One of the persistent fantasies of liberals/progressives is the conviction that they know how to micromanage the economy, never mind the fact that the American economy is part of a global economy. This year's political agenda provides relevant discussion items; for example, not all pollution of the planet is localized (e.g., pollution from China can affect surrounding countries--even as far away as the United States). Pollution control and other environmental policies impose additional costs on the enterprise. With many Chinese factories operating at razor-thin profit margins, additional costs could result in shutdowns and aggravate chronic unemployment problems. If Americans take on additional costs unilaterally, investment capitalists will look at global competitors having lower costs of production. Also, for instance, we have seen the denuding of Amazon forests in Brazil to meet the demand for arable land. This fact, for instance, materially affects the status quo involving carbon absorption. These examples are not meant to imply there is no need for environmental protection regulations, but the inherent difficulty of trying to impose our standards on the global economy and the fact that nations will enact policies relevant to their own national economic interests.
Not to mention the fantasies Obama is trying to spin about us rebuilding global economic leadership and job creation on the basis of education, health care, and alternative energy. These are clearly vital economic resources, but it ignores the fact that the government has been a heavy spender in these areas for decades. India and China are producing engineers (e.g., alternative energy) at ten times the rate of our own economy. Here's the point I'm trying to get across: in order to stoke the fire under our nation's economic growth--which supports government expenditures--we need to make more efficient, effective use of government resources--not to continue to throw more and more money at problems. Our wasteful government spending and budget deficits inevitably drive up inflation and the cost of capital. And the fact is that Obama deliberately refuses to address two critical factors driving relevant costs because of Democratic special interests: teacher unions (which protect a government monopoly over public education, limit administrative control over teacher hiring and work rules and block market-based compensation and incentives) and trial lawyers (whom oppose serious medical malpractice reforms). The best way is to establish a pro-growth economic policy which does not pick sector winners and losers, does not penalize success, and minimizes obstructive government regulations and paperwork.
The fact that the government "clunker trade-in rebate" plan, signed into law by Barack "Just Show Me the (Taxpayer) Money" Obama just over a month ago ran out of money in less than a month of a 4-month plan, and passed under the influence of unions by a punch-drunk Democratic Congress, has already been re-upped, doubling down on a bad legislative bet, shows the real level of commitment of the Democrats to deficit reduction.
This program provides a $3500-4500 rebate towards a new vehicle purchase with certain minimum mileage standards (including SUV's and trucks); the original "clunker" (no more than 25 years old) must have been owned and insured for at least a year and in drivable condition and cannot exceed 18 mpg. The amount of the rebate depends on the relative increase in mileage ratings. The "clunker" is subsequently destroyed.
This program was meant to be environmentally friendly, but there are so many things wrong with this program, it's hard to know where to start. First of all, let us look at the fact that fuel-efficient models are already in demand, without a Congressional rebate, which is essentially pushing on a string: they would have purchased fuel-efficient vehicles without the incentive. Second, it essentially distorts the marketplace: car companies thinking of offering price incentives on their own are able to pass along higher prices, they can shift production schedules to meet the short-term demand, and it may arbitrarily shift demand from later periods (e.g., if I had originally intended to buy a new Ford Fusion in December). Third, it probably doesn't even reach its intended target--the real "clunkers" on the road. If you are driving a 20-year gas guzzler, it may be because you can't afford to buy a new car, even factoring in the rebate. (For example, you may be working in a low-paying job, retired on fixed income, or a student, struggling to pay for insurance, gas, and necessary maintenance) And if you are looking at the goal of incremental mileage, why exclude used cars? If you are driving a guzzler and can find a four-year-old Toyota that gets a third better mileage, you get nothing--whereas you could trade in a used full-size car you bought in 2007, with a market value of less than the rebate, the government is simply subsidizing your purchase of a new vehicle. (If your current car is worth more than $4500, it doesn't make sense to apply for the rebate, because the government requires scrapping the vehicle, meaning it has zero trade-in value.)
When the government finds its program oversubscribed, it may simply reflect that the rebate program terms were too generous, pushing on a string. This is a typical artifact of liberal/"progressive" initiatives. For example, the minimum wage has just been raised. When there is unemployment exceeding 20% among African-American teens, an increase is a windfall for the select number whom are already employed. It's not so great for low-skilled adults or teens trying to find work with fewer opportunities given the struggling economy and tight labor budgets. There is no incentive for people whose gas guzzlers have a market price over the rebate amount. It's too bad that Obama didn't apply his principle that "it's good to spread some wealth around." Not only that, but if the government wanted to focus on fuel efficiency, why is it offering rebates for trucks and SUV's averaging under 20 mpg? Isn't part of the auto industry problem that US auto companies grew overly dependent on less fuel-efficient vehicles? Why not offer subsidies for improvements to upgrade fuel efficiency on existing gas guzzlers?
Other relevant issues include the arbitrary rules and regulations. For example, Barney writes on the Heritage Foundation website that "my 1979 Ford F-350, with a 460 motor gets 8 to 10 mpg. It smokes a little. However, it did not qualify..." The rebate is not contingent on the amount of driving/gasoline; the traveling salesman gets no more than the little old lady. It discriminates against people whom bought more fuel-efficient cars in the past. The amount of the rebate doesn't depend on the magnitude of the relative mileage increase: the car buyer can simply shop for the best price for rebate-eligible vehicles.
There are some other unintended, even counterproductive purposes to what the government is doing. Let us take those cars less than 25 years old. Maybe they're in better shape than many of the older guzzlers in circulation. If nothing else, the government, instead of having the vehicles destroyed, could offer the cars to charities, allow owners of older guzzlers to exchange them for more fuel-efficient vehicles in the program, or sell the old vehicles to help minimize cost of the program to taxpayers.
An editorial in today's Heritage Foundation blog cites other issues as well. For instance, if you eliminate the number of aggregate of drivable used vehicles from the market, given the law of supply and demand, this would seem to imply higher prices for used cars--which adversely affects lower-income people whom can't afford to buy new cars. Second, it will deprive charities a key source for donations. (In fact, I donated my last car.) Furthermore, there is some evidence that tilt towards auto makers may come as the expense of other areas of the economy (i.e., the expenditures that are displaced by new car payments).
I conclude that the American voters next year should seriously consider voting in more tax-efficient, effective legislators. If you prefer to stay with the Democratic brand, consider trading in your tired old liberal legislator, with hardly a new idea since 1972, and upgrade to a Blue Dog model. Better yet, consider changing to the Republican brand, with new ideas, approaches and features that have not even been test-driven since the Democrats regained control of Congress in 2007. It's time for real change, not just lip service to change, and I'm not referring to what's left in your pocket after the "trillion dollar deficit" Democrats have spent the rest.
Friday, July 31, 2009
Wednesday, July 29, 2009
Happy Blogiversary to Me; ...; Happy First Blogiversary!
My first blog post (which criticized a decision Presidential candidate Obama made on his triumphant European tour last summer) occurred on this date a year ago; over the past year, I've published 269 posts (and a few others are in draft). What makes this prolificity more unusual is the fact that my posts tend to be longer than most commentaries I've seen posted elsewhere (the shortest post was a sarcastic jab at Obama's "change" campaign themes), and one of my signature miscellany posts usually includes 3 or more different topics.
I don't allow blog comments; this reflects an experience I had a few years back writing some posts in a Yahoo low carb diet group. I never really thought that dieting could be as contentious as religion or politics, but even modest criticisms, e.g., of conventional water drinking heuristics or choosing vegetables based strictly on carbohydrate gram counts versus nutritional diversity, resulted in ad hominem attacks. The final straw was some mother of a child with a certain medical condition whom swore by high-fat/low-carb diets as having worked for her child and all but accused me of trying to practice medicine without a license. (Obviously people with specific medical conditions, e.g., ulcers, lactose intolerance, food allergies, organ issues (e.g., liver), and diabetes, may have advanced dietary restrictions beyond a more general dietary approach like low-fat or low-carb, and should consult with their primary care physician and/or nutritionist.) I left the group, not because of differences of opinion, but the flaming, particularly by orthodox Atkins dieters, made a true dialogue impossible.
I don't know how many readers (if any) read my posts, at least on a regular basis. Oddly enough, the only post I know had some independent readers was a post I wrote in late April on a former marketing professor I had during my MBA studies at the University of Houston, George Zinkhan. (The University of Georgia professor made national news by killing his estranged wife and her alleged lover and subsequently committing suicide, his body discovered several days after the murders) I found myself quoted in an Australian webpage, and a reporter from the Athens, GA area (home to the University of Georgia) left his phone number in a voice mail asking to interview me. The reason I didn't discuss Dr. Zinkhan over and beyond what I wrote in that post is because I had not communicated with him since earning my doctorate in 1986; we didn't have any joint research projects. No doubt Dr. Zinkhan had had hundreds of more recent students (not to mention research collaborators) since I took his marketing class, including marketing degree majors with multiple classes or research projects. I only saw a few anecdotal pieces, e.g., a University of Nevada professor whom had worked with him on a research project involving Valentine's Day.
Why this conservative blog versus a large number of conventional conservation outlets? I offer a different, fresher perspective; I am not a lifelong conservative but migrated to my current point of view as a former pro-life liberal. I do not believe that the Republicans can continue to run the same old same old "Reagan formula" campaign; I have more of a reformist, problem solving approach to national issues, believe in comprehensive immigration reform and pro-business policies and want to scale back government interventionism in domestic and foreign affairs. Some may argue that many of my criticisms are consistent with other conservatives on a number of issues (e.g., my opposition to the Sotomayor confirmation, my revulsion to Obama's apology tours, and my condemnation of Obama's approaches to cap-and-trade and health care). I differ from other conservatives because I acknowledge legitimate concerns underlying liberal complaints and simply believe that there are better, more market-oriented solutions to achieve these goals versus heavy-handed, paternalistic, ineffective, wasteful government "solutions"; like Jack Kemp and Ronald Reagan, I have a fundamentally positive outlook and want a more inclusive, diverse-thinking conservative movement instead of the goals of an ultra-orthodox, judgmental media conservative inquisitors, like Ann Coulter, whom regard independent conservatives, such as Colin Powell and myself, as heretics.
Let me close with an appropriate song from the greatest musical artists of all time...
Celebrating the Blogiversary with My Favorite Musical Act
I don't allow blog comments; this reflects an experience I had a few years back writing some posts in a Yahoo low carb diet group. I never really thought that dieting could be as contentious as religion or politics, but even modest criticisms, e.g., of conventional water drinking heuristics or choosing vegetables based strictly on carbohydrate gram counts versus nutritional diversity, resulted in ad hominem attacks. The final straw was some mother of a child with a certain medical condition whom swore by high-fat/low-carb diets as having worked for her child and all but accused me of trying to practice medicine without a license. (Obviously people with specific medical conditions, e.g., ulcers, lactose intolerance, food allergies, organ issues (e.g., liver), and diabetes, may have advanced dietary restrictions beyond a more general dietary approach like low-fat or low-carb, and should consult with their primary care physician and/or nutritionist.) I left the group, not because of differences of opinion, but the flaming, particularly by orthodox Atkins dieters, made a true dialogue impossible.
I don't know how many readers (if any) read my posts, at least on a regular basis. Oddly enough, the only post I know had some independent readers was a post I wrote in late April on a former marketing professor I had during my MBA studies at the University of Houston, George Zinkhan. (The University of Georgia professor made national news by killing his estranged wife and her alleged lover and subsequently committing suicide, his body discovered several days after the murders) I found myself quoted in an Australian webpage, and a reporter from the Athens, GA area (home to the University of Georgia) left his phone number in a voice mail asking to interview me. The reason I didn't discuss Dr. Zinkhan over and beyond what I wrote in that post is because I had not communicated with him since earning my doctorate in 1986; we didn't have any joint research projects. No doubt Dr. Zinkhan had had hundreds of more recent students (not to mention research collaborators) since I took his marketing class, including marketing degree majors with multiple classes or research projects. I only saw a few anecdotal pieces, e.g., a University of Nevada professor whom had worked with him on a research project involving Valentine's Day.
Why this conservative blog versus a large number of conventional conservation outlets? I offer a different, fresher perspective; I am not a lifelong conservative but migrated to my current point of view as a former pro-life liberal. I do not believe that the Republicans can continue to run the same old same old "Reagan formula" campaign; I have more of a reformist, problem solving approach to national issues, believe in comprehensive immigration reform and pro-business policies and want to scale back government interventionism in domestic and foreign affairs. Some may argue that many of my criticisms are consistent with other conservatives on a number of issues (e.g., my opposition to the Sotomayor confirmation, my revulsion to Obama's apology tours, and my condemnation of Obama's approaches to cap-and-trade and health care). I differ from other conservatives because I acknowledge legitimate concerns underlying liberal complaints and simply believe that there are better, more market-oriented solutions to achieve these goals versus heavy-handed, paternalistic, ineffective, wasteful government "solutions"; like Jack Kemp and Ronald Reagan, I have a fundamentally positive outlook and want a more inclusive, diverse-thinking conservative movement instead of the goals of an ultra-orthodox, judgmental media conservative inquisitors, like Ann Coulter, whom regard independent conservatives, such as Colin Powell and myself, as heretics.
