Politics: May 2009 Archives

A Few Quick Notes

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1. I've been extremely busy. I'm teaching two summer classes and barely keeping up with them. Plus the kids have been sick, meaning some have been home and in need of more attention than normal. So I haven't had time to do much blogging. But I've got a few things I've been thinking about that I did manage to put in Facebook updates, which I might as well put here in lieu of anything that will take more time than I have.

2. Remember when Rosie O'Donnell outrageously called it a separation of church and state for President Bush to take the religious identification on the Supreme Court from three to give Catholics, making Catholic justices the majority? I just thought it was worth noticing that President Obama has nominated another self-identified Roman Catholic to replace another Protestant, and I've yet to hear any similar claims from Rosie O'Donnell (although I did hear that Christopher Hitchens is being consistent on this by finding it grave and troubling).

3. I heard a strange NPR story on the dangers of fracking. It took a little listening to discover that they meant this. It was hard to listen with a straight face. I don't know how the reporter got through it.

4. The Supreme Court could rule as early as Monday on a case Judge Sotomayor was involved in that could lead to some real fodder for criticism in her hearing. SCOTUSBlog has an excellent presentation of the issue and how it might go.

5. Once I get a breather I intend to look closely at some of the Sotomayor stuff that SCOTUSBlog has been posting since before her nomination even occurred. I haven't had time to comment on her nomination, but I'm not sure I would even know what to say just yet. Her actual opinions are kind of important, and most criticism so far has not focused on them but on some political speeches and interviews she's given.

Not really, but that's what Mother Jones wants you to believe. With "Supreme Court Upholds Pension Gender Gap" as a headline, they want to send the signal that the Supreme Court has considered the existence of a gender gap in who receives how much of a pension and deemed it just fine. That suggests the view that what the Supreme Court is about is results. We should evaluate them according to whether they decided cases that give us the right results. Several justices on the Supreme Court might be happy about such a description, but I'm sure that at least four of the seven justices in the majority in this decision would not, and I'd guess that most or all of the other justices would not approve of such a description (even if I happen to think it's true of some of them).

If you read the article, it actually undoes a lot of the damage from the headline. Authors of op-eds don't usually choose their own headlines, and I'm guessing that's what happened here, so I'm not blaming the author, whose article is largely accurate and doesn't really spin the facts too significantly. The issue before the court involved a 1978 law that makes it illegal to discriminate against women who take maternity leave when counting pension benefits, because standard practice at the time was not to count maternity leaves as time served when calculating how many years someone worked for the company. That law counted such a practice as discrimination, and it made it illegal to ignore the time a woman was not working if the reason was maternity leave.

The issue before the court was whether a maternity leave that occurred before that law was passed was similarly affected. The majority ruled 7-2 that the law was not retroactive, and thus when it was passed it did not suddenly pass on the features of future maternity leaves to past ones. In other words, it is not illegal now not to count the maternity leaves before this practice counted as discriminatory, but it is illegal now not to count the maternity leaves after the laws was passed.

So the majority ruled in this case that the law that makes this kind of discrimination illegal wasn't a retroactive law, i.e. it didn't make what people had done before the law was passed suddenly criminal when it had been legal before that. It also treated the discrimination the law prevents as occurring when the maternity leave was taken, not when the pension benefits are calculated. I haven't had time to research the law itself or the claims of either side in how to interpret it. I'm certainly open to Justice Ginsburg's dissenting argument that the majority interpreted the law wrongly. In fact, I'd probably lean that way just from what I've read in several accounts. I'd be a little surprised if the law was narrowly about how a company counts maternity leaves at the time they occur rather than about how a company should count previous ones when it calculates benefits much later. So if I had to guess my view on the legal question, I'd predict that I'd have strong inclinations to hear out Justice Ginsburg's argument, since it seems more likely to be correct from what I've seen.

