The Right Coast

EPA silences climate skeptic Tom Smith

Transparency in action.  Science before ideology.  Yeah right.

Roger Simon on ObamaMike Rappaport

Glenn quotes a paragraph from Roger's column; here are two:

Obama is already over. In six short months the now-spattered bumper stickers with “Hope and Change” seem like pathetic remnants from the days of “23 Skidoo,” the echoes of “Yes, we can” more nauseating than ever in their cliché-ridden evasiveness. Although they may pretend otherwise, even Obama’s choir in the mainstream media seems to know he’s finished, their defenses of his wildly over-priced medical and cap-and-trade schemes perfunctory at best. Everyone knows we can’t afford them. His stimulus plan - if you could call it his, maybe it’s Geithner’s, maybe it’s someone else’s, maybe it’s not a plan at all - has produced absolutely nothing. In fact, I have met not one person of any ideology who evinces genuine confidence in it.

On the foreign policy front, it’s more embarrassing. He switches positions every day, such as they are, while acting like a petit-bourgeois snob with our allies and then, when people with genuine passion for democracy emerge on the scene (the courageous Iranian protestors), behaves like a cringeworthy, equivocating creep. Enough of Obama.

This is certainly my view of Obama, but is it really true that "Obama’s choir in the mainstream media seems to know he’s finished, their defenses of his wildly over-priced medical and cap-and-trade schemes perfunctory at best"?

I think that's probably wishful thinking, but here's wishing.

Is Obama's following Bush Yet Again?Mike Rappaport

Barack Obama's actions in response to the ouster of Honduran President Manuel Zelaya seem very peculiar for the reasons I have already noted, but they are interesting in another way. 

It seems clear that the President Zelaya was attempting to establish a new constitution so that he could remain in the office of the presidency.  The existing constitution had a firm one term limit for the President, which could not be amended.  In fact, it also provided that anyone who proposed its reform "will immediately cease in their functions and will be unable to hold any public office for a period of 10 years."  In South and Central America, such a limit makes perfect sense, where strong Presidents had often usurped power, and continue to do so in the model of Hugo Chavez.  In that part of the world, the Napoleonic system of a dictatorial president, established through a referendum of the people, has been used much to the detriment of the liberties of the people.  Instead, the Honduran Constitution seems to have eschewed this radical form of democracy in favor of a republican system.   

Obama's statement that the ouster was an illegal coup is therefore interesting.  I am not aware of any analysis issued by the State Department explaining why it was illegal.  It may be, but even if it was illegal, it was clearly in response to an apparent presidential illegality that was threatening the republic.

Based on the statements of the Obama Administration, it seems that Obama simply views the ouster as illegal because the President was elected and he was ousted without an impeachment (even though the military was acting at the orders of the Supreme Court).  The view seems to be that an election is key and that other limitations on the elected government are to be viewed as secondary, even if they are necessary to preserve freedom.  Lets call this the "freedom and democracy are simply about elections" view.    

In many ways, one might also believe that George Bush held a variant of this view of freedom and democracy.  His attempts to establish democracy throughout the world were flawed in part because they did not realize the preconditions for democratic freedom -- preconditions that exist in places where democracy is successful.  Successful democracies generally emerge in countries with some tradition of the rule of law and where there are operating markets.  I was always (and continue to be) skeptical that one would get functioning democracies in the Palestinian territories or in Afghanistan  I judged Iraq to be capable of growing some kind of democracy, but the Bush people did not sufficiently attempt to produce the preconditions for democracy there, including federalism and limitations on simple majorities.  To some extent, the Sunni awakening solved those problems in spite of Bush's apparent intentions.  

Thus, it seems to me that both Bush and Obama have simplistic and unrealistic approaches to democracy.  Neither President sufficiently appreciates that democracy is an accomplishment that requires much more than elections to support it. 

Doug Kmeic named ambassador to Malta Tom Smith

Well known conservative and staunchly pro-life Obama supporter, former OLC head Professor Douglas Kmeic has been nominated to be the United States Ambassador to Malta.  I speculate that he will be confirmed by the Senate in due course, the ambassadorship to Malta having rarely provoked controversy in the past.

There are those so cyncial as to suggest that the nomination to this position of trust is a reward, some sort of quid pro quo, as we Catholics say, for supporting our young President in his efforts to get the Catholic vote notwithstanding his support for all known forms of aborting pre-birth person-like non-person entities sometimes referred to as "babies" but more properly thought of as just cute little inconveniences.  That is more of a leap, however, than we at this blog are willing to make.  Before making such conceivably unwarranted inferences, we should consider that perhaps, just perhaps, the good Professor is in fact the most qualified person for this job.  Consider:  what are the qualifications for the job of Ambassador to Malta?  No, I don't know either.  But whatever they are, I am at least fair minded enough to suppose that the Professor may possess them in abundance.

Malta has a fascinating history and a rich association with the Catholic Church.  Malta is very Catholic, so Catholic indeed that I suppose whatever kind of Catholic you are, you could probably find somebody else there like you.  My guess is not many abortions get performed on Malta, but as it is outside of the United States, I suppose that might be OK.  At one point, Charles V awarded the archipelago of seven islands, now densely populated with none other than the Maltese, to the Sovereign Military Hospitaller Order of St. John of Jerusalem, and a gnarly bunch of warrior monks they were too, probably not much given to compromise on matters of religion, but that was a long time ago.  The Knights spent a lot of time after that fighting Muslim pirates and to be fair, sometimes fighting whomever they were paid to fight.  Warrior monks have to make a living too, you know.  The Knights of Malta still exist and get to wear some very cool threads, arguably as cool as those of the Pope himself, though probably they enjoy many fewer occassions when they get to wear them.  Some people think the Knights of Malta run the world as part of a secret conspiracy, along the lines of the Illuminati, but much more Catholic.  Personally, I doubt this. But if this is true, the White House has just, perhaps inadvertantly, put the good Professor in a position of almost unspeakable power.  We can only pray he uses it wisely.