Let me close with an appropriate song from the greatest musical artists of all time...
Celebrating the Blogiversary with My Favorite Musical Act
Tuesday, July 28, 2009
Miscellany: 7/28/09
The Sunday Talk Shows on the Gates Arrest Kerfuffle
I was listening to the "Face the Nation" podcast with Bob Schieffer when a closing segment and ensuing commentary on the black Harvard professor Henry Gate's recent arrest outside his home on disorderly conduct changes. (Obama at a press conference personally attacked Sgt. Crowley's arrest of Professor Gates as "stupid".) Dr. Dyson, a black Georgetown sociologist, and Kathleen Parker, a columnist, were discussing the incident, and there was no true debate. Both of them praised the President for his unusual admission that he had added fuel to the fire, although he only regretted his choice of words and the fact the situation had become a distraction from his legislative agenda. In short, he is attempting to recast this as an interpersonal issue between Crowley and Gates, when this was really a question of professionalism--Gates, whom was out of control and Crowley, whom acted firmly but patiently.
Well, let's look at the situation; he prefaced his own comments on Crowley by saying he didn't know all the facts and noted that "Skip" Gates was a personal friend. (Any reasonable President at that point would have recused himself from any substantive comment, other than reminding folks that Professor Gates is entitled to his constitutional rights and an abiding confidence in the justice system.) However, the President then went on to say (1) expressing anger at a policeman is "understandable" and (2) he explicitly raised the topic of historical racial profiling. Apologists for Obama will parse the legalistic language he used to express his comments (e.g., he did say he didn't know all the facts, he didn't specifically accuse Crowley of racist behavior, etc.), but the fact is using the term "stupidly" was judgmental, implying knowledge of all salient facts, and Obama's description of "racial profiling" was, in fact, the allegation Professor Gates made of Sgt. Crowley's behavior in checking out a suspected burglary of the Gates' home. Obama knew exactly what he was doing when he said what he said; he's a lawyer and "don't tell me words don't matter."
The impromptu late week Obama appearance at a news briefing, regretting his "poor choice of words" and letting people know he had offered both Crowley and Gates to have a beer at the White House. In fact, one needs to look at the facts that (1) Obama did not apologize to Sgt. Crowley for calling him stupid in arresting Professor Gates (ignoring the established facts that Professor Gates had voluntarily followed Sgt. Crowley out of the home, had verbally abused the cop (making comments about the cop's mother and accusing him for being a racist), and had ignored the cop's repeated warnings of arrest) and (2) Obama was setting himself as an intermediary between two parties, as if they each had legitimate grievance and he is an honest broker. Obama is basically saying that the kerfuffle is all about his using the world "stupid". Whereas Obama's language was a contributing factor to the crisis, he did not recant his general condemnation of the arrest, only the words he used to express his disagreement. His using the term "stupid" is not the issue with which I'm concerned; it's more his implicit judgment of Crowley's professionalism.
As for Professor Dyson's retelling of an incident he experienced being stopped on a Pennsylvania road at night by a white cop whom allegedly ridiculed Dyson's claim of having been a doctoral student and forced him to walk a line despite Dyson's not having had a drink that day, it is not comparable to Professor Gates' slanderous allegations against Crowley; Crowley came to the scene as the result of a 911 call by a female witness whom did not identify the race of Dr. Gates or his driver. What Dyson fails to understand is that associating Professor Gates' paranoid allegations and boorish behavior against a professional Sgt. Crowley with unjustifiable, inflammatory racial profiling charges will tend to undermine credibility of legitimate claims of racial profiling.
Kathleen Parker retold an instance when she initially testily responded to a policeman's pulling her over with a toddler in the car. She pointed about when the policeman hinted she might be arrested if she wasn't more cooperative, she immediately took the hint. But she didn't draw an explicit connection with the fact that Professor Gates failed to cease and desist after multiple warnings of an impending arrest by Sgt. Crowley.
If I was Sgt. Crowley, I would have refused being used by a President whom hasn't apologized for attacking his professionalism and is looking to score political points after putting his own foot in his mouth and trying to restore his image as the post-racial consensus builder.
Interestingly enough, I see that General Colin Powell, a prominent Republican defector supporting the election of Obama, has taken a different spin than Obama on the Gates dispute, saying on CNN:
Sotomayor is Approved By the Judiciary Committee
Given the lopsided composition of the Judiciary Committee (60% of the Senate is Democrat, but almost two-thirds of the committee (12-7)), the outcome was never in doubt with all 12 Democrats and one Republican) voting to approve or endorse the confirmation of Sotomayor. Senator Lindsey Graham (R-SC) decided to vote for recommending Sotomayor's confirmation, primarily on traditional grounds that a President deserves a right to his nominations, that elections have consequences. I'm more intrigued by the upcoming decision by Senator McCain, whom reminded Sean Hannity that he voted against Sotomayor's nomination to the appellate court and the fact that Barack Obama himself doesn't deserve special consideration, given his ideologically-driven votes against Justices Roberts and Alito. I suspect that McCain will vote for the Sotomayor confirmation for reasons similar to his closest Senate colleague, Lindsey Graham. McCain will be looking to reinforce his image as a bipartisan leader consistent with his role of fronting the Gang of 14 which defused a Senate crisis over the Democrats' improper usage of filibusters to bar floor votes on judicial nominees a few years back. Some speculation is that maybe another 5 or so Republicans, whom haven't announced, will vote for Sotomayor. (Not sure who, but I suspect retiring Republicans (e.g., from Ohio and New Hampshire) might vote in the affirmative.) However, if only 10 Republicans support Sotomayor's nomination, it would defeat the Democrats' goal of surpassing Judge Roberts' confirmation totals.
If I was a Democrat, I would be very worried about the growing number of Republicans using ideological reasons (like the Democrats have been using since the Bork nomination) to justify their decision. For example, Senator Kay Bailey Hutchinson, who is seeking to challenge Republican Governor Rick Perry, is using profound concerns over Sotomayor's record on the Second Amendment (i.e., gun rights).
I stand by my opposition to Sotomayor's confirmation; I would be willing to grant Obama wide discretion in naming a judicial replacement, but I don't like Sonia's fusion of identity politics with a stealth activist judicial philosophy. If we are going to have a liberal judge, I prefer one whom is forthcoming, not seeking to explain away her views to win confirmation. The infamous multiple "wise Latina" comments across speeches over the years cannot be explained away, I don't like the way she tried to bury evidence of unconstitutional violations of equal protection through reverse discrimination in the Ricci case, and I think she was disingenuous in her testimony before the Senate Judiciary Committee, trying to emulate (improbably) the responses of Roberts and Alito at points. The Democrats are confusing quantity (tenure) with quality of judicial experience and leadership. Obama could have made a better choice, certainly one whom had the judgment not telegraph her liberal activist agenda through a series of speeches where she chose to promote trite, mundane victimization ideology over the conservative American ideal of self-actualization.
Interesting Polls for the 2010 Races
I'm still intrigued by various polls about the Congress, some that suggest that imply that Congressional Republicans are being considered more negatively than Democrats; it seems highly unlikely and unfair that the Republicans, out of control of the Congress and the Presidency, would be scapegoated by voters for the Democrats' unconscionable spending sprees with little to show for it in the general economy after 7 months. and persisting to pursue an agenda to fix what is not broken, i.e., the wholesale reformulation of a private health care system most Americans like and the unilateral passage of a cap-and-trade system, which would do little beyond raising the average American's energy bills. Both of these initiatives come at a time when the economy is struggling to find its sure footing. The reason why is political, of course; the Democrats are aware their hands will likely be weakened in the upcoming mid-term elections. Rasmussen and NPR show a narrow generic Republican Congressional preference, multiple polls showing the country under the Democrats is still running in the wrong direction, and Obama's approval numbers decreasing to his election percentage and net negative among independents; moreover, we are looking at potential GOP takeovers of the governor's mansions in New Jersey and Virginia.
I scanned the latest poll numbers at RealClearPolitics, and it looks like at least 6 Democratic/open Senate seats at serious risk: Delaware, Connecticut, California, Pennsylvania, New York and Illinois and Republicans have a fighting chance to hold vulnerable retiring Republican Senate seats in New Hampshire, Missouri, Florida, and Ohio.
I was listening to the "Face the Nation" podcast with Bob Schieffer when a closing segment and ensuing commentary on the black Harvard professor Henry Gate's recent arrest outside his home on disorderly conduct changes. (Obama at a press conference personally attacked Sgt. Crowley's arrest of Professor Gates as "stupid".) Dr. Dyson, a black Georgetown sociologist, and Kathleen Parker, a columnist, were discussing the incident, and there was no true debate. Both of them praised the President for his unusual admission that he had added fuel to the fire, although he only regretted his choice of words and the fact the situation had become a distraction from his legislative agenda. In short, he is attempting to recast this as an interpersonal issue between Crowley and Gates, when this was really a question of professionalism--Gates, whom was out of control and Crowley, whom acted firmly but patiently.
Well, let's look at the situation; he prefaced his own comments on Crowley by saying he didn't know all the facts and noted that "Skip" Gates was a personal friend. (Any reasonable President at that point would have recused himself from any substantive comment, other than reminding folks that Professor Gates is entitled to his constitutional rights and an abiding confidence in the justice system.) However, the President then went on to say (1) expressing anger at a policeman is "understandable" and (2) he explicitly raised the topic of historical racial profiling. Apologists for Obama will parse the legalistic language he used to express his comments (e.g., he did say he didn't know all the facts, he didn't specifically accuse Crowley of racist behavior, etc.), but the fact is using the term "stupidly" was judgmental, implying knowledge of all salient facts, and Obama's description of "racial profiling" was, in fact, the allegation Professor Gates made of Sgt. Crowley's behavior in checking out a suspected burglary of the Gates' home. Obama knew exactly what he was doing when he said what he said; he's a lawyer and "don't tell me words don't matter."
The impromptu late week Obama appearance at a news briefing, regretting his "poor choice of words" and letting people know he had offered both Crowley and Gates to have a beer at the White House. In fact, one needs to look at the facts that (1) Obama did not apologize to Sgt. Crowley for calling him stupid in arresting Professor Gates (ignoring the established facts that Professor Gates had voluntarily followed Sgt. Crowley out of the home, had verbally abused the cop (making comments about the cop's mother and accusing him for being a racist), and had ignored the cop's repeated warnings of arrest) and (2) Obama was setting himself as an intermediary between two parties, as if they each had legitimate grievance and he is an honest broker. Obama is basically saying that the kerfuffle is all about his using the world "stupid". Whereas Obama's language was a contributing factor to the crisis, he did not recant his general condemnation of the arrest, only the words he used to express his disagreement. His using the term "stupid" is not the issue with which I'm concerned; it's more his implicit judgment of Crowley's professionalism.
As for Professor Dyson's retelling of an incident he experienced being stopped on a Pennsylvania road at night by a white cop whom allegedly ridiculed Dyson's claim of having been a doctoral student and forced him to walk a line despite Dyson's not having had a drink that day, it is not comparable to Professor Gates' slanderous allegations against Crowley; Crowley came to the scene as the result of a 911 call by a female witness whom did not identify the race of Dr. Gates or his driver. What Dyson fails to understand is that associating Professor Gates' paranoid allegations and boorish behavior against a professional Sgt. Crowley with unjustifiable, inflammatory racial profiling charges will tend to undermine credibility of legitimate claims of racial profiling.
Kathleen Parker retold an instance when she initially testily responded to a policeman's pulling her over with a toddler in the car. She pointed about when the policeman hinted she might be arrested if she wasn't more cooperative, she immediately took the hint. But she didn't draw an explicit connection with the fact that Professor Gates failed to cease and desist after multiple warnings of an impending arrest by Sgt. Crowley.
If I was Sgt. Crowley, I would have refused being used by a President whom hasn't apologized for attacking his professionalism and is looking to score political points after putting his own foot in his mouth and trying to restore his image as the post-racial consensus builder.
Interestingly enough, I see that General Colin Powell, a prominent Republican defector supporting the election of Obama, has taken a different spin than Obama on the Gates dispute, saying on CNN:
I would say, the first teaching point is when you’re faced with an officer trying to do his job and get to the bottom of something. This is not the time to get in an argument with him. I was taught that as a child. You don’t argue with a police officer. In fact, in our schools today, in order to make sure that we don’t have things escalate out of control and lead to very unfortunate situations, we tell our kids, when you’re being asked something by a police officer, being detained by a police officer, cooperate. If you don’t like what happened, or if you think that you have been exposed to something that’s racist or prejudicial or something that’s wrong, then you make a complaint afterwards and you sue him.Exactly. These are wise words from a legitimate African-American leader, one whom I myself could have easily and enthusiastically have supported for President, from the Party of Lincoln, not some inexperienced politician whose idea of healing the racial divide is sharing a beer at the White House. (HINT: Mitt Romney, have you yet considered your running mate against Obama in 2012? Might I suggest another extraordinarily experienced, capable black leader, namely Condi Rice?)
