocating for the immediate, unregulated legalization of all drugs, but I do believe that our country needs to reexamine its policies. Our national leaders were once able to admit that Prohibition wasn't working, and that they had made a mistake. Are today's leaders capable of the same?

The beginning of intellectual warfare

2008-03-21T16:58:00.002-04:00

Ok that's a little harsh. This blog is being started to keep a group of friends-cum-intellectual aspirations debating, arguing and in contact. The goal is to debate at least 2 separate issues per week, with 1 person taking responsibility for posting an interesting topic in rotation. We'll start by more clearly delineating the rules/topics, so let's do a little brainstorming