A beautiful song Tom Smith

Not just about Mary, but all the women in our lives.

Unemployment: look at the bright side Tom Smith

I don't why people are so upset at the new unemployment numbers.  True, unemployment measures jobs lost.  But the fact is, without the Obama stimulus package, many, many, many more jobs would have been lost.  As many as eleventy-gazillion jobs that would have been lost were in fact saved.  The man is a genius and this is a miracle.

At this time of national crisis and high unemployment, I would like to gently remind the White House that I am still open to a job in this administration as long as it is well paid and does not require me to do any work.  I know there are lots of government jobs like this and with so much more public spending, there are bound to be more. Producing statements like the one above in my first paragraph, I can do all day. Help me help you help us.  That's all I'm saying.  And pay me.

The Adverse Selection CanardMike Rappaport

In a past life, I used to study Insurance Law.  In many ways, it was a fascinating area, where one attempted to explain why insurance contracts looked the way they do. 

One of the big issues was adverse selection.   To guard against adverse selection, insurance contracts needed to be written a certain way.  And to a large extent, I think those explanations for insurance contract provisions made sense.

But in public policy, adverse selection is often used as a justification for government intervention.  Paul Krugman says that markets can't work in health insurance, because of adverse selection (and moral hazard).  But this assumes that insurers do not have ways available to address adverse selection.   A study of insurance contracting generally shows they do have ways available and many government regulations make it harder for insurers to address adverse selection. 

This argument against government intervention to protect against adverse selection is buttressed by the biggest new "discovery" in the insurance area (that I am aware of): that adverse selection takes place much less than we previously thought.  In fact, insurance markets are often not characterized by too much insurance being purchased by high risk individuals, but too little insurance purchased by them.  Bryan Caplan makes the case here.

The embarrassment of California Tom Smith

Here.  Recently we had some distant relatives who were visiting California from Germany over for dinner.  I made some remark about how California could be going bankrupt soon.  The German was a physician and sat on his town council (which was 1000 years old or something, but that's another story).  He could not comprehend that a state as rich as California could be going bankrupt.  It is pretty mind boggling, but I said all it really takes is to spend a lot of money and then be unable to agree either to stop spending so much or how to pay for what you have committed to spend.  Shocking, but not really incomprehensible.

Time Parenting and College AdmissionsMike Rappaport

The connection is discussed here.  And lived in my house.

The road to serfdom goes by WalMart Tom Smith

Somebody tell Gabriel Kolko.  He called it "political capitalism."

Free health care Tom Smith

It will be great.  It will get us to heaven sooner.

More from the Liar-in-ChiefMike Rappaport

on signing statements. 

By the way, for my argument that Presidents cannot "sign and not enforce," see here.

Hat tip: Instapundit

What's happening to the middle class Tom Smith

Well worth reading, with some facts for a change.  I do think that the grotesque inequalities of income that were (are) the inevitable result of world-changing technological innovations are a bad thing.  It's just that the benefits of technological progress far outweigh in my book the evils of having disgustingly smug rich people running around.  And there are benefits to having rich people too.  Governments prey on our weakness of character by pandering to our desire to take riches away from rich people.  Envy is a cardinal sin, and yet governments tell us indulging it is actually righteous.  

This is also interesting.  I really think the most parsimonious explanation is that Mankiw is a nice guy and Krugman is a jerk.  I do see that there is some circularity in this position but it also has a quality of self-evident truth that ought to count for something.  My guess is you could probably find teachers who would say, oh yes, I remember Paul.  Highly intelligent, but a very unpleasant little boy.  I, on the other hand, am much nicer now than I ever was in school.

Stupid party lives up to its name Tom Smith

Republicans fighting in public over Sarah Palin.

I like Sarah and always will.  I do not think she should be our next President and I don't think she's a winning candidate.  She puts an attractive face on the class of disenfranchised white people though.  I don't know how long it will be before the cultural contempt the New York Times, Vanity Fair and whoever else they are club have for her will be seen for the racist snootery it is.  Maybe never.  I would be much more sanguine about it if the ideas our squid overlords were foisting upon us were not so dumb.  Loose money, carbon taxes, government medicine.  If they are so much smarter than we are, why such stupid ideas?  A puzzle to be sure.  Meanwhile, from Wasilla to Bumf*&k, the rubes ask, shouldn't we be spending less?  Can government really do a good job running medical care?  Shouldn't we be supporting those Eyeranian protestors?  Aren't taxes high enough already?  Are we sure the earth is getting warmer? Poor deluded souls, who never had the chance to go to Princeton.

A global warming skeptic Tom Smith

Profiled here.  If we do impose a gigantic tax because our thermometers were in the wrong place, that would be quite a thing.