Sotomayor is Approved By the Judiciary Committee
Given the lopsided composition of the Judiciary Committee (60% of the Senate is Democrat, but almost two-thirds of the committee (12-7)), the outcome was never in doubt with all 12 Democrats and one Republican) voting to approve or endorse the confirmation of Sotomayor. Senator Lindsey Graham (R-SC) decided to vote for recommending Sotomayor's confirmation, primarily on traditional grounds that a President deserves a right to his nominations, that elections have consequences. I'm more intrigued by the upcoming decision by Senator McCain, whom reminded Sean Hannity that he voted against Sotomayor's nomination to the appellate court and the fact that Barack Obama himself doesn't deserve special consideration, given his ideologically-driven votes against Justices Roberts and Alito. I suspect that McCain will vote for the Sotomayor confirmation for reasons similar to his closest Senate colleague, Lindsey Graham. McCain will be looking to reinforce his image as a bipartisan leader consistent with his role of fronting the Gang of 14 which defused a Senate crisis over the Democrats' improper usage of filibusters to bar floor votes on judicial nominees a few years back. Some speculation is that maybe another 5 or so Republicans, whom haven't announced, will vote for Sotomayor. (Not sure who, but I suspect retiring Republicans (e.g., from Ohio and New Hampshire) might vote in the affirmative.) However, if only 10 Republicans support Sotomayor's nomination, it would defeat the Democrats' goal of surpassing Judge Roberts' confirmation totals.
If I was a Democrat, I would be very worried about the growing number of Republicans using ideological reasons (like the Democrats have been using since the Bork nomination) to justify their decision. For example, Senator Kay Bailey Hutchinson, who is seeking to challenge Republican Governor Rick Perry, is using profound concerns over Sotomayor's record on the Second Amendment (i.e., gun rights).
I stand by my opposition to Sotomayor's confirmation; I would be willing to grant Obama wide discretion in naming a judicial replacement, but I don't like Sonia's fusion of identity politics with a stealth activist judicial philosophy. If we are going to have a liberal judge, I prefer one whom is forthcoming, not seeking to explain away her views to win confirmation. The infamous multiple "wise Latina" comments across speeches over the years cannot be explained away, I don't like the way she tried to bury evidence of unconstitutional violations of equal protection through reverse discrimination in the Ricci case, and I think she was disingenuous in her testimony before the Senate Judiciary Committee, trying to emulate (improbably) the responses of Roberts and Alito at points. The Democrats are confusing quantity (tenure) with quality of judicial experience and leadership. Obama could have made a better choice, certainly one whom had the judgment not telegraph her liberal activist agenda through a series of speeches where she chose to promote trite, mundane victimization ideology over the conservative American ideal of self-actualization.
Interesting Polls for the 2010 Races
I'm still intrigued by various polls about the Congress, some that suggest that imply that Congressional Republicans are being considered more negatively than Democrats; it seems highly unlikely and unfair that the Republicans, out of control of the Congress and the Presidency, would be scapegoated by voters for the Democrats' unconscionable spending sprees with little to show for it in the general economy after 7 months. and persisting to pursue an agenda to fix what is not broken, i.e., the wholesale reformulation of a private health care system most Americans like and the unilateral passage of a cap-and-trade system, which would do little beyond raising the average American's energy bills. Both of these initiatives come at a time when the economy is struggling to find its sure footing. The reason why is political, of course; the Democrats are aware their hands will likely be weakened in the upcoming mid-term elections. Rasmussen and NPR show a narrow generic Republican Congressional preference, multiple polls showing the country under the Democrats is still running in the wrong direction, and Obama's approval numbers decreasing to his election percentage and net negative among independents; moreover, we are looking at potential GOP takeovers of the governor's mansions in New Jersey and Virginia.
I scanned the latest poll numbers at RealClearPolitics, and it looks like at least 6 Democratic/open Senate seats at serious risk: Delaware, Connecticut, California, Pennsylvania, New York and Illinois and Republicans have a fighting chance to hold vulnerable retiring Republican Senate seats in New Hampshire, Missouri, Florida, and Ohio.
Sunday, July 26, 2009
Miscellany: 7/26/09
A Prescient Nephew
I once heard from a sister whose son had just opened a birthday card I had mailed him. She said that he had then come to her with some crumbled green paper clinched in his hand, saying, "Trash!" I was astounded by his obvious keen insight into American monetary policy; he was born to be an economist!
Obama was Acting Stupidly in Speaking Before Knowing All the Facts
Is Obama now extending his apology tour to domestic locations as well? He was elected as a post-racial African American, and now he's going to lecture us on historical racial profiling? Is it really wise for Obama, as President of the United States, to weigh in on a dispute, without firsthand knowledge, between a personal friend, Harvard Professor Henry Gates, and law enforcement?
I'm not sure I would have arrested Professor Gates under the same circumstances. I think so long as the citizen is accommodating the officer's lawful requests, a police officer should let the verbal nonsense go like water off a duck's back. At the same time I do have respect for law enforcement (in fact, I have a nephew whom is a police officer), and Professor Gates' behavior towards the officer was unconscionable and unworthy of any college professor or American citizen. The policeman was there for professional reasons, as the result of a reported home invasion; the police showing up was a service for the intended benefit of Professor Gates. I could easily envision a situation where if the police hadn't shown up, Professor Gates could have also interpreted it in racial terms.
Even an extraordinary admission today by Obama of "poorly chosen words" doesn't resolve the issue. [What is it with the constant liberal excuse of "poor choice of words", including Sotomayor and Obama? After all, didn't Don Imus in the Rutger's female basketball team kerfuffle a couple of years back engage in a "poor choice of words"? How about "poor choice of battles"?] Using the bully pulpit of the Presidency to personally insult a white cop, whom, in fact, has involved in training discouraging racial profiling, is irresponsible (or to try to triangulate the matter so as to suggest that the cop and Professor Gates were both at fault or equally responsible). Surely Obama, as a lawyer, knows that the First Amendment doesn't allow you a blank check to act disrespectfully in a courtroom; the police are similarly a critical element of our justice system and just as worthy of professional respect. Professor Gates, better than anyone, should have known his method of forcing his way into the house (i.e., the jammed front door) could have been considered suspicious (in fact, I don't understand, if he could get in through his rear door why he just didn't wait until the morning and called a home repairman). It's not like the cop came in on a broken-in house filled with white men and one black guy and decided to check only the id of the black guy.
Obama's public rebuke of Sgt. Crowley was irresponsible and unworthy of an American President. A President should back up our law enforcement people, not put his cronies above the law and seek to rationalize their disrespectful attitudes and behavior towards authority. If Professor Gate had a legitimate cause for complaint, there was a better, more professional manner to pursue the matter without personalizing the issue with the officer. What I don't quite understand is that Barack Obama's personality and discussion of racial issues are far less polarizing than Professor Gates'; why would he excuse rhetoric and behavior fundamentally inconsistent with his own character? And given his normally sure-footed approach in understanding the symbolic nature of things, Obama surely had to understand his words during the press conference would add gasoline to the fire. Why in the world, with everything else going on, 9.5% unemployment, a stimulus package with anemic results to date, and his own legislative agenda (in particular, cap-and-trade and the health care reform) floundering, did he need to reopen the debate on divisive racial issues? This is not change; it's not what got him elected.
Some Post Updates
I once heard from a sister whose son had just opened a birthday card I had mailed him. She said that he had then come to her with some crumbled green paper clinched in his hand, saying, "Trash!" I was astounded by his obvious keen insight into American monetary policy; he was born to be an economist!
Obama was Acting Stupidly in Speaking Before Knowing All the Facts
Is Obama now extending his apology tour to domestic locations as well? He was elected as a post-racial African American, and now he's going to lecture us on historical racial profiling? Is it really wise for Obama, as President of the United States, to weigh in on a dispute, without firsthand knowledge, between a personal friend, Harvard Professor Henry Gates, and law enforcement?
Now, I don't know, not having been there, and not seeing all the facts, what role race played in this. But, I think it's fair to say, number one, any of us would be pretty angry. Number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home...What I think we know separate and apart from this incident is that there's a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately.Professor Gates returned late from a trip from China, only to find his front door jammed. He entered his residence from the back door via key and tried to open his front door from the inside but couldn't. He and his driver then attempted to pry the door open from the front. A neighbor saw this activity, suspecting burglary and called it in to the police. Sgt. Crowley, a white officer, appeared in response, entered the home, and confronted Professor Gates in the home. Professor Gates was generally uncooperative, refusing to step outside and initially balking at providing identification. Professor Gates verbally abused and threatened the officer (by demanding his badge number), accusing him of racially-motivated intentions in the handling of the intention. Professor Gates followed Sgt. Crowley out the door as the officer left the residence, continuing to rant at him. Finally Sgt. Crowley arrested Professor Gates on charges of disorderly conduct. "Disorderly conduct" is often defined in broad terms: "it is not unusual for police to use it as an all-purpose charge when they feel a person is being disruptive or disrespectful." Dr. Gates has no one to blame by himself to blame for the arrest when he berated the officer outside his house; Sgt. Crowley, in fact, made multiple warnings in advance to the professor that his behavior constituted disorderly conduct.
I'm not sure I would have arrested Professor Gates under the same circumstances. I think so long as the citizen is accommodating the officer's lawful requests, a police officer should let the verbal nonsense go like water off a duck's back. At the same time I do have respect for law enforcement (in fact, I have a nephew whom is a police officer), and Professor Gates' behavior towards the officer was unconscionable and unworthy of any college professor or American citizen. The policeman was there for professional reasons, as the result of a reported home invasion; the police showing up was a service for the intended benefit of Professor Gates. I could easily envision a situation where if the police hadn't shown up, Professor Gates could have also interpreted it in racial terms.
Even an extraordinary admission today by Obama of "poorly chosen words" doesn't resolve the issue. [What is it with the constant liberal excuse of "poor choice of words", including Sotomayor and Obama? After all, didn't Don Imus in the Rutger's female basketball team kerfuffle a couple of years back engage in a "poor choice of words"? How about "poor choice of battles"?] Using the bully pulpit of the Presidency to personally insult a white cop, whom, in fact, has involved in training discouraging racial profiling, is irresponsible (or to try to triangulate the matter so as to suggest that the cop and Professor Gates were both at fault or equally responsible). Surely Obama, as a lawyer, knows that the First Amendment doesn't allow you a blank check to act disrespectfully in a courtroom; the police are similarly a critical element of our justice system and just as worthy of professional respect. Professor Gates, better than anyone, should have known his method of forcing his way into the house (i.e., the jammed front door) could have been considered suspicious (in fact, I don't understand, if he could get in through his rear door why he just didn't wait until the morning and called a home repairman). It's not like the cop came in on a broken-in house filled with white men and one black guy and decided to check only the id of the black guy.
Obama's public rebuke of Sgt. Crowley was irresponsible and unworthy of an American President. A President should back up our law enforcement people, not put his cronies above the law and seek to rationalize their disrespectful attitudes and behavior towards authority. If Professor Gate had a legitimate cause for complaint, there was a better, more professional manner to pursue the matter without personalizing the issue with the officer. What I don't quite understand is that Barack Obama's personality and discussion of racial issues are far less polarizing than Professor Gates'; why would he excuse rhetoric and behavior fundamentally inconsistent with his own character? And given his normally sure-footed approach in understanding the symbolic nature of things, Obama surely had to understand his words during the press conference would add gasoline to the fire. Why in the world, with everything else going on, 9.5% unemployment, a stimulus package with anemic results to date, and his own legislative agenda (in particular, cap-and-trade and the health care reform) floundering, did he need to reopen the debate on divisive racial issues? This is not change; it's not what got him elected.
Some Post Updates
- Illinos GOP Congressman Mark Kirk Running for the Senate. Last Monday Congressman Mark Kirk announced his candidacy for the Senate, running against corruption in Illinois politics (i.e., he had also called for the prosecution of former Republican Governor George Ryan, currently serving a sentence resulting from the bribes-for-licenses scandal dating back to when he served as the Illinois Secretary of State, and of course the Blagojevich scandal (and all the related Democratic machinse scandals, including a key Obama fundraising ally, Tony Rezko.)) Kirk will get some opposition from GOP conservatives, unhappy with, among other things, his recent support of the House cap-and-trade bill. Mark Kirk is also arguing that the state needs to have diverse political leadership, that a one-party state is not in the best interests of Illinois voters or the Illinois economy. (No announced Democratic candidates in the aftermath of Burris' declaration of non-candidacy next year, but the current state treasurer and Chris Kennedy, a son of Bobby Kennedy, are widely rumored.)