This isn't to say that I agree with that as a policy matter. There are two kinds of fairness at odds here, fairness of outcome and fairness of granting someone credit only for what they contribute to the company. If you begin with a socialist conception of justice, you would consider any inequality of outcome to be unfair and immoral. On the other hand, a libertarian conception of justice would consider such a view to amount to stealing from those who actually contributed to the company for all the hours being counted in their favor. It may be unfair on one level that women can't help having to take time off from work for maternity leave, but it's also unfair on a differently level to count that time as work time when someone else actually put in more time working for the company and didn't get to have time off count. One might see that as discriminating in favor of women who take maternity leave against those who don't (including women and men). If all you care about is the just result, your views on such matters will enter in to the calculation of whether this outcome is just. One can take either view on that matter and still decide this case either way. (And I want to say that those views aren't mutually exclusive. You might think both kinds of justice are morally important. I in fact do, and I'm not sure how I'd sort that out in this kind of case. I would be open to being convinced by policy arguments either way if I were in Congress debating such a law.)

If the justices were using such considerations, I think a stronger case could be made that they simply upheld the gender gap. But the reasoning they actually gave was about legal matters. As I said, I might actually lean in the opposite direction on those legal matters (even if as a policy matter I think a case can be made either way in terms of whether we should have such a law to begin with). Nevertheless, it strikes me as strongly misleading to say this decision upholds the pension gender gap, for several reasons.

Jack Goldsmith has a very interesting piece in The New Republic comparing the Bush Administration and Obama Administration on carrying out the war on terrorism. Generally speaking, the Obama Administration has tweaked and modified a few things on a not-very-significant level. There have been a few major denouncements of things the Bush Administration hadn't done for a few years but was still defending as right. There have been a few minor adjustments. But on each separate item among the 11 policy planks Goldsmith has identified, the changes aren't much, and in some cases Obama has increased things Bush was criticized for. Here is his summary of the effects: obama_late_bush

Its changes to Bush practices thus far--cutting back on secret detentions, probable new restrictions on interrogation, and relatively small procedural changes to military commissions--will leave some suspected terrorists in a better place than they would have been under the Bush regime (although Obama's increase in targeted killings will likely result in more deaths and injuries, without due process, to terror suspects and innocent civilians). Even with these caveats, at the end of the day, Obama practices will be much closer to late Bush practices than almost anyone expected in January 2009.
I'm not sure I'd say no one would would have predicted it. I know of at least one person who voted for Obama in part because he thought McCain was going to go further than Bush did while Obama was presenting foreign policy views closer to Bush's. I remember reading several conservative bloggers saying that Obama was criticizing things that he'd eventually realize were good and right once he got into office (or less charitably that he knew full well that what he was criticizing was fine and was shooting himself in the foot for political gain). That kind of prediction does seem apt at least in terms of accurately predicting what Obama would do.

But Goldsmith is spinning this in a way that I don't think is very fair. He contrasts what he's saying with Dick Cheney's alarmism about the changes Obama has implemented. I'm not entirely sure the things Cheney is criticizing are the same kinds of things Goldsmith is highlighting. Most of the things I've heard him talking about were either one-time events or initial policy positions that Obama has gone back on, whereas Goldsmith is concerned about long-term impact from policies going forward from this point on. Cheney has criticized the release of the interrogation memos, saying that it would endanger our troops. Obama seems to have taken the same attitude now about some related issues. Cheney has criticized the talk of prosecuting Bush Administration lawyers who wrote the controversial interrogation memos. The Obama Justice Department has certainly taken their time to indicate that they don't seem interested in such prosecutions.

Cheney does list the terrorist surveillance program as one change, and I can't see how that's changed. At least the wireless surveillance program that Obama had mixed feelings about before he was president hasn't changed since he's taken office, and he's explicitly said that it would continue. So I'm not sure what Cheney is referring to on that one. But most of what Cheney is saying is fully compatible with most of what Goldsmith says.

There's a lot of fascinating analysis in Goldsmith's article, and I encourage you to read the whole thing, especially the last two pages. I think his biggest omission, though, has to do with a lack of context. There's plenty of foreign policy context, but there's no acknowledgment of the fact that Obama's continuation of heightened executive powers does not occur in a vacuum when it comes to heightened executive powers in other policy matters. This is the same president who has expanded the federal government more than any other president has done, all under the banner of responding to an emergency that the legislation in question had little to do with. It's the same administration that in effect gave itself the power to fire chief executives of corporations for behaving in a way that isn't conducive to its view of economic growth. Perhaps the most defining feature of the Obama Administration to this point has been its tendency to grab power in unprecedented and highly-unexpected ways. This is also a president whose past influence includes the community-organizing ideology that makes all political change boil down to power, and even though he concluded from his experience that community organizing doesn't achieve those goals very well, it's quite plausible that he still maintains those goals (and the way he talks about justice seems to indicate that he still maintains the socialist theory of justice from that Marxian power-based ideology). It's very hard for me to see his maintenance of higher levels of presidential power outside the context of his significant increases to presidential power in other areas.