The Honduran Situation and the US ResponseMike Rappaport

I will be the first to acknowledge that I don't know much about the Honduran situation.  But it seems that the President of Honduras sought to amend or replace their constitution in an unconstitutional manner so that he could serve a second term.  The unconstitutionality of his action was declared by the Honduran Supreme Court, which was supported by the legislature, but the President ignored the order.   The President planned to hold an illegal referendum and even received the ballots from Venezuelan President Hugo Chavez.  Many of the President's top officials were either fired or resigned.

There are two questions.  First, it is in an interesting question whether the ouster of the President by the military, on the orders of the Supreme Court, is an illegal action or a coup.  I really don't know enough to say, but there seem to be strong arguments it was not.  Holding an illegal election and violating a Supreme Court order would seem to be illegal.  If the election had been held and a new constitution written, then would that not have been a coup?  Of course, it would seem that the best course would have been for the legislature to impeach the President  -- why that was not done I do not know -- but even in the absence of that, it is not clear what was the proper legal response in this situation.     

But putting aside these difficult legal questions, why would Obama take a position on this question in favor of the ousted President?  Especially after taking the position in the last few weeks that it was wrong to get involved in Iran, why was it ok to involve himself in the Honduran situation? 

I find this baffling.  Can anyone defend or at least explain Obama's actions?  

Update:  

Well, this article helps.  The White House has issued a press release -- through its media arm, the New York Times -- attempting to explain its strategy.   Obama does not want to allow Hugo Chavez to blame the US, so the US will condemn the ouster as a coup.  This is more of the sophisticated, nimble action by Obama which is catching Hugo Chavez off guard. 

This does help to explain the consistency of Obama's actions in Iran and Honduras.  In both cases, Obama believes that two democratic dictators would like to place the blame on the US.  But he is too quick for them.  He will prevent them from placing the blame on the US -- by giving them exactly what they want.  In Iran, Obama says there is not much difference between Ahmadinejad or Mousavi.  In Honduras, Obama calls the ouster an illegal coup.  Any thoughts on how Obama would have outwitted Hitler in Czechoslovakia?   

Well, I suppose that there could be acceptable solutions to all of this.  If the former Honduran President is returned to office, but is not allowed to hold the illegal election or to run again, that might not be too bad.  But if he is returned to office and is allowed to hold the election, Obama will have outwitted Chavez -- by giving him exactly what he wants.

Further Update: 

Wikipedia provides some useful information, including why the legislature did not impeach the President:

President Manuel Zelaya intended to hold a "nonbinding" public referendum on June 28, on whether to call a National Assembly to rewrite the constitution, to take place concurrently with this year's elections. Zelaya's opponents claimed that his intention was to allow his own re-election. Article 239 of the Honduran Constitution, which forbids any former chief executive from being re-elected President, states that any citizen who proposes reforming said article, and any others who support such a person directly or indirectly, are to immediately "cease carrying out" any public office.^[11] The Constitution, however, establishes no process for impeaching or removing a president.^{[citation needed]} Furthermore Article 42, Section 5 of the Constitution states that citizenship is lost for "inciting, promoting or supporting the continuation or the reelection of the President of the Republic." According to the same article, revoking citizenship for this reason requires a court sentence and then a government order ("acuerdo gubernativo").^[11]

The intended referendum was rejected by Congress, the attorney general, and the top electoral body, and ruled illegal by the Supreme Court.^[12] The Constitution can only be modified by a two-thirds majority of Congress. However, certain core articles of the Constitution are "set in stone" and cannot be modified, either by Congress or by a referendum. The Constitution itself, as a whole, is unabolishable, thus calling for a constitutional assembly to replace it is by itself a violation of the Constitution.^[13] On June 23, 2009 the National Congress passed a law forbidding holding referenda less than 180 days before the next general election; as the next elections are set for 29 November 2009, this invalidated the referendum bid.^[14]

Congress had begun discussing how to impeach Zelaya but lacked a clear constitutional process to do so.^[15][  Congress, including most of Zelaya's own party, had voted for an urgent investigation of whether Zelaya had violated the constitution and even whether he was "mentally incapable" to hold office.^[16] Zelaya responded to the congressional leader Roberto Micheletti, a member of the same party who has since been sworn in as President in his stead, by saying "What's with you, Roberto. I was elected by the people, not the congress. How would you make me ineligible, you're a lousy second-rate congressman who got your post because I gave you space in my party."^[16]

You're a better man than I am, Gunga Greg Tom Smith

Sorry, that was the best I could do.  Anyway, Greg Mankiw here kills Herr Doktor Professor Krugman with kindness, pointing out how the good Doktor Professor is just full of it.  He could have said what he says less nicely, but that is not his style.  Manikiw might be too nice, just as Krugman is too, uh, not nice.  But Manikiw's points are pretty devastating.  Krugman's macroeconomics is at least 30 years out of date.  And on health care, he is making bad arguments and making them in bad faith as well.  Both points strike me as probably true.

The Supreme Court Seems PoisedMike Rappaport

to restore freedom of speech in the core area of political speech.  One of the worst things that George Bush II did was to sign the McCain Feingold Campaign Finance Law, for no fathomable reason.  (Oh yeah, I guess silencing political speech really is compassionate conservatism.)  Under that law, corporations and labor unions are not allowed to purchase TV or Radio political ads in the two months before an election.  It is hard to get more core political speech than that.  But there is an exception.  If you are a media corporation, you can talk away to your heart's content.  Surprisingly, the media loves the law.    