- Farewell ex-Alaska Governor Sarah Palin; hello, Governor Parnell. Sarah Palin stepped down today, abdicating her final 18 months in office to write a book, earn some lucrative lecture fees, plus presumably lead a center-right coalition. Although she claims to have been vindicated on ethics charges, the fact is that legislative inquiry into the Troopergate scandal did conclude that she abused her power in going after ex-brother-in-law Wooten, and a recent independent investigator found problems with how she was accepting PAC money to pay for related legal expenses. Most Americans do not believe the weak rationale for Palin quitting as governor. I think it had more to do with her plunging ratings and a growing coalition of Alaskan legislators willing to stand up to Palin on things like acceptance of federal stimulus money and against her selection for state attorney general. In fact, it points out some of the difficulties of running for governor effectively as an outsider. She had alienated many in the Republican state leadership in her unconventional ascent to the governor's mansion, and many state Democrats were incensed by the red meat politics she engaged in during last fall's campaign. To a certain degree, an 80% approval rating gives a state leader an enormous mandate. A mid-50's rating, a struggling state economy, and a reelection battle over a year away didn't seal a victory in next year's election. It's very possible that a Democrat could run against GOP corruption in Alaska just as Congressman Mark Kirk is running against Democratic corruption in Illinois. As for her future political ambitions, the most recent Washington Post survey should over 50% unfavorable ratings in the aftermath of the resignation decision. Most Americans (including myself) believe that she doesn't understand complex political issues. Part of the reason Palin retains high favorable ratings by Republicans is the fact the Democrats have viciously attacked her in personal terms. But even California Governor Arnold Schwarzenegger, whose own ratings have been badly beaten down by the ongoing budget problems, facing far more challenging substantive problems than Palin, said that he would never think of not filling out his term in office. I have no doubt that Palin is very popular with certain elements of the base whom will accept the resignation without batting an eyelash, but barring a major scandal or catastrophe directly linked to Obama's performance, it's very difficult to see how Palin can beat Obama. And I think most of today's media conservatives, including Rush Limbaugh and Ann Coulter, know it. They are going to look for someone whom can beat Obama in 2012, and given their support for Romney last year, I suspect that may happen. The last two polls showed, despite the highest favorable rating among potential contenders, Palin continues to run behind Romney and Huckabee, despite the political advantage of massive publicity. I also expect that McCain, by refusing to endorse Palin at the current time, is sending a message.
- Polling Updates. The President's approval rating continues to float down, with increasing discontent over the lack of recovery (ranging from 49% to 58% approval), and his policy objectives in cap-and-trade and health care reform are trailing his approval ratings. However, an interesting phenomenon is the fact that the Congressional Democrats are not losing as much support, while the Republicans are drawing support at far lower numbers. The Republicans need to do a lessons learned on this. From a logical perspective, it seems, if anything, the GOP should gain at the expense of clueless Democrats whom have done little more than mortgage their grandchildren's future to pay for ineffective, bloated spending. Perhaps it's the Obama Administration's attempt to paint the Republicans as not constructive dissenters is succeeding, and certainly statements by Rush Limbaugh and others saying they hope that Obama fails may have played a role in it. I think what's particularly important is for the Republicans to offer a positive-toned message and pragmatic proposals with smaller price tags--for example, a health care alternative which focuses on encouraging competition among private insurers across states, catastrophic health care insurance, improving medical cost information access, strengthening and/or establishing state assigned risk pools for preexisting conditions, employment-gap insurance subsidies, and means-based insurance vouchers.
Thursday, July 23, 2009
Health Care Ruminations
I've been watching the health care rush to judgment in fascination; I've written a few posts given my take on the subject. This point reflects on a number of miscellaneous points and other key articles I've recently read.
First, we need to understand that the Obama Administration has hyped a "crisis" for purely political reasons. There is no directly pressing reason why a deal has to be done by the August Congressional recess. [As I write, Senator Reid has just announced that there will be no vote on health care until after the August recess.] Surveys show that most Americans, who are healthy, are not being deprived of necessary medical care. Hospitals aren't closing, and health care insurance providers are not going bankrupt; most employed people and their families have health insurance; most employees leaving a job are eligible for COBRA benefits or have access to short-term medical insurance available on the open market. By law emergency care at hospitals must be provided, regardless of financial situation. Anyone classified within poverty guidelines participate in or is eligible for Medicaid, and SCHIP provides child health insurance up through the lower middle-class. About 85% of the country is covered by health insurance, with some 89% in recent surveys satisfied with their private sector provider. A large percentage of those without health insurance are without it for short durations (i.e., between jobs). Others voluntarily do without health insurance as a personal budget decision, deciding it's cheaper to handle medical costs on an as-needed basis.
There is a lot of misleading propaganda by proponents of nationalized health care comparing our health care system with those of other (nationalized) health care systems. The tacit assumption is that our health care system (or lack of participation in our health care system) is responsible for a relatively shorter average lifespan. In fact, some elements are due to personal lifestyle decisions, such as obesity and smoking. Others are culture-specific, e.g., disproportionately higher levels of homicides and auto fatalities. In fact, the prognosis of patients diagnosed with serious medical issues (e.g., certain cancers) is much better in the United States, where treatment tends to start faster and more effective but costly prescription drugs are readily available.
It is true that we have a growing unemployment problem, and there is a trend of increasing medical costs, largely because of an aging population, but we have too many constraints: a bloated budget and deficit and no money to pay for a government intervention into our health care system. Plus, we're already seeing a funding reserve problem with Medicare and escalating Medicaid expenses, both essentially subsidized by private insurance. We already know many physicians are reluctant to deal with Medicare and Medicaid patients, because reimbursements are delayed and don't cover costs, certain billable events are reimbursed better than others (e.g., operations versus primary care physician office visits), and the paperwork is excessive. And the Democratic fantasy to control costs is to CUT reimbursements across the board? If a Trojan horse public health plan eats away the private sector competition, who but the American taxpayer is going to end up subsidizing this rigged market? Do we really believe that the federal government will manage a new public health option more effectively than the decades that the government has already mismanaged Medicare and Medicaid?
The crisis one is a manufactured one, for purely political reasons. Obama has strong Democratic control of the Congress: there's only one reason he needs it passed as soon as possible: the longer a proposal is out there, it gives the opposition time to defeat it. That's what happened with HillaryCare version 1. If, on the other hand, a new entitlement is passed, the Republicans will have almost zero opportunity of uprooting it: what are you going to do if you have millions enrolled in a public plan? The Democrats are mortgaging their party's future with this public health plan; they are tied to it, for better or for worse. If costs explode out of control (as they have already in Massachusetts), are the Democrats going to let the plan collapse and face the subsequent voter wrath? The Democrats are in the horns of a dilemma, because they know any subsidies adding to the deficit will result in political repercussions. That's why Obama is getting some push back, particularly by the deficit hawk Blue Dog Democrats. They have already seen the President's approval rating drop, and public polls now show net American opposition to the Obama health care plan; it's virtually a rerun of what happened in 1993. They also worry that once the President's often repeated promise that citizens will be able to retain their current providers becomes empty as businesses drop their current providers as a cost-saving move, there will be palpable public anger, especially if the Congress and the President don't themselves enroll in the same health plan. (The GOP, if it's smart, should add a relevant amendment to the final health care bill exposing the hypocrisy of those proposing the public option.)
Fortunately, the American people have been there, done that. Obama lack of oversight over the Congress led to the premature passage of bloated stimulus and omnibudget bills, when we now already face the largest budget deficit in the history of this country. The President promised that unemployment would be capped at about 8%; that didn't happen (we are already of 9.5% and climbing). He insisted that we needed this money as soon as possible, no time for Congress delay or come up with a truly bipartisan plan; instead, less than 10% has been spent to date. We already see a chronic cost explosion in the Massachusetts pioneering state plan. With some price tags at a trillion dollars or more as an opening bill, does anyone seriously believe that Medicare and Medicaid, already known for poor cost and fraud management, lend credibility to a federal government effectively managing an entirely new entitlement program and holding the line at even that amount?
Second, what I think we need to explode the myth of government efficiency in administrative costs. Tom Bevan of RealClearPolitics points out that the basis of percentage (e.g., 3% for Medicare versus 12% for private health insurances) is RELATIVE to total health costs per insured. The per-patient administrative costs were HIGHER for Medicare (almost 25% on average during the first half of this decade). Why? Because the elderly have a higher benefit outlay. Bevan also notes that even the per-patient cost comparison is biased in favor of the government because the government does not pay state premium taxes, marketing costs, etc. Bevan concludes,"This confirms two things most Americans already know: 1) government is rarely, if ever, more efficient than the private sector, and 2) if something sounds too good to be true, it almost always is."
Third, government price controls, being featured in many of the proposed health care plans, don't work. Cortese and Korsmo of the internationally reputed Mayo Clinic explain in the Chicago Tribune that they lose hundreds of millions of dollars each year on price-controlled services for Medicare patients, which must be made up by other patients or their insurers. Yet more than half of the financing for the proposals on Capitol Hill are achieved by additional government reimbursement cuts. The authors essentially argue that they are getting penalized for their quality care because they won't drive up volumes of medically unnecessary piecemeal billable events (e.g., more frequent office visits, lab tests, etc.) to maximize government reimbursements. The remedy is to reward value or quality, e.g., fewer non-preventive office visits, recommendation of generics as alternative prescription medicines where applicable, no post-operative complications, no defensive medicine, etc. The development and validation of said metrics is beyond the scope of this post, but I think we should have incentives like bonus tax credits to providers for low aggregate reimbursements, acceptable and improved health status of patients at the end of a specified time period and future time periods, and assessments of professional standard health provider performance.
Fourth, we need to focus on the real issues and constraints. Obviously a limited federal budget in the middle of a severe recession points out the need to leverage our tax dollars more effectively. Another key constraint is that we don't have enough primary care physicians and nurses; it's not clear we can accommodate millions of new patients without a clear, feasible plan of where those extra resources are coming from. In part, there is a pipeline problem, but there is also need for comprehensive medical malpractice reform, which can make a difference. One example is Texas; which found 85% of malpractice suits were being dismissed (i.e., frivolous lawsuits), the number of malpractice insurers had dwindled to a handful, and rapidly rising premiums were leading primary care doctors to abandon their practices. Texas' reforms led to multiply the number of insurers in the state, double-digit percentage decreases in premiums, and an increase in the number of doctors practicing in the state. We need to focus on the pricing problems for small business operators and individuals/families, whom are charged disproportionately higher prices for insurance or medical services because they lack pricing power. Catastrophic medical expenses are the leading cause of personal bankruptcy; small businesses are unable to find competitively priced insurance to compete with larger companies for employees. One possible bridge, which notably Clinton failed to accept when offered back in 1993, was catastrophic insurance. We could also look at some cost-plus caps on individual ad hoc medical charges, a more transparent, timely, computer-accessible pricing system, and deregulation of the marketing of health plans across state lines. Finally, we need a robust state assigned risk pool system for handling people or families with hard-to-insure, preexisting conditions. (Some states don't have them; others aren't open to new enrollees.)
Fifth, we must reject this concept of a government-created "insurance exchange", which is nothing less than a Trojan horse for a single-payer system. Anyone who thinks an exchange devised by, participated in, guaranteed and administered by the federal government is a legitimate, fair, market-based competition is delusional. We've already seen this play out in a different market, where the GSE's Fannie Mae and Freddie Mac (with cheap US Treasury money behind them) grew from around 6% of the home mortgage market in the 1960's to roughly half of it by the financial tsunami last September. Does anyone doubt that the government, by allowing the GSE's with implicit government backing, exposed the government and the American taxpayer to a disproportionate share of risk? Does anyone seriously believe that a public option would exist without unfair subsidies and implicit guarantee against failure by the government? Does anyone doubt that in a fair market, the exchange would soon be saddled with higher-costing health risks (by definition it would have to accept all comers)? The prospect of cut-rate premiums for higher-risk individuals would be too irresistible; it would be like homeowners trying to buy flood insurance as a hurricane approaches. And if you would have private players outside the exchange, they would be able to undercut the premiums significantly, no longer subsidizing higher-risk people. Policymakers seem to intuitively understand that; IBD pointed out a provision in the current House bill which would effectively bar competitors outside the exchange by 2013. Some Republican lawmakers (e.g., Rep. Ryan) believe that only 5 or 6 insurers would be strong enough to compete in this rigged market.
Sixth, don't believe the spin over financing of the public plan. Pay as you go? Seriously? The same Democrats whom found just $17B in deficit spending cuts in battling an EXISTING trillion dollar deficit are going to find a trillion-plus to fund this mandate? The Democrats are already floating some trial balloons. For example, Obama ran a distorted campaign, accusing McCain of wanting to tax employer-supplied health benefits. (Actually, McCain wanted to give every one, including people buying health insurance on their own with after-tax dollars, a $15K tax credit where most health insurance premiums are below that. The only ones adversely affected would be gold-plated plans costing more than that, probably negotiated by unions which support the Democrats. But even these would have only been taxable for the amount over $15K.) There are also hints of taxing small businesses 8% if they don't offer health insurance. This seems indefensible on its face and counterintuitive to penalize small businesses depending on how they structure compensation. Health insurance originated as a business benefit as a way to work around price-wage controls during WWII. The last thing we need to do given a severe recession is to increase compensation-related costs on small businesses, which provides an advantage to bigger competitors (whom have pricing power to negotiate lower per-employee costs); this will only serve to dampen hiring we need from a critical job creating sector of the economy. Still another rumor is Obama punishing economic success even more, explicitly (e.g., a surtax on the top 5%) or through a favorite back door tactic by Obama, which is to scale back deductions for wealthier Americans. The only real opportunity we have of balancing these budgets is to grow our economy, but Obama's Robin Hood tax policies on investment and wages, not to mention the ideologically-driven cap-and-trade policy, are dampening, not stoking the fire under the economy in recovery.