A caller on the Diane Rehm show on NPR yesterday gave an argument for why we need to go public with health care. Insurance companies that are motivated by profit will try to avoid giving people what they're obligated to give, so we need to prevent that by having insurance handled by those who have no such profit motive.

Some insurance companies do indeed function that way. Is that a reason to go public? We've had some pretty significant interaction with public health insurance for several years now, and they do the same thing. So it certainly isn't going to be any better on that score. Our Medicaid Services Coordinator for the boys' disability services says she's heard from people who have worked for Medicaid that they're told to try to find excuses to take so long with people's applications that they just give up. They tried to count my one intensive month of income during a summer course as if it was the rate of pay I get for the whole year, an error that I find very hard to attribute to carelessness during a time when the governor of New York has been trying to cut expenses of as many essential services as he can while ignoring all manner of worthless costs, and Medicaid and disability services were explicitly on the list of services getting cuts.

So the public health insurance does the same thing as some of the private companies who have a profit motive. Does that mean they're on par? I don't actually think so. The difference is that smart insurance companies know that such shadiness is actually not going to produce better profits in the long run, whereas government beaurocracy has no limits to its unfriendliness and unwillingness to help people, precisely because there's no profit motive to do so. I've been on the receiving end of that too many times to count, whereas insurance companies often bend over backwards to stay in your good graces so you won't find a competitor with better services.

So whatever arguments there may be for and against public health insurance, I don't see how this consideration should favor it.


Check out how the justices voted in this Supreme Court decision that was handed down a couple weeks ago. Arizona v. Gant reflects a division on search and seizure rights that doesn't fall on normal lines. Here is oneway of conceiving of the ideological differences on the Supreme Court:

The More Extreme Conservatives: Justices Scalia and Thomas
The More Moderate Conservatives: Chief Justice Roberts and Justice Alito
The Moderate: Justice Kennedy
The More Moderate Liberal: Justice Breyer
The More Extreme Liberals: Justices Stevens, Souter, and Ginsburg

The lineup for this case:

Majority: Justices Stevens, Scalia, Souter, Thomas, and Ginsburg
Dissent: Chief Justice Roberts, Justices Kennedy, Breyer, Alito

That places the more extreme conservatives and more extreme liberals in the majority and those more moderate in the minority.

Note also that this is a 5-4 decision, so don't let it be said that all the 5-4 decisions are the four conservatives vs. the four liberals with Justice Kennedy as the deciding vote. This sort of division is much more common than you might have thought.

The CIA refused to interrogate an al Qaeda prisoner who was captured in recent weeks, because the Obama Administration's inconsistent position and likely untrustworthiness in their assurances to the CIA has led the CIA to be so scared of what might happen that they're just washing their hands of it.

This wasn't the emphasis of most of the resistance to releasing the memos, which focused on what our enemies would now know about what the U.S. would be willing to do if they were captured. This problem is on the side of our inability to do anything, apparently. So it seems even those opposing the memo release underestimated how seriously it would harm the effort in fighting against al Qaeda. The president's action didn't logically entail this response, but I think it's surely correct to say that it caused it. This has effectively crippled the CIA, and this particular prisoner may well have dated information that their fear at what Holder's Justice Department might do has led them not to try to get. It also makes me wonder how likely they think conventional interrogations would produce any worthwhile information, because surely they're not scared of doing that.

Update: I guess this argument has been prominently made, but I hadn't see it before. Gen. Michael Hayden, former CIA director and Michael Mukasey, former Attorney General, said in a WSJ op-ed:

Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.

The rest is well worth reading. Even if I became convinced that this interrogation program was illegal or immoral, I would still think the case against releasing these memos was extremely strong.



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