Two years ago, with the replacement of Justice O'Connor with Justice Alito, the Supreme Court narrowed the law's effect, but did not hold the law unconstitutional.  Now, the Court has asked for supplemental briefing on whether to overrule the two key judicial decisions that allowed the Law to be held constitutional.  As the New York Times wrote:

“The court is poised to reverse longstanding precedents concerning the rights of corporations to participate in politics,” said Nathaniel Persily, a law professor at Columbia. “The only reason to ask for reargument on this is if they’re going to overturn Austin and McConnell.”

Well, from Professor Persily's mouth to God's ears, but I do think the chances are good for an overruling.

Part of the reason for the overruling appears to be the facts of the case.  The federal government attempted to restrict a movie critical of Hillary Clinton during the primaries last year.  Somehow restricting a movie seems worse than restricting a commercial.  And, making matters worse, the federal government argued before the Court that "Congress had the power to ban political books, signs and Internet videos as long as they were paid for by corporations and distributed not long before an election."   Wow.  

Victor Davis Hanson Attempts toMike Rappaport

explain the Liar-in-Chief.  After discussing the "three noble lies" that Obama tells, here is Hanson's bottom line:

So why does President Obama so often get history wrong, so often call for utopian schemes he would hardly adopt for himself, and so often distort by misinformation and incomplete disclosure?

Partly the culprit is administrative inexperience, partly historical ignorance. But mostly the disconnect comes because Barack Obama believes he is a philosopher-king, whose exalted ends more than justify his mendacious means.

In other words, Obama is our first truly postmodern president. And the Guardians who form his elite circle — in the very manner that they once falsely accused neo-cons of doing — deliberately, but “nobly,” distort the truth on behalf of us all.

Well, maybe.  I see our truth-challenged President as much a product of the Chicago political culture as a postmodernist who is seeking to pursue the good for us all.  He wants national health care, even though people don't want it given the costs.  And so he claims it won't cost money, it will save it.  One hardly needs to be a postmodernist to engage in deceit in the pursuit of statism.  Just ask Julius Caesar.  

What was it Bob Kerry said about Bill Clinton?  "Clinton's an unusually good liar. Unusually good."  Well, I don't know how good Obama is, but, with a teleprompter, he is a very smooth liar.  Very smooth.  

A Loss of PerspectiveMike Rappaport

To quote it is to reject it:

Consider The Penguin Atlas of Women in the World (2008), by the feminist scholar Joni Seager, chair of the Hunter College geography department. Now in its fourth edition, Seager's atlas was named "reference book of the year" by the American Library Association when it was published. "Nobody should be without this book," says the feminist icon Gloria Steinem. "A wealth of fascinating information," enthuses The Washington Post. Fascinating, maybe. But the information is misleading and, at least in one instance, flat-out false.

One color-coded map illustrates how women are kept "in their place" by restrictions on their mobility, dress, and behavior. Somehow the United States comes out looking as bad in this respect as Somalia, Uganda, Yemen, Niger, and Libya. All are coded with the same shade of green to indicate places where "patriarchal assumptions" operate in "potent combination with fundamentalist religious interpretations." Seager's logic? She notes that in parts of Uganda, a man can claim an unmarried woman as his wife by raping her. The United States gets the same low rating on Seager's charts because, she notes, "State legislators enacted 301 anti-abortion measures between 1995 and 2001." Never mind that the Ugandan practice is barbaric, that U.S. abortion law is exceptionally liberal among the nations of the world, and that the activism and controversy surrounding the issue of abortion in the United States is a sign of a vigorous free democracy working out its disagreements.

Hat tip: Instapundit.

Disparate ImpactMike Rappaport

Richard Epstein gets to the heart of the flaws with the disparate impact test under Title VII:

Government bodies and private employers both need reliable information in order to make intelligent decisions on promotion, and it would be a scandal if Title VII were to remove one core component of any employment decisions [that is, employment tests].  If the disappointed applicants could have proposed their own alternative test, that would have had both predictive power and no disparate impact, there is room for a discussion on the point. But one of the least appealing features of the current law on testing in race cases is that the attackers of the result do not have to present that alternative. And it is not likely, given the long history of failed attempts, that they would be able to do so. The defenders of affirmative action do us no favor when they attack the validity of tests that are now so carefully engineered that major improvements seem unlikely.

In other words, if one's employment test produces a disparate impact, then it can be struck down even though no one has shown that another test was available that would not have had the disparate impact.

Women are discriminated against Tom Smith

But it's by other women, not men.  At least in this paper about performance art.  We will pause now for a moment so you can go to the link, read the article and recover in case you are seized with a fit of uncontrollable laughter.  There.  Feel better?  We can continue.

Personally, I don't find it difficult to believe in the least that women discriminate against other women. The important thing to remember is, it is the fault of men that they do so.  Women discriminate against women because of the patriarchial yada yada and so on and so forth and whatever, but the main thing is, it's men's fault.  As if you had to ask.

An anecdote.  I was talking to a lawyer the other day whose wife is some sort of professional psychologist.  She had to take a professional exam to get licensed in California, and in spite of being very well prepared, she failed the exam, twice.  The exam included an oral exam and no one could figure out what was going on so they hired a consultant.  He looked her over and said, "you're too pretty.  Get some fake thick glasses, and make yourself ugly with makeup and frumpy clothes."  The examination board was mostly women.  Dressed as an ugly psychologist, she passed with flying colors. Bear in mind, however, that when women discriminate against other women for being too pretty or not pretty enough, it is men's fault.