Finally, fellow conservatives need to compromise. There needs to be a mandate to spread catastrophic health risks across all Americans. We also need to acknowledge that there are rules in the private sector (e.g., not all doctors accept all private insurance plans, and there are rules and regulations about when and where you can go to a medical facility), not unlike rationing rules at a government level; for instance, insurers often will not consider funding experimental procedures. Moreover, insurers have a tendency to chase good health risks and will ignore those with preexisting or catastrophic health problems--which could only aggravate health conditions and the related higher costs, eventually passed on to other patients. We do see an escalating trend of expenses that hospitals are having to pass on to the private sector insurers. Existing state risk pools are not adequately established and funded.
First, we need to understand that the Obama Administration has hyped a "crisis" for purely political reasons. There is no directly pressing reason why a deal has to be done by the August Congressional recess. [As I write, Senator Reid has just announced that there will be no vote on health care until after the August recess.] Surveys show that most Americans, who are healthy, are not being deprived of necessary medical care. Hospitals aren't closing, and health care insurance providers are not going bankrupt; most employed people and their families have health insurance; most employees leaving a job are eligible for COBRA benefits or have access to short-term medical insurance available on the open market. By law emergency care at hospitals must be provided, regardless of financial situation. Anyone classified within poverty guidelines participate in or is eligible for Medicaid, and SCHIP provides child health insurance up through the lower middle-class. About 85% of the country is covered by health insurance, with some 89% in recent surveys satisfied with their private sector provider. A large percentage of those without health insurance are without it for short durations (i.e., between jobs). Others voluntarily do without health insurance as a personal budget decision, deciding it's cheaper to handle medical costs on an as-needed basis.
There is a lot of misleading propaganda by proponents of nationalized health care comparing our health care system with those of other (nationalized) health care systems. The tacit assumption is that our health care system (or lack of participation in our health care system) is responsible for a relatively shorter average lifespan. In fact, some elements are due to personal lifestyle decisions, such as obesity and smoking. Others are culture-specific, e.g., disproportionately higher levels of homicides and auto fatalities. In fact, the prognosis of patients diagnosed with serious medical issues (e.g., certain cancers) is much better in the United States, where treatment tends to start faster and more effective but costly prescription drugs are readily available.
It is true that we have a growing unemployment problem, and there is a trend of increasing medical costs, largely because of an aging population, but we have too many constraints: a bloated budget and deficit and no money to pay for a government intervention into our health care system. Plus, we're already seeing a funding reserve problem with Medicare and escalating Medicaid expenses, both essentially subsidized by private insurance. We already know many physicians are reluctant to deal with Medicare and Medicaid patients, because reimbursements are delayed and don't cover costs, certain billable events are reimbursed better than others (e.g., operations versus primary care physician office visits), and the paperwork is excessive. And the Democratic fantasy to control costs is to CUT reimbursements across the board? If a Trojan horse public health plan eats away the private sector competition, who but the American taxpayer is going to end up subsidizing this rigged market? Do we really believe that the federal government will manage a new public health option more effectively than the decades that the government has already mismanaged Medicare and Medicaid?
The crisis one is a manufactured one, for purely political reasons. Obama has strong Democratic control of the Congress: there's only one reason he needs it passed as soon as possible: the longer a proposal is out there, it gives the opposition time to defeat it. That's what happened with HillaryCare version 1. If, on the other hand, a new entitlement is passed, the Republicans will have almost zero opportunity of uprooting it: what are you going to do if you have millions enrolled in a public plan? The Democrats are mortgaging their party's future with this public health plan; they are tied to it, for better or for worse. If costs explode out of control (as they have already in Massachusetts), are the Democrats going to let the plan collapse and face the subsequent voter wrath? The Democrats are in the horns of a dilemma, because they know any subsidies adding to the deficit will result in political repercussions. That's why Obama is getting some push back, particularly by the deficit hawk Blue Dog Democrats. They have already seen the President's approval rating drop, and public polls now show net American opposition to the Obama health care plan; it's virtually a rerun of what happened in 1993. They also worry that once the President's often repeated promise that citizens will be able to retain their current providers becomes empty as businesses drop their current providers as a cost-saving move, there will be palpable public anger, especially if the Congress and the President don't themselves enroll in the same health plan. (The GOP, if it's smart, should add a relevant amendment to the final health care bill exposing the hypocrisy of those proposing the public option.)
Fortunately, the American people have been there, done that. Obama lack of oversight over the Congress led to the premature passage of bloated stimulus and omnibudget bills, when we now already face the largest budget deficit in the history of this country. The President promised that unemployment would be capped at about 8%; that didn't happen (we are already of 9.5% and climbing). He insisted that we needed this money as soon as possible, no time for Congress delay or come up with a truly bipartisan plan; instead, less than 10% has been spent to date. We already see a chronic cost explosion in the Massachusetts pioneering state plan. With some price tags at a trillion dollars or more as an opening bill, does anyone seriously believe that Medicare and Medicaid, already known for poor cost and fraud management, lend credibility to a federal government effectively managing an entirely new entitlement program and holding the line at even that amount?
Second, what I think we need to explode the myth of government efficiency in administrative costs. Tom Bevan of RealClearPolitics points out that the basis of percentage (e.g., 3% for Medicare versus 12% for private health insurances) is RELATIVE to total health costs per insured. The per-patient administrative costs were HIGHER for Medicare (almost 25% on average during the first half of this decade). Why? Because the elderly have a higher benefit outlay. Bevan also notes that even the per-patient cost comparison is biased in favor of the government because the government does not pay state premium taxes, marketing costs, etc. Bevan concludes,"This confirms two things most Americans already know: 1) government is rarely, if ever, more efficient than the private sector, and 2) if something sounds too good to be true, it almost always is."
Third, government price controls, being featured in many of the proposed health care plans, don't work. Cortese and Korsmo of the internationally reputed Mayo Clinic explain in the Chicago Tribune that they lose hundreds of millions of dollars each year on price-controlled services for Medicare patients, which must be made up by other patients or their insurers. Yet more than half of the financing for the proposals on Capitol Hill are achieved by additional government reimbursement cuts. The authors essentially argue that they are getting penalized for their quality care because they won't drive up volumes of medically unnecessary piecemeal billable events (e.g., more frequent office visits, lab tests, etc.) to maximize government reimbursements. The remedy is to reward value or quality, e.g., fewer non-preventive office visits, recommendation of generics as alternative prescription medicines where applicable, no post-operative complications, no defensive medicine, etc. The development and validation of said metrics is beyond the scope of this post, but I think we should have incentives like bonus tax credits to providers for low aggregate reimbursements, acceptable and improved health status of patients at the end of a specified time period and future time periods, and assessments of professional standard health provider performance.
Fourth, we need to focus on the real issues and constraints. Obviously a limited federal budget in the middle of a severe recession points out the need to leverage our tax dollars more effectively. Another key constraint is that we don't have enough primary care physicians and nurses; it's not clear we can accommodate millions of new patients without a clear, feasible plan of where those extra resources are coming from. In part, there is a pipeline problem, but there is also need for comprehensive medical malpractice reform, which can make a difference. One example is Texas; which found 85% of malpractice suits were being dismissed (i.e., frivolous lawsuits), the number of malpractice insurers had dwindled to a handful, and rapidly rising premiums were leading primary care doctors to abandon their practices. Texas' reforms led to multiply the number of insurers in the state, double-digit percentage decreases in premiums, and an increase in the number of doctors practicing in the state. We need to focus on the pricing problems for small business operators and individuals/families, whom are charged disproportionately higher prices for insurance or medical services because they lack pricing power. Catastrophic medical expenses are the leading cause of personal bankruptcy; small businesses are unable to find competitively priced insurance to compete with larger companies for employees. One possible bridge, which notably Clinton failed to accept when offered back in 1993, was catastrophic insurance. We could also look at some cost-plus caps on individual ad hoc medical charges, a more transparent, timely, computer-accessible pricing system, and deregulation of the marketing of health plans across state lines. Finally, we need a robust state assigned risk pool system for handling people or families with hard-to-insure, preexisting conditions. (Some states don't have them; others aren't open to new enrollees.)
Fifth, we must reject this concept of a government-created "insurance exchange", which is nothing less than a Trojan horse for a single-payer system. Anyone who thinks an exchange devised by, participated in, guaranteed and administered by the federal government is a legitimate, fair, market-based competition is delusional. We've already seen this play out in a different market, where the GSE's Fannie Mae and Freddie Mac (with cheap US Treasury money behind them) grew from around 6% of the home mortgage market in the 1960's to roughly half of it by the financial tsunami last September. Does anyone doubt that the government, by allowing the GSE's with implicit government backing, exposed the government and the American taxpayer to a disproportionate share of risk? Does anyone seriously believe that a public option would exist without unfair subsidies and implicit guarantee against failure by the government? Does anyone doubt that in a fair market, the exchange would soon be saddled with higher-costing health risks (by definition it would have to accept all comers)? The prospect of cut-rate premiums for higher-risk individuals would be too irresistible; it would be like homeowners trying to buy flood insurance as a hurricane approaches. And if you would have private players outside the exchange, they would be able to undercut the premiums significantly, no longer subsidizing higher-risk people. Policymakers seem to intuitively understand that; IBD pointed out a provision in the current House bill which would effectively bar competitors outside the exchange by 2013. Some Republican lawmakers (e.g., Rep. Ryan) believe that only 5 or 6 insurers would be strong enough to compete in this rigged market.
Sixth, don't believe the spin over financing of the public plan. Pay as you go? Seriously? The same Democrats whom found just $17B in deficit spending cuts in battling an EXISTING trillion dollar deficit are going to find a trillion-plus to fund this mandate? The Democrats are already floating some trial balloons. For example, Obama ran a distorted campaign, accusing McCain of wanting to tax employer-supplied health benefits. (Actually, McCain wanted to give every one, including people buying health insurance on their own with after-tax dollars, a $15K tax credit where most health insurance premiums are below that. The only ones adversely affected would be gold-plated plans costing more than that, probably negotiated by unions which support the Democrats. But even these would have only been taxable for the amount over $15K.) There are also hints of taxing small businesses 8% if they don't offer health insurance. This seems indefensible on its face and counterintuitive to penalize small businesses depending on how they structure compensation. Health insurance originated as a business benefit as a way to work around price-wage controls during WWII. The last thing we need to do given a severe recession is to increase compensation-related costs on small businesses, which provides an advantage to bigger competitors (whom have pricing power to negotiate lower per-employee costs); this will only serve to dampen hiring we need from a critical job creating sector of the economy. Still another rumor is Obama punishing economic success even more, explicitly (e.g., a surtax on the top 5%) or through a favorite back door tactic by Obama, which is to scale back deductions for wealthier Americans. The only real opportunity we have of balancing these budgets is to grow our economy, but Obama's Robin Hood tax policies on investment and wages, not to mention the ideologically-driven cap-and-trade policy, are dampening, not stoking the fire under the economy in recovery.
Finally, fellow conservatives need to compromise. There needs to be a mandate to spread catastrophic health risks across all Americans. We also need to acknowledge that there are rules in the private sector (e.g., not all doctors accept all private insurance plans, and there are rules and regulations about when and where you can go to a medical facility), not unlike rationing rules at a government level; for instance, insurers often will not consider funding experimental procedures. Moreover, insurers have a tendency to chase good health risks and will ignore those with preexisting or catastrophic health problems--which could only aggravate health conditions and the related higher costs, eventually passed on to other patients. We do see an escalating trend of expenses that hospitals are having to pass on to the private sector insurers. Existing state risk pools are not adequately established and funded.
Monday, July 20, 2009
The Sotomayor Hearings: A Stealth Activist Judge
There have been times I've been so annoyed at Sotomayor's evasiveness and unresponsiveness, engaging in disingenuous, deliberately obfuscatory responses in such tedious arcane legalese, that I've found myself snapping back at her via my television set.
Status of the Nomination
As I write, it seems clear that Sotomayor is going to sail through; the Democrats at this point want what they consider a moral victory of attracting enough GOP votes to top Chief Justice Roberts' confirmation numbers (in the upper-70's). I don't think that's a fair criterion for a couple of reasons. First, the Democrats have more senators than the GOP had under Clinton or Bush. Second, it would seem more reasonable to set as a target the kinds of vote numbers received by the Clinton appointees to the high bench, i.e., Ruth Bader Ginsburg and Stephen Breyer (each receiving less than 10 votes against them and a clear majority of GOP votes). Senator Lindsey Graham (R-SC) made it clear from his opening statement this week that he would vote for her, barring a meltdown during testimony (which, of course, didn't happened), based on the traditional criteria that a President is entitled to his qualified choice. So far 3 GOP senators (Lugar, Snowe, and Martinez, the party's only Latino senator) have announced for her; the former two also voted her onto the Court of Appeals. So far Sotomayor has lost one of her original Court of Appeals supporters (Bennett (R-UT)). The Senate Minority Leader (McConnell) has come out against. I gave an earlier prediction which I think will hold. I don't think it's likely she improve her vote number significantly over her prior Court of Appeals confirmation vote, adjusted for seat changes, given her judicial record on affirmation action (particularly the recently reversed Ricci decision), her reversals, questions of temperament and her controversial speeches.
GOP Wary about a Latino Backlash for Refusing to Endorse Sotomayor?
A number of mostly liberal pundits suggest that a GOP vote against Sotomayor would be political suicide. I don't think that is legitimate. For one thing, no matter the Democrats try to hype Sonia Sotomayor's life story, it pales against immigrant Miguel Estrada's own nomination to the Court of Appeals, and the Democrats stonewalled a floor vote--which is far more damning than the Republicans' treating Judge Sotomayor with respect but voting against her in fewer numbers than the Democrats' nearly unanimous vote against Justice Alito, despite his longer experience on the Court of Appeals and his unopposed confirmation for the appellate position. The fact is that Latinos voted in significant numbers for George Bush after the GOP's mixed confirmation vote for Sotomayor 11 years ago. Unlike the case for Bush's appointees, there was been no serious talk about blocking the Sotomayor vote. In part, that's because retiring Justice Souter's post-confirmation migration to judicial activism is simply a quid pro quo and doesn't materially affect the balance of the court.
[While much has been made of Judge Sotomayor's being the first Latino nominee to the Supreme Court, at least 3 prominent Latinos were passed over years earlier, largely because of the Democratic resistance. José Cabranes, who mentored Sonia Sotomayor during her law school days at Yale, was considered as a candidate for the seat filled by Stephen Breyer; rumor has it that Judge Cabranes' more conservative approach to affirmative action issues was an issue. During the Bush Administration, the Democrats constantly fretted Alberto Gonzales, a former Texas Supreme Court justice and 1999 Latino Lawyer of the Year by the Hispanic National Bar Association, was being groomed for a Supreme Court appointment, and their opposition to Miguel Estrada being named to the appellate court was in part fueled by a similar concern.]
Is a "Wise Latina" a Better or Equally Capable Judge?
I never felt Judge Sotomayor was a racist on the infamous "wise Latina" quote, and I've made some relevant comments in Monday's post-session miscellany which I won't rewrite here (not to mention yesterday's post describing the origins of the quote and a discussion of the Ricci case). [I have felt her self-congratulatory reference to "wise Latina" in public speeches was oxymoronic and rather foolish for any judge to make whom has higher ambitions. It also sent the wrong message to young people considering the legal profession; it implies that sound judicial judgment relies not on legal scholarship and courtroom skills but on intrinsic personal characteristics beyond general intelligence.]
I had pointed out a quote from Minnesota Supreme Court Justice Esther Tomljanovich whom disliked fellow Justice Mary Jeanne Coyne's "wise old woman/wise old man" saying, declaring that if good judging was gender-neutral, "a lot of us wasted our time trying to assure the appointment of women to the bench." This seems unintelligible unless one starts with the unchallenged politically correct dogmatic assumption that diversity (the liberal codeword for female and minority affirmative advancement) is self-validating, i.e., the male-dominated judiciary is inherently defective and inferior. [I don't accept that attitude; I do think we potentially miss out on extraordinary individual leadership when we apply filters which arbitrarily exclude talent, but I don't make any assumptions on the distribution of that talent. Only a tiny percentage of lawyers ever make it onto the US Supreme Court, and there is a deep supply of highly qualified men. It's not immediately obvious, other than for dogmatic reasons, why gender makes a difference. In fact, former Justice O'Connor and Justice Ginsburg voted differently on multiple cases (e.g., Bush v Gore). It seems judicial philosophy is a better predictor of a decision outcome than gender.]
I disagree with Justice Tomljanovich that there is no value to diversity if gender has no meaningful impact on judicial decisions. It not just an issue of fact but appearance, and certainly a more representative court can be inspirational leaders and role models for a wider group of young people. In fact, there is a lot to be said about a classic Horatio Alger story of how Latina of modest means from the projects in New York City managed to climb her way to the top of the profession, a coveted nomination to the US Supreme Court.
Sotomayor's Hyped Qualifications
But it's hard to accept, at face value, the Democrats' propaganda claims over Judge Sotomayor's qualifications. It is interesting to note how liberal Jeffery Rosen of The New Republic was savaged for his pre-nomination article "The Case Against Sonia Sotomayor". This was not a conservative hatchet job; Rosen was not arguing that Sotomayor was unqualified or incompetent. The picture is more of a competent judge whom fully understands the facts, but is not a leading, influential, articulate exponent of her liberal judicial philosophy. As I pointed out in a previous post, Richard Posner of the Chicago Circuit has staggering intellectual accomplishments which dwarf Judge Sotomayor's output, including his 30 books and over 300 articles, blogs, and being a journal editor. [Of course, he is 70 years old, which no President would touch in terms of wanting a long-term influence on the Supreme Court.] She has been reversed on a significant percentage of opinions, even being rebuked on her cursory decision on the Ricci case by a fellow Clinton appointee and mentor, José Cabranes, whom has spent 30 years (vs. Sotomayor's 17) as both a district and appellate judge.
[Some will also point out up to 75% or so of Court of Appeals cases taken up by the Supreme Court are reversed, including some of Alito's appellete opinions. To a certain extent that's to be expected on a Supreme Court that's divided on lines of judicial philosophy with one or 2 swing votes. What disturbs me more is the way Sotomayor tried to bury the Ricci decision, so the argued constitutional issues would avoid scrutiny of the full circuit and the Supreme Court. I suspect this was not an outlier but indicative of her judicial philosophy and her approach. It should also be noted that Judge Cabranes is fully supportive of his former protégé's nomination and dismayed that his disagreement on her Ricci decision is being used as an argument against her confirmation.]
The Kerfuffle Over Sotomayor's Temperament
[Some will also point out up to 75% or so of Court of Appeals cases taken up by the Supreme Court are reversed, including some of Alito's appellete opinions. To a certain extent that's to be expected on a Supreme Court that's divided on lines of judicial philosophy with one or 2 swing votes. What disturbs me more is the way Sotomayor tried to bury the Ricci decision, so the argued constitutional issues would avoid scrutiny of the full circuit and the Supreme Court. I suspect this was not an outlier but indicative of her judicial philosophy and her approach. It should also be noted that Judge Cabranes is fully supportive of his former protégé's nomination and dismayed that his disagreement on her Ricci decision is being used as an argument against her confirmation.]
The Kerfuffle Over Sotomayor's Temperament
What has particularly annoyed me is the politically correct attacks in response to the temperament issues, explored by Senator Graham. The usual political correctness police are out, claiming that Sotomayor's boorish behavior of constantly interrupting lawyers and treating them disrespectfully is hypocritically praised as tough lawyering among men. This is little more than a state of denial. [Sotomayor simply responds that she's a tough questioner. But the record shows the other judges on the court also ask tough questions without getting similar feedback. Apparently she thinks belittling lawyers from the bench, interrupting them, and snapping or laughing at them, etc. reflects well on her profession.] The issue is not tough questioning; rather, it's a question of legal etiquette, applicable equally to men and women. The alleged behavior, bordering on abusive, was not simply a case of malcontent lawyers appearing before the court or complaint from her ideological opponents; it also came from other liberals and personnel on the circuit and sometimes rebukes from her own colleagues on the court.
As Rosen quotes in a follow-up piece from the Almanac of the Federal Judiciary,
As Rosen quotes in a follow-up piece from the Almanac of the Federal Judiciary,
Sotomayor can be tough on lawyers, according to those interviewed. "She is a terror on the bench." "She is very outspoken." "She can be difficult." "She is temperamental and excitable. She seems angry." "She is overly aggressive--not very judicial. She does not have a very good temperament." "She abuses lawyers." She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "She is nasty to lawyers. She doesn't understand their role in the system--as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like.
According to Ben Smith from Politico:
The Second Circuit recently provided audio recordings of oral arguments — some of which have never been published — from four of Sotomayor’s better-known cases, and snippets of a fifth, in response to a request from POLITICO, and the exchanges themselves – far better than any written impressions – offer a glimpse of her style as an appellate judge, and the Supreme Court Justice she’s likely to be.
The tapes reveal a blunt judge who talks as much or more than her (often equally combative) colleagues; who makes no bones about interrupting or even, in one case, laughing at lawyers; and who goes to no great length to disguise her quarrel with an argument or her point of view.
Sotomayor Rope-a-Dope Confirmation Hearings Strategy
To any reader not familiar with the "rope-a-dope" strategy, it stems from a mid-70's fight in Africa between George Foreman, a devastating, heavily muscled, unbeaten heavyweight boxing champion, and legendary challenger and former champion Muhammad Ali. Foreman had demolished the only two fighters (Frazier and Norton) whom had beaten Ali at the time. Ali knew better than to fight Foreman on his terms and assumed an extremely defensive stance with clenched forearms, often resting or bouncing off the ring ropes, giving George Foreman few openings to hit him. The idea was for Foreman to punch himself tired fruitlessly trying to penetrate Ali's defense. Ali's strategy worked, finally knocking out an exhausted Foreman in the middle rounds.
I am not the only one noting Sotomayor's emulation of a rope-a-dope strategy. There were a few ways I saw this happening. First, she gave highly nuanced responses to questions heavily laden with legalistic jargon. I thought that was a deliberate strategy on her part to run out the clock and redefine the senators' questions. She was more than willing to discuss arcane distinctions and legal technicalities, which is in her comfort zone and avoid larger-picture issues explicitly discussing judicial philosophy. I felt it that she was doing it to create an impression of legal expertise.
Second, Sotomayor engaged in a lot of political spin and talking points, with predictable defensive responses. For example, liberals (including Sotomayor during the hearings at a certain point) have responded in a disingenuous knee-jerk fashion to Sotomayor's "wise Latina" comments by referencing out of context Alito's reference to his Italian-American heritage and relevant ethnic slurs. Alito's comment arose out of a question from Senator Coburn regarding the judge's personal background, not his judicial philosophy, and Alito specifically noted in the same discussion, "And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result." In contrast, Sotomayor has belonged to or spoken in front of organizations with vested interests in an expansive affirmative action agenda, and what she did in Ricci confirms it. What's particularly interesting to see how Sotomayor deliberately evoked Alito in terms of repeatedly sticking to a talking point of "applying the law, not making it." She also made reference to former Justice O'Connor's hope that the needs for affirmative action policies will melt away over the coming 25 years.
She continually characterized her judicial philosophy as strictly relying on precedent and existing legal standards in a way that suggests that any lower-court decisions should be unanimous. This is clearly misleading; otherwise, the Supreme Court would never have agreed to hear Ricci. It doesn't explain why Sotomayor and others failed to even acknowledge the constitutional issues of equal protection raised by the plaintiff, despite the fact that Title VII cannot be construed in a way as to establish or promote racial quotas of any kind, which materially violates the Constitution. Title VII is a LAW, not part of the Constitution. Equal protection is guaranteed by the Constitution.
I have no doubt that Sotomayor could find some post hoc rationalization for a liberal-desired outcome "applying the law", i.e., finding relevant precedents among a potpourri of mixed precedents. At one point during the hearing, she discusses the issue at the heart of Ricci as being all about an allegedly defective firefighter's exam (of course, there is no evidence of any substantive issue; the only issue was the racial/ethnic distribution of results).
She referred to the "wise Latina" comment as a "poor choice of words" (even though she repeated this line in multiple speeches over the years and she said it AFTER saying she disagreed with Justice O'Connor's much-cited quote that a "wise old man and wise old woman will reach the same conclusion in deciding cases").
Finally, Sotomayor gave fairly evasive responses to constitutional issues which theoretically could come up before the Supreme Court, and she didn't want to deal with hypotheticals. I thought one of the telling points was Senator Coburn's (R-OK) clear frustration with Sotomayor's discussing the vagaries of state or federal law in terms of the implications of advancement of prenatal technology on Roe v Wade, which she claims is a (not enumerated) woman's constitutional right, but she finds all sorts of nuances to an individual's right to defend his family (the Second Amendment), which is an enumerated right.
Final Thoughts
I think the Republicans set the right tone, with Senator Sessions and Graham's question sessions particularly effective. Sotomayor was clearly thrown off-stride by Graham's staccato questioning style and gave a weak, defensive response to Graham's assertion that the negative comments to Sotomayor in the Almanac "stuck out like a sort thumb". Unlike the Democrats who resorted to gross distortions of records on judicial appointments (e.g., the Bush difficulties in nominating Pickering, Wallace, and Southwick for the same appellate position for the fifth circuit) or questioning Estrada on his alleged agenda in the hiring of SCOTUS (Supreme Court of the US) law clerks, the Republicans paid tribute to Sotomayor's Horatio Alger life story and stuck to her judicial work history and speeches.