(I should add that I have personal experience with men discriminating against women I know in the professions, but in my view they do this not because they are men, but because they are assholes.)

Via WSJ.

Treason against the planet Tom Smith

Herr Doktor Professor Krugman lets us know that global warming deniers (does that include skeptics?) are committing "treason against the planet."  I think that's a curious phrase.  It's very, uh, fanatical.

I'm not a global warming denier;  I'm just a skeptic.  I am prepared to believe in global warming, even more than I am prepared to believe in UFOs.  I just have to see something that convinces me.  I don't trust consensus any more than I trust Krugman because I know how politicized science can be.  It's almost as bad as economics.  The apparent, reported fact that global temperatures are not actually warming adds to my skepticism.  I don't consider models themselves any sort of evidence.  So I am left in doubt. The costs of the changes asked for are enormous.  It strikes me those global warming believers ought to bear a heavy burden of proof, but even to say that is to deny the "precautionary principle".  But then the whole thing starts to take on the non-falsifiable flavor of ideology:  We must do these things whether or not there is enough evidence, just in case they might be necessary.  And if you say no, you are a traitor.  Does that remind you of anything?

And consider this:

To fully appreciate the irresponsibility and immorality of climate-change denial, you need to know about the grim turn taken by the latest climate research.

The fact is that the planet is changing faster than even pessimists expected: ice caps are shrinking, arid zones spreading, at a terrifying rate. And according to a number of recent studies, catastrophe — a rise in temperature so large as to be almost unthinkable — can no longer be considered a mere possibility. It is, instead, the most likely outcome if we continue along our present course.

Thus researchers at M.I.T., who were previously predicting a temperature rise of a little more than 4 degrees by the end of this century, are now predicting a rise of more than 9 degrees. Why? Global greenhouse gas emissions are rising faster than expected; some mitigating factors, like absorption of carbon dioxide by the oceans, are turning out to be weaker than hoped; and there’s growing evidence that climate change is self-reinforcing — that, for example, rising temperatures will cause some arctic tundra to defrost, releasing even more carbon dioxide into the atmosphere.

Temperature increases on the scale predicted by the M.I.T. researchers and others would create huge disruptions in our lives and our economy. As a recent authoritative U.S. government report points out, by the end of this century New Hampshire may well have the climate of North Carolina today, Illinois may have the climate of East Texas, and across the country extreme, deadly heat waves — the kind that traditionally occur only once in a generation — may become annual or biannual events.

I'm not qualified to critique the MIT studies, though I should observe neither is Krugman.  Few people are.  In my case, the sheer vitriol of Krugman's language makes me even more skeptical, like he is trying whip people into a panic.  This would not be the first time scientists predicted doom that did not arrive and did so apparently for as much political reasons as scientific ones.  It also bothers me that if Krugman and the MIT scientists are wrong, it's not as if they will be on the hook for the trillions of dollars lost.  And this business of here comes the annual deadly heat wave -- can that be anything other than the merest speculation, thrown in to cause alarm?  It seems to me Krugman has been quite irresponsible opining about things he should know about, so I don't see why I should take him seriously regarding something he is no more an expert on than most.  I suppose one could throw words like "traitor" around, but I think I'll settle for just "really unprofessional."

Here's this piece again from the WSJ.  I'm not saying the deniers are right either.  My strong suspicion is that we don't really know how climate works well enough to predict with any confidence at all whether human activity will cause warming and how much.  If Krugman were as clever as he obviously thinks he is, he would realize that smearing people who do not share his zeal on this actually hurts his case.  It's poor rhetorical technique.  In order to effectively bully people, you have to have more over them than the opinion of the New York Times.  On the other hand, it could be he is just such a bully by nature that he can't help himself.  If this is so, he should consider taking a class or reading a book on how to argue effectively.  There are a lot of them out there.  Maybe the New York Times would pay for it.

Ricci decision Tom Smith

Some links here.

Ginburg's Footnote 10 in Ricci Gail Heriot

Josh Gerstein of Politico is reporting that today's 5-4 decision in Ricci will make it difficult to fault Judge Sotomayor for her decision below, since four justices agreed with her.  Says he:

"The ruling will be portrayed as a snub to Sotomayor, but the fact that four judges agreed with her position suggests that her assessment of the case was hardly outside the mainstream."

This is simply not true.  The justices disagreed with each other on whether the City of New Haven's proffered reason for scratching the test (fear of litigation) was legally sufficient, but the dissenters agreed that the plaintiffs should have been allowed their day in court to prove the proffered reason was a mere pretext for flat-out malicious discrimination against whites.  In other words, the dissenters agreed that Sotomayor and the other members of the Second Circuit panel erred.

Ginsburg makes it clear that she does not think that such discrimination is the most likely explanation for what happened (see p. 37), but she does concede that she would have remanded the case for further proceedings.  She agrees with the Solicitor General (who urged in an amicus brief that the case be reversed and remanded on exactly that ground), not Judge Sotomayor (who held that New Haven should prevail as a matter of law).  The decision was thus 9-0 on the issue of whether the Sotomayor opinion correctly disposed of the case.

Update:  The Gerstein article has been up-dated to remove the sentence I quoted above.