Legal blogger Jonathan Turley recently wrote relevant comments in USA Today:
Second, Sotomayor engaged in a lot of political spin and talking points, with predictable defensive responses. For example, liberals (including Sotomayor during the hearings at a certain point) have responded in a disingenuous knee-jerk fashion to Sotomayor's "wise Latina" comments by referencing out of context Alito's reference to his Italian-American heritage and relevant ethnic slurs. Alito's comment arose out of a question from Senator Coburn regarding the judge's personal background, not his judicial philosophy, and Alito specifically noted in the same discussion, "And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result." In contrast, Sotomayor has belonged to or spoken in front of organizations with vested interests in an expansive affirmative action agenda, and what she did in Ricci confirms it. What's particularly interesting to see how Sotomayor deliberately evoked Alito in terms of repeatedly sticking to a talking point of "applying the law, not making it." She also made reference to former Justice O'Connor's hope that the needs for affirmative action policies will melt away over the coming 25 years.
She continually characterized her judicial philosophy as strictly relying on precedent and existing legal standards in a way that suggests that any lower-court decisions should be unanimous. This is clearly misleading; otherwise, the Supreme Court would never have agreed to hear Ricci. It doesn't explain why Sotomayor and others failed to even acknowledge the constitutional issues of equal protection raised by the plaintiff, despite the fact that Title VII cannot be construed in a way as to establish or promote racial quotas of any kind, which materially violates the Constitution. Title VII is a LAW, not part of the Constitution. Equal protection is guaranteed by the Constitution.
I have no doubt that Sotomayor could find some post hoc rationalization for a liberal-desired outcome "applying the law", i.e., finding relevant precedents among a potpourri of mixed precedents. At one point during the hearing, she discusses the issue at the heart of Ricci as being all about an allegedly defective firefighter's exam (of course, there is no evidence of any substantive issue; the only issue was the racial/ethnic distribution of results).
She referred to the "wise Latina" comment as a "poor choice of words" (even though she repeated this line in multiple speeches over the years and she said it AFTER saying she disagreed with Justice O'Connor's much-cited quote that a "wise old man and wise old woman will reach the same conclusion in deciding cases").
Finally, Sotomayor gave fairly evasive responses to constitutional issues which theoretically could come up before the Supreme Court, and she didn't want to deal with hypotheticals. I thought one of the telling points was Senator Coburn's (R-OK) clear frustration with Sotomayor's discussing the vagaries of state or federal law in terms of the implications of advancement of prenatal technology on Roe v Wade, which she claims is a (not enumerated) woman's constitutional right, but she finds all sorts of nuances to an individual's right to defend his family (the Second Amendment), which is an enumerated right.
Final Thoughts
I think the Republicans set the right tone, with Senator Sessions and Graham's question sessions particularly effective. Sotomayor was clearly thrown off-stride by Graham's staccato questioning style and gave a weak, defensive response to Graham's assertion that the negative comments to Sotomayor in the Almanac "stuck out like a sort thumb". Unlike the Democrats who resorted to gross distortions of records on judicial appointments (e.g., the Bush difficulties in nominating Pickering, Wallace, and Southwick for the same appellate position for the fifth circuit) or questioning Estrada on his alleged agenda in the hiring of SCOTUS (Supreme Court of the US) law clerks, the Republicans paid tribute to Sotomayor's Horatio Alger life story and stuck to her judicial work history and speeches.
Legal blogger Jonathan Turley recently wrote relevant comments in USA Today:
The outcome of Sonia Sotomayor’s hearings is not much in doubt. What has been conspicuously absent is substance. The vast majority of questions and answers remained on a shallow and predictable level where Sotomayor did little more than describe current doctrines and case law — avoiding disclosures of her own views. What is most striking is how Sotomayor’s statements were virtually identical to both her conservative and liberal.
The content-light character in these hearings is largely the product of the “Ginsburg rule":..."I’m not going to give an advisory opinion on any specific scenario because as clear as it may seem to you, I think I have to avoid responding to hypotheticals because they may prove not to be so hypothetical."
Later nominees for both parties have relied on the Ginsburg rule to turn the hearings into prolonged photo-ops for senators, who largely ask wafer-thin questions to solicit largely scripted answers... little is revealed in these hearings that you could not find in a standard legal hornbook.
Ginsburg had no problem discussing her views [in public] once she was confirmed — despite the fact that she is likely to vote on these issues while on the court...Likewise, Justice Antonin Scalia has spoken on issues pending before the court...
End the Ginsburg rule by insisting that nominees answer questions about their specific views on constitutional rights. The only basis for refusing to be forthright should be limited to questions regarding how a nominee would vote on pending cases.
I do think, just like the Presidential "debates", the Senate Judiciary SCOTUS confirmation hearings are rapidly becoming a joke, little more than political spin and well-rehearsed soundbites. If we don't do away with the Ginsburg rule, we may well treated to more of Senator Gillibrand (D-NY) filibustering her own over-the-top introduction for Sotomayor, Senator Chuck Schumer (D-NY) struggling to hold back his own tears, Senator Whitehouse (D-RI) getting "goosebumps", and Senator Cardin (D-MD) reading more favorable feedback of Judge Sotomayor from the Almanac (in rebuttal to Senator Graham's discussion of the judge's temperament) into the record. Or newly minted "Senator" Franken (D-MN) and Judge Sotomayor enthusiastically discussing their common love for the television series Perry Mason. (Of course, Sonia Sotomayor was inspired to work for the NY district attorney by a television series where the prosecution lost (nearly) every case to defense attorney Mason.) No doubt Americans with disabilities are wondering why Sonia Sotomayor wasn't equally inspired by Raymond Burr's follow-up series, Ironside (about a paraplegic detective)...
Sunday, July 19, 2009
University Admissions and Affirmative Action: An Example From My UWM Experience
The Sotomayor nomination and the Ricci case bring to mind an incident I mentioned in a prior post and which I'll reprise more fully here.
One of the criteria of evaluating faculty is service, in particular, university service. The senior female faculty member in our MIS group (no formal department) decided that she couldn't serve an assigned term on the MBA Program Admissions Committee, and the Business School Administration asked me to fill out her term over the academic year (1987-1988, I believe); I accepted. The committee consisted of 6 members, three senior faculty (all male, including the committee chair) and three junior/untenured faculty (two women and myself).
The School had an appeal process to consider applicants whom had not met two principal criteria considered for automatic acceptance: a minimum upper-division GPA and a minimum GMAT test score. We had established some informal guidelines on how far below the minimums we would consider plus we would often factor in relevant extraneous factors in the applicant's background. For example, one case I remember was a University of British Columbia PhD, whom had turned in an abysmal performance on his GMAT. The University of British Columbia has a global reputation for excellence in teaching and research. It was obvious to me from context what had happened; this guy probably was indignant that the School required him to go through the formality of taking the GMAT, and he blew it off in a passive-aggressive response. All he succeeded in doing was cutting off his nose to spite his face. I managed to push him through, but there was a lot of sympathy for the position of forcing him to take the exam over again.
In a plurality of cases, the votes were unanimous, but there were split decisions, and I was the lone dissenter (i.e., against admission) in a few cases. But in my last meeting at the end of the academic year, we faced what appeared to be an idiosyncratic case: someone who scored far below even our informal pullback criterion levels (I believe her upper-division GPA was below 2.8 on a 4.0 scale, i.e., below a B average, and she scored below average on her GMAT. I remember being confused as to why we were reviewing this candidate; we had routinely rejected people whom had done better than her on one or both criteria. We deadlocked at 3-3, with the committee chairman and the two female faculty members voting to admit her. What I remember vividly is the fact the two females remained tightlipped during the entire proceeding, refusing the comment of the blatant violation of equal protection, i.e., double standard. It was clear something was going on that I and the others didn't know about.
Next, the committee chair said, "Look, guys. The Dean has already awarded her a fellowship. The Dean needs us to admit her. It would look bad if we didn't." (I always thought fellowships were awarded AFTER admission, not the other way around.) We refused on principle; it was a matter of conscience. It wasn't fair to the students we had turned down with better criteria scores.
Finally, the committee chair pulled a blatant power move. He noted that my term on the committee ended that month, and the Dean would appoint a crony to replace me whom would back the admission. So she was going to be admitted no matter what. All we were doing was delaying the admission, a fact that he characterized as being "unfair" to the student.
I then did something that made all 5 of the committee members angry--I changed my vote to "present". My two fellow dissenters accused me of being hypocritical in letting her through, but the other side knew exactly what I was doing and wasn't happy. By changing my vote to "present", I allowed the motion to carry, but without the moral mandate of a majority decision. If the vote was deferred until the next month and carried 4-2, nobody would have known there was anything unusual about this decision.
This was not like Obama's voting "present" in the Illinois Senate, i.e., to avoid politically difficult votes. I will say to anyone that I opposed the admission and some 20 years later, I stand behind that conclusion. My decision was an artifact of a committee without a tie-breaking vote, my expiring committee term, and a corrupt business school leadership.
What Judge Sotomayor did in the Ricci case (the perfunctory judgment burying the substantive equal protection issues without comment) is very similar to what happened in that committee meeting. It was a stealth form of liberal activism which attempted to short-shrift legitimate constitutional issues.
One of the criteria of evaluating faculty is service, in particular, university service. The senior female faculty member in our MIS group (no formal department) decided that she couldn't serve an assigned term on the MBA Program Admissions Committee, and the Business School Administration asked me to fill out her term over the academic year (1987-1988, I believe); I accepted. The committee consisted of 6 members, three senior faculty (all male, including the committee chair) and three junior/untenured faculty (two women and myself).
The School had an appeal process to consider applicants whom had not met two principal criteria considered for automatic acceptance: a minimum upper-division GPA and a minimum GMAT test score. We had established some informal guidelines on how far below the minimums we would consider plus we would often factor in relevant extraneous factors in the applicant's background. For example, one case I remember was a University of British Columbia PhD, whom had turned in an abysmal performance on his GMAT. The University of British Columbia has a global reputation for excellence in teaching and research. It was obvious to me from context what had happened; this guy probably was indignant that the School required him to go through the formality of taking the GMAT, and he blew it off in a passive-aggressive response. All he succeeded in doing was cutting off his nose to spite his face. I managed to push him through, but there was a lot of sympathy for the position of forcing him to take the exam over again.
In a plurality of cases, the votes were unanimous, but there were split decisions, and I was the lone dissenter (i.e., against admission) in a few cases. But in my last meeting at the end of the academic year, we faced what appeared to be an idiosyncratic case: someone who scored far below even our informal pullback criterion levels (I believe her upper-division GPA was below 2.8 on a 4.0 scale, i.e., below a B average, and she scored below average on her GMAT. I remember being confused as to why we were reviewing this candidate; we had routinely rejected people whom had done better than her on one or both criteria. We deadlocked at 3-3, with the committee chairman and the two female faculty members voting to admit her. What I remember vividly is the fact the two females remained tightlipped during the entire proceeding, refusing the comment of the blatant violation of equal protection, i.e., double standard. It was clear something was going on that I and the others didn't know about.
Next, the committee chair said, "Look, guys. The Dean has already awarded her a fellowship. The Dean needs us to admit her. It would look bad if we didn't." (I always thought fellowships were awarded AFTER admission, not the other way around.) We refused on principle; it was a matter of conscience. It wasn't fair to the students we had turned down with better criteria scores.
Finally, the committee chair pulled a blatant power move. He noted that my term on the committee ended that month, and the Dean would appoint a crony to replace me whom would back the admission. So she was going to be admitted no matter what. All we were doing was delaying the admission, a fact that he characterized as being "unfair" to the student.
I then did something that made all 5 of the committee members angry--I changed my vote to "present". My two fellow dissenters accused me of being hypocritical in letting her through, but the other side knew exactly what I was doing and wasn't happy. By changing my vote to "present", I allowed the motion to carry, but without the moral mandate of a majority decision. If the vote was deferred until the next month and carried 4-2, nobody would have known there was anything unusual about this decision.
This was not like Obama's voting "present" in the Illinois Senate, i.e., to avoid politically difficult votes. I will say to anyone that I opposed the admission and some 20 years later, I stand behind that conclusion. My decision was an artifact of a committee without a tie-breaking vote, my expiring committee term, and a corrupt business school leadership.
What Judge Sotomayor did in the Ricci case (the perfunctory judgment burying the substantive equal protection issues without comment) is very similar to what happened in that committee meeting. It was a stealth form of liberal activism which attempted to short-shrift legitimate constitutional issues.
Friday, July 17, 2009
Fact-Checking Judge Sotomayor's "Wise Latina" Speech
I love quotations, even tongue-in-cheek ones like "quotes are for people who have nothing original to say". [I haven't found the original source for the latter, but I've seen variants, e.g., Robert Frost's "Half the world is composed of people who have something to say and can't, and the other half who have nothing to say and keep on saying it."] For years, I've been snipping quotes into my own text file collection and using freeware, published by qliner.com, to insert a random quote into my personal email signature. I've had at least a handful of recipients write back to me specifically commenting on the individual quotes (which they liked); in one case, an IT recruiter even asked for a copy of my quotes collection.
Judge Sonia Sotomayor widely-discussed speeches made a flippant comment regarding the originality of former Sandra Day O'Connor's quotation: "A wise old woman and a wise old man, at the end of the day, can reach the same conclusion." Recall the original Sotomayor speech extract:
I did some additional research on the Internet and found others had noted the discrepancy, including an explanation from the alleged source's protégé and employee. It turns out the source is the late Justice Mary Jeanne COYNE of the Minnesota Supreme Court, but the quote in question is not even O'Connor's quote but a somewhat different one: "A wise old woman will make decisions in about the same way as a wise old man." In other words, the Coyne quote refers to the decision PROCESS, whereas the O'Connor quote refers to the decision OUTCOME. It should be noted that not even the misquotation is original: Justice Paul H. Anderson wrote this passage about their fellow colleague Esther Tomljanovich:
I have had an active interest in mathematical theorem-proving, and mathematicians are appreciative of a diversity of ways of coming to the same end. I think most Americans see ideal judicial decision-making in the same way: we start with the same facts and precedents (axioms, proved theorems, etc.) converging at the "right" decisions, and wisdom is the ability to come to the "right" decision. But just as Supreme Court Justice Lewis Powell famously said about hard-core pornography, in Miller v California, ""I shall not today attempt further to define [it]..., but I know it when I see it."
Similarly, the American people intuitively know wise judges and wise decisions; we see underlying consensus that bridge the judicial ideological gulf. One example is the historic unanimous decision of Brown v Board of Education of Topeka. This suit started because a young black girl was not permitted to attend her neighborhood school just like all her other friends; she had to go to a blacks-only school far away from her home simply to maintain an unconscionable race-based public policy of school admissions, which was both economically inefficient and fundamentally unjust. This made a mockery of our American ideals as our nation had failed to live up to the full promise of emancipation and allowed lawmakers to create a sophistical patchwork of workarounds denying full integration of freedmen and their descendants into American society, based on their race. More recently, we saw a recent reaffirmation of our Bill of Rights in the near-unanimous in the Safford v Redding case, where the groundless, fruitless strip search of a middle-school girl for over-the-counter medication was deemed illegal.
JudgesTomljanovich and Sotomayor seem to see wisdom as relative and are not inherently troubled by contradictory judicial decisions from the same set of facts and precedents, the way most of us are troubled by logical paradoxes or, in an analogous manner, the Kantian antinomies or contradictory conclusions of pure and empirical reasoning.
I believe that Judge Sotomayer confuses technical competence with wisdom; this is clear when she describes wisdom being a characteristic equally applicable to judges on both sides of an issue. Certainly judicial philosophy is fairly consistent factor when it comes to the Supreme Court. Chances are that Judge Sotomayor would be expected to side with the liberal/activist faction today consisting of Justices Ginsburg, Stevens, Breyer and Souter.
Wisdom, in my view, goes beyond finding a philosophically-coherent rationalization, e.g., cherry-picking precedent, where four liberal lower-court judges including Sotomayor (all Clinton appointees) put a Justice Department heuristic criterion for Title VII above and beyond the Equal Protection clause of the Constitution. The heuristic was merely SUGGESTIVE of possible discrimination, not PROOF. What Sotomayor failed to look at was the big picture: tests were part of the civil service system to root out subjective factors and unfair hiring practices, e.g., political favors, personal connections, nepotism, etc. They provide a fairer way of judging individual suitability for a higher-level position based on merit (knowledge, experience, etc.) All you can do is ensure a good-faith effort that tests are made to be rigorous and fair, which New Haven did in the Ricci case. The fact is that the New Haven results weren't out of line with other results--the response is NOT, as Chicago or New Haven have done, to suspend or dumb down tests. Promoting less qualified applicants, regardless of ethnic group, poses an ill-advised risk to the lives and health of residents in relevant communities.
I am not going to argue that promotion processes should be racially disparate in outcome. It would require more research to understand why this is happened. To me, the salient issues are whether the city of New Haven made a good-faith effort to control for the risk of cultural bias in the exams, whether exam results are out of line with similar experience elsewhere (in other words, minority performance should not be materially worse), whether minority applicants took the exam under worse conditions (e.g., less time, poor ergonomic conditions, different, more complex questions, unavailable access of training materials, etc.) It doesn't look as though the Clinton-appointed judges did anything more than conclude New Haven was allowed to throw out the exam simply based on score distributions. The only real way of guaranteeing enough minority members passed essentially would be to water down the exam, which essentially eliminates the ability of the managers to compare candidates on an objective basis.
I have not researched the differences in promotion policies between the military and civil service, but I believe that the military has achieved an inclusive promotion policy without compromising national security. There could be a modification of promotion policies, a test score cutoff for promotion consideration and a variety of factors taken into consideration, e.g., neighborhood residence, tenure in grade, normalized or improved supervisor and peer-evaluated job performance, ongoing professional education and training, recruitment and public speaking events, job performance/team awards, and extracurricular community service. There could be special remedial training courses and mentoring programs for minority candidates or external recruitment of qualified minority candidates. There could a concept of a limited number of probationary minority opportunity promotions conditioned on sufficient availability of qualified minority candidates; these might require successful completion of supplemental training requirements.
I am empathetic to the concept that single-point measurements may not be reliable assessments of performance or indicators and Judge Sotomayor is positive proof that despite middling entrance exam scores, she performed exceptionally at Ivy League schools, demonstrating the limited predictive value of entrance exam scores. But she should not generalize from her experience, and it's not the judge's role to critically evaluate the promotion test, other than to judge fundamental constitutional issues. We live in an imperfect world, and the US Constitution doesn't guarantee ideal results. What it does require is equal protection, a fair opportunity to compete. In the Ricci case, all sides understood the rules; all sides had access to relevant training materials. What we have is a scenario not unlike bar exams or medical boards. When someone passes a bar exam, we don't have a rollback of passing scores simply because not enough minority applicants passed.
Going back to the original matter of the O'Connor quote, I am disappointed by Judge Sotomayor's lack of due diligence. What comes to mind is the following quote attributed to a wise old German man:
"Anyone who doesn't take truth seriously in small matters cannot be trusted in large ones either." - Albert Einstein
Judge Sonia Sotomayor widely-discussed speeches made a flippant comment regarding the originality of former Sandra Day O'Connor's quotation: "A wise old woman and a wise old man, at the end of the day, can reach the same conclusion." Recall the original Sotomayor speech extract:
Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line, since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Minow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.Let us agree that when one person corrects another, he should have his own facts straight. I believe that Judge Sotomayor, in citing Professor Resnik, is engaging in what lawyers call 'hearsay', and I don't think a judge, from a standpoint of integrity, should be quoting a secondary source. Another inference is when an American uses the term "Supreme Court Justice", he generally is referring to the US Supreme Court, not to a state Supreme Court. So I found this sentence odd because I didn't remember any Supreme Court Justice named Coyle over the past 50 years and felt this kind of observation would have been more salient in the context of the women's liberation movement since the 1960's. But I did due diligence and scanned the names of Supreme Court Justices in Wikipedia, confirming no 'Coyle' or a relevant misspelled source name. At this point, I felt like the boy insisting that the emperor was wearing no clothes: the passage has been widely cited by hundreds of news sources and bloggers, none of them (including any of the senators on the Supreme Court) seeming to question what I just uncovered.
I did some additional research on the Internet and found others had noted the discrepancy, including an explanation from the alleged source's protégé and employee. It turns out the source is the late Justice Mary Jeanne COYNE of the Minnesota Supreme Court, but the quote in question is not even O'Connor's quote but a somewhat different one: "A wise old woman will make decisions in about the same way as a wise old man." In other words, the Coyne quote refers to the decision PROCESS, whereas the O'Connor quote refers to the decision OUTCOME. It should be noted that not even the misquotation is original: Justice Paul H. Anderson wrote this passage about their fellow colleague Esther Tomljanovich:
Esther challenged long-standing approaches to problem solving. A former colleague of hers believed [that] 'a wise old man and a wise old woman will come to the same conclusion.' This comment bothered Esther. Her retort was that if this statement was correct, then 'a lot of us wasted our time trying to assure the appointment of women to the bench'.Justice Anderson's own retelling is somewhat inconsistent. If Justice Tomljanovich approached her decision making differently as suggested, it would make sense that she opposed Justice Coyne's original phrasing: She probably considered her own decision-making process gender-specific (versus individualistic).
I have had an active interest in mathematical theorem-proving, and mathematicians are appreciative of a diversity of ways of coming to the same end. I think most Americans see ideal judicial decision-making in the same way: we start with the same facts and precedents (axioms, proved theorems, etc.) converging at the "right" decisions, and wisdom is the ability to come to the "right" decision. But just as Supreme Court Justice Lewis Powell famously said about hard-core pornography, in Miller v California, ""I shall not today attempt further to define [it]..., but I know it when I see it."
Similarly, the American people intuitively know wise judges and wise decisions; we see underlying consensus that bridge the judicial ideological gulf. One example is the historic unanimous decision of Brown v Board of Education of Topeka. This suit started because a young black girl was not permitted to attend her neighborhood school just like all her other friends; she had to go to a blacks-only school far away from her home simply to maintain an unconscionable race-based public policy of school admissions, which was both economically inefficient and fundamentally unjust. This made a mockery of our American ideals as our nation had failed to live up to the full promise of emancipation and allowed lawmakers to create a sophistical patchwork of workarounds denying full integration of freedmen and their descendants into American society, based on their race. More recently, we saw a recent reaffirmation of our Bill of Rights in the near-unanimous in the Safford v Redding case, where the groundless, fruitless strip search of a middle-school girl for over-the-counter medication was deemed illegal.
JudgesTomljanovich and Sotomayor seem to see wisdom as relative and are not inherently troubled by contradictory judicial decisions from the same set of facts and precedents, the way most of us are troubled by logical paradoxes or, in an analogous manner, the Kantian antinomies or contradictory conclusions of pure and empirical reasoning.
I believe that Judge Sotomayer confuses technical competence with wisdom; this is clear when she describes wisdom being a characteristic equally applicable to judges on both sides of an issue. Certainly judicial philosophy is fairly consistent factor when it comes to the Supreme Court. Chances are that Judge Sotomayor would be expected to side with the liberal/activist faction today consisting of Justices Ginsburg, Stevens, Breyer and Souter.
Wisdom, in my view, goes beyond finding a philosophically-coherent rationalization, e.g., cherry-picking precedent, where four liberal lower-court judges including Sotomayor (all Clinton appointees) put a Justice Department heuristic criterion for Title VII above and beyond the Equal Protection clause of the Constitution. The heuristic was merely SUGGESTIVE of possible discrimination, not PROOF. What Sotomayor failed to look at was the big picture: tests were part of the civil service system to root out subjective factors and unfair hiring practices, e.g., political favors, personal connections, nepotism, etc. They provide a fairer way of judging individual suitability for a higher-level position based on merit (knowledge, experience, etc.) All you can do is ensure a good-faith effort that tests are made to be rigorous and fair, which New Haven did in the Ricci case. The fact is that the New Haven results weren't out of line with other results--the response is NOT, as Chicago or New Haven have done, to suspend or dumb down tests. Promoting less qualified applicants, regardless of ethnic group, poses an ill-advised risk to the lives and health of residents in relevant communities.
I am not going to argue that promotion processes should be racially disparate in outcome. It would require more research to understand why this is happened. To me, the salient issues are whether the city of New Haven made a good-faith effort to control for the risk of cultural bias in the exams, whether exam results are out of line with similar experience elsewhere (in other words, minority performance should not be materially worse), whether minority applicants took the exam under worse conditions (e.g., less time, poor ergonomic conditions, different, more complex questions, unavailable access of training materials, etc.) It doesn't look as though the Clinton-appointed judges did anything more than conclude New Haven was allowed to throw out the exam simply based on score distributions. The only real way of guaranteeing enough minority members passed essentially would be to water down the exam, which essentially eliminates the ability of the managers to compare candidates on an objective basis.
I have not researched the differences in promotion policies between the military and civil service, but I believe that the military has achieved an inclusive promotion policy without compromising national security. There could be a modification of promotion policies, a test score cutoff for promotion consideration and a variety of factors taken into consideration, e.g., neighborhood residence, tenure in grade, normalized or improved supervisor and peer-evaluated job performance, ongoing professional education and training, recruitment and public speaking events, job performance/team awards, and extracurricular community service. There could be special remedial training courses and mentoring programs for minority candidates or external recruitment of qualified minority candidates. There could a concept of a limited number of probationary minority opportunity promotions conditioned on sufficient availability of qualified minority candidates; these might require successful completion of supplemental training requirements.
I am empathetic to the concept that single-point measurements may not be reliable assessments of performance or indicators and Judge Sotomayor is positive proof that despite middling entrance exam scores, she performed exceptionally at Ivy League schools, demonstrating the limited predictive value of entrance exam scores. But she should not generalize from her experience, and it's not the judge's role to critically evaluate the promotion test, other than to judge fundamental constitutional issues. We live in an imperfect world, and the US Constitution doesn't guarantee ideal results. What it does require is equal protection, a fair opportunity to compete. In the Ricci case, all sides understood the rules; all sides had access to relevant training materials. What we have is a scenario not unlike bar exams or medical boards. When someone passes a bar exam, we don't have a rollback of passing scores simply because not enough minority applicants passed.
Going back to the original matter of the O'Connor quote, I am disappointed by Judge Sotomayor's lack of due diligence. What comes to mind is the following quote attributed to a wise old German man:
"Anyone who doesn't take truth seriously in small matters cannot be trusted in large ones either." - Albert Einstein
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