Another update:  Some folks are having a difficult time following what I mean.  Let me try to make it clearer:

At trial, both parties made a motion for summary judgment.  That means both parties thought that under the undisputed facts, they ought to win, but the plaintiffs had a backup argument that they ought to be given the opportunity to prove that the City is lying about its concern over litigation.  The trial judge had three options:  (1) Agree that under the undisputed facts, the plaintiffs should win; (2) Agree that under the undisputed facts the City of New Haven should win; or (3) find that the facts are disputed and therefore the case must go to trial. 

Plaintiffs made two arguments:  (a) that the City of New Haven's motivation for refusing the promotions--fear of litigation--was insufficient as a matter of law unless New Haven could show that the litigation would be meritorious; and (b) even if that motivation would be sufficient if  true, it was a mere pretext and the City of New Haven's was in fact motivated by a desire to prevent too many whites from getting the promotion.  The City of New Haven also made two arguments: (a) that its fear of litigation was sufficient as a matter of law to avoid liability on that basis; and (b) its fear of litigation was not a mere pretext for other motivations. 

The trial court went with (2) and entered summary judgment for the City without trial.  The Second Circuit affirmed. 

Five justices of the Supreme Court held that Option 1 was the proper course and granted summary judgment to plaintiffs.  For them, it wasn't necessary to decide whether the City's proffered reason was real or pretextual, because plaintiffs would win either way.  The four dissenters believed if the City of New Haven was inspired by fear of litigation, then it was not liable.  In that narrow respect they agreed with the Second Circuit judges and the district judge.  But their bottom line was that the Second Circuit judges and trial judges erred, because they had ended the case in summary judgment and they should have remanded the case. The plaintiffs were entitled to attempt to prove that the proffered motivation was a mere pretext. 

In other words, five justices voted for Option 1; four justices votes for Option 3.  No justices voted for Option 2, which was the option chosen by the Second Circuit judges and the trial judge.  

How to Destroy AmericaMike Rappaport

The Washington Post reports on the new CBO Report:

To put it bluntly, the fiscal policy of the United States is unsustainable. Debt is growing faster than gross domestic product. Under the CBO's most realistic scenario, the publicly held debt of the U.S. government will reach 82 percent of GDP by 2019 -- roughly double what it was in 2008. By 2026, spiraling interest payments would push the debt above its all-time peak (set just after World War II) of 113 percent of GDP. It would reach 200 percent of GDP in 2038.

This huge mass of debt, which would stifle economic growth and reduce the American standard of living, can be avoided only through spending cuts, tax increases or some combination of the two. And the longer government waits to get its financial house in order, the more it will cost to do so, the CBO says.

The CBO's new long-term forecast is considerably more pessimistic than the one it issued 18 months ago, mostly because of the recession, which has driven the budget deficit above 12 percent of GDP. But the report makes clear that the recent economic downturn did not cause the government's predicament and that the situation will not necessarily improve once the economy does. The principal cause of long-term fiscal distress is the aging of the U.S. population, coupled with rising health-care costs -- which, together, will drive spending on Medicare, Medicaid and Social Security to new heights. Unchecked, federal spending on Medicare and Medicaid combined will grow from almost 5 percent of GDP today to almost 10 percent by 2035 -- and to more than 17 percent of GDP by 2080.

Yes, it is a good time to be passing national health insurance. And that fake stimulus bill, another great idea.  Bailing out the auto companies -- nice move.   Cap and Trade -- that will help the economy.  And what we really need to handle these problems is stronger unions. 

How bad is Obama?  That's a good question, but based on these 5 months, I would say one must go back at least to Lyndon Johnson to get a President as bad as him.  

How to build a scientific consensus Tom Smith

Through free debate.

Marriage making a comeback Tom Smith

Hmmm.

Mary Bono Mack backs stupidest bill in history Tom Smith

Well, this is pretty appalling.  Rep. Mary Bono Mack of the 45th District just north of San Diego was one of 8 Republicans who crossed over to vote for the abomination aka the carbon tax bill.  Given that 40 some Democrats found it managable to vote against the bill, you would have thought this Republican could have as well. I don't doubt there are plenty of smug hybrid drivers around Temecula but really, in a bill this bad, you could have found a good reason for voting against it just by opening it at random.  Of course, that assumes there was a copy in existence, which I gather was not technically the case.  But even there, I think most people would regard it as a good reason to vote against a bill that it was in fact impossible to read it, or even most of it, before voting on it.  Many of us in law related areas, just to take a random example, would consider it our fiduciary duty to actually read, perhaps even carefully, a legal instrument that would dispose of trillions of dollars of other people's money, before attaching our name to it.  Is it too rash for a Congressperson to be expected to do the same?  If so, you could have a rule of thumb -- less than $100 Billion:  no worries, whatever, go ahead and sign without reading.  But more than $100 Billion, or $1 Trillion, say, maybe read that sucker first. Just a thought.

Selection of our lawmakers by lottery has never looked better.  You can contact Mary (the Congressperson evidently wants you to be on a first-name basis with her) here.  Some background here.

An abomination Tom Smith

The best thing to be said for the carbon tax bill is that it won't get through the Senate.  Given the length, complexity and futility of this bill, it is probably the case that we will never know just how dumb it is, since no one will bother to read the whole thing (and as of now, it is not even possible to do so, apparently).  Does that make it better or worse that our squid overlords have just spent all this time and money creating this wannabe-law?  I don't know.  But the bright side is, better a spectacularly stupid bill that does not become law, than a somewhat less stupid but still appallingly ill-considered act that does.  Our House of Representatives is wasting their time and our money, and we should be grateful that they are.

Farrah v. Michael Tom Smith

Hmmm.

Debunking Woodrow Wilson and KeynesMike Rappaport

Awesome post by the excellent Scott Sumner.  Hat tip: Bryan Caplan.

Smug and SmogMike Rappaport

Jim Lindgren is all over the Cap and Trade monstrosity, rightly comparing it to the Smoot Hawley tariff. 

What is more, Jim links to one of my favorite South Park (or any TV show) episodes: Smug Alert.  This episode also belongs in the top 10 Anti-Environmentalist works of art (along with David Byrne's Nothing But Flowers).  If you haven't seen Smug Alert, watch it right now -- it is fantastic!  If you have watched it, see the commentary provided by Matt and Trey. 

The geoduck is a stud Tom Smith

You'll see why.  They are not ducks.

Your friend, the robot army Tom Smith

Watch out, jihad boy.

In other news, stoned wallabees.

A new cool tool from Google Tom Smith

Google voice.  They're evil, but they make good stuff.

A grudging, classless "appraisal" of Farrah Tom Smith

The New York Times can't get anything right.  Neither a drug addict, nor gay, nor a political nutcase, she had to fail I suppose to gain the respect of this cultural arbiter.  I would not call myself a fan, but you could say a lot more than that she was the object of lust of every teenage male in the 1970's and was a poor actress.  She also helped re-define if only temporarily beauty in a fairly wholesome direction, which may be why some people hate her.  Yes, her hair required some serious engineering, but other than that, she was pretty much made by God, not SoCal cosmetic surgeons.  She made a noble attempt to salvage some purpose and dignity out of her dying, with not much help from the media.  I'm going to remember her at her most beautiful which seems little enough to do.

Why the NY Times is going broke Tom Smith

Why does Gail Collins have a column in the NY Times?  Why can't she think of anything interesting to say? Does she make a single point in this piece that is not entirely predictable and another example of lame, ideologically driven thinking?  At least Gov. Sanford offered us some brief cause for reflection and bafflement.  Can Collins make the same claim?

Better hurry up and pass cap and trade Tom Smith

Before the consensus collapses:

The number of skeptics, far from shrinking, is swelling. Oklahoma Sen. Jim Inhofe now counts more than 700 scientists who disagree with the U.N. -- 13 times the number who authored the U.N.'s 2007 climate summary for policymakers. Joanne Simpson, the world's first woman to receive a Ph.D. in meteorology, expressed relief upon her retirement last year that she was finally free to speak "frankly" of her nonbelief. Dr. Kiminori Itoh, a Japanese environmental physical chemist who contributed to a U.N. climate report, dubs man-made warming "the worst scientific scandal in history." Norway's Ivar Giaever, Nobel Prize winner for physics, decries it as the "new religion." A group of 54 noted physicists, led by Princeton's Will Happer, is demanding the American Physical Society revise its position that the science is settled. (Both Nature and Science magazines have refused to run the physicists' open letter.)

The collapse of the "consensus" has been driven by reality. The inconvenient truth is that the earth's temperatures have flat-lined since 2001, despite growing concentrations of C02. Peer-reviewed research has debunked doomsday scenarios about the polar ice caps, hurricanes, malaria, extinctions, rising oceans. A global financial crisis has politicians taking a harder look at the science that would require them to hamstring their economies to rein in carbon.

More here.

In Praise of Supreme Court FilibustersMike Rappaport

That is the name of my National Review Online essay, which was written with my friend John McGinnis.  In the piece, we argue that senators should not be hesitant to filibuster Supreme Court nominees, but should feel free to do so based (in part) on the legal views of the nominee.  John and I held and argued for this view during the Bush Administration and continue to believe it is the correct position.  (By contrast, we are not in favor of filibusters of lower court nominees.)

Here is the bottom line from the NRO essay:

Happily, President Obama himself endorsed the use of the filibuster against an admittedly qualified nominee, when — with many of his Democratic colleagues — he attempted to filibuster Justice Samuel Alito. Thus, our recommendation is that, at least in this instance, the Republicans follow President Obama’s sound example and filibuster justices, under two conditions: First, of course, the filibuster must be politically prudent. For instance, it does not help the cause of moderate judicial review to attempt to defeat a nominee who, because of some personal characteristic, is so popular that he cannot be defeated or used to illustrate the dangers of extreme jurisprudential views. Nor is it helpful, if the president is likely to succeed in confirming an even worse nominee upon the defeat of the first. Second, the nominee must be worthy of defeat though a filibuster. He or she should have a jurisprudence that will yield extreme and unfortunate results.

By filibustering when these conditions are met, Republicans will not only be promoting their own individual positions on the proper role of judges. They will help moderate judicial review and preserve its legitimacy for future generations.

For longer articles on these points, see here and here.

This is your brain on mid-life crisis Tom Smith

Once more the human animal baffles me.  Gov. Sanford, who I thought was pretty cool for trying to refuse to take stimulus money, turns out to be a love-crazed loon.  I have long accepted that women are mysterious, but increasingly I fear I do not understand men either.  What is it with these middle aged guys who ruin themselves, not to mention their families, by chasing after ridiculous objects of affection or even obsession?  The length of the flight alone would keep me from flying to Argentina to have sex, not to mention prior engagements.  Do I just not get it?  Do I not know what love is?  Hasn't this guy ever heard of cold showers or push ups?

I think in a deeper sense this is all the fault of liberals.  Nobody used to think that just because you were 49 and the mother of your children no longer enthralled you as she once did that you were somehow entitled to fly across the hemisphere to satisfy your man lust.  Real men sucked down a couple of stiff drinks, played a round of golf, fired up a good cigar and accepted the responsibilities of running the free world.  But no more apparently.  Now it's, oh my feelings, and I don't know who I am anymore, and nine other kinds of bullshit.  It makes me embarassed for my sex.  But, this is all the fault of the sexual revolution, and the associated rise of the therapeutic culture, which you may recall were not Republican ideas.

The fault of liberalism but also of technology.  What is it about email that tempts the sender to pour out his sappy heart into a form that can be forwarded and published to the world at zero marginal cost?  I could not bring myself to read the emails between the Governor and his Argentinian love muffin.  I couldn't get past "Sweetest" and "Dearest".  I was going to ask how they became public, but I guess it's just all that information yearning to be free.  A good rule of thumb might be, just never exchange even remotely steamy emails, texts, facebook messages and so on, with anybody.  Just assume she is a 300 pound transvestite sheathed in pink vinyl.  If you are already assuming that, you need more help than I can offer.  I just hope you're not a Republican governor.

Now it's supposed to be the time for healing.  O brother.  If people were more aware that lots of things can't be healed, maybe they'd be more careful in the first place.  Upper class rural America used to be a place where if you did something like this, you'd check your life insurance and then go out with your dog and a shotgun and have an accident getting over a fence.  At least there's some honor in that. There is no honor in tearful confessions to the press.

Posner thinks financial reg reorg plan is lame Tom Smith

Though his metaphors are more gastro-intestinal.

Specter may be in trouble Tom Smith

Boo hoo.

The Voting Rights Act of 1965 and the Voting Rights Act of 2006Mike Rappaport

There is a great deal of interesting commentary on the Supreme Court's recent decision to avoid ruling on the constitutionality of the Voting Rights Act.  One puzzle is why Justice Scalia signed on to the statutory interpretation resolution, while Justice Thomas wrote a respectful dissent.  The linked explanations make some sense to me.

From my perspective, though, the biggest question is why the Justices (especially the conservative ones) thought that striking down the Voting Rights Act was such a big deal.  I would agree that striking down the Voting Rights Act of 1965 (which lasted for 5 years) would have been seriously problematic, since that Act responded to grave constitutional violations.  As would striking down the subsequent Acts passed in 1970 and 1975.  Even the 1982 Act was passed relatively close to the time when the constitutional violations of voting rights had occurred.

But with an Act passed in 2006 and adjudicated in 2009, the story is entirely different.  The political jurisdictions subject to the preclearance requirements have changed their behavior dramatically over the years, and African-American rights to vote are now respected in those states, as shown by political participation rates and other evidence.  If one believes that exceptional and strict remedies are justified for serious violations of the Constitution, then one should also believe that such remedies are inappropriate where there are no longer (serious) constitutional violations. 

This is a pretty simple point, but obviously the Justices did not think people would get it.  And I think they are right.  Had the Court, by a five to four vote struck down the Voting Rights Act of 2006 (not the actual name), the media, liberal politicians, and President Obama, no doubt, would have excoriated them in critiques that would have suggested that they had struck down the Voting Rights Act of 1965.  Of course, they would have done nothing of the kind. 

Why did the conservatives fear this critique?  Presumably, because they rightly believed that the public would not have drawn the distinction between the two Acts in a world where the media and important political voices would have been obscuring it. 

In the end, then, the Supreme Court's recent decision must be attributed to the ignorance of voters in a democracy.  This is sadly one of the greatest vices of democracies; thankfully, it is more than outweighed by the benefits of democracies.  But it is nonetheless worthwhile remembering that it is an important and costly vice.

Buy Israeli products at Trader Joe's Tom Smith

You can act against the netrooty boycott of Israeli products by going to Trader Joe's and loading up on delicious cheeses and other yummy products from Israel.  Do good by eating well.  Hard to beat that.  While you're there, you might as well pick up just a few other things . . . 

Your teachers' union (not) at work Tom Smith

Unbelievable.  And yet very believable.

Nokia and Siemens help Iran tyrannize its people Tom Smith

Using twitter, facebook and other web and mobile technology, Iranians fighting for democracy have to work around technological walls the Iranian government has put in place with the help of Nokia and Siemens corporations.  I don't think companies should do this.  I know I'm going to avoid buying anything from these companies if I can.

Complex Iran Tom Smith

This is very interesting.  The parallels to Germany in the 20's and 30's are instructive, I think.  I hope democracy does flourish in Iran, but fascism is a model that can work for quite a while too.  

I wonder whether the New York TimesMike Rappaport

would even deny this charge from Michael Barone.

Obama gives the Credit Rating Agencies a PassMike Rappaport

The Credit Rating Agencies, like Standard and Poor's and Moodys, gave AAA ratings to large numbers of securities that when bad last year.  These agencies' ratings were important in part because government regulations required pension plans, insurance companies, etc, only to purchase AAA rated securities.  The Credit Rating Agencies were paid by the companies they rated and also paid generous consulting fees by those companies, thereby enjoying a gravy train on the road to economic disaster. 

The Credit Rating Agencies were thus a government and market failure that were at the center of the financial crisis.  Yet, the Obama financial reform plan largely leaves the system in place. 

This is one of the problems I have with liberal, government regulatory structures.  They so often cause the government failures and then refuse to get rid of them.